For the international campaign to close Guantanamo Bay, the Supreme Court has added its voice to the chorus of informed legal opinion in stating that the regime in Guantanamo Bay — at least at the time of the interrogations — violated the Geneva Conventions, which guarantee fundamental human rights to armed combatants.
But the judgment is potentially of much wider significance. Khadr is the latest in a line of cases in which the court has been asked to set out the precise application of the Charter in situations where Canada co-operates with foreign governments in the national security context. Canada works with foreign governments in different ways. For example, it may share intelligence, which foreign governments may then act upon to arrest, detain, interrogate, and even torture an individual — as tragically occurred in the case of Maher Arar. In other situations, Canadian officials may themselves be abroad — such as the CSIS officers who interrogated Omar Khadr in Guantanamo Bay, or Canadian armed forces in Afghanistan. Canada may also co-operate with foreign governments through extradition and deportation.
The precise constitutional issues raised by these different kinds of co-operation are different. But across different contexts, the Supreme Court has tried to strike a balance between two competing imperatives. On the one hand, the court has prevented Canada from circumventing its obligations under the Charter by acting through foreign intermediaries. But on the other hand, because foreign states are not bound by the Charter, the court has sought to avoid the de facto application of the Charter to foreign states through the backdoor.
The question is how to strike this balance. Prior to Khadr, the court’s initial answer came out of the cases on deportation, where the leading decision was Suresh v. Canada (Minister of Citizenship and Immigration). Suresh held that the Charter prohibited Canada from deporting someone to face torture, even though that torture would occur outside Canada, at the hands of a foreign state, at its own behest within its own territory, and the foreign state would not be acting under the control, as agents, or at the request of Canada.
In Khadr, we argued that that Suresh established what we termed the “doctrine of constitutional complicity,” which holds that Canada is constitutionally liable for human rights abuses committed by foreign states which occur outside of Canada when (a) such abuses would violate the Charter had they occurred in Canada at the hands of the Canadian government; and (b) Canada has been complicit in the human rights abuses of the foreign state.
The question is how far the doctrine of constitutional complicity extends. Torture clearly violates the Charter. Does the deportation of an individual to face any conduct, which, had it occurred in Canada at the hands of a Canadian official, would violate the Charter, be unconstitutional? Suresh’s clear answer to this question was no. The court stated that for a deportation to be unconstitutional, the conduct of the foreign government would have to “shock the conscience,” and in turn, used international human rights law to determine what exactly would shock the conscience. The illegality of torture under international law was a major reason why the deportation in Suresh violated the Charter. Thus, a threshold of seriousness must be crossed, and the mere violation of the Charter would not suffice.
The question was whether Khadr could fit within this framework. The challenge was that Khadr was a different case than Suresh, for a number reasons. First, the human rights abuses at issue were not torture, but a denial of basic due process. Second, Omar Khadr was never in Canadian custody, and hence, was never handed over by Canada to American authorities. What Canada handed over was not Omar Khadr himself, but rather intelligence that could assist the Americans in their prosecution against him. Third, unlike in Suresh, where Canada’s conduct took place from within Canada, here Canadian law enforcement officials were outside Canada when they co-operated with American authorities.
Khadr is very significant for how it dealt with all three issues, and considerably extends the ambit of the doctrine of constitutional complicity. First, it held that at the time of the Canadian interrogations, Khadr was denied rights to due process guaranteed by the Geneva Conventions, such as being held indefinitely without the ability to challenge the legality of his detention in the courts. Second, Canada was sufficiently connected to the proceedings against Khadr by interrogating him while in American custody and sharing the fruits of that interrogation. It was not necessary for Canada to have had any role in turning over Khadr to American authorities. Third, although outside Canada, Canadian officials were bound by the Charter when they participated in the legal proceedings against Khadr.
The last point is particularly important. The extraterritorial effect of the Charter has come before the court on a number of occasions, in garden variety criminal appeals. These cases have involved variations on the following scenario: Canadian police officers operating outside Canada obtain evidence pursuant to an interrogation or search that falls short of the standards set by the Charter, the accused are extradited back to Canada and face criminal prosecution, the Crown seeks to admit the evidence, and the accused objects on the basis that the evidence was unconstitutionally obtained. Last summer, a sharply divided court held in R. v. Hape that the Charter in general did not apply to Canadian officials abroad, out of respect for the sovereignty of foreign states. However, there was language in Hape that suggests that a “human rights exception” existed to the general rule of non-application. Khadr now firmly states that the human rights exception exists, and is triggered in cases where Canada acts contrary to its obligations under international human rights law — which coheres with the approach in Suresh.
This will matter a great deal for the next case on the way to the Supreme Court, Afghan Detainees. In that case, the British Columbia Civil Liberties Association and Amnesty International argue that Canadian Armed Forces stationed in Afghanistan violated the Charter by transferring captured individuals to Afghan custody, where they were tortured. The threshold question is whether the Charter applies. The Federal Court answered this question in the negative. But after Khadr, the Federal Court’s judgment is highly questionable, and is exceedingly likely to be reversed on appeal. Stay tuned.
Sujit Choudhry is the Scholl Chair and associate dean at the Faculty of Law, University of Toronto. He was counsel to the British Columbia Civil Liberties Association in the Khadr appeal.