Friday, January 29, 2010

On declarations

There's been a massive outpouring of criticism over the Supreme Court's latest Khadr ruling. And while it's probably not entirely accurate to say that the Supreme Court has decreed that courts can't ever make an order which will result in an effective remedy in a case such as Khadr's, the practical upshot of the decision in this particular case (and with a government that couldn't care less whether it keeps violating Khadr's rights) is effectively to limit the courts to offering suggestions to a government which has already said it isn't interested in listening.

That said, I'd hate for the Supreme Court's justified criticism of the government actions - Lib and Con alike - which violated Khadr's Charter rights to get lost in the fact that it failed to make an order with practical effect. So let's make sure that the following parts of the judgment are what get remembered in the long run:
[21] An applicant for a Charter remedy must prove a Charter violation on a balance of probabilities (R. v. Collins, [1987] 1 S.C.R. 265, at p. 277). It is reasonable to infer from the uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting his liberty and security interests. In the absence of any evidence to the contrary (or disclaimer rebutting this inference), we conclude on the record before us that Canada’s active participation in what was at the time an illegal regime has contributed and continues to contribute to Mr. Khadr’s current detention, which is the subject of his current claim. The causal connection demanded by Suresh between Canadian conduct and the deprivation of liberty and security of person is established.
[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations...Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations. Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).

[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
[30] An appropriate and just remedy is “one that meaningfully vindicates the rights and freedoms of the claimants”: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 55. The first hurdle facing Mr. Khadr, therefore, is to establish a sufficient connection between the breaches of s. 7 that occurred in 2003 and 2004 and the order sought in these judicial review proceedings. In our view, the sufficiency of this connection is established by the continuing effect of these breaches into the present. Mr. Khadr’s Charter rights were breached when Canadian officials contributed to his detention by virtue of their interrogations at Guantanamo Bay knowing Mr. Khadr was a youth, did not have access to legal counsel or habeas corpus at that time and, at the time of the interview in March 2004, had been subjected to improper treatment by the U.S. authorities. As the information obtained by Canadian officials during the course of their interrogations may be used in the U.S. proceedings against Mr. Khadr, the effect of the breaches cannot be said to have been spent. It continues to this day. As discussed earlier, the material that Canadian officials gathered and turned over to the U.S. military authorities may form part of the case upon which he is currently being held. The evidence before us suggests that the material produced was relevant and useful. There has been no suggestion that it does not form part of the case against Mr. Khadr or that it will not be put forward at his ultimate trial. We therefore find that the breach of Mr. Khadr’s s. 7 Charter rights remains ongoing and that the remedy sought could potentially vindicate those rights.

[31] The acts that perpetrated the Charter breaches relied on in this appeal lie in the past. But their impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future. The impact of the breaches is thus perpetuated into the present. When past acts violate present liberties, a present remedy may be required.
[48] The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice.

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