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Canada (Prime Minister) v. Khadr, 2009 FCA 246 (CanLII)
http://www.canlii.org/eliisa/highlight.do?text=khadr&language=en&searchTitle=Federal&path=/en/ca/fca/doc/2009/2009fca246/2009fca246.html

Since 2002, the respondent Omar Ahmed Khadr has been imprisoned by the United States at Guantánamo Bay pending his trial before a United States military commission or a United States federal court. In Khadr v. Canada (Prime Minister), 2009 FC 405 (CanLII), 2009 FC 405, Justice O’Reilly of the Federal Court found that Canadian officials breached Mr. Khadr’s rights under section 7 of the Canadian Charter of Rights and Freedoms, when they interviewed Mr. Khadr at the Guantánamo Bay prison and shared the resulting information with the United States. As a remedy pursuant to subsection 24(1) of the Charter, Justice O’Reilly ordered the Crown to request the United States to return Mr. Khadr to Canada as soon as practicable. The Crown has appealed. At the root of the Crown’s appeal is its argument that the Crown should have the unfettered discretion to decide whether and when to request the return of a Canadian citizen detained in a foreign country, a matter within its exclusive authority to conduct foreign affairs. For the reasons that follow, we have concluded that the Crown’s appeal should be dismissed with costs [para. 1].

 Mr. Khadr is a citizen of Canada.   He was born in Canada in 1986 [para. 2].

With the benefit of a full factual record, the United States Supreme Court held that the detainees had illegally been denied access to habeas corpus and that the procedures under which they were to be prosecuted violated the Geneva Conventions. Those holdings are based on principles consistent with the Charter and Canada’s international law obligations. In the present appeal, this is sufficient to establish violations of these international law obligations, to which Canada subscribes.  Different members of the majority of the United States Supreme Court focused on different deviations from the Geneva Conventions and the Uniform Code of Military Justice. But the majority was unanimous in holding that, in the circumstances, the deviations were sufficiently significant to deprive the military commissions of the status of “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”, as required by Common Article 3 of the Geneva Conventions.  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 human rights protected by international law. [para. 19].

In addition to these issues about the lawfulness of the regime governing Mr. Khadr’s detention and trial, Mr. Khadr alleges that he has been subjected to various kinds of torture during his detention. The affidavit of his United States counsel, LCDR Kuebler, provides support for those allegations. Justice O’Reilly did not consider it necessary to determine whether all of Mr. Khadr’s allegations of torture were true. However, he noted that it was uncontested that on March 30, 2004, when Canadian officials interviewed Mr. Khadr at the Guantánamo Bay prison, they were aware that he had been subjected to a particular form of sleep-deprivation known as the “frequent flyer program”. According to the report of that interview prepared by a DFAIT official on April 24, 2004, the purpose of that particular form of mistreatment was to make Mr. Khadr “more amenable and willing to talk”. That report describes the mistreatment of Mr. Khadr in the present tense, from which it is reasonable to infer that it began at some point before the March 30, 2004 interview and was continuing as of that date [para. 20].

As indicated in a recently published report of the Office of the Inspector General of the U.S. Department of Justice, during the period in question detainees at Guantánamo were subjected to a number of harsh interrogation techniques that would not have been permissible under American law for law enforcement purposes and have since been prohibited for use by the military.  Canada’s international human rights obligations include the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36, (“UNCAT”), to which the US is also a signatory. The application of this Convention to specific types of interrogation practices employed by military forces against detainees was discussed by the Supreme Court of Israel in Public Committee against Torture in Israel v. Israel 38 I.L.M. 1471 (1999). The practice of using these techniques to lessen resistance to interrogation was found to constitute cruel and inhuman treatment within the meaning of the Convention. The practice described to the Canadian official in March 2004 was, in my view, a breach of international human rights law respecting the treatment of detainees under UNCAT and the 1949 Geneva Conventions. Canada became implicated in the violation when the DFAIT official was provided with the redacted information and chose to proceed with the interview [para. 28].

Questioning a prisoner to obtain information after he has been subjected to cruel and abusive treatment to induce him to talk does not accord with the principles of fundamental justice. That is well illustrated by the following comments of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), 2001 SCC 1, [2002] 1 S.C.R. 3 at paragraphs 50-51:

[50] It can be confidently stated that Canadians do not accept torture as fair or compatible with justice. Torture finds no condonation in our Criminal Code; indeed the Code prohibits it (see, for example, s. 269.1). The Canadian people, speaking through their elected representatives, have rejected all forms of state-sanctioned torture. Our courts ensure that confessions cannot be obtained by threats or force. […] While we would hesitate to draw a direct equation between government policy or public opinion at any particular moment and the principles of fundamental justice, the fact that successive governments and Parliaments have refused to inflict torture and the death penalty surely reflects a fundamental Canadian belief about the appropriate limits of a criminal justice system.

 [51] When Canada adopted the Charter in 1982, it affirmed the opposition of the Canadian people to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. A punishment is cruel and unusual if it “is so excessive as to outrage standards of decency”: see R. v. Smith, 1987 CanLII 64 (S.C.C.), [1987] 1 S.C.R. 1045, at pp. 1072-73, per Lamer J. (as he then was). It must be so inherently repugnant that it could never be an appropriate punishment, however egregious the offence. Torture falls into this category. The prospect of torture induces fear and its consequences may be devastating, irreversible, indeed, fatal. Torture may be meted out indiscriminately or arbitrarily for no particular offence. Torture has as its end the denial of a person’s humanity; this end is outside the legitimate domain of a criminal justice system: see, generally, E. Scarry, The Body in Pain: The Making and Unmaking of the World (1985), at pp. 27-59. Torture is an instrument of terror and not of justice. As Lamer J. stated in Smith, supra, at pp. 1073-74, “some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment”. As such, torture is seen in Canada as fundamentally unjust [para. 50].

Canada is also a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Canada, 23 August 1985, 1465 U.N.T.S. 85, Can. T.S. 1987 No. 36 (entered into force 26 June 1987). It is not necessary in this case to determine whether the Convention against Torture confers any enforceable legal rights on Canadian citizens. It is enough to say that, by becoming a party to the Convention against Torture, Canada expressed in the clearest possible way its acceptance of the general prohibition on cruel, inhuman or degrading treatment as a principle of fundamental justice, which must inform any consideration of the scope of section 7 of the Charter. It is also worth noting the discussion in paragraphs 61 to 64 of Suresh (cited above) explaining the basis for finding that the absolute prohibition on torture is a peremptory norm of customary international law, or jus cogens [para. 52].

In addition, the Charter breach resulting from the conduct of the Canadian officials is exacerbated by the fact that, at the relevant time, the officials knew that Mr. Khadr was a “child” as defined in the Convention on the Rights of the Child, Canada, 28 May 1990, 1577 U.N.T.S. 3, Can. T.S. 1992, No. 3 (entered into force 2 September 1990). It is reasonable to infer that when Canada became a party to that Convention, it was accepting that the most important international norms stated in that Convention are principles of fundamental justice. Article 37(a) of that Convention reads in relevant part as follows:

37. States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment [para. 53].
As stated above, the principles of fundamental justice do not permit the questioning of a prisoner to obtain information after he has been subjected to cruel and abusive treatment to induce him to talk. That must be so whether the abuse was inflicted by the questioner, or by some other person with the questioner’s knowledge. Canada cannot avoid responsibility for its participation in the process at the Guantánamo Bay prison by relying on the fact that Mr. Khadr was mistreated by officials of the United States, because Canadian officials knew of the abuse when they conducted the interviews, and sought to take advantage of it [para. 54].

Consequently, the rights of Mr. Khadr under section 7 of the Charter were breached when Canadian officials interviewed him at the prison at Guantánamo Bay and shared the resulting information with United States officials [para. 55].

Similarly, the knowing involvement of Canadian officials in the mistreatment of Mr. Khadr in breach of international human rights law, in particular by interviewing him knowing that he had been deprived of sleep in order to induce him to talk, “opens up a different dimension” of a constitutional and justiciable nature [para. 58].

For these reasons, this appeal should be dismissed with costs [para. 75].