In my previous post, I talked about the new ground broken by Khadr. In this post, I want to identify and offer preliminary reflections on some important questions raised by the judgment. First, though, full disclosure: I was counsel for the British Columbia Civil Liberties Association in the appeal. Second, a disclaimer: these views are strictly my own.
To recall, in my last post, I wrote
Suresh established what we termed the “doctrine of constitutional complicity”, which holds that Canada is constitutionally liable for human rights abuses committed by foreign states which occur outside of Canada when (a) such abuses would violate the Charter had they occurred in Canada at the hands of the Canadian government; and (b) Canada has been complicit in the human rights abuses of the foreign state.
In fact, Suresh built upon and extended two previous decisions, Burns and Singh which held that Canada would be constitutionally liable for extradition to face the death penalty (Burns), and the denial of entry to Canada which would potentially expose someone to a deprivation of their security of the person (Singh). As these three cases make clear, the textual home for this doctrine has been s. 7 of the Charter (although it need not be). Thus, in every case, the question has been whether the human rights abuse would violate s. 7 if committed by Canada within Canada. And as I mentioned earlier, the Court has looked to international human rights law as a source of the principles of fundamental justice, to determine when such violations have occurred.
In my view, this is no accident. The concern that the Charter not apply to foreign states through the back door -- a concern motivated by considerations of comity and sovereignty -- is not present in cases international human rights obligations are at play, since those obligations trump state sovereignty, as the Court said in Hape.
Applied to Khadr, the question before the Court was this -- had the manner in which Omar Khadr was detained and put on trial in Guantanamo Bay occurred in Canada at the hands of the Canadian government, would it have violated s. 7? Clearly, his imprisonment prior to his trial, and his potential incarceration as a sentence in the event of a guilty verdict, both amounted to a deprivation of his liberty. But was he deprived of his liberty in a manner that contravened the principles of fundamental justice?
Here, there is an internal contradiction in the judgment. The Court should have answered this question by looking to international human rights law, as it had in Suresh. There are a range of violations here, as detailed in the joint factum of Human Rights Watch and the International Human Rights Clinic at U of T. One obvious answer can be found in another part of the reasons, concerning the extra-territorial application of the Charter. Recall that the Court relied on the Geneva Conventions in invoking the human rights exception to Hape. So one would have expected that the same violation of international human rights law that triggered the application of the Charter would again have come into play in determining the content of s. 7. Indeed, the structure of the doctrine of constitutional complicity would appear to demand this kind of symmetry, in cases where Canada's complicity occurs outside the territory of Canada.
But instead, the Court did something different. The principle of fundamental justice that it relied on is "disclosure of materials in its [i.e. Canada's] possession arising from its [i.e. Canada's] participation in the foreign process that is contrary to international law and jeopardizes the liberty of a Canadian citizen" (at para. 31). But under the doctrine of constitutional complicity, the relevant principle of fundamental justice is one which the foreign state has (or would) contravene if it were bound by the Charter - such as the infliction of torture (Suresh) or the imposition of the death penalty (Burns). Moreover, in this context, there is a threshold of seriousness that must be crossed, such that the contravention of the principle "shocks the conscience", and international human rights law is a guide to determining when that has occurred. So does the Court think that the limited disclosure obligations placed on American prosecutors in Guantanamo shock the conscience because they violate international law? The Court refused to explain how precisely the Geneva Conventions were violated, so it is unclear whether contained therein is a right to disclosure under international law which was violated. To be sure, the Court refers in passing to the fact that the Presidential military orders creating the Military Commissions "departed from normal rules of criminal procedure as to ... disclosure of the case to meet" (at para. 6). But absent a more fulsome explanation from the Court, we are left wondering if this was the basis of the Court's reasoning. And if it is not, we are left with an asymmetry between the grounds for applying the Charter (the violation of the Geneva Conventions) and the manner in which the Charter was applied.
There is a potentially disturbing implication of the Court's asymmetrical approach to the role of international human rights law in this case. Under the doctrine of constitutional complicity, Canada violates the Charter through its complicity in foreign human rights abuses, and it therefore has a duty to not be complicit. Thus, in Suresh, Canada had a duty to not return a refugee to the risk of torture. It also follows that should it violate the duty of non-complicity, it must remedy that violation -- for example, through disclosure. Thus, disclosure is not a right, but a remedy. Had the Court framed its judgment in this way, it would mean that Canada would have been under a constitutional duty to not become complicit in the human rights abuses in Guantanamo Bay. But framing the right as a right to disclosure does not have the same effect. Rather, it is just that -- a right to disclosure. In other words, it would appear that Canada did not violate the Charter by cooperating in a foreign legal process which, by the Court's own admission, violated the Geneva Conventions.
This links up to a second issue -- the degree of causal connection required between Canada and the conduct of the foreign state. A very significant dimension of Khadr is the Court's acceptance that Canada can be causally connected to human rights abuses abroad in situations other than the one presented in Suresh, where Canada was in physical custody of the rights-claimant and wished to transfer him to the foreign state. Out of recognition of this shift, the Court did not quote from Suresh, which held Canada constitutionally liable on the basis of a "but for" standard. Rather, it stated that Canada had violated the Charter though its "participation".
What level of participation is sufficient to trigger the Charter? This is the holding in Khadr: "[b]y making the product of its interviews of Mr. Khadr available to U.S. authorities, Canada participated in a process that was contrary to Canada’s international human rights obligations" (at para. 27). Moreover, what brought the Charter into play was not the mere fact of sharing the information. This explains the Court's statement: "[n]or is it necessary to conclude that handing over the fruits of the interviews in this case to U.S. officials constituted a breach of Mr. Khadr’s s. 7 rights." Rather, it was the sharing of the information to American officials who were operating under a process which violated international law that provided the requisite causal connection. Now to some extent, the reference to international law is redundant, since as a threshold matter, the Charter does not apply unless international law is violated. Thus, the Court must be taken to be holding that only when this threshold criterion is met does the sharing of the information amount to participation.
The significant point to note is what did not amount to participation: the mere fact of the interview itself. As the Court stated: "Merely conducting interviews with a Canadian citizen held abroad under a violative process may not constitute participation in that process." As I argued above, this is consistent with how the Court framed the s. 7 violation. Although the Court's holding on what constitutes participation stands on its own, taken together, these parts of the judgment appear to hold that Canada can profit from human rights abuses committed by foreign states in order to gather intelligence. The fact that evidence procured due to torture may ultimately be inadmissible in a criminal trial does not mean that Canada cannot use that intelligence for other purposes.
A final point is Khadr's citizenship. One of the arguments not made by the Crown in this appeal was that Canada's constitutional obligations to non-citizens were somehow different than those owed to citizens, because Omar Khadr is a Canadian citizen. As a consequence, how citizenship may affect the extra-territorial application of the Charter was not squarely before the Court. But nonetheless, the Court stated that "s. 7 imposes a duty on Canada to provide disclosure of materials in its possession arising from its participation in the foreign process that is contrary to international law and jeopardizes the liberty of a Canadian citizen" (at para. 31) and "to the extent that Canada has participated in that process, it has a constitutional duty to disclose information obtained by that participation to a Canadian citizen whose liberty is at stake" (at para. 35).
These statements would appear to limit the scope of s. 7 to citizens. The odd thing about these statements is that citizenship did not otherwise figure into the Court's analysis at all. Thus, the Charter applies extra-territorially not because a Canadian citizen was the rights-claimant, but because this was a case in which the human rights exception to Hape was applicable. Likewise, the causal connection to the foreign human rights abuse arose from the sharing of the information with American authorities; again, Khadr's citizenship was irrelevant. Finally, there is the text of s. 7 itself. Section 7 guarantees rights to "everyone", in contrast to other Charter provisions, which guarantee rights to citizens (e.g ss. 3, 4, 5 and 6(1)) and both citizens and permanent residents (s. 6(2)). So there is no textual basis for limiting the scope of the right to citizens.
Where the Court will have to come clean on this issue is Afghan Detainees, because the rights-claimants are Afghan nationals. Did Khadr really mean to hold that Canada is not bound by the Charter abroad when transferring non-citizens to foreign custody, where they will face the prospect of torture?
