Supreme Court of Canada Constrains Canadian Officials' Conduct in Khadr



Cristin Schmitz for The Lawyers Weekly

February 12, 2010

The Supreme Court's condemnation of the Canadian government's "ongoing breach" of Omar Khadr's constitutional rights will legally constrain Canadian officials from collaborating in future rights abuses abroad, contend counsel who argued the case at the top court.

By holding in clear and unequivocal terms that in 2003 and 2004 the government violated the Guantanamo Bay prisoner's Charter right to life, liberty and security of the person in a manner that is contributing to his current detention and the ongoing breach of his rights, last month's ruling in Prime Minister of Canada v. Khadr 2 "has many broad implications beyond this case," said University of Toronto law professor Sujit Choudhry.

Choudhry suggested the principles of the judgment will apply to many situations where Canadian government and military officials cooperate with foreign officials abroad on matters of national security, law enforcement and defence.

"Khadr 2 says we clearly can't be violating fundamental rights-that's very important," said Choudhry, who represents the British Columbia Civil Liberties Association, one of more than a dozen legal groups who intervened in support of Khadr's appeal at the high court.

Simon Potter of Montreal's McCarthy Tétrault said most important is the court's firm rejection of the government's argument that courts may not interfere with the executive's exercise of the Crown prerogative over foreign relations. "They were arguing that within their prerogative in foreign affairs they could do anything and the courts would have nothing to say about it," said Potter, counsel for the intervener Lawyers Without Borders, the Barreau du Quebec, and Groupe d'étude en droit et libertés of Laval University's Faculty of Law.

Potter said the court has reaffirmed that when a government refuses to abide by constitutional constraints when exercising its prerogative to conduct foreign relations, the court may order compliance. "For my clients, the... principle was that the executive branch never is on a ground on which it is immune from review by the judicial branch, and that principle has been resoundingly protected."

The high court's 9-0 judgment Jan. 29, 2010 affirms the conclusion of the Federal Court and Federal Court of Appeal that Canadian officials contributed to the Khadr's present detention in a fundamentally unjust manner when they repeatedly interrogated the then-16-year-old youth at Guantanamo Bay in 2003 and 2004.

"Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects," the court said.

The judges went on to note that the "relevant, useful" and "potentially inculpatory" statements elicited by Canadian officials will likely form part of the prosecution's case at the U.S. military tribunal in Guantanamo Bay. Canadian-born Khadr, whose late father had links to al-Qaeda, faces war crimes charges stemming from the death of an American soldier during a 2002 firefight in Afghanistan.

The Supreme Court awarded Khadr his legal costs and issued him a declaration "that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada's international human rights obligations and contributed to Mr. Khadr's ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice."

However, the judges denied Khadr's request that the federal government be ordered to seek his return to Canadian soil-even though they acknowledged such a remedy "could potentially vindicate" his Charter rights.

The court said it took this "prudent course" given "the evidentiary uncertainties, the limitations of the court's institutional competence, and the need to respect the prerogative powers of the executive."

The refusal of injunctive relief was "disappointing but not surprising" given the tenor of the judges' questioning during argument, commented Nathan Whitling of Edmonton's Parlee McLaws, who represents Khadr, along with Dennis Edney

"We had told Omar this was the most likely result and he did not have his hopes up," Whitling told The Lawyers Weekly. "During the appeal hearing the court was clearly concerned about the propriety of...intruding into the sphere of foreign relations because this is not the traditional role of the court."

Whitling did not rule out going back to court to seek injunctive or other relief. Khadr still has pending a $10-million Charter damages action against the government.

Choudhry said the judgment provides fodder for Khadr to return to court, depending on the Harper government's next move.

"I think [the judges] were a little bit too cautious" but "the court said 'at this point' we will not issue mandatory relief," he noted. "They did not say 'never' [to a mandamus] remedy, so I don't think they wimped out."

Potter said his clients are "very pleased" by the judgment, even though they supported the remedy below. "I don't see it as an abdication," he explained. "I don't see it as a refusal to [ever] give the relief requested. It's simply deferential on that point. The executive branch thought that there had been no [constitutional] violation and that nothing had to be done. [The court effectively said] 'we are going to correct the executive branch on that so that they can decide what to do.' I think that is a prudent way to do it, but it is not a judgment to the effect that the court can never make such an order."

Less than a week after Khadr 2 was handed down, the Harper government announced it would not change its longstanding policy not to seek Khadr's repatriation. At press time, the government had not ruled out taking other steps to vindicate Khadr's Charter rights. Crown counsel could not comment but others have suggested that the government might ask the U.S. to treat Khadr more leniently in light of his age at the time of the alleged offences, or request that the information passed on by Canadians not be used in the military prosecution.

Counsel for the interveners opined that the government cannot simply do nothing in the wake of Khadr 2. "I expect the government to do something because the judgment clearly demands that, and then there is going to be a debate-whether a public debate or a judicial debate-as to whether that's sufficient," Potter predicted.

Brian Greenspan of Toronto's Greenspan Humphrey, counsel for the intervener Criminal Lawyers' Association, said it is tragic but "not a big surprise" that the government refuses to ask the U.S. to return Khadr, notwithstanding the Supreme Court's statement that such a move could potentially mitigate the ongoing breach of Mr. Khadr's s. 7 Charter rights.

Greenspan noted the interveners in the appeal urged the court to grant Khadr's requested remedy because of concern that "the reaction of the government would be precisely the reaction which has taken place, and therefore unless some enforceable remedy was granted, then it was likely the government would continue to skirt its responsibility."

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