Date: 20100722
Docket: A-260-10
Citation: 2010 FCA 199
Present: BLAIS C.J.
BETWEEN:
THE PRIME MINISTER OF CANADA,
THE MINISTER OF FOREIGN AFFAIRS, and
THE MINISTER OF
JUSTICE
Appellants
(Respondents)
-and-
OMAR AHMED KHADR
Respondent
(Applicant)
AND BETWEEN:
THE PRIME MINISTER
OF CANADA and
THE MINISTER OF
FOREIGN AFFAIRS
Appellants
(Respondents)
-and-
OMAR AHMED KHADR
Respondent
(Applicant)
Reasons for Order
BLAIS C.J.
[1]
This is an application by the Prime Minister of Canada, the
Minister of Foreign Affairs and the Minister of Justice (the “Appellants”)
seeking a stay of enforcement of the judgment of Justice Zinn, dated July 5,
2010 (2010 FC 715) pending conclusion of the Appeal.
[2]
The Appellants have filed and served a Notice of Appeal of
Justice Zinn’s judgment on July 12, 2010.
Relevant facts
[3]
The factual background was not in dispute before the trial judge
and is not either in dispute before the Court of Appeal. Mr. Khadr (the “Respondent”)
has adopted the summary of facts reflected in the trial judge’s reasons for
judgment (paragraphs 2 to 34); so do I.
[4]
To succeed, the Appellants must meet the tripartite test
established in RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311 [RJR-MacDonald] at 334:
Metropolitan
stores adopted a three-stage test for
courts to apply when considering an application for either a stay or an
interlocutory injunction. First, preliminary assessment must be made of the
merits of the case to ensure that there is serious question to be tried.
Secondly, it must be determined whether the Applicant would suffer irreparable
harm if the Application were refused. Finally, an assessment must be made as
to which of the parties would suffer greater harm from the granting or refusal
of the remedy pending a decision on the merits. It may be helpful to consider
each aspect of the test and then apply it to the facts presented in these
cases.
[5]
Before applying the tripartite test to the present case, it is
useful to quickly review the most recent steps taken in this file since January
2010.
[6]
In reviewing the judgment rendered by Justice O’Reilly (Khadr
v. Canada (Prime Minister), 2009 FC 405, [2010] 1 F.C.R. 34)
that ordered that the Canadian government “must present a request to the United
States for Mr. Khadr’s repatriation to Canada as soon as practicable”, the
Supreme Court of Canada (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44 [Khadr II])
held at paragraphs 39, 44 and 47:
[39] Our first
concern is that the remedy ordered below gives too little weight to the
constitutional responsibility of the executive to make decisions on matters of
foreign affairs in the context of complex and ever-changing circumstances,
taking into account Canada’s broader national interests. For the following
reasons, we conclude that the appropriate remedy is to declare that, on the
record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave
it to the government to decide how best to respond to this judgment in light of
current information, its responsibility for foreign affairs, and in conformity
with the Charter.
[…]
[44] This brings
us to our second concern: the inadequacy of the record. The record before us
gives a necessarily incomplete picture of the range of considerations currently
faced by the government in assessing Mr. Khadr’s request. We do not know what
negotiations may have taken place, or will take place, between the U.S. and
Canadian governments over the fate of Mr. Khadr. As observed by Chaskalson
C.J. in Kaunda v. President of the Republic of South Africa, (2004) ZACC
5, 136 I.L.R. 452: “The timing of representations if they are to be made, the
language in which they should be couched, and the sanctions (if any) which
should follow if such representations are rejected are matters with which
courts are ill-equipped to deal” (para. 77). It follows that in these
circumstances, it would not be appropriate for the Court to give direction as
to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter
rights. [My emphasis]
[…]
[47] 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.
[7]
Following that Supreme Court of Canada judgment rendered on January
29, 2010, the Canadian government on February 16, 2010, sent a Diplomatic note
to the government of the United States requesting that it not use any of the
information provided to it by Canada in its prosecution of Mr. Khadr.
[8]
The government of the United States responded to the Canadian
note by a Diplomatic note dated April 27, 2010:
“The Department of
State has provided the referenced Diplomatic note to the Department of Defense
Office of Military Commissions prosecutors in Mr. Khadr’s case. In presenting
their case, these prosecutors will be governed by the Military Commissions Act
of 2009 (MCA), specifically MCA § 948r, which provides safeguards against the
admission in military commission proceedings of evidence obtained through
improper means.
Relevant safeguards
include the exclusion of all statements obtained by torture or cruel, inhuman,
or degrading treatment, “except against a person accused of torture or such
treatment as evidence that the statement was made.” MCA § 948r(a). Other
statements of the accused may be admitted in evidence only if the military
judge finds “that the totality of the circumstances renders the statement
reliable and possessing sufficient probative value; and that - (A) the
statement was made incident to lawful conduct during military operations at the
point of capture or during closely related active combat engagement, and the
interests of justice would best be served by admission of the statement into
evidence; or (B) the statement was voluntarily given”. MCA § 948r(c).
[9]
Finally, to keep the situation in context, I will reproduce the
judgment of Justice Zinn dated July 5, 2010:
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"
Judge
Analysis
Serious issue
[10]
The Supreme Court of Canada held in RJR-MacDonald at 337:
“What
then are the indicators of “a serious question to be tried”? There are no
specific requirements which must be met in order to satisfy this test. The
threshold is a low one. The judge on the application must make a preliminary
assessment of the merits of the case”.
[11]
There is no doubt in my mind that this case meets the first part
of the test. As mentioned by the Appellants at paragraph 24 of their written
representations, “[t]his appeal raises several important legal and
jurisdictional issues which include the interaction between administrative law
remedies and remedies under the Charter and the extent of the court’s
ability to supervise the government’s response to a declaration issued by the
SCC as a section 24(1) remedy against government”. (see also the Notice of
Appeal issued July 12, 2010)
[12]
To the contrary, the Respondent contends that the Appellants’
arguments are “strictly limited to the correctness of a discretionary remedy
granted by Justice Zinn pursuant to s.24(1) of the Charter” (Respondent’s
Response at paragraph 21). I do not think this is the case. The issue here is
much more complex and the characterization by the Appellants quoted above is
much more accurate.
[13]
In my view, this case does raise many serious issues, including the
kind of review (if any) that should be done by a Federal Court judge sitting on
judicial review of the government’s discretionary response to a declaratory
relief granted by the Supreme Court under section 24(1) of the Charter.
The Appellants are correct that Justice Zinn’s order results in a kind of
judicial supervision over any diplomatic action that Canada may take in
relation to the Respondent. It is even more surprising that this supervision
over the remedies chosen by the Crown stems from an application for judicial
review for issues of procedural fairness and natural justice.
[14]
I find that determining whether Justice Zinn has the power to
“supervise” the exercise of the Crown’s prerogative and even dictate a specific
course of action under the particular circumstances of this case raises a
serious question. Furthermore, in light of the Supreme Court’s decision in Khadr
II (particularly paragraphs 36, 46 and 47), I am not at all convinced that
Justice Zinn does effectively have the power to “impose a remedy” (see paragraph
8 of Justice Zinn’s Order). Therefore, the Appellants’ arguments are not devoid
of any merit. In other words, the Appellants’ claims are serious questions and
are neither “vexatious nor frivolous” (RJR-MacDonald at 337).
Irreparable harm
[15]
The second element of the test is more complex:
[…]
“Irreparable” refers to the nature of the harm suffered rather than its
magnitude. It is harm which either cannot be quantified in monetary terms or
which cannot be cured, usually because one party cannot collect damages from
the other.
[…]
The assessment of irreparable harm in interlocutory applications involving Charter
rights is a task which will often be more difficult than a comparable
assessment in a private law application. One reason for this is that the
notion of irreparable harm is closely tied to the remedy of damages, but
damages are not the primary remedy in Charter cases. (RJR-MacDonald
at 341)
[16]
To meet the second part of the test, the Appellants must persuade
the Court that it will suffer irreparable harm if the relief is not granted.
[17]
Perhaps simply providing a list of possible remedies, as ordered
by Justice Zinn at paragraph 3 of his Order, would not necessarily cause
irreparable harm; however, the distinction between providing Mr. Khadr with a
list of remedies and actually implementing those remedies is a superficial
one. In practice, providing a list of remedies that they do not intend on
applying would be worthless to Mr. Khadr. If the Appellants had other useful
remedies they were willing to explore, they would most likely have suggested
them to the Respondent or to the United States instead of requesting a stay.
It seems to me that this appeal and motion to stay are clear indicators that
the Appellants feel they have done, at least for now, all that is appropriate.
Asking the Appellants to come up with a list of remedies they do not intend on
implementing or do not think they should be obliged to implement is not
reasonable. Perhaps even more problematic is the idea that they should have to
ask Justice Zinn to “impose” the remedy he finds appropriate before being
allowed to request a stay.
[18]
Regarding the possible untried remedies, we should remember the
enumeration of steps taken by the Government of Canada to protect Mr. Khadr
from the time it learned of his arrest in Afghanistan. See paragraph 88 of
Justice Nadon’s dissenting reasons (Prime Minister of Canada,
et al. v. Omar Khadr, 2009 FCA 246):
[88] I now turn to
the steps taken by Canada to protect Mr. Khadr from the time it learned of his
arrest in Afghanistan. At paragraphs 59 and 60 of its
Memorandum of Fact and Law, Canada sets out
the various steps that it took to protect Mr. Khadr. As the facts which are
related therein are not disputed by Mr. Khadr, it will be easier for me to
reproduce them rather than attempt a summary thereof. Canada has outlined the
steps taken in reference to a number of topics, namely, Mr. Khadr’s youth, his
need for medical care, his lack of education, his lack of access to consular
access, his lack of access to legal counsel, his inability to challenge his
detention or conditions of confinement at Guantanamo Bay in a court of law and
his mistreatment by US officials:
59. […]
a. The Respondent’s youth [the
Respondent is Mr. Khadr]
• In
2002 Canada asked the US not to transfer the Respondent to Guantanamo Bay given his age.
• After
the respondent was transferred to Guantanamo Bay,
Canada again expressed concern to the US that
consideration be given to his age in his detention, requesting urgent
consideration be given to having him transferred to a facility for juvenile
enemy combatants.
b. The Respondent’s need for
medical care:
•
Canadian interviewers asked that the Respondent be seen by a medic or doctor in
February 2003.
• Later
in 2003, Canada sought assurances that the Respondent was
receiving adequate medical attention.
• On
several occasions in 2005 and 2006, Canada
requested that the Respondent be provided with an independent medical
assessment. Continued communication with US authorities
through welfare visits allowed Canadian officials to follow upon on various
medical and dental issues for the Respondent.
c. The Respondent’s lack of
education:
•
Through welfare visits, Canadian officials provided educational materials,
books and magazines to the Respondent and attempted to facilitate the provision
of educational opportunities to him in communications with US officials.
d. The Respondent’s lack of
access to consular access:
• Although
the US has refused consular access since 2002, Canada obtained permission to conduct regular “welfare visits” with the
Respondent starting in March 2005 and has since conducted over 10 visits.
e. The Respondent’s lack of
access to legal counsel:
• Canada
expressed concerns to the US with regard to the adequacy of the
Respondent’s counsel of choice in 2005 and assisted his Canadian counsel in
ultimately obtaining access to the Respondent.
f. The Respondent’s inability
to challenge his detention or conditions of confinement in a court of law:
a) On July 9,
2004, Canada advised the US of its expectation that the Respondent be provided with a
judicial review of his detention by a regularly constituted court according all
judicial guarantees in accordance with due process and international law.
b) In 2007, the US enacted a new Military Commission Act to address the concerns
identified in Hamdan v. Rumsfeld [126 S.Ct. 2749(2006)].
c) In 2008, the
US Supreme Court confirmed in Boumediene v. Bush [553 U.S. ___ (2008) S.Ct. 2229] that detainees have the constitutional
privilege of habeus corpus.
g. The Respondent’s presence
in a remote prison with no family contact:
• Canada has facilitated communication with family members.
60. In addition, with regard to the Respondent’s
mistreatment by US officials, Canada took a number of steps:
a. Canada asked for and received assurances in 2003 that the Respondent was
being treated humanely and in a manner consistent with the principles of the
Third Geneva Convention of 1949.
b. On June 7,
2004, Canada delivered a diplomatic note seeking assurances from the US that the treatment of detainees in Guantanamo
Bay would be in accordance with international humanitarian law and human rights
law.
c. In January
2005, Canada sent a further diplomatic note
reiterating its position that allegations of mistreatment should be
investigated and perpetrators brought to justice.
d. Canada followed up with another note in February 2005 expressing extreme
concerns regarding allegations of abuse against the Respondent and requesting
information regarding the allegations and assurances that is being treated
humanely.
e. In
the initial welfare vision in March 2005, the DFAIT official asked US
authorities specific questions in connection with adherence to the Standard
Minimum Rules for the Treatment of Prisoners from the Office of the High
Commissioner for Human Rights. Welfare visit reports from 2005 through 2008
reflect that the Respondent has generally been in good health.
[19]
In my view, for a member of the judiciary to give himself the
power to “supervise” the exercise of the Crown’s prerogative in a context where
the Supreme Court has recognized its limited role could be seen, in itself, as an
affront to the division of powers that would cause irreparable harm. This is
especially so when we consider that any action that could possibly cure the Charter
breach would require the Appellants to take some kind of diplomatic action.
[20]
The Appellants suggest that if they comply with the Federal Court
judgment, the balance between the executive and the courts described by the
Supreme Court of Canada in its judgment will result in improper interference by
the Court in the conduct of foreign relations, and that this harm cannot be
reversed if the Appellants are successful on appeal nor be compensated by
damages; I agree.
[21]
I have no hesitation to conclude that if a stay is not granted,
the Appellants will suffer irreparable harm.
Balance of convenience
[22]
The Supreme Court of Canada in RJR-MacDonald held at 346:
“In
our view, the concept of inconvenience should be widely construed in Charter
cases. In the case of a public authority, the onus of demonstrating
irreparable harm to the public interest is less than that of a private
applicant. This is partly a function of the nature of the public authority and
partly a function of the action sought to be enjoined. The test will nearly
always be satisfied simply upon proof that the authority is charged with the
duty of promoting or protecting the public interest and upon some indication
that the impugned legislation, regulation, or activity was undertaken pursuant
to that responsibility. Once these minimal requirements have been met, the
court should in most cases assume that irreparable harm to the public interest
would result from the restraint of that action.
A
court should not, as a general rule, attempt to ascertain whether actual harm
would result from the restraint sought. To do so would in effect require
judicial inquiry into whether the government is governing well, since it
implies the possibility that the government action does not have the effect of
promoting the public interest and that the restraint of the action would
therefore not harm the public interest. The Charter does not give the
courts a licence to evaluate the effectiveness of government action, but only
to restrain it where it encroaches upon fundamental rights.
[23]
In Toth v. Canada
(M.C.I.) (1988), 86 N.R. 302 (F.C.A.), this
Court noted that the balance of convenience requires determining “which party will suffer the greatest harm from the granting
or refusal of the stay?” (more recently quoted
by Justice Nadon in Canada (Minister of Citizenship and
Immigration) v. Fox, 2009 FCA 346 at paragraph 19, 397 N.R. 222).
[24]
We have already detailed the irreparable harm that would be
suffered by the Appellants should the stay be granted in the previous section.
Therefore, we will now look at the harm that could potentially be suffered by
the Respondent. Even though the parties discussed this in the “irreparable
harm” part of their representations, RJR-MacDonald at 341 leads
me to believe it should be dealt with in this part of the analysis.
[25]
The trial of the Respondent is set for August 10, 2010. Should
this stay be granted, it would mean that the trial would begin without the Appellants
having taken any further steps. In fact, the trial would begin and maybe even
end before this Court would have a chance to decide what (if any) further steps
should be taken by the Appellants. The rapidly evolving and particular nature
of this case is one of the reasons why the Supreme Court expressly decided that
the Appellants should be the one to craft the appropriate remedy.
[26]
I do understand that the prospect of a conviction in front of a military
commission that is based, at least partially, on information obtained
unconstitutionally is not to be taken lightly. However, it is too hard at this
point in time to even determine how the Canadian evidence might be used (if at
all) in the U.S. trial and if remedies could potentially be available later on
in the process.
[27]
Some evidence collected by Canadian officials does in fact seem
to have been discussed in a pre-trial motion brought by the defense to exclude
statements made by the Respondent to the U.S. officials. I have carefully
reviewed the materials referring to the use of the videos at the pre-trial
hearing. I have only a partial knowledge of what happened at that hearing on
that motion, and I believe that I should be very cautious on the assessment of
how and by whom the material was introduced before the U.S. Court. I don’t know
the final outcome of that motion, particularly on the crucial question of
whether the Canadian interviews could be eventually used at the trial that will
commence on August 10, 2010.
[28]
It must also be kept in mind that it is not the harm resulting
from the total prosecution or detention of the Respondent in the U.S. that must
be taken into consideration but only the harm that results from Canada’s prior
unconstitutional actions. Furthermore, even though the U.S. did not give Canada
the full assurance that the evidence would not be used, they did explain that
the Diplomatic note would be provided to the prosecutors and that the Military
Commissions Act of 2009 (MCA) provides safeguards against the admissions in
military commission proceedings of evidence obtained through improper means.
[29]
The harm on the Appellants on the other hand would be unequivocal
if the Crown’s discretionary power in foreign affairs and national security were
to be usurped by the judiciary. The Appellants also argue that because, in
their opinion, Justice Zinn ultimately usurps the executive’s ability to make
decisions such as this one (which raise issues of national interest), it “ought
to therefore be assumed to be contrary to the public interest” (Appellants’ Written
Representations, para. 40). It is not to say that the Appellants will
necessarily succeed in their appeal but if they do and the stay had been
refused, their victory would be moot since the diplomatic action would already
have been taken.
[30]
In his response, the Respondent argues that since the Order of
Justice Zinn is presumptively valid and remains in force until it is
overturned, “the balance of convenience tips in Mr. Khadr’s favor” (paragraph
37). This argument in itself does not have much weight. This would mean that
in any stay application the balance of convenience would automatically be
tipped in favor of the Respondent.
[31]
Before making a final finding on the question of balance of convenience,
it is useful to take a second look at paragraph 39 of the Supreme Court
judgment in Khadr II:
“Our
first concern is that the remedy ordered below gives too little weight to the
constitutional responsibility of the executive to make decisions on matters of
foreign affairs in the context of complex and ever-changing circumstances,
taking into account Canada’s broader national interests...”
[32]
The order of the Federal Court does not look consistent with the
guidelines that transpire from the Supreme Court’s decision. I agree with the Appellants
that if we enforce the Federal Court’s decision, the executive’s capability to
decide and execute Canada’s international and diplomatic duties would be
restrained and somehow usurped by the monitoring capacity of the court.
[33]
When I put the interest of justice and the constitutional
responsibility of the executive to make decisions on matters of foreign affairs
in balance with the potential harm that could suffer the Respondent, Mr. Khadr,
if the Federal Court judgment is not enforced, I have no hesitation to conclude
that the balance of convenience and the interest of justice favor the Appellants.
CONCLUSION
[34]
Therefore I conclude that this motion for a stay should be
allowed.
[35]
The enforcement of the judgment of the Federal Court dated July
5, 2010 should be stayed pending conclusion of this Appeal.
[36]
Costs in the Cause.
“Pierre
Blais”
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