Date: 20080625
Docket: DES-1-08
Citation: 2008
FC 807
Ottawa, Ontario, June 25, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
OMAR KHADR
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
PUBLIC REASONS FOR ORDER AND ORDER
[1]
On May 23, 2008 the
Supreme Court of Canada directed the Minister of Justice and the Attorney
General of Canada, the Minister of Foreign Affairs and International Trade, the
Director of the Canadian Security Intelligence Service and the Commissioner of
the Royal Canadian Mounted Police to produce to a “judge”, as defined in
section 38 of the Canada Evidence Act R.S.C. 1985, c. C-5, s. 38 (the
“Act”), unredacted copies of all documents, records and other materials in
their possession which might be relevant to charges which the applicant, Mr.
Omar Khadr, currently faces at the United States military base at Guantánamo Bay, Cuba.
[2]
A “judge” as defined
in section 38 of the Act is the Chief Justice of the Federal Court or a judge
of the Federal Court designated by the Chief Justice to conduct hearings under
section 38.04 of the Act.
[3]
The Supreme Court directed
the judge to whom the materials were produced to consider any privilege or
public interest immunity claim raised, including any claim under section 38 and
following, and to make an order for disclosure in accordance with the Court’s reasons
for judgment: Canada (Minister of Justice et al.) v. Khadr, 2008 SCC 28.
Procedural
History
[4]
The Supreme Court had
before it an appeal from a judgment of the Federal Court of Appeal issued on
May 10, 2007 and amended on June 19, 2007: Khadr v. Canada (Minister of Justice), 2007 FCA 182, [2007] F.C.J. No.
672. In that decision, the Federal Court of Appeal found that Mr. Khadr was
entitled, under section 7 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, being Schedule B to the Canada
Act 1982 (U.K.) 1982, c.11, to the disclosure of all materials relevant to
the US proceedings that were in the possession of the respondents. The Supreme
Court dismissed the government’s appeal from that finding but varied the order
with respect to the scope of the disclosure to which Mr. Khadr was entitled.
[5]
In its reasons, the Court
of Appeal invoked the right of an accused in Canada to the disclosure of all relevant
and non-privileged information in the possession of the prosecution, whether
inculpatory or exculpatory, as recognized by the decision of the Supreme Court
in R. v. Stinchcombe, [1991] 3 S.C.R. 26. This was made subject to a
determination of any public interest immunity claims that might be raised by
the Attorney General of Canada under the procedure set out in section 38 of the
Act.
[6]
The Court of Appeal’s
order would have encompassed any relevant materials obtained by Canada from the US authorities. The appellants challenged
the order on the ground that Mr. Khadr’s section 7 Charter rights did
not extend to the production of information for the purpose of disclosure in a
foreign criminal proceeding.
[7]
The Supreme Court
held that the Charter bound Canada to the extent that Canadian officials
were involved in a foreign process that violated Canada’s
international law obligations. The United States Supreme Court had determined
that detainees at Guantánamo were illegally denied access to habeas corpus
and that the procedures under which they were to be prosecuted violated the
1949 Geneva Conventions. In light of this holding by the foreign
court with ultimate jurisdiction over the criminal proceedings, principles of sovereignty
and judicial comity did not preclude a finding that section 7 of the Charter
imposed a duty on Canada to provide disclosure of materials in
its possession arising from its participation in the illegal process.
[8]
The Federal Court of
Appeal’s judgment had been stayed pending the outcome of the appeal to the
Supreme Court. On January 23, 2008, in the context of a motion to continue the
stay, Chief Justice Beverley McLachlin directed that the
section 38 proceedings continue, as stipulated by the Court of Appeal, subject
to the proviso that no disclosure be made without further order of the Supreme
Court.
[9]
In a Notice of
Application filed on January
24, 2008 the applicant sought
the disclosure of information which the government had withheld in Federal
Court actions T-536-04, T-686-04 and T-3-06. The applicant had requested
production of this information through discovery procedures in the referenced
actions and through the Access to Information Act, R.S., 1985, c. A-1. As
a result, roughly 3000 pages containing extensive redactions had been released
to the applicant’s counsel. In these proceedings, the applicant sought to have
disclosure of any of the redacted information that might be relevant to the
charges against him at Guantánamo under the Stinchcombe standard.
[10]
Immediate steps were
taken to deal with the application pending further direction from the Supreme
Court. On the applicant’s motion, Chief Justice Allan Lutfy appointed Mr. Brian
Gover, Barrister and Solicitor, to serve as amicus curiae to assist the
court during hearings in which the Attorney General would present evidence and
submissions in the absence of the applicant’s counsel. The matter was then
assigned to the undersigned, a designated judge within the meaning of the Act, for
hearing and determination.
[11]
Preliminary matters,
including the filing of affidavit evidence and written representations, were completed
by the end of March. Following a further canvass of the departments and
agencies concerned, the Attorney General filed a collection of 182 documents
containing the information at issue submitted as exhibits to ex parte
affidavits by government witnesses.
[12]
These documents, for
the most part, are internal government communications including memoranda,
briefing notes and e-mail messages. Some contain background information on the
applicant and his family and describe the efforts of Canadian officials to
secure access to and collect information about his condition and status
following his capture near Khost, Afghanistan in July 2002. Others deal
with the planning, coordination and reporting by officials on visits to Guantánamo Bay. There is frequent repetition of the same information in
the documents. Reports received by one department or agency were shared with
the others and the content reproduced in subsequent materials.
[13]
On March 25, 2008 the
Court held a closed hearing to enable counsel for the applicant to make
confidential submissions about the criminal proceedings before the US
military commission and the potential significance of the undisclosed
information to the defence. A series of ex parte hearings then followed
to receive the government’s evidence as to the injury that could result from
disclosure of the information and to hear submissions from counsel for the
Attorney General and the amicus curiae. The Court completed these
hearings by April 17, 2008.
[14]
The amicus curiae,
Mr. Gover, had access to all of the classified material filed by the
Attorney General and attended each of the ex parte hearings. He cross-examined
the government witnesses and made submissions on the application of the section
38 considerations to the documents.
[15]
At the Court’s
request, counsel for the Attorney General and the amicus curiae compiled
a list of the information they considered potentially relevant to the
applicant’s defence. Counsel identified this information during oral
submissions and filed a written list. While this was of assistance to the Court,
I reviewed each document in the collection and made my own determination as to
what would be relevant to the criminal proceedings. The proceedings were then
suspended pending release of the Supreme Court’s decision.
[16]
Following the
issuance of that judgment, a conference was convened with counsel for the
parties and the amicus curiae on May 26, 2008 to obtain the benefit of
their submissions as to the effect of the decision on this application. An ex
parte hearing was then held on May 27th to receive further
submissions from counsel for the Attorney General and the amicus with
respect to certain specific documents about which the Court had some remaining
questions.
[17]
Further to a
direction to provide assurances that all documents covered by the Supreme
Court’s order had been produced, counsel for the Attorney General made further
inquiries of the concerned departments and agencies to determine whether there
could be any additional documents in their possession that may have been
overlooked in the assembly of the collection before the Court. As a result, the
Court was informed by letter from counsel for the Attorney General dated May 30, 2008 that three documents had been located by the Department of
Foreign Affairs and International Trade (“DFAIT”) that could fall within the
scope of the Supreme Court’s decision. These were provided to the Court in
unredacted form.
[18]
Having read the three
fresh documents, I am satisfied that the substantive information they contain was
already before the Court in two documents. Two of the documents are versions in
different format of documents 140 and 142 with similar content. The third is a
page of handwritten notes similar to the content of document 142. While these
documents should have been located during the earlier search for possibly
relevant materials, I have no reason to believe this was anything other than an
oversight. In any event, their production at this late stage does not add to or
detract anything of substance from the work that had been undertaken thus far.
For that reason, I did not consider it necessary to receive additional
affidavit or oral evidence or to convene a further conference with counsel.
[19]
Late in the week of
May 26, 2008 the Court was informed that several media organizations would be
seeking leave to intervene in these proceedings. Counsel for CTVGlobeMedia
Publishing Inc., Toronto Star Newspapers Ltd. and the Canadian Broadcasting Corporation
subsequently filed motion records which also addressed the merits of their
proposed interventions.
[20]
Counsel for the
parties and the amicus curiae were invited to comment in writing on the intervention
motions and a hearing was conducted on June 12th to receive oral
submissions from the proposed interveners and the parties. In the interests of
judicial economy, I heard argument on both the leave motions and the merits of
the positions advanced on the issue of public release of the information and
will address both questions in these reasons.
[21]
Before turning to
those matters, I think it useful to make a few comments about the scope of the
Supreme Court’s decision and this Court’s jurisdiction.
Scope
and Effect of the Supreme Court’s decision:
[22]
In my view, this
Court’s jurisdiction to consider the matter flows entirely from the Charter
remedy afforded the applicant and not from the statutory authority in the Canada
Evidence Act under which Mr. Khadr formally sought disclosure in his
application of January 24,
2008. That is because the
application does not relate in any real sense to an underlying “proceeding” as
contemplated by section 38.01 of the Act. As defined by the statute, a
proceeding takes place before a court, person or body with jurisdiction to
compel the production of information. I interpret that definition to be subject
to the normal territorial limitations applicable to Canadian legislation. The
proceeding in question is taking place before a court in a foreign jurisdiction
which has no authority to compel the production of information in Canada.
[23]
This Court was
directed to conduct a section 38 review of the information to give effect to
the Charter remedy arising from the involvement of Canadian officials in
an illegal foreign process. The Supreme Court ruled that there must be
disclosure of any information Canada gained from that involvement and information
thus acquired that was subsequently shared with the US.
The section 38 procedure is a convenient means to assess whether public
interest considerations should limit the information to be disclosed but it is
not the source of this Court’s jurisdiction.
[24]
I note that there are
still civil actions pending in this Court against the federal government
respecting the provision of consular services to Mr. Khadr and related issues.
The applicant may be entitled to pursue a determination under section 38
regarding the withholding of information subject to discovery and production in
one or more of those actions. That would require a determination which has not
been the focus of these proceedings. It is clear that the scope of the review
that the Court can undertake in this proceeding pertains to the US
case and is limited to the parameters set out in the Supreme Court’s judgment.
[25]
At paragraph 34 of
its reasons, the Supreme Court states that “Canada has
an obligation under s.7 to provide disclosure to Mr. Khadr to mitigate the
effect of Canada’s participation by passing on the
product of the interviews to U.S. authorities.” In paragraph 35, it is
said that “the designated judge of the Federal Court who hears the application…
may be expected to have a fuller picture of what was shared with the U.S. authorities and what other material, if any, should be
disclosed, bearing in mind the reasons of this Court and the principles
enunciated in Stinchcombe.” [Emphasis added]
[26]
At first impression,
the underlined words would appear to leave open the possibility that the
designated judge could apply a Stinchcombe relevance test to the
redacted documents in the collection.
[27]
However, the scope of
the disclosure obligation recognized by the Supreme Court is summed up in
paragraph 37:
In
reaching its conclusions on disclosure, the Federal Court of Appeal held that
the Stinchcombe disclosure regime should apply, and consequently held
that the scope of disclosure extended to all materials in the Crown’s
possession which might be relevant to the charges against the appellant,
subject to ss.38 ff. of the Canada Evidence Act. Our holding is not
based on applying Stinchcombe directly to these facts. Rather, as
described above, the section 7 duty of disclosure to Mr. Khadr is
triggered on the facts of this case by Canadian officials giving US authorities
access to interviews conducted at Guantanamo Bay with Mr. Khadr. As a result the disclosure order we
make is different in scope than the order of the Federal Court of Appeal. The
appellants must disclose (i) all records in any form of the interviews
conducted by Canadian officials with Mr. Khadr, and (ii) records of any
information given to U.S. authorities as a direct consequence of Canada's
having interviewed him. This disclosure is subject to the balancing of
national security and other considerations as required by ss. 38 ff. of the Canada
Evidence Act. [Emphasis added]
[28]
At paragraph 40, the
Court reiterates that the “… designated judge will review the material and
receive submissions from the parties and decide which documents fall within the
categories set out in para. 37 above.” I take from the Supreme Court’s reasons
read as a whole that this Court may still be guided by the principles set out
in Stinchcombe but only to the extent that the material in question is
linked to Canada’s direct involvement in the US proceedings through the
interviews conducted at Guantánamo and through sharing the results with the US.
[29]
Accordingly, the
field of inquiry conducted by this Court has been considerably narrowed. Information
in the collection which may have been considered relevant to the criminal
charges under Stinchcombe was provided by U.S.
agencies to Canada for intelligence sharing and law
enforcement purposes unrelated to the visits by Canadian officials to Guantánamo.
[30]
I will note here that
the rights to discovery under US federal and military rules are, in general,
not as extensive as those which apply in Canada under the Stinchcombe principles:
see Brady v. Maryland, 373 U.S. 83 (1963); United States v. Dancy,
38 M.J. 1, 4 (CMA, 1993). Under the US rules, the applicant is entitled to any
exculpatory or mitigating evidence and his own recorded statements which are
within the control of the government but not to the disclosure of other
relevant inculpatory information which the prosecution does not intend to use. This
includes inculpatory information that may be inconsistent with the
prosecution’s theory. As a result, the applicant may 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 is in the possession of Canadian agencies. But that is beyond the
scope of this Court’s jurisdiction.
The
Intervention Motions:
[31]
Rule 109 of the Federal
Courts Rules permits the Court to grant leave to a non-party to intervene
in a proceeding. In this instance, the moving parties seek leave solely for the
purpose of making argument about the public release of the information to be
disclosed to Mr. Khadr and his counsel as a result of the Supreme Court’s order
and this Court’s section 38 determination. The applicant and the amicus
curiae support the proposed intervention. The Attorney General is opposed.
[32]
Under Rule 109 (2) (b),
a prospective intervener must demonstrate that their participation will assist
in the determination of a factual or legal issue related to the proceeding. Factors
for the Court to consider when deciding whether to exercise its discretion to
grant leave are set out in CUPE v. Canadian Airlines International Ltd.,
[2000] F.C.J. No. 220, 95 A.C.W.S. (3d) 249 (C.A.). They are:
(1) Is the proposed intervener directly
affected by the outcome?
(2) Does there exist a justiciable issue
and a veritable public interest?
(3) Is there an apparent lack of any
other reasonable or efficient means to submit the question to the Court?
(4) Is the position of the proposed intervener
adequately defended by one of the parties to the case?
(5) Are the interests of justice better
served by the intervention of the proposed third party?
(6) Can the Court hear and decide the
case on its merits without the proposed intervener?
[33]
The Attorney
General’s position is that the moving parties have failed to demonstrate how
their involvement at this late stage will materially assist the Court in
determining a factual or legal issue related to the proceeding. They do not
propose to add any evidence to a factual issue in dispute. Their involvement is
to reiterate a legal argument already advanced by the applicant that any
material ordered disclosed should be disclosed publicly without conditions. In
that respect, they have no greater interest in these proceedings than any other
member of the public. The Court has heard all of the evidence related to the
matter together with the submissions of the parties and the amicus curiae.
The moving parties’ point of view is not essentially different from that of the
applicant and is essentially “jurisprudential”, in the Attorney General’s view.
[34]
The proposed
interveners counter that there is a strong public interest in Mr. Khadr’s case
and the moving parties play an important role by representing the Canadian
public. There is a justiciable issue in the balancing of the public interest in
the disclosure of the information and the public interest in non-disclosure. The
non-disclosure of information by the state is a matter of public concern which
is heightened in this instance as the actions of state officials have been
called into question by the finding that they participated in a breach of Canada’s international human rights obligations.
[35]
In Abdullah Khadr
v. Canada (Attorney General), 2008 FC 549, [2008] F.C.J. No. 770, a
decision respecting the disclosure of sensitive information to the applicant’s
brother for the purposes of an extradition proceeding, I made the following
comments at paragraphs 44 and 45 regarding the public interest in obtaining
information, the role of the press and the open court principle:
Freedom
of expression including freedom of the press and the public’s right to receive
information are core values protected by subsection 2 (b) of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act,
being Schedule B to the Canada Act 1982 (U.K.)
1982, c.11. The scope of the protection afforded freedom of the press must be
interpreted “in a generous and liberal fashion having regard to the history of
the guarantee and focusing on the purpose of the guarantee”: Canadian
Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, [1991] S.C.J. No.87 at
paragraph 61.
Inextricably
linked to those values is the principle of the openness of court proceedings
(see Vancouver Sun, (Re) 2004 SCC 43, [2004] S.C.J. No.41 and Toronto
Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] S.C.J. No.41).
Freedom of the press and the open court principle are not, however, absolute.
They must yield on occasion when there are other important interests to be
protected such as informant privilege (see Named Person v. Vancouver Sun, 2007 SCC 43, [2007] S.C.J. No. 43) or to protect the right
of an individual to a fair hearing (see Re Charkaoui, 2008 FC 61).
And
at paragraphs 47 and 48:
It
is clear now that any court procedures that limit freedom of expression and
freedom of the press in relation to legal proceedings, including those imposed
by statute, are subject to the test set out by the Supreme Court of Canada in Dagenais
v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 35, [1994] S.C.J. No.104
and R. v. Mentuck 2001 SCC 76, [2001] 3 S.C.R. 442; see also Toronto
Star Newspapers Limited v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 at
paragraph 7. This was affirmed in the section 38 CEA context by Chief Justice
Allen Lutfy in Ottawa Citizen Group Inc. v. Canada (Attorney General), 2006 FC 1552, [2006] F.C.J. No. 1969.
The
Dagenais/Mentuck test requires that public access to court proceedings
be barred only when the appropriate court in the exercise of its discretion
concludes that disclosure would subvert the ends of justice or unduly impair
its proper administration. This test is meant to be applied in a flexible and
contextual manner […].
[36]
The 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. In Abdullah Khadr, the press was already in possession of a
significant piece of information that the Attorney General wished to protect
through a non-disclosure order. Accordingly, I directed that the press
organization concerned, one of the moving parties in this case, be given notice
of the application and an opportunity to file a record and be heard on the
issue. In the result, the application to prohibit publication was denied. Here,
on the other hand, I am being urged to extend the scope of any disclosure
ordered for Mr. Khadr’s benefit to the public through the media.
[37]
I emphasize that the
media organizations are not in possession of the information which the Attorney
General wishes to protect but seek to have the Court order the public release
of any materials disclosed to Mr. Khadr. This is also not a case in which the
Attorney General has invoked section 38 in order to prevent the disclosure of
information which the public through the media could otherwise obtain from
another source as in the Ottawa Citizen case cited above.
[38]
While Mr. Khadr
supports public release of the information, his interests are not identical
with those of the media organizations. As his counsel candidly acknowledged at
the hearing, Mr. Khadr seeks to advance his defence by any means available
including political measures. The media's interest is not to help Mr. Khadr or
to hinder him in those efforts but to give the public as much information as
possible. They argue that public access to the information should not be dependent
upon the possibility that the defence will release only such disclosed information
as will assist him. Their participation is, they submit, the most reasonable
and efficient way to advance the public’s interest in the information.
[39]
One of the concerns
that I raised at the hearing is that these motions were brought at a very late
stage in the proceedings. It was open to the media outlets to seek leave to
intervene following the Federal Court of Appeal’s decision in May of 2007. That
opportunity may have been short-lived as the order was stayed pending the
appeal. However, it was again open to them to bring a motion following the
Supreme Court’s order of January 23, 2008 which directed this Court to proceed
with the review of the information at issue.
[40]
No steps were taken
until the Supreme Court’s judgment was released on May 23, 2008 and only then,
it seems, when the media organizations were informed by defence counsel that
there were video tapes in existence of the interviews conducted by Canadian
officials at Guantánamo. As counsel for the Attorney General pointed out during
the hearing, this fact was disclosed in a public affidavit filed in this
proceeding on March 7, 2008.
[41]
It is submitted by
the proposed interveners that the disclosure issue had not crystallized until
the Supreme Court rendered its decision. Until then, the work done by the
parties and the Court was contingent upon the outcome of the appeal and the
media could not have assumed that disclosure would be ordered. Nonetheless, the
late arrival of the motions served to delay these proceedings as it was
necessary to postpone release of this decision while they were considered.
[42]
Not all of the CUPE
factors must be present or weigh in favour of intervention before the Court may
grant leave. I have no doubt that this case could have been heard and decided
on its merits without the proposed interveners. However, as the Court has read
the materials filed by the moving parties and heard their submissions on the
merits, there would seem to be no practical purpose to be achieved at this
stage to deny the motions. The moving parties have achieved their primary
objective which was to be heard on the question of public release of any
disclosure resulting from this process.
[43]
There is no longer
any dispute that the Dagenais/Mentuck test applies in the context of a
designated judge’s discretionary order regarding disclosure or non-disclosure
and that the open court principle is a significant factor to be considered in
balancing the competing interests. But, as the Attorney General submits, these
principles do not mandate an all or nothing result. If the designated judge
finds that disclosure is injurious to international relations, national defence
or national security he or she may authorize disclosure subject to any
conditions that the judge considers appropriate. Those conditions may include
restrictions, for example, on publication of the disclosed information for a
specified period of time: see R. v. Mentuck, 2001 SCC 76, [2001] 3
S.C.R. 442.
[44]
I would note further
that the Supreme Court has ruled that
exhibits remain the property of the party which filed them while the Courts
have merely a custodial role to supervise their use: Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991]
1 S.C.R. 671. At paragraph 20 of the Court’s reasons it was stated:
An exhibit is not a court record of the same order as
records produced by the court, or pleadings and affidavits prepared and filed to
comply with court requirements. Exhibits are frequently the property of
non-parties and there is, ordinarily, a proprietary interest in them. When they
have served the purpose for their filing they are ordinarily at the disposition
of the person who produced them. While they remain in its custody, the court
has a duty to pass upon any request for access… The rule, however, reflects
the fact that exhibits are not the property of the court. [Abridged]
[45]
The exhibits under
review were initially produced to the applicant under compulsion of either a
Court order or the Access to Information Act. They were produced to the
Court under the Chief Justice of Canada’s Order of January 23, 2008 for a
limited purpose. While it is not necessary to decide the question at this time,
it is not clear from the jurisprudence that the open court principle requires
that exhibits filed as attachments to ex parte affidavits for review in
a closed session thereby become accessible to the public. Nor is it at all
clear that an order for disclosure to an applicant under section 38.06 of the
Act on the basis that the public interest in disclosure outweighs the public
interest in non-disclosure necessarily implies disclosure to the public at large
under the open court principle.
[46]
As 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: see for example Merck & Co. v. Apotex Inc.,
[1996] 2 F.C. 223. The situation in criminal matters is not as clear: Jackson
v. D.A., 2005 ABQB 702, but see D.P.
v. Wagg, 71 O.R. (3d) 229. 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. I note that applicant’s counsel offered
to provide an express undertaking in this case in a letter reproduced at paragraph
10 of the Court of Appeal decision, but the offer was not taken up by the
respondent’s counsel. In the result, there would appear to be no restriction on
the applicant’s use of any information disclosed to him through these
proceedings unless the Court imposes conditions under the authority provided by
section 38.06.
The
Section 38 Framework:
[47]
The procedure to be
followed on a section 38 application was developed by the Federal Court and the
Federal Court of Appeal in Canada
(Attorney General) v. Ribic, 2003 FCT 10, [2003] F.C.J. No. 1965, aff’d
2003 FCA 246, [2003] F.C.J. No. 1964 (Ribic); see also Canada
(Attorney General) v. Khawaja, 2007 FC 490, [2007] F.C.J. No. 622 (Khawaja
I); rev’d in part but not on the test in Canada (Attorney General) v.
Khawaja, 2007 FCA 342, [2007] F.C.J. No. 1473.
[48]
As outlined by the
Supreme Court at paragraph 41 of its reasons, the task of the designated judge in
this case is to consider whether disclosure of the records which are found to
fall within the scope of the limitation set out in paragraph 37 would be
injurious to international relations, national defence or national security and
whether the public interest in disclosure outweighs in importance the public
interest in non-disclosure. This is normally done in three steps, the first of
which is a determination of the relevance of the information to the underlying
proceedings.
[49]
In this instance, relevance
is to be determined according to whether the information falls within the scope
of the two arms of the section 7 disclosure right recognized by the Supreme
Court: (i) whether the information constitutes a record, in any form, of the
interviews conducted by Canadian officials with the applicant at Guantánamo or
(ii) whether it consists of a record given to the US authorities as a direct
consequence of Canadian officials having interviewed the applicant there while
he was subject to an illegal detention regime.
[50]
Where the designated
judge in a section 38 proceeding finds that the information is relevant to the
underlying case, the next step is a determination of whether disclosure would result
in injury to the protected national interests.
[51]
The burden is on the
party opposing release of the information to establish a factual basis for the
assertion of probable injury on a reasonableness standard. The Attorney
General's assessment that injury would result must be given considerable weight
because of his access to special information and expertise. Moreover the
Attorney General assumes a protective role vis-à-vis the security and safety of
the public. If his assessment of the injury is reasonable, the court should
accept it: Ribic, at paragraph 19 of the FCA decision.
[52]
Where the Court finds
that no injury would result to the protected interests, the information must be
disclosed. Absent such a finding, the third stage of the test is to determine
whether the public interest in non-disclosure is outweighed by the public
interest in disclosure. Section 38.06 of the Act permits a designated judge to
authorize release of information notwithstanding the judge’s conclusion that
injury would occur. The designated judge must assess those factors which he or
she deems necessary to find the balance between the competing public interests
and must consider whether the disclosure should be subject to terms and
conditions.
[53]
The jurisprudence
provides guidance as to factors which may be significant in the balancing
process: see Khan v. Canada (T.D.), [1996] 2 F.C. 316, [1996] F.C.J. No.
190 at paragraph 26; Jose Pereira E Hijos,
S.A. v. Canada (Attorney General), 2002 FCA 470, [2002] F.C.J. No. 1658; Arar,
above, at paragraph 93.
[54]
I have concluded that
the most compelling factors in this case are the nature of the public interests
sought to be protected by confidentiality and those favouring openness and the other
higher interests at stake; notably the applicant’s human rights and right to
make full answer and defence.
[55]
The importance of
protecting national security and the need for confidentiality in such matters has
been repeatedly recognized by the Supreme Court of Canada: Chirarelli v.
Canada (M.E.I.), [1992] 1 S.C.R. 711; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. In these decisions, the Supreme
Court has also recognized that such considerations can limit the disclosure of
information to affected individuals.
[56]
Another factor which
may serve to reduce disclosure is the fact that Canada
is a net importer of information essential to our security, defence and international
relations. Much of it is provided by foreign agencies in confidence that it
will not be disclosed without the permission of the provider or the source. The
public has a very high level interest in maintaining that confidence: Singh
v. Canada (Minister of Citizenship and
Immigration) 186 F.T.R. 1
(T.D.) at paragraphs 32-34.
[57]
On the other hand, the
public also has a high interest in ensuring that rights guaranteed by the Charter
are not frustrated by the withholding of documents which must be produced if
justice is to be done to the person affected. In the present case, the Supreme
Court of Canada has determined that the Charter is engaged as the
applicant was detained under conditions that violated the international law
obligations of both the United States and Canada. That factor weighs heavily in favour of
disclosure even if an injury to Canada’s national interests would result.
[58]
A great deal of
information has already been made available to the public about the applicant’s
situation through media attention to his case. A book was recently published
which describes the applicant’s background, the circumstances of his capture,
treatment while in detention and contacts with Canadian officials. Some of the
information published in open sources corresponds to information which the
government seeks to withhold in these proceedings. Information which is in the
public domain already should, generally, not be protected under section 38.
[59]
My colleague, Justice
Simon Noël, discussed this principle in Canada (Attorney General) v. Canada
(Commission of Inquiry into the Actions of Canadian Officials in Relation to
Maher Arar - O'Connor Commission), 2007 FC 766, [2007] F.C.J. No. 1081 at
paragraphs 54 – 57. Nonetheless, as he stated at paragraph 56, “[t]here are
many circumstances which would justify protecting information available in the
public domain, for instance: where only a limited part of the information was
disclosed to the public; information is not widely known or accessible; the authenticity
of information is neither confirmed nor denied; and where the information was
inadvertently disclosed." This, of course, presumes that further
disclosure will result in injury to one of the protected national interests.
Applying
the section 38 framework to the information at issue:
[60]
The documents
containing the information at issue are held by Canadian Security Intelligence Service
(“CSIS), the Royal Canadian Mounted Police (“RCMP”), the Department of Foreign
Affairs and International Trade ("DFAIT") and the Department of
National Defence\Canadian Forces ("DND\CF").
[61]
The injury claims
advanced by the Attorney General include concerns about the disclosure of information
respecting other investigations, subjects and persons of interest; investigative
methods and operational techniques employed by the agencies; sensitive internal
administrative information such as file and telephone numbers; information that
would identify agents and human sources and references to secure data banks and
communication systems. Of particular concern to the Attorney General in the
context of this case are confidential reports provided by US agencies.
Disclosure of information falling into these categories would, it is contended,
cause injury to Canada’s national security, national defence
and international relations.
[62]
Where the Attorney
General relies upon what is commonly referred to as the “third party rule” in
section 38 proceedings to seek continued protection for information obtained in
confidence from a foreign agency, the Court will normally require that evidence
be led to demonstrate that efforts have been made to obtain consent to the
disclosure of the information from the foreign source. If the efforts are
successful, that would obviate the need for the Court to consider the matter
further in the interests of judicial economy.
[63]
In this case,
evidence was received in the closed hearings that the government contacted the
responsible US agencies requesting consent to release
of information in these proceedings. Responses were received to some of these
requests. As a result, a modest amount of additional information has been
disclosed to the applicant’s counsel. Responses on certain documents remain outstanding.
[64]
It is also the
practice in these cases to inquire into the scope of the information already in
the possession of the applicant or that which could be readily obtained by the
applicant from other sources. Where information has been provided to the
government of Canada in confidence that it would not be disclosed and that
information could be obtained directly from the source through other means
which would not result in a breach of the third party rule by Canada, it would
seem to be axiomatic that the party seeking disclosure must explain whether
such efforts have been made.
[65]
In the present case,
the members of Mr. Khadr’s defence team are constrained by a Protective Order
issued on October 9, 2007 by the then presiding judge in the military
commission proceedings. This order restricts the members of the defence team
from disclosing any classified information and any information described as
“law enforcement sensitive” (“LES”) or “For Official Use Only” (“FOUO”)
provided to them by the prosecution, including investigative reports and
witness statements, without prior approval from the Military Judge. Classified
material may only be released to someone with the requisite clearance and a
“need to know”.
[66]
As “Foreign
Attorney Consultants” before the Military Commission, the applicant’s Canadian
counsel have access to the LES/FOUO material but not to the classified
information produced to the detailed military defence counsel. On March 17,
2008, they wrote to the military prosecutor seeking permission to disclose the
content of the LES/FOUO material to this Court in an in camera session
but that had not been resolved as of the date of writing. The presiding judge
had earlier ruled that he lacks jurisdiction to approve the release of such
information for the purpose of Canadian court proceedings as such authority
rests with the US Defence Department.
[67]
In
the result, this Court was not in a position to identify, with some exceptions,
what has or has not been disclosed to the defence in the military proceedings.
It is clear from the public record that a great deal of material has already
been turned over to the defence by the prosecution. What cannot be determined
by the Court is whether there are materials in the possession of the Canadian
authorities that would fill in any gaps in what the prosecution has produced to
assist the applicant in making full answer and defence.
[68]
It must be stressed
that much of the redacted information in the documents produced to the Court does
not relate to the applicant and would not assist him in defending himself
against the criminal charges at Guantánamo. A considerable amount of this
information refers to investigations concerning other persons unrelated to the
applicant. This information would be irrelevant under the Stinchcombe
standard. Redacted documents may contain only brief passages referring to the
applicant. As a result, of the entire collection of 182 documents, less than
thirty appeared to contain potentially relevant information that could be of
assistance to the applicant.
[69]
The Supreme Court’s
decision required a re-examination of the documents to determine whether the
information they contain might fall within the scope of the direction to
disclose defined by the nature of Canada’s role in the Guantánamo interviews
whether or not they contained Stinchcombe relevant material. Some
documents initially considered relevant were excluded from consideration as
falling outside the scope of the Supreme Court’s decision. Others which would not
have otherwise been considered Stinchcombe relevant were found to fall
within the parameters established by the Supreme Court.
[70]
In the result, the
Court focused on the content of some 26 records. Again I would stress that the
content of these materials does not deal exclusively with the applicant and the
records contain sensitive information pertaining to other subjects, persons and
events that would not be of assistance for his defence and will not be
disclosed.
[71]
In these reasons, I
propose to refer to only a few of these records but they will all be addressed
in a private order to be issued to the applicant and to the Attorney General
describing what is to be disclosed and what is to remain protected. It is
necessary for the Court to speak obliquely and reservedly about the information
as any disclosure in these pages would require that public release of this
decision, including to the applicant, be withheld until the expiry of the
appeal period in section 38.09 (2) of the Act.
[72]
As is now well known,
in February 2003 three CSIS officials and one officer of the DFAIT Foreign
Intelligence Division were authorized by the US Department of Defence to visit Guantánamo Bay. They interviewed Mr. Khadr over four days; February 13-16,
2003. CSIS and DFAIT officials subsequently returned to Guantánamo to
interview the applicant in September 2003. A DFAIT official went again in March
2004. The purpose of these visits was primarily to collect intelligence
information. The interview notes and reports prepared by the Canadian
officials were shared with the RCMP. US agencies were subsequently provided
with edited versions of those reports.
[73]
Questions have arisen
in these proceedings as to whether the visits had a law enforcement aspect,
about which there is some dispute between the Attorney General and Mr. Khadr’s
counsel. The former Deputy Director of Operations for CSIS was cross-examined
on the point in the course of earlier proceedings. From what I have seen, it
appears clear that the interviews were not conducted for the purpose of
assisting the US authorities with their case against Mr. Khadr or for building
a case against him in Canada. I note that no law enforcement
personnel were authorized to attend at that time. The information collected
during the interviews was provided to the RCMP for intelligence purposes.
However, it is equally clear that the US authorities were interested in having Canada consider whether Khadr could be prosecuted here and
provided details about the evidence against him to Canadian officials for that
purpose. Nonetheless, the interviews by Canadian officials were conducted for
intelligence collection and not evidence gathering.
[74]
The interviews were
monitored by US officials on each occasion the Canadian officials visited Guantánamo.
An audio and video record was made of the February 2003 interviews. It is not
clear in which format they were originally recorded but they are described as
videotapes. CSIS was subsequently provided with copies of the February
videotapes. Copies were filed with the Court as exhibits in DVD format. The
evidence before me was that Canadian officials do not have copies of any
recordings that may have been made of the September 2003 or March 2004
interviews.
[75]
Counsel for the
applicant has indicated that the defence team has been provided with copies of the
February videotapes in DVD format subject to restrictions on access to them and
their use. They are classified as “secret/no foreign”. I understand this to
mean that the videos can only be shared with someone who has the necessary
security clearance and not with foreign counsel. In the result, Mr. Khadr’s
military defence counsel, Lt. Cmdr. Kuebler, may view the videos but not his
Canadian counsel. If presented in open court during the military commission
proceedings, only American nationals with the necessary security clearance
could, apparently, remain in the room.
[76]
As described by counsel,
the DVDs in the possession of the defence have very poor sound quality and all
have audio portions that cannot be understood. I was informed that the audio on
the DVD from February 14, 2003 cannot be understood at all. They do not appear
to have been edited.
[77]
I have viewed the
DVDs filed with the Court. The sound and visual quality is poor but the content
which may be ascertained is consistent with the written reports which summarize
these interviews and they do not appear to have been edited. I accept that this
is the condition in which the videotapes were obtained by CSIS. The videotapes fall
within both branches of the Supreme Court’s Order and must be disclosed subject
to consideration of the interests protected under section 38.
[78]
Counsel for the
applicant submits that the videotapes will assist the defence as they illustrate
that the applicant suffered abuse following his capture and that from
unclassified summaries and open source information it appears that he cried,
asked Canadian officials for help, told them that he had been tortured and
showed them the scars left by his injuries. I will refrain from commenting on
what the tapes reveal. However, I am satisfied that any content that may tend
to support the applicant’s allegations is relevant and should be disclosed to
the applicant and his counsel for the purpose of his defence to the criminal
charges.
[79]
The audio content of
these tapes includes specific references to sensitive information that falls squarely
within several of the injury claims advanced by the Attorney General. This information
would not, in my view, assist the applicant in making full answer and defence
as it relates to persons, places and events not material to the charges against
him. It is information that would harm protected national interests and the
public interest in disclosure does not outweigh the public interest in
non-disclosure in my estimation.
[80]
The videos also disclose
images of the faces of Canadian and American agents that could lead to their
identification and compromise their ability to perform their duties. It was
submitted in argument by one of the moving parties that the identity of the
Canadian officials who visited Guantánamo is already a matter of public record.
That appears to be correct with respect to the DFAIT official, but I am not
satisfied that the full identities of the CSIS agents have been publicly
disclosed and neither has that of an American official who was in the room
during the interviews. In any event, there is no reason in my view for the
faces of the officials or agents to be disclosed.
[81]
I am satisfied that disclosure
of the sensitive audio content and the facial images would cause injury to Canada’s national interests and that there is no public interest
in the disclosure of this information that outweighs the interest in
non-disclosure. I have been advised that the DVDs could be edited to remove the
audio containing the sensitive information and the identities of the officials/agents
could be obscured. With those measures taken, any potential injury that might
result from release of the tapes to Mr. Khadr’s defence team would be
mitigated.
[82]
Accordingly, I will
order the disclosure of these tapes to the applicant’s defence team for use in the
military commission proceedings subject to the proviso that they be edited to
eliminate any irrelevant and sensitive audio content and that the faces of the
Canadian and American officials present be obscured in the video images.
[83]
Document 167 consists
of 186 pages of interview notes and witness statements which were completely redacted
in the version produced to the applicant. The entire content of this document would
be relevant under the Stinchcombe principles. However, only 5 of the 186
pages can be said to fall within the Supreme Court’s Order as constituting a
record of the Canadian interviews or of information obtained from those
interviews that was shared with the US authorities.
[84]
The five pages in
question are reports prepared by US agents describing the February 2003 Canadian
visit. They include references to the statements made by the applicant discussed
above that could be relevant to his defence and they may also assist in
understanding the audio on the video-tapes. Subject to minor editing to remove
the names of the individuals who observed the proceedings and prepared the
notes, these pages will also be ordered disclosed.
[85]
The report of the
March, 2004 visit to Guantánamo prepared by the DFAIT official who went on that
occasion is included in the collection as document 168. The version served on
the applicant is almost entirely unredacted. The respondent seeks to protect a
paragraph on page 2 of the report as it contains information provided in
confidence by a member of the US military regarding steps taken by the Guantánamo
authorities to prepare the applicant for the Canadian visit. There is also a
side comment by the DFAIT official that the Attorney General wishes to protect
as potentially harmful to Canada-US relations.
[86]
As indicated in a recently
published report of the Office of the Inspector General of the U.S. Department
of Justice, during the period in question detainees at Guantánamo were
subjected to a number of harsh interrogation techniques that would not have
been permissible under American law for law enforcement purposes and have since
been prohibited for use by the military.
[87]
Canada’s international
human rights obligations include the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can.
T.S. 1987 No. 36, (“UNCAT”), to which the US is also a signatory. The
application of this Convention to specific types of interrogation practices employed
by military forces against detainees was discussed by the Supreme Court of
Israel in Public Committee against Torture in Israel v. Israel 38 I.L.M.
1471 (1999). The practice of using these techniques to lessen resistance to
interrogation was found to constitute cruel and inhuman treatment within the
meaning of the Convention.
[88]
The practice described
to the Canadian official in March 2004 was, in my view, a breach of international
human rights law respecting the treatment of detainees under UNCAT and the 1949
Geneva Conventions. Canada became implicated in the violation when
the DFAIT official was provided with the redacted information and chose to
proceed with the interview.
[89]
Canada cannot now object to the disclosure of
this information. The information is relevant to the applicant’s complaints of
mistreatment while in detention. While it may cause some harm to Canada-US
relations, that effect will be minimized by the fact that the use of such
interrogation techniques by the US military at Guantánamo is now a matter of
public record and debate. In any event, I am satisfied that the public interest
in disclosure of this information outweighs the public interest in
non-disclosure.
Conclusion:
[90]
This case began as a
review of all of the materials in the possession of the named government
departments and agencies that may 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 the
decision rendered by the Supreme Court of Canada on May 23, 2008 concerning the
Charter’s reach with respect to foreign criminal proceedings, the scope
of the review undertaken has been considerably narrowed. As discussed above, it
remains open to the parties to seek consent to the disclosure of any
information falling outside the scope of the Supreme Court’s order from the
originating sources.
[91]
I conclude that the
Court’s jurisdiction in this matter is limited to that authorized by the
Supreme Court’s Order and does not flow directly from the statutory scheme
under sections 38 and following of the Canada Evidence Act. As directed
by the Supreme Court, I have applied the referenced provisions of the Act to
determine whether disclosure of the redacted information within the records held
by the government and produced to the applicant would be injurious to
international relations, national defence or national security and whether the
public interest in disclosure outweighs in importance the public interest in
non-disclosure
[92]
The object of the
Supreme Court’s order was to provide a Charter remedy to the applicant
for the breach of Canada’s international human rights
obligations. The remedy was to provide disclosure to him of information that
was obtained by Canada and shared with the US
authorities for the purpose of his defence to the criminal charges. The Supreme
Court’s reasons and order do not refer to any broader disclosure or public release
of that information. I must interpret and apply the direction given to this Court
in light of the open court principle and the Dagenais/Mentuck test. Yet
my primary concern must be with disclosure to Mr. Khadr for his defence.
[93]
In considering the
balancing of the public interests in disclosure and non-disclosure of
information that would cause injury to Canada’s interests, the Court may be inclined
to authorize the release of less rather than more if the result is to reveal
the information to the world. The interests of the public in access to the
information withheld by the government and the interests of the media to
publish that information must be taken into account but do not override Mr.
Khadr’s right to a meaningful Charter remedy. Nor is the information the
property of the Court to dispose of as it sees fit. Any disclosure order made
must fit within the scope of the Charter remedy ordered and the section
38 procedure and principles.
[94]
The applicant submits
that, in the event that the Court were to find that injury to the protected
interests had been established, such injury can be entirely prevented by the
imposition of appropriate conditions. The applicant suggests that these could
include disclosure of a summary of the relevant information publicly and
unconditionally or, in the alternative, disclosure of all relevant information
to the applicant's military defence counsel, authorized to receive classified
documents, to be dealt with in accordance with the rules and procedures
established by US law with respect to the handling of such information.
[95]
The Attorney General's
position is that the Court should decline to order the disclosure of
information which would cause injury to Canada’s national interests. If any of the
redacted information is to be disclosed, the respondent requests that the Court
exercise its discretion under subsection 38.06 (2) of the Act so as to disclose
the information in a form and under conditions that are most likely to limit
the injury. I am satisfied that the imposition of such conditions is within the
scope of the Supreme Court’s direction. Should the balancing of interests
favour disclosure to Mr. Khadr and his counsel but not to the general public
and the media, that can also be addressed by conditions.
[96]
In the result, I will
issue a private order that will specify the information to be disclosed to Mr. Khadr
with such terms and conditions as are deemed necessary. Subject to those
conditions, Mr. Khadr and his counsel will be free to use the information as
they see fit for the purposes of his defence, including release to the media
for publication. I will not issue an order, as requested by the moving parties,
for the general public disclosure of any of the information that is disclosed
to Mr. Khadr.
[97]
Mr. Khadr has
received orders for his costs in the Federal Court of Appeal and the Supreme
Court. In the particular circumstances of this case, and after considering the
factors set out in Rule 400 (3) of the Federal Courts Rules, and
considering in particular the difficulty of representing someone detained in a
foreign jurisdiction under military control, I will exercise my discretion to
award costs at a level higher than the normal scale.
ORDER
THIS
COURT ORDERS that:
- The
moving parties are granted leave to intervene for the limited purpose of
making submissions on public disclosure of the information to be disclosed
to the applicant;
- A
private order will be issued 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 deems necessary
in accordance with section 38.06 of the Canada Evidence Act ;
- Subject
to any specific condition restricting disclosure of the information which
may be set out in the private order, the applicant and his counsel may
release the information to other members of the public including the
media;
- The
applicant shall have his costs to be assessed at the high end of Column IV
of Tariff B for two counsel from the beginning of these proceedings on
January 24, 2008.
“Richard G.
Mosley”
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