Incidentally …


UPDATE: Here is the relevant section of the Canada Evidence Act.

Some key definitions:

  • potentially injurious information” means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.
  • sensitive information” means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.

The federal judge who will, as per today’s ruling, make the final* decision on which documents will be disclosed to Omar Khadr’s legal team, and which may be redacted or withheld for reasons of national security grounds is Richard Mosley — the same Richard Mosley who, during a previous incarnation as associate deputy minister at the Department of Justice, was responsible for drafting much of Canada’s current anti-terrorist legislation, which has raised concerns over potential conflict of interest in the past.

(For more on Richard Mosley, check out “Judging his own work”, by Chris Selley and yours truly, which ran on macleans.ca last year as an exclusive online feature.)

*According to a kind law-talking guy who gets to remain nameless, but who is only too happy to impart wisdom on demand, the decisions can be appealed to the Federal Court of Canada, and, ultimately, the Supreme Court.


Incidentally …

  1. Hmm, by final decision, are you saying if the Defence Team of Khadr feels Mosley withholds certain documents they feel he shouldn’t have, they can’t appeal that to the Supreme Court too?

  2. That actually came up during the lock-up, and the impression I got — and again, I’m not an expert on these things, so I may well be wrong — was that the judge will take submissions from the various gov’t agencies involved over whether certain documents should be withheld on the grounds of national security, but that the ultimate decision will be his, and not appealable. I could very well be wrong on that, however, and I’ll try to get a more definitive answer. Given the wording of the order, it would seem that the onus is on the government to argue against disclosure, and not on Khadr’s lawyers, but again, I could be wrong.

  3. Hmmm. Could this be another example of the civil service “stacking the Courts” with one of their own? Does Dominic Leblanc know about this?

  4. “…the decisions can be appealed to the Federal Court of Canada, and, ultimately, the Supreme Court.”

    Good news, that.

    Except for one thing….wouldn’t that run out the clock as far as the coming and going of the show trial is concerned?


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