Omar Khadr.2 - LawNow Magazine

Omar Khadr.2

Famous Case Revisited

This conduct establishes Canadian participation in state conduct that violates 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.

We conclude that Mr. Khadr has established that Canada violated his rights under s 7 of the Charter.

Canada v Khadr, [2010] 1 SCR 44, para 25-26

 Introduction

 The last Famous Cases column described the first Supreme Court of Canada decision involving Omar Khadr.  In that 2008 case, the Court decided the US operations in Guantanamo Bay violated Canada’s international human rights obligations.  Khadr could assert rights under the Charter of Rights and Freedoms from a foreign country.

The Khadr cases are exceptions to the customary international law principle that the Charter does not have extra-territorial application.  While Khadr was born in Canada, he had remarkably minimal connection to the country.  His family appeared to have rejected the Canadian way of life and took him to Afghanistan to fight for the Taliban.  There the 15 year old child allegedly killed one American soldier and blinded another.  His life was saved and he was detained at Guantanamo Bay by the United States in July 2002.  The next years, including in 2004 when they knew he had been sleep deprived, Canadian officials interviewed Khadr in custody for intelligence gathering and not criminal investigation.  The Court characterized this as “active participation” by Canada in human rights violations.

As was the norm in such situations, the Canadians shared the information with the Americans.  A few years later, facing US charges for his actions, Khadr requested the interview records.

Khadr was not in Canadian custody or defending against Canadian charges, and he had been personally present at these interviews.  His 2003 and 2004 disclosures to Canadian officials were unlikely to provide any unique and miraculous defence to the US charges, although they may have assisted in the prosecution.  None of this gave the Court pause.  Distinguishing one of its decisions from a year earlier and condemning American actions, the Court summarily determined that Khadr was entitled to Charter protection and his right to liberty was denied because he had not received videos and transcripts of his interrogations by Canadian officials.  The Court said the statements taken by the Canadian officials contributed to Khadr’s detention.  In 2008, the Court ordered disclosure of interview transcripts, and disclosure was made.  Successive federal governments sought “[assurances] of good treatment of Mr. Khadr”.

Another Charter Breach?

Khadr also demanded that the Canadian government seek his repatriation.  When the government refused to do so, Khadr returned to court claiming this decision also violated his right to liberty under the Charter, s 7.

The Supreme Court of Canada, in an uncharacteristically short and quick decision (similar to Khadr 2008) covering a large number of discrete issues, found that the questioning of Khadr years earlier and sharing of statements with the US continued to violate his Charter right to liberty and security of the person.  Canadian actions did not accord with principles of fundamental justice because Khadr was young, did not have access to a lawyer, had been sleep deprived and Canada shared his statements with the United States.

The legal remedy sought by Khadr was a court order to the Canadian government to request his repatriation.  The Supreme Court of Canada declared the ongoing Charter breach but did not make this order.  The Court left it up to the federal government to respond.  The government did request Khadr’s repatriation.  Khadr returned to Canada in 2012.

Analysis

The Supreme Court of Canada reasoning in its 2010 decision is light.  It does not appear to add much to its 2008 decision.  We cannot know, for example, if there was one right violated (liberty) or more than one (security of the person) by Canada.  The 2010 decision only seems to say that the violation was continuing as long as Khadr remained in American custody at Guantanamo Bay.  This continuity declaration was the only remedy that derived from Khadr 2010.

Both decisions concluded that the Government of Canada had violated section 7 of the Charter by virtue of the 2003 and 2004 interviews.  Indeed, it is arguable that the Government of Canada won the 2010 decision because the ordered repatriation request was struck down.  The Court admitted Khadr’s “claim is based upon the same underlying series of events at Guantanamo Bay (the interviews and evidence-sharing of 2003 and 2004) that we considered in Khadr 2008”.  There was really nothing new.  Both 2008 and 2010 cases were decided under the same facts.  Both decisions concluded that the Government of Canada had violated section 7 of the Charter by virtue of the 2003 and 2004 interviews.  Nevertheless, the Court framed it as an exclusive win for Khadr and awarded him the court costs of victory.

The Khadr cases are exceptions to the customary international law principle that the Charter does not have extra-territorial application.  Canadians are bound by the laws of the countries to which they travel.  If they commit crimes in other countries, they cannot demand that Canadian laws and rights protect them.

The Canadian officials’ interviews in February and September 2003, and again in March 2004 were the springboard to what have been characterized by the Court as serious Charter breaches.  At the 2004 interview, Khadr refused to answer questions and the Canadian officials withdrew.

It is important to remember that Khadr was not in custody in Canada, had admitted to killing an American, was early designated an “enemy combatant”, was charged by the United States with war crimes and held for trial before a military commission of a country he chose to engage in combat.  Despite the Supreme Court’s casting this as “active participation” by Canada, the woe visited upon Khadr was overwhelmingly due to his own actions and the actions of the United States.

All of this was done far away from Canada, outside of Canadian power and jeopardy, beyond Canadian law and under international norms applicable to unconventional warfare conducted by non-state enemy combatants.  Yet, the Court said Canada actively participated in the illegal American regime.  If Canada had ignored Khadr, as it does tens of thousands of Canadians overseas at any time, it would have copped less legal liability.

Conclusion

The Supreme Court said “the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter” (para 39).  The Court made no further order in 2010 and, after declaring the breach, left the matter in the hands of the government:

The prudent course at this point . . . is for this Court . . . to grant [Khadr] a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.  (para 47)

After eight years in US custody, Khadr pleaded guilty to murder in 2010 under a plea agreement, which he later repudiated.  He was repatriated to Canada in 2012 and released in May 2015.

Canadian actions did not accord with principles of fundamental justice because Khadr was young, did not have access to a lawyer, had been sleep deprived and Canada shared his statements with the United States.

Khadr 2010 merely confirmed Khadr 2008’s declaration of the Charter breach by Canada.  In tandem with another Supreme Court of Canada decision coincidentally just seven months later, the door to a claim for monetary compensation by Khadr was left open.  In 2013, Khadr sued the Government of Canada for $20 million.

In July 2017, a new Canadian government agreed to grant him a formal apology and $10.5 million compensation for violating his Charter rights, although precisely what right(s) were violated was not clarified.  In defence of this controversial payment at the time, the Prime Minister inexplicably confirmed the government settled as it might otherwise have been liable for up to $40 million.  To date, no Canadian court has ordered compensation for Charter violations at anything close to $10.5 million.  Overall, one expects that the entire Khadr matter – unleashed by a Canadian kid throwing grenades for the Taliban at our allies in a faraway land – has cost Canadian and American taxpayers several factors of the settlement amount.

Meanwhile, the families of Khadr’s two American victims obtained a US$134 million default judgment against Khadr in 2015.  It remains unpaid in full.

Authors:

Peter Bowal
Peter Bowal
Peter Bowal is a Professor of Law at the Haskayne School of Business, University of Calgary in Calgary, Alberta.
 


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