The Applicant, Mr. Khadr, successfully sought judicial review of the decision, made by the Respondent, Canada, not to seek his repatriation from Cuba and its decision to send a diplomatic note to the government of the United States

24. August 2010 0

Administrative law – Decisions of administrative tribunals – Ministerial orders – Criminal matters – Out of jurisdiction treatment – Extradition and repatriation – Charter of Rights and Freedoms – Life, liberty or security of the person – Judicial review – Jurisdiction – Procedural requirements and fairness – Natural justice – Disclosure – Remedies – Mandamus – Certiorari

Khadr v. Canada (Prime Minister), [2010] F.C.J. No. 818, 2010 FC 715, Federal Court, July 5, 2010, Zinn, J.

The Applicant, Mr. Khadr, is a Canadian citizen who had been detained in Guantanamo Bay since 2002 for alleged terrorist activities in Afghanistan. Canadian officials questioned Mr. Khadr and forwarded his statements to the United States. This evidence was instrumental in numerous charges being laid against Mr. Khadr by the United States. Mr. Khadr made several attempts to return to Canada through numerous avenues and intermediaries.

The Government of Canada (the “Respondent”) adopted an ongoing policy whereby it did not seek Mr. Khadr’s return/repatriation to Canada. Mr. Khadr brought an application for judicial review and the Court concluded that the Respondent had breached his rights under section 7 of the Charter. The Supreme Court of Canada upheld the finding that Mr. Khadr’s section 7 rights were breached but held that repatriation was not an appropriate remedy since it was uncertain whether the United States would agree to the request. The Supreme Court left the crafting of a remedy to the Respondent.

The application for judicial review concerns the Respondent’s actions in response to the decision of the Supreme Court. The Respondent issued public statements confirming its position not to seek Mr. Khadr’s repatriation and subsequently sent a diplomatic note to the United States requesting that it not use any of the information provided to it in its prosecution of Mr. Khadr. Mr. Khadr sought judicial review of the Respondent’s decision to take this step since he was not advised that this step was going to be taken, nor was he given an opportunity to make submissions concerning the decision. Mr. Khadr sought orders pursuant to the Charter in the nature of certiorari setting aside the decision and in the nature of mandamus requiring Canada to demand his repatriation. In the alternative, Mr. Khadr sought an order directing the Respondent to reconsider its decision after giving him a fair opportunity to be heard.

The issues before the Court in Mr. Khadr’s applications are issues of procedural fairness and natural justice. The Court viewed the applications as raising five issues. There were two decisions at issue. The first was the decision, arising out of the Supreme Court’s decision, not to seek repatriation of Mr. Khadr. The second decision was the decision to ask the United States not to use the statements provided to it. The Court had to first decide whether either of these decisions were subject to judicial review.

The Court concluded that the public statements evidencing the decision not to seek repatriation did constitute a new decision and not merely a reiteration of the Respondent’s previous position. The Court also concluded that the decision was not res judicata because the question decided in the previous proceedings was different than the issue in this application for judicial review.

The Court concluded that the second decision (to send the diplomatic note) was a decision subject to judicial review even though it involved an exercise of the royal prerogative.

The Court considered whether Mr. Khadr was entitled to procedural fairness and natural justice in respect of both of the above-noted decisions. The Court found that Mr. Khadr’s section 7 rights were engaged and therefore the decisions were justiciable as his rights were affected by the exercise of the royal prerogative. In addition, the decisions were found to be justiciable because Mr. Khadr had a legitimate expectation that the Respondent would take action to cure the breach of his Charter rights in light of the Supreme Court’s declaration. The Court went on to hold that Mr. Khadr was entitled to receive procedural fairness and natural justice from the executive branch of the Respondent in reaching its decision about the Charter remedy it would provide to Mr. Khadr. When the Respondent made the decision not to seek Mr. Khadr’s repatriation, he was entitled to be afforded procedural fairness and natural justice.

The Court found that the level of procedural fairness and natural justice required in the circumstances was at the low end of the scale. However, the Court found that Mr. Khadr did not receive fairness. The most basic requirement of justice is that a person affected by a decision be given notice of it.

The Court refused to grant the order in the nature of certiorari because the diplomatic note had already been sent. The Court ordered the Respondent to advise Mr. Khadr within seven days of the judgment of all untried remedies that would potentially cure or ameliorate its breach of Mr. Khadr’s Charter rights. Mr. Khadr was given seven days to provide submissions as to other potential remedies and as to whether those considered by the Respondent are truly potential remedies that would cure or ameliorate the breach. The Court further ordered that the Respondent was required to advance a potential curative remedy as soon after this exchange as reasonably practicable. Further, the Respondent was required to continue advancing potential curative remedies until the breach has been cured or all such potential curative remedies have been exhausted (at which time, the Respondent was ordered to advance potential ameliorative remedies).

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at [email protected] or review his biography at

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