Canada (Justice) v. Khadr DISMISSED
The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law and which might otherwise preclude application of the Charter to Canadian officials acting abroad, do not extend to participation in processes that violate Canada’s binding human right obligations. The process in place at Guantanamo Bay at the time Canadian officials interviewed K and passed on the fruits of the interviews to US officials has been found by the US Supreme Court, with the benefit of a full factual record, to violate US domestic law and international human rights obligation to which Canada subscribes. The comity concerns that would normally justify deference to foreign law do not apply in this case. Consequently, the Charter applies.
With K’s present and future liberty at stake, Canada is bound by the principles of fundamental justice and is under a duty of disclosure pursuant to s. 7 of the Charter. The content of this duty is defined by the nature of Canada’s participation in the process that violated its international human rights obligations.
In the present circumstances, this duty requires Canada to disclose to K records of the interviews conducted by Canadian officials with him, and information given to US authorities as a direct consequence of conducting the interviews, subject to claims for privilege and public interest immunity. Since unredacted copies of all documents, records and materials in the appellants’ possession which might be relevant to the charges against K have already been produced to a designated judge of the Federal Court, the judge will now review the material, receive submissions from the parties and decide which documents fall within the scope of the disclosure obligation.
HIGHLIGHTS FROM THE RULING
“If the Guantanamo 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. 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. ”
“With Mr. Khadr’s present and future liberty at stake, s. 7 of the Charter required that CSIS conduct itself in conformity with the principles of fundamental justice. The principles of fundamental justice are informed by Canada’s international human rights obligations. […] In the domestic context, the principles of fundamental justice impose a duty on the prosecuting Crown to provide disclosure of relevant information in its possession to the accused whose liberty is in jeopardy: Stinchcombe. In a domestic prosecution, the Crown has put the accused’s liberty at risk, which engages s. 7 of the Charter, and the attendant duty of disclosure. To the extent that Canadian officials operating abroad are bound by s. 7 of the Charter, as we have earlier concluded was the case in this appeal, they are bound by the principles of fundamental justice in an analogous way. Where, as in this case, an individual’s s. 7 right to liberty is engaged by Canada’s participation in a foreign process that is contrary to Canada’s human rights obligations, s. 7 of the Charter imposes a duty on Canada to provide disclosure to the individual. Thus, s. 7 imposes a duty on Canada to provide disclosure of materials in its possession arising from its participation in the foreign process that is contrary to international law and jeopardizes the liberty of a Canadian citizen. ”
“It is not necessary to define for all fact situations the scope of the duty of disclosure, when the Charter is engaged by the actions of Canadian officials abroad, but it may differ from the scope of the duty of disclosure in a domestic criminal prosecution. In this case, although Canada participated in the US process by giving the product of its interviews with Mr. Khadr to US authorities, it did not by virtue of that action step into the shoes of the US prosecutors. The scope of disclosure obligation in this context is defined by the nature of Canada’s participation in the foreign process. The crux of that participation was providing information to US authorities in relation to a process which is contrary to Canada’s international human rights obligations. Thus, the scope of the disclosure obligation must be related to the information provided to US authorities.”
“The ultimate process against Mr. Khadr may be beyond Canada’s jurisdiction and control. However, to the extent that Canada has participated in that process, it has a constitutional duty to disclose information obtained by that participation to a Canadian citizen whose liberty is at stake. The Minister of Justice has argued that Mr. Khadr’s right to disclosure is confined to disclosure from the US authorities who are prosecuting him. We disagree. The remedy of disclosure being granted to Mr. Khadr is for breach of a constitutional duty that arose when Canadian agents became participants in a process that violates Canada’s international obligations. Whether or not he is given similar disclosure by US officials, he is entitled to a remedy for the Canadian government’s failure to provide disclosure to him after having given US authorities access to the product of the interviews, in circumstances that engaged s. 7 of the Charter. ”
“[…] The disclosure order we make is different in scope than the order of the Federal Court of Appeal. The appellants must disclose (i) all records in any form of the interviews conducted by Canadian officials with Mr. Khadr, and (ii) records of any information given to US authorities as a direct consequence of Canada’s having interviewed him. This disclosure is subject to the balancing of national security and other considerations as required by ss 38 ff. of the Canada Evidence Act.
As noted above, it is not possible on the record before this Court to determine what specific records should be disclosed to Mr. Khadr. In order to assess what specific documents must be disclosed as falling within the group of documents described in para. 37, a designated judge of the Federal Court must review the documents. The designated judge will also consider any privilege or public interest immunity claim that is raised, including any claim under ss. 38 ff. of the Canada Evidence Act. ”
Subject to these variations, we would dismiss the appeal with costs in this Court, and issue an order directing that:
a) the Minister of Justice and the Attorney General of Canada, the Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police produce to a “judge” as defined in s. 38 of the Canada Evidence Act unredacted copies of all documents, records and other materials in their possession which might be relevant to the charges against Mr. Khadr;
b) the “judge” as defined in s. 38 of the Canada Evidence Act shall consider any privilege of public interest immunity claim that is raise,d including any claim under ss. 38 ff. of the Act, and make an order for disclosure in accordance with these reasons.