Khadr v. Canada (Minister of Justice) et al., (2008) 395 N.R. 260 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 20, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 395 N.R. 260 (SCC);2008 SCC 29;[2008] 2 SCR 143;395 NR 260;AZ-50482063;2008 CanLII 11072 (SCC);JE 2008-774

Khadr v. Can. (2008), 395 N.R. 260 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2009] N.R. TBEd. OC.015

Minister of Justice and Attorney General of Canada, Minister of Foreign Affairs, Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police (appellants/applicants on motions to strike/respondents on motion for sealing order) v. Omar Ahmed Khadr (respondent/applicant on motion for sealing order/respondent on motion to strike) and British Columbia Civil Liberties Association, University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch (intervenors/respondents on motions to strike) and Criminal Lawyers' Association (Ontario) (intervenor)

(32147; 2008 SCC 29; 2008 CSC 29)

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 was apprehended by the American military in Afghanistan in July 2002. He was being detained in U.S. Naval Station, Guantanamo Bay, Cuba. The appellants were appealing an order of the Federal Court of Appeal, which directed the appellants to provide Khadr with "Stinchcombe-like" disclosure of relevant materials in the possession of the appellants in order for Khadr to make full answer and defence to a U.S. military commission trial. Khadr brought a motion for a sealing order in relation to proposed fresh evidence which was given as disclosure in the U.S. proceedings, and which the U.S. authorities would only allow counsel to file in this court on condition of a sealing order being in place. The appellants brought motions to strike certain paragraphs from Khadr's factum, and to strike the factums of certain of the intervenors and to revoke their intervenor status.

The Supreme Court of Canada granted Khadr's motion for a sealing order and dismissed the appellants' motions to strike.

Editor's Note: The previous decisions of the Federal Court and the Federal Court of Appeal in this matter are reported at (2006), 290 F.T.R. 313 and (2007), 362 N.R. 378.

Courts - Topic 1408

Administration - General - Sealing of documents - Khadr was apprehended by the American military in Afghanistan in July 2002 - He was being detained in U.S. Naval Station, Guantanamo Bay, Cuba - The appellants were appealing an order of the Federal Court of Appeal, which directed the appellants to provide Khadr with "Stinchcombe-like" disclosure of relevant materials in the possession of the appellants in order for Khadr to make full answer and defence to a U.S. military commission trial - Khadr brought a motion for a sealing order in relation to proposed fresh evidence which was given as disclosure in the U.S. proceedings, and which the U.S. authorities would only allow counsel to file in this court on condition of a sealing order being in place - The Supreme Court of Canada granted the motion - The court stated that "At this stage, this Court is only being asked to grant a sealing order so that the documents, and legal argument in relation to them, can be filed. Admissibility and use of the documents will be determined by the panel hearing the appeal once the documents have been filed" - See paragraphs 3 to 5.

Practice - Topic 689

Parties - Adding or substituting parties - Intervenors - Pleadings by intervenors - [See Practice - Topic 9459 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - [See Practice - Topic 9459 ].

Practice - Topic 9459

Appeals - Factum, case on appeal or appeal book - Striking out - Khadr was apprehended by the American military in Afghanistan in July 2002 - He was being detained in U.S. Naval Station, Guantanamo Bay, Cuba - The appellants were appealing an order of the Federal Court of Appeal, which directed the appellants to provide Khadr with "Stinchcombe-like" disclosure of relevant materials in the appellants' possession in order for Khadr to make full answer and defence to a U.S. military commission trial - The appellants brought motions to strike certain paragraphs from Khadr's factum and to strike the factums of certain of the intervenors - The appellants sought to strike out arguments that Canadian officials violated s. 7 of the Charter in interviewing Khadr at Guantanamo Bay and in subsequently giving summaries of the interviews to U.S. authorities - Based on R. v. Hape (S.C.C.), it was argued by Khadr and the intervenors that those actions violated international human rights obligations - The appellants argued that: (i) there was an insufficient factual basis for the arguments; (ii) the arguments were not justiciable; and (iii) these were new arguments not raised in the courts below - The Supreme Court of Canada dismissed the motions - The factual basis and justiciability arguments were not grounds to strike the factums - Those issues could be argued as part of the main appeal - The appellants' allegation that the arguments raised new issues not raised below also failed - The issues were sufficiently raised in the courts below - Although the way the argument was made had changed, focussing on whether the actions of Canadian officials violated international human rights obligations in light of the Hape decision, it was not an entirely new argument - The court further stated that "interveners must have some latitude to approach legal arguments from a different perspective, given the requirement that interveners present a new and different perspective".

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. 1].

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. 6].

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. 15].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 15].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, refd to. [para. 15].

Counsel:

Written submissions by Robert J. Frater, Sharlene Telles-Langdon and Doreen Mueller, for the Minister of Justice et al.;

Written submissions by Nathan J. Whitling, for Omar Ahmed Khadr;

Written submissions by Joseph J. Arvay, Q.C., and Sujit Choudhry, for the British Columbia Civil Liberties Association;

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

Solicitors of Record:

Department of Justice, Ottawa, Ontario, for the Minister of Justice et al.;

Parlee McLaws, Edmonton, Alberta, for Omar Ahmed Khadr;

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

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

These motions were heard on March 20, 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.