Khadr, Khadr, He’s Our Man, If He Can’t Do it… oh.

The Supreme Court of Canada (“SCC”) handed down its decision in Canada (Prime Minister) v Khadr, 2010 SCC 3, on Friday, which may have prompted a call to Omar Khadr from his lawyers telling him, “So close, and yet so far…”

TheCourt.ca covered Khadr’s case back in September 2009, before it was argued at the SCC (see my original post here, and Ahsan Mirza’s counterpoint here). Unsurprisingly, the Court didn’t take my advice to dismiss the appeal and confirm a duty on the government to attempt to repatriate its citizens when they are held in conditions that breach international human rights norms. Disappointingly, while the judges agreed with most of Khadr’s arguments, they stopped short of granting him a remedy.

Background

Based on the quick turnaround time and the length of the judgment (it only took three months to issue the 48-paragraph decision, about half the average time between hearing and judgment), the Court seems to have viewed the case as somewhat open and shut. I suppose, if nothing else, Khadr can be comforted that he’s received quick service in our legal system—he got an expedited hearing this time around, and his last case at the SCC, Canada (Justice) v Khadr, [2008] 2 SCR 125, took only two months to be handed down.

The fact that the Court found that the government’s actions had violated, and continue to violate, Khadr’s section 7 Charter rights is not much of a consolation prize. This case was about the remedy. On that point, the Court, in a per curiam opinion, reversed the Federal Court of Appeal, which by a 2-1 majority had confirmed the trial judge’s order compelling the government to ask the United States to send Khadr home from Guantanamo Bay, where he has been held for the past seven years.

The SCC Decision

The opinion quickly dispenses with many of the legal issues in the case, finding, for the same reasons as Khadr 2008, that the conduct of the government officials amounted to a breach of section 7 of the Charter. The Court clearly disapproves of the government’s handling of Khadr’s case. In characterizing the Charter breach, the judges held that representatives of the Canadian government were participating in conduct that “offends the most basic Canadian standards about the treatment of detained youth suspects.” They then moved on to consider the issue of remedy under s. 24(1).

Section 24(1) grants wide discretion to a court to craft a remedy that is “appropriate and just in the circumstances”. Khadr’s first hurdle, then, was to demonstrate that his request met that criteria. The Court held, quoting Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3 [Doucet-Boudreau], that an appropriate and just remedy in the circumstances is “one that meaningfully vindicates the rights and freedoms of the claimants,” and agreed that Khadr’s proposed remedy could potentially do so. So far, so good.

However, the Court then limits the reach of this principle (again quoting from Doucet-Boudreau) by requiring that an appropriate and just remedy “employ means that are legitimate within the framework of our constitutional democracy,” as well as be a “judicial one which vindicates the right while invoking the function and powers of a court.” This brings us to Khadr’s stumbling block, and to my difficulty with the reasoning in this case.

Analysis

The issue at the core of the case is the extent to which our courts can get into the business of foreign affairs, and in particular, the Crown’s prerogative power in this area. The Government argued “not at all”. The Court tried to step gingerly around the edges of the issue: it held that it is for the executive to decide how to exercise its powers, but the courts can properly determine whether a prerogative power exists and whether the exercise of that power infringes the Charter.

The opinion acknowledges that in reviewing the exercise of prerogative powers, the executive remains “better placed to make such decisions within a range of constitutional options”. However, the Court reserved the option of intervening in the future: in situations where the government refuses to “abide by constitutional constraints,” courts can step in to ensure the prerogative power is exercised in accordance with the Constitution, except, apparently, in this case.

Much of the reasoning described in the foregoing paragraph is taken from United States v Burns, [2001] 1 SCR 283 [Burns], where it was held that the Government of Canada had to get assurances from the United States that the death penalty would not be sought against a person in Canadian custody against whom extradition proceedings were being brought. However, the Court distinguishes Burns on the following bases: Khadr is not under Canadian control, the effectiveness of his proposed remedy is unclear, and the Court cannot properly assess the impact of the repatriation request on Canada’s foreign relations.

There are undoubtedly political concerns involved here, but Khadr is the only citizen of a western democracy left at Guantanamo. Why? Because every other government with citizens who were imprisoned there asked the US to send them back! Where every other country (including the UK, of which President George W. Bush once said, “America has no truer friend”) has repatriated its citizens, it becomes increasingly difficult to buy the government’s arguments that the implications of Khadr’s request are unpredictable.

Of course, none of this was before the Court, which led the judges to express their concern about the thin record before them. But in these situations, it should be the government’s responsibility to demonstrate why a particular course of conduct has not been followed. There is clearly a reason that the government has not acted. If it can’t be revealed in open court, fine. But courts weigh government justification for actions all the time—it is a crucial part of the section 1 Charter analysis.

The argument then becomes something akin to “we can’t have our courts second guessing the political considerations of the executive branch”. But this, too, happens all the time. In security certificate review hearings and in the recent battle over the release of certain sections of Justice Dennis O’Connor’s Arar commission report, Federal Court judges have rejected the government’s contention that releasing intelligence shared by third parties, or censoring broad swaths of a report, would cause irreparable harm to Canada’s interests.

The Result and Conclusion

In the result, Khadr is left with a declaration that his rights have been violated. The Court ends its opinion by attempting to suggest that such relief has been recognized in previous decisions as “an effective and flexible remedy for the settlement of real disputes.” However, this is somewhat disingenuous. The passage quoted, from R v Gamble, [1988] 2 SCR 595, was referring to the Court making a declaration that Gamble was eligible for parole. In that case, the declaration allowed access to a process that was previously unavailable—you can’t attempt to get paroled if you are not parole-eligible. Here, I don’t see how this declaration gives Khadr anything more than what he started with.

It has been pointed out by many commentators (including editorials in The Globe and Mail and the Toronto Star) that the weight of the Supreme Court’s moral authority should compel the government to repatriate Khadr. Hopefully that’s true. But if it doesn’t, does he have to go through this all over again? Since the Court did not actually order the government to do anything, the basis on which Khadr could start a new judicial review application is not entirely clear. Even in the absence of that issue, it seems hard to believe that in a hypothetical “Khadr 3” the Court would suddenly find that the evidentiary record was full enough to justify granting Khadr the remedy he wants. And if it would be prepared to make such an order in the future, why not do so now? Giving the government one last chance after 7 years of inaction does not seem likely to change much.

In the end, the value of this judgment for Khadr may depend on the decision in a case currently under reserve. In City of Vancouver v Alan Cameron Ward, the Court has been asked to determine whether damages are available as a remedy under s. 24(1) when a Charter breach was not accompanied by a tort, did not result in loss to the plaintiff, or was not the product of bad faith. If they answer yes, perhaps Khadr will be able to turn the Court’s clear finding of an ongoing s. 7 breach into an award of damages. Of course, how that would be valued is anyone’s guess. How one quantifies damages flowing from seven years spent in a legal black hole may be Khadr’s next question for the Supreme Court.