Federal Court Decision on Khadr

Yesterday’s Federal Court decision of Mr. Justice O’Reilly, Omar Ahmed Khadr v. The Prime Minister Of Canada, The Minister of Foreign Affairs, The Director of the Canadian Security Intelligence Service, and The Commissioner of the Royal Canadian Mounted Police 2009 FC 405, is available in PDF.

[3] I am satisfied, in the special circumstances of this case, that Mr. Khadr’s rights under s. 7 of the Charter have been infringed. I will grant his request for an order requiring the respondents to seek his repatriation from the United States. Given my conclusion regarding s. 7, it is unnecessary for me to deal with the other grounds Mr. Khadr raised before me. The issue of disclosure has already been conclusively decided by the Supreme Court of Canada and, therefore, cannot be re-litigated before me.

[91]I find that the Government of Canada is required by s. 7 of the Charter to request Mr. Khadr’s repatriation to Canada in order to comply with a principle of fundamental justice, namely, the duty to protect persons in Mr. Khadr’s circumstances by taking steps to ensure that their fundamental rights, recognized in widely-accepted international instruments such as the Convention on the Rights of the Child, are respected. The respondents did not offer any basis for concluding that the violation of Mr. Khadr’s rights was justified under s. 1 of the Charter.

[92] The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter. To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable.

Not quite a ruat coelum, but clear and, I think, right in sentiment.

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