Khadr v Canada (No 2),

• Judge: Abella,LeBel,Charron,Rothstein,Deschamps,McLachlin C.J.,Binnie,Cromwell JJ.,Fish
• Neutral Citation: 2010 SCC 3
• Court: Supreme Court (Canada)
• Date: 29 January 2010
• Docket Number: 33289

(2009 FCA 246 and 2010 SCC 3)

Canada, Federal Court of Appeal

Supreme Court

(McLachlin CJ; Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ)

Khadr

and

Canada (No 2)1

Nadon

Evans

and

Sharlow JJA

Human rights — In human treatment — Protection of fundamental human rights when Canadian officers operating abroad — Requirement that Canadian officials follow foreign laws and procedures — Comity — Whether foreign procedures violating fundamental human rights — Whether Canadian Charter of Rights and Freedoms applicable extraterritorially — Canadian officials interviewing Canadian national detained at Guantánamo Bay — National subjected to sleep deprivation by United States authorities — Whether engaging responsibility of Canada — Convention against Torture, 1984 — Convention on the Rights of the Child, 1989 — Remedies

Relationship of international law and municipal law — Canadian Charter of Rights and Freedoms — Interpretation and application — Interpretation of Section 32(1) of Charter — Jurisdictional scope — Extraterritorial application — Canada's obligations under international law – Canadian national detained at Guantánamo Bay — Whether Charter of Rights and Freedoms applicable to extent of Canadian participation in detention and proposed trial — Remedies for violation of Charter rights — Conduct of foreign relations by the Government — Justiciability — Whether appropriate for Court to order that Government request United States authorities to repatriate Canadian national detained at Guantánamo Bay

War and armed conflict — Combatants — Detention and trial of enemy combatants — Detention of persons captured in Afghanistan conflict — Guantánamo Bay — Whether detention and proposed trial by military commission contrary to international law — The law of Canada

Summary: The facts:—The applicant was a Canadian national who was taken prisoner by United States forces in Afghanistan in 2002, when he was fifteen years old. He was sent to the detention centre at Guantánamo Bay. The United States authorities accused him of having thrown a grenade which had killed a United States soldier during fighting in Afghanistan and proposed to put him on trial before a military commission. In 2003 he was interviewed at Guantánamo Bay by Canadian officials, including members of the Canadian Security Intelligence Service. Information concerning that interview was later given to the United States authorities. In Khadr v. Canada (No 1) (referred to in the judgments in the present case as ‘Khadr2008’), the Supreme Court of Canada held that Canadian participation in the detention and proposed trial of the applicant rendered the Canadian Charter of Rights and Freedoms (‘the Charter’) applicable to the actions of Canadian officials in interviewing the applicant and disclosing information from those interviews to the United States. The Supreme Court ordered Canada to disclose to the applicant the records of the interviews.

In the light of the information disclosed to him following the judgment of 2008, the applicant commenced fresh proceedings, claiming that Canada had violated his rights under Section 7 of the Charter.2 The Federal Court

held that Canada had violated the applicant's rights under Section 7, had failed to protect him and was under an obligation to request the United States authorities to repatriate him. The Crown appealed.

Held (by the Federal Court of Appeal, Nadon JA dissenting):—The appeal was dismissed.

(1) The Charter applied to constrain the conduct of Canadian authorities when they participated in a foreign process that was contrary to Canada's international human rights obligations (para. 26).

(2) The principles of fundamental justice reflected in the Convention against Torture, 1984, and the Convention on the Rights of the Child, 1989, did not permit the questioning of a prisoner after he had been subjected to cruel and abusive treatment to induce him to talk, whether the abuse was inflicted by the questioner or by some other person with the questioner's knowledge. The applicant was a minor, who had been detained without trial in an adult detention facility and subjected to sleep deprivation. Canada could not avoid responsibility for its participation in the process at Guantánamo Bay by relying on the fact that it had been United States officials who had mistreated the applicant, because Canadian officials knew of that abuse and sought to take advantage of it when questioning the applicant. Canada had violated the applicant's rights under Section 7 of the Charter (paras. 46–60).

(3) Section 1 of the Charter3 did not justify the breach of Section 7. There was no law which required—either expressly or by necessary implication—the treatment of the applicant, nor had Canada shown that relations with the United States would be injured by requesting the applicant's return or that that return would jeopardize Canada's security (paras. 61–5).

(4) The appropriate remedy for the violation of the applicant's rights was to order Canada to request the United States to return the applicant to Canada. The fact that United States reaction to such a request could not be predicted did not make it inappropriate to order that such a request be made (paras. 66–74).

Per Nadon JA (dissenting): In view of the extensive steps which Canada had taken to secure the welfare of the applicant, there had been no failure to protect him. Even if there had been such a failure, the remedy ordered was inappropriate. It was for the executive to conduct foreign relations, not the courts (paras. 76–119).

Canada appealed to the Supreme Court.

Held (by the Supreme Court, unanimously):—The appeal was allowed in part. The appropriate remedy was a declaration that, through the conduct of Canadian officials in the course of interrogations in 2003–4, Canada had actively participated in a process contrary to Canada's international human rights obligations and contributed to the applicant's ongoing detention so as

to deprive him of his right to liberty and security of the person guaranteed by Section 7 of the Charter, contrary to the principles of fundamental justice. That declaration would provide the legal framework for the executive to exercise its functions and consider what actions to take in respect of the applicant in conformity with the Charter.

(1) Although there had been significant changes to the regime under which the applicant was detained at Guantánamo Bay since 2003–4, the applicant's claim was based upon events which predated those changes and the Charter was applicable to the actions of Canadian officials during that earlier period (paras. 14–18).

(2) The participation of Canadian officials, in particular their action in sharing with the United States authorities information from the interviews they had conducted, had contributed to the continued detention of the applicant under what was at the time an illegal regime (paras. 19–21).

(3) The conduct of Canadian officials did not conform with the principles of fundamental justice. Canadian participation in the questioning of a minor who had been detained under an unlawful regime and subjected to sleep deprivation, in the knowledge that the results of the interviews with him would be made known to the United States authorities and might be used in a trial before a military commission, was a violation of Section 7 of the Charter (paras. 22–6).

(4) The necessary connection between the violation and the remedy sought was established. However, the decision not to request the applicant's repatriation had been made in the exercise of the prerogative power to conduct foreign relations. While the exercise of that power was not beyond scrutiny by the courts, the executive was better placed than the courts to assess what action to take and had to have flexibility in determining how its duties under the prerogative power were to be discharged. The order that the Government should request the applicant's repatriation gave too little weight to the responsibility of the executive in the context of complex and ever-changing circumstances. That order was not appropriate. The appropriate remedy was a declaration that there had been a violation of the Charter. It would then be for the executive to determine how to proceed in the light of that declaration (paras. 27–47).

The judgment of the Supreme Court of Canada commences at p. 264. The dissenting opinion of Nadon JA in the Federal Court of Appeal commences at p. 250. The following is the text of the judgment of the Federal Court of Appeal, delivered by Evans and Sharlow JJA:

JUDGMENT OF THE FEDERAL COURT OF APPEAL

1. Evans and Sharlow JJA:—Since 2002, the respondent Omar Ahmed Khadr has been imprisoned by the United States at Guantánamo Bay pending his trial before a United States military commission or a United States federal court. In Khadr v. Canada (Prime Minister), 2009 FC 405, [2010] 1 FCR. 34, Justice O'Reilly of the Federal Court found that Canadian officials breached Mr Khadr's rights under section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c 11 (UK) [RSC, 1985, Appendix II, No 44]] when they interviewed Mr Khadr at the Guantánamo Bay prison and shared the resulting information with the United States. As a remedy pursuant to subsection 24(1) of the Charter, Justice O'Reilly ordered the Crown to request the United States to return Mr Khadr to Canada as soon as practicable. The Crown has appealed. At the root of the Crown's appeal is its argument that the Crown should have the unfettered discretion to decide whether and when to request the return of a Canadian citizen detained in a foreign country, a matter within its exclusive authority to conduct foreign affairs. For the reasons that follow, we have concluded that the Crown's appeal should be dismissed with costs.

Preliminary Issues

Appeal books

2. In accordance with the usual...