Omar Khadr v The Royal Prerogative over Foreign Affairs

In light of the Omar Khadr affair, this post will provide a brief overview of the royal prerogative power over foreign affairs. As discussed in previous posts on TheCourt.ca (here, here, here and here), the Supreme Court of Canada’s (“SCC”) interpretation of the government’s prerogative over foreign affairs limited the judiciary’s ability to force the Canadian government to repatriate Mr. Khadr.

The prerogative power is essentially a relic of a period when the Monarchy had the absolute discretion to rule. Over time, the courts have narrowed the number and scope of prerogative powers. Today, in general, any power asserted by the Federal government that does not fall within the ambit of the Constitution, a constitutional convention or the royal prerogative, is statute based. A statute can also displace a prerogative power.

According to the SCC, a Charter remedy “must employ means that are legitimate within the framework of our constitutional democracy.” In the context of the Khadr saga, this implies that the judiciary does not have the power to simply usurp certain decisions of the executive (the Prime Minister and the cabinet) but must, in some cases, consider the relevant scope and impact of common law based norms resting solely in the discretion of the executive – prerogative powers.

In part, what the judgment in Canada (Prime Minister) v Khadr, [2010] 1 SCR 44 [Khadr, SCC] represented was the SCC’s acknowledgement that it must proceed carefully when examining conduct clearly within the realm of foreign affairs. What is also apparent from reading the Khadr, SCC decision is that the scope of the prerogative power over foreign affairs is not precisely definable. Nevertheless, the SCC did not conclude that the government could proceed as it deemed necessary, no matter what, regardless of the Charter. In other words, the royal prerogative is not absolute.

In a decision pre-dating the Khadr, SCC ruling, Abdelrazik v Canada (Minister of Foreign Affairs), [2010] 1 FCR 267 [Abdelrazik], the Federal Court of Canada ordered the government to issue an emergency passport and allow the return of a Canadian citizen suspected of terrorist ties who was living in a Canadian embassy in Sudan. The government complied with the order after the Federal Court ruled that its actions were not justified under s. 1 of the Charter.

Why was this not done in the case of Mr. Khadr? Well, the SCC refrained from issuing an order to repatriate Mr. Khadr because of the uncertainty surrounding his situation. According to Canada’s highest court, a repatriation order was not warranted because “Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed….”

In the case of Abdelrazik, the circumstances were more straightforward and actual evidence of terrorist involvement was slight. In Mr. Khadr’s case, the SCC refused to interfere with the executive’s discretion because it would have to have done so on shaky ground. Maybe Canada’s highest court would have ruled differently if it were convinced that Mr. Khadr was innocent of the charges against him and that the US would immediately comply with a repatriation request?

The latest on the Khadr saga involved an exchange of diplomatic notes which, in part, state: “[T]he Government of Canada is inclined to favourably consider Mr. Khadr’s application to be transferred to Canada to serve the remainder of his sentence….” A cursory review of the notes reveals that they do not comprise an agreement to repatriate Mr. Khadr. However, it is likely that the notes would bolster Mr. Khadr’s position if he were to again petition the court for his repatriation.

Regardless of the Khadr, SCC or related decisions from the Federal Court and Court of Appeal, Canada’s executive still has a very strong hold on the conduct of foreign affairs. Even so, the exercise of the royal prerogative can always be challenged under the Charter, and subsequent challenges may weaken what remains of the powers under the royal prerogative as time advances.