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At the age of 15, Khadr – a Canadian citizen – was captured by U.S. forces in Afghanistan. Since 2002 he has been held in Guantanamo Bay, Cuba, awaiting trial on war crimes charges. During 2003, Canadian officials from the Canadian Security Intelligence Service and the Foreign Affairs department questioned Khadr. The conversations were made available to U.S. authorities.  

 

In a 2008 decision, the Supreme Court ruled that documents about the questioning must be made available to Khadr.[2]His legal team used the information in those documents to argue that the interrogations by Canadian officials had violated Khadr’s Charter rights by contributing to his ongoing detention. To remedy this alleged breach of his rights, Khadr asked the courts to order the Canadian government to formally ask the United States to return him to Canada.

 

The Supreme Court first considered whether Khadr’s rights had been violated. After concluding that the government had violated his rights, the Court considered whether it was appropriate to require the government to make such a request.

 

 

Khadr argued that his right to not be deprived of liberty “except in accordance with the principles of fundamental justice,” as provided by section 7 of the Charter, was violated.[3]For this argument to succeed, he had to show that the Charter applied to the government officials who had questioned him (even though the questioning occurred outside Canada), that the questioning contributed to his ongoing detention, and that the detention was not in accordance with the principles of fundamental justice.

 

The Court followed its previous decision about Khadr’s detention and held that the Charter did apply to the officials who questioned him.[4]As well, the Court stated that while the major source of the deprivation of Khadr’s liberty was the United States, it is reasonable to infer that the participation of the Canadian officials has contributed to his ongoing detention.[5]Finally, the Court ruled that the interrogations were contrary to the principles of fundamental justice:

 

Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.[6]

 

As the lower courts had done, the Supreme Court concluded that Khadr’s Charter rights had been violated.[7]It then considered what remedy would be appropriate.

 

 

In the initial trial, the Federal Court ordered the government to request Khadr’s repatriation from the U.S. to Canada.[8] On appeal, a majority of the Federal Court of Appeal agreed with this order.[9] The Canadian government then brought a final appeal to the Supreme Court, arguing that no court could provide this remedy. The government claimed that courts lack the power to require the executive branch of the government to do anything in the area of foreign affairs.[10]

 

The Court said it must consider two questions in order to determine whether the remedy that Khadr sought – a repatriation request from Canada to the U.S. government – was appropriate.[11] First, is the remedy sufficiently connected to the Charter breach? And second, is it inappropriate because such an order to the government would touch upon the Crown prerogative power over foreign affairs? The Court concluded that an order to the government to request Khadr’s return would be sufficiently connected to the Charter breach because the breach had contributed to his ongoing detention.[12] The second question, however, was more complex as it involved the appropriate role of the courts in reviewing foreign affairs decisions.

 

The Crown’s “prerogative power,” the Court noted, “is the ‘residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’.”[13] The Crown prerogative consists of powers and privileges that the courts have historically accorded to the Crown, and that have not been taken away by Parliament.[14] These powers used to be exercised by the reigning monarch, but are now mainly exercised by the executive branch of government. In practice, these decisions are made by the cabinet and individual cabinet ministers, including the Prime Minister.[15]

 

Over time, legislation has gradually limited the scope of the prerogative power. Today the main legal source of cabinet ministers’ power is legislation passed by Parliament. In other words, most of the power in the hands of cabinet is there because laws of Parliament put it there. Still, some powers exercised by cabinet today have their legal source in monarchical authority, not statutes. In this case, the Court confirmed that legislation concerning the powers of the Minister of Foreign Affairs had not eliminated this “residue” of discretionary power, so the prerogative over foreign affairs remains intact.[16] The Court agreed with the government that the decision not to request the return of Khadr to Canada was an exercise of this prerogative power.[17]

 

The Court then considered the role of the courts in reviewing the use of this power. The Court agreed with the government that it is for the executive branch of the government to decide whether and how to exercise its prerogative powers.[18]However, it also stated that all government power must be exercised in accordance with the constitution.[19] This means that the courts have a role in determining whether the exercise of a prerogative power infringes the Charter.[20] Therefore the Court rejected the government’s argument and concluded that the courts are able to make orders to ensure that the foreign affairs prerogative is exercised within the limits imposed by the constitution.[21]However, the Court pointed out that when courts review the exercise of this power they must remain “sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options.”[22] The courts’ ability to intervene on matters of foreign affairs is therefore a “narrow power.”[23]

 

In this case, the Court concluded that the order granted by the lower courts was not appropriate for two reasons.[24] First, an order to request Khadr’s return to Canada would give too little weight to the fact that the executive must make foreign-affairs decisions in “complex and ever-changing circumstances.”[25] While the Court has been willing to issue specific orders on foreign affairs matters in past cases, Khadr’s case involved different issues. Khadr is not under the control of the Canadian government, it is unclear how effective it would be to make the requested order, and the Court was unable to properly assess what the impact on Canada’s foreign relations would be if Khadr’s return were requested.[26] This case is therefore unlike cases where the Court ruled that the government could not extradite individuals without assurances that the death penalty would not be imposed.[27]

 

The second reason the order would be inappropriate was the inadequacy of the record before the Court.[28] The Court was not aware of any negotiations between Canada and the U.S. that may have taken place, or will take place, concerning Khadr’s situation.[29]The Court also noted that representations in foreign affairs are delicate matters that involve considerations of the appropriate timing of the request, the phrasing of the request, and what to do if a request is rejected.[30] According to the Supreme Court, it would be inappropriate for any court to direct the diplomatic steps that must be taken to address the breaches of Khadr’s Charter rights.[31]

 

Given these concerns about lack of detailed information and the need to respect the separation of powers between the courts and the executive, the Court concluded that the proper remedy was to provide a declaration that the government had violated Khadr’s Charter rights. This declaration, according to the Court, would “provide the legal framework for the executive to exercise its functions and consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.”[32]

 

Adam Badari (May 11, 2010)

 

 

 

Ken Dickerson, “Omar Khadr’s Rights, Prerogative Powers and Canadian Diplomacy after the Supreme Court Decision” Centre for Constitutional Studies (8 February 2010).

 

Jim Young, “Appeal Court Says Ottawa Must Seek Repatriation of Omar Khadr; Government Considers Appeal” Centre for Constitutional Studies (19 August 2009).

 

Ken Dickerson, “Repatriating Omar Khadr: Prime Minister Asks Supreme Court to Consider Final Appeal” Centre for Constitutional Studies (1 September 2009).

 

Jim Young and Ken Dickerson, “Omar Khadr Sues Canada for Torture; Repatriation Order under Appeal” Centre for Constitutional Studies (8 June 2009).

 

Jonathan Maryniuk, “Extradition, Deportation and Section 7 of the Charter” Centre for Constitutional Studies (August 2008).

 

Daina Young, “Supreme Court Rules on Application of the Charter Overseas” Centre for Constitutional Studies (19 June 2007).