Saturday, May 7, 2011

The Other Khadr

Ontario Court of Appeal explains rule of law to Attorney-General
(who, with his American client, seems unclear on the concept)

United States of America v. Khadr, 2011 ONCA 358

On appeal from the stay of extradition proceedings of Justice Christopher M. Speyer of the Superior Court of Justice dated August 4, 2010, with reasons reported at (2010), 258 C.C.C. (3d) 231.

Sharpe J.A.:

[1] This appeal raises fundamental issues concerning the appropriate judicial response to a violation of the human rights of an individual sought for extradition on terrorism charges. The United States of America paid the Pakistani intelligence agency, the Inter-Services Intelligence Directorate (the “ISI”), half a million dollars to abduct Abdullah Khadr in Islamabad, Pakistan in 2004. Khadr, a Canadian citizen, was suspected of supplying weapons to Al Qaeda forces in Pakistan and Afghanistan. Following his abduction, Khadr was secretly held in detention for fourteen months. He was beaten until he cooperated with the ISI, who interrogated him for intelligence purposes. The ISI refused to deal with the Canadian government but did have contact with a CSIS official. The American authorities discouraged the CSIS official's request that Khadr be granted consular access, and the ISI denied access for three months. The ISI refused to bring Khadr before the Pakistani courts. After the ISI had exhausted Khadr as a source of antiterrorism intelligence, it was prepared to release him. The Americans insisted that the ISI hold Khadr for a further six months in secret detention, to permit the United States to conduct a criminal investigation and start the process for Khadr's possible rendition to the United States. When Khadr was finally repatriated to Canada, the United States sought to have him extradited on terrorism charges.

[2] The Superior Court judge who conducted the extradition committal hearing concluded, at para. 150, that “the sum of the human rights violations suffered by Khadr is both shocking and unjustifiable”. The judge granted a stay of proceedings on the basis that to permit the proceedings to continue in the face of the requesting state's misconduct would constitute an abuse of the judicial process.

[3] On behalf of the United States, the Attorney General of Canada appeals to this court, arguing that the extradition judge had no jurisdiction to grant a stay, and that even if he did, this case did not qualify as “the clearest of cases” warranting a stay.

[4] I would dismiss the appeal. There is no appeal against the extradition judge's finding that the human rights violations were shocking and unjustifiable. Because of the requesting state's misconduct, proceeding with the extradition committal hearing threatened the court's integrity. Responding to that threat was a judicial matter to be dealt with by the extradition judge, not an executive decision reserved to the Minister. The extradition judge did not err in concluding, at para. 150, that “[i]n civilized democracies, the rule of law must prevail”. Moreover, the remedy of a stay of extradition proceedings did not, as the Attorney General submits, allow “an admitted terrorist collaborator to walk free”. Khadr is liable to prosecution in Canada for his alleged terrorist crimes. The stay granted by the extradition judge does not impair the Attorney General's ability to exercise his lawful powers to commence a prosecution in Canada.