On July 5th, 2010 the Federal Court ordered Canada to provide Omar Khadr with a list of potential remedies to cure or ameliorate the breach of his Charter rights. The rule of law requires a remedy for breach of Charter rights, and Mr. Justice Zinn found that Canada has not remedied the Charter breaches committed against Mr. Khadr.
The Court ordered Canada to continue advancing potential remedies until the breach is cured, ameliorated, or no more remedies are available. Justice Zinn retains jurisdiction to determine whether a suggested remedy is effective, and to impose a remedy if one has not been implemented by Canada within a reasonable time.
The CCLA agrees that Mr. Khadr is entitled to a remedy, and that he is entitled to procedural fairnessand natural justice in Canada’s consideration of a remedy. The CCLA reiterates its call for Canada to seek Mr. Khadr’s repatriation as an effective and appropriate remedy in the circumstances.
The July 5th, 2010 Federal Court decision picks up the issue of an appropriate Charter remedy, after the January 2010 decision of the Supreme Court of Canada.
In January 2010, the Supreme Court held that Mr. Khadr’s Charter rights had been breached when Canadian officials interrogated him at Guantanamo Bay — and shared their information with the US — knowing he was a minor, subject to improper treatment, and facing serious charges. The Supreme Court held that Canada violated the principles of fundamental justice guaranteed by section 7 of the Charter, and the effects of that Charter breach continue to this day; although the initial breach could not be cured, the ongoing breach can be cured. The Court held that Mr. Khadr was entitled to a remedy for the breach of his Charter rights, but stopped short of specifying a remedy in deference to Crown prerogative.
In February 2010, Canada stated it would not seek Mr. Khadr’s repatriation as a remedy. Instead, as a proposed remedy, Canada sent a diplomatic note requesting the US to disregard the evidence provided by the Canadian officials against Mr. Khadr. However, subsequent US proceedings against Mr. Khadr have used the information provided by Canada.
In the July 5th, 2010 Federal Court decision, Justice Zinn stated that he identified two “obvious remedies” that if accepted by the US would cure the breach; (1) to end Mr. Khadr’s detention and return him to Canada, or (2) to refrain from using the information provided by Canada, so if Mr. Khadr continues to be detained his detention will not be the result of any information provided by Canada. Justice Zinn also stated that there may be other possible remedies that would cure the breach.
With respect to the diplomatic note sent by Canada to the US, Justice Zinn found that the note did not cure Mr. Khadr’s Charter breach. The US did not accede to Canada’s request, the US provided no assurance the information provided by Canadian officials would not be used against Mr. Khadr, and thirdly, the record of Military Commission proceedings in the US shows the information provided by Canada was used. However, Justice Zinn refused to quash Canada’s decision to send the note, because it would be meaningless given that the note had already been sent to the US.
Justice Zinn stated that the rule of law requires a remedy for a Charter breach. He also noted, citing the decision of Chief Justice McLachlin in R. v. 974649 Ontario Inc., 2001 SCC 81 at para 20, that “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach”,
Justice Zinn held further that Mr. Khadr is entitled to procedural fairness and natural justice with respect to how the Executive determines the remedy for its Charter breach. Mr. Khadr has alegitimate expectation that Canada would take action to cure or ameliorate the breach of his Charter rights; a legitimate expectation can determine a party’s entitlement to procedural fairness. Justice Zinn referred to Justice L’Heureux-Dube’s decision in Baker v. Canada, [1999[ 2 S.C.R. 817, “if a claimant has a legitimate expectation that a certain result will be reached in his or her case fairness may require more extensive procedural rights than would otherwise be accorded.”
The Federal Court has ruled that:
i. Canada must advise Mr. Khadr within 7 days of the judgment, of all untried remedies that could potentially cure or ameliorate the breach of his Charter rights.
ii. Following receipt of this list, Mr. Khadr then has 7 days to provide written submissions on the list, and his view of whether there are other remedies Canada should consider.
iii. Canada must then advance a potential curative remedy and “continue advancing potential curative remedies until the breach has been cured or all such potential curative remedies have been exhausted, following which it is to advance potential ameliorative remedies until such time as the breach has been reasonably ameliorated or all such remedies are exhausted.”
iv. Justice Zinn retains jurisdiction to determine where a proposed remedy is effective,and to impose a remedy if “Canada has not implemented a remedy within a reasonably practicable period of time.”
To read Justice Zinn’s decision click here, http://cas-ncr-nter03.cas-satj.gc.ca/rss/Khadr-decision.pdf
