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Supreme Court: Government doesn't have to bring Khadr home

The Supreme Court today handed down its decision on the Omar Khadr case, saying Khadr's rights were violated but the government doesn't have to ask for his return to Canada.

In its decision, published on its website, the Court summed up Khadr's argument:

Mr. Khadr argues that the government has breached his rights under s. 7 of the Charter, and that the appropriate remedy for this breach is an order that the government request the United States to return him to Canada.

Mr. Khadr does not suggest that the government is obliged to request the repatriation of all Canadian citizens held abroad in suspect circumstances. Rather, his contention is that the conduct of the government of Canada in connection with his detention by the U.S. military in Guantanamo Bay, and in particular Canada’s collaboration with the U.S. government in 2003 and 2004, violated his rights under the Charter, and requires as a remedy that the government now request his return to Canada.

Having explained that Khadr's treatment would have to meet the definition of a violation of "fundamental justice," the Court went on to say:

We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v. Rumsfeld). ...

This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

We conclude that Mr. Khadr has established that Canada violated his rights under s. 7 of the Charter.

However, the Court also said that ordering the government to ask for Khadr's repatriation would not be a certain redress for the violation of Khadr's rights, and that the Court cannot tell the government how to conduct Canadian foreign policy. The Court concluded:

The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.

The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. Costs are awarded to Mr. Khadr.

Crawford Kilian is a contributing editor of The Tyee.

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