Khadr v. Prime Minister (Can.) et al., 2009 FC 405

• Judge: O'Reilly, J.
• Court: Federal Court (Canada)
• Case Date: October 28, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 405;(2009), 341 F.T.R. 300 (FC)

Khadr v. Prime Minister (Can.) (2009), 341 F.T.R. 300 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. MY.012

Omar Ahmed Khadr (applicant) v. The Prime Minister of Canada, The Minister of Foreign Affairs, The Director of the Canadian Security Intelligence Service, and The Commissioner of the Royal Canadian Mounted Police (respondents)

(T-1228-08; 2009 FC 405)

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

Federal Court

O'Reilly, J.

April 23, 2009.

Summary:

Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old. He was alleged to have thrown a grenade that caused the death of a U.S. soldier. He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder. Khadr challenged the Canadian Government's refusal to seek his repatriation to Canada. He claimed that his rights under the Canadian Charter of Rights and Freedoms (ss. 6, 7 and 12) had been infringed and sought a remedy under s. 24(1) of the Charter. Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him.

The Federal Court held that the principles of fundamental justice obliged Canada to protect Khadr by taking appropriate steps to ensure that his treatment accorded with international human rights norms. The court also held that it was satisfied, in the special circumstances of this case, that Khadr's rights under s. 7 of the Charter had been infringed. The court ordered that the respondents request that the United States return Khadr to Canada as soon as practicable.

Administrative Law - Topic 542

The hearing and decision - Decisions of the tribunal - What constitutes a decision - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The Federal Court held that there had clearly been a "decision" that could properly be the subject of an application for judicial review - The court referred to a statement made by Prime Minister Harper in July 2008 when a journalist asked him whether he would be requesting Khadr's repatriation to Canada - The Prime Minister said: "The answer is no, as I said the former Government, in our Government with the notification of the Minister of Justice had considered all these issues and the situation remains the same. ... [W]e keep on looking for [assurances] of good treatment of Mr. Khadr" - In addition to that specific statement, the Government of Canada had an ongoing policy against requesting Khadr's repatriation that had been expressed publicly from time to time and could be the subject of judicial review at any given point - See paragraphs 36 to 38.

Administrative Law - Topic 3205

Judicial review - General - Crown prerogative - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The Federal Court stated that "Generally speaking, decisions about foreign affairs fall naturally and properly to the executive. Still, Canadian courts have determined that the executive's prerogative in that area is subject to review under the Charter" - The court held that the government's decision was amenable to judicial review under the Charter, but its view as to how best to deal with matters that affected international relations and foreign affairs was entitled to "particular weight" - See paragraphs 39 to 49.

Administrative Law - Topic 3205.1

Judicial review - General - Policy statements - [See Administrative Law - Topic 542 ].

Civil Rights - Topic 3157.3

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Procedure contrary to fundamental justice - [See first Civil Rights - Topic 8380.33 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - General - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old - He was alleged to have thrown a grenade that caused the death of a U.S. soldier - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The respondents emphasized the fact that the mistreatment of Khadr was carried out by non-Canadians - The Federal Court referred to the decision in Suresh v. Canada (M.C.I.) (2002 SCC) that under s. 7 of the Charter "the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our Government, if there is a sufficient causal connection between our Government's participation and the deprivation ultimately effected" - The court stated that "Here, the necessary degree of participation is found in Canada's interrogation of Mr. Khadr knowing that he had been subjected to treatment that offended international human rights norms to which Canada had specifically committed itself" - See paragraph 83.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - Application of - Territorial limits - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old - He was alleged to have thrown a grenade that caused the death of a U.S. soldier - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The Federal Court considered the issue of the application of the Charter - The court stated that "it is clear that the Charter applies to the Canadian agents who travelled to Guantánamo Bay and questioned Mr. Khadr ... while principles of international comity would otherwise have precluded the application of the Charter, those principles do not apply in circumstances where Canada's international human rights obligations have been contravened ... Mr. Khadr's detention in Guantánamo Bay is illegal under both U.S. and international law. As such, the 'Charter bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada's international obligations'" - See paragraphs 50 to 51.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See first Civil Rights - Topic 8380.33 and International Law - Topic 11 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See first Civil Rights - Topic 8380.33 ].

Civil Rights - Topic 8380.33

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Repatriation to Canada - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old - He was alleged to have thrown a grenade that caused the death of a U.S. soldier - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - On detention, Khadr was "given no special status as a minor" - He had virtually no communication with anyone outside of Guantánamo Bay until November 2004, when he met with legal counsel for the first time - He was also subjected to sleep deprivation - Canadian officials were aware of that treatment when they interviewed Khadr in the spring of 2004 - The fruits of those interviews were shared with U.S. officials - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The Federal Court concluded that "Canada is required by s. 7 of the Charter to request Mr. Khadr's repatriation to Canada in order to comply with a principle of fundamental justice, namely, the duty to protect persons in Mr. Khadr's circumstances by taking steps to ensure that their fundamental rights, recognized in widely-accepted international instruments such as the Convention on the Rights of the Child, are respected. The respondents did not offer any basis for concluding that the violation of Mr. Khadr's rights was justified under s. 1 of the Charter. The ongoing refusal of Canada to request Mr. Khadr's repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr's rights under s. 7 of the Charter" - As a remedy, the court ordered the Crown to request the U.S. to return Khadr to Canada as soon as practicable - See paragraphs 50 to 92.

Civil Rights - Topic 8380.33

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Repatriation to Canada - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old - He was alleged to have thrown a grenade that caused the death of a U.S. soldier - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The respondents argued that the court should refrain from requiring them to request Khadr's repatriation because that would involve ordering Canada to take positive steps to protect Khadr, and would involve the court in the exercise of prerogative powers relating to Canada's foreign relations with the United States - The respondents submitted that it was only in exceptional circumstances where an order to take positive steps could be made under s. 7 (Gosselin v. Quebec, 2002 SCC) and courts should generally leave matters of foreign relations to Government - The Federal Court stated that "Khadr has very clearly been deprived of his liberty and Canadian agents are involved in that deprivation. The question is whether the refusal of Canada to request his repatriation offends the principles of fundamental justice. If it does, the appropriate recourse is to order Canada to seek his repatriation. That is not a 'positive' obligation in the same sense that the term was used in Gosselin. In fact, it is not uncommon for courts to order that certain affirmative steps be taken by Government officials in circumstances where there has been a violation of the principles of fundamental justice" - See paragraphs 79 to 82.

Civil Rights - Topic 8380.33

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Repatriation to Canada - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old - He was alleged to have thrown a grenade that caused the death of a U.S. soldier - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The Federal Court stated, inter alia, "the respondents argue that, if Mr. Khadr returns to Canada, the question will arise whether he can be prosecuted under Canadian law. The respondents' concern is whether the threshold criteria for launching a prosecution - that is, whether there is a reasonable prospect of conviction and the prosecution is in the public interest - would be met in Mr. Khadr's case. To my mind, any concern in this area merely reinforces the case for repatriation. If there is doubt about whether those criteria can be met, there should also be doubt about whether Mr. Khadr's ongoing detention at Guantánamo Bay is consistent with principles of fundamental justice" - See paragraph 87.

Civil Rights - Topic 8380.33

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Repatriation to Canada - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old - He was alleged to have thrown a grenade that caused the death of a U.S. soldier - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The respondents suggested that there was no reason to believe that the U.S. would grant a request for Khadr's repatriation, given that Canada's request for consular access to Khadr was denied - The Federal Court stated that "the denial of consular access made the need for repatriation more acute; it does not provide a justification not to request Mr. Khadr's return. Further, the evidence of successful requests for repatriation on the part of other countries suggests that a request presented by Canada would likely be granted by the United States. Indeed, given Canada's previous expressions of concern about Mr. Khadr's welfare and its view that Guantánamo Bay was not an appropriate place for his detention, a request from Canada for Mr. Khadr's repatriation would probably not be unexpected by U.S. authorities" - See paragraph 88.

Civil Rights - Topic 8470

Canadian Charter of Rights and Freedoms - Interpretation - International law - [See International Law - Topic 11 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - [See International Law - Topic 11 ].

Civil Rights - Topic 8581.2

Canadian Charter of Rights and Freedoms - Practice - Judicial review - [See Administrative Law - Topic 3205 ].

Crown - Topic 2201

Crown privilege or prerogative - General - [See Administrative Law - Topic 3205 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The respondents pointed to earlier proceedings instituted by Khadr, particularly those leading to a decision of the Supreme Court of Canada on disclosure of documents, and submitted that the issues raised in this application had already been heard and decided and the doctrine of res judicata applied - The Federal Court did not agree that the issues in this case were decided by the Supreme Court in the earlier litigation on disclosure - The court stated that "True, there is some overlap. For example, the question of the application of s. 7 of the Charter arises in both, and Mr. Khadr sought disclosure of information in both. However, the issues here are broader and different. In particular, the question whether the respondents have a duty to seek the repatriation of Mr. Khadr has not previously been addressed" - That part of Khadr's application was not res judicata - However, the issue of disclosure had been fully considered and decided in earlier proceedings and could not be re-litigated - See paragraphs 29 to 35.

International Law - Topic 11

General - Duty to citizens detained abroad - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old - He was alleged to have thrown a grenade that caused the death of a U.S. soldier - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The Federal Court found that the three criteria from R. v. D.B. (2008 SCC) supported the recognition of a duty to protect persons in Khadr's circumstances as a principle of fundamental justice - First, it was a legal principle, expressed in clear and forceful language in international instruments - Second, given the broad international support for those instruments, the court concluded that they represented a consensus that the duties contained in them had a fundamental character - Third, the scope of the duty to protect could be adequately identified and manageably applied to deprivations of life, liberty and security of the person - The court therefore concluded that the principles of fundamental justice obliged Canada to protect Khadr by taking appropriate steps to ensure that his treatment accorded with international human rights norms - See paragraphs 71 to 75.

International Law - Topic 12

General - International human rights obligations - [See International Law - Topic 11 ].

International Law - Topic 6008

International relations - Repatriation of Canadian citizen - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old - He was alleged to have thrown a grenade that caused the death of a U.S. soldier - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under ss. 6, 7 and 12 of the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The respondents argued that the court should refrain from requiring them to request Khadr's repatriation because that would involve the court in the exercise of prerogative powers relating to Canada's foreign relations with the United States - The Federal Court stated, inter alia, that it would regard the presentation of a request for the return of a Canadian citizen as being at the lower end of the spectrum of diplomatic intervention and, therefore, minimally intrusive on the Crown's prerogative in relation to foreign affairs - See paragraph 89.

International Law - Topic 6008

International relations - Repatriation of Canadian citizen - Khadr, a Canadian citizen, was arrested by the United States in Afghanistan in July 2002 when he was 15 years old - He was alleged to have thrown a grenade that caused the death of a U.S. soldier - He had been imprisoned at Guantánamo Bay since October 2002 awaiting trial on serious charges, including murder - Khadr challenged the refusal of the Canadian Government to seek his repatriation to Canada - He claimed that his rights under the Canadian Charter of Rights and Freedoms had been infringed and sought a remedy under s. 24(1) of the Charter - Particularly, Khadr asked the court to quash the respondents' decision not to seek his return to Canada and order the respondents to request the U.S. Government to repatriate him - The Federal Court stated, inter alia, that while the respondents raised a general concern about potential harm to Canada-U.S. relations, they had not pointed to any particular harm that would result from requesting Khadr's repatriation - The court stated that "Many other countries have requested the return of their citizens or residents from Guantánamo Bay and the United States has granted those requests. Further, the respondents have not identified how its firm position regarding the treatment of persons who have carried out terrorist acts would be compromised by requesting Mr. Khadr's repatriation to Canada for prosecution here ... Accordingly, as discussed above, while I accept that the court should give particular weight to Governmental decisions affecting foreign relations, there is little evidence before me to be weighed" - See paragraphs 84 to 86.

Cases Noticed:

Rasul v. Bush (2004), 542 U.S. 466, refd to. [para. 19].

Guantanamo Detainee Cases, Re, 355 F. Supp. 2d 443, refd to. [para. 20].

Hamdan v. Rumsfeld (2006), 126 S. Ct. 2749, refd to. [para. 21].

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. 30].

Canadian Association of the Deaf et al. v. Canada (2006), 298 F.T.R. 90; 2006 FC 971, refd to. [para. 37].

Al Rawi v. Secretary of State for Foreign and Commonwealth Affairs, [2006] EWCA Civ. 1279, consd. [para. 39].

Copello v. Canada (Minister of Foreign Affairs) et al. (2003), 308 N.R. 175; 2003 FCA 295, refd to. [para. 40].

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(3d) 215 (C.A.), refd to. [para. 40].

Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, [2002] E.W.J. No. 4947 (C.A.), consd. [para. 42].

Mohamed v. Secretary of State for Foreign and Commonwealth Affairs, [2008] EWHC 2048, consd. [para. 45].

Kaunda v. President of South Africa, CCT 23/04, consd. [para. 48].

R. v. D.B. (2008), 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 54].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 55].

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, refd to. [para. 55].

Public Committee Against Torture v. Israel, 38 I.L.M. 1471, refd to. [para. 56].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 69].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 73].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 79].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 3].

Authors and Works Noticed:

Canada, House of Commons, Omar Khadr - Report of the Standing Committee on Foreign Affairs and International Development (2008), pp. 6 [para. 86]; 15 to 17 [para. 37].

Counsel:

Nathan Whitling and Denis Edney, for the applicant;

Doreen Mueller, for the respondents.

Solicitors of Record:

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

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This application was heard on October 28, 2008, at Toronto, Ontario, before O'Reilly, J., of the Federal Court, who delivered the following decision on April 23, 2009.