Khadr v. Canada (Attorney General), 2008 FC 807

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: May 27, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 807;(2008), 331 F.T.R. 1 (FC)

Khadr v. Can. (A.G.) (2008), 331 F.T.R. 1 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. JN.043

Omar Khadr (applicant) v. The Attorney General of Canada (respondent)

(DES-1-08; 2008 FC 807)

Indexed As: Khadr v. Canada (Attorney General)

Federal Court

Mosley, J.

June 25, 2008.

Summary:

This case began as a review of all of the materials in the possession of the named government departments and agencies that might be relevant to the criminal charges faced by the applicant at Guantánamo Bay, and which might assist him in making full answer and defence to those charges as contemplated by the Stinchcombe principles applicable to a criminal prosecution in Canada. As a result of a decision rendered by the Supreme Court of Canada, reported at 375 N.R. 47; 2008 SCC 28 (concerning the Charter's reach with respect to foreign criminal proceedings), the scope of the review undertaken was considerably narrowed. Specifically, the respondents were directed to produce to a "judge" under s. 38 of the Canada Evidence Act, unredacted copies of all materials in their possession which might be relevant to the charges, and the judge to whom the materials were produced was directed to consider any privilege or public interest immunity claim raised, and to make an order for disclosure. The Attorney General's position was that the judge should decline to order the disclosure of information which would cause injury to Canada's national interests. If any of the redacted information was to be disclosed, the Attorney General requested that the judge exercise the discretion under s. 38.06(2) of the Act so as to disclose the information in a form and under conditions that were most likely to limit the injury. Several media organizations sought leave to argue about the public release of any information that was to be disclosed to the applicant.

The Federal Court granted leave to the media organizations to intervene for the limited purpose of making submissions on public disclosure, and issued a private order to the applicant and the Attorney General specifying the information to be disclosed to the applicant and his counsel, subject to terms and conditions that the court deemed necessary. Subject to any such specific condition, the applicant and his counsel could release the information to the public, including the media. The court's jurisdiction did not flow directly from the statutory scheme under s. 38 and following, but the court applied those provisions to determine whether disclosure would be injurious to international relations, national defence or national security and whether the public interest in disclosure outweighed its interest in non-disclosure. The object was to provide a Charter remedy for the breach of Canada's international human rights obligations, for the purpose of the applicant's defence to the criminal charges.

Civil Rights - Topic 2494

Freedom of the press - Limitations - Access to exhibits - In the context of a discretionary order regarding disclosure or non-disclosure of information to an applicant under s. 38 and following of the Canada Evidence Act, the Federal Court noted the jurisprudence that exhibits remained the property of the party which filed them, while the court had a custodial role to supervise their use - The exhibits under review were initially produced to the applicant under compulsion of either a court order or the Access to Information Act, and were produced to the court under an order of the Chief Justice of Canada, for a limited purpose - While it was not necessary to decide the question, the court noted that it was unclear from the jurisprudence whether the open court principle required that exhibits filed as attachments to affidavits, for review in a closed session, thereby became accessible to the public - Nor was it clear that an order for disclosure to an applicant under s. 38.06 of the Act, on the basis that the public interest in disclosure outweighed the public interest in non-disclosure, necessarily implied disclosure to the public at large under the open court principle - See paragraphs 44 to 46.

Courts - Topic 553

Judges - Powers - To compel disclosure - The Federal Court addressed the scope and effect of the Supreme Court of Canada's decision in Canada (Minister of Justice et al.) v. Khadr (2008), directing Canadian officials to produce unredacted copies of information in their possession which might be relevant to charges which the applicant currently faced at the US military base at Guantánamo Bay - The decision directed the judge to whom the materials were produced to consider any privilege or public interest immunity claim raised, including any claim under s. 38 of the Canada Evidence Act, and to make an order for disclosure in accordance with the decision - In addressing the scope of the disclosure obligation, the court considered whether it could apply a Stinchcombe relevance test to the redacted documents - From the reasons read as a whole, the court concluded that it could be guided by Stinchcombe, but only to the extent that the material was linked to Canada's direct involvement in the US proceedings - The field of inquiry was considerably narrowed, because information which might have been considered relevant to the criminal charges, under Stinchcombe, was provided by US agencies to Canada for purposes unrelated to the visits by Canadian officials to Guantánamo - See paragraphs 25 to 29.

Courts - Topic 594

Judges - Duties - Duty respecting orders of higher courts - [See Courts - Topic 553 ].

Courts - Topic 4016.1

Federal Court of Canada - Jurisdiction - Federal Court - Proceeding in any cause or matter - [See Courts - Topic 4020 ].

Courts - Topic 4020

Federal Court of Canada - Jurisdiction - Federal Court - Claims made under a statute of Canada or Charter - The Federal Court addressed the scope and effect of the Supreme Court of Canada's decision in Canada (Minister of Justice et al.) v. Khadr (2008), and the source of its jurisdiction arising from that decision - The Supreme Court of Canada directed Canadian officials to produce to a "judge", as defined in s. 38 of the Canada Evidence Act, unredacted copies of all information in their possession which might be relevant to charges which the applicant currently faced at the US military base at Guantánamo Bay - The judge to whom the materials were produced was directed to consider any privilege or public interest immunity claim raised, including any claim under s. 38, and to make an order for disclosure - A "judge" in s. 38 was a judge of the Federal Court - The court determined that the s. 38 review was to give effect to the Charter remedy arising from the involvement of Canadian officials in an illegal foreign process - The s. 38 procedure under which the applicant sought disclosure was a convenient means to assess whether public interest considerations should limit the information to be disclosed, but the court's jurisdiction flowed entirely from the Charter remedy - The application did not relate to an underlying "proceeding" under s. 38.01 of the Act, as the proceeding in question was taking place before a court in a foreign jurisdiction (US) which had no authority to compel the production of information in Canada - See paragraphs 22 to 23.

Courts - Topic 4070

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Statutory applications - [See Courts - Topic 4020 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - In the context of a review of materials linked to Canada's direct involvement in a US proceeding (through interviews conducted by Canadian officials at Guantánamo Bay), the Federal Court  noted that the rights to discovery under US federal and military rules were, in general, not as extensive as those which applied in Canada under Stinchcombe - Specifically, under the US rules, the applicant was entitled to any exculpatory or mitigating evidence and his own recorded statements which were within the control of the government but not to the disclosure of other relevant inculpatory information which the prosecution did not intend to use, including inculpatory information inconsistent with the prosecution's theory - As a result, the applicant might not receive from the US authorities in the course of his trial (before the US military commission), disclosure of information which could be of assistance to him and which was in the possession of Canadian agencies - However, that was beyond the court's jurisdiction - See paragraph 30.

Crown - Topic 2203

Crown privilege or prerogative - For reasons of national security - [See all Evidence - Topic 4143 ].

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court set out the three-step procedure to be followed on an application under s. 38 of the Canada Evidence Act, the first of which was a determination of the relevance of the information to the underlying proceedings - Where the information was relevant, the next step was a determination of whether disclosure would result in injury to the protected national interests - Where no injury would result to the protected interests, the information must be disclosed - Absent such a finding, the third stage of the test was to determine whether the public interest in non-disclosure was outweighed by the public interest in disclosure, and to consider whether the disclosure should be subject to terms and conditions - See paragraphs 47 to 52.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The task of the Federal Court in this case was to consider the scope of the Attorney General's duty of disclosure to the applicant, under s. 7 of the Charter, triggered by Canadian officials giving US authorities access to interviews with the applicant that they conducted at Guantánamo Bay - The documents containing the information at issue were held by the Canadian Security Intelligence Service, the RCMP, the Department of Foreign Affairs and International Trade, and the Department of National Defence, Canadian Forces - The most compelling factors in the case were the nature of the public interests sought to be protected by confidentiality, those favouring openness, and the applicant's human rights and right to make full answer and defence - In the result, the court issued a private order to the applicant and the respondent specifying the information to be disclosed to the applicant and his counsel, subject to any terms and conditions that the court deemed necessary in accordance with s. 38.06 of the Canada Evidence Act - Subject to any specific condition restricting disclosure of the information which might be set out in the private order, the applicant and his counsel could release the information to other members of the public, including the media - See paragraphs 60 to 89.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - In February and September of 2003, three Canadian Security Intelligence Service (CSIS) officials, and one officer of the Department of Foreign Affairs and International Trade, interviewed the applicant, Khadr, at Guantánamo Bay - The interviews were conducted for intelligence collection and not for evidence gathering - An audio and video record was made of the February interviews and CSIS was provided with copies - The videotapes were classified as "secret/no foreign" - Khadr's military defence counsel could view the videos, but not his Canadian counsel - In the context of an application regarding disclosure or non-disclosure, copies were filed as exhibits - The Federal Court viewed the videotapes and ordered that they be disclosed, subject to the interests protected under s. 38 of the Canada Evidence Act - Any content that supported the applicant's allegations that he suffered abuse following his capture was relevant for the purpose of his defence to the criminal charges he faced in US military commission proceedings - The disclosure, however, of the sensitive audio content and the facial images of the officials or agents would cause injury to Canada's national interests - Accordingly, the court ordered the disclosure of the tapes for use in the military commission proceedings, provided that they were edited to eliminate any irrelevant and sensitive audio content, and that the faces of the Canadian and American officials were obscured - See paragraphs 74 to 82.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - In March 2004, an official of the Department of Foreign Affairs and International Trade (DFAIT) interviewed the applicant, Khadr, at Guantánamo Bay - The official's report of the visit was included in a collection of documents reviewed by the Federal Court under s. 38 of the Canada Evidence Act - The version served on the applicant was almost entirely unredacted - The Attorney General (Can.) sought to protect a paragraph of the report on the ground that it contained information provided in confidence by the US military - Further, there was a side comment by the DFAIT official that the Attorney General wished to protect as potentially harmful to Canada-US relations - The Federal Court held that the public interest in disclosure of the information outweighed the public interest in non-disclosure - The information concerned a practice that was a breach of international human rights law, and was relevant to the applicant's complaints of mistreatment - The harm to Canada-US relations was minimized by the fact that the interrogation techniques were now a matter of public record - See paragraphs 85 to 89.

Practice - Topic 305

Parties - General - Undertakings - Duty of party respecting - [See Practice - Topic 3709 ].

Practice - Topic 680

Parties - Adding or substituting parties - Intervenors - General - In the context of a discretionary order regarding disclosure or non-disclosure, the Federal Court noted that rule 109 of the Federal Courts Rules permitted it to grant leave to a non-party to intervene in a proceeding, and that under rule 109(2)(b), a prospective intervener had to demonstrate that its participation would assist in the determination of a factual or legal issue related to the proceeding - In deciding whether to exercise its discretion to grant leave, the court first set out the factors to be considered - See paragraphs 31 to 32.

Practice - Topic 680.2

Parties - Adding or substituting parties - Intervenors - Delay or prejudice - [See second Practice - Topic 682 ].

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Interest in subject matter - Certain Canadian officials were directed to produce to the Federal Court unredacted copies of all information in their possession which might be relevant to charges which Khadr currently faced at the US military base at Guantánamo Bay - The Attorney General was opposed - CTV, Globe Media Publishing Inc., Toronto Star Newspapers and the CBC sought leave to argue about the public release of information to be disclosed - The proposed intervenors argued that there was a strong public interest in Khadr's case - The court reviewed its jurisprudence regarding the public interest, the role of the press and the open court principle, and emphasized the distinguishing features of this case - Specifically, that the proposed intervenors were not in possession of the information which the Attorney General wished to protect, but sought to have the court order the public release of any materials disclosed to Khadr - Nor was this a case in which the Attorney General had invoked s. 38 of the Canada Evidence Act in order to prevent the disclosure of information which the public, through the media, could otherwise obtain from another source - See paragraphs 33 to 36.

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Interest in subject matter - Several media organizations sought leave to intervene to argue about the public release of information to be disclosed to the applicant - The Federal Court stated that "[t]he media bring a valuable perspective to the Court's consideration of the application of section 2(b) of the Charter, the open court principle and the Dagenais/Mentuck test [public access to court proceedings be barred only where disclosure would subvert justice or unduly impair its administration]" - However, this was not a case where the interests of the applicant were identical with those of the proposed intervenors - The media's interest was not to help the applicant or to hinder him, but to give the public as much information as possible - Another concern was that the intervenors' motions were brought "at a very late stage" - Further, disclosure could be authorized subject to conditions, including restrictions on publication of the information where disclosure was injurious to international relations, national defence or national security - Additionally, exhibits remained the property of the party which filed them, while the courts had merely a custodial role to supervise their use - See paragraphs 31 to 46.

Practice - Topic 3560

Evidence - Exhibits - General - [See Civil Rights - Topic 2494 ].

Practice - Topic 3709

Evidence - Undertakings respecting - Information compelled by court order - In the context of a discretionary order regarding disclosure or non-disclosure, and where the criminal proceedings were taking place outside Canada, the Federal Court noted that "[a]s a matter of general practice, an implied undertaking attaches to information produced by one party to another in civil proceedings that the information will not be used for other purposes ... . The situation in criminal matters is not as clear ... . In Wagg, the Ontario Court of Appeal expressed the opinion that there should be an implied undertaking in criminal matters for disclosed information not filed as evidence. But that was in the context of criminal proceedings taking place in Canada" - The court noted that the applicant's counsel offered to provide an express undertaking, but that the offer was not taken up by the respondent's counsel - In the result, the court concluded that there would appear to be no restriction on the applicant's use of any information disclosed to him through these proceedings unless the court imposed conditions under s. 38.06 of the Canada Evidence Act - See paragraph 46.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - [See Practice - Topic 3709 ].

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. 5].

Brady v. Maryland (1963), 373 U.S. 83, refd to. [para. 30].

United States v. Dancy (1993), 38 M.J. 1 (CMA), refd to. [para. 30].

Canadian Airlines International Ltd. et al. v. Canadian Human Rights Commission et al., [2000] N.R. Uned. 16; 95 A.C.W.S.(3d) 249 (F.C.A.), refd to. [para. 32].

Khadr v. Canada (Attorney General) (2008), 329 F.T.R. 80; 2008 FC 549, consd. [para. 35].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 36].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, refd to. [para. 43].

Ottawa Citizen Group Inc. et al. v. Canada (Attorney General) et al. (2006), 306 F.T.R. 222; 2006 FC 1552, refd to. [para. 37].

Vickery v. Prothonotary, Supreme Court (N.S.), [1991] 1 S.C.R. 671; 124 N.R. 95; 104 N.S.R.(2d) 181; 283 A.P.R. 181, refd to. [para. 44].

Merck & Co. et al. v. Apotex Inc., [1996] 2 F.C. 223; 106 F.T.R. 114 (T.D.), refd to. [para. 46].

Jackson v. D.A. et al. (2005), 385 A.R. 292; 2005 ABQB 702, refd to. [para. 46].

D.P. v. Wagg (2004), 187 O.A.C. 26; 71 O.R.(3d) 229 (C.A.), refd to. [para. 46].

Ribic v. Canada (Attorney General) et al. (2003), 250 F.T.R. 161; 2003 FCT 10, affd. (2003), 320 N.R. 275; 2003 FCA 246, refd to. [para. 47].

Canada (Attorney General) v. Khawaja (2007), 312 F.T.R. 217; 2007 FC 490, revd. (2007), 370 N.R. 128; 2007 FCA 342, refd to. [para. 47].

R. v. Khan (N.M.) et al., [1996] 2 F.C. 316; 110 F.T.R. 81 (T.D.), refd to. [para. 53].

Jose Pereira E Hijos S.A. v. Canada (Attorney General) (2002), 299 N.R. 154; 2002 FCA 470, refd to. [para. 53].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 55].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 55].

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

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 55].

Singh (J.B.) v. Canada (Attorney General) (2000), 186 F.T.R. 1 (T.D.), refd to. [para. 56].

Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar et al. (2007), 316 F.T.R. 279; 2007 FC 766, refd to. [para. 59].

Public Committee against Torture in Israel v. Israel (1999), 38 I.L.M. 1471, refd to. [para. 87].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 38 [paras. 1, 47]; sect. 38.06 [para. 46].

Federal Courts Rules, 1998, rule 109 [para. 31]; rule 109(2)(b) [para. 32].

Counsel:

Nathan Whitling, for the applicant;

Linda Wall, Marie Crowley and R. MacKinnon, for the respondent;

Peter Jacobsen, for CTV, Globe Media Publishing Inc.;

Paul B. Schabas and Iris Fischer, for Toronto Star Newspapers and Canadian Broadcasting Corporation;

Brian Gover, amicus curiae.

Solicitors of Record:

Parlee McLaws, LLP, Edmonton, Alberta, for the applicant;

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

Bersenas Jacobsen Chouest, Toronto, Ontario, for the intervenor;

Blake, Cassels & Graydon, LLP, Toronto, Ontario, for the intervenor;

Stockwoods, LLP, Toronto, Ontario, amicus curiae.

This proceeding was heard in camera/ex parte at Ottawa, Ontario, on March 25, April 2, 3, 7, and 17, and May 27, 2008, and in public on June 12, 2008, before Mosley, J., of the Federal Court. The following public order and reasons of the court were delivered at Ottawa, Ontario, on June 25, 2008.