BY Nafay Choudhury
FILED UNDER
Constitutional Law
Human Rights
Public International Law
TAGS
Charter of Rights and Freedoms, democracy, freedom of life, liberty, Omar Khadr, security
Omar Khadr – When Two Wrongs Don’t Make a Right…?
On Friday, January 29, 2010, the Supreme Court of Canada released its much-anticipated decision concerning the repatriation of Omar Khadr. In Canada (Prime Minister) v. Khadr, 2010, (“Khadr 2010”), the Court upheld the finding of the Federal Court of Appeal that the government of Canada violated Khadr’s Section 7 rights to life, liberty and security protected under the Canadian Charter of Rights and Freedoms (“Charter”). However, on the issue of remedy, the Supreme Court ruled that the government could not be obliged to ask the United States to repatriate Khadr. And so Khadr’s long quest for justice remains an uphill battle after Friday’s decision, leaving it to the government to decide how react (if at all) to its breach of Khadr’s Charter rights and whether it will take any steps to seek his repatriation.
The Khadr ordeal presents some of the difficulties faced at the interface of domestic law, international law and international affairs. First, the decision reignites the question of whether the Charter has extraterritorial application to Canadian officials abroad – in this case, those who conducted interviews in Guantanamo. Second (and what I find to be the more troubling matter), the decision raises the question of how Canada should respond to Charter violations that it commits abroad. The meekness of remedy issued in Friday’s decision hugely frustrates attempts to see Canada’s international human rights obligations crystallize in concrete corrective measures.
I. Extra-territoriality of the Charter
As explored in a recent blog posting, the Supreme Court in R. v. Hape opined that the Charter does not generally apply extraterritorially, as any such application may interfere with the sovereignty of other nations. The exception to this rule was stressed in Khadr v. (Canada) Minister of Justice, 2008, (“Khadr 2008”), where the Court opined that “if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that process” (para. 19). The exception granted in Khadr 2008 remains very limited in scope, as it speaks strictly to Canada’s participation in acts abroad that vitiate Charter principles. This limited scope was accepted in Khadr 2010. Khadr 2010 seems to be continuing the courts careful extension of the Charter extraterritorially, as has been occurring for the past decade.
II. Remedy – Declaring a Charter Violation
The remedy in Khadr 2010 was purely declaratory, overturning the ruling by the lower courts that Canada must ask the United States for Khadr’s repatriation. The decision comes as a huge blow to human rights enthusiasts, though not necessarily as a shock, as the Supreme Court expressed at the November hearing of the case its deep reluctance in overstepping the powers of the executive.
From the perspective of Canada’s international obligations concerning human rights, the Supreme Court’s position on the remedy is arguably problematic for two reasons. First, a purely declaratory remedy hugely frustrates the Court’s recent efforts to assert that the Charter applies extraterritorially in pursuing higher principles of justice. Canada prides herself as a champion of human rights, and to this effect has ratified such conventions as the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Federal Court of Appeal in Khadr 2010 noted Canada as being a signatory to Convention Against Torture and asserted that the prohibition of torture should inform the scope of Section 7 of the Charter (para. 52). Canadian law would be falling hugely short of its own international human rights obligations if the human rights infractions that it committed abroad did not necessitate any concrete action beyond a mere declaration. Unfortunately, Khadr seems to have only benefited from the latter.
Of course, the obvious counter-argument – and the argument squarely pursued by the Supreme Court in Khadr 2010 – is that courts need to be very wary about overstepping the prerogative powers of the executive, “including the right to speak freely with a foreign state on all such matters” (para. 33). Thus, on the question of repatriation, the Court cautioned that “the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court” (para. 43). This approach accepts as a default rule that only the executive and not the courts can decide how to exercise executive powers (though allowing certain discretion by the court in exceptional circumstances). While this separation of powers is a vanguard of western constitutional democracies, I would argue that a Charter breach amounting to a breach of Canada’s international human rights obligations should create a default rule in favour of correcting that violation. Underlying this balancing act is the relative weights that are given to differing (and in this case conflicting) Canadian values. While the outcome of a request for repatriation is uncertain, it is the most Canada can do in the current situation. Such an approach would reverse the burden of proof and require the government, in seeking to uphold its decisions, to show that infringement of its prerogative power would be damaging beyond a certain threshold.
I admit to the tenuousness of this argument, as it seems to fly in the face of the separation of powers. However, the separation of powers doctrine could benefit rather than lose from being informed by international human rights. Clouded government decisions would not be given total immunity when the principles of life, liberty and freedom are at stake.
Nafay Choudhury is a LL.B./B.C.L. '11 student, with an MA in Economics (Queen’s) and BA in Economics (McGill). His interest in legal pluralism developed after visiting Afghanistan in 2007, where he explored the relationship between Afghan law and marginalized groups. He also enjoys studying the impact of economic policies on the law.
4 Responses to “Omar Khadr – When Two Wrongs Don’t Make a Right…?”
I enjoyed reading this, Nafay, and I imagine it will spark some good discussion. As a corollary of your separation of powers argument, I would add the democratic legitimacy argument. When the executive branch makes an unpopular or illegal foreign policy decision (and this ruling clearly establishes that foreign policy decisions can be illegal), they can be voted out of office. In a case like Khadr’s, the “purely declaratory” remedy brought serves to indicate the extent to which the government’s actions breached Canadian values, and this may stick in voter’s minds on election day (granted, this doesn’t do much for Khadr). In contrast, if the Supreme Court were the final arbiter of foreign policy decisions, there would be no measure of democratic accountability. The Court’s constraining power to review government action needs to be treated separately from its related, remedial authority to affirmatively order it to act. As the Court noted, it is not best-placed to evaluate the consequences of foreign policy decisions; moreover, due to the inherently political and value-laden nature of such decisions they fall outside the “supervisory” role of the judiciary. In other words, I disagree that the separation of powers doctrine could benefit by being subordinated to human rights considerations.
In general, as the rule rightly stands, the government has a prerogative over foreign relations decisions. The court is not the forum for foreign policy to be shaped. As a result, most decisions of repatriation must be left to the executive.
However, when the Canadian Government takes part in such an egregious breach of a Charter protected right towards one of its Canadian citizens then the court must be able to hold the government accountable. Correct me if I’m wrong Nafay, but I don’t think the argument here is to make the SCC the final arbiter of foreign policy decisions. Rather, I believe the argument is that where a Canadian citizen has had his/her Charter rights taken away by Canadian officials, and where there is no justification under s. 1, there must be accountability – a declaratory remedy does not offer that accountability. Leaving this accountability to voters is not a judicial response to what the SCC described as such a clear breach of fundamental justice.
Dan, I think your comment, “The Court’s constraining power to review government action needs to be treated separately from its related, remedial authority to affirmatively order it to act” touches the heart of the matter. At the November hearing, cousel for Khadr and the intervenors recognized this difference, but also forcefully made the argument that under the factual matrix of a particular case, it may be that (and here’s the punch line) inaction constitutes a form of action.
Justice O’Reilly at the trial level reviewed the various remedies available to him under s. 24(1). He chose the remedy most obvious to him – that is, the remedy that was most obvious in correcting the violation. The FCA upheld O’Reilly’s decision, noting that the remedy was minimally intrusive. The lens of human rights provides further justification for such a remedy. Not all Charter breaches will amount to a human right violation (i.e. in a case of freedom of association, one could hypothesize a Charter violation that does not constitute a human rights violation). But when the Charter violation is so heinous that it amounts to a human rights violation, the question to be asked should be “why is nothing being done?” rather than “what should we be doing?”. (Edmond Burk’s [slightly polemical] words say it best: “All that is required for evil to prevail is for good men to do nothing”).
Unfortunately, given the government’s decision on Wednesday not to ask for Khadr’s repatriation (nor take any corrective measures for its Charter violation), we may have to wait for Khadr 3 in a few years before this issue in ultimately resolved.
But what is the role of the Court here? Lee’s comment suggests that it is to hold the government accountable for complicity in human rights violations. Nafay’s suggests that it is to correct the violation. Obviously, accountability and rectification should ideally go hand-in-hand, but in a case like this, where the power to order the remedy being sought stems from a different source of authority than the Court’s power to review government action (crown prerogative as opposed to C.A. 1867 or C.A. 1982), it seems to me that the two roles need to be differentiated. In my view, the Court’s authority to hold the government accountable does not necessarily imply the authority to order the Canadian government to correct a human rights violation that is being perpetuated by a foreign state independently of Canada’s previous or current actions.