France (Republic) v. Diab, 2014 ONCA 374

• Judge: Hoy, A.C.J.O., Blair and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 15, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 374;(2014), 320 O.A.C. 301 (CA)

France v. Diab (2014), 320 O.A.C. 301 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MY.027

In The Matter Of an appeal of a committal order pursuant to s. 49 of the Extradition Act, S.C. 1999, c. 18

In The Matter Of an application for judicial review pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18

The Attorney General of Canada on behalf of the Republic of France and the Minister of Justice (respondents/respondents) v. Hassan Naim Diab (applicant/appellant)

(C53812; C55441; 2014 ONCA 374)

Indexed As: France (Republic) v. Diab

Ontario Court of Appeal

Hoy, A.C.J.O., Blair and Rouleau, JJ.A.

May 15, 2014.

Summary:

Diab was wanted in France for his alleged role in a 1980 bombing outside a Paris synagogue. France sought to have Diab extradited.

The Ontario Superior Court (extradition judge), in a decision reported [2011] O.T.C. Uned. 337, committed Diab to await surrender. Thereafter, the Minister of Justice ordered Diab's surrender to French authorities. Diab appealed from his committal and sought judicial review of the Minister's decision to surrender.

The Ontario Court of Appeal dismissed the appeal and the application for judicial review.

Extradition - Topic 2.1

General - Extradition legislation - Interpretation - [See second Extradition - Topic 3343.3 ].

Extradition - Topic 23

General - Bars to extradition - Charter breaches - Diab was wanted in France for his alleged role in a 1980 bombing - The Minister of Justice ordered his surrender to French authorities - Diab applied for judicial review, arguing that his Charter rights (s. 7) would be infringed by his surrender because the evidence in the French proceeding included unsourced and unknown intelligence reports - The Ontario Court of Appeal dismissed the appeal - The court stated that there was no categorical exclusionary rule regarding resort to intelligence-based evidence in surrender cases - However, the Minister had to be satisfied that adequate protections existed in the requesting state to ensure that the person surrendered would be subject to a fair prosecution - Here, the Minister was satisfied that there would be a fair prosecution and the court could not say that his decision in that regard was unreasonable - See paragraphs 205 to 221.

Extradition - Topic 23

General - Bars to extradition - Charter breaches - Diab was wanted in France for his alleged role in a 1980 bombing - The Minister of Justice ordered his surrender to French authorities - Diab applied for judicial review, arguing that his Charter rights (s. 7) would be infringed by his surrender because the French proceedings might be based on intelligence-sourced evidence obtained by using torture - The Ontario Court of Appeal dismissed the appeal - While the Minister might have conflated the two steps of the inquiry, he in reality followed the two-step paradigm the court concluded was called for - Here, after considering the record as a whole, including the further information and assurances he had received from France, the Minister decided "that it would be neither shocking to the Canadian conscience nor simply unacceptable to surrender the appellant to France" - See paragraphs 222 to 276.

Extradition - Topic 23

General - Bars to extradition - Charter breaches - An individual applied for judicial review of a surrender decision, arguing that his Charter rights would be infringed by his surrender because the French proceedings might be based on intelligence-sourced evidence tainted by torture - The Ontario Court of Appeal stated the test to be applied in determining this issue: "... the two-step inquiry is properly framed in this way: (i) the person facing surrender, and challenging such evidence, must first show that there is a 'plausible connection' between that evidence and the use of torture; and, (ii) if that threshold is met, the Minister is then called upon to make further inquiries and satisfy himself or herself - on the basis of the record, any further information obtained and/or assurances received from the requesting state - that there is 'no real risk' that torture-derived evidence will be used in the proposed foreign proceeding. If the Minister is satisfied on that basis, the surrender order should be made; if not, surrender should generally be refused" - See paragraph 229 - The court elaborated on this test, including the rationale for adoption, the burden of proof, etc. - See paragraphs 225 to 264.

Extradition - Topic 23

General - Bars to extradition - Charter breaches - The Ontario Court of Appeal stated that "Although the test for refusing surrender on s. 7 [Charter] grounds is a 'strict one' and is only met in 'very exceptional cases', it is beyond debate that torture-derived evidence may not be used in legal proceedings and cannot be relied upon by a state seeking extradition or being asked to extradite ... This exclusion of torture-derived evidence flows from society's abhorrence of torture generally ... The use of torture is dishonourable ... Torture and torture-derived evidence undermine the basic right to a fair trial and their use therefore violates the principles of fundamental justice. This underlying concern for human rights must be accounted for in the surrender process because the life, liberty and security interests protected under s. 7 of the Charter have to do not only with the act of extraditing but also with the potential consequences of that act ... As a result, Canada must neither tolerate resort to torture or the use of torture-derived evidence domestically, nor participate in any action that would clearly permit that to occur in a foreign state. Accordingly, just as the Minister should generally decline to deport refugees where, on the evidence, there is a 'substantial risk' they will be tortured if that happens ... so, too, in our view, should the Minister generally decline to order surrender where there is a substantial risk that torture-derived evidence will be used against the person facing prosecution in the requesting state ..." - See paragraphs 234 to 238.

Extradition - Topic 23

General - Bars to extradition - Charter breaches - The Ontario Court of Appeal stated that where a surrender decision by the Minister of Justice was attacked under s. 7 of the Charter, that might lessen the level of deference - "However, review on a standard of reasonableness remains the norm even where 'the fugitive argues that extradition would infringe his or her rights under the Charter' ... Provided the Minister applies the correct legal test and does not otherwise err in law or contravene the principles of natural justice, his or her decision that surrender would not be contrary to s. 7 of the Charter and s. 44(1)(a) of the Extradition Act remains entitled to considerable deference" - See paragraphs 201 and 203.

Extradition - Topic 23

General - Bars to extradition - Charter breaches - The Ontario Court of Appeal stated that "The authorities establish that, if surrender would violate s. 7 of the Charter, it will also bar surrender under s. 44(1)(a) [of the Extradition Act]. However, the authorities also confirm that the test for refusing surrender on s. 7 grounds is a 'strict one', and only precludes surrender in cases of a 'very exceptional nature' where surrender to the requesting state would 'shock the conscience' of Canadians and be 'simply unacceptable' ..." - See paragraph 202.

Extradition - Topic 2643.3

Evidence and procedure before examining judge - Evidence - General - Expert evidence - In committing the appellant for extradition to France, the extradition judge relied on a French expert's handwriting analysis report (Bisotti report) - While the extradition judge found that the French expert's conclusions were "suspect", he concluded that her evidence should not be completely rejected as "manifestly unreliable" and tipped the scale in favour of committal - The appellant appealed, arguing that an expert opinion (such as the Bisotti report) that did not meet the threshold reliability test in R. v. Mohan (SCC 1994) and R. v. Abbey (Ont. C.A. 2009) was manifestly unreliable and should not be considered by a judge at an extradition hearing - He claimed that the extradition judge erred in law in concluding to the contrary - The Ontario Court of Appeal rejected this ground of appeal - See paragraphs 95 and 102 to 109.

Extradition - Topic 2643.3

Evidence and procedure before examining judge - Evidence - General - Expert evidence - In committing the appellant for extradition to France, the extradition judge relied on a French expert's handwriting analysis report (Bisotti report) - The extradition judge discounted evidence from the appellant's experts criticizing the methodology used in the Bisotti report (i.e., that there was one accepted method of handwriting analysis used around the world) - While the extradition judge found that the French expert's conclusions were "suspect", he concluded that her evidence should not be completely rejected as "manifestly unreliable" and tipped the scale in favour of committal - The appellant appealed, arguing that the extradition judge's conclusion that the Bisotti report was not manifestly unreliable was rooted in speculation and a misapprehension of the evidence - The Ontario Court of Appeal rejected this ground of appeal - See paragraphs 96 and 110 to 115.

Extradition - Topic 2643.3

Evidence and procedure before examining judge - Evidence - General - Expert evidence - In committing the appellant for extradition to France, the extradition judge relied on a French expert's handwriting analysis report (Bisotti report) - While the extradition judge found that the French expert's conclusions were "suspect", he concluded that her evidence should not be completely rejected as "manifestly unreliable" and tipped the scale in favour of committal - The appellant appealed, arguing that the extradition judge imposed too high a standard to determining "manifest unreliability" (i.e., erred in applying the standard set out in U.S.A. v. Ferras (SCC 2006)) - The Ontario Court of Appeal dismissed the appeal - The Ferras standard was not misapplied - There was no basis for appellate intervention with the conclusion that the Bisotti report was not manifestly unreasonable - The appellant received the meaningful judicial determination that Ferras required before he could be extradited - The court elaborated on the "manifest unreliability" standard - See paragraphs 97 and 116 to 126.

Extradition - Topic 2643.3

Evidence and procedure before examining judge - Evidence - General - Expert evidence - In committing the appellant for extradition to France, the extradition judge relied on a French expert's handwriting analysis report (Bisotti report) - The appellant appealed, arguing that, having concluded that the Bisotti report was not manifestly unreliable, the extradition judge erred in failing to ask a second question as to whether on all of the evidence in the record, it would it be dangerous or unsafe to convict the appellant (i.e., the judge had to apply an "unreasonable verdict/conviction" test in deciding the issue of committal which would have changed the result in this case) - The Ontario Court of Appeal dismissed the appeal - The extradition judge made no error in failing to conduct the analysis suggested by the appellant - The court stated that "the 'dangerous or unsafe to convict' standard properly belongs in the test for manifest unreliability, where the extradition judge applied it. Additionally, in our view the test for unreasonable verdict/conviction is, by its very nature, different from the test for committal. The former is a retrospective analysis, performed once all of the evidence has been heard and weighed at the trial stage, while the latter is prospective, necessarily avoiding drawing conclusions on the ultimate outcome of the trial" - See paragraphs 98 and 127 to 141.

Extradition - Topic 2658

Evidence and procedure before examining judge - Evidence - General - Evidence required to ground proceedings - [See all Extradition - Topic 2643.3 ].

Extradition - Topic 2706

Evidence and procedure before examining judge - Procedure - Test for extradition - [See sixth Extradition - Topic 23 and fourth Extradition - Topic 2643.3 ].

Extradition - Topic 2901

Provisional arrest and detention - General - The Ontario Court of Appeal reviewed the general principles regarding committal for extradition, including the statutory framework and the governing jurisprudence - See paragraphs 23 to 43.

Extradition - Topic 3343.3

Surrender to demanding country - Conditions precedent - Surrender for the purpose of prosecuting the person - Diab was wanted in France for his alleged role in a 1980 bombing outside a Paris synagogue - The Minister of Justice ordered his surrender to French authorities - Diab applied for judicial review, arguing that the Minister lacked jurisdiction to order surrender because France had yet to make a decision as to whether he would be put on trial (Extradition Act, s. 3(1)) - The Ontario Court of Appeal dismissed the application - The Minister had jurisdiction to order the surrender even though a trial in France was not a certainty - An extradition request had to be grounded in the anticipation that there would be a trial in the requesting state (i.e., a process or prosecution had to have been initiated that would, if not discontinued, lead to a trial) - A trial of that person, however, need not be inevitable - The Minister reasonably concluded that the French authorities had taken steps consistent with the commencement of a prosecution - See paragraphs 13 and 144 to 198.

Extradition - Topic 3343.3

Surrender to demanding country - Conditions precedent - Surrender for the purpose of prosecuting the person - Section 3(1) of the Extradition Act provided that a person could be extradited from Canada on the request of an extradition partner "for the purpose of prosecuting the person ..." or in French "pour subir son procès" (i.e., to stand trial) - The Ontario Court of Appeal discussed the meaning of s. 3(1) and the differences in the two versions - The court noted that the principles of interpretation of bilingual statutes provided that where one version had a broader meaning than the other (as did the English version in this case), the shared meaning, the meaning to be adopted, would usually be the narrower of the two - However, the court stated that statutory interpretation involves more than those principles - The court also had to have regard to the applicable extradition treaty and should avoid constructions of domestic law which would put Canada in violation of its international obligations (in this case with France) - See paragraphs 165 to 190.

Extradition - Topic 3343.3

Surrender to demanding country - Conditions precedent - Surrender for the purpose of prosecuting the person - Diab was wanted in France respecting a bombing - The Minister of Justice ordered that Diab be extradited - Diab applied for judicial review, arguing that the Minister lacked jurisdiction to order surrender because France had not yet decided to put him on trial - He claimed that the Minister erred in relying on information provided by the French authorities that he had to appear in France before the "juge d'instruction" prior to a decision being made on referring the case to trial - The Ontario Court of Appeal dismissed the appeal - The Minister reasonably relied on the information provided by the French authorities instead of the opinions of Diab's experts - The application of French law was a matter for the French authorities - While the Minister could take foreign law into account in deciding whether to order surrender, he did not make his own assessment of how foreign law should apply, as to do so would offend the principle of comity - See paragraphs 191 to 198.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - The Ontario Court of Appeal discussed the standard of review of a decision by the Minister of Justice to surrender an individual for extradition pursuant to s. 3(1) of the Extradition Act - The court concluded that the applicable standard of review in the particular circumstances of the case at bar was reasonableness - See paragraphs 150 to 159.

Extradition - Topic 3947

Practice - Judicial review - Decision to surrender (incl. standard of review) - [See fifth Extradition - Topic 23 ].

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - [See second Extradition - Topic 3343.3 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions - Shared meaning rule - [See second Extradition - Topic 3343.3 ].

Cases Noticed:

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 3].

United States of America et al. v. Yang (2001), 149 O.A.C. 364; 56 O.R.(3d) 52 (C.A.), refd to. [para. 23].

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 33].

United States of America v. Thomlison (2007), 219 O.A.C. 322; 84 O.R.(3d) 161; 2007 ONCA 42, leave to appeal refused (2007), 374 N.R. 394; 241 O.A.C. 395 (S.C.C.), refd to. [para. 37].

United States of America et al. v. Prudenza et al. (2007), 219 O.A.C. 369; 85 O.R.(3d) 380; 2007 ONCA 84, leave to appeal refused (2007), 364 N.R. 395; 229 O.A.C. 395 (S.C.C.), refd to. [para. 37].

United States of America v. Anderson - see United States of America et al. v. Prudenza et al.

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 37].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 56].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, leave to appeal refused (2010), 409 N.R. 397; 276 O.A.C. 398 (S.C.C.), refd to. [para. 56].

Canada (Attorney General) et al. v. Michaelov (2010), 279 O.A.C. 373; 264 C.C.C.(3d) 480; 2010 ONCA 819, leave to appeal refused (2011), 422 N.R. 392 (S.C.C.), refd to. [para. 60].

United States of America v. Michaelov - see Canada (Attorney General) et al. v. Michaelov.

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 73].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 86].

United States of America v. Graham (2007), 243 B.C.A.C. 248; 401 W.A.C. 248; 222 C.C.C.(3d) 1; 2007 BCCA 345, leave to appeal refused (2007), 383 N.R. 394; 266 B.C.A.C. 320; 449 W.A.C. 320 (S.C.C.), disagreed with [para. 98].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 130].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 138].

R. v. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 2000 SCC 17, refd to. [para. 140].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 150].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241, refd to. [para. 151].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 152].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 152].

Aviva Canada Inc. et al. v. Pastore (2012), 296 O.A.C. 281; 112 O.R.(3d) 523; 2012 ONCA 642, refd to. [para. 154].

Ismail, Re, [1999] 1 A.C. 320; [1998] UKHL 32, refd to. [para. 170].

Fletcher v. Government of France (2008), 2007-09 Gib. L.R. 191 (S.C. Gibraltar), dist. [para. 172].

Minister for Justice, Equality and Law Reform v. Bailey, [2012] IESC 16 (S.C. Ireland), dist. [para. 172].

Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269; 292 N.R. 250; 164 O.A.C. 354; 2002 SCC 62, refd to. [para. 179].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 184].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 185].

National Corn Growers' Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81, refd to. [para. 186].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 186].

United States of America v. Anekwu, [2009] 3 S.C.R. 3; 393 N.R. 77; 275 B.C.A.C. 282; 465 W.A.C. 282; 2009 SCC 41, refd to. [para. 187].

Assange v. Swedish Prosecution Authority, [2011] EWHC 2849 (Admin.), affd. [2012] UKSC 22, refd to. [para. 188].

Canada (Minister of Justice) v. Fischbacher, [2009] 3 S.C.R. 170; 394 N.R. 139; 255 O.A.C. 288; 2009 SCC 46, refd to. [para. 193].

France (Republic) et al. v. Ouzghar (2009), 248 O.A.C. 280; 94 O.R.(3d) 601; 2009 ONCA 69, refd to. [para. 193].

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 2001 SCC 18, refd to. [para. 201].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 202].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 202].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 202].

Canada (Minister of Justice) v. Pacificador (2002), 162 O.A.C. 299; 60 O.R.(3d) 685, (C.A.), leave to appeal refused (2003), 312 N.R. 195; 180 O.A.C. 399 (S.C.C.), refd to. [para. 202].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 207].

Charkaoui v. Canada (Citizenship and Immigration) - see Charkaoui, Re.

Mahjoub v. Canada (Minister of Citizenship and Immigration) et al., [2007] 4 F.C.R. 247; 304 F.T.R. 290; 2006 FC 1503, refd to. [para. 226].

Mahjoub, Re (2010), 373 F.T.R. 36; 2010 FC 787, refd to. [para. 226].

A et al. v. United Kingdom (Secretary of State for the Home Department), [2005] N.R. Uned. 168; [2005] UKHL 71, refd to. [para. 226].

Canada (Attorney General) v. Khadr, [2010] O.T.C. Uned. 4338; 258 C.C.C.(3d) 231; 2010 ONSC 4338, affd. (2011), 280 O.A.C. 210; 273 C.C.C.(3d) 55; 2011 ONCA 358, leave to appeal refused (2011), 429 N.R. 397; 294 O.A.C. 397 (S.C.C.), refd to. [para. 250].

India v. Singh (1996), 108 C.C.C.(3d) 274 (B.C.S.C.), refd to. [para. 250].

Harkat, Re (2005), 261 F.T.R. 52; 2005 FC 393, refd to. [para. 254].

Charkaoui, Re (2004), 260 F.T.R. 238; 2004 FC 1031, refd to. [para. 254].

Hurley v. United States of Mexico et al. (1997), 101 O.A.C. 121; 35 O.R.(3d) 481 (C.A.), dist. [para. 255].

Li (Y.) v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C.R. 501; 243 F.T.R. 261; 2003 FC 1514, affd. [2005] 3 F.C.R. 239; 329 N.R. 346; 2005 FCA 1, leave to appeal refused (2005), 343 N.R. 197 (S.C.C.), not folld. [para. 257].

Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592; 252 N.R. 1 (F.C.A.), revd. [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 258].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), leave to appeal refused (2001), 286 N.R. 199 (S.C.C.), refd to. [para. 264].

Jaballah, Re, [2011] 2 F.C.R. 145; 364 F.T.R. 72; 2010 FC 79, refd to. [para. 264].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 201].

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S. 221, generally [para. 220].

Extradition Act, S.C. 1999, c. 18, sect. 3(1) [para. 147]; sect. 29(1)(a) [para. 28]; sect. 32, sect. 33(3) [para. 29]; sect. 44(1)(a) [para. 200]; sect. 57 [para. 150].

Extradition Treaty between the Government of Canada and the Government of the Republic of France (17 November 1988), Can. T.S. 1989 No. 38, generally [para. 26].

United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, generally [para. 8].

Authors and Works Noticed:

Côté, Pierre-André, Beaulac, Stéphane and Devinat, Mathieu, The Interpretation of Legislation in Canada (4th Ed. 2011), pp. 347, 349 [para. 179].

Driedger, Elmer, Construction of Statutes (2nd Ed. 1983), generally [para. 184].

European Network of Forensic Handwriting Experts, Overview Procedure for Handwriting Comparisons, generally [para. 112].

Goudge, Stephen T., Report of the Inquiry into Pediatric Forensic Pathology in Ontario (2008), generally [para. 56]; pp. 488, 489 [para. 109].

Iacobucci, Frank, Internal Inquiry Into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin (2010), generally [para. 207].

International Commission of Jurists, Assessing Damage, Urging Action: Report of Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights (2009), generally [para. 207].

Méndez, Juan E., Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2011), U.N. Doc. A/HRC/16/52, 16th Sess., para. 53 [para. 249].

Nowak, Manfred, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2006), U.N. Doc. A/61/259, generally [para. 249].

O'Connor, Dennis, Report of the Events Relating to Maher Arar (2006), generally [para. 207].

United Nations, Committee Against Torture, Summary Record of the First Part (Public) of the 424th Meeting (2001), U.N. Doc. CAT/C/SR.424, 24th Sess., para. 17 [para. 248].

United Nations, Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004), U.N. Doc. CCPR/C/21/Rev.1/Add 13, 80th Sess., para. 2 [para. 248].

United Nations, Human Rights Watch, No Questions Asked: Intelligence Cooperation with Countries that Torture (2010), generally [para. 207].

United Nations, Human Rights Watch, Preempting Justice - Counterterrorism Laws and Procedures in France (2008), generally [para. 207].

Counsel:

Marlys Edwardh, Daniel Sheppard and Donald Bayne, for the applicant/appellant;

Janet Henchey and Jeffrey Johnston, for the respondents;

Lorne Waldman, for the intervener, Amnesty International;

Brendan van Niejenhuis and Justin Safayeni, for the intervener, the British Columbia Civil Liberties Association;

Anil Kapoor and Lindsay Daviau, for the intervener, Canadian Civil Liberties Association.

This appeal was heard on November 4 and 5, 2013, before Hoy, A.C.J.O., Blair and Rouleau, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on May 15, 2014.