IN THE MATTER OF OMAR AHMED KHADR v. THE PRIME MINISTER OF
CANADA ET AL.
Summary: Omar Khadr sought judicial review of Canada’s response to the Supreme
Court of Canada’s declaration in Canada (Prime Minister) v. Khadr (2010) that Canada
had breached his Charter rights. Canada responded by deciding that it would continue to
refuse to request his repatriation from Guantanamo Bay, Cuba, and by requesting, by way
of diplomatic note, that the United States not use any of the information Canada had
supplied it in its prosecution of Mr. Khadr.
The Court concluded that Canada’s decisions were amenable to judicial review, even
though they involved the executive’s exercise of a royal prerogative, because they
affected the rights and legitimate expectations of Mr. Khadr. The breach of his rights
remained ongoing and the Court concluded that he had a legitimate expectation,
following the Supreme Court of Canada’s declaration, that Canada would take steps to
remedy its breach. The steps taken to date were found not to remedy the breach.
The Court refused to quash the decision to send a diplomatic note to the U.S. because it
had already been made and could not be taken back.
The Court ordered Canada to provide Mr. Khadr with a list of potential remedies to cure
its breach of the Charter. The Court ordered Mr. Khadr to provide submissions on
Canada’s proposal and any other potential remedies not identified by Canada. The Court
ordered Canada to advance, and to continue to advance, these potential remedies until the
breach of Mr. Khadr’s Charter rights is cured or there are no remaining remedies.
The Court retained jurisdiction to determine whether a proposed remedy is appropriate
and just should the parties be unable to agree. The Court retained jurisdiction to impose a
remedy after the process described if Canada has not implemented an effective remedy
within a reasonably practicable period of time.
**********************
Claudine Léger
Media Contact / Liaison avec les médias
Federal Court / Cour fédérale
Tel. / Tél. : 613-947-3177