Ontario C.A. upholds stay of U.S.A.’s extradition request for Abdullah Khadr

The Rule of Law and international human rights remain alive and kicking in Canada.

Abdullah Khadr (right) looks on as his lawyer Dennis Edney talks to media outside court in Toronto, Wednesday, Aug.4, 2010. (Colin Perkel / THE CANADIAN PRESS via http://www.ctv.ca)

Today, the Court of Appeal for Ontario in United States of America v. Khadr,2011 ONCA 358 (Ont. C.A.), dismissed the appeal by the United States government to extradite Canadian citizen, Abdullah Khadr (the older brother of Omar Khadr currently held in Guantanamo Bay pending his return to Canada following his guilty plea to terrorism related charges). The Court of Appeal affirmed that a stay was the appropriate judicial response to a violation of the human rights of an individual sought for extradition on terrorism charges.

  The United States of America paid the Pakistani intelligence agency, the Inter-Services Intelligence Directorate (the “ISI”), $500,000 to abduct Abdullah Khadr in Islamabad, Pakistan in 2004.  Khadr, a Canadian citizen, was suspected of supplying weapons to Al Qaeda forces in Pakistan and Afghanistan.  Following his abduction, Khadr was secretly detained for 14 months, during which time he was beaten during interrogation by the ISI until he cooperated. The ISI refused to deal  directly with the Canadian government but communicated with a CSIS official, whose official’s request that Khadr be granted consular access was discouraged by the American government, and denied for three months by the ISI.  The ISI further refused to bring Khadr before the Pakistani courts.  After the ISI had no further use for Khadr as source of anti-terrorism intelligence, it was prepared to release him, but the Americans insisted that the ISI hold Khadr for a further 6 months in secret detention to facilitate its ongoing criminal investigation and initiate Khadr’s extraordinary rendition to the United States.  When Khadr was eventually repatriated to Canada, the United States then sought his extradition on terrorism charges.

The appeal judgment is fairly lengthy (79 paragraphs) and others with expertise in criminal law and international human rights law will have more authoritative analysis to offer.

A few highlights to mention.

Sharpe, J.A. upheld the finding made by the extradition judge, Speyer, J. following a blended hearing conducted over several days that embraced all issues: the extradition hearing proper; a voluntariness voir dire relating to the Pearson and Delta statements; and Khadr’s motion for a Charter remedy or stay of proceedings based upon abuse of process, noting:

[21]         The extradition judge summarized his key factual findings in relation to the abuse of process motion, at para. 124:

A summary of my findings is as follows:

1.    Khadr was captured in Islamabad, Pakistan by the ISI at the behest of the United States, who paid a $500,000 bounty for his arrest.

2.    Khadr was initially sought by American officials solely for intelligence purposes and not for criminal prosecution purposes.

3.    I am satisfied that Khadr’s detention by the ISI was both arbitrary and illegal, according to the law of Pakistan.

4.    During his initial three days of detention, Khadr was mistreated and physically abused, but not on the level of severity he alleges in his affidavit.  I am satisfied that the United States intelligence agency did not have actual knowledge that Khadr would be abused when it paid the bounty for his arrest.  However, I am equally satisfied this agency ought to have known that there was a credible risk he would be mistreated.

5.    Khadr’s rights to consular access without delay were denied by Pakistan. The United States and Pakistan collaborated in this delay in order to facilitate the completion of American intelligence interrogations.

6.    I am satisfied for reasons previously stated that the United States intelligence agency pressured the ISI to delay Khadr’s repatriation to Canada for a period of six months. The delay was caused by American dissatisfaction with the decision to return Khadr to Canada without charges being laid. This delay was contrary to Canadian officials’ expectations and wishes that Khadr be repatriated. It was a source of frustration: Canadian officials had fully expected Khadr to be released and had made preparations for his return to Canada.

Relying on foreign law, Justice Sharpe makes some bold statements about the role of an independent judiciary  in upholding the Rule of Law:

[72]         Cases involving alleged terrorists or other enemies of the state who oppose and seek to destroy the fundamental values of democracy and the rule of law put our commitment to those very values to the test.  No doubt some will say that those who seek to destroy the rule of law should not be allowed its benefits.  I do not share that view.  I find compelling the extradition judge’s statement, at para. 150, that “[i]n civilized democracies, the rule of law must prevail over intelligence objectives.”

[73]         One of the most famous statements as to the need to maintain respect for the rule of law despite the threat of subversion in time of national peril is Lord Atkin’s speech in Liversidge v. Anderson, [1942] A.C. 206 (H.L.).  Liversidge concerned the judicial review of the ministerial power to intern persons of “hostile origin or association” involved in activities “prejudicial to public safety”.  At p. 244, in a memorable and often quoted passage, Lord Atkin stated that “amid the clash of arms, the laws are not silent”.  While the laws may be changed to meet the threat of subversion, “they speak the same language in war as in peace”.  It is the role of judges to “stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”.  Although expressed in dissent, Lord Atkin’s speech has since been accepted as a proper statement of the law: See Khawaja v. Secretary of State for the Home Department, [1984] A.C. 74 (H.L.).

[74]         The same point was made in decisions by the Supreme Court of the United States requiring the state to respect certain basic legal rights of suspected terrorists detained at Guantanamo Bay.  In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), O’Connor J. held, at p. 509, that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker” and, at p. 536, that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens”.  In Boumediene v. Bush, 553 U.S. 723 (2008), Kennedy J. held, at p. 797, that suspected terrorists could not be denied the constitutionally guaranteed right of habeas corpus: “Security subsists, too, in fidelity to freedom’s first principles.”  In a similar spirit, both the Supreme Court of Canada and the House of Lords have vindicated fundamental legal rights infringed by anti-terrorism legislation: See Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350; A. v. Secretary of State for the Home Department, [2005] 2 A.C. 68, at para. 97, per Lord Hoffman: “The real threat to the life of the nation…comes not from terrorism but from laws such as these.”

[75]         Another powerful judicial voice defending the rule of law against erosion from threats to national security is that of President Aharon Barak of the Supreme Court of Israel, who stated in Public Committee Against Torture v. Israel (1994), HCJ 5100/94, that it is “the destiny of democracy…not [to] see all means as acceptable”: at para. 39.  Adherence to the rule of law means that a democracy “must sometimes fight with one hand tied behind its back”; but this does not deprive a democracy of “the upper hand” as, at the end of the day, the rule of law and individual liberty “strengthen its spirit and this strength allows it to overcome its difficulties”.  See also Louise Arbour, “In our name and on our behalf” (2006), 4 Eur. H.R.L. Rev. 371; Owen M. Fiss, “The war against terrorism and the rule of law” (2006), 26 Oxford J. Legal Stud. 235; David Dyzenhaus, “Intimations of legality amid the clash of arms” (2004), 2 Int’l J. Const. L. 244.

[76]         These eminent jurists make a fundamental point: the rule of law must prevail even in the face of the dreadful threat of terrorism.  We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values.  For if we do not, in the longer term, the enemies of democracy and the rule of law will have succeeded.  They will have demonstrated that our faith in our legal order is unable to withstand their threats.  In my view, the extradition judge did not err in law or in principle by giving primacy to adherence to the rule of law.

[77]         Finally, I think it important to point out that even if balancing is required or warranted, there is a compelling argument that tips the balance in favour of a stay.  In my view, the Attorney General’s emotive argument that because of what the extradition judge did, an admitted terrorist collaborator is allowed to walk free is unfounded.  Although this point was not mentioned by the extradition judge, the stay of the extradition proceedings does not remove the Attorney General’s capacity to deal with the allegations of terrorist activity according to law.  Khadr is a Canadian citizen and, as conceded by counsel for the Attorney General in oral argument, under the Criminal Code, Khadr is liable to be prosecuted in Canada for acts of terrorism committed outside Canada.

[78]         Thus, even if I am wrong in concluding that the extradition judge was not required to engage in balancing the stay against the societal interest in allowing the committal to proceed, the fact that Khadr is liable to prosecution in Canada would tip the scales in favour of the stay.

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