Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R.

44
Omar Khadr a Canadian, has been detained by the U.S. military at Guantanamo Bay, Cuba, since
2002, when he was a minor. In 2004, he was charged with war crimes, and the U.S. trial was still
pending when this case was decided in 2010. (Since then, Khadr pleaded guilty to the charges as
part of a plea bargain that may enable him to return to Canada to serve his time after one more
year in US custody.)
In 2003, agents from two Canadian intelligence services, CSIS and DFAIT, questioned Khadr on
matters connected to the charges pending against him, and shared the product of these interviews
with U.S. authorities. In 2004, a DFAIT official interviewed Khadr again, with knowledge that
he had been subjected by U.S. authorities to a sleep deprivation technique, known as the
frequent flyer program, to make him less resistant to interrogation. In 2008, in Canada
(Justice) v. Khadr (Khadr 2008), the Supreme Court of Canada held that the regime in place at
Guantanamo Bay constituted a clear violation of Canadas international human rights obligations,
and, under s. 7 of the Canadian Charter of Rights and Freedoms, ordered the Canadian
government to disclose to Khadr the transcripts of the interviews he had given to CSIS and
DFAIT, which it did.
After repeated requests by Khadr that the Canadian government seek his repatriation, the Prime
Minister announced his decision not to do so. Khadr then applied to the Federal Court for
judicial review, alleging that the decision violated his rights under s. 7 of the Charter.

EXCERPT:
1. Does the Canadian Charter Apply to the Conduct of the Canadian State Officials
Alleged to Have Infringed Mr. Khadrs Section 7 Charter Rights?
[14] As a general rule, Canadians abroad are bound by the law of the country in which
they find themselves and cannot avail themselves of their rights under the Charter.
International customary law and the principle of comity of nations generally prevent the
Charter from applying to the actions of Canadian officials operating outside of Canada:
Hape, at para. 48, per LeBel J The jurisprudence leaves the door open to an exception
in the case of Canadian participation in activities of a foreign state or its agents that are
contrary to Canadas international obligations or fundamental human rights norms:
Hape, at para. 52, per LeBel J.; Khadr 2008, at para. 18.
[15] The question before us, then, is whether the rule against the extraterritorial
application of the Charter prevents the Charter from applying to the actions of Canadian
officials at Guantanamo Bay.
[16] This question was addressed in Khadr 2008, in which this Court held that the
Charter applied to the actions of Canadian officials operating at Guantanamo Bay who
handed the fruits of their interviews over to U.S. authorities. This Court held, at para. 26,
that the principles of international law and comity that might otherwise preclude
application of the Charter to Canadian officials acting abroad do not apply to the
assistance they gave to U.S. authorities at Guantanamo Bay, given holdings of the
Supreme Court of the United States that the military commission regime then in place
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constituted a clear violation of fundamental human rights protected by international

law... The principles of fundamental justice thus required the Canadian officials who had
interrogated Mr. Khadr to disclose to him the contents of the statements he had given
them. The Canadian government complied with this Courts order.
[17] We note that the regime under which Mr. Khadr is currently detained has changed
significantly in recent years. The U.S. Congress has legislated and the U.S. courts have
acted with the aim of bringing the military processes at Guantanamo Bay in line with
international law.
[18] Though the process to which Mr. Khadr is subject has changed, his claim is based
upon the same underlying series of events at Guantanamo Bay (the interviews and
evidence-sharing of 2003 and 2004) that we considered in Khadr 2008. We are satisfied
that the rationale in Khadr 2008 for applying the Charter to the actions of Canadian
officials at Guantanamo Bay governs this case as well.

Notes on Khadr
(from John Currie, Khadr (2008) and Extraterritorial Applicability of the Charter:
Deepening
the
Morass,
November
4th,
2009,
http://www.thecourt.ca/2009/11/04/khadr-2008-and-extraterritorialapplicability-of-the-charter-deepening-the-morass/ )
1. Can Khadr (2008 and 2010) be reconciled with Hape?
Discussing Khadr 2008, John Currie wrote:
The Court concluded that the Charter did apply to the conduct of Canadian officials at
Guantnamo Bay in this case, apparently contradicting its 2007 holding in Hape that
extraterritorial application of the Charter is impossible (para. 85 in Hape). According
to the Court in Khadr, the Hape principle holds true in general, but is subject to an
exception if Canada was participating in a process that was violative of Canadas
binding obligations under international law.

These difficulties flow in part from the Courts apparent claim, in Khadr, that it is not
introducing any new exception to the Hape principle at all, but rather simply applying an
exception already introduced in Hape itself. This is plainly not so. As the Court
acknowledges in Khadr, Hape was based on international law principles against
extraterritorial enforcement of domestic laws and the principle of comity (para. 17). The
Court in Khadr continues: The Court [in Hape] was united on the principle that comity
cannot be used to justify Canadian participation in activities of a foreign state or its
agents that are contrary to Canadas international obligations (para. 18). Hence,
concludes the Court, the exception it applies in Khadr was already established in Hape.

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Yet this line of reasoning fails to address the principal legal basis upon which the Hape
principle was truly founded, which was not the non-binding principle of comity, but
rather the binding international law principles against extraterritorial enforcement of
domestic laws. While Hape suggested that the non-binding principle of comity must
yield whenever Canada participated in unlawful foreign activities, nothing in Hape even
hinted that the binding principles of international law limiting Canadas extraterritorial
jurisdiction must also yield in such circumstances. The latter proposition is purely an
innovation of Khadr itself.
Why does this matter? What difference does it make whether the exception applied in
Khadr was established in Hape (as intimated by the Court) or rather in Khadr?
the Courts failure to explain or justify the Khadr exception leaves unanswered the
obvious question: How or why does Canadas participation abroad, in a process that is
inconsistent with its international legal obligations, lead to applicability of the Charter to
that participation? Implicit in this question are many others. For example, given that the
issue is the extraterritorial applicability of the Charter, and assuming that that issue must
be resolved in a manner consistent with Canadas international legal obligations, why
would any such obligations that do not address the extraterritorial scope of Canadas
human rights commitments or its jurisdictional competence be relevant? Or, even
assuming they are, in a confrontation between Canadas international legal obligations
which, on the one hand, purportedly compel it not to apply the Charter extraterritorially,
and, on the other hand (and for reasons not made clear by the Court), compel just such
extraterrestrial application, why should the latter prevail? Further, why is the issue
whether Canada has participated in a process that violates its international legal
obligations, rather than, simply, whether it has violated such obligations? This way of
structuring the test appears to move the crucial inquiry away from the actions of
Canadian officials themselves and to focus it, instead, on foreign conduct. Is it
meaningful to ask whether a foreign process violates Canadas international legal
obligations? And so on. These questions, and others, require and deserve answers. Yet the
Courts approach in Khadr robs it of the opportunity to provide and defend them.
Finally, It may seem of no great moment to deny the benefit of protections against
unreasonable search and seizure to a corrupt Canadian businessman carrying out money
laundering activities on a Caribbean island, especially in the name of the noble principle
of upholding international law. It is altogether another matter to realize that a rule
justifying such denial will also, in principle, deny protection to a Canadian child detained,
interrogated, and prosecuted by a foreign government, with Canadian government
collusion, on a Caribbean island of quite a different character, in violation of some of
Canadas most fundamental international legal obligations and some of the Charters
most basic guarantees. In short, the facts of Khadr expose the untenability in principle of
Hape. Rather than face that untenability, the Court in Khadr effectively evades it by
reading down Hape in a manner that superficially makes it appear less untenable. In
doing so, the Court not only misses its chance to disavow the flawed majority reasoning
in Hape, it deepens the legal and logical morass currently governing, in the name of

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respect for Canadas international legal obligations, the extraterritorial applicability of the
Charter.
Amnesty Canada International v Chief of Defence Staff

Supreme Court Dismisses Afghan Detainee Appeal

May 22, 2009
Author: Dan Shouldice
On May 21, 2009 the Supreme Court of Canada denied application for leave to appeal in
Amnesty Canada International, et al. v. Chief of the Defence Staff for the Canadian
Forces, et al. The ruling effectively upholds a December 2008 decision by the Federal
Court of Appeal which held that during the armed conflict in Afghanistan, the Canadian
Charter of Rights and Freedoms does not apply to the detention of non-Canadians by the
Canadian Forces, or to their transfer to Afghan authorities, even if the detainees face a
substantial risk of torture.
In November 2007, the Federal Court granted Amnesty International Canada and the
B.C. Civil Liberties Association standing to seek judicial review of the Canadian Forces
practice of releasing detainees to Afghan security forces. The two organizations stated
they initiated the litigation to ensure that Canadian Forces are not complicit in the
violation of human rights. The Federal Court dismissed the application for judicial
review in March 2008.
The March 2008 decision interpreted section 32(1) of the Charter such that nonCanadians detained by Canadian Forces in Afghanistan do not enjoy the benefit of
Charter protection for their rights. The court relied on R v. Hape, in which the Supreme
Court ruled that the Charter does not generally apply to the actions of police officers
investigating Canadian citizens overseas. Writing for the majority in Hape, Justice
LeBel stated: it is a well-established principle that a state cannot act to enforce its laws
within the territory of another state absent either the consent of the other state or, in
exceptional cases, some other basis under international law.
The applicants argued that the Afghan government had implicitly consented to an
extension of Canadian jurisdiction on its soil. However, the Federal Count found that
Canadian Forces were acting in support of Afghan sovereignty; they had not been granted
jurisdiction by the Afghan government.
The applicants also proposed that the Charter applies to detainees on the basis that
Canadian Forces had effective military control of the person, a line of reasoning which
has been advanced in European and British case law. The court rejected the argument on
the grounds that Afghanistan is governed by a legitimate, internationally recognized
government, a situation different than that faced in previous Canadian military
deployments in Somalia and the former Yugoslavia.

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Relying on Justice LeBels statement in Hape that deference [to foreign states laws]
ends where clear violations of international law and fundamental human rights begin
the applicants contended that the Charter should apply to Afghan detainees because the
substantial risk of torture they faced violated international law. The Federal Court
rejected this reasoning, stating that it cannot be that it is the nature or quality of the
Charter breach that creates extraterritorial jurisdiction, where it does not otherwise exist.
The majority in Hape did, however, leave open the possibility that, in a future case,
participation by Canadian officers in activities in another country that would violate
Canada's international human rights obligations might justify a remedy under s. 24(1) of
the Charter because of the impact of those activities on Charter rights in Canada.
Nevertheless, the Federal Court stated that it is difficult to see how the conduct of the
Canadian Forces in Afghanistan that is in issue in this case would have an impact on
Charter rights in Canada.
In the Federal Court of Appeal, Amnesty International and the BCCLA argued that the
Supreme Court decision in Canada (Justice) v. Khadr,[2008] released after the Federal
Court ruling, confirmed that Hape did indeed find that the Charter applied
extraterritorially in respect of fundamental human rights violations at international law.
However, the Federal Court of Appeal distinguished Khadr on the grounds that Omar
Khadr is a Canadian citizen as opposed to foreigners, with no attachment whatsoever to
Canada or its laws, held in [Canadian Forces] detention facilities in Afghanistan. The
Federal Court of Appeal ultimately upheld the lower court decision.
A panel of three Supreme Court judges (Chief Justice McLachlin, and Justices Abella and
Rothstein) ruled on the organizations application for leave to appeal the Federal Court of
Appeal decision. The Supreme Court did not, as is normal practice, give reasons for
dismissing the application; its refusal to hear the case, however, does not necessarily
mean the Court thinks the lower court rightly decided the case.
http://www.law.ualberta.ca/centres/ccs/news/?id=285

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