Date: 20100705
Docket: T-230-10
Citation:
2010 FC 715
Ottawa, Ontario, July
5, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
OMAR
AHMED KHADR
Applicant
and
THE PRIME MINISTER OF CANADA,
THE MINISTER OF FOREIGN AFFAIRS and
THE MINISTER OF JUSTICE
Respondents
AND
BETWEEN:
Docket: T-231-10
OMAR AHMED KHADR
Applicant
and
THE PRIME MINISTER OF CANADA and
THE MINISTER OF FOREIGN AFFAIRS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
These
applications, at their heart, ask whether Mr. Khadr was entitled to procedural
fairness by the executive in making its decision as to how Canada would respond
to the declaration issued by the Supreme Court of Canada in Canada (Prime Minister) v.
Khadr, 2010
SCC 3 [Khadr II]. In Khadr II, the Court held that Mr. Khadr’s rights
under section 7 of the Canadian Charter of Rights and Freedoms had been
breached by Canada, and issued a
declaration to provide the legal framework for Canada to take steps to remedy that breach. For
the reasons that follow, in the unique circumstances of this case, I find that Omar
Khadr was entitled to procedural fairness by the executive when making its
decision as to the appropriate remedy to take. I further find that the
executive failed to provide Mr. Khadr with the level of fairness that was
required when making its decision. Both the degree of fairness to which he was
entitled and the remedy for having failed to provide it are unique and
challenging issues.
Background
[2]
The facts
surrounding Mr. Khadr, his beliefs, his actions, his treatment by the United
States of America (U.S.) while in custody in Afghanistan and Guantanamo Bay in Cuba, the validity of the charges against
him, and the legitimacy and fairness of the process he is currently facing are not
at issue here. The facts that are relevant to these applications are few, less
controversial, and are not in dispute.
[3]
Omar
Khadr was born in Toronto in 1986. He is a
Canadian citizen. He has spent most of his life away from Canada in Pakistan, Afghanistan, and most recently in Guantanamo Bay, Cuba.
[4]
In July
2002 there was a gun battle at Khost, Afghanistan, between troops
from the U.S. and persons alleged by the U.S. to be terrorists. During that battle, a
U.S. soldier was killed by a grenade which the U.S. alleges was thrown by Mr. Khadr, who was
then 15 years old.
[5]
Mr. Khadr
was seriously injured in this battle. He was taken into U.S. custody and treated by U.S. troops. He spent some time at Bagram
Airbase in Afghanistan before being transferred to Guantanamo Bay on October 28, 2002. He remains there.
[6]
President
George W. Bush, by Presidential Military Order in 2001, established the
detention camp at Guantanamo
Bay for the
detention and prosecution of non-U.S. citizens who were believed to be members
of al-Qaeda or engaged in international terrorism. Jurisdiction to try such
persons was given to military commissions. The persons subject to these orders,
one of whom is Mr. Khadr, were described as enemy combatants.
[7]
In
February and September 2003, agents from the Canadian Security Intelligence
Service (CSIS) and the Foreign Intelligence Division of Foreign Affairs and
International Trade (DFAIT) travelled to Guantanamo Bay and questioned Mr. Khadr. The
information obtained by these Canadian officials was provided to the U.S. Mr. Khadr was interviewed again in
March 2004 by a DFAIT official who knew, prior to the interview, that Mr. Khadr
had been subjected by U.S. authorities to a program of
sleep deprivation. A report
described this technique and its purpose:
In an effort to make him more
amenable and willing to talk, [blank] has placed Umar on the “frequent flyer
program.” [F]or the three weeks before [the] visit, Umar as not been permitted
more than three hours in any one location. At three hour intervals he is moved
to another cell block, thus denying him uninterrupted sleep and a continuous
change of neighbours. He will soon be placed in isolation for up to three
weeks and then will be interviewed again.
[8]
The actions
of these Canadian officials were soundly criticized by the Supreme Court of
Canada which found that their conduct violated the principles of fundamental
justice.
This conduct establishes
Canadian participation in state conduct that violates the principles of
fundamental justice. Interrogation of a youth, to elicit statements about the
most serious criminal charges while detained in these conditions and without
access to counsel, and while knowing that the fruits of the interrogations
would be shared with the U.S. prosecutors, offends the most basic Canadian
standards about the treatment of detained youth suspects: Khadr II,
para. 25
[9]
On March
15, 2004, Mr. Khadr commenced an action against the Crown relating to Canada’s
actions while he was in Guantanamo Bay (Court File: T-536-04). In that action
he is seeking a declaration that his Charter rights have been breached,
damages, and an injunction against further interrogation by Canadian government
officials. That action continues.
[10]
In June 2004,
the U.S. Supreme
Court
recognized the power of the government of the U.S. to detain enemy combatants,
but ruled that detainees who are U.S. citizens must have the ability
to challenge their detention before an impartial judge. The
Court's holdings were limited to detainees who were U.S. citizens; however, four of the justices, relying on the Geneva
Convention, held that
habeas corpus should be available to any alleged enemy combatant. In response, the U.S. Department
of Defense instituted Combatant Status Review Tribunals for all those held at Guantanamo Bay, Cuba.
[11]
On August 31,
2004, after Mr. Khadr had been questioned by the Canadian officials, a Summary
of Evidence memo was prepared for his Combatant Status Review Tribunal. The
summary alleged that Omar Khadr had admitted he threw a grenade which killed a
U.S. soldier, attended an al-Qaida training camp in Kabul and worked as a translator for al-Qaida
to coordinate landmine missions. In addition, he was accused of helping to
plant the landmines between Khost and Ghardez, and having visited an airport
near Khost to collect information on U.S.
convoy movements.
The Supreme Court found that “[t]he record suggests that the interviews
conducted by CSIS and DFAIT provided significant evidence in relation to
these charges:” Khadr II, para 20 (emphasis added). The Combatant
Status Review Tribunal reviewed Mr. Khadr’s status and concluded that he was an
enemy combatant. In so ruling, Mr. Khadr’s continued detention by the U.S. was legal, according to American law.
[12]
On
February 8, 2005, following his status review, Mr. Khadr brought a motion in
this Court (Court File T-536-04) seeking an interlocutory injunction to prevent
Canadian officials from interviewing him further. Justice von Finkenstein
granted that injunction on August 8, 2005: Khadr v. Canada, 2005 FC
1076.
[13]
On November 7, 2005, Mr. Khadr was formally charged
with a number of offences. As a result of irregularities
in the process and procedure followed by the U.S. government, the charges against Mr. Khadr have been re-laid at least
twice. He currently stands charged with five offences pursuant to the Military
Commissions Act of 2006, Pub. L. 109-366, 120 Stat.2600 and Manual For
Military Commissions: (1) Murder in Violation of the Law of War, (2) Attempted
Murder in Violation of the Law of War, (3) Conspiracy, (4) Providing Material
Support for Terrorism, and (5) Spying. His trial on these charges is scheduled
to commence at Guantanamo Bay on August 10, 2010.
[14]
Mr. Khadr
has been seeking his return to Canada for more than five years
through numerous avenues and intermediaries. A request made by his solicitors
on July 28, 2008 directly to Canada and the failure of Canada to respond to it led
to an application to this Court for judicial review (Court File T-1228-08).
[15]
On April
23, 2009, Justice O’Reilly allowed the application for judicial review of the
“ongoing decision and policy” of the Government of Canada not to seek the
repatriation of Mr. Khadr to Canada: Khadr v. Canada (Prime Minister), 2009 FC 405. He found that Canada had infringed Mr. Khadr’s
rights under section 7 of the Charter, which provides that:
Everyone has the right to
life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
[16]
Justice
O’Reilly ordered Canada to remedy this breach of the Charter
by requesting the U.S. to “return Mr. Khadr to Canada as soon as practicable.”
[17]
A majority
of the Federal Court of Appeal dismissed an appeal by the Crown: Khadr v. Canada (Prime Minister), 2009 FCA 246. The Court of
Appeal stated: “At the root of the Crown’s appeal is its argument that the
Crown should have the unfettered discretion to decide whether and when to
request the return of a Canadian citizen detained in a foreign country, a
matter within its exclusive authority to conduct foreign affairs.” On this
issue, the Court of Appeal held that the Supreme Court had already found that Charter
was engaged in the circumstances of Omar Khadr in its earlier decision in Canada
(Justice) v. Khadr, 2008 SCC 28 [Khadr I].
[18]
The Court
of Appeal held that there was no factual basis for Canada’s submission that an
order to seek repatriation constituted a “serious intrusion into the Crown’s
responsibility for the conduct of Canada’s foreign affairs,” and that “Justice O'Reilly did not
err in law or fact when he concluded that, in the particular circumstances of
this case, the Crown's refusal to request Mr. Khadr's repatriation is a breach
of Mr. Khadr's rights under section 7 of the Charter.”
[19]
In Khadr
II the Supreme Court upheld the finding that Mr. Khadr’s rights under
section 7 of the Charter had been breached, but varied the remedy that had
been ordered. In place of the remedy ordered by Justice O’Reilly and affirmed
by the Court of Appeal, the Supreme Court issued the following declaration which
defined the Charter breach:
… [T]hrough 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.
[20]
The
Supreme Court found that “the breach of Mr. Khardr’s s. 7 Charter rights
remains ongoing and that the remedy sought [of asking the U.S. to repatriate Mr. Khadr to Canada] could
potentially vindicate those rights” (emphasis added). However, the
Court held that the remedy of repatriation sought by Mr. Khadr and ordered by
the lower courts was not “appropriate and just in the circumstances” before it.
[21]
The
Supreme Court gave three reasons why the order of repatriation was not appropriate
and just in the circumstances before it. First, in ordering Canada to seek Mr. Khadr’s
repatriation it said that the lower courts gave “too little weight to the
constitutional responsibility of the executive to make decisions on matters of
foreign affairs.” Second, it held that it was unclear whether the U.S. would
agree to a request that Mr. Khadr be repatriated to Canada. Third, it expressed concern that it
did not have a complete record from which it could obtain a complete picture of
the “range of considerations currently faced by the government in assessing Mr.
Khadr’s request.”
[22]
It may be
inferred from the judgment that had these three concerns been satisfied, the Supreme
Court would have found that repatriation was an appropriate and just remedy,
and it would have affirmed the Order of the lower courts.
[23]
In my
view, the second of the above reasons, the uncertainty of the U.S. response, was the basis upon which the
Court said that seeking repatriation “could potentially vindicate” Mr.
Khadr’s rights (emphasis added). It would be an effective remedy only if
the U.S. agreed to the request and did
return Mr. Khadr to Canada. If he was released, then he
would be removed from U.S. detention, and it was his detention that the Court
found to be the consequence of Canada’s breach of his Charter
rights, and it was his detention that the Charter obliges Canada to cure.
[24]
The Court
noted at para 30 of Khadr II that “[a]n appropriate and just remedy is
‘one that meaningfully vindicates the rights and freedoms of the claimants’: Doucet-Boudreau
v. Nova
Scotia
(Minister of Education),
2003 SCC 62, [2003] 3 S.C.R. 3, at para. 55.” For the three reasons set out
previously, the Court was of the view that it was not in a position to craft an
effective remedy, but left the crafting of that remedy to Canada. The Supreme Court held:
The prudent course at this point,
respectful of the responsibilities of the executive and the courts, is for this
Court to allow Mr. Khadr's application for judicial review in part and to grant
him a declaration advising the government of its opinion on the records before
it which, in turn, will provide the legal framework for the executive to
exercise its functions and to consider what actions to take in respect of Mr.
Khadr, in conformity with the Charter. Khadr II, para. 47
(emphasis added)
[25]
On
February 3, 2010, shortly after the release of Khadr II, the Associate
Director of Communications for the Prime Minister of Canada and the Minister of
Foreign Affairs both provided statements to the press with respect to the
position of the government in light of the decision in Khadr II. Both stated
that the government was reviewing the decision of the Supreme Court but both
made it clear that the government had not changed its previous position; it
would not seek the repatriation of Mr. Khadr.
[26]
These public
statements that the executive was continuing its policy of not requesting the U.S.
to repatriate Omar Khadr from Guantanamo
Bay, Cuba reflect the decision under review in Court
File T-231-10.
[27]
On
February 16, 2010, in response to the decision in Khadr II, Canada sent
a diplomatic note to the government of the U.S. requesting that it not use any of the
information provided to it by Canada in its prosecution of Mr.
Khadr. This note and the response from the government of the U.S. are reproduced in Annex A and Annex B,
respectively.
[28]
Canada’s
response by way of the diplomatic note constitutes the decision under review in
Court File T-230-10 in which Mr. Khadr seeks “judicial review in respect of the
Respondents’ decision of February 16, 2010, to remedy the Charter
violation identified in Canada (Prime Minister) v. Khadr, 2010 SCC 3, by
sending the diplomatic note of February 16, 2010, and to provide no other
remedy.”
[29]
It is of
note that after the public statements were made by the government spokesperson
and the Minister, counsel for Mr. Khadr wrote to counsel for Canada on February 5, 2010 asserting
that Mr. Khadr was entitled to procedural fairness and natural justice in the
executive’s consideration of a remedy:
We understand from the recent
comments of the Rt. [sic] Hon. Minister Cannon and an e-mail of today’s
date from Mjr. Jeff Grohraring USMC that the Minister of Justice and/or the
Minister of Foreign Affairs may be considering an appropriate remedy for the Charter
violation identified in the recent decision of the Supreme Court of Canada in Canada
(Prime Minister) v. Khadr, 2010 SCC 3. To this end, it appears that copies
of the pleadings filed in the upcoming motion to suppress statements before
Col. Parish, Military Judge, have been requested of the Prosecution by the
Minister of Foreign Affairs.
We as Mr. Khadr’s counsel
request formal notice as to the nature of any issues presently under
consideration which will affect the rights and interests of our client, as well
as the opportunity to present informed submissions in advance of any such
decision. We also request a reasonable level of disclosure as to those
materials which are relevant to this issue and in the possession or power of
the Canadian government.
We reserve the right to rely
upon any violations of the principles of fairness, natural justice and/or
fundamental justice which would result from a failure to respond to this
request.
[30]
Counsel
for Canada responded with an explanation as to why it made the request to the U.S. for copies of the pleadings; however, no
response was provided to the request for notice and an opportunity to present
submissions before a decision was taken by the executive. Mr. Khadr thus had
no knowledge of the action Canada would be taking or an
opportunity to make submissions concerning it before Canada sent the diplomatic
note to the U.S.
[31]
These
applications were ordered consolidated by the Chief Justice on April 9, 2010,
and were heard together in Edmonton,
Alberta, on June 8, 2010.
[32]
The relief
sought by Mr. Khadr in both applications is identical except for the date of
the decision under review. They read as follows:
The Applicant
makes application for:
(1) An Order pursuant to ss. 6, 7, 12 and 24(1)
of the Canadian Charter of Rights and Freedoms in the nature of certiorari
setting aside the decision …;
(2) An Order pursuant to ss. 6, 7, 12 and
24(1) of the Canadian Charter of Rights and Freedoms in the nature of mandamus
requiring the Respondents to demand the repatriation of the Applicant from the
custody of U.S. forces in Guantanamo
Bay, Cuba;
(3) In the alternative, an Order directing
the Respondents to reconsider their decision … having first accorded the
Applicant a fair opportunity to be heard;
(4) Costs; and
(5) Such further and other relief as the
Court deems to be just and appropriate.
Issues
[33]
The issues
put before the Court in these applications are issues of procedural fairness
and natural justice. Counsel for the applicant explicitly stated in his oral
submissions that the issue of whether the response of the executive was
“unreasonable or patently unreasonable or something of that nature” was not being
raised in these applications.
[34]
In my
view, based on the memoranda filed and the oral submissions made by counsel for
the parties, there are five issues that this Court must address. They relate
to one or both of the “decisions” under review. The first decision is
reflected in the public statements made February 3, 2010, not to seek the
repatriation of Omar Khadr from the U.S.
which, for convenience, I shall refer to as “Decision I”. The second decision is
Canada’s decision to ask the U.S. not to use any evidence or
statements Canada shared with it as a result of
the interviews Canadian officials conducted with Mr. Khadr in any proceedings
against him which I shall refer to as “Decision II”. Collectively, and again
for ease of reference, I shall refer to these two decisions as “Canada’s Response” to the
declaration issued by the Supreme Court of Canada. In my view, Canada’s
response was two-fold: (1) it decided not to request the U.S. to repatriate Mr. Khadr and (2) it
decided to ask the U.S. not to use the information it
had shared with them against Mr. Khadr’s interests.
[35]
The five issues
before the Court are the following:
1. Is Decision I, as reflected in
the statements made on February 3, 2010, regarding the declaration issued by
the Supreme Court of Canada a “decision”, subject to judicial review?
2. Is Decision II, Canada’s response to the declaration
issued by the Supreme Court of Canada by sending the diplomatic note, subject
to judicial review?
3. Was Mr. Khadr entitled to
receive procedural fairness and natural justice in relation to Canada’s Response to the declaration
issued by the Supreme Court of Canada?
4. If Mr. Khadr was entitled to
receive procedural fairness and natural justice in relation to Canada’s Response to the declaration
issued by the Supreme Court of Canada, did he receive it?
5. If Mr. Khadr was not provided procedural
fairness and natural justice in relation to Canada’s Response to the
declaration issued by the Supreme Court of Canada, what, if any, Order should
this Court issue as a consequence?
Analysis
1. Is the
decision reflected in the statements made on February 3, 2010, regarding the
declaration issued by the Supreme Court of Canada a “decision” subject to judicial review?
[36]
Mr. Khadr
submits that the “decision” of February 3, 2010 is captured by the following
exchange between Mr. Dimitri Soudas, the Associate Communications Director of
the Prime Minister, and the media:
Q: Will you comply?
DS: It’s a court decision and
it’s from the highest court. Complying with it means you respect the
decision. Their ruling said we get to decide ….
…
Q: Apart from bringing him
back to Canada, are there things the
government can do to respect the court’s judgment regarding the violation of
his Charter rights?
DS: We’re reviewing that and
more will follow….
Q: So there’s no shift in
your overall position that you’ve held about whether or not he comes back to Canada?
DS: Correct.
Q: But you are reviewing,
just so we’re clear, you are reviewing his situation there and there may be
things the government of Canada may do to help him or ameliorize [sic]
his situation?
DS: The minister of justice
will obviously have a lead role in this. But there is no shift in Canadian
policy on this. And when I say there is no shift in Canadian policy, I take it
all the way back to the previous government.
[37]
Mr. Khadr
further submits that the “decision” of February 3, 2010 is also captured by the
following exchange between the Honourable Lawrence Cannon, Minister of Foreign
Affairs, and the media:
Q: Minister Cannon, could you
tell us how your government came to the decision not to request Mr. Khadr’s
return to Canada after the Supreme Court
decision? We heard from the Prime Minister’s Office today that there’s been no
change in position on the return of Mr. Khadr.
Hon. Lawrence Cannon: Well,
there hasn’t been a change in position.
Q: How did you get to that
decision?
Hon. Lawrence Cannon: Well,
how did we get to that decision? It’s exactly the same decision that we have
taken since the very outset of this incident or at least of this file. You’ll
recall that we of course respect the decision that the Obama administration has
taken to close down Guantanamo but at the same time to make sure that those
people who are held and that have charges that are – that they – that are being
put forward and that they are facing that indeed the American justice system go
forward. That has been our position from the beginning. We’ve said the [sic]
Mr. Khadr is facing serious charges. As you will recall, Mr. Khadr is being
held by the Americans because of his involvement or alleged involvement, I
should say, in the murder of an American military officer who indeed I should
say American medical officer who died in an incident and he’s being held on
those charges. We continue to provide consular services. We have done so.
Mr. Khadr is receiving all of the services that normally we would provide any
other citizen and in that regard –
Q: What about his rights
violation?
Hon. Lawrence Cannon: – I’m
finishing my question, Jennifer. And in that regard –
Q: What about his rights
violation?
Hon. Lawrence Cannon: – in
that regard we will continue – we will continue to monitor the situation as we
have been doing and my understanding is that the Americans will make a
determination on that and we will let the Americans make that determination and
once that is done we will see what the next steps are.
[38]
The
respondents submit that these statements made to the media that underlie the
application in T-231-10 are not amenable to judicial review. They submit that
they are “merely statements and not decisions.” The respondents say that 1099065
Ontario Inc. (carrying on business as Outer Space Sports) v. Canada (Minister of Public Safety
and Emergency Preparedness),
2008 FCA 47, supports this submission.
[39]
The “decision”
under review in 1099065 Ontario Inc. was a letter proposing a meeting
and suggesting dates. The Court of Appeal noted that there was nothing in the
letter that impacted the applicant as he could simply choose to ignore it or
decline the proposal to meet. The circumstances here are substantially
different. Here the “decision” to hold the course and not seek repatriation
did directly impact Mr. Khadr. Here, it is not the statements of these two men
that are under review but the decision made by the executive that is reflected
in the statements made. Further, I agree with the applicant that this Court
has already held in Khadr v. Canada (Prime Minister), 2009 FC 405 that decisions
not to take a certain course of action that are evidenced by public statements
are justiciable.
In this respect the decision in T-231-10 is no different in nature than the decision
under review in Khadr II although the circumstances when the decisions
were each made differed significantly. The real question is whether these
statements evidenced a new decision or whether these men were merely reiterating
the government’s previous position. In my view, these statements can only be seen
to reflect a new decision made after the declaration of the Supreme Court had
issued such that they clearly indicate that regardless of what action the
executive would be taking, it would not be seeking repatriation. To find that
these statements were not reflective of a new decision in these circumstances
would require a finding that the Prime Minister’s Associate Communications
Director and the Minister of Foreign Affairs were speaking without the
authority of a decision by the executive having been made. There is no evidence
to support such a finding and given their senior roles such lack of
authorization should not be assumed absent convincing evidence.
[40]
This leads
to the second objection raised by the respondents. They submit that the
decision not to seek Mr. Khadr’s repatriation has already been litigated by
these parties, culminating in Khadr II, and that it is therefore res
judicata in that this very issue was finally determined by the Supreme
Court.
[41]
Res
judicata functions
to prevent causes of action or issues from being re-litigated. In this case,
the respondents rely on issue estoppel as a bar to these applications. In
order to successfully plead issue estoppel, the pleading party must prove:
(1)
that the same question has been decided;
(2)
that the judicial decision which is said to create the estoppel was
final; and
(3)
that the parties to the judicial decision or their privies were the same
persons as the parties to the proceedings in which the estoppel is raised or
their privies: Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R.
460 at 477 citing Angle v. Minister of National Revenue, [1975] 2 S.C.R.
248 at 254.
[42]
This
tri-partite test is conjunctive; all three tests must be met before an estoppel
is found.
[43]
The second
and third parts of this test are satisfied in that the parties in this
application are the same as in Khadr II and it was a final decision. However,
I am of the view that the first part of the test is not met.
[44]
It is true
that Justice O’Reilly held that Canada’s refusal to seek repatriation violated
the principles of fundamental justice (because Canada had a duty to protect Mr. Khadr) and
therefore, his section 7 Charter rights; however, the Federal Court of
Appeal and the Supreme Court of Canada defined the question before them quite differently.
The Supreme Court defined the issue before it as whether Canada had participated in a process
that contributed to Mr. Khadr’s detention so as to deprive him of his right to
liberty, not in accordance with the principles of fundamental justice. The
question that was answered is not the same question as is before this Court on
this application.
[45]
Furthermore,
the context of the application made to Justice O’Reilly and this application
are substantially different. In Khadr II, the decision made by Canada was not in response to a
declaration issued by the Supreme Court finding a breach of Mr. Khadr’s Charter
rights and mandating a remedy. In this case, the decision made by Canada was such a response. While
procedural fairness could have been argued in Khadr II, the question
would not have been whether Mr. Khadr was entitled to procedural fairness in Canada’s decision responding to a
declaration of the Supreme Court in the nature already discussed. The
questions could not possibly have been the same because the circumstances had
changed significantly by the time the decision in this application was made.
Therefore, the first precondition for issue estoppel is not met. The issue
before me is not res judicata.
2. Is Canada’s response to the declaration
issued by the Supreme Court of Canada subject to judicial review?
[46]
The respondents
submit that to the extent that Court File T-230-10 “seeks to review the
question of whether a court should make an order that the government request
Mr. Khadr’s repatriation” that issue was already decided in Khadr II. Accordingly,
it says that issue is res judicata.
[47]
As noted
previously, it is true that Mr. Khadr in these applications is asking the Court
to direct Canada to seek his repatriation; however, this application seeks to
set aside Decision II because he was not afforded procedural fairness in Canada’s response to the Supreme
Court’s declaration. That question was not before any of the courts in Khadr
II nor could it have been.
[48]
Therefore,
I reject the respondents’ submissions that Canada’s response to the declaration issued by
the Supreme Court of Canada is not subject to judicial review because of the application
of the doctrine of res judicata.
[49]
The
respondents also submit that these decisions are not reviewable because section
7 of the Charter is not engaged by the process Canada undertook to comply with the Supreme
Court's declaration in Khadr II. Their submission, as set out in their
memorandum, is as follows:
In Khadr 2010, the Supreme
Court held that the section 7 rights of Mr. Khadr were engaged because
information from the Canadian interviews could be taken to have contributed to
his continued detention. It was from this engagement of his section 7 rights
that the analysis of the applicable principles of fundamental justice and
appropriate remedy flowed. In this case, however, how can it be said that Mr.
Khadr’s section 7 rights are triggered by the steps taken by the government to
address the breach so identified by the Supreme Court?
If section 7 is not engaged,
the government’s response to the declaration issued by the Supreme Court of
Canada in Khadr 2010 is an entirely discretionary decision within the realm of
foreign policy by the executive branch of government which is not amenable to
review on procedural fairness grounds.
[50]
The respondents’ submission that
section 7 of the Charter is not engaged is without merit. The Supreme
Court of Canada found that Canada’s breach was first done in 2003 and 2004 by
interviewing Mr. Khadr and passing on the content of the interviews to the U.S. It also
found that it was a continuing breach as Mr. Khadr remained in detention by the
U.S. and that Canada’s illegal acts contributed to this. So long as the
breach of Mr. Khadr's rights remains ongoing, section 7 of the Charter is
engaged. How can it be said that a decision to cure or ameliorate that ongoing
breach does not engage his section 7 Charter rights? The whole premise
of the government action was to remedy the breach that it had caused.
[51]
In my view, if it has been found
that a person’s rights under the Charter have been infringed by the
government and that infringement is ongoing, then the Charter remains
engaged until the government has taken steps to cure the breach or has
satisfied a court of competent jurisdiction that it cannot be cured and that it
has taken all reasonably practicable steps to provide a remedy for its breach.
[52]
On the
record before this Court, Canada has taken only one positive
action in response to the declaration that it breached Mr. Khadr’s rights; it
sent the diplomatic note to the U.S.
It received a response and has done nothing further. In her oral submissions,
counsel for the respondents reminded the Court that Canada has a remarkable
history of complying with court decisions and, consistent with this history, Canada has complied with or
responded to every court decision relating to Mr. Khadr. Counsel for the
respondents also admitted in her oral submissions that Canada was obligated to respond to the Supreme
Court’s declaration swiftly and that “not doing anything at all would be very
difficult to justify.” In light of that acknowledgment and given the response
of the U.S. to the note, one must
conclude that Canada is of the view that its first
and only action has remedied the breach or that there are no reasonably practicable steps to provide a remedy; otherwise it would have advanced
other potential curative remedies. As will be seen, I do not share the view
that Canada, in its actions taken to date, has remedied the breach or that
there are no other potential curative remedies available.
[53]
In any
event, the respondents’ submission, in my view, is really a submission that the
actions of the executive in fashioning the remedy it did are not subject to
judicial review because they were was done in the exercise of the royal
prerogative; this brings us to the third issue.
3. Was Mr. Khadr entitled to
receive procedural fairness and natural justice in relation to Canada’s
Response to the declaration issued by the Supreme Court of Canada?
[54]
The respondents submit that like a
decision delegated by statute to the Governor in Council, a decision made
pursuant to the royal prerogative must be treated with much sensitivity, and
that the Supreme Court recognized this sensitivity in Khadr II by
leaving the final decision of how to proceed up to the government. They rely
on the decision of the Supreme Court of Canada in Attorney General of Canada
v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, and the statement at p.
757 therein that “… there is no need for the Governor in Council to give
reasons for his decision, to hold any kind of hearing, or even to acknowledge
the receipt of a petition …” from those affected.
[55]
I agree with the applicant that
the facts before the court in Inuit Tapirisat differ significantly from
those in this application. There, the decision of the executive was its denial
of an appeal of a decision of the CRTC regarding telephone rates. It was a
decision affecting many persons. The Supreme Court held that whether the rules
of natural justice and procedural fairness applied was dependant upon a number
of considerations including the subject matter of the decision at issue and the
consequences to the person(s) affected. The Court held that no such duty was
owed in that case, given these and other considerations. Importantly, it also
made it clear that where the decision is an administrative one, rather than a
legislative one, and where the res or subject matter is an individual
concern or a right unique to the petitioner or appellant, rather than something
affecting a broad group, different considerations arise.
[56]
Unlike Inuit
Tapirisat, the present decisions under review directly impacted only one
citizen, Omar Khadr.
[57]
The
respondents submit that Canada’s Response is not justiciable
because it was a decision of the executive, on broad grounds of public and
foreign policy, taken in the exercise of the royal prerogative in that it
affected foreign relations.
[58]
The narrow issue to be
determined is whether the duty to be fair applies to Canada’s Response, which the applicant concedes involved the exercise of the
royal prerogative.
[59]
The Magna
Carta (1215), The Bill of Rights (1689), and the Act of Settlement (1701) were
arguably the first steps taken to curtail the absolute powers of the Crown and
establish the concept of parliamentary sovereignty. They began a process of
restricting the prerogatives of the Crown that continues to the present day.
[60]
The applicant says that
fairness applies because the decisions affect his individual rights. He cites
and relies upon the following passage from David Phillip Jones & Anne D.S.
De Villars, Principles of Administrative Law, 5th ed. (Toronto:
Carswell, 2009) at p. 244:
More recent decisions, however, seem to hold that, at least in
principle, the duty to be fair does extend to the exercise of the prerogative
powers. These cases suggest that the prevailing consideration in determining
whether the duty of fairness extends to the exercise of the prerogative power
is the subject matter involved, not the source of the power: that is,
regardless of whether the decision stems from a prerogative power, does the
decision affect the rights of an individual? If yes, the decision is subject
to judicial review and the duty of fairness [citations omitted].
[61]
Although not cited by
these authors, their conclusion is consistent with that reached by the Ontario
Court of Appeal in Black v. Canada (Prime Minister) (2001), 54 O.R. (3d)
215 (C.A.). That court adopted the finding of the House of Lords in Council
of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C.
374, which the Court of Appeal at para. 51 summarizes as follows:
Under the test set out by the House of Lords, the exercise of the
prerogative will be justiciable, or amenable to judicial process, if its
subject matter affects the rights or legitimate expectations of an individual.
Where the rights or legitimate expectations of an individual are affected, the
court is both competent and qualified to judicially review the exercise of the
prerogative.
[62]
In this case, as has
been discussed, the applicant submits that his rights are affected by the
executive’s exercise of the royal prerogative because his section 7 rights were
engaged. Therefore, he says, Canada’s Response is reviewable. I agree that
his section 7 rights were engaged. Whether the remedy the executive chose
cured the breach or not, its decision most certainly affects Mr. Khadr’s Charter
rights and therefore is justiciable.
[63]
Moreover, I am of the
view that Mr. Khadr had a legitimate expectation that Canada would take action to cure the breach of his Charter rights in
light of the declaration that Canada had breached his rights. As was observed
by Chief Justice McLachlin, writing for the Court in R. v. 974649 Ontario
Inc., 2001 SCC 81, at para. 20 “a right, no matter how expansive in theory,
is only as meaningful as the remedy provided for its breach.” As such, the decision
taken affected his legitimate expectations and, following the finding in Council
of Civil Service Unions, it is justiciable.
[64]
Madame Justice L'Heureux-Dubé at
p. 839-840 of her reasons in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, described how a party’s
legitimate expectations may determine his entitlement to procedural fairness:
…[T]he
legitimate expectations of the person challenging the decision may also
determine what procedures the duty of fairness requires in given circumstances.
Our Court has held that, in Canada, this doctrine is part of the doctrine of
fairness or natural justice, and that it does not create substantive rights ….
As applied in Canada, if a legitimate expectation is found to exist, this will
affect the content of the duty of fairness owed to the individual or
individuals affected by the decision. If the claimant has a legitimate
expectation that a certain procedure will be followed, this procedure will be
required by the duty of fairness …. Similarly, if a claimant has a
legitimate expectation that a certain result will be reached in his or her
case, fairness may require more extensive procedural rights than would
otherwise be accorded…. Nevertheless, the doctrine of legitimate
expectations cannot lead to substantive rights outside the procedural domain.
This doctrine, as applied in Canada, is based on the principle that the
"circumstances" affecting procedural fairness take into account the
promises or regular practices of administrative decision-makers, and that it
will generally be unfair for them to act in contravention of representations as
to procedure, or to backtrack on substantive promises without according
significant procedural rights. [emphasis added and authorities omitted]
[65]
In my view, Mr. Khadr
had a legitimate expectation based on the declaration of the Supreme Court that
Canada would effect a remedy that would cure the breach, and
if no such curative remedy was available, then it would effect a remedy that would
ameliorate the breach. This expectation is founded on section 24 of the Charter
and the express words of the Supreme Court that its declaration provided “the
legal framework for the executive to exercise its functions and to consider
what actions to take in respect of Mr. Khadr, in conformity with the Charter.”
[66]
Mr. Khadr’s
circumstances vis-à-vis Canada may be contrasted with that of Mr. Abassi
vis-à-vis the United Kingdom as set out in the decision of the English
Court of Appeal in Abassi v. Secretary of State for Foreign and Commonwealth
Affairs, [2002] EWCA Civ. 1598.
[67]
Mr. Abassi is a British
national. Like Mr. Khadr, he was captured by the U.S.
in Afghanistan and transported to Guantanamo Bay, Cuba. After he had been detained for 8 months without
charge or access to a court or hearing, his family brought an application for
judicial review, to compel the government of the United Kingdom to make
representations on his behalf to the U.S. government to
either take appropriate action or explain why it had not done so.
[68]
The Court of Appeal
dismissed the application holding that at international law a State was under
no “duty to intervene by diplomatic or other means to protect a citizen who is
suffering or threatened with injury in a foreign State:” Abassi, para.
69. The Court also found that the Convention for the Protection of Human
Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221, Eur.
T.S. 5, provided Mr. Abassi with no assistance unless it could be shown that England had effective control over Guantanamo Bay or that it had extra-territorial jurisdiction over
Mr. Abassi. It had neither. As it was put by the Court:
[His counsel] has not identified any relevant control or authority
exercised by the United Kingdom
over Mr. Abassi in his present predicament. Nor has he identified any act of
the United Kingdom government
of which complaint can be made that it violates Mr. Abassi’s human rights.
[69]
Just as the United Kingdom had no control or authority over Mr. Abassi, Canada has no control or authority over Mr. Khadr. However,
unlike the United Kingdom’s treatment of Mr. Abassi, there has been a finding
that Canada violated Mr. Khadr’s human rights, and this fact, and the
requirement at law that such breaches be vindicated, imposes on Canada a duty
to intervene by diplomatic or other means to cure the breach if possible and,
if it is not possible to cure it, to attempt to ameliorate it.
[70]
The Supreme Court found
that a person whose rights under the Charter have been breached is
entitled to an effective remedy from the breaching party – Canada in this case. Having found that Mr. Khadr’s section
7 rights were breached and having issued a declaration to that effect, Mr.
Khadr could legitimately expect that the Crown would remedy its breach. In my
view, the option of doing nothing was not an option that was legally available
to Canada, given the declaration of the Supreme
Court – doing nothing would not be in conformity with the Charter. Such a
response, or non-response, in my view, would only comply with Canada’s Charter obligations if there was no action
that could be taken to cure or ameliorate the breach. The paucity of remedy is
not the case here as the Supreme Court held that requesting repatriation was
potentially an effective remedy.
[71]
Mr. Khadr was entitled
to receive procedural fairness and natural justice from the executive as it
reached its decision as to the Charter remedy it would provide. Had the
government done what Mr. Khadr sought, seeking his return to Canada, then it would not have been necessary for the
executive to engage Mr. Khadr. His wishes were already stated and well-known.
When Canada made the decision not to seek his
repatriation but to fashion a different remedy, then Mr. Khadr was entitled to
be afforded procedural fairness and natural justice.
4. Did Mr. Khadr
Receive Procedural Fairness and Natural Justice from Canada?
[72]
The
procedural fairness and natural justice required will vary depending on the
circumstances of the decision and the decision-maker. In this case, I find
that the level of fairness required to have been provided was at the low end of
the scale. Even so, I find that Mr. Khadr did not receive fairness.
[73]
The most basic
requirement of justice is that a person affected by a decision be given notice
of it. In my view, that basic principle applies all the more when the decision
being taken directly affects one individual and is being take to cure or
ameliorate a previous breach of that individual’s Charter rights. Donald
J. M. Brown & John M. Evans, Judicial Review of Administrative Action in
Canada, 2d ed., looseleaf (Toronto: Canvasback Publishing, 2009)
at p. 9-1 summarize this duty and its importance in the following passage:
It is therefore a fundamental element of
the duty of fairness at common law, and, where applicable, of the
constitutionally-guaranteed principles of fundamental justice, that prior
notice be given to those entitled to participate that a decision is going to be
made or some administrative action taken. In the words of the Supreme Court of
Canada:
This rule is so very fundamental in our
legal system that I do not think there is any necessity to discuss it at
length. [citation omitted]
[74]
Mr.
Khadr’s counsel attempted to become involved in the process after the decision
was taken that Canada would not seek the return of
Mr. Khadr, as is evident from the email sent on February 5, 2010.
[75]
When the Supreme Court
provided the executive with an opportunity to fashion a remedy and after the
executive decided that it would not seek Mr. Khadr’s return as he had
requested, the executive then had a duty to inform Mr. Khadr of that decision, the
remedy it was considering, and the action it would be taking. It also had a
duty to give Mr. Khadr an opportunity to make written submissions as to remedial
action(s) that would be appropriate before it unilaterally imposed its
purported remedy.
[76]
One should
not interpret anything that has been said as suggesting that the executive had
to accede to any request or suggestion made by Mr. Khadr. On the other hand,
that is not to say that the executive could do nothing, or could choose not to
provide the best possible remedy for the breach.
5. What, if any,
Order should this Court issue?
[77]
The Charter was breached
when Canadian officials interrogated Mr. Khadr in the circumstances as
described above and then shared the information they obtained from him with the
U.S. The Supreme Court held that in so doing Canada contributed
to Mr. Khadr’s detention and his ongoing detention by the U.S. The initial breach cannot be cured; the ongoing
breach may be curable.
[78]
At the hearing, I
stated that there appeared to me to be two obvious remedies that, if accepted
by the U.S., would cure the breach: (1) to ask the U.S. to end the detention
of Mr. Khadr and return him to Canada or (2) to ask the U.S. not to use the
information Canada provided so that if he continues to be detained, the
detention is not casually linked to Canada’s actions.
[79]
There may be other
possible remedies that would cure the breach.
[80]
Counsel for the
applicant at the hearing, in response to a question from the Court, submitted
that there are a number of actions Canada could take that
would not cure the breach but would ameliorate it. One example given was
asking the U.S. to try Mr. Khadr as a juvenile, given his
age at the time the alleged offences were committed. Whether this remedy would
ameliorate the effect of the breach or just ameliorate the consequences of the
charges Mr. Khadr faces is unclear. What is clear to the Court is that Mr. Khadr
claims to have a number of suggestions of remedial action that he would offer to
the Crown if given the opportunity.
[81]
A court will not grant
a remedy for a breach of procedural fairness if it will have no effect on the
result. If the same decision would have been reached even if natural justice
had been provided then this Court will not quash the decision.
[82]
In this case the
diplomatic note has been sent and there has been a response. That cannot be
undone – it is an historical fact. Accordingly, I will not grant the order, as
requested, in the nature of certiorari setting aside the decision to ask
the U.S. not to use the information provided to it
by Canada. Doing so would be ineffective.
[83]
The applicant asks, in
the alternative, that the Court issue an order directing the respondents to
“reconsider their decision to ask the U.S. not to use the information provided
to it by Canada, having first accorded Mr. Khadr an
opportunity to be heard.
[84]
In my view, if the
actions of Canada in asking the U.S. not to use the
information provided to it by Canada cured Canada’s breach, then there is no
need for Canada to reconsider its decision as Mr. Khadr
has received his Charter remedy. A breach need not be cured twice.
[85]
It is clear on the
record before the Court that the breach has not been cured. First, the U.S. did not accede to Canada’s request not to use the information it provided. The U.S. merely responded that the prosecution of Mr. Khadr
would be governed by the Military Commissions Act of 2009, Pub. L. 111-84,
123 Stat. 2190; it has provided no assurance that the information would not be
used against Mr. Khadr’s interests. Second, the record discloses that following
the response by the U.S. government to Canada’s request, the information was used by the U.S.
in the prosecution of Mr. Khadr.
[86]
Kobie Flowers, one of
Mr. Khadr’s defence counsel in the military commission prosecution being
conducted at Guantanamo Bay, provided an affidavit in which he swears
that on April 28, 2010, in response to a motion brought by Mr. Khadr to
suppress evidence, the U.S. called a witness who testified that:
… [S]he reviewed video recordings of interviews of the Applicant
conducted by Canadian government officials at GTMO on February 13. 14, 15 and
16, 2003 and prepared a written report from those videos. She then testified
as to the information contained in her report of the Canadian interviews.
During her testimony, S.A. Dillard referred to her report of the Canadian
interviews to refresh her memory.”
[87]
The
respondents submit that Mr. Khadr is responsible for the introduction into
evidence of the interviews conducted by the Canadian officials because Mr.
Flowers, during his cross-examination of this prosecution witness on May 1,
2010, asked her to view, in closed session, some seven minutes from these
videos “much of which consisted of Mr. Khadr crying.” In response, the U.S. then tendered as evidence “DVDs
containing the entirety of the Canadian interviews as exhibits on the
suppression motion.”
[88]
I reject
the respondents’ submission that Mr. Khadr was the cause of the Canadian
evidence coming before the commission. It is clear on the record before the
Court that it was the U.S. that first introduced the
substance of the Canadian interviews as evidence before the military commission.
[89]
Accordingly,
Canada has not cured its breach of
Mr. Khadr’s Charter rights.
[90]
The Charter
and the rule of law require that government breaches of Charter rights
be remedied. In the usual case, a remedy that cures a breach caused by the
government is available because the remedy is within the complete control of
the government. Mr. Khadr’s situation differs because the remedy is not within
the complete control of Canada. Canada can propose, but the
U.S. must consent. Nonetheless,
in my view, the breaching party remains required to attempt to cure the
breach. It is only if a cure is not possible that a remedy that merely ameliorates
the breach is warranted and must be attempted.
[91]
In my
view, if there is only one available remedy that potentially cures the breach
of one person’s Charter rights, then that remedy must be ordered by the Court,
even if the order involves the exercise of the royal prerogative. This is to
be contrasted with the cases relied on by the respondents, such as Mahe v.
Alberta, [1990] 1 S.C.R. 342, Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, and Doucet-Boudreau
v. Nova Scotia (Minister of Education), supra, where a declaration
was issued precisely because a number of options or choices were available to
the respective governments that would cure the Charter breach at issue;
in these circumstances, courts have deliberately and appropriately left the
flexibility with governments to fashion remedies that are both appropriate in
the circumstances and conform with the Charter. In situations
where there has been a Charter breach that is ongoing and where there is
only one curative remedy identified, the argument for flexibility in the hands
of government in significantly diminished. The fact that the one remedy
available falls within the scope of the government’s prerogative power does not
prevent the court from fashioning a remedy. As the Supreme Court stated in Khadr
II at para. 37: “courts are empowered to make orders ensuring that the
government’s foreign affairs prerogative is exercised in accordance with the
constitution.” If the Charter, as a part of Canada’s constitution,
requires an action to be taken, and it does in the present circumstances, and
if that action requires the exercise of the royal prerogative, then this Court
is not only empowered to order it, this Court is required to order that it be
done.
[92]
In this
case, if the Court was satisfied on the record that the only potential remedy
not yet tried by Canada that could cure the breach was to issue an order requiring
Canada, before Mr. Khadr’s military commission proceeding commences on August
10, 2010, to request the U.S. to return Mr. Khadr to Canada, that order would
be issued. I have previously stated that this is the only alternative remedy I
can see that can potentially cure the breach. It may be, however, that Canada and/or Mr. Khadr can fashion
other potential curative remedies. If there are others, and keeping in mind
the ruling of the Supreme Court in Khadr II, it is the role of the
executive, after providing Mr. Khadr an opportunity to be heard, to decide
which of the alternative potential curative remedies to choose. It must
continue that process until Mr. Khadr is provided with an effective remedy that
vindicates his rights. As was stated by the Supreme Court in Doucet-Boudreau
at para. 55:
… [A]n appropriate and just remedy in the
circumstances of a Charter claim is one that meaningfully vindicates the
rights and freedoms of the claimants. Naturally, this will take account of the
nature of the right that has been violated and the situation of the claimant. A
meaningful remedy must be relevant to the experience of the claimant and must
address the circumstances in which the right was infringed or denied. An
ineffective remedy, or one which was "smothered in procedural delays and
difficulties", is not a meaningful vindication of the right and therefore
not appropriate and just. [citations omitted]
[93]
If after
such a process there remains but one potential remedy that can cure the breach,
then Canada must advance it; it is the
only “appropriate and just” remedy.
[94]
The
parties deserve an opportunity to explore effective remedies. Given that Mr.
Khadr’s hearing is scheduled to commence imminently, this process must be
undertaken with some urgency and the Court must reserve the right to oversee
this explorative process, to amend the short time frame set out in the Judgment
for the steps that are to be taken, and to reserve the right to impose a remedy
if none is forthcoming from that process.
[95]
In keeping
with its obligations under the Charter, Canada is expected to advance at
least one potential curative remedy in sufficient time prior to the scheduled
commencement of the military commission’s hearing that one may reasonably
expect that the U.S. government will have time to
consider the request and respond to it.
[96]
In keeping with
its continuing obligations under the Charter, Canada is expected to
continue advancing potential curative and ameliorative remedies until the
breach of Mr. Khadr’s Charter rights have been cured, or if no cure is possible,
until the breach has been ameliorated, or if there is no remedy, until it has exhausted
all possible remedies.
JUDGMENT
THIS COURT ORDERS that:
1. These
applications are allowed;
2. The
Court declares that Mr. Khadr is entitled to procedural fairness and natural
justice in Canada’s process of determining a remedy for its breach of Mr.
Khadr’s section 7 Charter rights in that (a) he is entitled to know what
alternative remedies Canada is considering, if any, and (b) he is entitled to
provide written submissions to Canada as to other potential remedies and as to whether,
in his view, those being considered by Canada are potential remedies that will
cure or ameliorate its breach;
3. The
respondents are to advise the applicant within 7 days of the date of this
judgment of all untried remedies that it maintains would potentially cure or
ameliorate its breach of Mr. Khadr’s Charter rights as has been
determined by the Supreme Court of Canada in Canada (Prime Minister) v. Khadr, 2010 SCC 3;
4. The
applicant shall have 7 days after receiving the respondents’ advice as to
potential remedies to provide the respondents with his written submissions as to other potential remedies
that may cure or ameliorate the breach of his Charter rights, and as to
whether those being considered by Canada, in his view, are potential remedies
that may cure or ameliorate the breach;
5. I
retain jurisdiction to amend, at any time, the time provided herein for the
taking of any step if satisfied that the time that has been provided is too
brief for a party to fully and appropriately provide the information required
or take the steps ordered;
6. Following
the procedural fairness process described herein, Canada is to advance a
potential curative remedy as soon thereafter as is reasonably practicable and
to continue advancing potential curative remedies until the breach has been
cured or all such potential curative remedies have been exhausted, following
which it is to advance potential ameliorative remedies until such time as the
breach has been reasonably ameliorated or all such remedies have been exhausted;
7. I
retain jurisdiction to determine whether a remedy proposed is potentially an
effective remedy, should the parties be unable to agree;
8. I
retain jurisdiction to impose a remedy if, after the process described herein, Canada has not implemented an
effective remedy
within a
reasonably practicable period of time; and
9. The
applicant is entitled to his costs for two counsel at the high end of Column
IV.
"Russel
W. Zinn"
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