Case Considered: Canada (Prime Minister) v. Khadr, 2010 FCA 199
The litigation saga of Omar Khadr continues. On July 22, 2010, the Federal Court of Appeal granted a stay pending appeal of the most recent order of the Federal Court after hearing the appeal by teleconference on July 16, 2010. (See Canada (Prime Minister) v. Khadr, 2010 FCA 199). For background on Khadr’s case, including a discussion of the Federal Court order at issue in the appeal, see my earlier ABlawg post, Maureen Duffy, The Third Time Is the Charm? The Ongoing Litigation Regarding Omar Khadr; see also Linda McKay-Panos, My Vote for R. v. Hape as a Significant Legal Case of the Decade.
Federal Court of Appeal Order Granting the Stay
In granting the stay, Chief Justice Pierre Blais of the Federal Court of Appeal applied the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311, 334 (at para. 4). He quickly found that the case met the first portion of the RJR-MacDonald test, in that it raised a “serious question to be tried” (at para. 10-11). He adopted the characterization of the issues before the Court, offered by the Government, as follows:
[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 (at para. 11).
Chief Justice Blais expressed concern 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” (at para. 13). He added, “I am not at all convinced that Justice Zinn does effectively have the power to ‘impose a remedy'” (at para. 14, citing to para. 8 of Justice Zinn’s order).
He then turned to the second part of the test, in which the Government had to persuade the Court that it would suffer irreparable harm if the stay was not granted (at para. 15-21). He wrote “[i]f 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” (at para. 17).
Chief Justice Blais explained his concern about the division of powers, particularly in light of the Supreme Court ruling in Canada (Prime Minister) v. Khadr, 2010 SCC 3 [Khadr II]:
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 (at para. 19).
He agreed with the Government’s position that compliance with Justice Zinn’s order would upset “the balance” between the executive and the courts and would improperly interfere with the conduct of foreign relations – including their assertion that this harm could not be reversed even if they won on appeal and that it could not be compensated by damages (at paras. 20-21).
Having found that the Government would suffer irreparable harm, Chief Justice Blais then turned to the third, and final, part of the test from RJR-MacDonald — the balance of convenience. Quoting from a 1988 decision of the Federal Court of Appeal (Toth v. Canada (M.C.I.) (1988), 86 N.R. 302 (F.C.A.)), he characterized this component as asking the question “which party will suffer the greatest harm from the granting or refusal of the stay?” (at para. 23).
Absent any further action by the Government, he noted, Khadr’s trial before the Military Commission would begin on August 10, 2010, and it might end before the Court could rule on appropriate actions by the Government (at para. 25). It was, he pointed out, not the totality of Khadr’s detention and trial in the U.S. that was at issue before the Court in Canada, but, rather, the harm caused by “Canada’s prior unconstitutional actions” (at para. 28). He also noted that, although the U.S. did not give Canada the assurances requested, they did respond by explaining that the Military Commissions Act of 2009 has safeguards against the admission of evidence “obtained through improper means” (at para. 28).
Having thus minimized the harm that would be caused to Khadr in the granting of a stay, Chief Justice Blais described the harm to the Government of Canada as “unequivocal,” suggesting that allowing Justice Zinn’s ruling to be enforced would cause “the Crown’s discretionary power in foreign affairs and national security … to be usurped by the judiciary” (at para. 29). The balance of convenience, he concluded, favored the Government (at para. 33).
The appeal itself, of course, is still ongoing, with enforcement of the Federal Court judgment now on hold until the appeal is decided. While some elements of the appellate ruling appear rather superficial, that is not terribly surprising in a ruling granting a stay pending appeal. Given the expressions of concern by the Supreme Court in Khadr II about judicial overstepping in regard to the Crown prerogative – combined with the low likelihood that even a successful outcome on the merits would result in Khadr being released – it may not be surprising that Chief Justice Blais chose to stay the order until the full appeal could be heard.
While the appeal is still viable, one of Khadr’s Edmonton lawyers expressed doubts as to whether they would proceed with the current litigation at this stage. (See Anna Mehler Paperny, Ruling clears way for Khadr trial (24 July 2010), The Globe and Mail (quoting Nathan Whitling as saying that they asked for an expedited hearing in the appeal, but, since it would likely not happen before the Military Commission proceeding, they were trying to decide whether it was worth pursuing the appeal, as it is now “kind of a done deal”)). There are valid questions as to whether continuing the current strand of litigation, in Canada at least, would result in Khadr’s release. The litigation seems to retain its importance more for the weight of the statements made therein – both by the courts and by the Government of Canada – than for a real practical efficacy in securing Khadr’s release.
A few days after the Federal Court of Appeal granted the stay, a vigil was scheduled at the U.S. Consulate in Toronto to mark the eight-year anniversary of Khadr’s initial detention on July 27, 2002. (See Amnesty International, Solidarity vigil to mark Omar Khadr’s 8th anniversary in illegal detention – Media Advisory, (27 July 2010)). As of the date of that vigil, Khadr’s case before the Military Commission had yet to begin, and Khadr faced the rather bizarre procedural posture, eight years after being detained, of having stay orders in effect to court proceedings in both Canada and the United States. (See Khadr v. Obama, Civil Action No. 04-1136 (JDB) (D.D.C. July 20, 2010) (continuing a stay on Khadr’s habeas petition, pending the outcome of the Military Commission hearing.)). Regardless of any potential merits to the orders to stay proceedings, it is impossible to overlook the irony of that posture so many years after Khadr was first detained.
After the stay was granted, and in an ongoing effort to advocate for Khadr in Canada, his Edmonton attorney, Dennis Edney, released a letter written to him by Khadr in May 2010. Khadr wrote:
Dennis you always say that I have an obligation to show the world what is going on down here and it seems that we’ve done every thing but the world doesn’t get it, so it might work if the world sees the US sentencing a child to life in prison, it might show the world how unfair and sham this process is, and if the world doesn’t see all this, to what world am I being released to? A world of hate, unjust and discrimination! (sic)
(See Michelle Shephard, Omar Khadr seeks public support (27 July 2010), The Toronto Star (reproducing the hand-written letter, errors retained as in original)). In a press release accompanying the letter, which was sent to several media outlets, the following description was included: “we see both the boy and the man; the boy in his awkward phrasing and grammar — the man in his sophisticated assessment of his predicament and the role he appears destined to play in the Guantanamo Bay story.” (See Peter Finn, A letter from Omar Khadr, Guantanamo Bay detainee (27 July 2010), The Washington Post).
The next step, it appears, will be Khadr’s hearing before the Military Commission.