The Supreme Court Should Not Be Afraid to Be Bold in Khadr's Case

September 7, 2009

It appears Canadian citizenship isn't worth as much as we might like to think. The sagas of Abousfian Abdelrazik, Suaad Haji Mohamud, and Omar Khadr demonstrate that, if the government thinks you're a terrorist, you'll need to get most of the Canadian public onside before the Department of Foreign Affairs will consider helping you.

While Abdelrazik and Mohamud are finally back in Canada, Khadr's long battle to extricate himself from the legal black hole of Guantanamo Bay took yet another turn last week when the Supreme Court of Canada announced it was granting the federal government's request for an expedited appeal in Prime Minister of Canada et al. v. Omar Ahmed Khadr.

After losing a series of American legal battles challenging the Guantanamo tribunals themselves, Khadr's lawyers switched both tactics and countries when they sought judicial review of Prime Minister Stephen Harper's refusal to seek Khadr's repatriation from the American naval base. They argued that the Canadian government had an ongoing policy against requesting Khadr's repatriation; this policy, in turn, offended a principle of fundamental justice and breached Khadr's s. 7 Charter rights. The appropriate remedy pursuant to s. 24(1) of the Charter was an order requiring the Crown to request that Khadr be sent back to Canada.

This argument was accepted at trial in late April, 2009 FC 405. The government promptly appealed to the Federal Court of Appeal, 2009 FCA 246, which confirmed the trial judge's order by a 2-1 majority. The Supreme Court has stayed the effect of the judgment pending the outcome of the latest appeal.

While the case offered an opportunity to make broad pronouncements on on the duty of the Canadian government to protect its citizens, the majority at the Federal Court of Appeal did not see it that way. For them, the legal outcome of the case was incredibly narrow:

[The trial judge] did not decide that Canada is obliged to request the repatriation of any Canadian citizen detained abroad. He did not decide that Canada is obliged to request Mr. Khadr's repatriation because the conditions of his imprisonment breach international human rights norms. He did not decide that Canada must provide a remedy for anything done by the United States. (at para. 34)

What did the trial judge decide? That giving the United States information from the interviews between Khadr and Canadian officials at the prison without attempting to control their use of that information was "potentially detrimental to Mr. Khadr's liberty and security" (para. 35). Based on the Supreme Court's previous decision in Canada (Justice) v. Khadr, 2008 SCC 28, the Charter applied, and the circumstances of the interviews gave rise to an obligation on the part of Canada to take steps to protect Khadr from further abuse. The only protection that could be offered was to request his repatriation.

As Nadon J.A. points out in his dissent (at para. 101), the trial judge's order was essentially based on the fact Canadian officials questioned Khadr in 2003 and 2004. This isn't an incredibly strong logical foundation for the conclusion that the government has an obligation to repatriate him, and the conclusion is both vulnerable to an appeal and of little use to future litigants who find themselves in similar situations. The majority acknowledged this point themselves, noting that the legal issues were narrow and the facts "highly unusual" (para. 34).

The trial judge identified a more attractive conclusion in his review of other courts' decisions on this issue (2009 FC 405 at paras. 39 to 49). The English Court of Appeal held in Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, [2002] E.W.J. No. 4947, that while the government does not have a general enforceable duty to protect citizens abroad, courts could intervene where the government's position is irrational or contrary to a legitimate expectation. This is the better view: where it is widely accepted that Canadians are being held in conditions that violate human rights norms, surely it is legitimate to expect the Canadian government to do something to help its citizens.

It's understandable that the Federal Court of Appeal majority followed a somewhat twisted road to arrive at the right result without clashing too directly with the idea that courts should not wade into foreign affairs, but the Supreme Court should resist the urge to issue a narrow decision applicable only to the unique facts of Khadr's case. Instead, it should take the opportunity to set out the legal protections for, and governmental obligations regarding, Canadian citizens who have been unjustly imprisoned in terrible conditions abroad.

The idea that the courts shouldn't interfere in the conduct of foreign affairs has little application to these types of situations. In the present case, the court's order does not require the government to extract Khadr from Guantanamo by force. It does not require the government to produce Khadr in the courtroom. It simply requires the government to ask the United States to send him back, something that it has so far been unwilling to do.

It's true that issues of politics, international relations, and governmental discretion figure into the conduct of foreign policy, and courts should be careful to jump into this area with both feet.  When foreign governments are torturing our citizens, however, these concerns should fall by the wayside. Moreover, there is no necessary connection between a requirement that the government attempt to repatriate citizens being held in violation of international law and being soft on terrorism (a concern the government has used in the past to justify its inaction).

Given the specific content of the order, I don't see why the judges were bending over backwards to make it clear that it was only in this specific instance that such an order would be appropriate. Where is the danger in holding that in situations where Canadian citizens are being held in conditions that breach international human rights norms, the government has an obligation to try to repatriate those citizens? That doesn't seem like such a radical concept.