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Canada: Supreme Court Rules in Guantanamo Detainee Case

(Feb. 3, 2010) On January 29, 2010, the Supreme Court of Canada issued a decision in the case of a Canadian citizen being held by U.S. authorities in Guantanamo Bay. The Court ruled unanimously that the detainee, Omar Khadr, was entitled to a declaration that his rights under the Canadian Charter of Rights and Freedoms (Constitution Act, 1982, being Part B of the Canada Act, 1982, c. 11 (U.K.), available at http://laws-lois.j
) had been violated , but that the Courts did not have jurisdiction to order the Prime Minister to request his repatriation.

Khadr was captured by U.S. forces in Afghanistan in 2002, after he had allegedly thrown a grenade that killed a U.S. soldier. He was 15 years old at the time of this incident. Since being transferred to Guantanamo Bay, Khadr has been charged with war crimes; he is being held for trial by a military commission. In 2003, Canadian officials questioned Khadr and shared the information given to them with U.S. authorities. While interrogating him, the Canadian officials were aware that Khadr had been subjected to a sleep deprivation technique known as “the frequent flyer program.” In 2008, the Canadian Supreme Court ruled that the Canadian officials involved had violated Khadr's constitutional right to fundamental justice by violating international human rights norms, and it ordered the officials to give transcripts of the interviews to Khadr. (Khadr v. Canada, [2008] 2 S.C.R. 125, available at http://

On July 10, 2008, the Prime Minister of Canada stated that the country would not seek to have Khadr returned to Canada, but would seek assurance of good treatment. In August 2008, Khadr argued that because his constitutional rights had been violated by Canadian officials, the government of Canada was obliged to request his repatriation. A judge of the Federal Court agreed with this submission, and his decision was upheld by the Federal Court of Appeal. (Khadr v. Canada, 2009 F.C. 405, available at http://
) These two decisions were but two of the fourteen that the Federal Court and the Federal Court of Appeal have already issued in the Khadr case. (See Federal Court, Federal Court Decisions,
(last visited Feb. 2, 2010).)

The Canadian Supreme Court disagreed with the Federal Court of Appeal on the grounds that it was bound to respect the prerogative powers of the executive over the conduct of foreign relations. However, it did state that it could issue a declaration that “will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter” of Rights and Freedoms. (Canada (Prime Minister) v. Khadr, 2010 S.C.C. 3, available at