United States of America v. Khadr, 2011 ONCA 358

In United States of America v. Khadr, the Ontario Court of Appeal considered the appropriate judicial response to a violation of the human rights of an individual sought for extradition on terrorism charges. Justice Sharpe, writing for the court, affirmed that an extradition judge has residual discretion to stay extradition proceedings under common law if the requesting state’s conduct undermined the integrity of the judicial process. He held that this determination requires only a nexus between the state’s misconduct and the committal hearing, not a direct relationship.


In 2004 the United States paid the Pakistani intelligence agency (the ISI) half a million dollars to abduct Khadr, a Canadian citizen, in Islamabad. After 14 months, he was repatriated to Canada and the U.S. sought to have him extradited on terrorism charges. Superior Court Justice Christopher M. Speyer found that the U.S. collaborated in his extended detention, during which Khadr suffered human rights violations that were “both shocking and unjustifiable”. The extradition judge found that the U.S. should have known these violations were likely to occur and stayed the proceedings for abuse of process.


The core issue on appeal was whether granting the stay exceeded the extradition judge’s jurisdiction and usurped the function of the Minister of Justice. Justice Sharpe rejected the argument that s. 44(1)(a) of the Extradition Act deprives a court of its power to protect its own integrity by staying proceedings on the ground of abuse of process. He noted four phases to the extradition process: ministerial authority to proceed, judicial determination that the alleged conduct would warrant committal if it occurred in Canada, ministerial order of surrender, and a final judicial supervisory stage. The court in United States of America v. Cobb and United States of America v. Kwok held that ss. 6 & 12 Charter issues fall within the jurisdiction of the Minister at the third phase. The court in Cobb held further that issues which by their very nature pertain to the committal stage “including the court’s common law power to stay proceedings on grounds of abuse of process in order to protect the court’s integrity” fall within the jurisdiction of the extradition judge, not the Minister. Sharpe J.A. rejected the narrow interpretation that Cobb requires that the conduct of the requesting state have a direct bearing on the committal hearing. Finding that there was a nexus between U.S. conduct and the committal hearing, he dismissed the appeal.

May 6, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0358.htm

Tony Drake & Minsuk Kim