Khadr v. Canada (Minister of Justice) et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Citation: (2008), 375 N.R. 47 (SCC),2008 SCC 28,72 Admin LR (4th) 1,375 NR 47,172 CRR (2d) 1,293 DLR (4th) 629,232 CCC (3d) 101,56 CR (6th) 255,[2008] 2 SCR 125,[2008] SCJ No 28 (QL)
• Date: 26 March 2008

Khadr v. Can. (2008), 375 N.R. 47 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.R. TBEd. MY.020

Minister of Justice, Attorney General of Canada, Minister of Foreign Affairs, Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police (appellants) v. Omar Ahmed Khadr (respondent) and British Columbia Civil Liberties Association, Criminal Lawyers' Association (Ontario), University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch (intervenors)

(32147; 2008 SCC 28; 2008 CSC 28)

Indexed As: Khadr v. Canada (Minister of Justice) et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

May 23, 2008.

Summary:

Khadr, a Canadian citizen, had been detained by the United States at Guantanamo Bay, Cuba, since 2002. He was facing murder and terrorism related charges before a U.S. Military Commission. In 2003, Canadian officials, including agents of the Canadian Security and Intelligence Service (CSIS), attended at Guantanamo Bay and interviewed Khadr. CSIS agents questioned Khadr with respect to matters connected to the charges he was facing and shared the product of those interviews with U.S. authorities. Invoking R. v. Stinchcombe (S.C.C.), Khadr sought disclosure of all documents relevant to the charges against him that were in the possession of the Canadian Crown, including records of the interviews. The request was refused. Khadr applied for an order of mandamus.

The Federal Court, in a decision reported at 290 F.T.R. 313, dismissed the application. Khadr appealed.

The Federal Court of Appeal, in a decision reported at 362 N.R. 378, allowed the appeal. The court ordered that unredacted copies of all relevant documents in the possession of the Crown be produced before the Federal Court for review under s. 38 ff. of the Canada Evidence Act. The Minister of Justice appealed.

The Supreme Court of Canada dismissed the appeal. The court upheld the Court of Appeal's conclusion that Khadr was entitled to a remedy under s. 7 of the Charter. However, because the court reached that conclusion on different grounds than those relied on by the Court of Appeal, it varied the Court of Appeal's order as it related to the scope of disclosure to which Khadr was entitled as a remedy. The court ordered that (a) the appellants 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 Khadr; and (b) the "judge" was to consider any privilege or public interest immunity claim that was raised, including any claim under s. 38 ff. of the Canada Evidence Act, and make an order for disclosure in accordance with the court's reasons.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - [See Civil Rights - Topic 8306 ].

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - Application of - Territorial limits - Khadr, a Canadian citizen, was being detained by the United States at Guantanamo Bay, Cuba - He faced murder and terrorism related charges before a U.S. Military Commission - Khadr sought an order under s. 7 of the Charter requiring disclosure to him of all documents relevant to the charges in the possession of the Canadian Crown, including interviews conducted by Canadian officials with him at Guantanamo Bay - The government argued that the Charter did not apply outside Canada and did not govern the actions of Canadian officials at Guantanamo Bay - The Supreme Court of Canada held that the principles of international law and comity of nations, which normally required that Canadian officials operating abroad comply with local law, did not extend to participation in processes that violated Canada's international human rights obligations - The process in place when Canadian officials interviewed Khadr and passed the fruits of the interviews on to U.S. officials had been found by the United States Supreme Court to violate U.S. domestic law and international human rights obligations to which Canada was party - In light of those decisions, the comity concerns that would normally justify deference to foreign law did not apply in this case - Consequently, the Charter applied, and Canada was under a s. 7 duty of disclosure - The content of that duty was defined by Canada's participation in the process that violated Canada's international human rights obligations - In the present circumstances, that duty required Canada to disclose to Khadr records of the interviews conducted by Canadian officials with him, and information given to U.S. authorities as a direct consequence of conducting the interviews, subject to claims for privilege and public interest immunity - See paragraphs 1 to 4 and 15 to 36.

Conflict of Laws - Topic 8

General - Doctrine of comity - [See Civil Rights - Topic 8306 ].

Conflict of Laws - Topic 9201

Practice - General - Comity - General - [See Civil Rights - Topic 8306 ].

International Law - Topic 11

General - Duty to Canadian citizens detained abroad - [See Civil Rights - Topic 8306 ].

International Law - Topic 12

General - International human rights obligations - [See Civil Rights - Topic 8306 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - Khadr, a Canadian citizen, was being detained by the United States at Guantanamo Bay, Cuba - He faced murder and terrorism related charges - At issue on appeal was whether Khadr was entitled to disclosure of documents relevant to the charges against him in the possession of the Canadian Crown, including records of interviews conducted between Khadr and Canadian officials at Guantanamo Bay - Khadr applied to admit fresh evidence that was part of a related proceeding in which he sought a remedy for alleged violations of his Charter rights at Guantanamo Bay - The appellants argued that the evidence from the related proceeding was filed as part of an interlocutory motion in which the appellants chose not to lead certain evidence, that the nature of the evidence they led was tailored to the specific context of that motion and that the related proceeding had not yet gone to trial so the appellants had not yet had an opportunity to present a complete evidentiary record - The appellants submitted that it would be unfair to admit the fresh evidence, because they were not given an adequate opportunity to respond to it - The Supreme Court of Canada admitted the fresh evidence - The fresh evidence amplified and significantly clarified the record as it related to Canadian officials' interviews with Khadr and Canada's participation in handing over the products of those interviews to U.S. authorities - As the basic facts were not contested, the appellants were not disadvantaged by the admission of the material - See paragraphs 9 to 14.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 8].

Khadr v. Canada, [2006] F.C.R. 505; 277 F.T.R. 298; 2005 FC 1076, refd to. [para. 13].

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. 17].

Rasul v. Bush (2004), 542 U.S. 466, refd to. [para. 22].

Hamdan v. Rumsfeld (2006), 126 S. Ct. 2749, refd to. [para. 23].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 29].

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; 151 C.C.C.(3d) 97; 2001 SCC 7, refd to. [para. 29].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 38 [para. 4].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 1].

Counsel:

Robert J. Frater, Sharlene Telles-Langdon and Doreen Mueller, for the appellant;

Nathan J. Whitling and Dennis Edney, for the respondent;

Joseph J. Arvay, Q.C., Sujit Choudhry and Paul Champ, for the intervenor, the British Columbia Civil Liberties Association;

John Norris and Brydie C.M. Bethell, for the intervenor, the Criminal Lawyers' Association (Ontario);

Audrey Macklin, Tom A. Friedland and Gerald Chan, for the intervenors, the University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch.

Solicitors of Record:

Attorney General of Canada, Ottawa, Ontario, for the appellants;

Parlee McLaws, Edmonton, Alberta, for the respondent;

Arvay Finlay, Vancouver, British Columbia, for the intervenor, the British Columbia Civil Liberties Association;

Ruby & Edwardh, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario);

Goodmans,  Toronto,  Ontario,  for  the  intervenors, the University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch.

This appeal was heard on March 26, 2008, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The following judgment was delivered by the Supreme Court of Canada in both official languages on May 23, 2008.