SCC Unconvincing in Khadr Decision

The much anticipated arrival of the Supreme Court of Canada’s (“SCC”) decision on the repatriation of Toronto-born Omar Khadr came on Friday. Familiar to most Canadians by now, Khadr was arrested when he was 15 years old and was charged with murder, conspiracy and support of terrorism. Now 23 years old, he has been imprisoned at Gunatanamo Bay, Cuba ever since. He applied to the Federal Court  for an order that he must be repatriated which was successful and subsequently upheld on appeal.

Overturning the Federal Court of Appeal’s decision, the SCC refused to order the Canadian government to bring Khadr back, submitting that it was not the correct remedy under s. 24(1) of the Canadian Charter as it would infringe on the government’s common law Royal Prerogative over foreign relations. This decision came despite the SCC recognizing that the Canadian officials who interrogated Mr. Khadr in 2003-2004:

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[i]

The remedy granted was that of “declaratory relief” – declaring that Khadr had had his rights violated and leaving it to the government to decide what to do with this “new” information. Wow! Thanks Supreme Court of Canada! Some remedy! I wonder what the Canadian government’s response will be considering they already knew his rights were being violated and have not acted, outside the occasional diplomatic note, in seven years. With this in mind, I have the following criticisms of the SCC’s judgment.

The Court recognizes that despite the government’s royal prerogative, it is not exempt from constitutional scrutiny:

The courts have the jurisdiction and the duty to determine whether [the exercise of] a prerogative power asserted by the Crown infringes the Charter or other constitutional norms.[ii]

However, it determined that the circumstances of this particular case did not call for the court to make an order to ensure that the foreign affairs prerogative is exercised constitutionally. Rather than delineating the circumstances where such an order would be appropriate, it jumped directly to its concerns as to why such an order in this case does not work.

The Court’s first concern is that the lower court (Federal Court) gave

too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests.[iii]

This is rather unconvincing when one reads the Federal Court decision. O’Reilly J. sets out that “courts should generally leave matters of foreign relations to Government.”[iv] It is with the foreign affairs prerogative in mind that the lower court determined that no other remedy, other than repatriation, would be able to mitigate the effect of the Charter violations that Khadr had faced. The lower court did what the SCC demands: “give due weight to the fact that…those…were matters of Canadian foreign relations”.[v] The SCC ignored O’Reilly’s line of reasoning and arbitrarily declared that too little weight was given to the prerogative.

A second reason given for not accepting the remedy of repatriation is that the circumstances of the Khadr case differs from the circumstances in a different case where a specific remedy was granted,  where the court did interfere with the foreign affairs prerogative: the Burns case. The SCC in Khadr said that the two cases differ on three grounds and that due to these aspects, Burns warranted a more specific remedy:

Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court.[vi]

The SCC uses these criteria as if it were an accepted legal test, which is not the case and which makes the reasoning unconvincing. The court found relatively arbitrary criteria. Even more unconvincing is:

1. the fact that the Supreme Court ignored that the onus is on the government to give evidence that there would be detriment to foreign relations to request repatriation, which was not offered in this case [vii]; and
2. the fact that many other countries have requested the return of their citizens or residents from Guantanamo Bay and the United States has granted those requests [viii] – this seemingly would quell the second concern listed above

A final reason given for the court refusing to order repatriation is the “inadequacy of the record”[ix]. Apparently, the SCC feels that there is an incomplete picture of the negotiations that have taken place, or will take place, between the U.S. and Canadian governments over Mr. Khadr. This ignores the very thorough analysis of Canadian diplomatic efforts given by the majority in the Federal Court of Appeal’s decision.[x] The decision covers diplomatic and Minister’s notes sent to the United States between 2002-2006, none of which is mentioned by the Supreme Court in determining that the record is inadequate.

While the decision does not give satisfactory reasoning for refusing to repatriate Khadr, at the very least, it finalizes that his Charter rights have been abused. The government is now left to chew on the decision and react. If the last seven years is any indication, Khadr will be left to face trial by an American military tribunal slated to begin in July.

[ii] Ibid. at para. 36.

[iii] Ibid. at para. 39.

[iv] Khadr v. Canada (Prime Minister), 2009 FC 405 at paras. 78-79.

[v] Supra note 1 at para. 41.

[vi] Ibid. at para. 43.

[vii] Supra note 4 at para. 84; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 at para. 136

[viii] Supra note 4 at para. 86.

[ix] Supra note 1 at para. 44.

[x] Canada (Prime Minister) v. Khadr, 2009 FCA 246 at paras. 10-25.