November 16, 2010
In light of the Omar Khadr affair, this post will provide a brief overview of the royal prerogative power over foreign affairs. As discussed in previous posts on TheCourt.ca (here, here, here and here), the Supreme Court of Canada’s ("SCC") interpretation of the government’s prerogative over foreign affairs limited the judiciary’s ability to force the Canadian government to repatriate Mr. Khadr.
The prerogative power is essentially a relic of a period when the Monarchy had the absolute discretion to rule. Over time, the courts have narrowed the number and scope of prerogative powers. Today, in general, any power asserted by the Federal government that does not fall within the ambit of the Constitution, a constitutional convention or the royal prerogative, is statute based. A statute can also displace a prerogative power.
According to the SCC, a Charter remedy “must employ means that are legitimate within the framework of our constitutional democracy.” In the context of the Khadr saga, this implies that the judiciary does not have the power to simply usurp certain decisions of the executive (the Prime Minister and the cabinet) but must, in some cases, consider the relevant scope and impact of common law based norms resting solely in the discretion of the executive – prerogative powers.
In part, what the judgment in Canada (Prime Minister) v Khadr, [2010] 1 SCR 44 [Khadr, SCC] represented was the SCC’s acknowledgement that it must proceed carefully when examining conduct clearly within the realm of foreign affairs. What is also apparent from reading the Khadr, SCC decision is that the scope of the prerogative power over foreign affairs is not precisely definable. Nevertheless, the SCC did not conclude that the government could proceed as it deemed necessary, no matter what, regardless of the Charter. In other words, the royal prerogative is not absolute.
In a decision pre-dating the Khadr, SCC ruling, Abdelrazik v Canada (Minister of Foreign Affairs), [2010] 1 FCR 267 [Abdelrazik], the Federal Court of Canada ordered the government to issue an emergency passport and allow the return of a Canadian citizen suspected of terrorist ties who was living in a Canadian embassy in Sudan. The government complied with the order after the Federal Court ruled that its actions were not justified under s. 1 of the Charter.
Why was this not done in the case of Mr. Khadr? Well, the SCC refrained from issuing an order to repatriate Mr. Khadr because of the uncertainty surrounding his situation. According to Canada’s highest court, a repatriation order was not warranted because “Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed....”
In the case of Abdelrazik, the circumstances were more straightforward and actual evidence of terrorist involvement was slight. In Mr. Khadr's case, the SCC refused to interfere with the executive’s discretion because it would have to have done so on shaky ground. Maybe Canada’s highest court would have ruled differently if it were convinced that Mr. Khadr was innocent of the charges against him and that the US would immediately comply with a repatriation request?
The latest on the Khadr saga involved an exchange of diplomatic notes which, in part, state: "[T]he Government of Canada is inclined to favourably consider Mr. Khadr's application to be transferred to Canada to serve the remainder of his sentence...." A cursory review of the notes reveals that they do not comprise an agreement to repatriate Mr. Khadr. However, it is likely that the notes would bolster Mr. Khadr’s position if he were to again petition the court for his repatriation.
Regardless of the Khadr, SCC or related decisions from the Federal Court and Court of Appeal, Canada’s executive still has a very strong hold on the conduct of foreign affairs. Even so, the exercise of the royal prerogative can always be challenged under the Charter, and subsequent challenges may weaken what remains of the powers under the royal prerogative as time advances.
5 Comments
Thank you Cris for comparing the cases of Abdelrazik and Khadr in your concise review and response to my questions.
The challenges ahead will rest on whether or not the court and/or legislation will be able to clearly define the nature and extent of "old" Royal Prerogative Powers in order to determine its proper application to new Foreign Affairs circumstances (complicated and uncertain) which are inherently dealt with through executive powers.
Under our Constitution, would the Anti-Terrorism Act SC 2001, c 41, (Statute) displace the Prerogative Powers? In turn, it seems that Prerogative Powers can preempt statutes by articulating "the foreign affairs policy of the Executive". Unfortunately, this does not eliminate confusion because it suggests that executive power, related to foreign relations power, acts to the exclusion of executing domestic law (Charter Rights and Freedoms).
This package of unspecified power (applied to Foreign Affairs) seems to lack the principles, guidelines and the proportionality tests necessary for balancing its use and this may, as you have aptly stated, "weaken what remains of the powers under the Royal Prerogative as time advances".
For the record, since the CCRF became fundamental law, Canada's elite centrist judiciary has never recognized common law rights of persons, in a judgment. However, they frequently devise common law obligations for cops, when they need something to concoct ersatz justification for criminal conduct. Charter nullification is in season.
Hello John,
"Charter nullification is in season." Thanks for your contribution.
In another lifetime, I once believed that the legal rights under Section 12 of the Charter were our only absolute right. S 12 reads: "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment." (in Canada)
Even though this is a guaranteed legal right it is not absolute as the court must determine "whether the punishment prescribed is so excessive as to outrage the standards of decency." According to my understanding, the guarantee is confined to legislative and executive acts of the Canadian government and does not apply beyond our borders.
If we truly believe that the Charter is important in our democractic society, we must certainly use logic and reason to support and challenge its fair and just application. This is the very reason I support this blog since we are allowed the opportunity to make reasonable comment, question court decisions, address social, political, legal, cultural, religious, moral and ethical considerations and commit to some self-reflection (optional) in one's approach to democracy and the rule of law. Fundamentally speaking, the Charter allows us to do this and therefore, 'tis the season.
I'm very surprised nobody is talking about the 800 pound gorilla in the room.
From the article above:
According to Canada's highest court, a repatriation order was not appropriate because "Mr. Khadr is not in the control of the Canadian Government..."
Although the court (rightfully) didn't encroach on the executive's forgein relations power, what's going to stop them once Khadr is sitting in a Canadian prison??
Khadr's going to walk as soon as he sets foot on our soil. Then he's going to sue our government (and win / settle, Maher Arar style).
This whole plea was a calculated decision to try to please everyone, and it's unbelievable nobody is calling it out:
- America wins because they are trying to shuffle the Guantanamo prisoners anywhere they possibly can.
- Harper wins because he is just "observing and respecting the American process."
- Those on the left who think it was unconscionable to torture, hold without due process, and then try a 15-year-old kid with a crime that doesn't technically exist (Khadr is the only person to ever be tried for "war crimes murder") win because Khadr will go free before he serves the 8 years he'd have to serve in the U.S.
Harper gets to blame his favourite scapegoat, the Canadian courts, and Obama et al. are off the hook because it was a forgein court's decision to release Khadr. The courts get to release another scathing decision about how the government has treated this case, and gets to impose a penalty to show their disapproval (unless the case settles behind closed doors).
Hello Siggy,
"but don't listen to me. I'm just the 800 lb. gorilla in the room." Thank you for your comments and concerns.
Did anyone notice the 8,000 lb. elephant in the corner?
One problem deserving mention is the Canadian government's foreign affairs operational acceptance and "sometimes advertent or inadvertent, alleged support of the torturer." Can our government's support of foreign governments lead to "immunizing the torturer from any sense of responsibility for torture-conditioned conduct?"
Is the remedy for torture a foreign affairs matter, granted under Prerogative Powers, or is it an "imperative legal duty under the UN Convention against Torture" which is supported by International and Canadian Law?
Canada's Department of Foreign Affairs and International Trade (DFAIT) interrogated Mr. Khadr at Guantanamo Bay and gave these records to the US even after being told the US had tortured him.
I still do not understand how the court determined that Foreign Affairs took precedent over International and Canada law governing torture when the laws prohibiting torture exist.
What remains of serious concern is Canada's detainee policy and practices in Afghanistan which allegedly transferred many Afghans, with apparently no connection to insurgency, to be tortured in Afghan prisons. It has been reported that some of these detainees were children...what happened to these children? Will they ever be listened to or receive any remedy from the International Courts?
There is so much we need to talk about and your expressed concerns are a good beginning.