Khadr v. Prime Minister (Can.) et al., (2010) 397 N.R. 294 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 13, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 397 N.R. 294 (SCC);2010 SCC 3;[2010] SCJ No 3 (QL);251 CCC (3d) 435;[2010] CarswellNat 121;[2010] ACS no 3;397 NR 294;EYB 2010-168789;315 DLR (4th) 1;JE 2010-219;71 CR (6th) 201;206 CRR (2d) 1;[2010] EXP 424;[2010] 1 SCR 44

Khadr v. Prime Minister (Can.) (2010), 397 N.R. 294 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.R. TBEd. JA.057

Prime Minister of Canada, Minister of Foreign Affairs, Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police (appellants) v. Omar Ahmed Khadr (respondent) and Amnesty International (Canadian Section, English Branch), Human Rights Watch, University of Toronto, Faculty of Law - International Human Rights Program, David Asper Centre for Constitutional Rights, Canadian Coalition for the Rights of Children and Justice for Children and Youth, British Columbia Civil Liberties Association, Criminal Lawyers' Association (Ontario), Canadian Bar Association, Lawyers Without Borders Canada, Barreau du Québec, Groupe d'étude en droits et libertés de la Faculté de droit de l'Université Laval, Canadian Civil Liberties Association and National Council For the Protection of Canadians Abroad (intervenors)

(33289; 2010 SCC 3; 2010 CSC 3)

Indexed As: Khadr v. Prime Minister (Can.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

January 29, 2010.

Summary:

Khadr, a Canadian citizen, was taken prisoner by U.S. forces in Afghanistan in 2002 when he was 15 years old. He was alleged to have thrown a grenade that killed an American soldier. He had been detained by the U.S. government at Guantanamo Bay, Cuba, for over seven years. He had been charged with war crimes and his trial before a military commission was still pending. In February and September 2003, agents from the Canadian Security Intelligence Service and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (DFAIT) questioned Khadr on matters connected to the charges pending against him and shared the product of those interviews with U.S. authorities. In March 2004, a DFAIT official interviewed Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the "frequent flyer program", in an effort to make him less resistant to interrogation. Khadr applied for judicial review of the Canadian government's "ongoing decision and policy" not to seek his repatriation, alleging an infringement of his s. 7 Charter rights.

The Federal Court, in a decision reported at 341 F.T.R. 300, concluded that in these special circumstances, Canada had a duty to protect Khadr. The court found that Canada's ongoing refusal to request Khadr's repatriation to Canada offended a principle of fundamental justice and violated Khadr's rights under s. 7 of the Charter. The court ordered the Canadian government to present a request to the United States for Khadr's repatriation to Canada as soon as practicable. The Canadian government appealed.

The Federal Court of Appeal, Nadon, J.A., dissenting, in a decision reported at 393 N.R. 1, dismissed the appeal. The court upheld the order of the Federal Court, but defined the s. 7 breach more narrowly. The court found that the s. 7 breach arose from the March 2004 interrogation conducted with the knowledge that Khadr had been subject to the "frequent flyer program", characterized by the court as involving cruel and abusive treatment contrary to the principles of fundamental justice. The Canadian government appealed.

The Supreme Court of Canada allowed the appeal in part. The court agreed with the courts below that Khadr's rights under s. 7 of the Charter were violated. However, the court concluded that the order made by the lower courts that the government request Khadr's return to Canada was not an appropriate remedy for that breach under s. 24(1) of the Charter. The court held that, consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy was to grant Khadr a declaration that his Charter rights had been infringed, while leaving the government a measure of discretion in deciding how best to respond.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - Khadr, a Canadian citizen, was taken prisoner by U.S. forces in Afghanistan in 2002 when he was 15 years old - He had been detained by the U.S. government at Guantanamo Bay, Cuba, for over seven years - He had been charged with war crimes and his trial was still pending - In February and September 2003, agents from the Canadian Security Intelligence Service and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (DFAIT) questioned Khadr on matters connected to the charges against him and shared the product of those interviews with U.S. authorities - In March 2004, a DFAIT official interviewed Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique - Khadr applied for judicial review of the Canadian government's refusal to seek his repatriation, alleging an infringement of his s. 7 Charter rights - The Supreme Court of Canada considered whether the conduct of the Canadian government deprived Khadr of the right to life, liberty or security of the person - The court concluded that it was reasonable to infer from the uncontradicted evidence that the statements taken by Canadian officials were contributing to Khadr's continued detention, thereby impacting his liberty and security interests - The court concluded that Canada's active participation in what was at the time an illegal regime had contributed and continued to contribute to Khadr's detention - The causal connection demanded by Suresh (2002 SCC) between Canadian conduct and the deprivation of liberty and security of the person was established - See paragraphs 19 to 21.

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - [See Civil Rights - Topic 726 ].

Civil Rights - Topic 3157.3

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Procedure contrary to fundamental justice - [See Civil Rights - Topic 8547 ].

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The Supreme Court of Canada stated that "As a general rule, Canadians abroad are bound by the law of the country in which they find themselves and cannot avail themselves of their rights under the Charter. International customary law and the principle of comity of nations generally prevent the Charter from applying to the actions of Canadian officials operating outside of Canada ... The jurisprudence leaves the door open to an exception in the case of Canadian participation in activities of a foreign state or its agents that are contrary to Canada's international obligations or fundamental human rights norms" - See paragraph 14.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - Khadr, a Canadian citizen, was taken prisoner by U.S. forces in Afghanistan in 2002 when he was 15 years old - He had been detained by the U.S. government at Guantanamo Bay, Cuba, for over seven years - He had been charged with war crimes and his trial was still pending - In February and September 2003, agents from the Canadian Security Intelligence Service and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (DFAIT) questioned Khadr on matters connected to the charges against him and shared the product of those interviews with U.S. authorities - In March 2004, a DFAIT official interviewed Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique - The Supreme Court of Canada held that the Charter applied to the conduct of the Canadian state officials which was alleged to have infringed Khadr's s. 7 Charter rights - In a 2008 decision ("Khadr 2008") the court held that "the principles of international law and comity that might otherwise preclude application of the Charter to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantanamo Bay", given holdings of the United States Supreme Court that the military commission regime then in place constituted a clear violation of fundamental human rights protected by international law - Though the process to which Khadr was subject had changed, his claim was based upon the same underlying events (the interviews and evidence-sharing) and the rationale in Khadr 2008 for applying the Charter to the actions of Canadian officials at Guantanamo Bay governed this case as well - See paragraphs 14 to 18.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - Khadr, a Canadian citizen, was taken prisoner by U.S. forces in Afghanistan in 2002 when he was 15 years old - He had been detained by the U.S. government at Guantanamo Bay, Cuba, for over seven years - He had been charged with war crimes and his trial before a military commission was still pending - In February and September 2003, agents from the Canadian Security Intelligence Service and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (DFAIT) questioned Khadr on matters connected to the charges against him and shared the product of those interviews with U.S. authorities - In March 2004, a DFAIT official interviewed Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique in an effort to make him less resistant to interrogation - Khadr applied for judicial review of the Canadian government's refusal to seek his repatriation, alleging an infringement of his s. 7 Charter rights - The Federal Court found that there had been a violation of Khadr's s. 7 Charter rights and ordered the Canadian government to request Khadr's repatriation to Canada as soon as practicable - The Federal Court of Appeal upheld the order - The Canadian government appealed - The Supreme Court of Canada found that Canada violated Khadr's s. 7 Charter rights, but held that the order that the government request Khadr's return to Canada was not an appropriate remedy - The court stated that "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" - The proper remedy was to grant Khadr a declaration that his Charter rights had been infringed - See paragraphs 27 to 47.

Civil Rights - Topic 8380.33

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Repatriation to Canada - [See Civil Rights - Topic 8380.25 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - Khadr, a Canadian citizen, was taken prisoner by U.S. forces in Afghanistan in 2002 when he was 15 years old - He had been detained by the U.S. government at Guantanamo Bay, Cuba, for over seven years - He had been charged with war crimes and his trial before a military commission was still pending - In February and September 2003, agents from the Canadian Security Intelligence Service and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (DFAIT) questioned Khadr on matters connected to the charges against him and shared the product of those interviews with U.S. authorities - In March 2004, a DFAIT official interviewed Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the "frequent flyer program", in an effort to make him less resistant to interrogation - The Supreme Court of Canada concluded that the conduct of the Canadian government in connection with Khadr's case did not conform to the principles of fundamental justice - The court stated that "This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. 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" - See paragraph 25.

Courts - Topic 4059.2

Federal Court of Canada - Jurisdiction - Federal Court - Review of exercise of Crown prerogative - [See Civil Rights - Topic 8380.25 ].

Crown - Topic 2201

Crown privilege or prerogative - General - [See Civil Rights - Topic 8380.25 ].

International Law - Topic 12

General - International human rights obligations - [See both Civil Rights - Topic 8306 ].

International Law - Topic 6008

International relations - Repatriation of Canadian citizen - [See Civil Rights - Topic 8380.25 ].

Cases Noticed:

Khadr v. Canada, [2006] 2 F.C.R. 505; 277 F.T.R. 298; 2005 FC 1076, refd to. [para. 5].

Khadr v. Canada (Minister of Justice) et al., [2008] 2 S.C.R. 125; 375 N.R. 47; 2008 SCC 28, consd. [para. 5].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 14].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 14].

Rasul v. Bush (2004), 542 U.S. 466, refd to. [para. 16].

Hamdan v. Rumsfeld (2006), 126 S. Ct. 2749, refd to. [para. 16].

Boumediene v. Bush (2008), 128 S. Ct. 2229, refd to. [para. 17].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 19].

United States of America v. Mohammed Jawad, Military Commission, September 24, 2008, D-008 Ruling on defense Motion to Dismiss - Torture of detainee (online: http://www.defense.gov/news/Ruling%20D-008.pdf, refd to. [para. 20].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 21].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 23].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 23].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 30].

Reference as to the Effect of the Exercise of Royal Prerogative of Mercy Upon Deportation Proceedings, [1933] S.C.R. 269, refd to. [para. 34].

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(2d) 215; 199 D.L.R.(4th) 228 (C.A.), refd to. [para. 35].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 36].

Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; 72 N.R. 135, refd to. [para. 36].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 38].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 37].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 38].

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. 38].

Kaunda v. President of the Republic of South Africa, [2004] ZACC 5; 136 I.L.R. 452, refd to. [para. 44].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 46].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 46].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 24(1) [para. 2].

Authors and Works Noticed:

Canada, Security Intelligence Review Committee Report, CSIS's Role in the Matter of Omar Khadr (July 8, 2009), pp. 11, 12 [para. 24]; 13 [para. 20].

Dicey, Albert Venn, Introduction to the Study of the Law of the Constitution (8th Ed. 1915), p. 420 [para. 34].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.) (2008 Update, Release 1), pp. 1-17 [para. 34]; 1-19 [para. 33].

Counsel:

Robert J. Frater, Doreen C. Mueller and Jeffrey G. Johnston, for the appellants;

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

Sacha R. Paul, Vanessa Gruben and Michael Bossin, for the intervenor, Amnesty International (Canadian Section, English Branch);

John Norris, Brydie Bethell and Audrey Macklin, for the intervenors, Human Rights Watch, the University of Toronto, Faculty of Law - International Human Rights Program and the David Asper Centre for Constitutional Rights;

Emily Chan and Martha Mackinnon, for the intervenors, the Canadian Coalition for the Rights of Children and Justice for Children and Youth;

Sujit Choudry and Joseph J. Arvay, Q.C., for the intervenor, the British Columbia Civil Liberties Association;

Brian H. Greenspan, for the intervenor, the Criminal Lawyers' Association (Ontario);

Lorne Waldman and Jacqueline Swaisland, for the intervenor, the Canadian Bar Association;

Simon V. Potter, Pascal Paradis, Sylvie Champagne and Fannie Lafontaine, for the intervenors, Lawyers Without Borders Canada, Barreau du Québec and Groupe d'étude en droits et libertés de la Faculté de droit de l'Université Laval;

Marlys A. Edwardh, Adriel Weaver and Jessica Orkin, for the intervenor, the Canadian Civil Liberties Association;

Dean Peroff, Chris MacLeod and H. Scott Fairley, for the intervenor, the National Council for the Protection of Canadians Abroad.

Solicitors of Record:

Department of Justice, Ottawa, Ontario, for the appellants;

Parlee McLaws LLP, Edmonton, Alberta, for the respondent;

Thompson Dorfman Sweatman LLP, Winnipeg, Manitoba, for the intervenor, Amnesty International (Canadian Section, English Branch);

John Norris, Brydie Bethell and Audrey Macklin, Toronto, Ontario, for the intervenors, Human Rights Watch, the University of Toronto, Faculty of Law - International Human Rights Program and David Asper Centre for Constitutional Rights;

Justice for Children and Youth Services, Toronto, Ontario, for the intervenors, the Canadian Coalition for the Rights of Children and Justice for Children and Youth;

Arvay Finlay, Vancouver, British Columbia, for the intervenor, the British Columbia Civil Liberties Association;

Greenspan Humphrey Lavine, Toronto, Ontario,  for  the intervenor, the Criminal Law-

yers' Association (Ontario);

Waldman & Associates, Toronto, Ontario, for the intervenor, the Canadian Bar Association;

McCarthy Tétrault, Montreal, Quebec, for the intervenors, Lawyers Without Borders Canada, Barreau du Québec and Groupe d'étude en droits et libertés de la Faculté de droit de l'Université Laval;

Marlys Edwardh Barristers Professional Corporation, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Theall Group, Toronto, Ontario, for the intervenor, the National Council for the Protection of Canadians Abroad.

This appeal was heard on November 13, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The Supreme Court delivered the following judgment in both official languages on January 29, 2010.