Faisal Kutty

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” (s. 7 of the Charter of Rights and Freedoms)

“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” (S. 24(1) of the Charter of Rights and Freedoms)

As prominent thinkers have suggested in the past, the ultimate strength of a constitution is determined not by its application in times of order, but rather by its consistent and constant application in times of chaos, crisis or uncertainty.

The Chief Justice of the Supreme Court of Canada (SCC) appeared to agree a few months ago. Speaking at a public event, Chief Justice Beverley McLachlin, spoke about the serious threats to justice and the rule of law in overreacting to terrorism. In fact, she noted that the fear “may lead governments to curtail civil liberties and seek recourse in tactics they might otherwise deplore…that may not, in the clearer light of retrospect, be necessary or defensible.”

Given her forthrightness and appreciation of this issue, it was disappointing, to say the least, to read the January 29th unanimous decision issued by her court in Canada (Prime Minister) v. Khadr (2010). It was a sad day indeed for justice, democratic accountability, the rule of law and I would venture to add, the institutional reputation of the SCC. The court overturned a fearless decision of the Federal Court, affirmed by the Federal Court of Appeal, which ordered the Harper government to repatriate Canadian citizen Omar Khadr from Guantanamo Bay.

This article will deconstruct the decision and argue that the SCC abdicated its responsibility in the rule of law project.

Omar and his family will certainly not win any popularity contests in Canada, and rightfully so. Omar’s father, Ahmed Said Khadr, is alleged by American and Canadian intelligence to have been a senior official in Al-Qaeda. Omar and his two brothers, who were taken there at a young age, are alleged to have attended terrorist training camps in Afghanistan after the tragic events of 9/11. And his mother and sister did not help his plight by making outrageous statements about 9/11 and Canada on national television. In fact, the “Khadr effect” is acknowledged as being the main reason for there not being any real public outcry against the government’s continued and blatant abuse of its own citizen. It is a hard case and some would say a very bad case to test the limits of our legal system. But it is exactly such cases that help in assessing our commitment to the core democratic traditions, values and the rule of law. Indeed, it is such difficult and uncomfortable cases that help to determine if our system can be counted on to pull through to uphold justice in tough times.

Khadr, the only western citizen still held in Guantanamo Bay, was 15 when taken prisoner on July 27, 2002 by U.S. forces in Afghanistan. He was alleged to have thrown a grenade that killed an American soldier in the battle in which he was captured. He was held and questioned in Bagram and about three months later, he was transferred to Guantanamo Bay. He was placed in adult detention facilities and now faces a trial before a U.S. military commission that has been described as “an illegal” process by numerous international jurists and civil rights groups. To make matters even stickier, over the past few years classified and leaked documents have raised serious questions and doubts about the war crimes charges brought against him. In fact, last fall the Toronto Star published portions of these documents which indicated that “Khadr was buried face down under rubble, blinded by shrapnel and crippled, at the time the Pentagon alleges he threw a grenade that fatally wounded a U.S. soldier.”

To date Khadr has initiated four cases in the Federal Court seeking various reliefs ranging from consular visits, to disclosure to repatriation to damages. In each of these cases, the Federal Court has stepped up to the plate and discharged its role in the rule of law project honourably. Regrettably in the two cases that did find its way into the SCC, the court simply pushed back in favour of the executive. In the first Khadr case (2008) to land in the Supreme Court, the court affirmed the Federal Court ruling that held that Khadr was entitled to disclosure but then limited the scope of the disclosure ordered. And now with Khadr (2010), the court again agreed with the lower courts on finding a breach but then rolled back a decision and took away a remedy from Khadr.

“The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects,” the justices wrote.

The court then promptly sent the wrong message by overturning the portion of the decisions from the Federal Courts ordering the government to repatriate him. Instead the Supreme Court awarded Khadr his legal costs and issued him a declaration “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 rights to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice.”

I have no doubt that the declaration would look quite impressive on Khadr’s Guantanamo Bay cell wall if his captors would allow him to hang it there, but other than that it will not do him much good. At least this is the evidence so far.

In overturning the Federal Court order to repatriate, the Supreme Court noted that such a remedy “could potentially vindicate” his Charter rights. Nevertheless, it held that “Our first concern is that the remedy ordered [by the lower court] gives too little weight to the constitutional responsibility of the [Harper government] to make decisions on matters of foreign affairs in the context of complex and ever changing circumstances, taking into account Canada’s broader national interests.”

The court essentially shirked away from its duty by attempting to craft a win-win decision, when in reality it was a real win for the Harper government and a Pyrrhic victory for Khadr and the rule of law. Indeed, there are a number of serious issues with this decision that will resonate beyond the narrow confines of this case.

As numerous commentators have convincingly argued, the rule of law project can only work if all three branches of the democratic machinery effectively and unequivocally carry out their respective roles and duties. In this case, the court was given a great opportunity to demonstrate its ability to uphold the rule of law and insist on democratic accountability. Yet despite the fact that even in its own opinion a citizen’s rights were clearly breached and continue to be to this day contrary to the principles of fundamental justice, the court quashed the only real or effective remedy. Though it may be trite, it seems lost on the justices that a right without a remedy may not be worthy of calling a right at all.

Contrast this SCC decision with last week’s decision in the Binyamin Mohamed case in the UK. Three of the country’s most senior jurists ordered the British government to publicly disclose intelligence revealing that British agents knew about the torture of a UK resident (note here that he was not even a citizen) by American authorities in Guantanamo Bay. The justices rejected government arguments that disclosure of this information would threaten relations between the two countries and endanger Britain’s national security. The panel noted that the case raised issues of “fundamental importance” and of “democratic accountability and ultimately the rule of law itself” and shattered the convention that the judiciary should not question claims by the executive relating to national security.

Of course, it would be the height of naivety to argue that courts should never defer to the executive branch or to practical realities. But it is equally naïve to think that the judiciary should never be able to keep the executive in check. Given the particularities of this case, the SCC was within its constitutional mandate to order a remedy. Indeed, all three branches have a role in preserving the inner morality of our constitutional order. The clear inability and unwillingness on the part of the legislature and executive branches to act in this case – during almost eight years of detention — left it up to the judiciary to pick up the slack. The Federal Courts appreciated this and courageously took up the challenge only to be slapped down by the highest court of the land.

The SCC decision leaves the false impression that Justice James W. O’Reilly, the judge of first instance, did not seriously consider the issue of crown prerogative powers. Though not in so many words, the SCC essentially implied that the Federal Court judge abused his discretion in awarding the remedy he did. On the contrary, Justice O’Reilly painstakingly addressed this issue and made it clear that courts should not normally meddle in foreign affairs. He then went on to carve out this narrow exception for a number of well thought out and articulated reasons in this particularized context. These included, inter alia: the violation of Khadr’s constitutional and international human rights; the US Supreme Court finding that the process was unconstitutional; his juvenile status; the Canadian government’s participation in interrogating him and the ongoing breach due to the passing of information to the US from these interrogations; the government’s own admission that there would be insufficient evidence to try him in Canada; the dearth of efforts on his behalf by the government; the fact that other nations had intervened for their citizens (some cases even on behalf of residents); the lack of any success with any of the efforts made on his behalf; and the apparent shift in US policies.

The decision is so well reasoned and written that a three judge panel of the Court of Appeal concluded that the remedy was properly within the discretion of the judge and upheld the order. Both courts did not discount the prerogative powers but merely took on their roles as guardian of the constitution and the rule of law and insisted on democratic accountability. In contrast, the Supreme Court narrowly focused on the Crown’s prerogative powers in the areas of foreign relations and wrote: “It would not be appropriate for the court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.”

Both Justice O’Reilly and the Court of Appeal reasonably believed that the only way for them to discharge their duty was to hold the government accountable. How else would we check the executive to ensure that it did not hide behind its prerogative powers in abusing and trampling on the rights of its citizens?

Part 2 – Next Issue