Khadr v. Prime Minister (Can.) et al., 2009 FCA 246

• Judge: Nadon, Evans and Sharlow, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 23, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FCA 246;(2009), 393 N.R. 1 (FCA)

Khadr v. Prime Minister (Can.) (2009), 393 N.R. 1 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. AU.027

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 (appellants) v. Omar Ahmed Khadr (respondent)

(A-208-09; 2009 FCA 246)

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

Federal Court of Appeal

Nadon, Evans and Sharlow, JJ.A.

August 14, 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 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, in a decision reported at 341 F.T.R. 300, 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. The Crown appealed. The Crown argued that Khadr's Charter rights were not breached, and alternatively, if there was a breach, that it could be justified by s. 1 of the Charter. The Crown also argued that, if there was an unjustified breach of Khadr's Charter rights, the remedy granted was not appropriate. The Crown submitted that it 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.

The Federal Court of Appeal, Nadon, J.A., dissenting, dismissed the appeal.

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, 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 was given no special status as a minor and he had no access to legal counsel until November 2004 - 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 - 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 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 - The Crown appealed - The Federal Court of Appeal dismissed the appeal - The court below did not err in concluding that the Crown's refusal to request Khadr's repatriation was a breach of Khadr's s. 7 Charter rights or in finding that the breach was not justified by s. 1 - The remedy ordered was also appropriate and did not constitute an abuse of discretion - See paragraphs 46 to 74.

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, 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 was given no special status as a minor and he had no access to legal counsel until November 2004 - 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 - 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 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" - The court ordered the Crown to request the U.S. to return Khadr to Canada as soon as practicable - The Crown appealed, arguing, inter alia, that any mistreatment of Khadr was at the hands of officials of the U.S., not Canada - The Federal Court of Appeal stated that "Canada cannot avoid responsibility for its participation in the process at the Guantánamo Bay prison by relying on the fact that Mr. Khadr was mistreated by officials of the United States, because Canadian officials knew of the abuse when they conducted the interviews, and sought to take advantage of it. Consequently, the rights of Mr. Khadr under section 7 of the Charter were breached when Canadian officials interviewed him at the prison at Guantánamo Bay and shared the resulting information with United States officials" - See paragraphs 49 to 55.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General - [See International Law - Topic 6008 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - 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 - The Federal Court held that Canada's 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 and it ordered the Crown to request the U.S. to return Khadr to Canada as soon as practicable - The Crown appealed, arguing, inter alia, that if there was a breach of Khadr's s. 7 rights, it was justified under s. 1 of the Charter - The Crown argued that, given the breadth of the mandate of the Minister of Foreign Affairs and International Trade under s. 10 of the Department of Foreign Affairs and International Trade Act, and the absence of any statutory or regulatory constraints on the exercise of the Minister's discretion, any decision of the Minister that came within the scope of s. 10 justified a Charter breach if it was rationally connected to the advancement of Canada's international interests - The Federal Court of Appeal stated, inter alia, "since a reviewing court will already have taken competing state interests into account when determining the content of the principles of fundamental justice for the purpose of section 7, there is generally little scope for the kind of balancing exercise required under section 1. The Supreme Court of Canada has said that only in exceptional circumstances, including 'natural disasters, the outbreak of war, epidemics, and the like' could a breach of section 7 be validated under section 1 ... The Crown has not alleged or adduced evidence that Canada's relations with the United States would be injured by requesting Mr. Khadr's return, or that his return would pose a threat to Canada's security. For that reason, it cannot plausibly be argued that 'exceptional conditions' exist on the facts of this case so as to require a section 1 analysis of whether the breach of his section 7 rights is justified" - The court further held that there was no legal or factual foundation upon which it could conclude that the decision not to request Khadr's repatriation was justified as a reasonable limit on his Charter rights - See paragraphs 61 to 65.

Civil Rights - Topic 8380.33

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Repatriation to Canada - [See first Civil Rights - Topic 3157.3 and International Law - Topic 6008 ].

Crown - Topic 2201

Crown privilege or prerogative - General - [See International Law - Topic 6008 ].

International Law - Topic 11

General - Duty to citizens detained abroad - [See first Civil Rights - Topic 3157.3 ].

International Law - Topic 12

General - International human rights obligations - [See first Civil Rights - Topic 3157.3 ].

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 - 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 - The Federal Court held that Canada's 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 - As a remedy, the court ordered the Crown to request the U.S. to return Khadr to Canada as soon as practicable - The Crown appealed, arguing, inter alia, that the conduct of foreign affairs was a matter of Crown prerogative and thus within the sole purview of the executive - The Federal Court of Appeal stated that "the Crown's position on this point is not consistent with the principle that in Canada the rule of law means that all government action is potentially subject to the Charter and the individual rights it guarantees. The Supreme Court of Canada has already decided in Khadr 2008 that the Charter was engaged because the conduct of Canadian officials in the United States towards Mr. Khadr amounted to participation by Canada in the unlawful process at the Guantánamo Bay prison. Further, Crown prerogative in the conduct of foreign affairs has already been held to be subject to the Charter ... Finally, there is no factual basis for the Crown's argument that a court order requiring the Government to request the return of Mr. Khadr is a serious intrusion into the Crown's responsibility for the conduct of Canada's foreign affairs" - See paragraphs 57 to 59.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 25].

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. 26].

Rasul v. Bush (2004), 542 U.S. 466, refd to. [para. 30].

Hamdan v. Rumsfeld (2006), 548 U.S. 557, refd to. [para. 30].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 50].

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; 195 D.L.R.(4th) 1; 2001 SCC 7, refd to. [para. 58].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 64].

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. 67].

Abassi v. Secretary of State, [2002] EWJ No. 4947; [2002] EWCA Div. 1598, consd. [para. 107].

Al Rawi v. Secretary of State, [2006] EWCA Civ 1279; [2008] QB 1598 (C.A.), consd. [para. 110].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 118].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 61]; sect. 7, sect. 12 [para. 42]; sect. 24(1) [para. 43].

Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22, sect. 10 [para. 40].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), p. 38-46 [para. 63]; vol. 2, p. 47-25 [para. 118].

Counsel:

Doreen Mueller and Jonathan Martin, for the appellants;

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

Solicitors of Record:

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

Parlee McLaws LLP, Edmonton, Alberta, and Dennis Edney, Edmonton, Alberta, for the respondent.

This appeal was heard on June 23, 2009, at Ottawa, Ontario, before Nadon, Evans and Sharlow, JJ.A., of the Federal Court of Appeal. The judgment of the Court of Appeal was delivered on August 14, 2009, including the following opinions:

Evans and Sharlow, JJ.A. - see paragraphs 1 to 75;

Nadon, J.A., dissenting - see paragraphs 76 to 119.