Ottawa shoots itself in the foot in the Khadr case

There is a dramatic development in the Khadr story. A Federal Court judge ordered the government to do something about Omar Khadr, and the government has seven days to comply. Justice Zinn handed down his judgement three days ago, on July 5, 2010, so if we are still a country of the rule of law we should hear from Ottawa around Monday or Tuesday. Although the judge didn’t order the government to ask the US for Khadr’s return, his repatriation may be the only logical outcome of the chain of events that Justice Zinn set off in Edmonton on Monday.

Omar Khadr, a Canadian citizen, is the last Western citizen remaining in Guantanamo Bay. The US authorities allege he threw a grenade that killed a US soldier in an Afghan firefight in 2002 when Khadr was 15 years old. In Guantanamo, he was subjected to physiological techniques to facilitate interrogation. The US denied Khadr the usual legal process rights. Canadian officials interrogated Khadr in Guantanamo and turned the findings over to the Americans. The Supreme Court of Canada (SCC) ruled that the Canadian government breached Khadr’s rights to fundamental justice by participating in the tainted US process against Khadr. SCC left it to Ottawa to choose a remedy for the breach of Khadr’s rights.

In response to the SCC decision, the federal government sent a diplomatic note to the US Department of State asking that evidence from Canadian interrogations be excluded from proceedings against Khadr. The US essentially refused.

No doubt the federal government believed the diplomatic note discharged its duty to Khadr flowing from the government’s breach of his rights. Not so fast, said Khadr’s lawyers. According to them, Ottawa’s decision to send the note concerned Omar Khadr’s fundamental rights as a Canadian citizen. The government was about to affect Omar’s liberty and possibly survival, when it chose to send the note instead of asking for his repatriation. Government decisions affecting an individual to this extent require at least some notice and an opportunity to be heard. These are principles of natural justice and procedural fairness. Justice Zinn agreed.

He held that the federal government breached Khadr’s procedural fairness rights when it failed to give him notice of its decision and to let him make written submissions in response. Khadr’s lawyers had specifically asked federal lawyers for notice and a chance to make submissions before the government made its decision. They didn’t receive any response to this request.

So the government breached Khadr’s constitutional rights again. Justice Zinn held that since the diplomatic note had no effect, it did not cure the first breach. He ruled that the federal government would have to try something else, this time with notice and an opportunity for submissions from Khadr’s lawyers—to remedy the second breach. But since the diplomatic note proved ineffective, the government may not resort to it again. It will have to propose another remedy. That is what Justice Zinn ordered the government to do within seven days—to propose a new remedy of the original breach of Khadr’s s. 7 rights. Of course, the government would have to comply with procedural fairness requirements in proposing this new remedy. After receiving the government’s notice of proposed new remedies, Khadr’s lawyers will have further seven days to make written submissions. Then as soon as “reasonably practicable,” the federal government is to act on its chosen remedy.

The curious aspect of this case is that if the government had respected Khadr’s procedural rights in making its original decision to send the diplomatic note, this case would probably not even have come up. The Americans would dismiss Canada’s note, and Khadr would be left in Guantanamo without any legal recourse in Canada. But since Ottawa had breached his rights once more in making its decision to send the note, it found itself pushed up against the wall in court again—this time without the option of sending a lip-service letter to the US. And what remedies other than a request for repatriation can the federal government come up with now to get Justice Zinn off its back? I am not sure there are any. And whatever your position on Khadr, the federal government has only itself to blame.

Pulat Yunusov

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