Now what? - Macleans.ca

Now what?

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The Federal Court of Appeal upholds the Federal Court’s ruling that the Canadian government is obligated to seek Omar Khadr’s repatriation.

Here is the decision in its entirety. Select excerpts after the jump.

The Crown objects strongly to the suggestion that Canadian officials participated in the mistreatment of Mr. Khadr. They argue that any mistreatment suffered by Mr. Khadr was at the hands of officials of the United States, not Canada. That argument is untenable in the face of Khadr 2008, but even without the authority of that case it cannot be accepted. It is true that the United States is primarily responsible for Mr. Khadr’s mistreatment. However, the purpose of the sleep deprivation mistreatment was to induce Mr. Khadr to talk, and Canadian officials knew that when they interviewed Mr. Khadr to obtain information for intelligence purposes. There can be no doubt that their conduct amounted to knowing participation in Mr. Khadr’s mistreatment…

The Crown has not offered an acceptable basis for concluding that Justice O’Reilly erred in this logical extension of his principal conclusion. The Crown’s challenge to this aspect of Justice O’Reilly’s reasons is a variation on its main theme, namely that the conduct of foreign affairs is a matter of Crown prerogative and thus within the sole purview of the executive. However, the Crown’s position on this point is not consistent with the principle that in Canada the rule of law means that all government action is potentially subject to the Charter and the individual rights it guarantees. The Supreme Court of Canada has already decided in Khadr 2008 that the Charter was engaged because the conduct of Canadian officials in the United States towards Mr. Khadr amounted to participation by Canada in the unlawful process at the Guantánamo Bay prison…

inally, there is no factual basis for the Crown’s argument that a court order requiring the Government to request the return of Mr. Khadr is a serious intrusion into the Crown’s responsibility for the conduct of Canada’s foreign affairs. The Crown adduced no evidence that requiring it to request Mr. Khadr’s return would damage Canada’s relations with the United States (see Burns, at paragraph 136). Indeed, when pressed in oral argument, counsel for the Crown conceded that the Crown was not alleging that requiring Canada to make such a request would damage its relations with the United States…

The Crown has not alleged or adduced evidence that Canada’s relations with the United States would be injured by requesting Mr. Khadr’s return, or that his return would pose a threat to Canada’s security. For that reason, it cannot plausibly be argued that “exceptional conditions” exist on the facts of this case so as to require a section 1 analysis of whether the breach of his section 7 rights is justified…

The Crown has offered no basis upon which Justice O’Reilly should have rejected this evidence. The assertion of the Crown in oral argument that that there is “one chance in a million” that the United States will comply with a request from Canada for the return of Mr. Khadr is not supported by any evidence. It is also contradicted by the fact that the United States has complied with requests from all other western countries for the return of their nationals from detention in the prison at Guantánamo Bay…

Contrary to the submission of the Crown, Justice O’Reilly’s order does not require the Attorney General to prosecute Mr. Khadr in Canada. If Mr. Khadr is returned, it will be for the Attorney General to decide, in the exercise of his or her discretion, whether to institute criminal proceedings in Canada against Mr. Khadr. While Canada may have preferred to stand by and let the proceedings against Mr. Khadr in the United States run their course, the violation of his Charter rights by Canadian officials has removed that option.