Omar Khadr's case back to the Supreme Court of Canada

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NEW: Friday, January 29, 2010, the Supreme Court of Canada released its decision in Prime Minister of Canada v. Omar Khadr. The Omar Khadr Project applauds the Court's bold pronouncement that the Canadian government's treatment of Omar was in violation of international law and has resulted in an on-going breach of the Constitution -- this country's highest law. For an explanation of the decision, see below.

Omar Khadr's case was heard at the Supreme Court of Canada for a second time in as many years on November 13,  2009. Watch the webcast of the Supreme Court hearing here. The Supreme Court decision released today is an appeal from the decision of the Federal Court of Canada and the Federal Court of Appeal (click on hyperlinks to read the decisions). Those courts both ruled that by not requesting the repatriation of Omar, the Canadian government was violating the constitution.               

The decision released today should not be confused with the Supreme Court's earlier ground-breaking judgment in Omar Khadr v. Canada (Justice) (2008). In that case, Omar requested disclosure of documents generated by the RCMP and CSIS during interrogations of him in Guantanamo Bay. The Supreme Court unanimously found in favour of Omar and ordered the document released. Now, those documents form part of the evidence for a new case, that has wound its way back up to the top. This time, Omar Khadr is asking for a much more significant remedy: the Supreme Court will decide whether to order the government of Canada to ask the United States to repatriate him.                                     

                           

Supreme Court Of Canada 2 by Magnum_Dynalab.

 

  WHAT THE COURT DECIDED:  

1. The Supreme Court, in a unanimous decision, announced that Canada's practice of aiding Omar's jailors and interrogators in Guantanamo Bay -- as opposed to assisting one of its citizens -- was a violation of Omar's rights under the Canadian constitution and international law. All members of the Court agreed that "Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations" (at paras. 24, 26). More importantly, the Court found that these violations were not just in the past. As Canada's involvement in the illegal process in Guatanamo Bay likely continues to contribute to his ongoing detention, his rights violation "continues to this day" (at para. 30).  

2. The Supreme Court marked out special condemenation for Canada's participation in the interrogation of Omar while he was a teenager in Guantanamo Bay. That interrogation occurred while Canada "knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations [and] had been subjected to three weeks of scheduled sleep deprivation" (at para. 24). According to the Court, in interrogating Omar under these conditions, Canada "offend[ed] the most basic Canadian standards about the treatment of detained youth suspects" (at para. 25). 

3. The Supreme Court held that the government is under a constitutional duty to remedy its breaches of Omar's rights (at para. 47). The Court disagreed with lower courts, however, that the remedy had to be repatriation. Because the case touches upon foreign affairs, the Court held that the government is better suited to decide the exact nature and scope of that remedy. It did affirm, however, that the remedy of repatriation would be “one that meaningfully vindicates the rights and freedoms" of Omar (at para. 30). 

4. The Court also warned the government that is was on a short time-line to provide Omar with a remedy for serious violations of his constitutional rights. The Court cautioned that "in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution" (at para. 37).  

                                                                                                                                        The two sides in the case were Omar Khadr (represented by his Canadian lawyers) and the Government of Canada. There were also nine public interest groups that made arguments to the Court as intervenors. The written legal arguments (factums) from all of these participants are available at www.omarkhadr.ca .        

     

[Photo - The current Judges] 

                 Prime Minister v. Omar Khadr  was a unanimous decision of the Supreme Court of Canada.

Back row: The Hon. Mr. Justice Marshall Rothstein, the Hon. Madam Justice Rosalie Silbermann Abella, the Hon. Madam Justice Louise Charron, and the Hon. Justice Thomas A. Cromwell.
Front Row: The Hon. Madam Justice Marie Deschamps, the Hon. Mr. Justice William Ian Corneil Binnie, the Right Hon. Beverley McLachlin, P.C. Chief Justice of Canada, the Hon. Mr. Justice Louis LeBel, and the Hon. Mr. Justice Morris J. Fish.
 
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