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The rule of law is not the law of rule

Trials & Tribulations
|Written By Antonin I. Pribetic
The rule of law is not the law of rule

“All human beings are born free and equal in dignity and rights.” — Universal Declaration of Human Rights

“The most effective way to restrict democracy is to transfer decision-making from the public arena to unaccountable institutions: kings and princes, priestly castes, military juntas, party dictatorships, or modern corporations.”

— Noam Chomsky, “Domestic Constituencies,” Z Magazine, 1998

Following the recent Supreme Court of Canada’s punt to the federal government to request Omar Khadr’s repatriation to Canada in Canada (Prime Minister) v. Khadr, The Globe and Mail reports: “Lawyers for Omar Khadr took less than a day to fire back at the federal government, which sent a diplomatic note to the U.S. asking that they not use Canadian evidence in future prosecutions of Mr. Khadr.

“In an emergency motion filed in federal court yesterday, the legal team chastised the Harper government for not requesting Mr. Khadr’s return from a detention centre in Guantanamo Bay, Cuba. They also renewed their constitutional objections and protested against the government’s failure to respond to requests for consultation before sending the note to U.S. officials Tuesday.”

In his statement last week, Justice Minister Rob Nicholson did not say anything about repatriating Khadr.

For those unfamiliar with the case, Khadr was 15 years old when he was taken prisoner on July 27, 2002, by U.S. forces in Afghanistan. U.S. authorities alleged that he had thrown a grenade that killed an American soldier during the battle.

About three months later, he was transferred to the U.S. military installation at Guantanamo Bay and placed in adult detention facilities. In 2004, Khadr was charged with war crimes, albeit the U.S. trial is pending.

In 2003, agents from two Canadian government bodies, the Canadian Security Intelligence Service and the Department of Foreign Affairs and International Trade, questioned Khadr about matters relating to his outstanding charges and shared the fruits of their interrogations 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 more receptive or compliant to interrogation.

In 2008, in Khadr v. Canada, the Supreme Court of Canada held that the regime in place at Guantanamo Bay constituted a clear violation of Canada’s international human rights obligations, and, under s. 7 of the Canadian Charter of Rights and Freedoms, ordered the Canadian government to disclose to Khadr his interview transcripts with CSIS and DFAIT.

Despite Khadr’s repeated attempts to have the Canadian government seek his repatriation, Prime Minister Stephen Harper refused to do so. Khadr then applied to the Federal Court for judicial review, arguing that the decision violated his “right to life, liberty, and security of the person” under s. 7 of the Charter.

The Federal Court held that under the special circumstances of this case, Canada had a duty to protect Khadr under s. 7 and ordered the government to request his repatriation. The Federal Court of Appeal upheld the order, but stated the s. 7 breach arose from the interrogation conducted in 2004 with the knowledge that Khadr had been subjected to the “frequent flyer program.”

In a per curiam opinion, Khadr’s appeal and application for judicial review were allowed in part. The court made a declaration that: “through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. Costs are awarded to Mr. Khadr.”

The court took the path of least jurisprudential resistance on the issues of Crown prerogative and judicial review of the constitutionality of executive action, expressing two “concerns” regarding the nature of the remedy sought.

First, that the remedy ordered below gave too little weight to the constitutional responsibility of the executive in making decisions on matters of foreign affairs “in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests” (at paragraphs 36, 39-41).

Secondly, the inadequacy of the record which gave the Court a “necessarily incomplete picture of the range of considerations currently faced by the government in assessing Mr. Khadr’s request” (at paragraphs 42-45).

According to the court:

“[44] . . . We do not know what negotiations may have taken place, or will take place, between the U.S. and Canadian governments over the fate of Mr. Khadr. . . . It follows that in these circumstances, it would not be appropriate for the Court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.

“[45] Though Mr. Khadr has not been moved from Guantanamo Bay in over seven years, his legal predicament continues to evolve. During the hearing of this appeal, we were advised by counsel that the U.S. Department of Justice had decided that Mr. Khadr will continue to face trial by military commission, though other Guantanamo detainees will now be tried in a federal court in New York. How this latest development will affect Mr. Khadr’s situation and any ongoing negotiations between the United States and Canada over his possible repatriation is unknown. But it signals caution in the exercise of the Court’s remedial jurisdiction.

On blog, Cameron MacLean and Chanakya Sethi suggest the court will “deliver its verdict on lingering issues about the government’s ‘duty to protect’ Canadians on foreign soil and the extraterritorial reach of the Charter in light of Canada’s international legal obligations.”

I think that the jury is still out on that question. In 2007’s R. v. Hape, a Charter case with an international law element, the majority expressly approved the doctrine of adoption qua reception of customary international law into Canadian domestic law.

While the recognition of Canada’s international law commitments is laudable, it is equally confusing; insofar as the majority’s reasons conflate conflict of laws (private international law) with public international law.

Clearly, Canada has entered into various multilateral and bilateral conventions or treaties — some of which create reciprocal rights and duties between state-state or investor-state, while others create or promote private rights of action. In any case, all such international instruments are implemented domestically via legislation.

However, customary international law principles, such as universal jurisdiction or jus cogens remain elusive (i.e. the 2004 Ontario Court of Appeal ruling in Bouzari v. Iran, which was refused leave to appeal to the SCC). The line between custom and convention is not easily drawn, as in the case of domestic versus international (or transnational) public policy.

Perhaps the following excerpt from Hape offers a glimmer of clarity:

“Parliament has clear constitutional authority to pass legislation governing conduct by non-Canadians outside Canada. Its ability to pass extraterritorial legislation is informed by the binding customary principles of territorial sovereign equality and non-intervention, by the comity of nations, and by the limits of international law to the extent that they are not incompatible with domestic law. By virtue of parliamentary sovereignty, it is open to Parliament to enact legislation that is inconsistent with those principles, but in so doing it would violate international law and offend the comity of nations. However, in light of the foregoing discussion of the jurisdictional principles of customary international law, the prohibition on interference with the sovereignty and domestic affairs of other states, and this Court’s jurisprudence, Canadian law can be enforced in another country only with the consent of the host state.”

Frankly, moral suasion will not work with the Harper government. As the Montreal Gazette reports: “The Harper government says it will not seek Omar Khadr’s repatriation from Guantanamo Bay but that it is considering other undisclosed options to make up for violating his constitutional rights.”

Since the court has already determined that Khadr’s Charter rights have been breached, he is constitutionally entitled to be tried in a Canadian criminal court and to seek a constitutional remedy here in Canada, rather than waiting in legal limbo in Guantanamo Bay for a military tribunal to decide his fate.

The rule of law is not the law of rule. All Canadians need to reflect on the legal maxim: “For every right, there is a remedy.”

[Disclosure: I previously acted as a legal consultant for Sgt. Layne Morris and Sgt. Speer’s widow Tabitha, both represented by Donald Winder of the Utah law firm, Winder & Counsel PC in the civil action against the estate of the late Ahmed Said Khadr]

Antonin I. Pribetic is litigation counsel at Steinberg Morton Hope & Israel LLP, and a sessional lecturer at UTM-Rotman School of Management’s diploma in investigative and forensic accounting program and author of the Trial Warrior Blog.