On July 22nd, 2010, the Federal Court of Appeal stayed a recent Federal Court decision in the case of Omar Khadr. Chief Justice Blais found that serious questions are raised about the division of powers between Courts and the Executive.
Earlier this month, Justice Zinn of the Federal Court ruled that Canada must provide Mr. Khadr with a list of remedies, within seven days, to cure the Charter violations he suffered when interrogated by Canadian officials at Guantanamo Bay.
Chief Justice Blais of the Federal Court of Appeal ordered a stay, pending appeal. He found that serious questions are raised about whether a judge can give himself or herself powers to “supervise” the exercise of Crown prerogative — especially in a context like this one, when the Supreme Court of Canada would not do so. Chief Justice Blais wrote that Justice Zinn’s decision could cause irreparable harm as an “affront to the division of powers”, and improper interference by the Courts in the context of foreign relations and national security.
However, the CCLA points out that in the January 2010 Supreme Court of Canada decision, Canada (Prime Minister) v. Khadr, the Supreme Court noted that the Executive power is not exempt from judicial scrutiny to determine if government actions comply with the Charter. Further, while recognizing that the Executive power is responsible for, and best-placed, to take decisions under the royal prerogative, Courts retain a narrow power to intervene in matters of foreign affairs and “to make orders ensuring the government’s foreign affairs prerogative is exercised in accordance with the Constitution.” This remedial power will only be exercised cautiously, and in Khadr, the Supreme Court left it to the Executive to find an appropriate remedy “at this time”, given the evidentiary uncertainties.
Which brings the issue full circle, as Mr. Khadr is still left without a remedy for the breach of his Charter Rights. The Supreme Court in its January decision noted that a “present remedy” can be required for past breaches, particularly when the effects of those past breaches ”violate present liberties.”
Chief Justice Blais writing for the Federal Court of Appeal stressed that Canada has sent the US a diplomatic note, asking the US to disregard any information acquired from Canadian officials who interrogated Mr. Khadr. The US has responded that its Military Commissions Act of 2009 contains safeguards to exclude any evidence obtained by torture. The Chief Justice also reviewed the history of Omar Khadr’s case and Canada’s interventions with the US to ensure care, medical treatment and family contact were provided to Mr. Khadr.
It is expected that when Mr. Khadr’s pretrial proceedings resume before the US Military Commission in August 2010, his Commission-appointed military lawyer will seek to have the evidence against Mr. Khadr excluded.
The CCLA will continue to press for an appropriate remedy for Mr. Khadr which cures or ameliorates the breach of his Charter rights, and to monitor the US proceedings against him.
