Canada (Prime Minister) v. Khadr

Canada (Prime Minister) v. Khadr
Court (s) Database
Federal Court of Appeal Decisions
Date
2009-08-14
Neutral citation
2009 FCA 246
File numbers
A-208-09
Notes
Reported Decision
Decision Content
Federal Court of Appeal
CANADA
Cour d'appel fédérale
Date: 20090814
Docket: A-208-09
Citation: 2009 FCA 246
CORAM: NADON J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
THE PRIME MINISTER OF CANADA,
THE MINISTER OF FOREIGN AFFAIRS,
THE DIRECTOR OF THE CANADIAN
SECURITY INTELLIGENCE SERVICE,
AND THE COMMISSIONER OF THE
ROYAL CANADIAN MOUNTED POLICE
Appellants
and
OMAR AHMED KHADR
Respondent
Heard at Ottawa, Ontario, on June 23, 2009.
Judgment delivered at Ottawa, Ontario, on August 14, 2009.
REASONS FOR JUDGMENT BY: EVANS and SHARLOW JJ.A.
DISSENTING REASONS BY: NADON J.A.
Federal Court of Appeal
CANADA
Cour d'appel fédérale
Date: 20090814
Docket: A-208-09
Citation: 2009 FCA 246
CORAM: NADON J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
THE PRIME MINISTER OF CANADA,
THE MINISTER OF FOREIGN AFFAIRS,
THE DIRECTOR OF THE CANADIAN
SECURITY INTELLIGENCE SERVICE,
AND THE COMMISSIONER OF THE
ROYAL CANADIAN MOUNTED POLICE
Appellants
and
OMAR AHMED KHADR
Respondent
REASONS FOR JUDGMENT
EVANS and SHARLOW JJ.A.
[1] Since 2002, the respondent Omar Ahmed Khadr has been imprisoned by the United States at Guantánamo Bay pending his trial before a United States military commission or a United States federal court. In Khadr v. Canada (Prime Minister), 2009 FC 405, Justice O’Reilly of the Federal Court found that Canadian officials breached Mr. Khadr’s rights under section 7 of the Canadian Charter of Rights and Freedoms, when they interviewed Mr. Khadr at the Guantánamo Bay prison and shared the resulting information with the United States. As a remedy pursuant to subsection 24(1) of the Charter, Justice O’Reilly ordered the Crown to request the United States to return Mr. Khadr to Canada as soon as practicable. The Crown has appealed. At the root of the Crown’s appeal is its argument that the Crown should have the unfettered discretion to decide whether and when to request the return of a Canadian citizen detained in a foreign country, a matter within its exclusive authority to conduct foreign affairs. For the reasons that follow, we have concluded that the Crown’s appeal should be dismissed with costs.
Preliminary Issues
Appeal books
[2] In accordance with the usual practice of this Court, the parties agreed to the contents of an appeal book and the Crown, as appellant, prepared and filed appeal books that conformed to that agreement. Later, counsel for Mr. Khadr noticed that the agreement excluded a number of documents that were exhibits to the affidavit of Lieutenant Commander William C. Kuebler sworn on August 4, 2008, as well as the affidavit of April Bedard sworn on August 8, 2008. Both of those affidavits, with all of their exhibits, were filed in the Federal Court on behalf of Mr. Khadr and were before Justice O’Reilly when he rendered the judgment under appeal.
[3] Counsel for Mr. Khadr sought the consent of the Crown to file a supplementary appeal book containing the excluded documents. The Crown agreed to the filing of a supplementary appeal book, but objected to the inclusion of some of the exhibits to the affidavits.
[4] With leave of this Court, counsel for Mr. Khadr prepared and filed two volumes of a supplementary appeal book, so that the merits of the Crown’s objection could be determined by the panel hearing the appeal. Volume I contains the previously excluded documents that the Crown agrees are properly part of the appeal book. Volume II contains the previously excluded documents that the Crown argues should not be part of the appeal book.
[5] The Crown objects to the inclusion of the documents in Volume II of the supplementary appeal book because they were not footnoted in the memorandum of fact and law submitted on behalf of Mr. Khadr at the hearing in the Federal Court. This objection is not well founded. The documents in Volume II were before Justice O’Reilly. Even if counsel for Mr. Khadr did not refer to them in his argument in the Federal Court, it is appropriate that they be available to this Court for reference if the need arises, either in the course of the hearing or during the Court’s deliberations. For that reason, both volumes of the supplementary appeal book have been accepted as part of the appeal book.
Evidence ruled inadmissible
[6] The appeal book contains the supplemental affidavit of April Bedard sworn on October 22, 2008. Appended as an exhibit to that affidavit is a DVD copy of a documentary entitled “USA versus Omar Khadr”. Justice O’Reilly concluded at paragraph 90 of his reasons that the recording was not relevant to the proceeding, and as a result he did not admit it as evidence. That ruling has not been challenged in this appeal. Therefore, although the appeal book includes the recording, no reference has been made to it.
Background
[7] Mr. Khadr is a citizen of Canada. He was born in Canada in 1986. He moved to Pakistan with his family in 1990. In 1995 his father was arrested in Pakistan for alleged involvement in the bombing of the Egyptian embassy in Islamabad, after which the rest of the family returned to Canada. They moved back to Pakistan in 1996 when Mr. Khadr’s father was released. In 2001 the family returned to Canada for a few months, and then moved to Afghanistan.
[8] After the attacks on New York and Washington D.C. on September 11, 2001, Mr. Khadr’s father and older brothers attended training camps associated with Al-Qaeda. Counsel for Mr. Khadr says that, contrary to a statement in paragraph 5 of Justice O’Reilly’s reasons, there is no evidence that Mr. Khadr attended those camps. Counsel for the Crown has not suggested that the record contains evidence that Mr. Khadr attended an Al-Qaeda training camp.
[9] Mr. Khadr was taken into custody by the United States in July of 2002 following a firefight in Afghanistan. The United States alleges that during that fight, Mr. Khadr threw a grenade that killed a United States soldier. Mr. Khadr was detained by the United States at Bagram Airbase in Afghanistan, where he received medical treatment for injuries he suffered in the fight. At that time Mr. Khadr was fifteen years of age.
[10] In diplomatic notes dated August 30 and September 13, 2002, Canada asked the United States for consular access to Mr. Khadr at Bagram. That request was refused. The United States has continued to deny Canada consular access to Mr. Khadr with the exception of “welfare visits” beginning in 2005, which are described later in these reasons.
[11] The August 30, 2002 diplomatic note mentioned that Mr. Khadr was a minor, and that a request had been made to United States intelligence contacts that Mr. Khadr not be transferred to the Guantánamo Bay prison. The September 13, 2002 diplomatic note also urged the United States to consider that Mr. Khadr was a minor. It pointed out that the laws of Canada and the United States require special treatment for minors with respect to legal and judicial processes, and that because Mr. Khadr was a minor, it would not be appropriate for him to be detained at the prison at Guantánamo Bay.
[12] Canada continued its diplomatic efforts on behalf of Mr. Khadr during 2003. The documentary evidence of those efforts may be summarized as follows:
Diplomatic note
July 9, 2003
Request for special consideration of Mr. Khadr’s status as a minor and an expression of concern that he was not being treated like other juvenile detainees.
Minister’s letter
October 6, 2003
Expression of concern that Mr. Khadr could face the death penalty, indicating that Canada would seek assurances that the death penalty would not be imposed.
Diplomatic note
November 11, 2003
Request that Canadian detainees at the Guantánamo Bay prison be informed prior to their release of their right to return to Canada if they wish, and that they be given the opportunity to exercise that right.
Diplomatic note
November 12, 2003
Request for assurances that Mr. Khadr was receiving medical treatment for his injuries.
[13] The record contains no formal responses to any of these communications. There is no record of any assurance by the United States that the death penalty would not be sought or imposed, that Mr. Khadr would be informed of his right to return to Canada if released, or that he would be permitted to exercise that right.
[14] Despite Canada’s diplomatic efforts on Mr. Khadr’s behalf, the United States sent him to the prison at the United States Naval Base in Guantánamo Bay in October of 2002, when he was sixteen years of age. There he remains to this day. Despite his age, Mr. Khadr has been detained either alone or with adult detainees, and never in the part of the prison that at one time was set apart for minors. As of the end of March, 2004, Mr. Khadr had not been permitted to contact his family. It is not clear whether family contact was permitted later, and if so when. Mr. Khadr was given no access to legal counsel until November of 2004.
[15] Mr. Khadr is awaiting trial before a United States military commission or a United States federal court on a number of serious charges, including murder. The trial has been delayed. Counsel for Mr. Khadr does not know whether or when the trial will continue.
[16] In February and September of 2003, and on March 30, 2004, officials from the Canadian Security Intelligence Service (CSIS) and the Department of Foreign Affairs and International Trade (DFAIT) interviewed Mr. Khadr at the prison at Guantánamo Bay. All of the interviews were monitored and recorded by United States officials. As noted by Justice O’Reilly at paragraph 17 of his reasons, at the time of the last of these interviews on March 30, 2004, Mr. Khadr was “a 17-year-old minor, who was being detained without legal representation, with no access to his family, and with no Canadian consular assistance”.
[17] The interviews were held for the purpose of gathering intelligence and not for the purpose of gathering evidence to assist the United States in its prosecution of Mr. Khadr (see Khadr v. Canada (F.C.), 2005 FC 1076, [2006] 2 F.C.R. 505 at paragraphs 23 and 24, and Khadr v. Canada (Attorney General), 2008 FC 807 at paragraph 73). However, the fruits of the interviews were shared with the United States officials, and no request was made to limit their use of that information.
[18] The record contains reports of the interviews prepared by Canadian officials. Except for the report of the interview of March 30, 2004, the reports are heavily redacted. It is not possible to determine whether any of the information that Canadian officials obtained from Mr. Khadr would be of assistance to the United States prosecution.
[19] In Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 (Khadr 2008), the Supreme Court of Canada made the following comments about the legal regime governing Mr. Khadr’s detention and trial, between 2002 and 2004:
[21] […]The United States Supreme Court has considered the legality of the conditions under which the Guantanamo detainees were detained and liable to prosecution during the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities, between 2002 and 2004. With the benefit of a full factual record, the United States Supreme Court held that the detainees had illegally been denied access to habeas corpus and that the procedures under which they were to be prosecuted violated the Geneva Conventions. Those holdings are based on principles consistent with the Charter and Canada’s international law obligations. In the present appeal, this is sufficient to establish violations of these international law obligations, to which Canada subscribes.
[22] In Rasul v. Bush, 542 U.S. 466 (2004), the United States Supreme Court held that detainees at Guantanamo Bay who, like Mr. Khadr, were not U.S. citizens, could challenge the legality of their detention by way of the statutory right of habeas corpus provided for in 28 U.S.C. § 2241. This holding necessarily implies that the order under which the detainees had previously been denied the right to challenge their detention was illegal. In his concurring reasons, Kennedy J. noted that “the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status” (pp. 487-88). Mr. Khadr was detained at Guantanamo Bay during the time covered by the Rasul decision, and Canadian officials interviewed him and passed on information to U.S. authorities during that time.
[23] At the time he was interviewed by CSIS officials, Mr. Khadr also faced the possibility of trial by military commission pursuant to Military Commission Order No. 1. In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the United States Supreme Court considered the legality of this Order. The court held that by significantly departing from established military justice procedure without a showing of military exigency, the procedural rules for military commissions violated both the Uniform Code of Military Justice (10 U.S.C. § 836) and Common Article 3 of the Geneva Conventions. Different members of the majority of the United States Supreme Court focused on different deviations from the Geneva Conventions and the Uniform Code of Military Justice. But the majority was unanimous in holding that, in the circumstances, the deviations were sufficiently significant to deprive the military commissions of the status of “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”, as required by Common Article 3 of the Geneva Conventions.
[24] The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.
[20] In addition to these issues about the lawfulness of the regime governing Mr. Khadr’s detention and trial, Mr. Khadr alleges that he has been subjected to various kinds of torture during his detention. The affidavit of his United States counsel, LCDR Kuebler, provides support for those allegations. Justice O’Reilly did not consider it necessary to determine whether all of Mr. Khadr’s allegations of torture were true. However, he noted that it was uncontested that on March 30, 2004, when Canadian officials interviewed Mr. Khadr at the Guantánamo Bay prison, they were aware that he had been subjected to a particular form of sleep-deprivation known as the “frequent flyer program”. According to the report of that interview prepared by a DFAIT official on April 24, 2004, the purpose of that particular form of mistreatment was to make Mr. Khadr “more amenable and willing to talk”. That report describes the mistreatment of Mr. Khadr in the present tense, from which it is reasonable to infer that it began at some point before the March 30, 2004 interview and was continuing as of that date.
[21] Shortly before the March 30, 2004 interview, an action was commenced in the Federal Court on behalf of Mr. Khadr alleging a number of breaches of Mr. Khadr’s rights under the Charter. In that action, which is pending, Mr. Khadr is seeking an award of damages and an injunction against further interrogation by Canadian agents. The Crown’s motion to strike the statement of claim was dismissed by Justice von Finckenstein (Khadr v. Canada (Attorney General), 2004 FC 1394).
[22] On August 8, 2005, Justice von Finckenstein granted the motion of Mr. Khadr for an interlocutory injunction against further interviews with Mr. Khadr until the conclusion of the trial of his action for damages (Khadr v. Canada (F.C.), 2005 FC 1076, [2006] 2 F.C.R. 505). An exception was made for consular visits. By a further order dated October 17, 2005, that exception was clarified to permit “welfare visits”, defined as meetings between Mr. Khadr and officials of DFAIT who are not involved in security matters as part of their regular duties, for the purpose of observing Mr. Khadr, listening to his impressions about his confinement and treatment, gaining an impression of his apparent health status, and inquiring about his ability to carry out religious observances. That order required that a report of each welfare visit be provided to Mr. Khadr’s counsel within 30 days of the visit. Welfare visits occurred in March of 2005, December of 2005, July of 2006, June, August and November of 2007, and monthly from February to June of 2008.
[23] On March 31, 2004, an application for judicial review was commenced in the Federal Court on behalf of Mr. Khadr seeking, among other things, an order requiring DFAIT to provide consular services to Mr. Khadr. The Crown moved to strike the application. Justice von Finckenstein struck the portion of the application that duplicated the relief sought in Mr. Khadr’s action, but permitted the remainder of the application to continue because he concluded that Mr. Khadr had an arguable case (Khadr v. Canada (Minister of Foreign Affairs), 2004 FC 1145). The Crown appealed that decision but discontinued the appeal in March of 2005. Mr. Khadr discontinued his application in February of 2009.
[24] Between June of 2004 and April of 2006, Canadian officials sent further diplomatic notes to the United States. Those diplomatic notes may be summarized as follows:
Diplomatic note
June 7, 2004
General request for assurances that the treatment of detainees at the prison at Guantánamo Bay is in accordance with international humanitarian law and human rights law.
Diplomatic note
July 9, 2004
Request for assurances that Mr. Khadr would be provided in the near future with a judicial review of his detention by a regularly constituted court affording all judicial guarantees in accordance with due process and international law, and repeating the request that Mr. Khadr be provided with the option of returning to Canada if he is released.
Diplomatic note
January 13, 2005
Repetition of the request that Canadian officials be permitted access to Mr. Khadr to confirm his well-being, that he be provided with an independent medical assessment, and that his most recent medical reports be released to his family.
Expression of concern that Mr. Khadr was not getting adequate legal representation because the procedures governing access and information sharing prevented his Canadian counsel from getting access to him, and from being fully briefed by his United States counsel.
Diplomatic note
February 11, 2005
Expression of concern about Mr. Khadr’s allegations of mistreatment, and a request that Canadian officials be given access to Mr. Khadr to verify his welfare, and that Mr. Khadr be given an independent medical assessment, to be shared with Canada and Mr. Khadr’s legal counsel.
Request for formal assurances that the death penalty will not be applied to Mr. Khadr, and reminding the United States that he was only fifteen years of age when first detained.
Diplomatic note
July 12, 2005
Request for medical report and for permission for a medical visit by a Canadian physician, and for permission for him to speak to his family by telephone.
Diplomatic note
November 10, 2005
Acknowledgement of communication from United States authorities that the evidence currently available does not support the death penalty, noting that this stops short of the unequivocal assurances that Canada has repeatedly sought that, given Mr. Khadr’s status as a minor at the time of the alleged offence, the prosecution will not seek the death penalty and Mr. Khadr will not be subject to a capital sentence by the Military Commission.
Further request that Mr. Khadr be given the opportunity to respond in full to the allegations against him with a process that safeguards the right of due process to which he is entitled, including independent judicial oversight of the Military Commission, recognition of his status as a minor at the time of the alleged offense, choice of counsel, and a clear distinction between the prosecutorial and judicial roles.
Request for immediate welfare access to Mr. Khadr, consistent with Article 36 of the Vienna Convention on Consular Relations.
Statement of Canada’s intention to attend as far as possible the proceedings against Mr. Khadr as observers, and request for permission that other independent observers be permitted to attend, and that Canada receive timely notice of hearings.
Diplomatic note
April 17, 2006
Further requests for an independent medical assessment, and for assurances that Mr. Khadr will be permitted access to counsel of his choice, including Canadian counsel, without delay.
[25] On January 3, 2006, Mr. Khadr commenced an application in the Federal Court for judicial review of the decision of the Minister of Justice not to respond to Mr. Khadr’s request for disclosure of all the information in the Crown’s possession that might be relevant to the United States charges pending against him. This Court ordered disclosure on the basis of the standard in R. v. Stinchcombe, [1991] 3 S.C.R. 326, subject to a review of the documents by a Federal Court judge pursuant to section 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (Khadr v. Canada (Minister of Justice) (F.C.A.), 2007 FCA 182, [2008] 1 F.C.R. 270). The Crown appealed to the Supreme Court of Canada, which allowed the appeal in part (Khadr 2008, cited above). The Court agreed that Mr. Khadr was entitled to disclosure, but of a narrower scope than ordered by this Court. Disclosure was ordered of “(i) records of the interviews conducted by Canadian officials with Mr. Khadr, or (ii) records of information given to U.S. authorities as a direct consequence of Canada’s having interviewed Mr. Khadr” (Khadr 2008 at paragraph 40).
[26] The general principle established by Khadr 2008 is that the Charter applies to constrain the conduct of Canadian authorities when they participate in a foreign legal process that is contrary to Canada’s international human rights obligations (see also R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292). In addition, a number of specific determinations made in Khadr 2008 are applicable to this case. Those determinations are discussed later in these reasons.
[27] In Khadr 2008, the Supreme Court of Canada expressly declined to determine whether Canadian officials breached Mr. Khadr’s rights under section 7 of the Charter when they interviewed Mr. Khadr and gave the fruits of the interviews to United States authorities, because they did not consider it necessary to do so. Khadr 2008 dealt only with an application for disclosure of information.
[28] On June 25, 2008, Justice Mosley conducted a review of the documents pursuant to section 38 of the Canada Evidence Act (Khadr v. Canada (Attorney General), 2008 FC 807). His review led him to make the following comments that are pertinent to this appeal:
[72] As is now well known, in February 2003 three CSIS officials and one officer of the DFAIT Foreign Intelligence Division were authorized by the US Department of Defence to visit Guantánamo Bay. They interviewed Mr. Khadr over four days; February 13-16, 2003. CSIS and DFAIT officials subsequently returned to Guantánamo to interview the applicant in September 2003. A DFAIT official went again in March 2004. The purpose of these visits was primarily to collect intelligence information. The interview notes and reports prepared by the Canadian officials were shared with the RCMP. US agencies were subsequently provided with edited versions of those reports.
[73] Questions have arisen in these proceedings as to whether the visits had a law enforcement aspect, about which there is some dispute between the Attorney General and Mr. Khadr’s counsel. The former Deputy Director of Operations for CSIS was cross-examined on the point in the course of earlier proceedings. From what I have seen, it appears clear that the interviews were not conducted for the purpose of assisting the US authorities with their case against Mr. Khadr or for building a case against him in Canada. I note that no law enforcement personnel were authorized to attend at that time. The information collected during the interviews was provided to the RCMP for intelligence purposes. However, it is equally clear that the US authorities were interested in having Canada consider whether Khadr could be prosecuted here and provided details about the evidence against him to Canadian officials for that purpose. Nonetheless, the interviews by Canadian officials were conducted for intelligence collection and not evidence gathering.
[74] The interviews were monitored by US officials on each occasion the Canadian officials visited Guantánamo. An audio and video record was made of the February 2003 interviews. It is not clear in which format they were originally recorded but they are described as videotapes. CSIS was subsequently provided with copies of the February videotapes. Copies were filed with the Court as exhibits in DVD format. The evidence before me was that Canadian officials do not have copies of any recordings that may have been made of the September 2003 or March 2004 interviews.
[…]
[85] The report of the March, 2004 visit to Guantánamo prepared by the DFAIT official who went on that occasion is included in the collection as document 168. The version served on the applicant is almost entirely unredacted. The respondent seeks to protect a paragraph on page 2 of the report as it contains information provided in confidence by a member of the US military regarding steps taken by the Guantánamo authorities to prepare the applicant for the Canadian visit. There is also a side comment by the DFAIT official that the Attorney General wishes to protect as potentially harmful to Canada-US relations.
[86] As indicated in a recently published report of the Office of the Inspector General of the U.S. Department of Justice, during the period in question detainees at Guantánamo were subjected to a number of harsh interrogation techniques that would not have been permissible under American law for law enforcement purposes and have since been prohibited for use by the military.
[87] Canada’s international human rights obligations include the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36, (“UNCAT”), to which the US is also a signatory. The application of this Convention to specific types of interrogation practices employed by military forces against detainees was discussed by the Supreme Court of Israel in Public Committee against Torture in Israel v. Israel 38 I.L.M. 1471 (1999). The practice of using these techniques to lessen resistance to interrogation was found to constitute cruel and inhuman treatment within the meaning of the Convention.
[88] The practice described to the Canadian official in March 2004 was, in my view, a breach of international human rights law respecting the treatment of detainees under UNCAT and the 1949 Geneva Conventions. Canada became implicated in the violation when the DFAIT official was provided with the redacted information and chose to proceed with the interview.
[89] Canada cannot now object to the disclosure of this information. The information is relevant to the applicant’s complaints of mistreatment while in detention. While it may cause some harm to Canada-US relations, that effect will be minimized by the fact that the use of such interrogation techniques by the US military at Guantánamo is now a matter of public record and debate. In any event, I am satisfied that the public interest in disclosure of this information outweighs the public interest in non-disclosure.
[29] On May 13, 2009, Justice Mosley granted Mr. Khadr leave to amend the statement of claim in his action for damages to seek relief for a breach of section 12 of the Charter, based on the evidence that when he was interviewed by Canadian officials, they were aware that he had been subjected to sleep deprivation in preparation for the interview (Khadr v. Canada, 2009 FC 497 at paragraph 14).
[30] The laws of the United States governing the detention and trial of Mr. Khadr have changed since 2004 because of the decisions of the United States Supreme Court in Rasul v. Bush, 542 U.S. 466 (2004) and Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In response to those decisions, the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) was enacted. It appears that under the current legal regime, Mr. Khadr has certain legal rights initially denied to him, including the right to bring an application for habeas corpus in the United States federal courts. Such an application was commenced on Mr. Khadr’s behalf, but the proceedings have been stayed.
[31] It is not clear whether evidence of statements made by Mr. Khadr as a result of his interrogation by United States officials and others would be admissible at his trial before a United States military commission. It would appear that a military judge may admit a statement where the degree of coercion is disputed, but only if “the totality of the circumstances renders the statement reliable and possessing sufficient probative value” and “the interests of justice would best be served by admission of the statements into evidence” (§ 948r(c) of the Military Commissions Act of 2006, quoted at paragraph 48 of the affidavit of LCDR Kuebler).
The Current Litigation
[32] On August 8, 2008, Mr. Khadr filed in the Federal Court the application for judicial review that resulted in this appeal. He was seeking to challenge the Crown’s decision and policy not to request his repatriation. His application was granted by Justice O’Reilly, who found that Canadian officials had breached Mr. Khadr’s rights under section 7 of the Charter and ordered, as a remedy under subsection 24(1) of the Charter, that Canada request the United States to return Mr. Khadr to Canada as soon as practicable. The Crown has appealed that order.
Discussion
Preliminary points
[33] Two preliminary observations are required to put this appeal into context.
[34] First, the legal issues raised in this case are narrow and the facts are highly unusual. Justice O’Reilly did not decide that Canada is obliged to request the repatriation of any Canadian citizen detained abroad. He did not decide that Canada is obliged to request Mr. Khadr’s repatriation because the conditions of his imprisonment breach international human rights norms. He did not decide that Canada must provide a remedy for anything done by the United States. These issues do not arise in this case and it would not be appropriate for this Court to express any opinion on them.
[35] Justice O’Reilly focussed on specific conduct of Canadian officials, namely their interviewing Mr. Khadr at the prison at Guantánamo Bay for the purpose of obtaining information from him, and giving the fruits of those interviews to United States authorities without attempting to control their use of that information. That was potentially detrimental to Mr. Khadr’s liberty and personal security and, most importantly, it occurred at a time when Canadian officials knew that Mr. Khadr was an imprisoned minor without the benefit of consular assistance, legal counsel, or contact with his family, who had been subjected to abusive sleep deprivation techniques in order to induce him to talk. The issue before this Court is whether Justice O’Reilly erred in law in finding that conduct of Canadian officials, in those circumstances, to be a breach of Mr. Khadr’s rights under section 7 of the Charter.
[36] Second, it is not legally relevant that in both Khadr 2008 and in this case, the same conduct of Canadian officials was found to breach Mr. Khadr’s rights under section 7 of the Charter. That is because the two cases concern two different decisions of the Canadian government affecting Mr. Khadr or more precisely, separate legal challenges to two different government decisions. An application for judicial review normally may be made in respect of only one decision (see Federal Courts Rules, SOR/98-106, Rule 302).
[37] In Khadr 2008, Mr. Khadr was challenging the Crown’s decision not to disclose certain documents. The Supreme Court of Canada intervened in that decision because of the Crown’s breach of Mr. Khadr’s rights under section 7 of the Charter, and as a remedy for that breach ordered the disclosure of some of the documents that Mr. Khadr sought.
[38] The disclosure of those documents provided evidence upon which Mr. Khadr could challenge the Crown’s decision not to request Mr. Khadr’s repatriation. He did so in a new application for judicial review. Justice O’Reilly intervened in that decision essentially because of the same conduct of Canadian officials that was the subject of Khadr 2008, viewed in the light of the new evidence. The Crown does not allege in its Notice of Appeal that Khadr 2008 rendered the issues raised in this proceeding res judicata. Nor does the Crown challenge Justice O’Reilly’s rejection of the Crown’s argument that there was no “decision” that the Federal Court could review.
[39] The following analysis of the issues raised in this appeal begins with an outline of the constitutional and legal background, followed by a discussion of whether there was a breach of section 7 of the Charter, and if so whether the breach was justified, and if it was not whether the remedy ordered was appropriate.
Constitutional and legal background
[40] The decision to request the repatriation of a Canadian citizen detained in a foreign country is an aspect of the conduct of foreign affairs within the mandate of the Minister of Foreign Affairs and International Trade pursuant to section 10 of the Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22. That provision reads as follows:
10. (1) The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to the conduct of the external affairs of Canada, including international trade and commerce and international development.
10. (1) Les pouvoirs et fonctions du ministre s’étendent d’une façon générale à tous les domaines de compétence du Parlement non attribués de droit à d’autres ministères ou organismes fédéraux et liés à la conduite des affaires extérieures du Canada, notamment en matière de commerce international et de développement international.
(2) In exercising his powers and carrying out his duties and functions under this Act, the Minister shall
(a) conduct all diplomatic and consular relations on behalf of Canada;
(b) conduct all official communication between the Government of Canada and the government of any other country and between the Government of Canada and any international organization;
(c) conduct and manage international negotiations as they relate to Canada;
(d) coordinate Canada’s international economic relations;
(e) foster the expansion of Canada’s international trade and commerce;
(f) have the control and supervision of the Canadian International Development Agency;
(g) coordinate the direction given by the Government of Canada to the heads of Canada’s diplomatic and consular missions;
(h) have the management of Canada’s diplomatic and consular missions;
(i) administer the foreign service of Canada;
(j) foster the development of international law and its application in Canada’s external relations; and
(k) carry out such other duties and functions as are by law assigned to him.
(2) Dans le cadre des pouvoirs et fonctions que lui confère la présente loi, le ministre :
a) dirige les relations diplomatiques et consulaires du Canada;
b) est chargé des communications officielles entre le gouvernement du Canada, d’une part, et les gouvernements étrangers ou les organisations internationales, d’autre part;
c) mène les négociations internationales auxquelles le Canada participe;
d) coordonne les relations économiques internationales du Canada;
e) stimule le commerce international du Canada;
f) a la tutelle de l’Agence canadienne de développement international;
g) coordonne les orientations données par le gouvernement du Canada aux chefs des missions diplomatiques et consulaires du Canada;
h) assure la gestion des missions diplomatiques et consulaires du Canada;
i) assure la gestion du service extérieur;
j) encourage le développement du droit international et son application aux relations extérieures du Canada;
k) exerce tous autres pouvoirs et fonctions qui lui sont attribués de droit.
[41] There is no statute or regulation governing the exercise of the Minister’s mandate under section 10 of the Department of Foreign Affairs and International Trade Act, or the Minister’s authority to determine whether and when to request the repatriation of a Canadian citizen detained in a foreign country.
[42] Mr. Khadr’s application relies on the Charter which, as part of the Constitution of Canada, constrains the exercise of governmental authority against individuals. Mr. Khadr has alleged breaches of his rights under sections 7 and 12 of the Charter, which read as follows:
7. 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.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.
[…]
[…]
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
12. Chacun a droit à la protection contre tous traitements ou peines cruels et inusités.
[43] Mr. Khadr invoked the authority of the Federal Court to grant a remedy pursuant to subsection 24(1) of the Charter, which reads as follows:
24. (1) 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.
24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.
[44] As mentioned above, Justice O’Reilly found that Canadian officials interviewed Mr. Khadr at the prison at Guantánamo Bay for the purpose of obtaining information from him, and gave the fruits of those interviews to United States authorities without attempting to control their use of that information. At that time, the Canadian officials knew the circumstances of Mr. Khadr’s imprisonment. In particular, they knew that Mr. Khadr had been subjected to serious mistreatment in order to induce him to talk. Justice O’Reilly found that Mr. Khadr’s rights under the Charter had been breached. As a remedy for that breach, Justice O’Reilly ordered the Crown to request the United States to return Mr. Khadr to Canada as soon as practicable. Enforcement of the judgment has been stayed on consent pursuant to the order of Chief Justice Richard dated May 13, 2009.
[45] In this appeal, the Crown argues that Mr. Khadr’s Charter rights were not breached, and alternatively, if there was a breach, that it can be justified by section 1 of the Charter. The Crown also argues that, if there was an unjustified breach of Mr. Khadr’s Charter rights, the remedy granted is not appropriate.
Whether there was a breach of section 7 of the Charter
[46] It is necessary at this point to refer to the specific determinations from Khadr 2008 that must be applied in this case. Those determinations may be summarized as follows. When Canadian officials interviewed Mr.