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Cablegate: Canadian Supreme Court: Government Can Decide On Khadr

VZCZCXYZ0024
OO RUEHWEB

DE RUEHOT #0124/01 0292109
ZNR UUUUU ZZH
O R 292108Z JAN 10
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0323
INFO ALL CANADIAN POSTS COLLECTIVE

UNCLAS OTTAWA 000124

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PHUM PTER CA
SUBJECT: CANADIAN SUPREME COURT: GOVERNMENT CAN DECIDE ON KHADR

REF: 09 OTTAWA 629; 09 OTTAWA 313

1. (SBU) Summary: In a unanimous decision on January 29, the
Supreme Court of Canada overturned an Appeals Court order that the
Canadian government must request the repatriation of Canadian
citizen Omar Khadr in Guantanamo Bay from U.S. authorities.
However, the Supreme Court also ruled that the federal government
had breached --and continues to breach -- Khadr's constitutional
rights, while leaving the remedy to the government's discretion.
The mixed ruling gave a little something to each side, confirming
the federal government's jurisdiction over foreign affairs while
underscoring the serious violation of Khadr's rights. The Minister
of Justice expressed the federal government's satisfaction with the
ruling and promised to consider any next steps. End summary.

TO SEEK REPATRIATION OR NOT

2. (U) The Supreme Court of Canada issued a succinct and unanimous
19 page written ruling on January 29 in the case of Canadian
citizen Omar Khadr (reftels), detained at Guantanamo Bay while
facing allegations that he had killed a U.S. soldier in Afghanistan
in 2002. The judgment followed an expedited hearing on November
13, 2009 of the federal government's appeal of an August 14, 2009
Federal Court of Appeal ruling that had ordered the government to
request Khadr's repatriation from U.S. custody. The government had
argued that courts lacked jurisdiction to direct the executive
branch to act in the conduct of foreign relations. Khadr's lawyers
had argued that Canadian officials' complicity in the violation of
his constitutional rights was an extraordinary circumstance that
demanded an unprecedented remedy, e.g., that the government
intercede with U.S. authorities to request his repatriation. The
full verdict is at:
http://www.scc-csc.gc.ca/decisions/Khadr-en.p df

FOUR KEY ISSUES

3. (U) In its January 29 ruling the Supreme Court addressed four
issues:

-- whether the Canadian Charter of Rights and Freedoms applies to
the conduct of Canadian officials alleged to have breached Khadr's
constitutional rights;

-- whether the conduct of Canadian officials deprived Khadr of his
right to liberty and security of the person and, if so, whether
this deprivation conformed to principles of fundamental justice;

-- whether the repatriation remedy for Khadr was just and
appropriate in the circumstances; and,

-- the power of the courts to review and intervene on matters of
foreign affairs to ensure constitutionality of executive action.

CLEAR VIOLATION OF CONSTITUTIONAL RIGHTS

4. (U) In its judgment, the Supreme Court unequivocally confirmed
violations of Khadr's constitutional rights, reaffirming its
separate 2008 ruling that Canadian officials had breached Khadr's
right to life, liberty, and security of the person under Section 7
of the Canadian Charter of Rights and Freedoms by interrogating him
at the Guantanamo Bay facility in 2003 and 2004 and by sharing
information from those interviews with U.S. authorities despite
knowing that in 2004 that U.S. authorities had subjected him to
illegal interrogation methods, including sleep deprivation. It
further found that his status as a minor, his detention without
counsel, and his interrogators' awareness that he had been
subjected to sleep deprivation were "not in accordance with the

principles of fundamental justice." The Supreme Court added that
the conduct of Canadian officials in these interrogations "offends
the most basic Canadian standards about the treatment of detained
youth suspects." Although these breaches of Khadr's rights had
occurred in the past, the Supreme Court insisted that their impact
"continues to this day."

REMEDY UP TO GOVERNMENT TO DECIDE

5. (U) The Supreme Court judged that Khadr was entitled to remedy,
but concluded that the repatriation remedy ordered by the lower
court did not meet the test of justice and appropriateness. It
judged that the Federal Court of Appeal had "erred" in ordering the
federal government to request Khadr's repatriation. It accepted
the federal government's argument that the executive branch must
have flexibility in exercising its royal prerogative (exclusive
jurisdiction) over foreign affairs, and concluded that the Federal
Appeal Court ruling had given too little weight to that
constitutional responsibility. It commented that the effectiveness
of the repatriation remedy was in any event "unclear" and that the
court could not properly assess the impact of a repatriation
request on Canadian foreign relations. It also deemed it
"inappropriate" for a court to give direction as to the diplomatic
steps necessary to address the breaches of Khadr's rights under the
Charter. Finally, it cited "evidentiary uncertainties" posed by
legal proceedings against Khadr before a U.S. military commission
as a reason for the Canadian Supreme Court to exercise caution in
exercising its remedial jurisdiction.

6. (U) The Supreme Court warned, however, that the government "is
not exempt from constitutional scrutiny." Courts, it noted, had
the responsibility "to determine the legal and constitutional
limits within which such [executive] decisions are to be taken...
in the case of refusal by a government to abide by constitutional
constraints, courts are empowered to make orders ensuring that the
government's foreign affairs prerogative is exercised in accordance
with the constitution." The Supreme Court determined that the most
appropriate remedy in this case was declaratory relief and decided
"to grant Mr. Khadr a declaration that his Charter rights had been
infringed, while leaving the government a measure of discretion in
deciding how best to respond." It awarded costs to Khadr.

"END OF THE ROAD?"

7. (U) Nathan Whitling, one of Khadr's Canadian lawyers, told
reporters that he was "not surprised" by the ruling, which "'cut
down the middle." He appeared skeptical of the impact of the
Supreme Court's declaration, stating that he did not expect a "mere
declaration" that Khadr's rights had been breached would "make the
PM budge" from his policy of non-intervention in the legal case
against Khadr in the United States. "Practically speaking," he
conceded, "this is pretty much the end of the road for [legal]
assistance from the Canadian Government." He added that Khadr's
Canadian lawyers would hereafter concentrate on U.S. military
commission proceedings against his client.

8. (U) Official Opposition Liberal Party leader Michael
Ignatieff underscored that the case was back in the political
realm, arguing that the "ball is clearly in the government's court"
and the "only thing it can't do is nothing." Ignatieff called on
the government to "respect" the Supreme Court's ruling, which he
said had clearly stated that Khadr's rights were violated, and to
repatriate Khadr.

9. (U) Minister of Justice Rob Nicholson noted in a statement
that "The Government is pleased that the Supreme Court has
recognized 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 interests'" and promised that "The Government will
carefully review the Supreme Court's ruling and determine what
further action is required." The full text of his statement is at:
http://www.justice.gc.ca/eng/news-nouv/nr-cp/ 2010/doc_32474.html
JACOBSON

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