Canada (Prime Minister) v Khadr, 2010 SCC 3 (29 January 2010)
The Canadian Supreme Court has confirmed that Canadian officials breached Omar Khadr's right to liberty and security of the person under s 7 of the Charter of Rights and Freedoms. However, the Supreme Court held that it does not have the power to order that the Canadian Government seek Mr Khadr's repatriation from Guantanamo Bay, because such a request falls within the Canadian Government's prerogative power in foreign affairs.
Mr Khadr has been detained in adult detention facilities at Guantanamo Bay since 2002, when he was 15 years old. He was captured by US forces in Afghanistan after allegedly throwing a grenade which killed a US soldier. Mr Khadr has been charged with war crimes, but his trial before a military commission is still pending.
Mr Khadr has been given no special status as a minor. For the first two and a half years of his incarceration Mr Khadr had virtually no communication with anyone outside of Guantanamo Bay and did not have access to legal counsel or any adult who had his best interests in mind.
In February and September 2003, Canadian officials interviewed Mr Khadr and shared the content of these interviews with US authorities.
As a means of making Mr Khadr more willing to provide intelligence, Mr Khadr was subjected to the so-called ‘frequent flyer program’. This involved depriving Mr Khadr of rest and sleep by moving him to a new location every three hours over a period of weeks. In March 2004, Canadian officials again interviewed Mr Khadr, knowing that he had been subjected to the 'frequent flyer program'.
Mr Khadr made repeated requests that the Canadian Government ask the US to return him to Canada. Mr Khadr alleged that the Canadian Government's refusal to seek his repatriation infringed his rights under s7 of the Charter, which states:
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 Federal Court found in Mr Khadr's favour and ordered that Canada must request his repatriation as soon as practicable. The Federal Court of Appeal upheld the order, but defined the breach more narrowly. According to the Federal Court of Appeal, the Canadian Government infringed Mr Khadr's right to liberty and security of the person when its officials interrogated him in March 2004, despite knowing that he had been subjected to cruel and abusive treatment under the 'frequent flyer program'.
The Canadian Prime Minister asked the Supreme Court to reverse the order.
The Supreme Court held that the Canadian Government breached s7 of the Charter for the following reasons.
- The Charter applied to the conduct of the Canadian state officials that interrogated Mr Khadr. International customary law and the principle of comity of nations generally prevent the Charter from applying to extra-territorial conduct of Canadian officials. However, there is an exception when this conduct is incompatible with Canada's international obligations or fundamental human rights norms. This exception applied in this instance because the Canadian officials assisted the US authorities at Guantanamo Bay despite US Supreme Court rulings that the US military commission regime violated fundamental human rights.
- The conduct of the Canadian Government deprived Mr Khadr of the right to liberty and security of the person. This is because the Canadian Government's active participation in the illegal regime (including by interviewing Mr Khadr and providing this information to US authorities) is contributing to Mr Khadr's continued detention.
- This deprivation of Mr Khadr's right to liberty and security of the person does not accord with the principles of fundamental justice. The Supreme Court held that the Canadian Government's interrogation of Mr Khadr about serious criminal charges in circumstances where he did not have access to counsel and had been subjected to sleep deprivation, and when the Canadian officials knew that the results of the interrogations would be shared with US authorities, ‘offends the most basic Canadian standards about the treatment of detained youth suspects’.
However, the Supreme Court held that it was not appropriate to instruct the Canadian Government to repatriate Mr Khadr because this involves making representations to a foreign government, which is a Crown prerogative. The Court defines prerogative power as ‘the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown… It is a limited source of non-statutory administrative power’. The Supreme Court held that the executive is entitled to determine whether and how to exercise its prerogative powers, although courts can determine if the asserted power exists and whether its exercise infringes the Charter or other constitutional norms.
As a result, the Court held that the appropriate remedy is to declare that Canada infringed Mr Khadr's rights under s 7 of the Charter, and let the Canadian Government decide how best to respond. The Court declared that:
… through the conduct of Canadian officials in the course of interrogations in 2003-2004 … Canada actively 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.
Following this decision, the Canadian Government has asked American prosecutors to exclude Mr Khadr’s statements to Canadian investigators from evidence in his upcoming US military trial, but has not asked the US to return Mr Khadr to Canada.
Relevance to the Victorian Charter
This decision is instructive about the obligation that the Charter imposes on government authorities to not contribute to a breach of the right to liberty and personal security by another State. Although the Victorian Charter has limited application to Australian detainees overseas, this principle may be applied to the dealings of Victorian authorities with persons interstate.
This decision also illustrates the need to take into account the age of young detainees and may have implications for the interpretation of s 23 of the Victorian Charter, which provides obligations towards children in the criminal process.
Finally, the Khadr decision demonstrates a judicial reluctance to interfere with the executive's prerogative powers in foreign affairs. This is unlikely to be relevant to remedies sought under the Victorian Charter. However, it is worth noting that the Canadian government's response to the Supreme Court's declaration was minimal.
The decision is available at http://www.canlii.org/en/ca/scc/doc/2010/2010scc3/2010scc3.html.
Michael Sharkey is a summer clerk with Lander & Rogers. Melanie Schleiger is a lawyer with Lander & Rogers and a Board member of the Human Rights Law Resource Centre