Mr. Khadr, however, will be imprisoned for a maximum of 8 years, on account of a plea agreement[1] which was signed, at least in part, on the understanding that, having served no less than a year of his sentence in the U.S., the Canadian Government would be amenable to an application to serve the remainder of his sentence in Canada, subject to Canadian rules of parole.  On 23 October the Government of Canada, in a diplomatic note[2] to the U.S. Government, expressed its “inclination to favourably consider” such an application.

The terms of the plea agreement are severe.  Among other things, Mr. Khadr waived any claim to credit for time served, agreed to direct counsel to submit a motion to dismiss his petition for habeas corpus in his case pending before the U.S. District Court for the District of Columbia, as well as all claims currently pending in the U.S. Court of Appeals for the District of Columbia Circuit.  In addition, while in U.S. custody, he has agreed to submit to interviews “whenever and wherever requested” by U.S. law enforcement officials and to answer truthfully during these interviews, to be conducted in the absence of legal counsel, on pain of prosecution for perjury.  Mr. Khadr also agreed to call only approved witnesses to his sentencing hearing, and confirmed his understanding that the U.S. Government may dispose of the physical evidence adduced at trial.[3]  He has also pledged to give all proceeds in connection with any publication or dissemination of information relating to the conduct alleged on his charge sheet to the Government of Canada.

In his last statement before the Commission, Mr. Khadr said he hoped that his jurors would consider the fact that a U.S. interrogator threatened to have him gang-raped to death.[4]  Meanwhile, his lawyers tried but failed to persuade the Military Commission’s jury panel that certain concessions should be made to the fact that Mr. Khadr was 15 at the time of ‘perpetration.’[5]

Notwithstanding its revocable offer to give Mr. Khadr’s prospective application for repatriation favourable consideration, the Government of Canada has done nothing to protect him from the injustices he continues to suffer, while in U.S. custody.  To the contrary, according to the Supreme Court of Canada (SCC),[6] the Canadian Government, by interrogating him while he was being improperly treated by U.S. officials, has breached its human rights obligations and Mr. Khadr’s rights under the Canadian Charter. This breach of Mr. Khadr’s rights will continue until the Government provides a remedy.  Lamentably, more than 9 months after the SCC’s decision, the Government has yet to provide what it is required to provide.[7]  The Government’s current position amounts to an endorsement of the highly flawed ‘justice’ system to which Mr. Khadr has been subjected and casts significant doubt on the Government’s respect for its human rights obligations and the rule of law.   

[2]http://beta.images.theglobeandmail.com/archive/00978/Read_diplomatic_mem_978462a.pdf

[3] On the quality of the evidence adduced at Mr. Khadr’s trial, see: http://network.nationalpost.com/np/blogs/fullcomment/archive/2008/03/25/lt-cmdr-william-c-kuebler-and-rebecca-s-snyder-the-truth-about-child-soldier-omar-khadr.aspx

[4] http://www.theglobeandmail.com/news/politics/verdicts-in-khadr-is-ottawas-problem-now/article1779878/page2/  See also: http://www.law.utoronto.ca/visitors_content.asp?itemPath=5/5/0/0/0&contentId=2018

[5] Though the United States and Somalia are the only two states not to have ratified or acceded to the UN Convention on the Rights of the Child. The U.S. has ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts.

[6] Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44

[7] http://www.theglobeandmail.com/news/opinions/a-chance-to-do-the-right-thing/article1452503/

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.

The CRC is the most universally accepted international human rights treaty in the world, ratified by every country except the US and Somalia.  The CRC is based on the principles of non-discrimination; the best interests of the child; children’s rights to survival, development, and protection; and children’s right to participate in decisions affecting them.  Ten years on, in Canada, it became one of the issues in the Baker litigation, in which the SCC decided that although the CRC had not been implemented into domestic law, its values should still inform the contextual approach to domestic statutory interpretation and judicial review.

Twenty years on, UNICEF reports fewer child deaths, improved child health, and improved and more gender-equal primary school enrollment.  However, approximately 1 billion children still suffer some form of “material deprivation”, and children are disproportionately likely to suffer the negative effects of the global economic crisis and climate change.  UNICEF reaffirms the importance of the best interests principle in governance; capacity-building to realize children’s rights; support for social and cultural values that respect children’s rights; and cooperation “to make the vision of the Convention a reality for every child.”

2. Khadr’s Day at the SCC … and US Military Tribunal?

On November 13, the SCC heard arguments in the case of former child soldier/alleged terrorist and Canadian Guantanamo detainee Omar Khadr.  In support of its request to set aside the Federal Court of Appeal order to repatriate Khadr, the government is arguing no new Charter remedy, no new s. 7 Charter breach, the non-existence of any “duty to protect” which would require repatriation, and the inappropriateness of repatriation as a remedy.  In support of its request to dismiss the appeal, Khadr’s counsel is arguing the extent of Canadian government violations and complicity in violations of Khadr’s s. 7 Charter rights, and the existence of a related and restricted “duty to protect” which would require repatriation.

Chief Justice Beverley McLachlin agreed that Khadr “suffered terribly,” but challenged, “How is demanding or ordering repatriation going to fix that in the past?” Justice Rosie Abella probed, “Given the fact that no court has yet internationally accepted that there is a duty to protect, how do we get to the remedy that was imposed by the Court of Appeal and the trial court in the absence of such a duty?”  Government counsel warned against “saying, ‘we’re challenging the wisdom of the government decision,” while Khadr’s counsel maintained, “[Repatriation is] something that is going to provide [Khadr] with a benefit in exchange for the violation that has occurred.”  The same day, the US government announced that Khadr would face trial under the controversial US military commission system.

For more information, see the Ottawa Citizen, Globe and Mail, and National Post articles.

3. Khalid Sheikh Mohammed Headed to NY Federal Court

The US government announced that alleged 9/11 mastermind Khalid Sheikh Mohammed would face criminal trial in the no less controversial jurisdiction of the NY federal court.  In the Globe and Mail, Alan Dershowitz opined that Mohammed would likely be charged with some form of mass murder.  Depending on his plea, preliminary issues may include the voluntariness of any confession, the submission of sufficient evidence for the prosecution not obtained under torture and not related to national security, and settling on the fairness of the venue and the selection of a jury that may be called upon to impose the death penalty.  In the New York Times, victims’ relatives and other New Yorkers expressed a range of emotions.

4. Germain Katanga and Mathieu Ngudjolo Chui at the ICC

The ICC announced that the trial of Katanga and Chui, the second trial arising out of the situation in the Democratic Republic of Congo (DRC), will open on November 24.  Katanga and Chui, high-ranking figures in the Force de résistance patriotique en Ituri (Patriotic Resistance Force in Ituri, FRPI) and the Front des nationalistes et intégrationnistes (National Integrationist Front, FNI) respectively, have been charged with three crimes against humanity and seven war crimes.  Both the FRPI and the FNI are alleged to have conducted widespread and systematic attacks against civilian populations in the Ituri region.  Katanga and Chui are alleged to have participated in the planning and implementation of an attack on Bogoro village in February 2003, killing at least 200 civilians.  

For more information, see the ICC press release and Trial Watch profiles.