Khadr v. Canada (Attorney General), (2008) 329 F.T.R. 80 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: April 29, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 329 F.T.R. 80 (FC);2008 FC 549

Khadr v. Can. (A.G.) (2008), 329 F.T.R. 80 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. JN.004

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

(DES-3-07; 2008 FC 549)

Indexed As: Khadr v. Canada (Attorney General)

Federal Court

Mosley, J.

April 29, 2008.

Summary:

The United States requested the extradition of Khadr from Canada to face criminal charges for acts he allegedly committed in Pakistan in support of attacks against coalition forces in Afghanistan. In this context, Khadr applied under s. 38.04 of the Canada Evidence Act for an order under s. 38.06 to have certain information in the possession of the Canadian government disclosed to him to assist in his defence against the extradition request. The Attorney General of Canada opposed release on the ground that disclosure would cause injury to Canada's national security and international relations.

The Federal Court decided to exercise its discretion to authorize disclosure of information relevant to the extradition proceedings in the form of a summary and subject to conditions intended to minimize any risk of injury to the protected interests. The summary would be released only to counsel for the parties and its use restricted to the extradition proceedings. The court authorized the disclosure of one piece of information that had already been released to a newspaper.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The United States sought to extradite Khadr from Canada - Khadr applied under s. 38.04 of the Canada Evidence Act (CEA) to have disclosed certain information in the possession of the Canadian government - The Attorney General of Canada opposed release on national security grounds - A document containing some of the information had been inadvertently disclosed to a newspaper, but the paper was holding the information pending determination of the s. 38.04 proceedings - The Federal Court, applying a three stage analysis, held that the information sought to be protected was relevant to the underlying extradition proceeding (step 1) and with respect to most of the information, the Attorney General had established that disclosure would be injurious to international relations, national defence or national security (step 2) - With respect to the balancing of the public interest (step 3), the court held that the interest in disclosure outweighed that of non-disclosure - The court exercised its discretion pursuant to s. 38.06(2) of the CEA to authorize disclosure of the relevant information in the form of a summary to be used solely for the purposes of the extradition hearings - The court authorized the unconditional disclosure of the information in the hands of the newspaper, having found that release of this particular information, relating to payment of a bounty by the United States for Khadr's capture in Pakistan, would not be injurious to Canada's interests - See paragraphs 1 to 122.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Section 38.04 of the Canada Evidence Act (CEA) set out a procedure for obtaining an order regarding disclosure of sensitive or potentially injurious information (i.e., information relating to or which could injure international relations, national defence or national security) - The Federal Court stated that a s. 38.04 application was not a judicial review of a decision by the Attorney General not to authorize disclosure - Instead, the designated judge had to make a determination as to whether the statutory ban on releasing the information sought to be protected, as outlined in s. 38.02(1), ought to be confirmed or not - In coming to that decision, the judge had to assess the information in three steps - First, the judge had to determine whether the information sought to be protected was relevant to the underlying proceeding - The court noted that in the context of an extradition proceeding, the test of relevance for disclosure of information was the same as for a criminal trial, i.e., whether the information was reasonably useful to the defence - Secondly, once relevance was established, the judge had to determine whether disclosure would be injurious to international relations, national defence or national security, as outlined in s. 38.06 of the CEA - The party seeking the prohibition on disclosure, normally the Attorney General, had the onus of establishing through evidence a factual basis to the allegations of probable injury on a reasonableness standard - Thirdly, once the Attorney General established potential injury, the judge had to determine whether the public interest in disclosure was outweighed by the public interest in non-disclosure, with the factors to be considered varying from case to case - The court opined that, in the s. 38 context, this three-step assessment should be applied even where information had been inadvertently disclosed - See paragraphs 26 to 48.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Section 38.04 of the Canada Evidence Act (CEA) set out a procedure for obtaining an order regarding disclosure of sensitive or potentially injurious information (i.e., information relating to or which could injure international relations, national defence or national security) - The Federal Court held that on a s. 38.04 application, the designated judge had to assess the information in three steps, the last of which being whether the public interest in disclosure was outweighed by the public interest in non-disclosure - The public interest aspect was broad enough to include, inter alia, the freedom of the press - The court noted that freedom of the press was engaged in the case at bar (i.e., an extradition proceeding), because there had been inadvertent disclosure of one of the items of information in issue to a newspaper (which was withholding publication pending the s. 38.04 proceedings) - The court stated that in taking into account the freedom of the press issue, the court would have to be satisfied that the risk of injury from further disclosure of the information which the newspaper possessed was real, substantial and well grounded in the evidence - See paragraphs 43 to 48.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The United States sought to extradite Khadr from Canada - Khadr applied under s. 38.04 of the Canada Evidence Act to have certain information in the possession of the Canadian government disclosed - The Attorney General of Canada opposed release on the ground that disclosure would cause injury to Canada's national security and international relations - The Attorney General relied on the "mosaic effect" theory to establish injury (i.e., in the hands of the informed reader, seemingly unrelated pieces of information which might not in and of themselves be particularly sensitive, could be used to develop a more comprehensive picture when compared with information already known by the recipient or available from another source) - Therefore, the court was urged to conclude that the assessment of the damage to national security could not be made looking at each item of information in isolation - The Federal Court (Mosley, J.) stated that while, as a matter of logic, the mosiac concept had some appeal, carried to its extreme the theory would justify the withholding of all information no matter how innocuous - Mosley, J., noted that he had previously expressed the view the mosaic effect on its own would not usually provide sufficient reason to prevent disclosure of what would otherwise appear to be an innocuous piece of information and that further evidence would be required to convince the court that the information, if disclosed, would be injurious - There had to be some basis or reality for such a claim based on the particulars of a given file - See paragraphs 73 to 77.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The United States sought to extradite Khadr - Khadr applied under s. 38.04 of the Canada Evidence Act to have disclosed certain information in the possession of the Canadian government - The Attorney General of Canada opposed release on national security grounds, arguing that information pertaining to past national security investigations (i.e., by the RCMP and CSIS) had to be protected from public disclosure - Khadr argued that such information should never be protected - The Attorney General disputed that contention, arguing that in the national security context, investigations did not often reach a tidy conclusion - Information obtained was added to the body of intelligence collected about known or suspected threats and could assist in other related or unrelated investigations - The question to be addressed by the court in these proceedings was not whether the information pertained to an ongoing or completed investigation but whether disclosure would cause injury to the protected interests - The Federal Court agreed with the Attorney General's view of this question - The court added that it was satisfied that in the case at bar there could be no clear distinction made between past and on-going investigations - Moreover, disclosure of the status of any possibly inactive investigation conducted by the RCMP or CSIS that could be revealed by the redacted information could cause injury to the protected national security interests - See paragraphs 80 to 85.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The United States requested the extradition of Khadr, a Canadian citizen, to face criminal charges for acts he allegedly committed in Pakistan in support of attacks against coalition forces in Afghanistan - Khadr applied under s. 38.04 of the Canada Evidence Act for an order under s. 38.06 to have certain information in the possession of the Canadian government disclosed to him to help defend the extradition request (i.e., in support of his claims that he was tortured in Pakistan) - The Attorney General of Canada opposed release on national security grounds - Khadr submitted that the policy underlying s. 38.06 of the CEA was not to prevent the exposure of a government to embarrassment for wrongdoing - The Federal Court opined that if, based on the court's examination of the evidence, protecting a government from embarrassment or exposure, was the sole or genuine reason the Attorney General sought to withhold information, the information would have to be disclosed - However, in the present case, the court did not find that the Attorney General sought to maintain the statutory prohibition on the redacted information merely because its disclosure would embarrass any foreign government or that of Canada - That might be a consequence of the release of certain information but it was not the "genuine purpose" of the Attorney General's opposition to disclosure in this case - Each claim for protection was legitimately based on other grounds - See paragraphs 86 to 90.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The United States requested the extradition of Khadr, a Canadian citizen, to face criminal charges for acts he allegedly committed in Pakistan in support of attacks against coalition forces in Afghanistan - Khadr applied under s. 38.04 of the Canada Evidence Act for an order under s. 38.06 to have certain information in the possession of the Canadian government disclosed to him to help defend the extradition request (i.e., in support of his claims that certain statements made by him were as a result of torture in Pakistan) - The Attorney General of Canada opposed release on national security grounds - The Attorney General maintained that release of the information would breach the so-called "third party rule" which attached to confidential communications between governments, their departments and agencies and officials - The Federal Court accepted that, with respect to most of the information at issue in these proceedings, the Attorney General had satisfied the burden of establishing that disclosure of the information which the court found to be relevant would cause injury to Canada's national security and international relations by breaching the third-party rule - Therefore, the next step was to consider whether, notwithstanding that finding, the public interest in disclosure outweighed the public interest in non-disclosure - See paragraphs 91 to 99.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The United States requested the extradition of Khadr, a Canadian citizen, to face criminal charges for acts he allegedly committed in Pakistan in support of attacks against coalition forces in Afghanistan - Khadr applied under s. 38.04 of the Canada Evidence Act for an order under s. 38.06 to have certain information in the possession of the Canadian government disclosed to him to help defend the extradition request - The Attorney General of Canada opposed release on national security grounds - A document containing some of the information had been inadvertently disclosed to a newspaper, but the paper was holding the information pending determination of the s. 38.04 proceedings - The information in question referred to the payment of a bounty of $500,000 US for Khadr's capture in Pakistan - The Federal Court determined that the information was relevant to the allegations against Khadr and the release would not cause harm to Canada's national security or international relations - It was now more than three years since the information was received by Canadian officials, the general practice was in the public domain, no human source would appear to be at risk and the circumstances in Pakistan had changed since these events took place - The court opined that even if it had concluded that the assertion of injury had been made out, it would have determined that the public interest in disclosure outweighed the public interest in non-disclosure of the information - The court concluded that the newspaper should be allowed to publish the information and inform the public in furtherance of the core values of freedom of expression and freedom of the press - The prohibition on disclosure of this information was, therefore, not confirmed - See paragraphs 100 to 118.

Cases Noticed:

United States of America v. Kwok (2001), 267 N.R. 310; 145 O.A.C. 36; 2001 SCC 18, refd to. [para. 11].

R. et al. v. Larosa (N.) (2002), 163 O.A.C. 108 (C.A.), refd to. [para. 11].

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. 26].

Canada (Attorney General) v. Khawaja (2007), 312 F.T.R. 217; 2007 FC 490, revd. in part (2007), 370 N.R. 128; 2007 FCA 342, refd to. [para. 26].

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. 26].

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. 28].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 29].

United States of America et al. v. Ferras (2006), 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 29].

United Kingdom (Secretary of State for the Home Department) v. Rehman, [2001] 3 W.L.R. 877; 281 N.R. 125 (H.L.), refd to. [para. 33].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 33].

Canada (Attorney General) v. Khawaja (2007), 371 N.R. 88; 2007 FCA 388, refd to. [para. 34].

Canada (Attorney General) v. Kempo (2004), 294 F.T.R. 1; 2004 FC 1678, refd to. [para. 36].

R. v. Khan (M.N.) et al., [1996] 2 F.C. 316; 110 F.T.R. 81 (T.D.), refd to. [para. 37].

Jose Pereira E Hijos, S.A. v. Canada (Attorney General) (2002), 299 N.R. 154; 2002 FCA 470, refd to. [para. 37].

Stevens v. Prime Minister (Can.), [1998] 4 F.C. 89; 228 N.R. 142 (F.C.A.), refd to. [para. 40].

Société Radio-Canada v. Lessard (juge), Québec (Procureur général) et autres, [1991] 3 S.C.R. 421; 130 N.R. 321; 43 Q.A.C. 161, refd to. [para. 44].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

Application Under Section 83.28 of the Criminal Code, Re (2004), 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 45].

R. v. Toronto Star Newspaper Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348; 2005 SCC 41, refd to. [para. 45].

Vancouver Sun et al. v. Canada (Attorney General) et al. (2007), 368 N.R. 112; 368 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 45].

Charkaoui, Re (2008), 316 F.T.R. 236; 2008 FC 61, refd to. [para. 45].

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. 47].

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. 47].

Ottawa Citizen Group Inc. et al. v. Canada (Attorney General) et al. (2006), 306 F.T.R. 222; 2006 FC 1552, refd to. [para. 47].

United States of America v. Anekwu (2008), 254 B.C.A.C. 30; 426 W.A.C. 30, refd to. [para. 54].

R. v. L.R.I. and E.T., [1993] 4 S.C.R. 504; 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48, refd to. [para. 63].

R. v. Chan (A.H.) et al. (2002), 307 A.R. 232; 2002 ABQB 287, refd to. [para. 81].

Blank v. Canada (Minister of Justice) (2006), 352 N.R. 201; 2006 SCC 39, refd to. [para. 83].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 38.04 [para. 2]; sect. 38.06 [para. 3].

International Covenant on Civil and Political Rights, principle 2(b) [para. 88].

Authors and Works Noticed:

Pozen, David E., The Mosaic Theory, National Security, and the Freedom of Information Act (2005), 115 Yale L.J. 629, generally [para. 74].

United Nations, Johannesburg Principles: National Security, Freedom of Expression and Access to Information (1996), U.N. Doc. E/CN.4/1996/39, generally [para. 88].

Wells, Christina E., CIA v. Sims: Mosaic Theory and Government Attitude (2006), 58 Admin. L. Rev. 845, generally [para. 74].

Counsel:

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

Robert MacKinnon and Marie Crowley, for the respondent;

Peter M. Jacobsen, for the Globe and Mail;

L. Shore, Q.C., amicus curiae.

Solicitors of Record:

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

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

Bersenas Jacobsen Chouest Thomson & Blackburn, Toronto, Ontario, for the Globe and Mail;

Shore Davis Hale, Ottawa, Ontario, amicus curaie.

This application was heard in Ottawa, Ontario, on January 23-25, 29-30, February 11-12, March 7 and 20, 2008 (ex parte/in camera) and on February 21-22, 2008 (in camera), by Mosley, J., of the Federal Court, who delivered the following decision on April 29, 2008.