Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
Canada’s LOAC Manual (1999) provides:
A person who has been interned or placed in an assigned residence is entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board of the belligerent. If the internment or placing in assigned residence is maintained, the court or administrative board must periodically, and at least twice yearly, reconsider the case with a view to the favourable amendment of the initial decision if circumstances permit.
Canada’s LOAC Manual (2001), in its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Aliens in the territory of a party to the conflict”, states:
A person who has been interned or placed in an assigned residence is entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board of the belligerent. If the internment or placing in assigned residence is maintained, the court or administrative board must periodically, and at least twice yearly, reconsider the case with a view to the favourable amendment of the initial decision if circumstances permit.
The Mahjoub case
concerned an Egyptian national found to be a refugee under the 1951 Refugee Convention in Canada in 1996, and detained in Canada under a security certificate issued by Canadian authorities in 2000. The security certificate was found to be reasonable by Canada’s Federal Court in 2001.
In 2004, Canada’s Federal Court stated in relation to a motion seeking Mr Mahjoub’s release from detention:
Applicable legal principles
 This is, to my knowledge, the first decision rendered pursuant to subsection 84(2) of the Act Immigration and Refugee Protection Act, S.C. 2001, c. 27]. Subsection 84(2) provides that:
84(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
 Subsection 84(2) of the Act carries forward the right of a foreign national who is not removed from Canada within 120 days after a security certificate has been found to be reasonable to apply to be released from detention. The test to be applied remains a two-fold test. The judge designated to hear the application is to be satisfied that the foreign national “will not be removed from Canada within a reasonable time” and that the person’s “release will not pose a danger to national security or to the safety of any person” …
(i) Will removal take place within a reasonable time?
 … I accept that the reference to a period of 120 days in subsection 84(2) reflects Parliament’s intent that once a certificate has been determined to be reasonable, the person named in the certificate should be removed expeditiously. However, by requiring as one of the criteria for release that the Court consider whether removal will or will not take place within a reasonable time, Parliament has contemplated that in some circumstances removal will not have occurred within 120 days, but the period of detention may still be a reasonable period. Otherwise, release after 120 days would be automatic, absent considerations of national security or the safety of persons. The right to apply for release after 120 days undoubtedly acts as an impetus to officials to assure an expeditious removal, and at the same time assures that any post 120-day delay can be the subject of judicial scrutiny.
 What in any particular case will be reasonable will depend upon the facts and circumstances of that case.
 The length of time that Mr. Mahjoub has remained in detention since the certificate was determined to be reasonable is a matter of great concern. However, having regard to the steps taken to insure protection of Mr. Mahjoub’s rights, and having regard to the fact that the uncertainty about when he may be removed is in large part the result of pending and contemplated Court challenges initiated on Mr. Mahjoub’s behalf, Mr. Mahjoub has not met the burden of satisfying me, on a balance of probabilities, that he will not be removed from Canada within a reasonable time.
(ii) Will Mr. Mahjoub’s release pose a danger to national security or to the safety of any person?
 In view of my conclusion that Mr. Mahjoub has not satisfied me that he will not be removed from Canada within a reasonable time, it is not strictly necessary for me to consider the second statutory criteria because the requirements of subsection 84(2) of the Act are conjunctive. However, in view of the long period of time that he has remained in detention and the inability of the Ministers’ officials to state with certainty when Mr. Mahjoub will be removed, I think that it is desirable to deal with the second element of the statutory criteria for release.
 The evidence adduced on Mr. Mahjoub’s behalf is not strong. It is insufficient to neutralize the evidence which gives rise to the objectively reasonable belief that Mr. Mahjoub’s release would pose a danger.
 I have also considered whether there are conditions of release capable of addressing that threat …
 However, Mr. Mahjoub has been found by this Court to have been untruthful. Considering that, and the nature of the threat posed, I have not been satisfied by Mr. Mahjoub that the proposed, or similar, conditions would be effective to ensure that his release would not pose a danger to national security or to the safety of any person.
 I have also weighed the evidence of the proposed sureties … I have not been satisfied that the posting of cash sureties would address the danger that I believe would be posed by Mr. Mahjoub’s release.
 It follows, that Mr. Mahjoub has not met the onus upon him of satisfying the Court, on a balance of probabilities, that his release from detention will not pose a danger to national security or to the safety of any person.
 For these reasons, I would dismiss the motion for statutory release.
[emphasis in original]
In 2005, the Federal Court stated in relation to a further motion seeking Mr Mahjoub’s release from detention:
 Turning then to subsection 84(2) of the Act, … , in July of 2003 the Court determined that Mr. Mahjoub had not met the onus upon him to show that he would not be removed from Canada within a reasonable period of time and that his release would not pose a danger to national security, or to the safety of any person. Notwithstanding, in Almrei, … , at paragraph 36 the Court of Appeal endorsed an expansive interpretation of subsection 84(2) which could encompass successive applications for release. In the present case, all counsel agreed in January of 2005 that because of the effluxion of time it was appropriate to reopen the hearing and hear new evidence and submissions with respect to the statutory criteria. I am satisfied this was an appropriate exercise of discretion consistent with Parliament’s objective of appropriate judicial examination of detention.
Has Mr. Mahjoub met the onus of proof upon him to satisfy the court that he will not be removed from Canada within a reasonable period of time?
(i) Relevant principles
 The following relevant principles were articulated by the Court of Appeal in Almrei …:
1. A subsection 84(2) application requires the judge to determine whether the foreign national will be removed from Canada “within a reasonable time”. The concept of “removal within a reasonable time” requires a measurement of the time elapsed from the time the security certificate was found to be reasonable, and an assessment of whether that time is such that it leads to the conclusion that removal will not occur within a reasonable time.
2. The judge must consider the delay and the causes of the delay. Judicial remedies must be pursued diligently and in a timely fashion. This also applies to the Ministers’ responses and to the judicial hearing of the application for release. Subsection 84(2) of the Act “authorizes a judge to discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time”. Put another way, where an applicant tries to prevent his removal and delay ensues as a result, he can not complain that his removal has not occurred within a reasonable time, unless the delay is unreasonable or inordinate and not attributable to him.
3. A forward-looking and future-oriented test is used. Evidence must be provided that indicates the applicant will not be removed within a reasonable time. If credible and compelling evidence of an imminent removal is produced, the conditions of detention and the time already served lose much of their significance.
4. The length of the past detention is relevant only to the extent that the history of events may cast doubt on the reliability of the assertion and evidence submitted that the moment of removal is close at hand.
5. The conditions of detention are relevant to a limited extent. That is, the conditions may be such, especially when coupled with a lengthy detention, that the phrase “within a reasonable time” takes on another significance, one of urgency. The removal must then be effected even more expeditiously in order to be in compliance with the requirements of subsection 84(2).
 I will now apply these principles to the evidence before the Court.
 In summary, I have considered the length of Mr. Mahjoub’s detention and the fact that the protracted period of detention arises from both delay on the part of Mr. Mahjoub in pursuing his remedies and from factors beyond his control, such as the length of time taken by the Minister to decide if Mr. Mahjoub should be removed. After four years since the certificate was found to be reasonable, and the quashing of one decision to remove Mr. Mahjoub, a second decision remains outstanding. In my view, it is not necessary to apportion any responsibility for those delays because of the future-orientated nature of the reasonable time test.
 I have been satisfied that Mr. Mahjoub will not be removed from Canada within a reasonable time. I exercise my discretion not to discount the delay on account of the fact that past and future proceedings taken by Mr. Mahjoub have increased the delay. Considerations such as the length and conditions of his detention, as well as the fact that the current state of the law adds to the delay, have led to this decision.
 It follows that Mr. Mahjoub has satisfied me that he will not be removed from Canada within a reasonable period of time.
Has Mr. Mahjoub met the onus upon him to satisfy the court that his release will not pose a danger to national security or to the safety of any person?
(i) Applicable Legal Principles
 In Suresh v. Canada (Minister of Citizenship in Immigration),  1 S.C.R. 3 the Supreme Court of Canada considered what constitutes a “danger to the security of Canada”. The Court concluded, at paragraph 85, that the phrase must be given a “fair, large and liberal interpretation in accordance with international norms”. What constitutes such a danger is “highly fact-based and political in a general sense”.
 The burden of proof rests on Mr. Mahjoub and it is to be met on a balance of probabilities. In Almrei, … , the Federal Court of Appeal clarified, at paragraph 42, that this is an evidentiary burden. Thus, Mr. Mahjoub must adduce some evidence that his release will not pose a danger to national security or to the safety of any person. That evidence must be answered, otherwise Mr. Mahjoub is entitled to release if he also satisfies the Court that he will not be removed within a reasonable time.
 To this must be added one comment about the effect of Mr. Justice Nadon’s prior determination that the security certificate is reasonable. In Suresh, supra, the Court cautioned that “danger to the security of Canada” means something more than a person is named in a security certificate as being inadmissible on grounds of security. The Court of Appeal developed this in Almrei, at paragraph 48, where it stated that a determination of the reasonableness of a security certificate is not determinative of the merit of the detention of the person named in the certificate, and is not a decision that is conclusive of the issue of whether the person is a danger to the security of Canada.
 In weighing these considerations, I am mindful that issues of significant concern to Canadian society are posed whether Mr. Mahjoub continues in detention or is released. This is so because detention of uncertain duration is anathema to the principles which govern our judicial system. Equally, the Act requires the designated judge to be satisfied that national security or the safety of persons will not be put in danger if Mr. Mahjoub is released. After deep reflection I must find that, on the basis of the concerns set out above, Mr. Mahjoub has not persuaded me on a balance of probabilities that his release would not pose a danger to national security or to the safety of any person.
 While I find the prospect of Mr. Mahjoub’s continued detention to be deeply troubling (particularly in the conditions in which he is now held), to release Mr. Mahjoub would require me to substitute a harboured hope that his release would not pose a danger for the standard legislated in the Act. That is not what Parliament intended, nor would it be a responsible decision because, in the context of national security, failure can carry tragic consequences.
(vii) Can Such Danger be Neutralized or Contained by the use of Sureties and the Imposition of Conditions?
 I have found that Mr. Mahjoub has failed to establish that his release would not pose a danger. However, the inquiry does not end there.
 Mr. Mahjoub submits that release on terms and conditions would be appropriate and that those terms and conditions would be sufficient to insure that Mr. Mahjoub’s release would not pose a danger. With the release of Mr. Charkaoui, Mr. Mahjoub points to a judicial trend to release in Canada upon conditions and points to various conditions including house arrest, electronic tagging, curfews, a ban on internet and cell phone use, a requirement to obtain permission to meet anyone outside the home, living at a fixed address, restrictions on visitors, restrictions on bank accounts and monthly written reporting requirements as being appropriate conditions. Mr. Mahjoub also submits that his proposed sureties have sufficient influence over him so as to make it unlikely that any imposed conditions would be breached …
 In July of 2003, I determined that I was not satisfied that the presence of the sureties and the posting of a cash bond would address the danger I believed would be posed by Mr. Mahjoub’s release …
 In the present case, the question becomes whether the presence of the sureties and the imposition of conditions would be sufficient not to impede but to neutralize the danger I have found would be posed by Mr. Mahjoub’s release …
 On the whole, after hearing all of the evidence and observing Mr. Mahjoub give evidence, I am not confident that conditions and the proposed sureties would be sufficient to neutralize the danger that I believe Mr. Mahjoub’s release would pose. This, however, is not to say that this conclusion is determinative of any future application for release from detention. It remains open to Mr. Mahjoub to apply again for release and to provide better sureties and evidence including his own testimony that could be capable of convincing the Court that the danger he poses could be neutralized.
 This court orders that:
For these reasons, the application is dismissed.
[emphasis in original]
On 15 February 2007, in relation to a further motion seeking Mr Mahjoub’s release from detention, the Federal Court stated:
The issues to be determined
 As indicated above, an application for release under ss.84(2) may only be brought by a foreign national who has not been removed from Canada within 120 days after the security certificate was found to be reasonable. In this case, it is obvious that the threshold has been met.
 Counsel for the respondents advised in oral argument that the Ministers did not object to the application being brought. As noted by the Federal Court of Appeal in Almrei, … at para. 52, “…an application under subsection 84(2), like other applications, can be renewed if new facts are discovered or the situation has evolved to a point where detention is no longer necessary or justified” [emphasis mine]. In Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FC 628, 278 F.T.R. 118 at paras. 24, 27 [Harkat, Justice Dawson found that it was appropriate to hear Mr. Harkat’s second ss.84(2) application because of a change in circumstances; an unexplained delay in the appointment of the Minister’s delegate. This was found to constitute “…a distinct departure from the circumstances which the Court could reasonably have anticipated when denying the first application for release.” Justice Dawson’s decision respecting the release of Mr. Harkat on conditions was upheld by the Federal Court of Appeal: Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FCA 259, 270 (D.L.R.) (4th) 35.
 In the present case counsel agreed, and I concur that it is appropriate in the circumstances to reassess Mr. Mahjoub’s case pursuant to subsection 84(2) of the Act. The second decision rendered by the Minister’s delegate pursuant to subsection 115(2)(b) of the Act was under judicial review as of the date of the hearing and has now been quashed and remitted for reconsideration. Mr. Mahjoub has been relocated to a new facility where the conditions of his detention are different from what they were when his previous applications for release were considered. A significant amount of time has also passed since Mr. Mahjoub’s last ss. 84(2) application. Taking into account the totality of the circumstances, the threshold test has been met in the present case.
 The issues remaining to be decided by the Court are whether I am satisfied that:
1. Mr. Mahjoub will not be removed within a reasonable period of time; and
2. His release will not pose a danger to national security or to the safety of any person.
 While not conceding the point, applicant’s counsel indicated that for the purpose of the present proceedings, it would be accepted that the burden to prove these matters to the Court’s satisfaction on a balance of probabilities rested on Mr. Mahjoub.
Summary of conclusions
 In these reasons, I:
1. find that Mr. Mahjoub has met the onus upon him to establish that he will not be removed from Canada within a reasonable time;
2. find that Mr. Mahjoub has met the onus upon him to establish that his release will not pose a danger to national security or to the safety of any person; and
3. outline a series of terms and conditions that I consider appropriate to neutralize or contain any threat or danger posed by his release.
Has Mr. Mahjoub met the onus upon him to establish that he will not be removed from Canada within a reasonable time?
(i) Applicable Principles of Law
 In Harkat, … my colleague Justice Dawson very aptly summarized the legal principles applicable to proceedings under subsection 84(2) of the Act, as set out by the Court of Appeal in Almrei. I repeat this summary here:
1. Time and the behavior of the parties are of the essence of the subsection 84(2) application (referring to paragraph 5 of Almrei).
2. The purpose of subsection 84(2) is to ensure that due diligence will be exercised by the Minister in removing a foreign national detained for security purposes (Almrei paragraph 28).
3. The onus of proof is upon the person seeking release, and the burden must be discharged upon a balance of probabilities (Almrei paragraph 39).
4. A subsection 84(2) application requires the judge to determine whether the foreign national will be removed from Canada “within a reasonable time.” The concept of “removal within a reasonable time” requires a measurement of the time elapsed from the time the security certificate was found to be reasonable, and an assessment of whether that time is such that it leads to the conclusion that removal will not occur within a reasonable time (Almrei paragraph 55).
5. The judge must consider any delay in removal and the causes of the delay. Judicial remedies must be pursued diligently and in a timely fashion. This also applies to the Ministers’ responses and to the judicial hearing of the application for release. Subsection 84(2) of the Act “authorizes a judge to discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time.” Put another way, where an applicant tries to prevent his removal and delay ensues as a result, he can not complain that his removal has not occurred within a reasonable time, unless the delay is unreasonable or inordinate and not attributable to him (Almrei paragraphs 57 and 58).
6. A forward-looking and future-oriented test is used. Evidence must be provided that indicates the applicant will not be removed within a reasonable time. If credible and compelling evidence of an imminent removal is produced, the conditions of detention and the time already served lose much of their significance (Almrei paragraph 81).
7. The length of the past detention is relevant only to the extent that the history of events may cast doubt on the reliability of the assertion and evidence submitted that the moment of removal is close at hand (Almrei paragraph 82).
 As further noted by my colleague, these principles are to be understood in the context of a procedure that was intended to provide a constitutionally valid mechanism for the summary removal from Canada of non-citizens viewed to present a danger to Canada’s security. However, in cases such as Mr. Mahjoub’s, it is difficult to maintain the stance that a process which has been underway for so long is summary in nature. It is therefore imperative to recall the requirement of due diligence placed on the Ministers in removing a foreign national who has been detained for security reasons (Almrei, above at para. 28), and the fact that unreasonable delay that unjustifiably and unduly prolongs detention is a violation of constitutionally guaranteed rights (Harkat, above at para. 33).
 My analysis of whether Mr. Mahjoub has met his onus in the present case, on a balance of probabilities, to demonstrate to the Court that his removal will not occur within a reasonable period of time, will therefore take into account the following factors: the length of his detention; delay and causes of delay, the forward looking nature of the test, and the conditions of his detention. The latter will be considered in the context of assessing whether and to what extent the Court should be discounting the pursuit of legal remedies in determining what is meant by “reasonable time” in the present case.
 Having considered and weighed the above noted factors, I conclude that Mr. Mahjoub has satisfied me, on a balance of probabilities, that he will not be removed from Canada within a reasonable time.
Has Mr. Mahjoub met the onus upon him to establish that his release will not pose a danger to national security or to the safety of any person?
(i) Applicable Principles of Law
 The onus is upon Mr. Mahjoub to satisfy the Court, on a balance of probabilities, that his release will not pose a danger to national security or the safety of any person. This onus may be difficult to meet given that an objectively reasonable suspicion of substantial threatened harm may establish the danger: Mahjoub No. 1, … at para. 65; Mahjoub No. 2, … at para. 46; Harkat, … at para. 57. The test is forward looking. As stated in Charkaoui (Re), 2005 FC 248,  3 F.C.R. 389 at paragraph 39 Charkaoui (Re) Parliament has asked the designated judge to analyze the evidence by considering whether the danger still exists.
 It is for Mr. Mahjoub to demonstrate on a balance of probabilities that his release will not pose a danger to national security or to the safety of any person. Even taking into account the changes in circumstances outlined above, it cannot be said on a balance of probabilities that Mr. Mahjoub has demonstrated that he no longer poses a danger to national security or the safety of any person. In reaching this conclusion, I am mindful of the fact that Mr. Mahjoub’s continued detention is of significant concern to Canadian Society. It is with this in mind that I turn to the question of whether the danger that is posed can be neutralized or contained by the use of sureties and the imposition of conditions.
… Can such Danger be Neutralized or Contained by the Use of Sureties and the Imposition of Conditions?
 In addressing the question of whether the danger posed by Mr. Mahjoub’s release can be neutralized or contained by the use of sureties and the imposition of conditions, I will consider the applicable legal principles and the evidence presented.
(a) Applicable legal principles
 The question of whether any conditions are sufficient to neutralize or contain the danger in the present case must be addressed with attention to: the nature of the acts that it is believed Mr. Mahjoub would engage in; the nature of the threat that would result from those acts; and an analysis of why it is believed that conditions would or would not neutralize or contain that threat: Harkat, … at para. 69.
 In addition, when considering what if any conditions might be appropriate, the Court must bear in mind the need for terms and conditions to be specific and tailored to Mr. Mahjoub’s precise circumstances, keeping in mind that to be appropriate they “must be designed to prevent [the applicant’s] involvement in any activity that commits, encourages, facilitates, assists or instigates an act of terrorism, or any similar activity”, and that they “must be proportionate to the risk posed by [the applicant]”: Harkat, … at para. 83.
 Furthermore, as noted by Justice Dawson in Harkat, should the Court determine that the conditions proposed by Mr. Mahjoub are insufficient to neutralize or contain the danger posed by his release, it would be “erroneous to reject Mr. Harkat’s application for release if there are conditions that, on a balance of probabilities, would neutralize or contain the danger posed by his release. In that circumstance, his continued incarceration cannot be justified because of Canada’s respect for human and civil rights, and the values protected by our Charter” (Harkat, … at para. 82). Therefore, should I find that the conditions proposed by Mr. Mahjoub would be insufficient to neutralize the danger, I will consider if any other combination of conditions might be sufficient to do so.
… Conclusion on Terms and Conditions
 Having considered whether there is any combination of terms and conditions that would neutralize or contain the danger posed by Mr. Mahjoub’s release; I have borne in mind the need for them to be specific and tailored to Mr. Mahjoub’s precise circumstances. I have also taken into account the limits of existing monitoring technology. Considering the above noted factors and evidence, I am satisfied that the series of terms and conditions set out in Appendix B to these reasons can be imposed and that they will, on a balance of probabilities, neutralize or contain any threat or danger posed by Mr. Mahjoub’s release.
 For all of these reasons, this application is allowed and Mr. Mahjoub shall be released from detention upon the terms and conditions set out in the attached Appendix B, once the Court is satisfied that the requirements set out therein have been met.
[emphasis in original]
In December 2007, the Federal Court dealt with a motion to vary Mr Mahjoub’s release conditions. Taking into account the Supreme Court of Canada’s decision in Charkaoui v. Canada (Citizenship and Immigration) of 23 February 2007, the Federal Court noted:
 On February 23, 2007 the Supreme Court of Canada released its decision in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9,  S.C.J. No. 9. The Court determined that the procedure for determining whether a certificate was reasonable and the detention review procedures under the Act infringed section 7 and were not justified under section 1 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The Supreme Court suspended its declaration of invalidity of the certificate procedure for one year to allow Parliament to enact remedial legislation.
 The Supreme Court found that the detention review provisions were defective as they denied foreign nationals a prompt review of their detention after confirmation of the reasonableness of the security certificate. The remedy imposed, with immediate application, was to strike subsection 84(2) of the Act, to read the words “foreign nationals” into section 83 and to strike the words “until a determination is made under subsection 80(1)” from subsection 83(2). The effect was that persons arrested subject to a security certificate were to be entitled to a review of detention without the 120 day delay required by former subsection 84(2), and to further reviews on a six month basis thereafter.
 At paragraph 116 of Charkaoui
, the Supreme Court noted that stringent release conditions, while less severe than incarceration, seriously limit individual liberty. Accordingly, the Court stated, release conditions must not be a disproportionate response to the nature of the threat.
[emphasis in original]
In conclusion, the Federal Court made amendments to the terms and conditions for Mr Mahjoub’s release from custody.
In 2005, in May v. Ferndale Institution, the Supreme Court of Canada noted:
(1) The Nature of Habeas Corpus
19 The writ of habeas corpus is also known as the “Great Writ of Liberty”. As early as 1215, the Magna Carta entrenched the principle that “[n]o free man shall be seized or imprisoned … except by the lawful judgement of his equals or by the law of the land.” In the 14th century, the writ of habeas corpus was used to compel the production of a prisoner and the cause of his or her detention: W. F. Duker, A Constitutional History of Habeas Corpus (1980), at p. 25.
20 From the 17th to the 20th century, the writ was codified in various habeas corpus acts in order to bring clarity and uniformity to its principles and application. The first codification is found in the Habeas Corpus Act, 1679 (Engl.), 31 Cha. 2, c. 2. Essentially, the Act ensured that prisoners entitled to relief “would not be thwarted by procedural inadequacy”: R. J. Sharpe, The Law of Habeas Corpus (2nd ed. 1989), at p. 19.
21 According to Black J. of the United States Supreme Court, habeas corpus is “not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose – the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty”: Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243. In his book, Sharpe, at p. 23, describes the traditional form of review available on habeas corpus as follows:
The writ is directed to the gaoler or person having custody or control of the applicant. It requires that person to return to the court, on the day specified, the body of the applicant and the cause of his detention. The process focuses upon the cause returned. If the return discloses a lawful cause, the prisoner is remanded; if the cause returned is insufficient or unlawful, the prisoner is released. The matter directly at issue is simply the excuse or reason given by the party who is exercising restraint over the applicant. [Emphasis added.]
22 Habeas corpus is a crucial remedy in the pursuit of two fundamental rights protected by the Canadian Charter of Rights and Freedoms: (1) the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7 of the Charter); and (2) the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter). Accordingly, the Charter guarantees the right to habeas corpus:
10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
23 However, the right to seek relief in the nature of habeas corpus has not always been given to prisoners challenging internal disciplinary decisions. At common law, for a long time, a person convicted of a felony and sentenced to prison was regarded as being devoid of rights. Convicts lost all civil and proprietary rights. The law regarded them as dead. On that basis, courts had traditionally refused to review the internal decision-making process of prison officials: M. Jackson, Justice Behind the Walls: Human Rights in Canadian Prisons (2002), at pp. 47–50. By the end of the 19th century, although the concept of civil death had largely disappeared, the prisoner continued to be viewed in law as a person without rights: M. Jackson, Prisoners of Isolation: Solitary Confinement in Canada (1983), at p. 82.
24 It was this view that provided the original rationale for Canadian courts’ refusal to review the internal decisions of prison officials. The “effect of this hands-off approach was to immunize the prison from public scrutiny through the judicial process and to place prison officials in a position of virtual invulnerability and absolute power over the persons committed to their institutions”: Jackson, Prisoners of Isolation, at p. 82.
25 Shortly after certain serious incidents in federal penitentiaries occurred in the 1970s and reviews of their management took place, this Court abandoned the “hands-off” doctrine and extended judicial review to the decision-making process of prison officials by which prisoners were deprived of their residual liberty. In Martineau v. Matsqui Institution Disciplinary Board,  1 S.C.R. 602, Dickson J. (as he then was) laid the cornerstone for the modern theory and practice of judicial review of correctional decisions:
In the case at bar, the disciplinary board was not under either an express or implied duty to follow a judicial type of procedure, but the board was obliged to find facts affecting a subject and to exercise a form of discretion in pronouncing judgment and penalty. Moreover, the board’s decision had the effect of depriving an individual of his liberty by committing him to a “prison within a prison
”. In these circumstances, elementary justice requires some procedural protection. The rule of law must run within penitentiary walls
. [Emphasis added; p. 622.]
[emphasis in original]
In the Charkaoui case before the Supreme Court of Canada in 2007, in which the three appellants challenged the constitutionality of the provisions of the Canadian Immigration and Refugee Protection Act (IRPA) under which they had been detained for suspected links to terrorist activities, the Supreme Court held:
28. The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process … This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John.
90… Whether through habeas corpus
or statutory mechanisms, foreign nationals, like others, have a right to prompt review to ensure that their detention complies with the law. This principle is affirmed in s. 10(c
) of the Charter
[Canadian Charter of Rights and Freedoms]. It is also recognized internationally.
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review on the basis of the Canadian Charter of Rights and Freedoms with respect to persons detained by the Canadian Forces (CF) in Afghanistan and their transfer to Afghan authorities. The questions before the Federal Court were as follows:
 To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:
1. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
2. If the answer to the above question is “NO” then would the Charter nonetheless apply if the Applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
 For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.
b) The Canadian Forces’ Detention of Individuals in Afghanistan
 As part of Canada’s military operations in Afghanistan, Canadian Forces are from time to time required to capture and detain insurgents, or those assisting the insurgents, who may pose a threat to the safety of Afghan nationals, as well as to members of the Canadian military and allied forces.
 Under Theatre Standing Order 321A, the decision as to whether individual detainees should be retained in Canadian custody, released, or transferred to the custody of a third country, is within the sole discretion of the Commander of Joint Task Force Afghanistan, a position currently occupied by General Laroche.
 It is both NATO and Canadian Forces’ policy to transfer or release detainees within 96 hours of their capture. However, the Canadian Forces has the ability to hold detainees for longer periods, and has done so for a variety of reasons.
 While in Canadian custody, detainees are interrogated, searched, photographed and fingerprinted. Detainees are not provided with access to legal counsel during their detention by the Canadian Forces, nor are they afforded any opportunity to make representations prior to being handed over to the Afghan authorities.
 The Canadian Forces have the sole discretion to determine whether a detainee “shall be retained in custody, transferred to [the Afghan National Security Forces] or released.” These determinations are made on a case-by-case basis by the Canadian Commander of Task Force Afghanistan at regular review meetings.
[emphasis in original]
The Federal Court of Appeal subsequently upheld the findings of the Federal Court. It stated:
I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law.
In 2008, in the Khadr case, the Supreme Court of Canada was called upon to decide whether records of interviews by Canadian officials of a Canadian national detained at Guantanamo Bay, Cuba, and of information given by Canadian authorities to US authorities as a direct consequence of the interviews must be disclosed to the detainee under the Canadian Charter of Rights and Freedoms. The Court stated:
1. Factual Background
 Omar Khadr is a Canadian citizen who has been detained by U.S. forces at Guantánamo Bay, Cuba, for almost six years. Mr. Khadr was taken prisoner on July 27, 2002 in Afghanistan, as part of military action taken against Taliban and Al Qaeda forces after the September 11, 2001 attacks in New York City and Washington. He was 15 years old at the time. The United States alleges that near the end of the battle at which he was taken prisoner, Mr. Khadr threw a grenade which killed an American soldier. The United States also alleges that Mr. Khadr conspired with members of Al Qaeda to commit acts of murder and terrorism against U.S. and coalition forces. Mr. Khadr is currently facing charges relating to these allegations, which are being tried by a U.S. Military Commission at Guantánamo Bay.
 The Guantánamo Bay detention camp was established by Presidential Military Order in 2001 (66 FR 57833) for the detention and prosecution of non-U.S. citizens believed to be members of Al Qaeda or otherwise involved in international terrorism. The Order conferred exclusive jurisdiction upon military commissions for the trial of “any and all offences triable by military commission”, and stipulated pursuant to 10 U.S.C. § 836 that applying normal rules of criminal procedure to such trials “is not practicable”. The Order further provided that an individual subject to the order “shall not be privileged to seek any remedy or maintain any proceeding … or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal”. Subsequent orders purported to remove protections of the Geneva Conventions of 1949 (75 U.N.T.S. 31, 85, 135 and 287) and established procedural rules for the military commissions that departed from normal rules of criminal procedure as to the type of evidence that may be admitted, the right to counsel and disclosure of the case to meet, and judicial independence.
 On several occasions, including in February and September of 2003, Canadian officials, including agents of the Canadian Security Intelligence Service (CSIS), attended at Guantánamo Bay and interviewed Mr. Khadr for intelligence and law enforcement purposes. The CSIS agents questioned Mr. Khadr with respect to matters connected to the charges he is now facing, and shared the product of these interviews with U.S. authorities.
 After formal charges were laid against Mr. Khadr in November 2005, he sought disclosure of all documents relevant to these charges in the possession of the Canadian Crown, including the records of the interviews, invoking R. v. Stinchcombe,  3 S.C.R. 326. The appellants formally refused Mr. Khadr’s request in January 2006. Mr. Khadr then applied for an order of mandamus in the Federal Court, which was dismissed, per von Finckenstein J. ((2006), 290 F.T.R. 313, 2006 FC 509). The Federal Court of Appeal allowed Mr. Khadr’s appeal ( 1 F.C.R. 270, 2007 FCA 182), and ordered that unredacted copies of all relevant documents in the possession of the Crown be produced before the Federal Court for review under ss. 38 ff. of the Canada Evidence Act. The Minister of Justice now appeals to this Court, asking that the order of the Federal Court of Appeal be set aside.
3. The Application for Disclosure
(i) Does the Charter Apply?
 If the Guantánamo Bay process under which Mr. Khadr was being held was in conformity with Canada’s international obligations, the Charter has no application and Mr. Khadr’s application for disclosure cannot succeed: Hape R. v. Hape,  2 S.C.R. 292, 2007 SCC 26]. However, if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that participation.
 At this point, the question becomes whether the process at Guantánamo Bay at the time that CSIS handed the products of its interviews over to U.S. officials was a process that violated Canada’s binding obligations under international law.
 Issues may arise about whether it is appropriate for a Canadian court to pronounce on the legality of the process at Guantánamo Bay under which Mr. Khadr was held at the time that Canadian officials participated in that process. We need not resolve those issues in this case. The United States Supreme Court has considered the legality of the conditions under which the Guantánamo detainees were detained and liable to prosecution during the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities, between 2002 and 2004. With the benefit of a full factual record, the United States Supreme Court held that the detainees had illegally been denied access to habeas corpus and that the procedures under which they were to be prosecuted violated the Geneva Conventions. Those holdings are based on principles consistent with the Charter and Canada’s international law obligations. In the present appeal, this is sufficient to establish violations of these international law obligations, to which Canada subscribes.
 In Rasul v. Bush, 542 U.S. 466 (2004), the United States Supreme Court held that detainees at Guantánamo Bay who, like Mr. Khadr, were not U.S. citizens, could challenge the legality of their detention by way of the statutory right of habeas corpus provided for in 28 U.S.C. § 2241. This holding necessarily implies that the order under which the detainees had previously been denied the right to challenge their detention was illegal. In his concurring reasons, Kennedy J. noted that “the detainees at Guantánamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status” (pp. 487–88). Mr. Khadr was detained at Guantánamo Bay during the time covered by the Rasul decision, and Canadian officials interviewed him and passed on information to U.S. authorities during that time.
 At the time he was interviewed by CSIS officials, Mr. Khadr also faced the possibility of trial by military commission pursuant to Military Commission Order No. 1. In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the United States Supreme Court considered the legality of this Order. The court held that by significantly departing from established military justice procedure without a showing of military exigency, the procedural rules for military commissions violated both the Uniform Code of Military Justice (10 U.S.C. § 836) and Common Article 3 of the Geneva Conventions. Different members of the majority of the United States Supreme Court focused on different deviations from the Geneva Conventions and the Uniform Code of Military Justice. But the majority was unanimous in holding that, in the circumstances, the deviations were sufficiently significant to deprive the military commissions of the status of “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”, as required by Common Article 3 of the Geneva Conventions.
 The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.
 Canada is a signatory of the four Geneva Conventions of 1949, which it ratified in 1965 (Can. T.S. 1965 No. 20) and has incorporated into Canadian law with the Geneva Conventions Act, R.S.C. 1985, c. G-3. The right to challenge the legality of detention by habeas corpus is a fundamental right protected both by the Charter and by international treaties. It follows that participation in the Guantánamo Bay process which violates these international instruments would be contrary to Canada’s binding international obligations.
 We conclude that the principles of international law and comity that might otherwise preclude application of the Charter
to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantánamo Bay. Given the holdings of the United States Supreme Court, the Hape
comity concerns that would ordinarily justify deference to foreign law have no application here. The effect of the United States Supreme Court’s holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law at the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities. Hence no question of deference to foreign law arises. The Charter
bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada’s international obligations.
In 2010, in the Khadr case, the Supreme Court of Canada was called upon to decide whether the Canadian government must request the United States of America to return a Canadian national detained at Guantanamo Bay, Cuba, to Canada. The Supreme Court stated:
 Omar Khadr, a Canadian citizen, has been detained by the United States government at Guantanamo Bay, Cuba, for over seven years. The Prime Minister asks this Court to reverse the decision of the Federal Court of Appeal requiring the Canadian government to request the United States to return Mr. Khadr from Guantanamo Bay to Canada.
 For the reasons that follow, we agree with the courts below that Mr. Khadr’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated. However, we conclude that the order made by the lower courts that the government request Mr. Khadr’s return to Canada is not an appropriate remedy for that breach under s. 24(1) of the Charter. Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond. We would therefore allow the appeal in part.
 Mr. Khadr was 15 years old when he was taken prisoner on July 27, 2002, by U.S. forces Afghanistan. He was alleged to have thrown a grenade that killed an American soldier in the battle in which he was captured. About three months later, he was transferred to the U.S. military installation at Guantanamo Bay. He was placed in adult detention facilities.
 On September 7, 2004, Mr. Khadr was brought before a Combatant Status Review Tribunal which affirmed a previous determination that he was an “enemy combatant”. He was subsequently charged with war crimes and held for trial before a military commission. In light of a number of procedural delays and setbacks, that trial is still pending.
 In February and September 2003, agents from the Canadian Security Intelligence Service (“CSIS”) and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (“DFAIT”) questioned Mr. Khadr on matters connected to the charges pending against him and shared the product of these interviews with U.S. authorities. In March 2004, a DFAIT official interviewed Mr. Khadr again, with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, in an effort to make him less resistant to interrogation. During this interview, Mr. Khadr refused to answer questions. In 2005, von Finckenstein J. of the Federal Court issued an interim injunction preventing CSIS and DFAIT agents from further interviewing Mr. Khadr in order “to prevent a potential grave injustice” from occurring: Khadr v. Canada, 2005 FC 1076,  2 F.C.R. 505, at para. 46. …
 Mr. Khadr has repeatedly requested that the Government of Canada ask the United States to return him to Canada …
 The Prime Minister announced his decision not to request Mr. Khadr’s repatriation on July 10, 2008 …
 On August 8, 2008, Mr. Khadr applied to the Federal Court for judicial review of the government’s “ongoing decision and policy” not to seek his repatriation … He alleged that the decision and policy infringed his rights under s. 7 of the Charter, which states:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
 After reviewing the history of Mr. Khadr’s detention and applicable principles of Canadian and international law, O’Reilly J. concluded that in these special circumstances, Canada has a “duty to protect” Mr. Khadr (2009 FC 405, 341 F.T.R. 300). He found that “[t]he 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” (para. 92). Also, he held that “[t]o 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” (para. 92).
 The majority judgment of the Federal Court of Appeal (per Evans and Sharlow JJ.A.) upheld O’Reilly J.’s order, but defined the s. 7 breach more narrowly. The majority of the Court of Appeal found that it arose from the March 2004 interrogation conducted with the knowledge that Mr. Khadr had been subject to the “frequent flyer program”, characterized by the majority as involving cruel and abusive treatment contrary to the principles of fundamental justice: 2009 FCA 246, 310 D.L.R. (4th) 462. Dissenting, Nadon J.A. reviewed the many steps the government had taken on Mr. Khadr’s behalf and held that since the Constitution conferred jurisdiction over foreign affairs on the executive branch of government, the remedy sought was beyond the power of the courts to grant.
A. Was There a Breach of Section 7 of the Charter?
1. Does the Canadian Charter Apply to the Conduct of the Canadian State Officials Alleged to Have Infringed Mr. Khadr’s Section 7 Charter Rights?
 This question was addressed in Khadr 2008, in which this Court held that the Charter applied to the actions of Canadian officials operating at Guantanamo Bay who handed the fruits of their interviews over to U.S. authorities. This Court held, at para. 26, that “the principles of international law and comity that might otherwise preclude application of the Charter to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantanamo Bay”, given holdings of the Supreme Court of the United States that the military commission regime then in place constituted a clear violation of fundamental human rights protected by international law: see Khadr 2008, at para. 24; Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The principles of fundamental justice thus required the Canadian officials who had interrogated Mr. Khadr to disclose to him the contents of the statements he had given them. The Canadian government complied with this Court’s order.
 We note that the regime under which Mr. Khadr is currently detained has changed significantly in recent years. The U.S. Congress has legislated and the U.S. courts have acted with the aim of bringing the military processes at Guantanamo Bay in line with international law. (The Detainee Treatment Act of 2005, Pub. L. 109-148, 119 Stat. 2739, prohibited inhumane treatment of detainees and required interrogations to be performed according to the Army field manual. The Military Commissions Act of 2006, Pub. L. 109-366, 120 Stat. 2600, attempted to legalize the Guantanamo regime after the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld. However, on June 12, 2008, in Boumediene v. Bush, 128 S. Ct. 2229 (2008), the U.S. Supreme Court held that Guantanamo Bay detainees have a constitutional right to habeas corpus, and struck down the provisions of the Military Commissions Act of 2006 that suspended that right.)
 Though the process to which Mr. Khadr is subject has changed, his claim is based upon the same underlying series of events at Guantanamo Bay (the interviews and evidence-sharing of 2003 and 2004) that we considered in Khadr 2008. We are satisfied that the rationale in Khadr 2008 for applying the Charter to the actions of Canadian officials at Guantanamo Bay governs this case as well.
2. Does the Conduct of the Canadian Government Deprive Mr. Khadr of the Right to Life, Liberty or Security of the Person?
 The United States is holding Mr. Khadr for the purpose of trying him on charges of war crimes. The United States is thus the primary source of the deprivation of Mr. Khadr’s liberty and security of the person. However, the allegation on which his claim rests is that Canada has also contributed to his past and continuing deprivation of liberty. To satisfy the requirements of s. 7, as stated by this Court in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1,  1 S.C.R. 3, there must be “a sufficient causal connection between [the Canadian] government’s participation and the deprivation [of liberty and security of the person] ultimately effected” (para. 54).
 An applicant for a Charter remedy must prove a Charter violation on a balance of probabilities (R. v. Collins,  1 S.C.R. 265, at p. 277). It is reasonable to infer from the uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting his liberty and security interests. In the absence of any evidence to the contrary (or disclaimer rebutting this inference), we conclude on the record before us that Canada’s active participation in what was at the time an illegal regime has contributed and continues to contribute to Mr. Khadr’s current detention, which is the subject of his current claim. The causal connection demanded by Suresh between Canadian conduct and the deprivation of liberty and security of person is established.
3. Does the Deprivation Accord With the Principles of Fundamental Justice?
 We have concluded that the conduct of the Canadian government is sufficiently connected to the denial of Mr. Khadr’s liberty and security of the person. This alone, however, does not establish a breach of Mr. Khadr’s s. 7 rights under the Charter. To establish a breach, Mr. Khadr must show that this deprivation is not in accordance with the principles of fundamental justice.
 The principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act,  2 S.C.R. 486, at p. 503. They are informed by Canadian experience and jurisprudence, and take into account Canada’s obligations and values, as expressed in the various sources of international human rights law by which Canada is bound. …
 We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23–25; Hamdan v. Rumsfeld). In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews … Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording … The purpose of the interviews was for intelligence gathering and not criminal investigation. While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance. Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations. Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).
 This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
 We conclude that Mr. Khadr has established that Canada violated his rights under s. 7 of the Charter.
B. Is the Remedy Sought Appropriate and Just in All the Circumstances?
 In previous proceedings (Khadr 2008), Mr. Khadr obtained the remedy of disclosure of the material gathered by Canadian officials against him through the interviews at Guantanamo Bay. The issue on this appeal is whether the breach of s. 7 of the Charter entitles Mr. Khadr to the remedy of an order that Canada request of the United States that he be returned to Canada. Two questions arise at this stage: (1) Is the remedy sought sufficiently connected to the breach? and (2) Is the remedy sought precluded by the fact that it touches on the Crown prerogative power over foreign affairs?
 The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, 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
 The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003–2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter
, contrary to the principles of fundamental justice.
In 2004, in its fifth periodic report to the Human Rights Committee, Canada stated:
A number of amendments to the National Defence Act
in 1999 dealt with deprivation of liberty and arbitrary detention. One of the changes was that under the old legislative regime, release from pre-trial custody was done by way of petition to the Minister. Often this was a lengthy process and resulted in longer periods of pre-trial detention. However, under the changes to the Act a military judge now reviews pre-trial custody, in a much speedier fashion, with appeals being heard by the Court Martial Appeal Court.