Date: 20050506
Docket: T-536-04
Citation: 2005 FC 632
Ottawa, Ontario, this 6th day of May, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
OMAR AHMED KHADR by his Next Friend FATMAH EL-SAMNAH
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1] Omar Khadr is a 17 year-old Canadian citizen who has been detained since 2002 by the US government as a result of his alleged involvement with Al-Qaeda forces in Afghanistan. He is currently being held at Camp Delta in Guantanamo Bay.
[2] During his detention, the Plaintiff submits that Omar Khadr has been regularly interrogated, has not been brought before an independent tribunal and has been denied access to consular officials, to counsel and to his family. It is submitted that he now faces proceedings before a military tribunal as a result of which he may be sentenced to death for events that occurred when he was 15 years old.
[3] The Plaintiff alleges that, on at least two occasions, Canadian government agents interviewed Omar Khadr in Guantanamo Bay and provided information obtained therefrom to US officials. It is argued that, in failing to advise him of his right to silence and his right to counsel, his rights under the Canadian Charter of Rights and Freedoms (the "Charter") were infringed.
[4] In the Statement of Claim the Plaintiff seeks:
a) a declaration that Omar Khadr's Charter Rights have been breached;
b) damages for $ 100,000.00; and
c) an injunction against further interrogation by Canadian government agents.
[5] The Plaintiff filed a notice of motion for an interim injunction on February 8, 2005 and on February 18, 2005, the Respondent filed affidavits by Serge Paquette and Willam Hooper. Cross-examinations on the affidavits took place March 2, 2005.
[6] William Hooper, Assistant Director of Operations for CSIS, deposed that CSIS interviewed Omar Khadr twice and the interviews were not conducted for Canadian law enforcement purposes. Mr. Hooper stated that he was involved in the decision to send CSIS staff to Guantanamo Bay to interview the Plaintiff but he did not conduct any of the interviews. He also said the identities of the interviewers could not be revealed.
[7] In response to questions regarding the use of CSIS interview policies, Mr. Hooper said he did not know if they were observed as he was not there. In answer to questions about future interviews, he responded the same way. Crown counsel said a deponent being cross-examined does not have to inform himself regarding matters not within his knowledge. Mr. Hooper also provided evidence that CSIS had passed interview notes to the US authorities. When asked to produce a copy of the reports, Crown counsel objected saying a deponent being cross-examined on his affidavit is not obligated to provide documents not referred to in his affidavit.
[8] Mr. Paquette, Director of Emergency Affairs in the Bureau of Consular Affairs, was put forward as a representative of the Department of Foreign Affairs and International Trade ("DFAIT"); however, he did not have any information. He deposed that he became involved in this file when he was being prepared to swear his affidavit. As a result, his knowledge base was limited to the information he was given by one Ms. Heatherington, Director of Foreign Intelligence, DFAIT, and a binder of documents he was asked to review prior to cross-examination. Mr. Paquette did not seek out information from a Mr. Gould who actually met with Mr. Khadr in Guantanamo Bay. Crown counsel objected to the Plaintiff's question as to why Mr. Paquette did not speak to Mr. Gould, saying the responses would reveal solicitor-client communications.
[9] The Plaintiff has now brought this motion to compel answers to undertakings given during cross-examination. The Hooper undertakings concern mostly what transpired during the interviews with Mr. Khadr while the Paquette undertakings touch on communications between Canadian officials and US authorities.
[10] The Plaintiff argues that a deponent being cross-examined on his affidavit has a duty to inform himself regarding matters which are within his knowledge or means of knowledge. He cites author W.A. Stevenson's Civil Procedure Encyclopaedia stating that when an affidavit contains statements based on information and belief, even if the rules are silent, the court has inherent jurisdiction to order the deponent to inform himself and seek information if it would not be unduly oppressive. He also cites numerous examples of case law in Ontario, Manitoba and Alberta which support a deponent informing himself.
[11] The Plaintiff further asserts in respect of jurisprudence emanating from this Court:
... [T]he authorities of other jurisdictions are consistent with respect to the issue addressed on this motion. Unfortunately however, a conflict in the authorities exists within the jurisprudence of this Court. The Plaintiff submits that the clear weight of this authority affirms the obligation of an affiant to inform himself as to matters relevant to the motion provided that the questions are not unduly oppressive.
[12] He sums up his argument as follows:
It is clear that there exists inconsistency in the existing decisions of this Court regarding the obligation of a deponent on cross-examination to inform himself as to matters within his power or control. However, the Plaintiff submits that the weight of authority clearly favours the view that a witness put forward by a large agency such as the government must inform himself as to matters relevant to the motion.
[13] Given that there is extensive jurisprudence from this Court on the issue of the duty to inform oneself when being cross-examined, I do not see that there is any need to refer to outside textbooks or to decisions of other courts. This is an interlocutory motion. The Plaintiff has the onus of establishing the elements requisite for success of his motion. The Respondent does not have to file any affidavit. Where, as in this case, he files affidavits, I do not see why there would be an obligation to inform himself further. To the extent that the Respondent refuses to do so, he will be restricted in his subsequent argument at the hearing of the motion from advancing any submissions based on facts that would have been disclosed if the undertakings had been honoured.
[14] In Ward v. Samson Cree Nation, [2001] F.C.J. No. 1383 (QL), Hugessen J., in the context of an interlocutory motion, succinctly summarized the law as follows:
3 It is quite clear from an examination of the transcript that no undertakings were in fact given. That is entirely normal since on a cross-examination on an affidavit there is no obligation on the part of the witness to be informed and thus no requirement that she further inform herself. If the witness cannot elucidate upon any of the facts deposed to that may go to her credibility but that is all. Even credibility is unlikely to be much affected where the question relates to the contents of ancient documents to which the witness was not a party and which most probably predate her lifetime by many years. Cross-examination on an affidavit is not a substitute for examination for discovery either oral or documentary and is not the proper method of obtaining relevant documents in the possession of the opposite party. Finally, it is clear that, the witness not being the legal representative of the party who has produced her, she cannot be made to state that party's position on any fact in issue. My views on the differences between examination for discovery and cross-examination on affidavits were fully stated as follows in Merck Frosst Canada Inc. v. Canada (Minister of Health), (1997) 146 F.T.R. 249 or (1997) 80 C.P.R (3d) 550.
It is well to start with some elementary principles. Cross-examination is not examination for discovery and differs from examination for discovery in several important respects. In particular:
a) the person examined is a witness not a party;
b) answers given are evidence not admissions;
c) absence of knowledge is an acceptable answer; the witness cannot be required to inform him or herself;
d) production of documents can only be required on the same basis as for any other witness i.e. if the witness has the custody or control of the document;
e) the rules of relevance are more limited.
[15] One must recall that we are also dealing with an interlocutory motion. Thus, Hugessen J.'s observations apply fully to this case. The Plaintiff will still have full discovery to obtain the facts for his main action.
[16] To paraphrase the Court of Appeal in Merck & Frosst Canada Inc v. Canada (Minister of Health and Welfare), [1994] F.C.J. No. 662 (QL) (which admittedly dealt with the Notice of Compliance Regulations and not an interlocutory motion), if the Plaintiff were allowed to succeed in this motion, he would in effect "be able to make his case out of the mouth of the respondent". This is precisely what the Plaintiff is attempting to do in this case, but I am not prepared to allow this to happen.
[17] Secondly, I entirely fail to see the relevance of the information sought to the motion brought by the Plaintiff. As I was informed by both sides in previous motions, the Plaintiff is in a US prison in Guantanamo Bay, Cuba. There are no charges outstanding against him in Canada, he is not wanted for anything in Canada and there is no investigation going on in Canada that implicates him, (or, if there is, the Defendant has not apprised the Court of same).
[18] He does not want to be interviewed or interrogated by Canadian security officers of whatever stripe, and he would like to receive consular services from DFAIT. He is asking this Court for a mandamus regarding consular services in a separate judicial review application (Court file T-686-04).
[19] The interim injunction that he is bringing in this action is meant to stop Canadian security agents from interrogating or interviewing him until his action for damages and a permanent injunction has been adjudicated upon.
[20] Since he is being held in a US prison, but the role of Canadian security officers is not clear, the issue of liability under the Charter needs to be litigated. However, whether he has a right to silence and a right not to be interviewed or interrogated by Canadian Security agents depends on his rights, not on any of the information that would be garnered if the Defendants are compelled to comply with the undertakings. Thus, the answers to the undertakings are simply not relevant to the motion for an interim injunction.
[21] For these reasons, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed. There will be no order as to costs as the issue was not raised by the Defendant.
"K. von Finckenstein"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-536-04
STYLE OF CAUSE: OMAR AHMED KHADR by his Next Friend FATMAH EL-SAMNAH
AND
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: April 27, 2005
REASONS FOR ORDER
AND ORDER : von FINCKENSTEIN J.
DATED: MAY 6, 2005
APPEARANCES:
Dennis Edney FOR PLAINTIFF
Nathan J. Whitling
Doreen Mueller FOR DEFENDANT
Robert Drummond
SOLICITORS OF RECORD:
Edney, Hattersley & Dolphin FOR PLAINTIFF
Edmonton, AB
Parlee McLaws LLP FOR PLAINTIFF
Edmonton, AB
John H. Sims, Q.C. FOR DEFENDANT
Deputy Attorney-General of Canada
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