“Canada was obliged to recognize that Mr Khadr, being a child, was vulnerable to being caught up in armed conflict as a result of his personal and social circumstances in 2002 and before. It cannot resile from its recognition of the need to protect minors, like Mr Khadr, who are drawn into hostilities before they can apply mature judgment to the choices they face”.
Justice O’Reilly concluded that the government of Canada has an obligation under the Canadian Charter of Rights and Freedoms to request Omar Khadr’s repatriation. The government’s ongoing refusal to do so, he said, “offends a principle of fundamental justice” and violates Omar Khadr’s rights under the Charter. The Canadian government sought to avoid its own obligations on remedy by pointing to the fact that Omar Khadr’s ill-treatment was actually carried out by US rather than Canadian officials. Justice O’Reilly rejected this: “the necessary degree of participation”, he wrote, “is found in Canada’s interrogation of Mr Khadr knowing that he had been subjected to treatment that offended international human rights norms to which Canada had specifically committed itself”.
Neither, Justice O’Reilly continued, had the Canadian government identified any harm that would befall Canada or its relations with the USA, should it request Omar Khadr’s repatriation. The Justice noted that “many other countries have requested the return of their citizens or residents from Guanánamo Bay and the United States has granted those requests”. Any concern that the USA might reject Canada’s request for his repatriation “does not provide justification” not to make that request, he added.
The Canadian government appealed Justice O’Reilly’s ruling to the Federal Court of Appeal, but was unsuccessful. In a 2-1 ruling on 14 August 2009, the appeals court upheld the decision and likewise ruled that the Canadian authorities must seek Omar Khadr’s repatriation. Like Justice O’Reilly, the Federal Court of Appeal found that:
“the purpose of the sleep deprivation mistreatment was to induce Mr Khadr to talk, and Canadian officials knew that when they interviewed Mr Khadr to obtain information for intelligence purposes. There can be no doubt that their conduct amounted to knowing participation in Mr Khadr’s mistreatment. 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…
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…
Canada cannot avoid responsibility for its participation in the process at 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”.
While the Court of Appeal expressed these findings in strong terms, Amnesty International would add that it may still have understated the gravity of the situation because it did not explicitly consider whether the mistreatment of Omar Khadr may even have amounted to torture.
In the circumstances of this case, the Court of Appeal wrote, making a request to the USA for Omar Khadr’s repatriation “is the most appropriate remedy Canada can offer Mr Khadr”, and being ordered by a court to make such a request “of a close ally is a relatively small intrusion into the conduct of international relations”.