International Law

[2] Mr. Khadr challenges the refusal of the Canadian Government to seek his repatriation to Canada. He claims that his rights under the Canadian Charter of Rights and Freedoms (sections 6, 7 and 12) have been infringed and seeks a remedy under s. 24(1) of the Charter. More particularly, Mr. Khadr asks me to quash the decision of the respondents not to seek his return to Canada and order the respondents to request the United States Government to repatriate him. Mr. Khadr also asks me to overturn the respondents? decision on the grounds that it was unreasonable and taken in bad faith. Finally, Mr. Khadr seeks further disclosure of documents in the respondents? possession.

[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... 

...[56] Torture is defined under [The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment] as ?any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession? (Art. 1). The Supreme Court of Israel has concluded that sleep deprivation ?for the purpose of tiring [the suspect] out or ?breaking? him, ? is not part of the scope of a fair and reasonable investigation? and harms ?the rights and dignity of the suspect? (Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 at para. 31). Based on that decision, Justice Mosley concluded that the subjection of Mr. Khadr to sleep deprivation techniques offended the CAT.

...[61] Canada also has a duty to ?take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts? (Art. 39).

[62] Finally, Canada has recognized ?the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child?s sense of dignity and worth? (Art. 40.1).

[63] The [Convention of the Rights of the Child] imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr. Khadr?s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.

[64] Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time. In Mr. Khadr?s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr. Khadr?s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family. 

[65] Canada had a duty to take all appropriate measures to promote Mr. Khadr?s physical, psychological and social recovery.

...[68] Clearly, 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.

...[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.