Supreme Court orders government to seek repatriation of Omar Khadr
Government violated Omar Khadr’s Charter rights, Court finds
In Canada (Prime Minister) v. Khadr, the Supreme Court of Canada ordered the federal government to seek the repatriation of an accused youth who was subjected to enhanced interrogation techniques and deprived of counsel.
Background
Omar Khadr is a Canadian who was detained by the US military at Guantanamo Bay in 2002. In 2003 agents from the Canadian Security Intelligence Service (CSIS) and the Department Foreign Affairs and International Trade Canada (DFAIT) questioned Khadr on matters connected to charges that were, at the time, pending. The information obtained during these interviews was shared with US authorities. In 2004, a DFAIT official questioned Khadr further, despite knowing that Khadr had been subjected by US authorities to a sleep deprivation technique, known as the “frequent flyer program”, to make him less resistant to interrogation. Khadr made repeated requests to the Canadian government for repatriation. The Prime Minister announced that he would not seek repatriation on Khadr’s behalf.
Khadr sought judicial review in the Federal Court, alleging that the decision violated his right under s. 7 of the Canadian Charter of Rights and Freedoms to life, liberty and security of the person. The Federal Court held that Canada had a duty to protect Khadr under s. 7 of the Charter and ordered the government to request his repatriation. The Federal Court of Appeal upheld that order. The case was then appealed to the Supreme Court of Canada.
The Supreme Court’s decision
The Supreme Court upheld the decisions of the lower courts. It concluded that Canada had actively participated in a process contrary to its international human rights obligations. It had contributed to Khadr’s detention so as to deprive him of his right to liberty and security of the person in a manner not in accordance with the principles of fundamental justice. The Court affirmed that Khadr was entitled to a remedy under the Charter; that an order that Canada request his repatriation was sufficiently connected to the Charter breach; and that the remedy he sought was not precluded by the fact that it touched on the Crown prerogative over foreign affairs.
However, the Court also held that the government must have flexibility in deciding how its duties are to be discharged and that the power of courts to review exercises of prerogative power is a limited one. Applying this limited power, the Court concluded that the appropriate remedy in this case was to declare that Khadr’s Charter rights were violated, but to leave it open to the government to decide how to best respond to the Charter breach.
Marlys Edwardh and Jessica Orkin represented the Canadian Civil Liberties Association, which intervened in the appeal in support of Khadr.