Week 3 – January 20, 2014
Fundamental Justice 2 – Section 7 Fundamental Rights
Case Canada v. Khadr
Expidition means when someone is wanted in another country for a crime. When another country wants someone because they have broken the law they can
be expedited to the country that is looking for them. Canada has this extradite with the U.S. they file an order with Canada and it goes before a judge to decide
how it will be dealt with. Before the person goes the minister of justice has to decide how to extradite.
Kindler and Ng killed and tortured many people and are not Canadian citizens so they cant rely on s.6 because it only relies on Canadian citizens but they
were concerned about their s.7 rights because it states everyone has the right to life liberty and security so it applies to everyone who lives in Canada. They
were concerned about the right to life, because if they were sent back to the U.S they would be killed, and that violates s.7 of the charter.
They went to the SCC to state that being sent to the U.S will send them to their death and in 1991 they said that there is a concern because if they don’t send
them back to America then Canada can become a place for people to escape the death penalty. They were sent back to the US were they were executed.
10 years later in 2001 we have the case of Canada v. Burnst & Rafay who were young Canadians, but Rafays family lives in Washington state and his family is
murdered. The Washington police believe that these two men killed his family to get the insurance money the family had. They denied that this is the case and
came back to Canada because they lived there but the US government wanted to extradite. The Canadian government had no issues sending them back and
in court they said that they are Canadian citizens they have the right to stay in Canada and they are going to die.
The court said that being a Canadian citizen doesn’t matter and sending them back to U.S for their death is a changed subject. The only thing that changed is
what they now know about the death penalty from 19912001. Evidence brought to the court is that the death penalty has changed and many countries don’t
even have it anymore at this time. They now know that the system is fallable and how many mistakes the criminal justice system makes and how many people
are convicted for murders that they did not commit. They also found that death penalties were always brought against poor, black, and minority people. The
difficulty with death penalty is that there is no going back on that mistake if you get the wrong person. What they now know is that the world is moving away
from the death penalty and there are problems with the legal system that give us great concern, even though we respect them as a democracy Canada can
have an impact in sending someone to death penalty when they are not guilty. The SCC said that if you want to extradite someone to the US for a death
penalty the minister has to get guarantee from the state that they will not execute that person. Canada will not deport someone to death it is a principle of
fundamental justice. If Washington state wants mr. burnst and rafay they have to promise not to execute them.
The thing that changed is what we know as a society globally about death penalty and that changed what a principle of fundamental justice is according to the
charter and it was decided by the SCC. This speaks to how s.7 changes over time and while the tenats of the principles stay the same our interpretations of
them change as we obtain more knowledge.
September 11 really changed things for the principles of fundamental justice as well. This became clear in the case of a man named Suresh who was from sri
lanka. He tried to immigrate to Canada but was not allowed because the government found him dangerous and wanted to send him back to sri lanka. When
you send someone back to their country for immigration purposes it is not extradition it is called refoulment. Suresh said they cant send him back declaring he
is a terrorist because his government will kill him, it is like sending someone to the death penalty.
He also said that they cant send him back because they are assuming he is a danger he is not an actual threat.
The court said that in terms of burnst and rafay they see no reason that the principle in that case should not apply here with suresh. The guarantee of
fundamental justice is also applied to people other then our citizens and they reaffirm that principle here because they do not want Canada to be a participant
in a death penalty of anyone. When Canada knows that its actions of sending someone back to their country will bring them harm or death then they cant
participate in that process. Mr.Suresh is alleged to be apart of a terrorist organization and now the court is aware of terrorism in a way that they weren’t before
sept 11. They claim that terrorism is a world wide phenomenon and on the one hand we cant deport him but on the other hand they may have to deport him.
They have a new understanding on the severity of terrorism and this changes the interpretation of the principles of fundamental justice.
Right after sept 11 canada passes laws to deal with terrorism and this was not the legislation that mr. suresh dealt with. These laws allowed the Canadian govt
to deport people who were coming in as refugees if there was a concern about terrorism. They were deciding terrorism on basis of security certificates that
were given to the minister of justice that alleges someone is a national security threat which leads to jail and deportation.
The problem with the security certificate is that the minister of justice gets information from organization stating they are a terrorist and they get put in jail but
the information we rely on to put someone in jail comes from places that we don’t want people to know we are getting information from. Canada states that they
cannot show the evidence against the defendant but the judge can. The SCC had to decide if that met the principles of fundamental justice because one
principle is that you get to see the evidence that is put against you.
Mr. Charkaoui was arrested and put in jail with a security certificate and could never see the evidence against him.
Someone else was allowed to see the evidence but was not allowed to tell Mr.Charkaoui. the big intervener in this case was the case of Arar. Arar was a
Canadian citizen from Syria and he was travelling back to Canada and stopped to change planes to get back to Canada in New york where he is questioned and taken off the plane and sent to Syria where he is tortured for a year. Takes him years to get out and he is not guilty of anything. This Canadian organization
gave the US information that was not correct and it lead to him not being able to return to Canada. They sent him to Syria to be tortured because they wanted
to see what information they could get.
The Canadian courts are now aware of this and now there is terrorism, and mistakes in terrorism cases that changes the interpretation of principles of
fundamental justice s.7. the courts need to figure out in a post 9/11 world where they know of terrorists and mistakes of terrorism leading to death and torture,
and that information isn’t always right how can they draw the line and make proper decisions. In Charkaoui they said Canada did not draw the line properly and
it should be dealt with in another way and struck down the certificate method.
This brings us to the case of omar khadr. The principles may be the same but the more we know about the world the more the interpretation and decisions
based on s.7 will be changed. The court tries to make these principles relevant to the world around us and reflect the concerns that Canadians have and the
Canadian government has.
The khadr case continues to bring issues and this case Is one of many involving omar khadr. There are many people involved in the case. Omar is suing the
prime minister, govt, and CECIL, and many people are intervening and many were on his side. The SCC states that the reasons for the judgment are from the
court not directly stating which judge it came from. Omar is a Canadian citizen born in Canada but grew up mostly in another country because his father was
involved with the Taliban in al queda. He was in afganistan after 9/11 when the Americans invaded and his father was supporting the Taliban. On july 27, 2002
there is a fire fight and the Americans go into a compound to fight Taliban people and they are engaged in shooting and is alleged that omar threw a grenade
and killed an American soldier and he is 15 years old. After he is arrested he is transferred to Guantanamo bay that is owned by the Americans and they used
it to put people in jail. In sept 2004 the Americans put them in Guantanamo bay because its unclear what rights they can use as opposed to being in America.
He is charged as an enemy combatant with war crimes for killing an American soldier and is held for trial.
By 2010 the trial was not held and he was 23 years old. In 2003 canadian agents of CECIS etc. go down to Guantanamo bay and question Omar on his
allegations. They then tell the Americans what they learned from him. In march 2004 another rep from Canada interviews him knowing he has been subjected
to sleep deprivation he did not answer any questions. In 2005 the Canadian federal court issues an injunction from allowing canadians to question omar. The
Canadian government never asked for him back and was the only remaining citizen that was left their but the Canadian government refused to ask for him
back. He then goes to court to challenge the governments decision on not seeking his repatriation because by not bringing him back is violating his s.7 rights.
As this case arrives at SCC and he says in para 12 that the govt doesn’t have to request any Canadian citizen needs to be brought back to Canada his
argument is that bc of what the Canadian govt did to lead to a continued detention in guantanamo bay by sharing information with the Americans his charter
rights are violated. The charter applies to everyone in Canada and doesn’t apply to people who are not in Canada because they follow those countries rules.
The court asked does the charter apply to Canadian officials outside of Canada?
As a general rule Canadians abroad are bound by the law in which they find themselves and cannot avail themselves under the charter. This is a general rule
and not an absolute rule. The reason that he charter applied is because of the actions of the Canadian officials that gave US information. The Canadians went
to a place that did not comply with any international human rights law and turned it over to the Americans and it lead to the Canadian governments involvement
in a s.7 c