The Federal Court of Canada issued a decision on 23 April 2009 ordering the Canadian Government to request from the United States the return of Omar Khadr to Canada (Khadr v. The Prime Minister of Canada, 2009 FC 405). This is quite a bold decision by Mr Justice O’Reilly, in that it recognizes for the first time a duty on the part of Canada to intervene to protect its citizens abroad under certain circumstances. It remains to be seen whether the decision will be appealed (every indication is that it will be) and, in the affirmative, whether it will stand.
Since his involvement in hostilities against US troops in Afghanistan in 2002, at the age of fifteen, Khadr has been detained by the United States, first at the US military base in Bagram, Afghanistan, and then in Guantanamo Bay, Cuba. He is accused of war crimes, supporting terrorism, and spying, although the war crimes charge seems to be the only one being actively pursued by US authorities.
There are two aspects to the decision, which are quite distinct but which become fused to a certain extent in the judgment of the Federal Court. The first touches on the legality under international law of the treatment given to Khadr in Bargram and then Guantanamo Bay. The Federal Court decision follows a string of decisions by the highest courts in Canada, the United States, the UK and other jurisdictions, concluding that the way in which Khadr and his fellow detainees were treated violates binding treaties and customary international law, both under international humanitarian law and international human rights. In Khadr’s case, the fact that he was a minor when first detained adds a further layer of illegality to the treatment he received by the authorities.
Who these authorities are is the second aspect of this decision. Clearly, the capture and detention of Omar Khadr are actions of the United States. In order for the Federal Court to issue an order against the Canadian Government in this respect, some link must be found between Khadr’s detention and Canada. Upon Khadr’s arrest in 2002, Canadian consular officials sought access to him, which was refused by the United States. Canadian officials protested Khadr’s transfer to Guantanamo Bay as inappropriate for a minor, and sought assurances that the death penalty would not be imposed on him. Such steps are standard measure suggesting that Canada was attentive to Khadr’s fate and unable to control his detention in any meaningful sense. Critically, however, CSIS and DFAIT agents interrogated Khadr in Guantanamo in 2003 and 2004 for the purpose of gathering intelligence. On at least one occasion in 2004, Khadr was subjected to a ‘frequent flyer’ program by US authorities, involving the intentional deprivation of sleep for several weeks in order to ‘soften him up’. The Federal Court, echoing other court decisions to the same effect, found that such a treatment violates not only international law but also the Canadian Charter of Rights, which becomes applicable due to the fact that Canadian agents were aware of the treatment given to Khadr when they questioned him. As a result, earlier litigation by Khadr before Canadian courts led to several orders prohibiting further Canadian involvement in his interrogation as well as the disclosure of evidenced obtained by Canada in relation to such interrogations.
In this case, rather boldly, the Federal Court goes much further than these earlier court orders and finds that Canada’s decision not to seek Khadr’s repatriation in light of Charter violations is itself a breach of the principles of fundamental justice guaranteed in section 7 of the Charter. What is surprising here is that the relevant Charter violation remains the same as in earlier cases dealing with Khadr, necessarily connected to Canadian involvement in Guantanamo Bay. The Federal Court appears to find in Canada’s decision not to seek Khadr’s return an endorsement of his detention in general, including all the violations of international law at the hands of US authorities. In that light, the appropriate remedy is an order directing the Canadian Government to request Khadr’s return. This is unusual because as a rule Canada is under no obligation to intervene abroad to protect its citizens maltreated by another state. The decision whether to do so or not is a royal prerogative, a discretionary power with which courts will normally not interfere unless a Charter right has been breached. This is why it is central to the judgment to find that the decision not to seek Khadr’s return was, in itself, a breach of constitutional guarantees.
In the end, the order issued by the Federal Court may be prove a limited victory. Even if the decision stands and courts are found to have the power to order the Canadian Government to seek Khadr’s return, such a request will be received by the United States as meaningful only inasmuch as it is infused with political will. The real impact of the decision, regardless of its ultimate legal validity, may well be that it stands as one more unambiguous statement that Canada’s callous indifference to repeated violations of the fundamental rights of a Canadian child cannot be tolerated.