Canada: Khadr v. Canada: The Supreme Court Balances Charter Rights And Crown
On January 29, 2010, the Supreme Court of Canada released its much-anticipated decision
in Khadr v. Canada (Prime Minister), 2010 SCC 3. Though the Federal Court and the Federal
Court of Appeal ordered the federal government to request Omar Khadr's repatriation as a
remedy for breaching his section 7 Charter rights, the Supreme Court declined to go so far.
Rather, the Court unanimously held that although Mr. Khadr's rights had been violated, it was for
the federal executive, and not the courts, to decide how to best provide a remedy for that
In July 2002, Mr. Khadr was taken into custody by the United States armed forces operating in
Afghanistan. The U.S. alleges that Mr. Khadr threw a grenade at U.S. troops, which ultimately
killed an American soldier on detonation. Mr. Khadr was detained at the Bagram Air Base in
Afghanistan. As Mr. Khadr was born in Canada and held Canadian citizenship, Canadian
authorities requested consular access to Khadr. The U.S. declined the request, both at Bagram
Air Base and at the Guantánamo Bay detention centre where Mr. Khadr was eventually
transferred. At the time he was taken into U.S. custody, Mr. Khadr was 15-years old.
In 2003 and 2004, Canadian officials from the Canadian Security Intelligence Service (CSIS)
and the Department of Foreign Affairs and International Trade (DFAIT) interviewed Mr. Khadr at
Guantánamo Bay. Mr. Khadr did not have legal representation and did not have the assistance
of Canadian consular officials. He had not been permitted to contact his family and still retained
legal status as a minor. The interviews were being monitored and recorded by U.S. officials.
CSIS and DFAIT intended to use the interviews to gain intelligence, and not for the purpose of
gathering evidence to assist the U.S. in prosecuting Khadr. Nonetheless, the interviews were
shared with U.S. officials and neither CSIS nor DFAIT placed any limits on the information's use.
The U.S. Supreme Court Weighs In
In the background, the U.S. Supreme Court was reviewing the Bush administration's decision to
detain foreign combatants at Guantánamo Bay without access to habeas corpus and whether
the procedures for prosecuting the detainees violated the Geneva Conventions. In Rasul v.
Bush, 542 U.S. 466 (2004), the U.S. Supreme Court held that foreign detainees, including Mr.
Khadr, could challenge the legality of their detention in U.S. courts. In Hamden v. Rumsfeld, 126
S. Ct. 2749 (2006), the U.S. Supreme Court held that the military commission established to
prosecute the Guantánamo Bay detainees violated U.S. law and the Geneva Conventions.
Khadr's Canadian Legal Challenges
As a result of these decisions, the Supreme Court of Canada, in an earlier decision involving Mr.
Khadr, concluded 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." (Canada (A.G.) v. Khadr, 2008 SCC 28) Following the Supreme Court of Canada's 2008 decision, Mr. Khadr was given access to
records of the interviews conducted by CSIS and DFAIT. Under the Canada Evidence Act,
Justice Mosley of the Federal Court reviewed the documents and concluded that Canadian
officials knew that Mr. Khadr had been subject to harsh and, ultimately, illegal interrogation
techniques during his detention.
The Present Application and Appeals
In August 2008, Mr. Khadr brought an application in the Federal Court seeking an order that the
Canadian government request his repatriation. The application judge held that Mr. Khadr's right
to liberty and security of the person under theCharter had been breached and ordered that
Canada should request the U.S. to return