Supreme Court of Canada defers to Harper government to request Khadr’s return to Canada

The Supreme Court of Canada has released its highly awaited decision in Canada (Prime Minister) v. Khadr, 2010 SCC 3 .  In the end, the Supremes defer to the Federal government to request Khadr’s repatriation to Canada.
For those unfamiliar with the case, Omar Khadr was 15 years old when he was taken prisoner on July 27, 2002, by U.S. forces in Afghanistan. U.S. authorities alleged that he had thrown a grenade that killed an American soldier during the battle.  About three months later, he was transferred to the U.S. military installation at Guantanamo Bay and placed in adult detention facilities.  In 2004, Khadr was charged with war crimes, albeit the U.S. trial is pending.  In 2003, agents from two Canadian intelligence services, CSIS and DFAIT, questioned Khadr about matters relating to his outstanding charges and shared the fruits of of their interrogations with U.S. authorities.  In 2004, a DFAIT official interviewed Khadr again, with knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, to make him more receptive or compliant to interrogation.  In 2008, in Khadr v. Canada (“Khadr 2008”), the Supreme Court of Canada held that the regime in place at Guantanamo Bay constituted a clear violation of Canada’s international human rights obligations, and, under s. 7 of the Canadian Charter of Rights and Freedoms, ordered  the Canadian government to disclose to Khadr his interview transcripts with CSIS and DFAIT. Despite Khadr’s repeated attempts  to have the Canadian government seek his repatriation, Prime Minister Stephen Harper  refused to do so.  Khadr then applied to the Federal Court for judicial review, arguing that the decision violated his “right to life, liberty and security of the person”  under section 7 of the Charter.  The Federal Court held that under the special circumstances of this case, Canada had a duty to protect Khadr under s. 7 of the Charter and ordered the government to request his repatriation.  The Federal Court of Appeal upheld the order, but stated that the s. 7 breach arose from the interrogation conducted in 2004 with the knowledge that Khadr had been subjected to the “frequent flyer program“.
In a per curiam opinion, Khadr’s appeal and application for judicial review were allowed ,in part.  The Court made 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.  Costs are awarded to Mr. Khadr.”
The Court takes a nuanced approach to the issues of Crown prerogative and judicial review of the constitutionality of executive action and expresses two “concerns” regarding the nature of the remedy sought:
 
[36] In exercising its common law powers under the royal prerogative, the executive is not exempt from constitutional scrutiny: Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441.  It is for the executive and not the courts to decide whether and how to exercise its powers, but the courts clearly have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown does in fact exist and, if so, whether its exercise infringes the Charter (Operation Dismantle) or other constitutional norms (Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539).  

[39] Our first concern is that the remedy ordered below gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests. For the following reasons, we conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.  
[40] As discussed, the conduct of foreign affairs lies with the executive branch of government. The courts, however, are charged with adjudicating the claims of individuals who claim that their Charter rights have been or will be violated by the exercise of the government’s discretionary powers: Operation Dismantle  
[41] In some situations, courts may give specific directions to the executive branch of the government on matters touching foreign policy.  For example, in  Burns, the Court held that it would offend s. 7 to extradite a fugitive from Canada without seeking and obtaining assurances from the requesting state that the death penalty would not be imposed.  The Court gave due weight to the fact that seeking and obtaining those assurances were matters of Canadian foreign relations.  Nevertheless, it ordered that the government seek them.  
[42] The specific facts in Burns justified a more specific remedy.  The fugitives were under the control of Canadian officials. It was clear that  assurances would provide effective protection against the prospective Charter breaches: it was entirely within Canada’s power to protect the fugitives against possible execution.  Moreover, the Court noted that no public purpose would be served by extradition without assurances that would not be substantially served by extradition with assurances, and that there was nothing to suggest that seeking such assurances would undermine Canada’s good relations with other states: Burns, at paras. 125 and 136. 
[43] The present case differs from Burns.  Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court.   
[44] This brings us to our second concern: the inadequacy of the record.  The record before us gives a necessarily incomplete picture of the range of considerations currently faced by the government in assessing Mr. Khadr’s request. We do not know what negotiations may have taken place, or will take place, between the U.S. and Canadian governments over the fate of Mr. Khadr…. It follows that in these circumstances, it would not be appropriate for the Court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.  
[45] Though Mr. Khadr has not been moved from Guantanamo Bay in over seven years, his legal predicament continues to evolve. During the hearing of this appeal, we were advised by counsel that the U.S. Department of Justice had decided that Mr. Khadr will continue to face trial by military commission, though other Guantanamo detainees will now be tried in a federal court in New York. How this latest development will affect Mr. Khadr’s situation and any ongoing negotiations between the United States and Canada over his possible repatriation is unknown. But it signals caution in the exercise of the Court’s remedial jurisdiction.
[46] In this case, the evidentiary uncertainties, the limitations of the Court’s institutional competence, and the need to respect the prerogative powers of the executive, lead us to conclude that the proper remedy is declaratory relief. A declaration of unconstitutionality is a discretionary remedy: Operation Dismantle, at p. 481, citing Solosky v. The Queen, [1980] 1 S.C.R. 821. It has been recognized by this Court as “an effective and flexible remedy for the settlement of real disputes”: R. v. Gamble, [1988] 2 S.C.R. 595, at p. 649. A court can properly issue a declaratory remedy so long as it has the jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it.  Such is the case here. 
[47] The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.”
  Over at thecourt.ca, Cameron MacLean and Chanakya Sethi suggest that the Court will “deliver its verdict on lingering issues about the government’s ‘duty to protect’ Canadians on foreign soil and the extraterratorial reach of the Charter in light of Canada’s international legal obligations.” I think that the jury is still out on that question. In R. v. Hape, a Canadian Charter or Rights & Freedoms case with an international law element, the majority expressly approved the doctrine of adoption qua reception of customary international law into Canadian domestic law. While the recognition of Canada’s international law commitments is laudable, it is equally confusing; insofar as the majority’s reasons conflate conflict of laws (private international law) with public international law. Clearly, Canada has entered into various multilateral and bilateral conventions or treaties (some of which create reciprocal rights and duties between state-state or investor-state, while others create or promote private rights of action). In any case, all such international instruments are implemented domestically via legislation.

However, customary international law principles, such as universal jurisdiction or jus cogens remain elusive (e.g. Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675, leave to appeal refused, [2005] 1 S.C.R. vi). The line between custom and convention is not easily drawn, as in the case of domestic versus international (or transnational) public policy.

Perhaps the following excerpt offers a glimmer of clarity:

“68 Parliament has clear constitutional authority to pass legislation governing conduct by non-Canadians outside Canada. Its ability to pass extraterritorial legislation is informed by the binding customary principles of territorial sovereign equality and non-intervention, by the comity of nations, and by the limits of international law to the extent that they are not incompatible with domestic law. By virtue of parliamentary sovereignty, it is open to Parliament to enact legislation that is inconsistent with those principles, but in so doing it would violate international law and offend the comity of nations. However, in light of the foregoing discussion of the jurisdictional principles of customary international law, the prohibition on interference with the sovereignty and domestic affairs of other states, and this Court’s jurisprudence, Canadian law can be enforced in another country only with the consent of the host state.”

Readers may also be interested in an article by Armand de Mestral and Evan Fox-Decent entitled “Implementation and Reception: The Congeniality of Canada’s Legal Order to International Law” in THE GLOBALIZED RULE OF LAW: RELATIONSHIPS BETWEEN INTERNATIONAL AND DOMESTIC LAW, Oonagh Fitzgerald, et. al. eds., Irwin Law, 2006.

[Disclosure: I previously acted as a legal consultant for Sgt. Layne Morris and Sgt. Speer’s widow Tabitha, both represented by Donald Winder of the Utah law firm, Winder Haslam LLP in the civil action against the estate of the late Ahmed Said Khadr]

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