Supreme Court of Canada rules on Khadr: Breach of Charter Rights exists, but Government must determine Remedy

February 2, 2010

The Supreme Court of Canada ruled on the case of Omar Khadr last Friday in a decision that reinforces human rights but leaves it to the Government to determine the remedy for violation of those rights.

In a unanimous decision, the Court held that Omar Khadr’s rights as a child, his rights to legal counsel, his right to proper treatment, and his right to habeas corpus had all been denied during his interrogation and detention at Guantanamo Bay. The Court found that the actions of Canadian officials participating in Mr. Khadr’s interrogation violated Canada’s international legal obligations and violated Mr. Khadr’s section 7 Charter right. Section 7 of the Charter guarantees the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Court also held that the effect of the Charter breach continues to this day. Canadian officials handed over information used by the US military authorities and this information may be part of the case on which Mr. Khadr is currently held, and may be used at his ultimate trial. However, the Court stopped short of ordering the remedy of repatriation.

While the Court acknowledged that a remedy is appropriate in light of the Charter breach, the Court held that its determination of a remedy is precluded by the Crown prerogative over foreign affairs. The Court stated that it did not have sufficient information to assess the effect on foreign affairs, to determine what actions had already been taken by the Canadian government, or to determine how a US Military Commission trial would affect Mr. Khadr’s rights.

Accordingly, the Court ruled that it would only provide the declaratory relief of ruling that Mr. Khadr’s section 7 Charter right had been breached, and that Canada had participated in a process that was contrary to its international legal obligations.

The Court stated that it has provided the legal framework for the Government to now consider the actions it must take with respect to Mr. Khadr.

The CCLA believes that the Government must act to remedy the breach of Mr. Khadr’s legal rights, and that repatriation would be an appropriate remedy in the reported circumstances.