Date: 20080115
Docket: DES-3-07
Citation: 2008 FC 46
Ottawa, Ontario,
January 15, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ABDULLAH
KHADR
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a
motion by the applicant for the appointment of an amicus curiae to assist
the Court in proceedings under section 38 of the Canada Evidence Act, R.S.,
1985, c. C-5 (CEA). The underlying application arises in the context of
a request for the extradition of the applicant to face charges in the United States of America. Mr. Khadr was arrested in Canada on December 17, 2005 pursuant
to a provisional warrant issued by a judge of the Ontario Superior Court of
Justice under the Extradition Act, S.C. 1999, c. 18. He was denied
judicial interim release and remains in custody.
[2]
In August
2006, the applicant filed a motion before the extradition judge seeking, among
other things, a voir dire to determine the admissibility of portions of
the Record of the Case relied upon by the requesting state and for an Order
requiring the Attorney General of Canada and the requesting state to produce
all documents relevant to the voir dire. Federal Crown counsel acting for
the requesting state voluntarily disclosed documents held by the Canadian
Security Intelligence Service, the Department of Foreign Affairs and
International Trade and the Royal Canadian Mounted Police.
[3]
In
preparing to provide disclosure, Crown counsel issued four notices to the
Attorney General of Canada under subsection 38.01(1) of the CEA, to the effect that
certain of the documents contained information of a sensitive nature or
information which could injure Canada’s international relations,
national defence or national security if released. As required by the statute,
the Attorney General reviewed the material and made decisions with respect to
whether disclosure of the information would be authorized or not authorized. Extensive
redactions or deletions were made to documents disclosed to the applicant.
[4]
The extradition
judge, Justice Christopher M. Speyer, in a decision rendered on July 24, 2007,
ruled that no order for disclosure was required with respect to the material in
the possession of Canadian government departments or agencies as those
documents had already been disclosed. He declined to make any order for
production against the requesting state. At paragraph 23 of his decision,
Justice Speyer noted that it was beyond the scope of his authority to determine
whether the circumstances of the extradition proceeding required the production
of unredacted copies of the material disclosed by the Canadian authorities as
that jurisdiction is assigned to a designated judge of the Federal Court under
section 38 of the Canada Evidence Act: United States of America v. Khadr
[2007] O.J. No.3140 (S.C.J.)
[5]
On August
21, 2007, Mr. Khadr filed an application in the Federal Court for an order
seeking the disclosure of the information which is the subject of the notices
provided by the Crown and with respect of which the Attorney General has not
authorized disclosure. I note that the requirements of the statute that such
applications be kept confidential were found to be in breach of the Canadian
Charter of Rights and Freedoms, enacted as Schedule B to the Canada Act
1982 (U.K.) 1982, c. 11, in Toronto Star Newspapers Ltd. v. Canada, 2007 FC 128, [2007]
F.C.J. No. 165. Although there was no controversy between the parties over
this question, for greater certainty I adopt the reasoning and conclusions of
that decision for the purposes of this proceeding.
[6]
On
November 5, 2007 counsel for the Attorney General filed and served redacted
copies of the documents at issue. These consist of some 266 documents
comprising approximately 1200 pages. Application and responding records with
supporting public and private affidavit evidence, including unredacted versions
of the documents, have been filed with the Court. Thus far, no evidence has
been heard ex parte.
[7]
This motion for the
appointment of an amicus was filed on November 15, 2007 and an oral
hearing on the motion was conducted on December 20, 2007. The applicant has
proposed the names of two independent counsel as candidates for appointment as amicus
in this matter. The respondent acknowledges that the Court has the implicit
jurisdiction to appoint an amicus but takes the position that such an
appointment is not necessary in the circumstances of this case and would lead
to delays in rendering a decision on the application.
[8]
In the
alternative, should the Court deem it necessary to appoint an amicus,
the respondent has proposed the names of four independent counsel, all of whom
are also acceptable to the applicant. Both parties have submitted proposed
terms of appointment and conditions to define the scope of the mandate of an
amicus. These proposed terms and conditions are substantially similar but
differ in certain important respects.
ISSUES:
[9]
The issues
which the Court is to determine on this motion are as follows:
1. Whether the appointment of an amicus
curiae is necessary to assist the court in deciding whether to confirm the
statutory prohibition against disclosure of the redacted information pursuant
to subsection 38.06(3) of the CEA; and
2. If the appointment of an amicus
curiae is found to be necessary, what should be the terms of appointment
and the scope of his or her participation in the proceedings?
ANALYSIS:
Is the appointment of an amicus curiae necessary
in these proceedings?
[10]
The
grounds relied upon by the applicant in support of the appointment of an amicus
are succinctly set out in his notice of motion as follows:
1. Absent the appointment of an amicus
curiae, the applicant's interests and perspectives will not be represented
before the court during ex parte sessions of these proceedings;
2. The exclusion of the applicant from
the proceedings and the absence of an amicus curiae would constitute a
violation of the applicant’s rights under section 7 of the Canadian Charter
of Rights and Freedoms; and
3. The appointment of an amicus curiae
is necessary in order to ensure a full and fair hearing of the issues
raised in these proceedings.
[11]
Although
the motion grounds cited by the applicant refer to section 7 of the Charter,
counsel has confirmed that the applicant does not seek any constitutional
remedy at this time, reserving the right to raise such a challenge at a later
date should it be warranted by the circumstances. However, counsel submits that
the Court’s decision on this motion should be informed by the fundamental
justice interests protected by section 7.
[12]
The
Federal Court of Appeal has upheld the constitutionality of the provisions
allowing for ex parte hearings in section 38 proceedings: Canada (Attorney General) v. Khawaja, 2007 FCA 388. The Court of
Appeal did not deem it necessary to address the question of the application of
section 7 as it considered that the issue was not squarely before it. In the
decision under appeal, Canada (Attorney General) v. Khawaja, 2007 FC
463, Chief Justice Allan Lutfy cited the existence of a discretion on the part
of the presiding judge to appoint an amicus as a significant factor,
stating the following at paragraph 57 of his reasons:
In my view, the Court's ability, on its
own initiative or in response to a request from a party to the proceeding, to
appoint an amicus curiae on a case-by-case basis as may be deemed
necessary attenuates the respondent's concerns with the ex parte
process. This safeguard, if and when it need be used in the discretion of the
presiding judge, further assures adherence to the principles of fundamental
justice in the national security context.
[13]
Chief
Justice Lutfy noted, at paragraph 49, that a variant of the amicus
model, although not identical to the traditional conception of that office, had
been used in Canada (Attorney General) v. Ribic, 2003 FCA 246. In that
case, counsel for the Attorney General on the section 38 application was
appointed to act on behalf of the applicant for the purpose of examining two
witnesses in camera. The Court of Appeal upheld the fairness of the process
in the circumstances in which it arose: the application had been made in the
middle of a jury trial, the legislation was new and there were very few
security cleared counsel then available.
[14]
There is
no provision for the appointment of an amicus in section 38. The
respondent submits that the Federal Court has the implied jurisdiction to
appoint an amicus where necessary to assist the court: Harkat (Re),
2004 FC 1717.
[15]
In Harkat,
Justice Eleanor Dawson reviewed the scope of the Federal Court's jurisdiction
to appoint an amicus in the context of a hearing into the reasonableness
of a security certificate signed pursuant to subsection 77 (1) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (IRPA). In the circumstances
of that case, Justice Dawson did not consider it necessary to decide the
question and assumed for the purposes of the motion before her that there is
such a jurisdiction. At paragraph 20 of her reasons, she noted that a power may
be conferred by implication to the extent that the existence and exercise of
such a power is necessary for the court to properly and fully exercise the
jurisdiction expressly conferred upon it by some statutory provision: Canada
(Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 at
pp. 639-644.
[16]
Justice Dawson
concluded that the applicant had not established that the Court could not
properly exercise its jurisdiction without the appointment of an amicus or
that recourse to a remedy under section 24 of the Charter was required. Three
additional reasons for refusing the application were identified: the absence of
any expression of Parliamentary intent in favour of such an appointment; the
lateness of the application and the resulting delay that it would occasion; and,
that the legislation provided designated judges with sufficient power and
flexibility to properly discharge the duties imposed.
[17]
A similar
result was reached in Jaballah (Re), 2006 FC 1010, also a security certificate case. Both
Harkat and Jaballah preceded the decision of the Supreme Court of
Canada in Charkaoui
v. Canada
2007 SCC 9. I note that in Charkaoui (Re), 2007 FC 1037 and Almrei v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1025, both conditional release applications arising
in certificate cases, the applicants were invited by the Court to bring motions
to appoint amici but declined.
[18]
The
respondent submits that in the present case it is clear that an amicus
is not required in order for the Court to exercise jurisdiction under section
38 of the CEA. The case is no more complex than other section 38 applications,
it is said, and the Court has developed an expertise in dealing with national
security cases without the benefit of amici. The appointment of an amicus
would likely add to the time required to begin and complete the section 38
proceeding, particularly if the independent counsel selected was not yet
security cleared.
[19]
As the
Supreme Court of Canada recognized in Charkaoui, above, at
paragraph 77, in enacting section 38 Parliament has made an effort to strike a
sensitive balance between the need for protection of confidential information
and the rights of the individual. I agree with the respondent that in most
instances, that balance can and should be achieved without the insertion of an
additional actor into the proceedings to assist the Court. To succeed on such
a motion, the applicant must articulate the reasons why it is necessary to
appoint an amicus for the Court to fully exercise its statutory
jurisdiction. It is not sufficient that it be simply desirable: Canadian Liberty Net, above at 641.
[20]
In these
proceedings, the applicant has made a compelling argument that, in the particular
circumstances of his case, the appointment of an amicus is necessary to
assist the Court to arrive at a full and fair determination of the disclosure
issues.
[21]
The
extradition request will be determined largely on the basis of a documentary Record
of the Case against the applicant in the foreign state. The applicant has a
limited ability to challenge the strength of the case against him in that
state. If extradited and convicted, he faces a maximum sentence of imprisonment
well in excess of his natural life span. While these may be factors common to
many extradition requests, there are additional considerations.
[22]
The
information at issue in this case is sought for the purpose of demonstrating
that the principal evidence against the applicant was allegedly obtained
through torture and illegal detention. The applicant argues in the extradition
proceedings that the evidence is inadmissible or in the alternative, “manifestly
unreliable” as described by the Supreme Court of Canada in United States of
America v. Ferras, 2006 SCC 33. The Crown has conceded that there is an
"air of reality" to Mr. Khadr’s allegations. As stated by Justice
Speyer at paragraph 40 of his decision on the voir dire motion, there is
a realistic possibility that the applicant's claims of abuse can be
substantiated giving rise to the remedy sought, that is, to exclude the
evidence from the extradition proceedings.
[23]
One of the
safeguards identified by Chief Justice Lutfy in Khawaja, above, at paragraph 59,
as contributing to the protection of the interests of the individual whose
liberty interests are engaged in a section 38 application based on underlying
criminal proceedings is subsection 38.14 of the Act. Subsection 38.14 provides
that the "person presiding at a criminal proceeding may make any order
that he or she considers appropriate in the circumstances to protect the right
of the accused to a fair trial… ".
Assuming that this provision would apply to the extradition hearing in Canada, it would have no application to a trial conducted in the
foreign jurisdiction.
[24]
While
there is a duty of utmost good faith on the part of counsel for the Attorney
General in section 38 proceedings and the respondent’s counsel on this
application are not directly engaged in the extradition proceedings, they will be
arguing in favour of maintaining the Attorney General’s decisions with respect
to disclosure of the contested information. Moreover, Federal Crown counsel have
carriage of the extradition proceedings on behalf of the requesting state.
There is at least the appearance that counsel for the Attorney General will be
adverse in interest to the applicant with respect to the disclosure issues
which the Court must address.
[25]
The possibility,
as argued by the respondent, that appointment of an amicus would result
in delays in the proceedings, either to obtain security clearances or to
conduct the ex parte hearings, is a relevant consideration. The Court
would be reluctant to adopt the procedure when it may have uncertain benefits and
could result in significant delay in related proceedings. One example would be
when a section 38 application is being considered in the middle of a jury trial.
[26]
In this
instance, the motion has been made on a timely basis prior to the hearing of
any evidence. There are prospective amicus candidates available with the
required clearances and it is not expected that the hearings will be unduly
prolonged. Counsel for Mr. Khadr has also stressed that his desire for the
appointment of an amicus outweighs his interest in a more rapid
disposition of the underlying application.
[27]
I am
satisfied that in these circumstances, the appointment of an experienced and
independent counsel to act as amicus curiae is necessary for the
full exercise of the Court’s jurisdiction.
Terms of appointment and mandate:
[28]
As noted
above, both parties have submitted proposed terms and conditions which are
largely similar. They are agreed, for example, that the amicus designated
by the Court shall be required to have, or apply for and receive, security
clearance to the satisfaction of the Attorney General before being appointed,
that the amicus shall have reasonable access to the unredacted versions
of the documents at issue and that the Court may order the reasonable fees and
disbursements of the amicus to be paid by the Attorney General. The
respondent would prefer that payment be subject to applicable Treasury Board
policies or guidelines. While I would encourage agreement to be reached, the
matter could be determined by the Court at a later date if an issue arises as
to what constitutes "reasonable" compensation.
[29]
The
parties differ over the nature of the role that the amicus should
perform. The applicant submits that it should be substantially the same as that
proposed for "special advocates” in the context of proceedings under IRPA
by Bill C-3, currently before Parliament, or as set out in the Special
Immigration Appeals Commission Act, 1997 c.68 in the United Kingdom. As such, the amicus
would represent the interests of the applicant and advance his point of view in
the ex parte portion of the section 38 proceedings, in which the
applicant could not take part.
[30]
The
respondent’s position is that the role of an amicus curiae has
traditionally been regarded as that of a "friend of the court”, as the
term translates into English. The role has been characterized as that of a
disinterested person appointed to assist the court to serve generally one of
three different purposes: (i) to represent unrepresented interests before the
court; (ii) to inform the court of some factor circumstance that the court may
otherwise be unaware of; or (iii) to advise the court on a point of law: Attorney
General of Canada et. al. v. Aluminum Company of Canada, (1987) 35 D.L.R. (4th)
495 (B.C.C.A.) at 505.
[31]
Counsel
have drawn my attention to a number of cases in which amici have been
appointed by the courts in diverse circumstances. In LePage v. Ontario
(2006), 214 C.C.C. (3d) 105, the Ontario Court of Appeal considered the
authority of the mental health board to appoint an amicus to present
submissions on behalf of a person found not criminally responsible by reason of
mental disorder. In describing the role of the amicus for a unanimous
panel, Juriansz J.A. stated the following at paragraph 29:
I would not adopt an unduly technical
approach to the question. Certainly, amicus curiae appointed by the
court have no solicitor-client relationship with the accused and may be
described as counsel to the court. However, the role of amicus curiae
is not strictly defined and continues to evolve. One of the roles of amicus
curiae has been recognized as being an assistant to the court when
"there is a failure to present the issues (as, for example, where one side
of the argument has not been presented to the Court)".... In my view amicus
curiae may be appointed by the Board and assigned the role of presenting
the issues favouring the accused which otherwise might not be raised. I am
satisfied that an amicus curiae who is assigned this role may be said to
"act for the accused". [authority cited omitted]
[32]
Similarly,
I am of the view that in the context of a section 38 application related to a
criminal proceeding, such as in the present case, an amicus appointed by
the Court may present the issues favouring the person seeking disclosure of the
information during the ex parte portion of the proceedings and may be
said in that respect to act for the individual at that stage. But the amicus
has no solicitor-client relationship with the individual and his or her role will
be to assist the Court in arriving at a just determination of the issues.
[33]
The
applicant does not dispute that the amicus must keep the information at
issue confidential until such time as it may be ordered disclosed. However he
questions the respondent's position that the amicus should not have any
communication with the applicant or counsel for the applicant once he or she
has been granted access to the redacted information and documents, without
leave of the Court. He submits that the amicus cannot perform an
effective role under that constraint. However, it remains open to the Court to
grant leave for such communication under such terms as may be necessary to
protect the confidential information when it is deemed necessary for the proper
exercise of the Court's jurisdiction.
[34]
In view of
the recent decision of the Supreme Court of Canada in Named Person v.
Vancouver Sun, 2007 SCC 43, the respondent submits that the amicus
should be limited to presenting written and oral submissions on matters of fact
and evidence alone and not on points of law. In Named Person, an Extradition
Judge had appointed an amicus to assist him in dealing with an issue of
informer privilege. The Supreme Court held that this was an error as the
determination of the proper legal test was the Judge’s responsibility. Counsel drew
my attention to statements in the majority's reasons at paragraph 48 which may
be construed as supporting a restrictive interpretation of the scope of the
mandate which an amicus may be given.
[35]
I do not
read the majority’s decision in the Named Person case as laying down a
definitive rule that an amicus curiae cannot make submissions on points
of law. As stated by Justice Louis LeBel in his dissenting reasons at
paragraph 155, that would be inconsistent with the Supreme Court's own practice
in appointing amici in cases such as the Reference Re Succession of
Québec, [1998] 2 S.C.R. 217. To illustrate recent application of this
practice, counsel for the applicant tabled a copy of an Order issued by the
Chief Justice on December 10, 2007 under Rule 92 of the Supreme Court Rules
SOR/2002-156 appointing an amicus to file a factum and book of authorities
and to make oral submissions in a pending appeal: Attorney General of
Ontario, 3rd Party Record Holder v. Lawrence McNeil et al., File
No.31852.
[36]
In my
view, the decision of the majority in Named Person turns on the absolute
nature of the informer privilege. As stated at paragraph 63 of the majority's
reasons, "... the determination of the proper legal test to be applied was
the responsibility of the Extradition Judge. Moreover, the decision to reveal
to the amicus detailed facts about the Named Person was inconsistent
with the Extradition Judge's obligation to protect the information covered by
informer privilege...."
[37]
Should the
issue of informer privilege arise with respect to the redacted information at
issue in these proceedings, the Court will have to ensure that the amicus
not have access to that information or make submissions on the scope of the
privilege. Barring that situation, the amicus will be invited to make
submissions on the facts and the law.
[38]
As noted
above, the parties have put forward the names of six very experienced and
capable independent counsel. The applicant would be content with any of the
four proposed by the respondent. One of the six lacks the required security
clearances at present and another is not available other than on a limited part
time basis until April. While delay is not a major concern, as discussed
previously, the proposed candidates indicated through counsel or were asked by
the Court Registry to submit information as to their short-term availability and
that was taken into consideration.
[39]
The
respondent submits that the Court should appoint a candidate only from the list
suggested by the parties and in the event that no satisfactory candidate is
presented, the parties should be given a reasonable opportunity to provide
additional candidates. Barring a statutory restriction such as is set out in
the proposed paragraph 83(1)(b) in Bill C-3 or binding authority on the
question, I see no reason for the Court to accept such a constraint on the
exercise of its discretion. It is open to the Court to select independent
counsel worthy of the Court's trust and confidence whether or not they are
proposed by the parties.
[40]
Having
said that, I have had no difficulty in finding within the group of proposed
candidates a senior member of the private bar in whom I have confidence, who
has experience in national security matters and the required security clearances
and who is available to participate in the ex parte proceedings in the
coming days.
ORDER
THIS COURT ORDERS that:
- Mr. Leonard M. Shore, Q.C. of Ottawa, Ontario
is appointed as amicus curiae to assist the Court in preparing for
and to participate in the ex parte hearings of evidence and
representations submitted on behalf of the Attorney General of Canada in
this application pursuant to section 38 of the Canada Evidence Act;
- The amicus curiae shall have
reasonable access to the ex parte affidavits filed by the Attorney
General of Canada in these proceedings,
including attachments, as determined by the Court;
- The amicus curiae may
communicate with counsel for the parties in preparation for the ex
parte hearings;
- The amicus curiae will keep
confidential from the applicant, his counsel and any others not
participating in the ex parte hearings, all confidential information
and documents to which the amicus curiae has access in this
application;
- The amicus curiae will not
have any communication with the applicant or counsel for the applicant
once he has been granted access to the confidential information and
documents, without prior leave of the Court;
- The amicus curiae may
participate in the ex parte proceedings, may cross-examine the
respondent’s ex parte affiants and witnesses and present written
and oral submissions as directed by the Court;
- The amicus curiae may also
participate in any ex parte proceedings requested by the applicant,
as directed by the Court;
- The amicus curiae may attend
any public proceedings in respect of this application and may make oral
submissions with leave of the Court;
- The respondent will have the right
of reply to any submissions made by the amicus curiae; and,
- The respondent will pay the
reasonable fees and disbursements of the amicus curiae.
“Richard
G. Mosley”
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