United States of America v. Khadr: Should He Stay or Should He Go

Another Khadr family case is set to unfold before the Canadian public and the Supreme Court of Canada. But this time it is Omar Khadr’s brother Abdullah Khadr who is the centre of focus. In May, the eldest Khadr brother was successful in gaining a stay of proceedings against extradition to the United States in United States of America v. Khadr, 2011 ONCA 358. However, the federal government is now appealing that decision to the Supreme Court of Canada. The Globe & Mail highlights how this case raises the “difficult choice between protecting Mr. Khadr’s human rights and living up to international obligations to help fight terrorism.”

Facts
At the Ontario Court of Appeal Justice Sharpe laid out the facts as follows: Abdullah Khadr was born in Canada and moved to Pakistan at three years of age, moving back and forth until settling in Pakistan in 1997. As most already know, Khadr’s father Ahmed Khadr was an associate of Osama Bin Laden and the family moved to Afghanistan, where they resided at the time the United States invaded the country in 2001. After the war commenced, the Khadr family moved back to Pakistan.

Then, it is alleged Khadr was supplying weapons to Al-Qaeda. Thus, the United States government paid millions of dollars to the Pakistani intelligence agency, the Inter-Services Intelligence Directorate (“ISI”), to abduct Abdullah Khadr in Islamabad, Pakistan in 2004.

Khadr was then secretly held in detention for fourteen months, while being beaten and interrogated by ISI officials. Though Khadr was a Canadian citizen, he was denied consular access and had limited contact with a Canadian Security and Intelligence Service (“CSIS”) official. Furthermore, ISI allegedly refused to bring the charges against Khadr before the Pakistani courts.

ISI eventually released Khadr, although the United States government wanted to keep him in secret detention until it could prepare a criminal case against him and possibly bring him to the United States for trial. However, when Khadr was repatriated to Canada, the United States sought to have him extradited on terrorism charges. In response to the request, on 15 March 2006, the Canadian Minister of Justice issued an Authority to Proceed pursuant to s. 15 of the Extradition Act.

Khadr argued a series of motions for disclosure at the Federal Court which resulted in Khadr gaining access to the CSIS and Department of Foreign Affairs and International Trade (“DFAIT”) and Royal Canadian Mounted Police (“RCMP”) documents. However, none of the United States documents were disclosed to him.

At the Superior Court, Justice Speyer addressed several issues but in particular the extradition and Khadr’s motion for a Charter remedy or stay of proceedings based upon abuse of process. Justice Speyer dismissed the Unites States’ request for extradition. In deciding the case, Justice Speyer found the “the sum of the human rights violations suffered by Khadr is both shocking and unjustifiable”, and therefore ruled that “[i]n civilized democracies, the rule of law must prevail”.

Justice Speyer’s findings led him to grant a stay on extradition proceedings on the basis that “to continue in the face of the requesting state’s misconduct would constitute an abuse of the judicial process”.

This decision was then appealed to the Ontario Court of Appeal.

Court Integrity and Public’s Confidence in the Face of Improper State Conduct
Justice Sharpe writes, “this appeal raises fundamental issues concerning the appropriate judicial response to a violation of the human rights of an individual sought for extradition on terrorism charges.”

And on that issue, Justice Sharpe firmly decided this case against the United States. Justice Sharpe rules there is “no appeal against the extradition judge’s finding that the human rights violations were shocking and unjustifiable.” He went on to rule the “extradition committal hearing threatened the court’s integrity” due to the United States’ misconduct. And Justice Sharpe declares further that “to permit the proceedings to continue in the face of the requesting state’s misconduct would constitute an abuse of the judicial process.”

Furthermore, although the Attorney General argued a stay on extradition would allow “an admitted terrorist collaborator to walk free,” Justice Sharpe dismissed this claim by pointing out the “stay granted by the extradition judge does not impair the Attorney General’s ability to exercise his lawful powers to commence a prosecution in Canada.”

Justice Sharpe held that Justice Speyer had the jurisdiction to apply the abuse of process remedy, using the “clearest of cases” standard as established in R. v. Jewitt, [1985] 2 S.C.R. 128. In fact Justice Sharpe ruled it was not an issue of protecting individual rights but of protecting the “court’s integrity and the public’s confidence in the legal process in the face of improper state conduct.”

The second issue Justice Sharpe ruled upon was whether “the “clearest of cases” standard for a stay of proceedings had been met.” In determining this issue, it was noted that significant deference was owed to the trial court, given the discretionary nature of the remedy.

Justice Sharpe further held that Justice Speyer was correct in applying the stay remedy for future deterrent reasons, considering the illegality of the acts against Khadr in Pakistan, the need for an “effective” remedy in the face of “gross misconduct,” and the lack of necessity to balance the misconduct against society’s interest in extraditing an alleged terrorist.

The most dramatic part of Justice Sharpe’s ruling was as follows:

…the rule of law must prevail even in the face of the dreadful threat of terrorism.  We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values.  For if we do not, in the longer term, the enemies of democracy and the rule of law will have succeeded.  They will have demonstrated that our faith in our legal order is unable to withstand their threats.

Above All: The Rule of Law
The Khadr case is a clear illustration of the post-9/11 legal complications arising from the tension between protecting individual rights and national security interests. This decision, although likely to be appealed to the SCC, was the right decision.

Both Justice Speyer and Justice Sharpe declared the rule of law must prevail in the face of gross state misconduct. In this case, a Canadian citizen possibly committed terrorist attacks abroad, who was subsequently  illegally detained and interrogated by foreign states.

The Executive has the discretion to develop and enforce national security. However, the judiciary has the duty to protect the “court’s integrity and the public’s confidence in the legal process in the face of improper state conduct.” Justice Speyer and Justice Sharpe appear to have made a sound decision. However, their decision is depends upon the Attorney General following through and prosecuting Khadr in Canada rather than appealing this case to the Supreme Court.

It will be a challenge for the Attorney General to argue for the extradition of Khadr to the same state which violated his human rights in a “shocking and unjustifiable” manner. Nevertheless, the SCC cannot dictate to the Attorney General who it must prosecute, especially on such a sensitive national security issue as this.

A stay of proceedings appears to have been the right remedy in this case. It nevertheless remains that Khadr must answer to the serious allegations against him. For these reasons the Attorney General would be better off prosecuting Khadr in Canadian courts where, at the very least, the rule of law remains a guiding principle even in the post-9/11 world.