Can. (A.G.) v. Khadr,

• Jurisdiction: Ontario
• Judge: Laskin, Sharpe and Cronk, JJ.A.
• Neutral Citation: 2011 ONCA 358
• Citation: 2011 ONCA 358,(2011), 280 O.A.C. 210 (CA),106 OR (3d) 449,337 DLR (4th) 638,273 CCC (3d) 55,85 CR (6th) 143,[2011] OJ No 2060 (QL),280 OAC 210,337 D.L.R. (4th) 638,[2011] O.J. No 2060 (QL),280 O.A.C. 210,106 O.R. (3d) 449,(2011), 280 OAC 210 (CA)
• Date: 08 April 2011
• Court: Court of Appeal (Ontario)

Can. (A.G.) v. Khadr (2011), 280 O.A.C. 210 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.047

The Attorney General of Canada on behalf of The United States of America (appellant) v. Abdullah Khadr (respondent)

(C52633; 2011 ONCA 358)

Indexed As: Canada (Attorney General) v. Khadr

Ontario Court of Appeal

Laskin, Sharpe and Cronk, JJ.A.

May 6, 2011.

Summary:

The United States of America paid the Pakistani intelligence agency (the "ISI") $500,000 to abduct Khadr in Pakistan. Khadr, a Canadian citizen, was suspected of supplying weapons to Al Qaeda forces. Following his abduction, Khadr was detained in Pakistan for 14 months in a secret detention centre without any charges being laid and without access to legal counsel, the court or a tribunal. For the first three months of his detention, Khadr was denied access to Canadian consular services. When Khadr was finally repatriated to Canada, the United States sought to have him extradited on terrorism charges. The judge who conducted the extradition committal hearing found that Khadr was physically abused and mistreated which led him to cooperate with his ISI and American interrogators. The judge concluded that "the sum of the human rights violations suffered by Khadr was shocking and unjustifiable". The judge granted a stay of proceedings pursuant to s. 24(1) of the Charter on the basis that to permit the proceedings to continue in the face of the requesting state's misconduct would constitute an abuse of the judicial process (see [2010] O.T.C. Uned. 4338). The Attorney General of Canada appealed on behalf of the United States. The Attorney General argued that the extradition judge had no jurisdiction to grant a stay, and even if he did, this case did not qualify as "the clearest of cases" warranting a stay.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See all Extradition - Topic 22 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See first Extradition - Topic 22 ].

Extradition - Topic 22

General - Bars to extradition - Abuse of process - The United States of America sought Khadr's extradition on terrorism charges - The Ontario Superior Court judge who conducted the extradition committal hearing granted a stay of proceedings on the basis that to permit the proceedings to continue in the face of the requesting state's misconduct would constitute an abuse of the judicial process - The Attorney General of Canada appealed on behalf of the United States - The Attorney General argued that by granting a stay on the residual ground that the requesting state's conduct undermined the integrity of the judicial process, the extradition judge exceeded his jurisdiction and usurped the Minister of Justice's jurisdiction under s. 44(1)(a) of the Extradition Act to refuse surrender if it would be "unjust or oppressive having regard to all the relevant circumstances" - The Ontario Court of Appeal held that s. 44(1)(a) of the Act did not deprive a court of its power to protect its own integrity by staying proceedings on the ground of abuse of process - The court was unable to read the general permissive language of s. 44(1)(a), conferring ministerial discretion at the surrender stage, as removing the Superior Court's jurisdiction to grant a stay for abuse of process at the committal stage - See paragraphs 29 to 52.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - The United States of America sought Khadr's extradition on terrorism charges - The extradition judge granted a stay of proceedings on the basis that to permit the proceedings to continue in the face of the requesting state's misconduct would constitute an abuse of the judicial process - The Attorney General of Canada appealed on behalf of the United States - The Attorney General argued that the extradition judge erred in determining that the "clearest of cases" standard for a stay of proceedings had been met - The Attorney General submitted that the extradition judge erred by failing to consider whether the abuse of process he found would be "perpetuated" if Khadr were committed for extradition and surrendered by the Minister - The Ontario Court of Appeal rejected the argument - The extradition judge took into account the "clearest of cases" requirement and directed his mind to the prospective element of the remedy he granted - Citing Canada (M.C.I.) v. Tobiass (S.C.C.), he stated that a stay was appropriate, not as a form of punishment for past wrongdoing, "but rather [as] a specific deterrent; that is, a remedy aimed at preventing similar abuse in the future" - The remedy was also "aimed at this court dissociating itself with the conduct of the requesting state" - This case was within the range of exceptional cases contemplated in Tobiass where a judge had the residual discretion to grant a stay on the grounds of "past misconduct ... so egregious that the mere fact of going forward in the light of it will be offensive" - See paragraphs 55 to 58.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - The United States of America paid the Pakistani intelligence agency (the "ISI") $500,000 to abduct Khadr in Pakistan - Khadr, a Canadian citizen, was suspected of supplying weapons to Al Qaeda forces - Following his abduction, Khadr was detained in Pakistan for 14 months in a secret detention centre without any charges being laid and without access to legal counsel, the court or a tribunal - For the first three months, he was denied access to Canadian consular services - When Khadr was finally repatriated to Canada, the United States sought to have him extradited on terrorism charges - The extradition judge found that Khadr was physically abused and mistreated which led him to cooperate with his ISI and American interrogators - The judge concluded that "the sum of the human rights violations suffered by Khadr was shocking and unjustifiable" - The extradition judge granted a stay of proceedings on the basis that to permit the proceedings to continue in the face of the requesting state's misconduct would constitute an abuse of the judicial process - The Attorney General of Canada appealed on behalf of the United States - The Attorney General submitted that the extradition judge should have excluded two statements made by Khadr as a less draconian remedy - The Ontario Court of Appeal rejected the argument - Excluding the two statements found to have been tainted by the misconduct of the Pakistan and American authorities, but permitting the committal to proceed, would not accomplish what the extradition judge determined to be a necessary objective given the gravity of the requesting state's conduct: namely, for the court to dissociate itself from that very conduct - See paragraphs 64 to 66.

Extradition - Topic 22

General - Bars to extradition - Abuse of process - The United States of America paid the Pakistani intelligence agency (the "ISI") $500,000 to abduct Khadr in Pakistan - Khadr, a Canadian citizen, was suspected of supplying weapons to Al Qaeda forces - Following his abduction, Khadr was detained in Pakistan for 14 months in a secret detention centre without any charges being laid and without access to legal counsel, the court or a tribunal - For the first three months, he was denied access to Canadian consular services - When Khadr was finally repatriated to Canada, the United States sought to have him extradited on terrorism charges - The extradition judge found that Khadr was physically abused and mistreated which led him to cooperate with his ISI and American interrogators - The judge concluded that "the sum of the human rights violations suffered by Khadr was shocking and unjustifiable" - The extradition judge granted a stay of proceedings on the basis that to permit the proceedings to continue in the face of the requesting state's misconduct would constitute an abuse of the judicial process - The Attorney General of Canada appealed on behalf of the United States - The Attorney General submitted that the extradition judge erred by failing to conduct a meaningful balancing exercise to weigh the gravity of the requesting state's conduct against society's interest in seeing an alleged terrorist committed for extradition - The Ontario Court of Appeal rejected the argument - A judge was not always required to balance the gravity of state misconduct against the benefit of allowing a proceeding to go forward - On the extradition judge's findings, this was a clear case that the abuse was sufficient to warrant a stay - It was therefore not a case where he was required to balance the protection and vindication of the court's integrity with the societal interest in responding positively to the extradition request - Even if balancing was required or warranted, the fact that Khadr was liable to prosecution in Canada would tip the scales in favour of the stay - See paragraphs 67 to 78.

Extradition - Topic 2652

Evidence and procedure before examining judge - Evidence - General - Proof of foreign law - The United States of America paid the Pakistani intelligence agency (the "ISI") $500,000 to abduct Khadr in Pakistan - Khadr, a Canadian citizen, was suspected of supplying weapons to Al Qaeda forces - Following his abduction, Khadr was detained in Pakistan for 14 months in a secret detention centre without any charges being laid and without access to legal counsel, the court or a tribunal - For the first three months, he was denied access to Canadian consular services - When Khadr was finally repatriated to Canada, the United States sought to have him extradited on terrorism charges - The extradition judge found that Khadr was physically abused and mistreated which led him to cooperate with his ISI and American interrogators - The judge concluded that "the sum of the human rights violations suffered by Khadr was shocking and unjustifiable" - The extradition judge granted a stay of proceedings on the basis that to permit the proceedings to continue in the face of the requesting state's misconduct would constitute an abuse of the judicial process - The Attorney General of Canada appealed on behalf of the United States - The Attorney General submitted that the extradition judge had no jurisdiction to find that Khadr's abduction and detention were illegal under Pakistani law or to criticize the conduct of American and Pakistani officials in Pakistan - The Ontario Court of Appeal rejected the argument - The court stated, inter alia, "In the admittedly exceptional cases such as this one where foreign law is relevant to the issues raised before the extradition judge, I can see no reason why it should not be admitted and considered" - Further, the argument that the extradition judge was not entitled to consider the conduct of the Pakistani and American authorities in Pakistan was impossible to reconcile with Supreme Court of Canada decisions such as U.S.A. v. Cobb; U.S.A. v. Shulman; U.S.A. v. Dynar, and R. v. Harrer - See paragraphs 59 to 63.

Extradition - Topic 2703

Evidence and procedure before examining judge - Procedure - Powers of examining judge - [See first Extradition - Topic 22 ].

Extradition - Topic 3809

Practice - General - Stay of proceedings - [See all Extradition - Topic 22 ].

Cases Noticed:

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 29].

R. v. Young (1984), 3 O.A.C. 254; 46 O.R.(2d) 520 (C.A.), refd to. [para. 29].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 31].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 32].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173, refd to. [para. 32].

Canada (Minister of Justice) v. Fischbacher, [2009] 3 S.C.R. 170; 394 N.R. 139; 255 O.A.C. 288; 2009 SCC 46, dist. [para. 35].

United States of America v. Latty - see United States of America et al. v. Ferras.

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 209 C.C.C.(3d) 353; 2006 SCC 33, refd to. [para. 35].

Whitley v. United States of America (1994), 75 O.A.C. 100; 20 O.R.(3d) 794 (C.A.), affd. [1996] 1 S.C.R. 467; 197 N.R. 169; 91 O.A.C. 121, refd to. [para. 39].

United States of America v. Cobb et al., [2001] 1 S.C.R. 587; 267 N.R. 203; 145 O.A.C. 3; 152 C.C.C.(3d) 270; 2001 SCC 19, consd. [para. 40].

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 152 C.C.C.(3d) 225; 2001 SCC 18, refd to. [para. 40].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201; 2001 SCC 21, refd to. [para. 41].

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108; 166 C.C.C.(3d) 449 (C.A.), refd to. [para. 47].

R. v. Bennett (A.P.), [1994] 1 A.C. 42; 155 N.R. 372; 98 Cr. App. Rep. 114 (H.L.), refd to. [para. 48].

R. v. Horseferry, Rhode Magistrate's Court; Ex parte Bennett - see R. v. Bennett (A.P.).

United States of America v. Tollman, [2006] O.T.C. 803; 212 C.C.C.(3d) 511(Sup. Ct.), refd to. [para. 49].

United States of America v. Licht, [2002] B.C.T.C. 1151; 168 C.C.C.(3d) 287 (S.C.), refd to. [para. 49].

Albon v. Pyke (1842), 4 Man. & G. 421; 134 E.R. 172, refd to. [para. 50].

TeleZone Inc. v. Canada (Attorney General) (2010), 410 N.R. 1; 273 O.A.C. 1; 327 D.L.R.(4th) 527; 2010 SCC 62, refd to. [para. 50].

Connelly v. Director of Public Prosecutions, [1964] A.C. 1254 (H.L.), refd to. [para. 50].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81; 118 C.C.C.(3d) 443, refd to. [para. 53].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 53].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321; 115 C.C.C.(3d) 481, refd to. [para. 62].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 62].

R. v. Tran (Q.H.) et al. (2010), 264 O.A.C. 125; 103 O.R.(3d) 131; 2010 ONCA 471, refd to. [para. 69].

R. v. Khawaja (M.M.) (2010), 271 O.A.C. 238; 103 O.R.(3d) 321 (C.A.), refd to. [para. 70].

Liversidge v. Anderson, [1942] A.C. 206 (H.L.), refd to. [para. 73].

R. v. Secretary of State for the Home Department; Ex parte Khawaja, [1984] A.C. 74 (H.L.), refd to. [para. 73].

Hamdi v. Rumsfeld (2004), 542 U.S. 507 (Sup. Ct.), refd to. [para. 74].

Boumediene v. Bush (2008), 553 U.S. 723 (Sup. Ct.), refd to. [para. 74].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 74].

A et al. v. United Kingdom (Secretary of State for the Home Department), [2004] N.R. Uned. 234; [2004] UKHL 56; [2005] 2 A.C. 68, refd to. [para. 74].

Public Committee Against Torture v. Israel (1994), HCJ 5100/94 (Israel Sup. Ct.), refd to. [para. 75].

Statutes Noticed:

Extradition Act, S.C. 1999, c. 18, sect. 44(1)(a) [para. 33].

Authors and Works Noticed:

Arbour, Louise, In our Name and on our Behalf (2006), 4 Eur. H.R.L. Rev. 371, generally [para. 75].

Dyzenhaus, David, Intimations of Legality Amid the Clash of Arms (2004), 2 Int'l J. Const. L. 244, generally [para. 75].

Fiss, Owen M., The War Against Terrorism and the Rule of Law (2006), 26 Ox. J. Legal Stud. 235, generally [para. 75].

Roach, Kent, Constitutional Remedies in Canada (2010 Looseleaf Update), para. 9.114 [para. 69].

Counsel:

Richard Kramer and Matthew Sullivan, for the appellant;

Dennis Edney and Nathan J. Whitling, for the respondent.

This appeal was heard on April 8, 2011, before Laskin, Sharpe and Cronk, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharpe, J.A., and was released on May 6, 2011.