Khadr v. Canada (Minister of Justice) et al., (2007) 362 N.R. 378 (FCA)

• Judge: Desjardins, Létourneau and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 13, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 362 N.R. 378 (FCA);2007 FCA 182

Khadr v. Can. (2007), 362 N.R. 378 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. MY.030

Omar Ahmed Khadr (appellant) v. The Minister of Justice and Attorney General of Canada, The Minister of Foreign Affairs, The Director of the Canadian Security Intelligence Service, and the Commissioner of the Royal Canadian Mounted Police (respondents)

(A-184-06; 2007 FCA 182)

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

Federal Court of Appeal

Desjardins, Létourneau and Ryer, JJ.A.

May 10, 2007.

Summary:

Khadr, a Canadian citizen, was being detained in a U.S. Naval Station at Guantánamo Bay, Cuba. He faced various charges, which carried a maximum penalty of life imprisonment. Khadr's counsel demanded production from the respondents of all documents relevant to the charges against Khadr in the possession of the Crown in Right of Canada (including the content redacted from documents previously obtained under the Access to Information Act and in Federal Court proceedings). After receiving no response, Khadr applied for an order of mandamus directing the respondents to provide him with full and complete disclosure. Khadr argued that he had a constitutional right under s. 7 of the Charter to disclosure of all material relevant to the charges against him.

The Federal Court, in a decision reported at 290 F.T.R. 313, dismissed the application. The court held that the Charter did not have extraterritorial application in this case. Khadr appealed.

The Federal Court of Appeal allowed the appeal, holding that the Charter applied in the circumstances of this case. The court ordered that the respondents produce before the Federal Court unredacted copies of all documents, records and other materials in their possession which might be relevant to the charges against Khadr and which were therefore necessary for the purpose of allowing him to raise full answer and defence to the charges and that the material produced be reviewed by a judge pursuant to s. 38 of the Canada Evidence Act.

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 in a U.S. Naval Station at Guantánamo Bay, Cuba - He faced various charges, which carried a maximum penalty of life imprisonment - Khadr's counsel demanded production from the respondents of all documents relevant to the charges against Khadr in the possession of the Crown in Right of Canada - After receiving no response, Khadr applied for an order of mandamus directing the respondents to provide him with full and complete disclosure - Khadr argued that he had a constitutional right under s. 7 of the Charter to disclosure of all material relevant to the charges against him - The Federal Court of Appeal held that the Charter applied in this case and that s. 7 of the Charter was engaged - Canadian officials had questioned Khadr in Guantánamo Bay prior to the laying of charges and summaries of the information collected were passed on to U.S. authorities - There was a sufficient causal connection between the Canadian government's participation in the foreign investigation and the potential deprivation of life, liberty and security of the person which Khadr faced - The court also held that the application of the Charter did not interfere with the sovereign authority of the U.S.

International Law - Topic 2001

Sovereignty - General - [See Civil Rights - Topic 8306 ].

Cases Noticed:

Khadr v. Canada (Attorney General) et al., [2004] F.T.R. Uned. A94; 2004 FC 1394, refd to. [para. 8].

Khadr v. Canada (2005), 277 F.T.R. 298; 2005 FC 1076, refd to. [para. 8].

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. 11].

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. 14].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 14].

Purdy v. Canada (Attorney General), [2003] B.C.T.C. 725; 226 D.L.R.(4th) 761 (S.C.), affd. (2003), 188 B.C.A.C. 195; 308 W.A.C. 195; 230 D.L.R.(4th) 361; 2003 BCCA 447, consd. [para. 14].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), refd to. [para. 15].

Gold v. Canada, [1986] 2 F.C. 129; 64 N.R. 260 (F.C.A.), refd to. [para. 21].

Ribic v. Canada (Attorney General) et al. (2003), 320 N.R. 275; 185 C.C.C.(3d) 129; 2003 FCA 246, refd to. [para. 21].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 22].

R. v. Egger, [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 25].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R 1; 2003 SCC 70, refd to. [para. 25].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 25].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 25].

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. 29].

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. 29].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 2].

Counsel:

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

Doreen Mueller, for the respondents.

Solicitors of Record:

Parlee McLaws LLP, Edmonton, Alberta, and Edney, Hattersley & Dolphin, Edmonton, Alberta, for the appellant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This appeal was heard on March 13, 2007, at Edmonton, Alberta, before Desjardins, Létourneau and Ryer, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Desjardins, J.A., on May 10, 2007.