Khadr v. Prime Minister (Can.) et al., 2010 FC 715

• Judge: Zinn, J.
• Court: Federal Court (Canada)
• Case Date: June 08, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 715;(2010), 369 F.T.R. 276 (FC)

Khadr v. Prime Minister (Can.) (2010), 369 F.T.R. 276 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. JL.007

Omar Ahmed Khadr (applicant) v. The Prime Minister of Canada, The Minister of Foreign Affairs and The Minister of Justice (respondents)

(T-230-10)

Omar Ahmed Khadr (applicant) v. The Prime Minister of Canada and The Minister of Foreign Affairs (respondents)

(T-231-10; 2010 FC 715)

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

Federal Court

Zinn, J.

July 5, 2010.

Summary:

Khadr, a Canadian citizen, was taken into custody by the United States in Afghanistan in July 2002 when he was 15 years old. He was alleged to have thrown a grenade that killed a U.S. soldier. He had been detained at Guantanamo Bay, Cuba, since October 2002. He was charged with five offences under the Military Commissions Act of 2006 and the Manual For Military Commissions. Khadr applied for judicial review of the government of Canada's decision not to seek his repatriation to Canada.

The Federal Court, in a decision reported at (2009), 341 F.T.R. 300, allowed the application. The court found that Canada had infringed Khadr's s. 7 Charter rights and it ordered Canada to remedy the Charter breach by requesting the U.S. to return Khadr to Canada as soon as practicable. The Crown appealed.

The Federal Court of Appeal, Nadon, J.A., dissenting, in a decision reported at (2009), 393 N.R. 1, dismissed the appeal. The Crown appealed.

The Supreme Court of Canada, in a decision reported at (2010), 397 N.R. 294, upheld the finding that Khadr's s. 7 Charter rights had been breached, but varied the remedy that had been ordered. The court granted Khadr a declaration that "Through the conduct of Canadian officials in the course of interrogations in 2003-2004 ... Canada actively participated in a process contrary to Canada's international human rights obligations and contributed to Mr. Khadr's ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice". The court left the crafting of a remedy for the breach to Canada.

On February 3, 2010, shortly after the release of the Supreme Court of Canada's decision, the Associate Director of Communications for the Prime Minister of Canada and the Minister of Foreign Affairs provided statements to the press in which they stated that the government was reviewing the Supreme Court's decision, but both made it clear that the government had not changed its previous position; it would not seek the repatriation of Khadr. On February 16, 2010, in response to the Supreme Court's decision, Canada sent a diplomatic note to the U.S. government requesting that it not use any of the information provided to it by Canada in its prosecution of Khadr. Khadr applied for judicial review of the public statements of February 3, 2010, that the executive was continuing its policy of not requesting the U.S. to repatriate Khadr. Khadr also applied for judicial review of Canada's decision of February 16, 2010, to remedy the Charter violation identified by the Supreme Court by sending the diplomatic note and to provide no other remedy. The applications raised issues as to whether Khadr was entitled to procedural fairness by the executive in making its decision as to how Canada would respond to the declaration issued by the Supreme Court of Canada.

The Federal Court allowed the applications. The court held that Khadr was entitled to procedural fairness and natural justice in Canada's process of determining a remedy for its breach of Khadr's s. 7 Charter rights and Khadr did not receive the level of fairness required. The court declared that Khadr was entitled (a) to know what alternative remedies Canada was considering, if any, and (b) to provide written submissions to Canada as to other potential remedies and as to whether, in his view, those being considered by Canada were potential remedies that would cure or ameliorate its breach. The court also ordered that "Following the procedural fairness process described herein, Canada is to advance a potential curative remedy as soon thereafter as is reasonably practicable and to continue advancing potential curative remedies until the breach has been cured or all such potential curative remedies have been exhausted, following which it is to advance potential ameliorative remedies until such time as the breach has been reasonably ameliorated or all such remedies have been exhausted".

Administrative Law - Topic 542

The hearing and decision - Decisions of the tribunal - What constitutes a decision - Khadr, a Canadian citizen, had been detained by the United States at Guantanamo Bay, Cuba, since October 2002 - He was alleged to have thrown a grenade that killed a U.S. soldier in Afghanistan and he was charged with five offences under the Military Commissions Act of 2006 and the Manual For Military Commissions - Khadr applied for judicial review of Canada's decision not to seek his repatriation and the matter went to the Supreme Court of Canada - The Supreme Court of Canada declared that Khadr's s. 7 Charter rights were breached when Canadian officials interrogated Khadr in 2003-2004 and then shared the information they obtained from him with the U.S - The court left the crafting of a remedy for the breach to Canada - Shortly thereafter, the Associate Director of Communications for the Prime Minister of Canada and the Minister of Foreign Affairs provided statements to the press in which they stated that the government was reviewing the Supreme Court of Canada's decision, but the government had not changed its previous position; it would not seek the repatriation of Khadr - Khadr applied for judicial review of those public statements that the executive was continuing its policy of not requesting the U.S. to repatriate Khadr - The Federal Court held that the public statements reflected a "decision" that was subject to judicial review - The statements reflected a new decision made after the declaration of the Supreme Court of Canada had issued - They clearly indicated that regardless of what action the executive would be taking, it would not be seeking repatriation - See paragraphs 36 to 39.

Administrative Law - Topic 2006

Natural justice - General principles - Circumstances when rules applicable - Khadr, a Canadian citizen, had been detained by the United States at Guantanamo Bay, Cuba, since October 2002 - He was alleged to have thrown a grenade that killed a U.S. soldier in Afghanistan and he was charged with five offences under the Military Commissions Act of 2006 and the Manual For Military Commissions - Khadr applied for judicial review of Canada's decision not to seek his repatriation and the matter went to the Supreme Court of Canada - The Supreme Court declared that Khadr's s. 7 Charter rights were breached when Canadian officials interrogated Khadr in 2003-2004 and then shared the information they obtained from him with the U.S - The court left the crafting of a remedy for the breach to Canada - In response to the Supreme Court of Canada's decision, Canada sent a diplomatic note to the U.S. government requesting that it not use any of the information provided to it by Canada in its prosecution of Khadr - Khadr applied for judicial review of certain public statements that the executive was continuing its policy of not requesting the U.S. to repatriate Khadr - He also applied for judicial review of Canada's decision to remedy the Charter violation by sending the diplomatic note and to provide no other remedy - The Federal Court allowed the applications - The court held that Khadr was entitled to receive procedural fairness and natural justice from the executive as it reached its decision as to the Charter remedy it would provide and Khadr did not receive the level of fairness required - Khadr was entitled (a) to know what alternative remedies Canada was considering, if any, and (b) to provide written submissions to Canada as to other potential remedies and as to whether, in his view, those being considered by Canada were potential remedies that would cure or ameliorate its breach - See paragraphs 54 to 76.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See Administrative Law - Topic 2006 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See Administrative Law - Topic 2006 ].

Administrative Law - Topic 3205

Judicial review - General - Crown prerogative - Khadr, a Canadian citizen, had been detained by the United States at Guantanamo Bay, Cuba, since October 2002 - He was alleged to have thrown a grenade that killed a U.S. soldier in Afghanistan and he was charged with five offences under the Military Commissions Act of 2006 and the Manual For Military Commissions - Khadr applied for judicial review of Canada's decision not to seek his repatriation and the matter went to the Supreme Court of Canada - The Supreme Court declared that Khadr's s. 7 Charter rights were breached when Canadian officials interrogated Khadr in 2003-2004 and then shared the information they obtained from him with the U.S - The court left the crafting of a remedy for the breach to Canada - In response to the Supreme Court of Canada's decision, Canada sent a diplomatic note to the U.S. government requesting that it not use any of the information provided to it by Canada in its prosecution of Khadr - Khadr applied for judicial review of certain public statements that the executive was continuing its policy of not requesting the U.S. to repatriate Khadr - He also applied for judicial review of Canada's decision to remedy the Charter violation identified by the Supreme Court by sending the diplomatic note and to provide no other remedy - The respondents submitted that Canada's response to the Supreme Court of Canada's declaration was not justiciable because it was a decision of the executive, on broad grounds of public and foreign policy, taken in the exercise of the royal prerogative in that it affected foreign relations - The Federal Court held that Khadr's s. 7 rights were engaged and whether the remedy the executive chose cured the breach or not, its decision affected Khadr's Charter rights and was therefore justiciable - Khadr also had a legitimate expectation that Canada would take action to cure the breach of his Charter rights in light of the Supreme Court of Canada's declaration - As such, the decision taken affected his legitimate expectations and it was justiciable - See paragraphs 57 to 63.

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 - Khadr, a Canadian citizen, had been detained by the United States at Guantanamo Bay, Cuba, since October 2002 - He was alleged to have thrown a grenade that killed a U.S. soldier in Afghanistan and he was charged with five offences under the Military Commissions Act of 2006 and the Manual For Military Commissions - Khadr applied for judicial review of Canada's decision not to seek his repatriation and the matter went to the Supreme Court of Canada - The Supreme Court declared that Khadr's s. 7 Charter rights were breached when Canadian officials interrogated Khadr in 2003-2004 and then shared the information they obtained from him with the U.S - The court left the crafting of a remedy for the breach to Canada - In response to the Supreme Court of Canada's decision, Canada sent a diplomatic note to the U.S. government requesting that it not use any of the information provided to it by Canada in its prosecution of Khadr - Khadr applied for judicial review of Canada's decision to remedy the Charter breach by sending the diplomatic note and to provide no other remedy - The respondents argued that the decision was not reviewable because s. 7 of the Charter was not engaged by the process Canada undertook to comply with the Supreme Court's declaration - The Federal Court rejected the argument - The Supreme Court of Canada had found that the s. 7 breach was a continuing breach as Canada's illegal acts contributed to Khadr's ongoing detention by the U.S. - The court stated "So long as the breach of Mr. Khadr's rights remains ongoing, section 7 of the Charter is engaged. How can it be said that a decision to cure or ameliorate that ongoing breach does not engage his section 7 Charter rights?" - See paragraphs 49 to 53.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 3157.3 ].

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - Khadr, a Canadian citizen, had been detained by the United States at Guantanamo Bay, Cuba, since October 2002 - He was alleged to have thrown a grenade that killed a U.S. soldier in Afghanistan and he was charged with five offences under the Military Commissions Act of 2006 and the Manual For Military Commissions - Khadr applied for judicial review of Canada's decision not to seek his repatriation and the matter went to the Supreme Court of Canada - The Supreme Court declared that Khadr's s. 7 Charter rights were breached when Canadian officials interrogated Khadr in 2003-2004 and then shared the information they obtained from him with the U.S - The court left the crafting of a remedy for the breach to Canada - In response to the Supreme Court of Canada's decision, Canada sent a diplomatic note to the U.S. government requesting that it not use any of the information provided to it by Canada in its prosecution of Khadr - Khadr applied for judicial review of certain public statements that the executive was continuing its policy of not requesting the U.S. to repatriate Khadr - He also applied for judicial review of Canada's decision to remedy the Charter violation identified by the Supreme Court by sending the diplomatic note and to provide no other remedy - The Federal Court allowed the applications - The Charter breach had not been cured - The U.S. did not accede to Canada's request not to use the information it provided - The U.S. merely responded that the prosecution of Khadr would be governed by the Military Commissions Act of 2009 - It provided no assurance that the information would not be used against Khadr's interests - Following the U.S. government's response to Canada's request, the information was used by the U.S. in the prosecution of Khadr - The court stated that "Canada is expected to advance at least one potential curative remedy in sufficient time prior to the scheduled commencement of the military commission's hearing that one may reasonably expect that the U.S. government will have time to consider the request and respond to it ... Canada is expected to continue advancing potential curative and ameliorative remedies until the breach of Mr. Khadr's Charter rights have been cured, or if no cure is possible, until the breach has been ameliorated, or if there is no remedy, until it has exhausted all possible remedies" - See paragraphs 77 to 96.

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - The Federal Court stated that "if there is only one available remedy that potentially cures the breach of one person's Charter rights, then that remedy must be ordered by the Court, even if the order involves the exercise of the royal prerogative. ... In situations where there has been a Charter breach that is ongoing and where there is only one curative remedy identified, the argument for flexibility in the hands of government is significantly diminished. The fact that the one remedy available falls within the scope of the government's prerogative power does not prevent the court from fashioning a remedy ... If the Charter, as a part of Canada's constitution, requires an action to be taken, and it does in the present circumstances, and if that action requires the exercise of the royal prerogative, then this Court is not only empowered to order it, this Court is required to order that it be done" - See paragraph 91.

Civil Rights - Topic 8380.10

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Procedure - [See Administrative Law - Topic 2006 ].

Courts - Topic 4059.2

Federal Court of Canada - Jurisdiction - Federal Court - Review of exercise of Crown prerogative - [See Administrative Law - Topic 3205 ].

Crown - Topic 2201

Crown privilege or prerogative - General - [See Administrative Law - Topic 3205 and second Civil Rights - Topic 8367 ].

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, had been detained by the United States at Guantanamo Bay, Cuba, since October 2002 - He was alleged to have thrown a grenade that killed a U.S. soldier in Afghanistan and he was charged with five offences under the Military Commissions Act of 2006 and the Manual For Military Commissions - Khadr applied for judicial review of Canada's decision not to seek his repatriation and the matter went to the Supreme Court of Canada - The Supreme Court of Canada (in "Khadr II") declared that Khadr's s. 7 Charter rights were breached when Canadian officials interrogated Khadr in 2003-2004 and then shared the information they obtained from him with the U.S - The court left the crafting of a remedy for the breach to Canada - Khadr subsequently applied for judicial review of certain public statements that the executive was continuing its policy of not requesting the U.S. to repatriate Khadr - The application raised issues of whether Khadr was entitled to procedural fairness by the executive in making its decision as to how Canada would respond to the Supreme Court of Canada's declaration - The respondents argued that the decision not to seek Khadr's repatriation had already been litigated by these parties in Khadr II and was res judicata - The Federal Court rejected the argument - The question answered by the Supreme Court of Canada was not the same question before the court on this application - See paragraphs 40 to 45.

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, had been detained by the United States at Guantanamo Bay, Cuba, since October 2002 - He was alleged to have thrown a grenade that killed a U.S. soldier in Afghanistan and he was charged with five offences under the Military Commissions Act of 2006 and the Manual For Military Commissions - Khadr applied for judicial review of Canada's decision not to seek his repatriation and the matter went to the Supreme Court of Canada - The Supreme Court of Canada (in "Khadr II") declared that Khadr's s. 7 Charter rights were breached when Canadian officials interrogated Khadr in 2003-2004 and then shared the information they obtained from him with the U.S - The court left the crafting of a remedy for the breach to Canada - In response to the Supreme Court of Canada's decision, Canada sent a diplomatic note to the U.S. government requesting that it not use any of the information provided to it by Canada in its prosecution of Khadr - Khadr applied for judicial review of Canada's decision to remedy the Charter breach by sending the diplomatic note and to provide no other remedy - The respondents submitted that to the extent that the application sought to review the question of whether a court should make an order that the government request Khadr's repatriation, that issue was already decided in Khadr II and was res judicata - The Federal Court rejected the argument - While Khadr was asking the court to direct Canada to seek his repatriation, the application sought to set aside the decision in issue because he was not afforded procedural fairness in Canada's response to the Supreme Court's declaration - That question was not before the court in Khadr II nor could it have been - See paragraphs 46 to 48.

Cases Noticed:

Hamdi v. Rumsfeld (2004), 542 U.S. 507, refd to. [para. 10, footnote 2].

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. 24].

1099065 Ontario Inc. v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 375 N.R. 368; 2008 FCA 47, refd to. [para. 38].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 41].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 41].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 54].

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(3d) 215 (C.A.), refd to. [para. 61].

Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374 (H.L.), refd to. [para. 61].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 63].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 64].

Abassi v. Secretary of State for Foreign and Commonwealth Affairs, [2002] EWCA Civ. 1598, refd to. [para. 66].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 91].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 91].

Authors and Works Noticed:

Brown, Donald, J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2nd Ed.) (2009 Looseleaf), p. 9-1 [para. 73].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (5th Ed. 2009), p. 244 [para. 60].

Counsel:

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

Doreen C. Mueller, for the respondents.

Solicitors of Record:

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

Myles J. Kirvan, Deputy Attorney General of Canada, Edmonton, Alberta, for the respondents.

These applications were heard on June 8, 2010, at Edmonton, Alberta, before Zinn, J., of the Federal Court, who delivered the following decision on July 5, 2010.