Date: 20090216
Docket:
T-1477-08
Citation:
2009 FC 160
Ottawa, Ontario, February 16,
2009
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
MOHAMEDOU
OULD SLAHI
Applicant
and
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
T-1501-08
AND
BETWEEN:
Ahcene ZEMIRI
Applicant
and
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
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Mohamedou
Ould Slahi and Ahcene Zemiri (the Applicants), detainees in Guantanamo Bay,
Cuba, requested from the Respondents, by letter dated August 19, 2008, full and
complete disclosure of (i) all records in any form of the interviews conducted
by Canadian officials with the Applicants, and (ii) records of any information
given to U.S. authorities as a direct consequence of Canadian representatives
having interviewed the Applicants in Guantanamo Bay.
[2]
By
letters dated September 26, 2008, the Respondents notified the Applicants of
their refusal to comply with the requests for disclosure.
[3]
The
Applicants seek judicial review of the Respondents’ decision to refuse
disclosure and an Order pursuant to subsection 24(1) of the Canadian Charter
of Rights and Freedoms (the Charter) directing the Respondents to provide
the Applicants with full and complete disclosure of the above-mentioned
records; costs; and such further and other relief as the Court deems to be just
and appropriate.
II. Facts
General
[4]
By
reason of the similar circumstances and issues raised in the respective
applications filed by the Applicants, the applications were consolidated by
Order of Prothonotary Lafreniere dated December 2, 2008.
[5]
The
Applicants seek disclosure of relevant documents from the Respondents for the
purpose of assisting the Applicants in their habeas corpus petitions now
pending before the United States District Court for the District of
Columbia.
The Applicants rely on section 7 and subsection 24(1) of the Charter and the
decision of the Supreme Court of Canada in Canada (Justice) v. Khadr,
2008 SCC 28 in support of their application.
[6]
Neither
Applicant is a Canadian citizen. Both became persons of interest to Canadian
law enforcement and intelligence officials as a result of their activities within
Canada.
The Applicant Slahi
[7]
The
Applicant Slahi, born in December 1970, is a Mauritanian national. He has been
detained by the United States at Guantanamo Bay, Cuba, since August 4, 2002.
[8]
The
Applicant Slahi resided in Montréal between November 26,
1999
and January
21, 2000
after having been granted landed immigrant status. From September 2001, until
his eventual transfer to Guantanamo, Mr. Slahi had been in
custody in Mauritania, Jordan and Afghanistan at the request of the United
States.
On November 19, 2004, a Combatant Status Review Tribunal (CSRT) found that Mr.
Slahi “is properly classified as an enemy combatant and was part of or
supporting al Qaida forces and associated forces that are engaged in
hostilities against the United States or its coalition
partners.”
[9]
The
CSRT founded its decision on evidence that, “the detainee is a member of the
Taliban or al Qaida; the detainee admitted that he traveled to Afghanistan to
wage Jihad; the detainee stated that his goal was to become a martyr by dying
for Islam; the detainee trained at the (omitted) camp in Afghanistan
where he took the alias of Abu Masab; and the detainee received training on the
Kalashnikov, Seminov, UZI, M-16, Makarov Pistol and RPGs while at the (omitted)
camp.”
[10]
Mr.
Slahi alleges that he was visited by officials from both the Canadian Security
Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP) on at
least two and possibly more occasions in 2003 and 2004, and that the subject
matters of those interviews included matters relevant to the issues raised in his
pending habeas corpus petition.
[11]
On
March 18, 2005, Mr. Slahi filed a Petition for Writ of Habeas Corpus
with the United States District Court for the District of Columbia wherein he
claims 17 grounds of relief based on, among others, denial of due process,
torture and cruel or inhuman treatment. The Applicant’s detention is now
subject to review by an Administrative Review Board (ARB).
The Applicant
Mr. Zemiri
[12]
Mr.
Zemiri was born in Algeria on September 8,
1967,
and is an Algerian citizen. He has been detained by the United
States
at Guantanamo
Bay,
Cuba, since early
2002.
[13]
The
Applicant Mr. Zemiri was a resident of Canada from 1994 to
June 2001. He does not nor did he have permanent resident status. Mr. Zemiri
met his wife in Canada. She and Mr. Zemiri’s son presently reside in Canada. It is suggested
that the most serious allegations raised against Mr. Zemiri, as the basis
for his detention in Guantanamo, arise from his alleged
activities in Canada. More specifically,
it is alleged that while in Canada, Mr. Zemiri provided $1,000 and a camera
to one Ahmed Ressam, later convicted as a perpetrator of the “Millenium Plot”
bombing conspiracy.
[14]
After
the arrest of Mr. Ressam, Mr. Zemiri claims that he was interrogated by
Canadian intelligence and law enforcement officials in Montréal. The Applicant
Zemiri believes that the matters raised during these interviews now form the
basis for Mr. Zemiri’s detention in Guantanamo. Therefore, Mr. Zemiri
believes that the materials arising from these interviews were shared with the United
States.
He is demanding disclosure of the materials pertaining to these interviews on
Canadian soil.
[15]
Mr.
Zemiri moved to Afghanistan with his wife in June 2001, but fled
shortly after the war in Afghanistan began in October of
2001. He was captured by the Northern Alliance Forces and was transferred to U.S. custody in
exchange for a bounty in December 2001. He was imprisoned in Afghanistan until his
transfer to Guantanamo in April or
May 2002.
[16]
Mr.
Zemiri alleges that he was visited at Guantanamo Bay by officials from
both the CSIS and the RCMP on one or more occasions in 2003 and 2004 for the
purpose of conducting interviews.
[17]
On
November
17, 2004,
Mr. Zemiri filed a Petition for Writ of Habeas Corpus in the United
States District Court for the District of Columbia. The Applicant Zemiri
claims thirteen grounds of relief in his petition including denial of due
process, illegality of detention, and torture.
[18]
On
November 22, 2004, the CSRT reviewed Mr. Zemiri’s detention and held that he is
properly classified as an enemy combatant. The evidence relied upon for its decision
indicates, among other things, that the Applicant: “travelled to Canada on a
false French passport; travelled to Afghanistan with a stolen passport, which
was found in the possession of an al Qaida facilitator; carried a weapon in
Afghanistan; was an active member of a network supporting subversion in
Algeria; knew Algerian al Qaida members in Kabul, Afghanistan; associated with
Islamic extremists; associated with at least three persons whom he considers to
be terrorists; is a personal friend of, and provided financing and equipment
to, the terrorist arrested at the United States/Canadian border while
attempting a terrorist attack in the United States; and was planning to
participate in jihad in Algeria.” The Applicant’s detention is also subject to
review by an ARB.
Reasons for
the request
[19]
Both
Applicants seek disclosure in aid of their ongoing habeas corpus
petitions in the United States. Both allege they were subjected to
torture and other cruel and unusual treatment while detained in Guantanamo. These
allegations are supported, in this proceeding, by the respective affidavits of
counsel representing the Applicants in their habeas corpus applications.
Only Mr. Slahi’s counsel qualifies her evidence as being based on opinion
and belief. At issue in the habeas corpus proceedings, among other things,
is whether the evidence relied upon by the CSRT and ARB is the product of torture
and/or cruel and unusual treatment or punishment. The Applicants seek
disclosure of any Canadian material in order to corroborate the occurrence of
this abuse.
[20]
The
Applicants contend that at the time of their interrogations by Canadian
officials, the official policy of the United States government was to
require that the information elicited during interviews in Guantanamo by
foreign officials be shared with the United States. It is alleged that the
interviews would have been videotaped with hidden cameras. The evidence adduced
in support of the Applicants’ contention has not been contradicted.
[21]
Based
on the evidence before me, I am satisfied, in the case of both Applicants, that
interviews were conducted in Guantanamo Bay by Canadian officials and
information was passed on by these officials to U.S. authorities as alleged by
the Applicants. This is not disputed by the parties.
III. Impugned Decision
[22]
Both
letters refusing the Applicants’ demands for disclosure were written by the
Senior General Counsel for the Department of Justice Canada and are
nearly identical. The letters read as follows:
In response to your letter of August
13[/19], 2008, I have been instructed by officials from Foreign Affairs Canada,
the Canadian Security Intelligence Service and the Royal Canadian Mounted
Police to advise you that, based on the rationale below and after considering
the circumstances as disclosed in your letter, your demand for disclosure is
refused.
It is noted that disclosure has been
demanded within the context of habeas corpus proceedings before the U.S.
District Court for the District
of Columbia.
You rely on the decision of the Supreme Court of Canada in Canada (Justice) v. Khadr, 2008 SCC 28 in support of
the demand.
It is further noted that your client’s
circumstances, as set out in your August 13[/19] letter, differ from those
considered by the court in reaching its decision in Khadr. For example,
unlike the situation faced by Mr. Khadr, the habeas corpus proceeding
that your client is currently involved in is a process before an established
civilian court with recognized due process protections. Any information you
require to advance your client’s case should be sought through the relevant
disclosure process in the American proceedings. Furthermore, the proceedings
involving your client are not prosecutorial in nature. Finally, the decision
in Khadr was determined in the context of a Canadian citizen
(Applicant’s Application Record, pg.10).
[23]
Thus,
the refusal to disclose is based on the fact that Khadr is inapplicable
to the Applicants’ demands for the following three reasons:
(1)
the
Applicants seek disclosure for the purposes of their U.S. habeas
corpus proceedings rather than criminal prosecutions;
(2)
the
habeas corpus proceedings are pending before U.S. federal
courts with well-established procedures, including those pertaining to the
discovery of documents; and
(3)
the
Applicants are not Canadian citizens
IV. Issues
[24]
The
Applicants raise the following issues:
(1)
Are the Applicants’ claims for relief defeated by the fact that they
have not been charged with any offence and are merely seeking disclosure for
the purposes of “non-prosecutorial” habeas corpus applications?
(2)
Are the Applicants’ claims for relief defeated by the fact that their habeas
corpus proceedings in the U.S. are governed by well-established rules and
procedures, including rules pertaining to discovery?
(3) May
the Applicants’ claim relief under section 7 and subsection 24(1) of the Charter
notwithstanding the fact that they are not Canadian citizens?
An additional issue is raised by the
circumstances particular to the Applicant Zemiri. He was also interviewed by
Canadian officials in Canada, prior to his detention in Guantanamo:
(4)
Does the Applicant, Mr. Zemiri, have the right to disclosure of
information arising from interviews conducted in Canada?
V. Standard
of Review
[25]
The
first, third, and fourth questions involve the interpretation of the scope of
the Charter. Such constitutional questions are questions of law and are subject
to review on a standard of correctness. Dunsmuir v. New Brunswick, 2008 SCC 9,
at paragraph 58.
[26]
The
second question is one of procedural fairness and/or abuse of process. Procedural
fairness and process issues are at the heart of the administration of justice. Decisions
which are based on an unfair process cannot stand. Dunsmuir, at
paragraph 60; Ali v. Canada (Minister of Citizenship and
Immigration), 2007 FC 283, at paragraph 18.
VI. Analysis
[27]
In
Khadr, the Supreme Court held that to the extent that Canadian officials
were involved in a foreign process that violated Canada’s
international law obligations, the Charter found application. The foreign
process at issue in Khadr was the one in place at Guantanamo Bay at the
time of the interviews of Mr. Khadr in 2002, namely the process prescribed by
Military Commission Order No.1. The United States Supreme Court, in two
separate decisions, held that detainees in Guantanamo Bay had
illegally been denied access to habeas corpus and that the procedures
under which they were to be prosecuted violated the Geneva Conventions. The
Supreme Court of Canada found those holdings to be based on principles
consistent with the Charter and Canada’s international law obligations and held
that Canada’s participation
in the Guantanamo process in the years covered by the U.S. decisions
violated international human rights obligations to which Canada subscribed.
The Court found Mr. Khadr’s present and future liberty interests to be at stake
by virtue of this participation. As a result, the principles of sovereignty and
judicial comity did not preclude a finding that section 7 of the Charter
imposed a duty on Canada to disclose materials in its possession arising
from its participation in the impugned process.
[28]
The
Applicants seek the same remedy before this Court. The underlying circumstances
here are essentially the same as they were for Mr. Khadr; they were detained in
Guantanamo Bay (in early 2002 in the case of Mr. Slahi and on August 4, 2002 in
the case of Mr. Zemiri) and the interviews at issue were conducted by Canadian
officials in Guantanamo Bay during the time the regime established under
Military Commission Order No.1, issued on March 21, 2002, governed.
[29]
Determination
as to whether the Applicants are entitled to the Charter remedy they claim requires
that one first ask whether the Charter applies, and second whether the Applicants
can assert a section 7 Charter right in the circumstances.
Does the Charter Apply?
[30]
Subsection
32(1) of the Charter provides:
|
32(1) This Charter applies:
a) to the Parliament and government of
Canada in respect of all matters within the authority of Parliament including
all matters relating to the Yukon Territory and Northwest Territories; and
b) to the legislature and government of
each province in respect of all matters within the authority of the
legislature of each province.
|
32(1) La
présente charte s'applique :
a) au Parlement et au
gouvernement du Canada, pour tous les domaines relevant du Parlement, y
compris ceux qui concernent le territoire du Yukon et les territoires du Nord-Ouest;
b) à la législature et au gouvernement de chaque province, pour
tous les domaines relevant de cette législature.
|
[31]
The
leading authority on the subject of the extra-territorial application of the
Charter is the Supreme Court decision in R.v. Hape, 2007 SCC 26,
[2007] 2 S.C.R. 292,. Mr. Justice LeBel, writing for the majority stated, at
paragraph 93, that the extraterritorial implications of applying the Charter
are central to whether the activity in question falls under subsection 32(1) in
the first place. He expressed the view that, “[t]he inquiry begins and ends
with subsection 32(1) of the Charter.” In Hape it was decided that the
Charter does not generally apply to extraterritorial searches and seizures by
Canadian police officers, as long as Canadian officials comply with foreign
domestic law. The Court left open the possibility that the Charter could find
application to such activities where Canada’s participation in the foreign
process brings Canada into violation of its obligations under
international law.
[32]
It
was precisely this situation which came to the Supreme Court in Khadr.
It was found that the process in place in Guantanamo at the time
of the impugned interviews satisfied the Hape exception and justified
the lifting of comity. As stated earlier, but for their citizenship, the
circumstances under which the Applicants were interviewed in Guantanamo Bay were
essentially the same as in Khadr.
[33]
The
Respondents argue that the process at issue here, the habeas corpus
proceeding before the United States District Court for the District of
Columbia, is not a process that violates Canada’s
international law obligations and, as a result, the principles of sovereignty and
judicial comity preclude the application of the Charter. I do not find this
argument persuasive. The offending process here is the same as that which
concerned the Supreme Court in Khadr, namely the regime set up under the
Military Commission Order No. 1 which was in place at the time of the impugned
interviews of the Applicants, and which was found to violate Canada’s
international law obligations. It does not matter that the habeas corpus
and the CSRT proceedings have not been found to violate Canada’s
international human rights obligations. Neither had the Military Commissions
Act Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006) (MCA) procedures
under which Mr. Khadr was charged at the time his case was considered by the
Supreme Court.
[34]
The
Respondents also argue that, even if the Charter applies, the principles of
fundamental justice are not offended by this habeas corpus procedure in
the U.S. as they
might be in a criminal trial. I am also not persuaded by this argument. While
the Supreme Court in Khadr did note Mr. Khadr’s charges, they did not require
a Stinchcombe like disclosure, but rather disclosure of a different
scope based on the engagement of Mr. Khadr’s section 7 right to liberty as
a result of Canada’s
participation in the impugned process. The Supreme Court did not preclude the
application of the Charter, in such circumstances, to another process which
would engage one’s liberty interest. It is my belief that one’s liberty
interest is also at stake in the U.S. habeas corpus
proceeding. This disposes of the first issue raised by the Applicants.
[35]
The
second issue questions whether the Applicants can access a remedy in the U.S. proceeding.
At paragraph 36 of its reasons in Khadr, the Supreme Court stated “Whether
or not [Mr. Khadr] is given similar disclosure by U.S. officials, he is
entitled to a remedy for the Canadian Government’s failure to provide
disclosure to him after having given U.S. authorities access to the product of
the interviews, in circumstances that engaged section 7 of the Charter.” In my
view, this statement effectively disposes of the second issue raised by the
Applicants.
[36]
Based
on Khadr, it follows that the Charter would apply to the Canadian
officers participating in the interviews of the Applicants in Guantanamo Bay, since they
too were involved in a process that violates Canada’s
international law obligation.
[37]
The
remaining two issues concern the scope of the Charter’s section 7
extraterritorial reach. For the reasons that follow, I am of the view that the
Applicants cannot assert a section 7 right in the circumstances.
[38]
Apart
from the fact that the Applicant, Mr. Zemiri was also interviewed in Canada,
the material circumstances in the instant case are essentially identical to
those found in Khadr, except for one important element. Unlike Mr.
Khadr, the Applicants are not Canadian citizens. This application will
therefore essentially turn on whether the Applicants, as non-Canadians, can
assert section 7 Charter rights in these circumstances.
Is section 7 of the
Charter Engaged?
[39]
Section
7 of the Charter provides:
|
Everyone has the right to life, liberty
and security of the person and he right not to be deprived thereof except in
accordance with the principles of fundamental justice.
|
Chacun a droit
à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté
atteinte à ce droit qu'en conformité avec les principes de justice
fondamentale.
|
[40]
The
framers of the Charter limited the applicability of sections 3, 6 and 23 to “citizens”.
The plain language of the Charter does not so restrict the benefits of section
7; they are extended to “everyone”. Consequently, we must determine whether the
term “everyone” is broad enough to include the Applicants in this case.
[41]
The
earliest pronouncement by the Supreme Court on the above issue was in the case
of Singh v. Minister of Employment and Immigration, [1985] 1
S.C.R. 177, where Madam Justice Wilson was asked to determine whether refugee
claimants, physically present in Canada, are entitled to the protection of section
7. She accepted that the term “everyone” “includes
every human being who is physically present in Canada
and by virtue of such presence amenable to Canadian law” (Singh,
supra, at paragraph 35). [My emphasis.]
[42]
In
R. v. A, [1990] 1 S.C.R. 995 at paragraph 6, the Supreme Court held, in
the “unique and special facts” of the case, a Charter remedy under section 24
was available to Canadian citizens who found themselves outside Canada when the
Application was brought. In this case the Court noted that the Applicants, subject
to a subpoena to testify in a Canadian trial, left Canada upon certain
assurances given by the RCMP while they were in Canada. This
warranted the application of the Charter.
[43]
The
question was later considered in R. v.Cook [1998] 2 S.C.R. 597, at
paragraph 86, in the context of subsection 10(b). The majority found the
Charter to apply to an American citizen, interrogated in the U.S. by Canadian
officials for the purposes of the claimant’s trial which was to be held in Canada. Madam
Justice L’Heureux-Dube, in her dissenting reasons expressed concerns respecting
the ramifications of the majority decision respecting the applicability of
provisions, such as section 10 of the Charter, to persons outside Canada who are not
Canadian citizens:
For the appellant to allege that while he
was in jail in Louisiana, his s. 10(b) rights
were violated, he must first show that he held s. 10(b) rights
under the Canadian constitution. This requires an examination of the language
of the Charter guarantees and an interpretation of the purposes of the
rights in the Canadian constitution. Certain Charter rights are
guaranteed to citizens of Canada (ss. 3, 6, and 23). Other
rights and freedoms in the Charter are held by “everyone” (ss. 2, 7, 8,
9, 10, 12), “any person charged with an offence” (s. 11), or “every individual”
(s. 15). The appellant is claiming rights under s. 10(b), which guarantees its
protections to “everyone”. The term “everyone” seems quite broad. Nevertheless,
interpreting it must take into account the purposes of the Charter. I am
not convinced that passage of the Charter necessarily gave rights to
everyone in the world, of every nationality, wherever they may be, even if
certain rights contain the word “everyone”. Rather, I think that it is arguable
that “everyone” was used to distinguish the rights granted to everyone on the territory of Canada from those granted
only to citizens of Canada and those granted to persons
charged with an offence.
[44]
The
majority in Cook did not address the concerns expressed by Madam Justice
L’Heureux-Dubé in her dissent. However, in Hape, Mr. Justice LeBel,
writing for the majority, noted Madam Justice L. L’Heureux-Dubé’s dissent in Cook.
[45]
The
most recent chapter on the extraterritorial application of the Charter was
written in Khadr. In that case, “everyone” was held to include a Canadian
citizen whose liberty was at stake by virtue of Canadian participation in a
process which violated its international human rights obligations. In its
reasons, the Supreme Court noted several times that Mr. Khadr was a Canadian
citizen. Perhaps the most compelling of these passages is at paragraph 13
where the Supreme Court stated:
To the extent
that Canadian officials operating abroad are bound by s. 7 of the Charter, as
we have earlier concluded was the case in this appeal, they are bound by the
principles of fundamental justice in an analogous way. Where, as in this case,
an individual's s. 7 right to liberty is engaged by Canada's participation in a
foreign process that is contrary to Canada's international human rights
obligations, s. 7 of the Charter imposes a duty on Canada to provide disclosure
to the individual. Thus, s. 7 imposes a duty on Canada to provide disclosure of materials in its possession arising from
its participation in the foreign process that is contrary to international law
and jeopardizes the liberty of a Canadian citizen. [My emphasis.]
[46]
The
focus on citizenship is not new. In an earlier decision of the Supreme Court, Mr. Justice La Forest, in R.
v. Harrer [1995] 3 S.C.R. 562, also focused on the importance of
Canadian citizenship. He stated at paragraph 11:
…It strikes me that the automatic
exclusion of Charter application outside Canada might unduly restrict the protection Canadians
have a right to expect against the interference with their rights by our
governments or their agents. [My emphasis.]
[47]
In
summary, the jurisprudence of the Supreme Court teaches that section 7 Charter
protections may be available to non-Canadians when they are physically present
in Canada or subject
to a criminal trial in Canada, and that Canadian citizens, in certain
circumstances, may assert their section 7 Charter rights when they are outside Canada. In the
latter case, it is generally recognized that this will happen only in
exceptional circumstances. What emerges from the noted jurisprudence is that,
in the three cases of Canadian nationals claiming abroad, non-Canadians
claiming within Canada, and non-Canadians claiming abroad, for section 7
Charter rights to apply, the circumstances must connect the claimant with
Canada, whether it be by virtue of their presence in Canada, a criminal trial
in Canada, or Canadian citizenship.
[48]
The
Applicants here have failed to establish a nexus to Canada that would
engage their section 7 Charter rights as they relate to the Guantanamo Bay
interviews. It must be remembered that the Charter, an integral part of Canada’s supreme
law, is a Canadian instrument enacted to enshrine and protect the fundamental
rights of Canadians and those finding themselves within Canada’s territory.
Its extraterritorial reach is exceptional and limited, as is mandated by
respect for the principles of sovereignty and judicial comity. This Court is
not prepared to extend the Charter’s reach beyond that which has already been
decided. The Applicants are not Canadian citizens. They have failed to
establish the required connection to Canada. Consequently, their
circumstances cannot engage a section 7 Charter right.
[49]
Finally,
I will address the fourth issue raised concerning whether the Applicant Mr.
Zemiri, has the right to disclosure of information arising from interviews conducted
in Canada by Canadian
officials. There is scant evidence, or argument, regarding this issue.
[50]
There
is no question that had the Applicant Mr. Zemiri been involved in a criminal
proceeding in Canada, the Charter
would apply and he would be entitled to Stinchcombe like disclosure. The
proceeding to which the Applicant Mr. Zemiri is subjected is not a Canadian
proceeding but rather the habeas corpus proceeding in the U.S. related
to his detention in Guantanamo Bay.
[51]
As
stated in Hape, the Charter finds extraterritorial application only in
circumstances where Canadian state actors are involved in a foreign process
that violates Canada’s
international law obligations, or on consent of the host state. There is no evidence
before me to support a finding that Canadian state actors conducting the
interview of Mr. Zemiri in Montréal were participating in the impugned process
in Guantanamo
Bay.
[52]
Even
if the information obtained from the Canadian interviews led to Mr. Zemiri’s
detention in Guantanamo Bay, as
alleged, without evidence of Canada’s participation in that process, the
Charter finds no application and Canada has no say in what the U.S. chooses to
do with the information. Since it cannot be said that Canada participated
in a process contrary to its international law obligation and there being no
question of consent in the instant case, comity must be respected.
[53]
As
noted above, there is a paucity of evidence on this issue. Such a significant question
should not be decided without the benefit of full argument and a complete
evidentiary record.
VII. Conclusion
[54]
For
the above reasons, the applications will be dismissed.
VII. Costs
[55]
The
nature of the question before the Court is one of importance which, in my view,
transcends the interests of the Applicants. It is therefore appropriate, in
view of the uncertain state of the law on the question of the extraterritorial
application of the Charter to non-Canadians, that no costs be awarded in this
instance.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
applications are dismissed without costs.
“Edmond P. Blanchard”
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