Canada (Prime Minister) v Khadr, 2009 FCA 246 (14 August 2009) A majority of the Canadian Federal Court of Appeal recently held that Canada’s discretion to decide whether and when to request the return of a Canadian citizen detained in a foreign country, a matter within its exclusive authority to conduct foreign affairs, was fettered by the application of the Canadian Charter of Rights and Freedoms. The Court ordered Canada to request the repatriation of Omar Ahmed Khadr from the United States, by whom he was detained in Guantanamo Bay on terrorism-related charges.
The respondent, a Canadian citizen, had moved to Pakistan with his family as a child. Several of his family members attended training camps associated with Al-Qaeda. In 2002, aged fifteen, the respondent was taken into custody by the US following a firefight in Afghanistan in which he allegedly threw a grenade that killed a US soldier.
The respondent was detained at Guantanamo Bay, where he remained at the date of judgment, awaiting trial before a US military commission or federal court. During his incarceration, Canada made various diplomatic efforts on the respondent’s behalf, including seeking assurances that the death penalty would not be imposed, requesting that the US take special notice of his status as a minor, and requesting that he be given access to Canadian medical practitioners. Most of these were unsuccessful.
During his detention the respondent was subjected to sleep-deprivation techniques to make him ‘more amenable’ to interrogation. In 2004, Canadian intelligence officials, aware of this mistreatment, interviewed the respondent at Guantanamo Bay and shared the information they obtained as a result with US authorities.
In 2008, the respondent successfully applied for judicial review in the Federal Court, challenging a decision by Canada not to seek his repatriation from the US. Justice O’Reilly held that Canada had breached the respondent’s right to liberty and security under s 7 of the Canadian Charter, and ordered that Canada request his repatriation. Canada appealed.
Section 7 of the Charter provides that ‘everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’.
The majority affirmed that the Charter applies to constrain the conduct of Canadian authorities when they knowingly participate in a foreign legal process that is contrary to Canada’s international human rights obligations, as the Canadian officials did when they interviewed the respondent. For that reason, the Charter was engaged by their conduct.
The majority held that Canada had clearly accepted that the prohibition on cruel and abusive treatment was a principle of fundamental justice. They inferred this from the fact that Canadian legislation prohibits torture by public officials and that Canada is a party to the Convention against Torture.
The majority also considered O’Reilly J’s remedy to be appropriate. It was ‘the most obvious’ remedy. Despite the fact that it was uncertain that the US would accede to a request for repatriation, it had complied with similar requests from all other western countries. There was no evidence that the request would harm the relations between the two countries. The court also rejected suggestions by Canada that such a remedy amounted to an improper judicial intrusion into the Crown’s foreign affairs prerogative, given that the royal prerogative is subject to Charter review.
Nadon JA dissented. He considered that Canada had sufficiently discharged its duty to the respondent by the (unsuccessful) diplomatic representations it had made on his behalf.
Relevance to the Victorian Charter
Section 10 of the Victorian Charter of Human Rights and Responsibilities provides for protection from torture and cruel, inhuman or degrading treatment.
While foreign affairs is a matter of Commonwealth jurisdiction, Canada v Khadr could provide useful precedent for Victorian courts in cases of Victorians detained interstate.
There have been numerous high-profile instances of Australian citizens detained overseas in similar circumstances to the respondent. While there is no Commonwealth equivalent to the Canadian Charter yet, it is arguable that a duty to request repatriation could be similarly placed on Australia in circumstances where its executive agencies knowingly participate in human rights breaches abroad. Like Canada, Australia is a party to Convention against Torture. The Commonwealth has also enacted legislation prohibiting torture, including the Crimes (Torture) Act 1988 and the Geneva Conventions Act 1957.
The decision is available at http://www.canlii.org/en/ca/fca/doc/2009/2009fca246/2009fca246.html.
Sachini Mandawala, Human Rights Law Group, Mallesons Stephen Jaques