Date: 20090423
Docket: T-1228-08
Citation: 2009 FC 405
Vancouver, British
Columbia, April 23, 2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
OMAR
AHMED KHADR
Applicant
and
THE PRIME MINISTER OF CANADA,
THE MINISTER OF FOREIGN AFFAIRS,
THE DIRECTOR OF THE CANADIAN SECURITY
INTELLIGENCE SERVICE, AND THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Omar Khadr, a Canadian citizen, was arrested in Afghanistan in July 2002
when he was 15 years old. He is alleged to have thrown a grenade that caused
the death of a U.S. soldier. He has been imprisoned at Guantánamo Bay since
October 2002 awaiting trial on serious charges: murder, conspiracy and support
of terrorism.
[2]
Mr.
Khadr challenges the refusal of the Canadian Government to seek his
repatriation to Canada. He claims that his
rights under the Canadian Charter of Rights and Freedoms (sections 6, 7
and 12) have been infringed and seeks a remedy under s. 24(1) of the Charter.
More particularly, Mr. Khadr asks me to quash the decision of the respondents
not to seek his return to Canada and order the respondents to request the United States Government
to repatriate him. Mr. Khadr also asks me to overturn the respondents’ decision
on the grounds that it was unreasonable and taken in bad faith. Finally, Mr.
Khadr seeks further disclosure of documents in the respondents’ possession.
[3]
I am
satisfied, in the special circumstances of this case, that Mr. Khadr’s rights
under s. 7 of the Charter have been infringed. I will grant his request
for an order requiring the respondents to seek his repatriation from the United States. Given my conclusion
regarding s. 7, it is unnecessary for me to deal with the other grounds Mr.
Khadr raised before me. The issue of disclosure has already been conclusively
decided by the Supreme Court of Canada and, therefore, cannot be re-litigated
before me.
[4]
These are the
questions that arise in this case:
1. Have the issues already been
decided in other judicial proceedings; that is, is this case governed by the
doctrine of res judicata?
2. Is
there any “decision” that can be judicially reviewed?
3. Does the Canadian Government
have a legal duty to protect Mr. Khadr?
4. What
is the appropriate remedy if that duty is breached?
(Provisions of
the Canadian Charter of Rights and Freedoms and the international
instruments cited below are set out in Annex “A”.)
I. Factual Background
(a) Events Leading to Mr.
Khadr’s Arrest and Detention
[5]
Mr.
Khadr was born in Canada in 1986. He moved with
his family to Pakistan in 1990. In 1995, his
father, Mr. Ahmad Khadr (Ahmad), was arrested for alleged involvement in a
bombing of the Egyptian embassy in Islamabad. The rest of the family returned to Canada. They moved back to Pakistan in 1996 after Ahmad was
released. They came back to Canada again in 2001 for a number of months while Ahmad
recuperated from an injury caused by a landmine. The family moved to Afghanistan in July 2001. After the
events of September 11, 2001, Mr. Khadr and his brothers attended training
camps associated with Al-Qaeda.
[6]
The
events surrounding Mr. Khadr’s arrest in July 2002 are disputed. Clearly, he
was present at a gun-battle near Khost, Afghanistan, during which a United States soldier was killed by a
grenade. Mr. Khadr is alleged to have thrown that grenade. He maintains that he
did not.
[7]
Mr.
Khadr was himself seriously injured during the gun-battle by both bullets and
shrapnel. He received medical treatment and was held in custody at Bagram
Airbase for several weeks thereafter, and then transferred to Guantánamo Bay on October 28,
2002.
(b) Conditions at Bagram
and Guantánamo
Bay
[8]
In
his affidavit, Mr. Khadr describes various forms of mistreatment both at Bagram
and Guantánamo Bay. For purposes of
these proceedings, it is unnecessary for me to make any definitive factual
findings about the conditions of Mr. Khadr’s imprisonment. However, there are
three significant facts that are relevant to this application and on which there
is agreement between the parties.
[9]
First,
on detention, Mr. Khadr was “given no special status as a minor” even though he
was only 15 when he was arrested and 16 at the time he was transferred to Guantánamo Bay.
[10]
Second,
Mr. Khadr
had virtually no communication with anyone outside of Guantánamo Bay until November
2004, when he met with legal counsel for the first time.
[11]
Third,
at Guantánamo
Bay, Mr. Khadr was subjected
to the so-called “frequent flyer program”, which involved depriving him of rest
and sleep by moving him to a new location every three hours over a period of
weeks. Canadian officials became aware of this treatment in the spring of 2004 when
Mr. Khadr was 17, and proceeded to interrogate him.
(c) Actions
of the Canadian Government
[12]
After
Mr. Khadr’s arrest, Canadian authorities asked United States officials for consular
access to him while he was being held at Bagram. It was denied. Canada
also made clear that it believed that Guantánamo Bay was not an
appropriate place for a child to be kept in custody. A diplomatic note dated
September 13, 2002 stated:
The Embassy of Canada would further urge
the American authorities to consider the fact that Mr. Omar Khadr, at the time
the events in question took place, was less than sixteen years of age. Under
various laws of Canada and the United
States, such an
age provides for special treatment of such persons with respect to legal or
judicial processes. As such, the Government of Canada believes that it would be
inappropriate for Mr. Omar Khadr to be transferred to the detention facilities
at the American naval base at Guantanamo
Bay, Cuba. From the information that is
available to the Government of Canada, such a facility would not be an
appropriate place for Mr. Omar Khadr to be detained.
[13]
While
Mr. Khadr was at Guantánamo Bay, Canadian consular officials
made inquiries about him beginning in November 2003. They also sought
assurances that the death penalty would not be imposed on Mr. Khadr and that
detainees generally would be treated in accordance with international law. Canada also
expressed its concern about allegations that Mr. Khadr and other detainees were
being mistreated. Beginning in 2005, Canadian officials visited Mr. Khadr a
number of times to check on his welfare. In general, they found that he
appeared to be healthy and well-fed. When he complained that his gunshot wounds were
bothering him and still bleeding, Canadian officials requested medical
treatment for him, and it was provided.
[14]
In
addition, Canadian officials, including agents of the Canadian Security and
Intelligence Service (CSIS), visited Mr. Khadr a number of times and questioned
him. In particular, in February 2003, CSIS agents and an officer from the
Department of Foreign Affairs and International Trade (DFAIT) interviewed Mr.
Khadr over the course of four days. Additional interrogations followed in
September 2003 and March 2004. These visits were for purposes of law
enforcement and intelligence gathering, not consular assistance to Mr. Khadr. Indeed,
Canadian officials told Mr. Khadr in 2003 that they could not do anything to
help him.
[15]
A
report on the March 2004 visit by a DFAIT official states (referring to Mr.
Khadr as “Umar”):
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 has not been permitted more than three
hours in any one location. At three hours intervals he is moved to another cell
block, thus denying him uninterrupted sleep and a continued change of
neighbours. He will soon be placed in isolation for up to three weeks and then
he will be interviewed again.
. . .
Certainly Umar did not appear to have
been affected by three weeks on the “frequent flyer” program. He did not yawn
or indicate in any way that he was tired throughout the two hour interview. It
seems likely that the natural resilience of a well-fed and healthy
seventeen-year old are keeping him going.
[16]
Even
before it came to light that Mr. Khadr had been subjected to sleep deprivation,
Justice Konrad von Finckenstein had issued an interim injunction preventing
further interviews with Mr. Khadr in order “to prevent a potential grave
injustice” (Khadr v. Canada, 2005 FC 1076, at para. 46).
[17]
By
the spring of 2004, then, Canadian officials were knowingly implicated in the imposition
of sleep deprivation techniques on Mr. Khadr as a means of making him more
willing to provide intelligence. Mr. Khadr was then a 17-year-old minor, who
was being detained without legal representation, with no access to his family, and
with no Canadian consular assistance.
[18]
It
cannot fairly be said, however, that Canada abandoned Mr. Khadr
entirely. Clearly, officials were concerned about his treatment and welfare
and, beginning in 2005, checked on him regularly.
II. Legal Framework
[19]
According
to orders issued by then President George W. Bush, detainees at Guantánamo Bay were considered
unlawful combatants, with no standing to seek remedies in any court and no
protection under the Geneva Conventions. In June 2004, the United States
Supreme Court ruled that Guantánamo Bay detainees were entitled to bring habeas
corpus applications in United States federal courts (Rasul v. Bush,
542 U.S. 466 (2004)). The Court found the Presidential Order to the contrary to
be unlawful.
[20]
In
September 2004, the Combatant Status Review Tribunal (CSRT) concluded that Mr.
Khadr was an enemy combatant. In January 2005, the United States District Court
for the District
of Columbia,
after receiving habeas corpus applications from a number of detainees,
including Mr. Khadr, concluded that the CSRT had denied them due process. In
particular, the Court found that the detainees had not been given access to the
evidence against them, had been denied the assistance of counsel, and had
evidence obtained by torture used against them (In re Guantanamo Detainee
Cases, 355 F. Supp. 2d 443).
[21]
In
2006, the United States Supreme Court held that the legal regime in Guantánamo
Bay violated the Geneva Conventions because detainees had been denied the right
to be tried by regular courts with the usual procedural protections (Hamdan
v. Rumsfeld, 126 S. Ct. 2749 (2006)). Subsequently, Congress enacted the
Military Commissions Act of 2006 (MCA) which removed the U.S. federal courts’
jurisdiction to receive habeas corpus applications from detainees.
[22]
Mr.
Khadr faces five charges under the MCA: (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.
III. Earlier Proceedings Involving Mr. Khadr
[23]
Mr.
Khadr has launched a number of other proceedings in Federal Court. In 2004, he
commenced an action for damages and a declaration that his Charter
rights had been infringed. Justice Konrad von Finckenstein granted him an
injunction against further interrogations by Canadian officials, but no further
action was taken in the proceedings (Khadr v. The Attorney General of
Canada and the Minister of
Foreign Affairs,
2005 FC 1076, T-536-04).
[24]
Also
in 2004, Mr. Khadr applied for judicial review of a decision of the Minister of
Foreign Affairs not to seek further consular access to him. Again, there has
been no recent action taken on this file (Khadr v. The Minister of
Foreign Affairs, 2004 FC 1145, T-686-04).
[25]
In
2006, Mr. Khadr sought judicial review of a decision of the Minister of Justice
not to comply with a request for disclosure of documents that would assist Mr.
Khadr in defending the charges against him. The application was dismissed (Khadr
v. Canada (Minister of Justice), 2006 FC 509), but Mr. Khadr appealed
successfully (Khadr v. Canada (Minister of Justice), 2007 FCA 182). The
Federal Court of Appeal found that Mr. Khadr’s Charter rights were
engaged by virtue of the involvement of Canadian officials in gathering
evidence against him through their interrogations. The Court ordered the
Minister of Justice to disclose all relevant documents to Mr. Khadr.
[26]
The
Supreme Court of Canada dismissed the Minister’s appeal but varied the
disclosure order. The Minister was ordered to disclose “(i) records of the
interviews conducted by Canadian officials with Mr. Khadr or (ii) records of
information given to U.S. authorities as a direct consequence of Canada’s
having interviewed Mr. Khadr” (Canada (Justice) v. Khadr, 2008 SCC
28, at para. 40).
[27]
The
Supreme Court also ordered that a Federal Court judge review the disclosed
documents in order to determine whether national security interests or other
considerations apply to them and to make the final determination about what documents
should be disclosed. Justice Richard Mosley performed that review and issued
his order in June 2008: Khadr v. Canada (Attorney General), 2008 FC 807.
[28]
In
2007, Mr. Khadr commenced another application for judicial review, but it was
discontinued in February 2008 (Khadr v. Minister of Justice, Minister
of Foreign Affairs, and Attorney General of Canada, T-1319-07).
IV. Issues
1. Have the issues in this
case already been decided in other judicial proceedings; that is, is this case
governed by the doctrine of res judicata?
[29]
The
respondents point to the earlier proceedings instituted by Mr. Khadr,
particularly those leading to the decision of the Supreme Court of Canada, and
submit that the issues raised in this application have already been heard and
decided; that is, that this application falls under the doctrine of res
judicata.
[30]
The
Supreme Court of Canada addressed the question whether the respondents were
required to disclose documents in their possession that were relevant to the
charges Mr. Khadr was facing, including records of interviews and information
turned over to U.S. officials. In the analysis of this question, the Court
considered whether the Charter applied to the issue of disclosure, given
that the materials sought related to interviews that had taken place outside of
Canada. The Court referred to
its prior decision in R. v. Hape, 2007 SCC 26 where it had
concluded that the Charter generally does not apply to Canadian
investigators operating outside of Canada. But Hape had also identified an
exception to that general rule where the activities of Canadian agents violated
Canada’s international
obligations, particularly its human rights commitments. The Court stated:
If
the Guantanamo Bay process under which Mr. Khadr was
being held was in conformity with Canada’s international obligations, the Charter
has no application and Mr. Khadr’s application for disclosure cannot succeed: Hape.
However, if Canada was participating in a process that was
violative of Canada’s binding obligations under
international law, the Charter applies to the extent of that
participation. (At para. 19.)
[31]
The
Court relied on the U.S. Supreme Court’s conclusion that the Guantánamo Bay
detainees had been unlawfully denied access to the remedy of habeas corpus
and were being held under terms that violated the Geneva Conventions: Rasul
v. Bush, above. Further, the Court noted that the U.S. Supreme Court had
also found that the process of trials before military commissions violated
Common Article 3 of the Geneva Conventions: Hamdan v. Rumsfeld,
above. Based on these decisions, and given Canada’s adherence to the Geneva
Conventions, the Court concluded that “the regime providing for the detention
and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear
violation of fundamental human rights protected by international law” (at para.
24).
[32]
However,
the Court did not find it necessary to decide whether Canadian officials had
actually violated the Charter by interviewing Mr. Khadr and turning over
the fruits of those interviews to U.S. authorities. The Court simply noted that the
Canadian officials were bound by the Charter at that point because they
were participants in a process that violated international law. Accordingly,
they were bound by the principles of fundamental justice that are protected by
s. 7 of the Charter and nourished by international human rights
obligations. Section 7 imposes on state agents an obligation to disclose
relevant evidence to persons whose liberty interests are at stake. In the
context of Mr. Khadr’s case, this meant that Canadian officials had a duty to
disclose all records of the interviews they had conducted and other information
given to U.S. authorities as a
consequence of those interviews.
[33]
I do
not agree with the respondents that the issues arising in this case were
decided by the Supreme Court of Canada in the earlier litigation on disclosure.
True, there is some overlap. For example, the question of the application of s.
7 of the Charter arises in both, and Mr. Khadr sought disclosure of
information in both. However, the issues here are broader and different. In
particular, the question whether the respondents have a duty to seek the
repatriation of Mr. Khadr has not previously been addressed.
[34]
In
further support of their position, the respondents also point to the judgment
of Justice Mosley arising from his review of the documents the Supreme Court
ordered to be disclosed. He justified disclosure to Mr. Khadr of certain
information on the grounds that Canada had, by virtue of the DFAIT official’s interrogation
of Mr. Khadr at Guantánamo Bay in March 2004, become implicated in violations
of the United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Can. T.S. 1987 No. 36 (CAT)), as well as
the Geneva Conventions. As mentioned, that interrogation took place with
knowledge that Mr. Khadr had been subjected to sleep deprivation in order to
prepare him to be cooperative in the interview and, thereby, to reveal useful
intelligence. Justice Mosley ordered the disclosure of the report of the March
2004 interrogation to Mr. Khadr, and its contents subsequently became public
knowledge.
[35]
Mr.
Khadr raises similar arguments before me in support of his submission that
Canadian officials have a duty to seek his repatriation. But that does not
render the issues raised by Mr. Khadr here identical to the issues litigated
previously. The contexts are quite different. This part of Mr. Khadr’s application
is not res judicata. However, it is clear that the issue of
disclosure has been fully considered and decided in earlier proceedings and
cannot be re-litigated before me.
2.
Is
there any “decision” that can be judicially reviewed?
(a) The
Prime Minister’s Statement and Government Policy
[36]
On July
10, 2008, following the release of the decision of Justice Mosley discussed
above, as well as the information about Canadian involvement in the imposition
of sleep deprivation techniques on Mr. Khadr, a journalist asked Prime Minister
Stephen Harper whether he would be requesting Mr. Khadr’s repatriation to Canada. The Prime Minister
said: “The answer is no, as I said the former Government, in our Government
with the notification of the Minister of Justice had considered all these
issues and the situation remains the same. … [W]e keep on looking for
[assurances] of good treatment of Mr. Khadr.”
[37]
In
addition to this specific statement, it is clear that the Government of Canada
has an ongoing policy against requesting Mr. Khadr’s repatriation that has been
expressed publicly from time to time and can be the subject of judicial review
at any given point: Canadian Association of the Deaf v. Canada,
2006 FC 971, at para. 72. This policy is reflected in the Government of
Canada’s dissent from a June 2008 report of the Standing Committee on Foreign
Affairs and International Development on Mr. Khadr’s case. The Standing
Committee recommended that Canada demand Mr. Khadr’s repatriation. The Government’s dissent
was based on a concern that Canada be seen to deal forcefully with terrorism. In the Government’s
view, Mr. Khadr’s case reflects “Canada’s commitment to impeding global terrorism and
the results of our actions today could result in consequences that are not in
the long-term interest of the country” (House of Commons, Omar Khadr –
Report of the Standing Committee on Foreign Affairs and International
Development, (Communications Canada – Publishing: Ottawa, 2008), at pp.
15-17).
[38]
Accordingly,
I find that there has clearly been a “decision” that may properly be the subject
of an application for judicial review.
(b) Is
the Decision Reviewable by the Court?
[39]
Cases
such as this require the Court to find the “legal edge between the executive
and judicial functions” (as expressed by Lord Laws in Al Rawi v. Secretary
of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279, at
para. 148).
[40]
Generally
speaking, decisions about foreign affairs fall naturally and properly to the
executive. Still, Canadian courts have determined that the executive’s
prerogative in that area is subject to review under the Charter. As
Justice Allen Linden has stated, “the exercise of Crown prerogative is beyond
the scope of judicial review, except, of course, when a right guaranteed by the
[Charter] is violated”: Copello v. Canada (Minister of
Foreign Affairs), 2003 FCA 295, at para. 16, relying on Black v. Canada
(Prime Minister) (2001), 54 O.R. (3d) 215 (C.A.).
[41]
Justice
Robert Barnes expressed the situation this way:
Decisions involving pure policy or
political choices in the nature of Crown prerogatives are generally not
amenable to judicial review because their subject matter is not suitable to
judicial assessment. But where the subject matter of a decision directly
affects the rights or legitimate expectations of an individual, a Court is both
competent and qualified to review it. (Smith v. Canada (Attorney General), 2009 FC 228, at para. 26.)
[42]
The
courts of other countries have addressed the question whether decisions taken
by Governments in respect of persons detained at Guantánamo Bay are
reviewable. In Abbasi v. Secretary of State for Foreign and
Commonwealth Affairs, [2002] E.W.J. No. 4947 (C.A.), Lord
Phillips acknowledged that courts may review the exercise of the Government’s
prerogative power in relation to foreign affairs. However, he concluded that
the Government does not have a general enforceable duty to protect citizens
abroad. The Government has the discretion to do so, but the courts should not
intervene unless the Government’s position is irrational or contrary to a legitimate
expectation. Lord Phillips went on to say that, while a decision whether to
make diplomatic representations on a citizen’s behalf falls within the conduct
of foreign policy, the Government has a duty at least to consider and respond
to requests for diplomatic interventions. Whether the Government might be
legally required to do more would depend on the particular facts.
[43]
It
should be noted that the Abbasi decision was made at a point in time
when the legal status of detainees was unclear under U.S. law.
Further, the U.K. Foreign Office was in active discussions with the U.S. about the
status of detainees. The timing, therefore, was “delicate” in the Court’s view.
While the Court held a “deep concern that, in apparent contravention of
fundamental principles of law, Mr. Abbasi may be subject to indefinite
detention in territory over which the United States has exclusive control with
no opportunity to challenge the legitimacy of his detention”, it could not, for
the reasons outlined above, rule in his favour (at para. 107).
[44]
In
Al Rawi, above, the Court considered the position of persons
detained at Guantánamo Bay who were
residents, not citizens, of the U.K. By 2006, the Secretary
of State had made representations to the U.S. seeking the return of U.K. citizens,
but had refused to do so on behalf of residents. The Court concluded that, to
the extent that the Abbasi case recognized a basis for judicial review
of Government decisions regarding citizens abroad, it should be confined to
British nationals. And it made clear that the courts should be very careful not
to intrude on the executive’s responsibilities for foreign policy and national
security.
[45]
In
Mohamed v. Secretary of State for Foreign and Commonwealth Affairs,
[2008] EWHC 2048 (Admin), the applicant, Binyan Mohamed, a Guantánamo Bay detainee,
sought disclosure of information and documents held by the Foreign Secretary.
Mr. Mohamed, a failed refugee claimant in, and resident of, the U.K., alleged
that he had been arrested in Pakistan in 2002 and then kept
in unlawful detention incommunicado until 2004 when he was transferred to Guantánamo Bay, where
he faced serious charges. The Foreign Secretary refused disclosure on grounds
of national security. Mr. Mohamed had been questioned by U.K. agents in Pakistan as part of
an intelligence-gathering exercise. He was also questioned by U.S. authorities.
Lord Thomas found that U.K. officials facilitated the U.S.
interrogations, knowing that Mr. Mohamed’s treatment and detention was
unlawful. The Court specifically stated that it was not faced with the question
whether the U.K. Government was under a duty, in these circumstances, to
protest or make representations to the U.S. Government regarding Mr. Mohamed’s
treatment. However, in light of the involvement of U.K. officials,
the Court held that Mr. Mohamed was entitled to disclosure at common law,
subject to a claim of public interest immunity.
[46]
The
Federal Court of Australia considered whether there was any chance of success
in an application brought by a Guantánamo Bay detainee, Mr. David Hicks, for an order
requiring the Government of Australia to seek his repatriation to Australia. Justice
Tamberlin denied the Government’s motion to dismiss the proceedings summarily,
finding that there was at least some basis in law for Mr. Hick’s application.
Justice Tamberlin noted that “the extent to which the court will examine
executive action in the area of foreign relations and Acts of State is far from
settled, black-letter law” (Hicks v. Ruddock, [2007] FCA 299 at
para. 93). The case was never decided on its merits because Mr. Hicks was, in
fact, returned to Australia.
[47]
These
cases support the respondents’ contention that there is no clear duty to
protect citizens recognized under international law, or under the common law.
However, they do not help decide what duties Canada owes to
citizens whose constitutional rights under the Charter are engaged. Further,
they do not address the special circumstances that present themselves in this
case – in particular, Mr. Khadr’s youth and the direct involvement of Canadian
authorities in his mistreatment at Guantánamo Bay.
[48]
The
Constitutional Court of South Africa considered whether there exists a legal duty
to come to the aid of citizens who are at risk in other countries in Kaunda v.
President of South Africa, CCT 23/04. There, the Court considered
whether the Government of South Africa had an obligation to assist 69 South
African citizens who had been arrested in Zimbabwe for purposes of extradition
to Equatorial
Guinea
in connection with an alleged coup attempt. The question arose whether the Government
of South Africa was obliged to intervene diplomatically on behalf of the
detainees, given that their conditions of detention were deplorable and that
they might face the death penalty in Equatorial Guinea if extradited. Chief
Justice Chaskalson concluded that there is no right to diplomatic protection
under international law. States have “the right to protect their nationals
beyond their borders but are under no obligation to do so” (at para. 23).
However, citizens have the right to request the Government “to provide
protection against acts which violate accepted norms of international law” (at
para. 144(5)). The Government must consider those requests and respond to them
appropriately. Further, the Government’s response is subject to judicial review
under the Constitution. Still, courts will “give particular weight to the Government’s
special responsibility for and particular expertise in foreign affairs, and the
wide discretion that it must have in determining how best to deal with such
matters” (at para. 144(6)).
[49]
In
my view, the same general approach applies here. The Government’s decision is
amenable to judicial review under the Charter but, at the same time, its
view as to how best to deal with matters that affect international relations
and foreign affairs is entitled to “particular weight”.
3. Does the
Canadian Government have a legal duty to protect Mr. Khadr?
(a)
Application
of the Charter
[50]
While
the Supreme Court of Canada’s decision in respect of Mr. Khadr dealt with a
different question (i.e., the duty to disclose the fruits of an
interrogation), its approach is, nevertheless, helpful in addressing the
question before me: Given Mr. Khadr’s personal circumstances, as well as the
conditions of his confinement and treatment at Guantánamo Bay, and in light of the
involvement of Canadian authorities, does Canada have an obligation, based on
the Charter, to protect Mr. Khadr?
[51]
To
start with, it is clear that the Charter applies to the Canadian agents
who travelled to Guantánamo Bay and
questioned Mr. Khadr. The Supreme Court held that the “violations of human
rights identified by the United States Supreme Court are sufficient to permit
us to conclude that the regime providing for the detention and trial of Mr.
Khadr at the time of the CSIS interviews constituted a clear violation of
fundamental rights protected by international law” (at para. 24). Accordingly,
while principles of international comity would otherwise have precluded the application
of the Charter, those principles do not apply in circumstances where Canada’s
international human rights obligations have been contravened (at para. 18). Mr.
Khadr’s detention in Guantánamo Bay is illegal under
both U.S. and
international law. As such, the “Charter bound Canada to the extent that
the conduct of Canadian officials involved it in a process that violated Canada’s
international obligations” (at para. 26).
[52]
Obviously,
if the mere questioning of Mr. Khadr involved Canada in a process
that violates our international human rights obligations, knowing involvement in
the mistreatment of Mr. Khadr is an even more compelling basis on which to find
that the Charter applied to Canadian officials at Guantánamo Bay.
(b) The
Principles of Fundamental Justice
[53]
When
a person’s life, liberty or security is at stake, s. 7 of the Charter
requires Canadian officials to respect principles of fundamental justice. The
Supreme Court found that Mr. Khadr’s liberty interest was engaged by virtue of
the participation of Canadian officials in an unlawful process and that the
principles of fundamental justice required Canada to disclose
the materials it acquired. Canada had provided that information to U.S. authorities
and, therefore, its disclosure obligation required that the materials also be
provided to Mr. Khadr. Canada’s refusal to grant disclosure violated principles
of fundamental justice and, therefore, Mr. Khadr’s s. 7 rights.
[54]
Here,
I must decide whether the applicable principles of fundamental justice require
the Canadian Government to protect Mr. Khadr. To be recognized as a principle
of fundamental justice, three criteria must be met. It must be (1) a legal
principle, (2) for which there is a broad consensus about its fundamental
character in respect of the fair operation of the legal system, and (3) which
is capable of being defined with sufficient precision to be used as a
manageable standard for the measurement of deprivations of life, liberty and
security of the person (R. v. D.B., 2008 SCC 25).
[55]
In
addition, the principles of fundamental justice are informed by Canada’s
international obligations. The Court must take into account “Canada’s
international obligations and values as expressed in ‘[t]he various sources of
international human rights law – declarations, covenants, conventions, judicial
and quasi-judicial decisions of international tribunals, [and] customary norms’”
(Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3, at para. 46, citing United States v. Burns,
[2001] 1 S.C.R. 283 at para. 80).
(c)
Relevant International Instruments
(i) The
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of
Punishment (CAT)
[56]
Torture
is defined under the CAT as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession” (Art. 1). The
Supreme Court of Israel has concluded that sleep deprivation “for the purpose
of tiring [the suspect] out or ‘breaking’ him, … is not part of the scope of a
fair and reasonable investigation” and harms “the rights and dignity of the
suspect” (Public Committee Against Torture in Israel v. Israel,
38 I.L.M. 1471 at para. 31). Based on that decision, Justice Mosley
concluded that the subjection of Mr. Khadr to sleep deprivation techniques offended
the CAT.
[57]
In
addition to its obligation to prevent torture within Canada and to prosecute
offenders, Canada also has a duty to “ensure that any statement which is
established to have been made as a result of torture shall not be invoked as
evidence in any proceedings” (Art. 15). Canada turned over the fruits of its
interrogation of Mr. Khadr to U.S. authorities for use against him, knowing
that sleep deprivation techniques had been imposed on him.
(ii) Convention
on the Rights of the Child (CRC)
[58]
Canada
has a duty under the CRC to “take all appropriate legislative, administrative,
social and educational measures to protect the child from all forms of physical
and mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse, while in the care of
parent(s), legal guardian(s) or any other person who has the care of the child”
(Art. 19.1). A child is a person under the age of 18 (Art. 1).
[59]
In
addition, Canada must ensure that “[n]o child shall be subjected to torture or
other cruel, inhuman or degrading treatment or punishment”, that “[n]o child
shall be deprived of his or her liberty unlawfully or arbitrarily” and that the
“arrest, detention or imprisonment of a child shall be in conformity with the
law and shall be used only as a measure of last resort and for the shortest
appropriate period of time” (Art. 37(a),(b)).
[60]
Canada must also
ensure that “every child deprived of liberty shall be separated from adults”
and “have the right to maintain contact with his or her family through
correspondence and visits”, except in exceptional circumstances (Art. 37(c)).
Further, every child in custody “shall have the right to prompt access to legal
and other appropriate assistance, as well as the right to challenge the
legality of the deprivation of his or her liberty before a court or other
competent, independent and impartial authority, and to a prompt decision on any
such action” (Art. 37(d)).
[61]
Canada also has a
duty to “take all appropriate measures to promote physical and psychological
recovery and social reintegration of a child victim of: any form of neglect,
exploitation, or abuse; torture or any other form of cruel, inhuman or
degrading treatment or punishment; or armed conflicts” (Art. 39).
[62]
Finally,
Canada has recognized “the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in a manner
consistent with the promotion of the child’s sense of dignity and worth” (Art.
40.1).
[63]
The
CRC imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required
to take steps to protect Mr. Khadr from all forms of physical and mental
violence, injury, abuse or maltreatment. We know that Canada raised
concerns about Mr. Khadr’s treatment, but it also implicitly condoned the
imposition of sleep deprivation techniques on him, having carried out
interviews knowing that he had been subjected to them.
[64]
Canada
had a duty to protect Mr. Khadr from being subjected to any torture or other
cruel, inhuman or degrading treatment or punishment, from being unlawfully
detained, and from being locked up for a duration exceeding the shortest
appropriate period of time. In Mr. Khadr’s case, while Canada did make
representations regarding his possible mistreatment, it also participated
directly in conduct that failed to respect Mr. Khadr’s rights, and failed to
take steps to remove him from an extended period of unlawful detention among
adult prisoners, without contact with his family.
[65]
Canada had a duty
to take all appropriate measures to promote Mr. Khadr’s physical, psychological
and social recovery.
(iii)
Optional Protocol on the Involvement of Children in Armed Conflict
[66]
The
Optional Protocol requires states to ensure that members of their armed forces
who are under age 18 do not take a direct part in hostilities. Other armed
groups “should not” recruit or use in hostilities persons under age 18. Thus,
the Optional Protocol does not appear to contain a specific legal obligation on
Canada in respect
of someone in Mr. Khadr’s circumstances.
[67]
However,
the Optional Protocol is based on broader principles that are set out in its Preamble.
For example, the signatories recognize the special needs of children “who are
particularly vulnerable to recruitment or use in hostilities . . . owing to
their economic or social status or gender”. Further, they recognize the need to
strengthen international cooperation in the implementation of the Optional Protocol,
“as well as the physical and psychosocial rehabilitation and social
reintegration of children who are victims of armed conflict.”
[68]
Clearly,
Canada was obliged
to recognize that Mr. Khadr, being a child, was vulnerable to being caught up
in armed conflict as a result of his personal and social circumstances in 2002
and before. It cannot resile from its recognition of the need to protect
minors, like Mr. Khadr, who are drawn into hostilities before they can apply
mature judgment to the choices they face.
(d)
Additional
Factors
[69]
In
determining the scope of the principles of fundamental justice, the Supreme
Court has made clear that the particular circumstances in which the claim for
s. 7 rights is made must be considered. Some factors may be particular to the
claimant and others may be more general (Burns, above, at para. 65). For
example, in deciding whether a parent is entitled to be represented by counsel
at a child custody hearing, the Court considered the seriousness of the interests
at stake, the complexity of the proceedings, and the capacity of the parent to
participate meaningfully in the hearing if not represented (New Brunswick
(Minister of Health and Community Services) v. G.(J.), [1999] 3
S.C.R. 46, at para. 74).
[70]
In
Mr. Khadr’s case, relevant factors to consider are his youth; his need for
medical attention; his lack of education, access to consular assistance, and
legal counsel; his inability to challenge his detention or conditions of
confinement in a court of law; and his presence in an unfamiliar, remote and
isolated prison, with no family contact.
(e) The
Duty to Protect is a Principle of Fundamental Justice
[71]
I
find that the three criteria from D.B., above, support the recognition
of a duty to protect persons in Mr. Khadr’s circumstances as a principle of
fundamental justice.
[72]
First,
it is a legal principle, expressed in clear and forceful language in the
international instruments discussed above.
[73]
Second,
given the broad international support for those instruments, I conclude that
they represent a consensus that the duties contained in them have a fundamental
character. I also note that the Supreme Court of Canada has already recognized
that special treatment of young persons caught up in the legal system is a
principle of fundamental justice given their diminished moral culpability. In
doing so, it relied in part on the Convention on the Rights of the Child
(D.B., above, at para. 60). Further, the Court has also invoked the CRC
in recognizing the “importance of being attentive to the rights and best
interests of children when decisions are made that relate to and affect their
future” (Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, at para. 71).
[74]
Third,
the scope of the duty to protect can be adequately identified and manageably
applied to deprivations of life, liberty and security of the person. In this
context, I rely on the special circumstances that apply to Mr. Khadr’s case and
the multiplicity of departures from international norms that have taken place.
Certainly, the scope of the duty to protect can be clearly articulated and
applied to the facts before me.
[75]
I
find, therefore, that the principles of fundamental justice obliged Canada to protect
Mr. Khadr by taking appropriate steps to ensure that his treatment accorded
with international human rights norms.
4.
What
is the appropriate remedy if that duty is breached?
[76]
In
some cases, a violation of s. 7 will, in itself, define the appropriate remedy.
That is because a failure to abide by a principle of fundamental justice can be
remedied simply by imposing a duty on the Government to respect the applicable
principle. In these circumstances, it may not be necessary to resort to s.
24(1) of the Charter to find a remedy (see, e.g., Burns,
above).
[77]
Similarly,
in its decision ordering disclosure of materials to Mr. Khadr, the Supreme
Court of Canada stated that the remedy of disclosure “mitigated the effect” of
Canada’s involvement in the violation of Mr. Khadr’s rights. The question to be
asked here, then, is what remedy is appropriate to mitigate the effect of the
involvement of Canadian officials in the mistreatment of Mr. Khadr at Guantánamo Bay?
[78]
The
principal remedy sought by Mr. Khadr is an order requiring Canada to request his
repatriation. In the circumstances, no other remedy would appear to be capable
of mitigating the effect of the Charter violations in issue or accord
with the Government’s duty to promote Mr. Khadr’s physical, psychological and
social rehabilitation and reintegration. The respondents have not proposed any
alternative remedy. In other cases, there may be alternative appropriate
remedies but, given the facts and submissions before me, I will confine myself
to the remedy requested by Mr. Khadr.
[79]
The
respondents argue that the Court should refrain from requiring them to request
Mr. Khadr’s repatriation because that would involve ordering Canada to take
positive steps to protect Mr. Khadr, and would involve the Court in the
exercise of prerogative powers relating to Canada’s foreign relations with the
United States. It is only in exceptional circumstances where an order to take
positive steps can be made under s. 7 (Gosselin v. Quebec
(Attorney General), [2002] 4 S.C.R. 429) and, naturally, as discussed
above, courts should generally leave matters of foreign relations to Government.
[80]
In
Gosselin, Chief Justice McLachlin noted that s. 7 protects the right not
to be deprived of life, liberty and security of the person, except in
accordance with the principles of fundamental justice. It does not create a
positive obligation on the state to ensure that each person enjoys life,
liberty and security – at least, the case law has not yet recognized such a
duty. Chief Justice McLachlin acknowledged that, someday, s. 7 might be read to
include positive obligations. She said: “I leave open the possibility that a
positive obligation to sustain life, liberty, or security of the person may be
made out in special circumstances” (at para. 83).
[81]
Gosselin
involved
a challenge to a social assistance scheme in the province of Quebec,
primarily on grounds of inequality under s. 15 of the Charter. The
argument under s. 7 related to the question whether a reduced amount of social
assistance provided by the province infringed the appellant’s right to security
of the person in a manner contrary to the principles of fundamental justice. The
appellant suggested that the province had a duty to provide her sufficient
social assistance to realize a certain level of security.
[82]
As
I see it, this case does not involve a similar request for positive action on
the part of Canada. Mr. Khadr has
very clearly been deprived of his liberty and Canadian agents are involved in
that deprivation. The question is whether the refusal of Canada to request
his repatriation offends the principles of fundamental justice. If it does, the
appropriate recourse is to order Canada to seek his
repatriation. That is not a “positive” obligation in the same sense that the
term was used in Gosselin. In fact, it is not uncommon for courts to
order that certain affirmative steps be taken by Government officials in
circumstances where there has been a violation of the principles of fundamental
justice. The Supreme Court’s disclosure order in the earlier Khadr
proceeding is one example. Others would include requiring the Government to
provide legal counsel (G, above) or to seek assurances that the death
penalty would not be imposed or carried out (Burns, above). In these
cases, positive action on the part of the state was required to mitigate the
effect of a deprivation of rights protected under s. 7. In Gosselin, by
contrast, Chief Justice McLachlin was discussing the possibility that s. 7
might require, in special circumstances, positive measures on the part of the Government
to prevent a deprivation of those rights.
[83]
The
respondents emphasize the fact that the mistreatment of Mr. Khadr was carried
out by non-Canadians. Under s. 7, “the guarantee of fundamental justice applies
even to deprivations of life, liberty or security effected by actors other than
our Government, if there is a sufficient causal connection between our Government’s
participation and the deprivation ultimately effected” (Suresh, above,
at para. 54). Here, the necessary degree of participation is found in Canada’s
interrogation of Mr. Khadr knowing that he had been subjected to treatment that
offended international human rights norms to which Canada had
specifically committed itself.
[84]
The
respondents also raised a general concern about potential harm to Canada-U.S.
relations, but have not pointed to any particular harm that would result from
requesting Mr. Khadr’s repatriation. Similarly, the Supreme Court of Canada
found that a requirement that Canada seek assurances that the death penalty
would not be carried out on persons extradited to the United States did “not
undermine in any significant way the achievement of Canada’s mutual assistance
objectives” (Burns, above, at para. 37). Further, the Court made clear
that the Government’s concern about a detrimental effect on foreign relations
must be supported by evidence:
With respect to the argument on comity,
there is no doubt that it is important for Canada to maintain good relations with other
states. However, the Minister has not shown that the means chosen to further
that objective in this case – the refusal to ask for assurances that the death
penalty will not be exacted – is necessary to further that objective. There is
no suggestion in the evidence that asking for assurances would undermine Canada’s international obligations
or good relations with neighbouring states. (Burns, above, at para. 136.)
[85]
The
Court also noted that European states regularly sought and received assurances regarding
the death penalty from the United States.
[86]
Similarly,
here, the respondents have not identified any particular harm that might flow
from requesting Mr. Khadr’s repatriation. Many other countries have requested
the return of their citizens or residents from Guantánamo Bay and the United
States
has granted those requests. Further, the respondents have not identified how
its firm position regarding the treatment of persons who have carried out
terrorist acts would be compromised by requesting Mr. Khadr’s repatriation to Canada for
prosecution here. This, in fact, was one of the recommendations in the Report
of the Standing Committee on Foreign Affairs and International Development
(above, at p. 6). Accordingly, as discussed above, while I accept that the
Court should give particular weight to Governmental decisions affecting foreign
relations, there is little evidence before me to be weighed.
[87]
The
respondents argue that, if Mr. Khadr returns to Canada, the
question will arise whether he can be prosecuted under Canadian law. The
respondents’ concern is whether the threshold criteria for launching a
prosecution – that is, whether there is a reasonable prospect of conviction and
the prosecution is in the public interest – would be met in Mr. Khadr’s case.
To my mind, any concern in this area merely reinforces the case for
repatriation. If there is doubt about whether those criteria can be met, there
should also be doubt about whether Mr. Khadr’s ongoing detention at Guantánamo Bay is
consistent with principles of fundamental justice.
[88]
The
respondents also suggest that there is no reason to believe that the United
States
would grant a request for Mr. Khadr’s repatriation, given that Canada’s request
for consular access to Mr. Khadr was denied. In my view, the denial of consular
access made the need for repatriation more acute; it does not provide a justification
not to request Mr. Khadr’s return. Further, the evidence of successful requests
for repatriation on the part of other countries suggests that a request
presented by Canada would likely be granted by the United States. Indeed,
given Canada’s previous expressions of concern about Mr. Khadr’s welfare and
its view that Guantánamo Bay was not an appropriate place for his detention, a
request from Canada for Mr. Khadr’s repatriation would probably not be
unexpected by U.S. authorities.
[89]
The
Constitutional Court of South Africa in Kaunda, above, noted that there
is a broad range of conduct that falls within the scope of “diplomatic
protection”. It would include “consular action, negotiation, mediation,
judicial and arbitral proceedings, reprisals, retorsion, severance of
diplomatic relations, [and] economic pressures” (at para. 27). I would regard
the presentation of a request for the return of a Canadian citizen as being at
the lower end of this spectrum of diplomatic intervention and, therefore, minimally
intrusive on the Crown’s prerogative in relation to foreign affairs.
V. Admission of
Evidence
[90]
Mr.
Khadr asked me to admit two items into evidence. The first is his affidavit
outlining his treatment at Bagram and Guantánamo Bay. I have
admitted this document, although I did not find it necessary to rely on it to
any significant degree. The second item was a recording of a documentary about
Mr. Khadr. I found that this recording was not relevant to this proceeding, so
I did not admit it.
VI. Conclusion and Disposition
[91]
I
find that the Government of Canada is required by s. 7 of the Charter to
request Mr. Khadr’s repatriation to Canada in order to comply with a principle
of fundamental justice, namely, the duty to protect persons in Mr. Khadr’s
circumstances by taking steps to ensure that their fundamental rights,
recognized in widely-accepted international instruments such as the Convention
on the Rights of the Child, are respected. The respondents did not offer
any basis for concluding that the violation of Mr. Khadr’s rights was justified
under s. 1 of the Charter.
[92]
The
ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a
principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of
the Charter. To mitigate the effect of that violation, Canada must present
a request to the United States for Mr. Khadr’s repatriation to Canada as soon as
practicable.
JUDGMENT
THIS COURT ORDERS that
1.
The
application for judicial review be allowed, with costs.
2.
The
respondents request that the United States return Mr. Khadr to Canada as soon as
practicable.
“James
W. O’Reilly”
Annex “A”
|
Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act (U.K.), 1982, c. 11
Mobility of
citizens
6. (1) Every
citizen of Canada has the right to enter, remain in and
leave Canada
Rights to move
and gain livelihood
(2) Every citizen of Canada and every person who has the status of a
permanent resident of Canada has the right
(a) to move to
and take up residence in any province; and
(b) to pursue
the gaining of a livelihood in any province.
Limitation
(3) The
rights specified in subsection (2) are subject to
(a) any laws
or practices of general application in force in a province other than those
that discriminate among persons primarily on the basis of province of present
or previous residence; and
(b) any laws
providing for reasonable residency requirements as a qualification for the
receipt of publicly provided social services.
Affirmative
action programs
(4) Subsections (2) and (3) do not preclude any law, program or activity
that has as its object the amelioration in a province of conditions of
individuals in that province who are socially or economically disadvantaged
if the rate of employment in that province is below the rate of employment in
Canada.
Legal Rights
Life, liberty
and security of person
7. 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.
Treatment or
punishment
12. Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment.
Equality
before and under law and equal protection and benefit of law
15.
(1) Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
Affirmative
action programs
(2)
Subsection (1) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
Enforcement of
guaranteed rights and freedoms
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed or denied may apply to a court of competent jurisdiction to
obtain such remedy as the court considers appropriate and just in the
circumstances.
Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted and opened for signature, ratification and accession by
General Assembly resolution 39/46 of 10 December 1984, entry into force 26
June 1987, in accordance with article 27 (1)
Article 15
Each State
Party shall ensure that any statement which is established to have been made
as a result of torture shall not be invoked as evidence in any proceedings,
except against a person accused of torture as evidence that the statement was
made.
Convention on
the Rights of the Child, adopted and opened for signature, ratification and
accession by General Assembly resolution 44/25 of 20 November 1989,
entry into force 2 September 1990, in accordance with article 49
Article 19
States Parties
shall take all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the care of the child.
Article 37
States Parties
shall ensure that:
(a) No child
shall be subjected to torture or other cruel, inhuman or degrading treatment
or punishment. Neither capital punishment nor life imprisonment without
possibility of release shall be imposed for offences committed by persons
below eighteen years of age;
(b) No child
shall be deprived of his or her liberty unlawfully or arbitrarily. The
arrest, detention or imprisonment of a child shall be in conformity with the
law and shall be used only as a measure of last resort and for the shortest
appropriate period of time;
(c) Every
child deprived of liberty shall be treated with humanity and respect for the
inherent dignity of the human person, and in a manner which takes into account
the needs of persons of his or her age. In particular, every child deprived
of liberty shall be separated from adults unless it is considered in the
child's best interest not to do so and shall have the right to maintain
contact with his or her family through correspondence and visits, save in
exceptional circumstances;
(d) Every
child deprived of his or her liberty shall have the right to prompt access to
legal and other appropriate assistance, as well as the right to challenge the
legality of the deprivation of his or her liberty before a court or other
competent, independent and impartial authority, and to a prompt decision on
any such action.
Article 39
States Parties
shall take all appropriate measures to promote physical and psychological recovery
and social reintegration of a child victim of: any form of neglect,
exploitation, or abuse; torture or any other form of cruel, inhuman or
degrading treatment or punishment; or armed conflicts. Such recovery and
reintegration shall take place in an environment which fosters the health,
self-respect and dignity of the child.
Article 40
1. States
Parties recognize the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in a manner
consistent with the promotion of the child's sense of dignity and worth,
which reinforces the child's respect for the human rights and fundamental
freedoms of others and which takes into account the child's age and the
desirability of promoting the child's reintegration and the child's assuming
a constructive role in society.
2. To this
end, and having regard to the relevant provisions of international
instruments, States Parties shall, in particular, ensure that:
(a) No child
shall be alleged as, be accused of, or recognized as having infringed the
penal law by reason of acts or omissions that were not prohibited by national
or international law at the time they were committed;
(b) Every
child alleged as or accused of having infringed the penal law has at least
the following guarantees:
(i) To be
presumed innocent until proven guilty according to law;
(ii) To be
informed promptly and directly of the charges against him or her, and, if
appropriate, through his or her parents or legal guardians, and to have legal
or other appropriate assistance in the preparation and presentation of his or
her defence;
(iii) To have
the matter determined without delay by a competent, independent and impartial
authority or judicial body in a fair hearing according to law, in the presence
of legal or other appropriate assistance and, unless it is considered not to
be in the best interest of the child, in particular, taking into account his
or her age or situation, his or her parents or legal guardians;
(iv) Not to be
compelled to give testimony or to confess guilt; to examine or have examined
adverse witnesses and to obtain the participation and examination of
witnesses on his or her behalf under conditions of equality;
(v) If
considered to have infringed the penal law, to have this decision and any
measures imposed in consequence thereof reviewed by a higher competent,
independent and impartial authority or judicial body according to law;
(vi) To have
the free assistance of an interpreter if the child cannot understand or speak
the language used;
(vii) To have
his or her privacy fully respected at all stages of the proceedings.
3. States
Parties shall seek to promote the establishment of laws, procedures,
authorities and institutions specifically applicable to children alleged as,
accused of, or recognized as having infringed the penal law, and, in
particular:
(a) The
establishment of a minimum age below which children shall be presumed not to
have the capacity to infringe the penal law;
(b) Whenever
appropriate and desirable, measures for dealing with such children without
resorting to judicial proceedings, providing that human rights and legal
safeguards are fully respected.
4. A variety
of dispositions, such as care, guidance and supervision orders; counselling;
probation; foster care; education and vocational training programmes and
other alternatives to institutional care shall be available to ensure that
children are dealt with in a manner appropriate to their well-being and
proportionate both to their circumstances and the offence.
Optional
Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict, adopted and opened for signature, ratification
and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entered
into force on 12 February 2002
The States
Parties to the present Protocol,
…
Recognizing
the special needs of those children who are particularly vulnerable to
recruitment or use in hostilities contrary to the present Protocol owing to
their economic or social status or gender,
…
Convinced of
the need to strengthen international cooperation in the implementation of the
present Protocol, as well as the physical and psychosocial rehabilitation and
social reintegration of children who are victims of armed conflict,
Article 1
States
Parties shall take all feasible measures to ensure that members of their
armed forces who have not attained the age of 18 years do not take a direct
part in hostilities.
Article 4
1. Armed
groups that are distinct from the armed forces of a State should not, under
any circumstances, recruit or use in hostilities persons under the age of 18
years.
2. States
Parties shall take all feasible measures to prevent such recruitment and use,
including the adoption of legal measures necessary to prohibit and
criminalize such practices.
3. The
application of the present article shall not affect the legal status of any
party to an armed conflict.
|
Charte
canadienne des droits et libertés, Partie I de la Loi constitutionnelle de
1982, Édictée comme l'annexe B de la Loi de 1982 sur le Canada, 1982, ch. 11
(R.-U.)
Liberté de
circulation
6. (1) Tout
citoyen canadien a le droit de demeurer au Canada,
d'y entrer ou d'en sortir.
Liberté d’établissement
(2) Tout citoyen canadien et toute personne ayant le statut de résident
permanent au Canada ont le droit :
de se déplacer
dans tout le pays et d'établir leur résidence dans toute province;
de gagner leur
vie dans toute province.
Restriction
(3) Les
droits mentionnés au paragraphe (2) sont subordonnés :
a) aux lois et
usages d'application générale en vigueur dans une province donnée, s'ils
n'établissent entre les personnes aucune distinction fondée principalement
sur la province de résidence antérieure ou actuelle;
b) aux lois prévoyant de justes conditions de résidence en vue de l'obtention
des services sociaux publics.
Programmes de
promotion sociale
(4) Les paragraphes (2) et (3) n'ont pas pour objet d'interdire les lois,
programmes ou activités destinés à améliorer, dans une province, la situation
d'individus défavorisés socialement ou économiquement, si le taux d'emploi
dans la province est inférieur à la moyenne nationale.
Vie, liberté
et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne;
il ne peut être porté atteinte à ce droit qu'en conformité avec les principes
de justice fondamentale.
Cruauté
12. Chacun a droit à la protection contre tous traitements ou peines cruels
et inusités.
Égalité devant
la loi, égalité de bénéfice et protection égale de la loi
15. (1)
La loi ne fait acception de personne et s'applique également à tous, et tous
ont droit à la même protection et au même bénéfice de la loi, indépendamment
de toute discrimination, notamment des discriminations fondées sur la race,
l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou
les déficiences mentales ou physiques.
Programmes de
promotion sociale
(2) Le
paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou
activités destinés à améliorer la situation d'individus ou de groupes
défavorisés, notamment du fait de leur race, de leur origine nationale ou
ethnique, de leur couleur, de leur religion, de leur sexe, de leur âge ou de
leurs déficiences mentales ou physiques.
Recours en cas
d'atteinte aux droits et libertés
24. (1) Toute personne, victime de violation ou de négation des droits ou
libertés qui lui sont garantis par la présente charte, peut s'adresser à un
tribunal compétent pour obtenir la réparation que le tribunal estime convenable
et juste eu égard aux circonstances.
Convention
contre la torture et autres peines ou traitements cruels, inhumains ou
dégradants, adoptée et ouverte à la signature, à la ratification et à
l'adhésion par l'Assemblée générale dans sa résolution 39/46 du 10
décembre 1984, entrée en vigueur: le 26 juin 1987, conformément aux
dispositions de l'article 27 (1)
Article 15
Tout État
partie veille à ce que toute déclaration dont il est établi qu'elle a été
obtenue par la torture ne puisse être invoquée comme un élément de preuve
dans une procédure, si ce n'est contre la personne accusée de torture pour
établir qu'une déclaration a été faite.
Convention
relative aux droits de l'enfant, adoptée et ouverte à la signature,
ratification et adhésion par l'Assemblée générale dans sa résolution 44/25 du
20 novembre 1989, entrée en vigueur le 2 septembre 1990, conformément à
l'article 49
Article 19
Les États
parties prennent toutes les mesures législatives, administratives, sociales
et éducatives appropriées pour protéger l'enfant contre toute forme de
violence, d'atteinte ou de brutalités physiques ou mentales, d'abandon ou de
négligence, de mauvais traitements ou d'exploitation, y compris la violence
sexuelle, pendant qu'il est sous la garde de ses parents ou de l'un d'eux, de
son ou ses représentants légaux ou de toute autre personne à qui il est
confié.
Article 37
Les États
parties veillent à ce que :
a) Nul enfant
ne soit soumis à la torture ni à des peines ou traitements cruels, inhumains
ou dégradants. Ni la peine capitale ni l'emprisonnement à vie sans
possibilité de libération ne doivent être prononcés pour les infractions
commises par des personnes âgées de moins de dix-huit ans;
b) Nul enfant
ne soit privé de liberté de façon illégale ou arbitraire. L'arrestation, la
détention ou l'emprisonnement d'un enfant doit être en conformité avec la
loi, n'être qu'une mesure de dernier ressort, et être d'une durée aussi brève
que possible;
c) Tout enfant
privé de liberté soit traité avec humanité et avec le respect dû à la dignité
de la personne humaine, et d'une manière tenant compte des besoins des
personnes de son âge. En particulier, tout enfant privé de liberté sera
séparé des adultes, à moins que l'on estime préférable de ne pas le faire
dans l'intérêt supérieur de l'enfant, et il a le droit de rester en contact
avec sa famille par la correspondance et par les visites, sauf circonstances
exceptionnelles;
d) Les enfants
privés de liberté aient le droit d'avoir rapidement accès à l'assistance
juridique ou à toute autre assistance appropriée, ainsi que le droit de
contester la légalité de leur privation de liberté devant un tribunal ou une
autre autorité compétente, indépendante et impartiale, et à ce qu'une
décision rapide soit prise en la matière.
Article 39
Les États
parties prennent toutes les mesures appropriées pour faciliter la
réadaptation physique et psychologique et la réinsertion sociale de tout
enfant victime de toute forme de négligence, d'exploitation ou de sévices, de
torture ou de toute autre forme de peines ou traitements cruels, inhumains ou
dégradants, ou de conflit armé. Cette réadaptation et cette réinsertion se
déroulent dans des conditions qui favorisent la santé, le respect de soi et
la dignité de l'enfant.
Article 40
1. Les États
parties reconnaissent à tout enfant suspecté, accusé ou convaincu
d'infraction à la loi pénale le droit à un traitement qui soit de nature à
favoriser son sens de la dignité et de la valeur personnelle, qui renforce
son respect pour les droits de l'homme et les libertés fondamentales
d'autrui, et qui tienne compte de son âge ainsi que de la nécessité de
faciliter sa réintégration dans la société et de lui faire assumer un rôle
constructif au sein de celle-ci.
2. À cette
fin, et compte tenu des dispositions pertinentes des instruments
internationaux, les États parties veillent en particulier :
a) À ce
qu'aucun enfant ne soit suspecté, accusé ou convaincu d'infraction à la loi
pénale en raison d'actions ou d'omissions qui n'étaient pas interdites par le
droit national ou international au moment où elles ont été commises;
b) À ce que
tout enfant suspecté ou accusé d'infraction à la loi pénale ait au moins le
droit aux garanties suivantes :
i) Être
présumé innocent jusqu'à ce que sa culpabilité ait été légalement établie;
ii) Être
informé dans le plus court délai et directement des accusations portées
contre lui, ou, le cas échéant, par l'intermédiaire de ses parents ou
représentants légaux, et bénéficier d'une assistance juridique ou de toute
autre assistance appropriée pour la préparation et la présentation de sa
défense;
iii) Que sa
cause soit entendue sans retard par une autorité ou une instance judiciaire
compétentes, indépendantes et impartiales, selon une procédure équitable aux
termes de la loi, en présence de son conseil juridique ou autre et, à moins
que cela ne soit jugé contraire à l'intérêt supérieur de l'enfant en raison
notamment de son âge ou de sa situation, en présence de ses parents ou
représentants légaux;
iv) Ne pas
être contraint de témoigner ou de s'avouer coupable; interroger ou faire
interroger les témoins à charge, et obtenir la comparution et
l'interrogatoire des témoins à décharge dans des conditions d'égalité;
v) S'il est
reconnu avoir enfreint la loi pénale, faire appel de cette décision et de
toute mesure arrêtée en conséquence devant une autorité ou une instance
judiciaire supérieure compétentes, indépendantes et impartiales, conformément
à la loi;
vi) Se faire
assister gratuitement d'un interprète s'il ne comprend ou ne parle pas la
langue utilisée;
vii) Que sa
vie privée soit pleinement respectée à tous les stades de la procédure.
3. Les États
parties s'efforcent de promouvoir l'adoption de lois, de procédures, la mise
en place d'autorités et d'institutions spécialement conçues pour les enfants
suspectés, accusés ou convaincus d'infraction à la loi pénale, et en
particulier :
a) D'établir
un âge minimum au-dessous duquel les enfants seront présumés n'avoir pas la
capacité d'enfreindre la loi pénale;
b) De prendre
des mesures, chaque fois que cela est possible et souhaitable, pour traiter
ces enfants sans recourir à la procédure judiciaire, étant cependant entendu
que les droits de l'homme et les garanties légales doivent être pleinement
respectés.
4. Toute une
gamme de dispositions, relatives notamment aux soins, à l'orientation et à la
supervision, aux conseils, à la probation, au placement familial, aux
programmes d'éducation générale et professionnelle et aux solutions autres
qu'institutionnelles seront prévues en vue d'assurer aux enfants un
traitement conforme à leur bien-être et proportionné à leur situation et à
l'infraction.
Protocole facultatif à la Convention relative aux droits de
l'enfant, concernant l'implication d'enfants dans les conflits armés. Les
États Parties au présent Protocole
Les
États Parties au présent Protocole
[…]
Conscients des
besoins particuliers des enfants qui, en raison de leur situation économique
et sociale ou de leur sexe, sont particulièrement vulnérables à l'enrôlement
ou à l'utilisation dans des hostilités en violation du présent Protocole,
[…]
Convaincus
de la nécessité de renforcer la coopération internationale pour assurer la
réadaptation physique et psychologique et la réinsertion sociale des enfants
qui sont victimes de conflits armés,
Article
1
Les
États Parties prennent toutes les mesures possibles pour veiller à ce que les
membres de leurs forces armées qui n'ont pas atteint l'âge de 18 ans ne
participent pas directement aux hostilités.
Article 4
1. Les groupes
armés qui sont distincts des forces armées d'un État ne devraient en aucune
circonstance enrôler ni utiliser dans les hostilités des personnes âgées de
moins de 18 ans.
2.
Les États Parties prennent toutes les mesures possibles pour empêcher
l'enrôlement et l'utilisation de ces personnes, notamment les mesures d'ordre
juridique nécessaires pour interdire et sanctionner pénalement ces pratiques.
3.
L'application du présent article est sans effet sur le statut juridique de
toute partie à un conflit armé.
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