October 19, 2010
Over the summer, TheCourt.ca commented on Omar Khadr’s journey through Canada’s courts – from the Federal Court to the Supreme Court of Canada ("SCC") and back again. His lawyers have attempted to assert his Charter rights consistently and unrelentingly, despite constant setbacks. Nevertheless, the Canadian government has successfully appealed multiple decisions so that Mr. Khadr has been unable to realize the Charter remedy that he is entitled to. This is a troubling legal saga and Chief Justice McLachlin has articulated the precise reason, stating: “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.”
In a recent turn of events, reports of plea deal negotiations suggest that Mr. Khadr will plead guilty to all charges, including murder, and may serve part of his sentence in Canada. In one of the earliest Khadr decisions, Khadr v Canada (Prime Minister), [2010] 1 FCR 34, Justice O’Reilly of the Federal Court of Canada ruled that the government had an obligation to protect Mr. Khadr and that Canada should “present a request to the United States for Mr. Khadr’s repatriation…as soon as practicable.”
That decision was appealed, and in Canada (Prime Minister) v Khadr, [2010] 1 SCR 44, the SCC found that Canada's complicity in the illegal treatment of Khadr meant that his s. 7 Charter rights – his "right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" – had been violated. (The evidence suggested that Canada knew Mr. Khadr (at the time a child soldier) was being subjected to interrogation techniques that qualify as torture. Despite this, Canadian intelligence officials subjected him to further questioning and then shared the information gained with US officials.)
The SCC allowed the appeal in part, ultimately refraining from demanding the government repatriate Khadr. The members of the court unanimously agreed that to uphold the Federal Court’s insistence that Canada request the repatriation of Mr. Khadr was an intrusion into the government’s royal prerogative over foreign relations. The government was left to fashion a remedy that balanced the interests of the Charter, the uncertainty surrounding Mr. Khadr, and its responsibility over foreign affairs.
Following the SCC decision, the government sent a diplomatic note to the US, asking that the information that Canada provided to US officials not be used in the prosecution of Mr. Khadr. In a related statement to the press it was also announced that Canada would continue not to seek his repatriation.
This remedy was predictably considered insufficient for Mr. Khadr’s counsel and again they went before the Federal Court in Khadr v Canada (Prime Minister), [2010] 4 FCR 36, requesting a judicial review of the government’s actions in what was likely an effort to compel Canada to act before the August 2010 start of Mr. Khadr’s trial by a United States military commission.
By then, it was July 2010 and the trial’s start date was approximately one month away. Deciding in favour of Mr. Khadr, Justice Zinn gave the government 7 days to advance a list of potential remedies. If possible, the Federal Court determined, a “curative remedy” would be ideal. This demanded that the government request that Mr. Khadr be returned to Canada. The Justice declared that he would only accept an “ameliorative” remedy once all “curative” remedy options had been exhausted.
Instead of complying with the Federal Court decision, the government decided to make an application to the Federal Court for a stay of the enforcement of Justice Zinn’s ruling. In Canada (Prime Minister) v Khadr, 2010 FCA 199, Chief Justice Blais employed a three-part test in deciding not to grant the stay.
The test for injunctive relief received SCC approval in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 [RJR-MacDonald]. In that case a tobacco company was denied reprieve from complying with an incoming regulation limiting tobacco advertisements until a ruling on its constitutionality. The test is as follows:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits….
According to Chief Justice Blais, determining the extent to which the judiciary could impede into the government’s conduct of foreign affairs was a “serious question to be tried….” The Chief Justice rejected Mr. Khadr’s assertion that the issue was merely the correctness of the discretionary Charter remedy advocated by Justice Zinn. Considering the SCC’s reluctance to order a specific remedy it appears that the Chief Justice acted within the boundaries of that decision on this point.
Next, the government argued that it would suffer “irreparable harm” if Justice Zinn’s order was to stand. Again, considering the issue of the intrusion into foreign affairs, it was reasonable to conclude that Justice Zinn’s order would upset the balance referred to by the SCC. This would be irreparable in the sense that the government could not undo the positive steps required for compliance with the decision.
As to the issue of which party would suffer greater harm, the Chief Justice concluded that the government’s interest in protecting the division of powers outweighed the uncertain outcome of Mr. Khadr’s situation. According to the Chief Justice, the RJR-MacDonald decision mandated that the onus of demonstrating irreparable harm to the public interest is less than for the private interest:
The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.
Finally, we have arrived at the most recent related decision of the Federal Court of Appeal, Canada (Prime Minister) v Khadr, 2010 FCA 245, where Associate Justice Stratas denied Mr. Khadr’s motion for an expedited hearing of the government’s appeal of the Justice Zinn ruling.
The Justice was quick to point out the constraints on his ability to grant the motion. Two previous requests by Mr. Khadr to the Federal Court of Appeal to expedite the proceedings were denied. According to the decision in Del Zotto v Canada (Ministry of Natural Resources), [1996] 2 CTC 22, there had to be “evidence of a significant new development…[an extraordinary] marked changed in circumstances,” in order for the appeal court to justify granting Mr. Khadr’s latest request. According to Justice Stratas, no such change in circumstances existed. Khadr’s American military tribunal looms large over all the Canadian proceedings, but it is difficult to argue that its commencement constitutes a “marked change in circumstances.”
Ultimately, this is a very complicated issue. The personal dynamic (Khadr as a Canadian citizen with Charter rights, torture, child soldier) demands government action. However, the boundaries that the judiciary must tread in relation to the government’s prerogative over foreign affairs is a context which cannot be ignored. Recognizing this, the SCC was careful to limit the intrusion into Canada’s foreign policy by the judiciary and the related appeal court decisions have abided by that guidance.
Yet, if media reports turn out to be true, the repatriation of Mr. Khadr to serve his sentence in Canada could be considered the “curative” remedy to the Charter breach last recommended by Justice Zinn of the Federal Court. Nevertheless, the government has still reinforced its prerogative power over foreign affairs.
6 Comments
Hi Chris,
It seems to me that the notion of "boundaries that the judiciary must tread in relation to the government's prerogative over foreign affairs" has somehow negated the Charter context and legal violations (domestic constitutional law)
in this case. With respect, I don't see how a plea bargain would be considered 'the curative remedy to the Charter breach" because of one simple but important fact: two wrongs do not make a right.
The court does have "the jurisdiction to determine the scope and existence of a prerogative power" and can review the exercise of such power where "the rights or legitimate expectations of an individual are affected". In Khadr, Charter violations under s (7) and (12) are an example where court scrutiny of government action was warranted. While the power is defined and limited by the law, ultimately the court has jurisdiction to decide whether or not any alleged right falls within the prerogative. Royal Prerogative Powers are legally binding and have full legal force under common law. It is also a power that was not constructed under or by virtue of the Constitution.
While Section 10 of the Dept. of Foreign Affairs and International Trade Act (trumped by the Royal Prerogative Powers) has no statute or regulation governing whether or when to request the repatriation of a Canadian citizen detained in a foreign country. A review of the exercising of Royal Prerogative Powers is subject to time lines based on the charter guarantees and thus, court intervention is also warranted where the court has ruled these violations did occur and where no legal remedy has been proposed. The court symbolizes and enforces the laws governing a democratic society (relatively constant) whereas, the government is a elected body that governs the people (subject to change). Canada's central government has residue authority in using Royal Prerogative in exercising its treaty-making power, even this power doesn't support an exclusive legal power (eg. provincial executives conduct foreign relations). Why did the court give exclusive legal power (in the form of a prerogative instrument for foreign affairs) to the govenment in this Charter Rights case?
What about article 36 of the Vienna Convention on Consular Relations?
The Minister of Foreign Affairs has jurisdiction to conduct and manage all consular relations on behalf of Canada ("shall conduct diplomatic and consular relations" and is therefore, obligated to carry out these functions. Wouldn't this be considered a conflict of interest if Mr. Khadr had received the help he was entitled to?
What about s (1) of the Charter?
The government has the burden to prove that their actions were reasonably justifiable in a free and democratic society. In Khadr, the government did not prove its case and therefore, in theory, failure to provide the Charter guarantee under s (7) and (12) allows the court the opportunity to correct the error by overseeing the implementation of a remedy determined to be fair and just in the eyes of the court (repatriation).
I wonder if one day Lady Justice might exercise her prerogative, remove her blindfold, and see what is wrong is real and what is right should be rational but isn't?
Hi Cris,
Did the court define the exact limits of the prerogative powers while recognizing the limits of justiciability?
Are the necessary checks and balances in place for the court to be able to override and displace the prerogative, by statute, should this become necessary to prevent abuse of the privilege?
Can the government invent new prerogative powers because these powers have never been precisely defined?
I hope this case will open up some real parliamentary and judiciary debate on defining the precise application of prerogative powers where the government needs flexibility in handling a unique and/or novel foreign affairs situation in order to act effectively.
l
It is my understanding that Royal Prerogative (RP) (discretionary powers) can be used to issue and revoke passports.
Hasn't the UK and Canada used RP to deny passports to citizens whom the US government has held and released from Guantanamo Bay?
Can these discretionary powers be used to prevent Mr. Khadr's repatriation even if a plea bargain has been reached between his lawyers and the US Government's Military Court? If this should occur, would a judicial review be a viable option in this case?
I would appreciate knowing the extent of the constitutional limits of RP (without prejudice) from a legal expert in Constitutional Law and the Charter.
Does the Royal Prerogative remain in place (following Mr. Khadr's conviction and imprisonment: Canadian Passport Order, Section 9 ) and does this mean the executive can exercise the discretionary prerogative to deny Mr. Khadr a passport for his possible repatriation? Is having a passport even an issue, to prevent re-entry into Canada, if the US-Canada have made an arrangement (not confirmed) to repatriate (in a year?) under a custodial release provision?
Would the Federal Court Act have any jurisdiction to challenge this application of Royal Prerogative Powers or would this only be subject to a review by Cabinet (which can act to deal with exceptions to the Canadian Passport Order)?
Is it true that Royal Prerogative can't be abolished because the Canadian Passport Order is not a statute?
For now, I have concluded that this is an extremely complicated problem which might be beyond the challenges and remedial jurisdiction of a Judicial Review.
Hi Diane,
You raise some very interesting questions regarding the scope of the prerogative power relied on by the government.
I will attempt to address them in my Nov 16 post.
Regards
Hello Cris,
Thank you for tackling my questions in your next post. The latests news reports state that once Mr. Khadr application has been received, consideration for transfer will be made with current law. It was also revealed that US-Canada (diplomatic notes made public yesterday) support a transfer back to Canada, under the US-Canada Treaty on Execution of Penal Sentences, in one year's time.
Are these diplomatic notes legally enforceable? One of Mr. Khadr's sentencing lawyers, believes the wording of the diplomatic notes is strong enough to challenge it in court if the government renegs on the plea deal a year from now.
I continue to be concerned that Royal Prerogative Powers are poorly defined and monitored by Parliament and our Courts. How do these powers impact on our Charter Rights and Freedoms?