Date: 20090909
Dockets: A-78-09
A-79-09
Citation: 2009 FCA 259
CORAM: SEXTON J.A.
EVANS J.A.
LAYDEN-STEVENSON J.A.
Docket: A-78-09
BETWEEN:
MOHAMEDOU OULD SLAHI
Appellant
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
Docket: A-79-09
BETWEEN:
AHCENE ZEMIRI
Appellant
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
Heard at Ottawa, Ontario, on September
9, 2009.
Judgment delivered from the
Bench at Ottawa,
Ontario, on September
9, 2009.
REASONS FOR JUDGMENT OF THE COURT BY:
EVANS J.A.
Date: 20090909
Docket: A-78-09
Citation: 2009 FCA 259
CORAM: SEXTON
J.A.
EVANS
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
MOHAMEDOU OULD SLAHI
Appellant
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
Docket: A-79-09
BETWEEN:
AHCENE ZEMIRI
Appellant
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 OF THE
COURT
(Delivered from the Bench at Ottawa, Ontario, on September 9, 2009)
EVANS J.A.
[1]
This is an
appeal from a decision of the Federal Court in which Justice Blanchard
(“Applications Judge”) dismissed an application for judicial review by the
appellants. Relying on Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2
S.C.R. 125 (“Khadr”), the appellants requested disclosure of the records
of interviews with them by Canadian officials in the U.S. facility at
Guantànamo Bay and of any material handed over to U.S. authorities as a result of
those interviews.
[2]
The
appellants base their claim on section 7 of the Canadian Charter of Rights
and Freedoms. However, the Applications Judge held that section 7 does not
apply to the appellants because the conduct of Canadian officials of which they
complain occurred outside Canada and they are not Canadian
citizens. The fact that the appellants had resided in Canada at one time, he said, was an
insufficient nexus to Canada to bring them within the
protection of section 7.
[3]
The
Federal Court’s decision in these consolidated applications is reported as Slahi
v. Canada (Minister of Justice), 2009 FC 160.
[4]
The only
issue to be decided in these consolidated appeals is whether the Applications
Judge erred in concluding that section 7 was inapplicable to the appellants
while detained by the U.S. authorities at Guantànamo Bay because they are not
Canadian citizens. Substantially for the reasons given by the Applications Judge,
we are of the view that his conclusion was correct. Khadr is
distinguishable on the ground that Mr Khadr is a Canadian citizen, whereas the
appellants are not. Further, there are no proceedings pending in Canada against
the appellants which might provide a nexus to Canada.
[5]
We would
only add this. The fact that the rights contained in some sections of the
Charter are limited to Canadian citizens, while others, including section 7, are
not, is not of much significance in a case where it is argued that the Charter
applies extraterritorially. The Charter normally applies to governmental action
within Canada and was drafted with that in
mind.
[6]
Counsel
for the appellants advances two arguments. First, he says that the two-step
inquiry for determining whether the Charter applies to an investigation
conducted by Canadian officials outside Canada does not include the citizenship
of the individual concerned: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R.
292 at para. 113. By adding a requirement that the individual must have a nexus
to Canada, counsel argues, the
Applications Judge erred by modifying the test prescribed by the Supreme Court
for applying the Charter extraterritorially.
[7]
We do not
agree. Since Mr Hape was a Canadian citizen, it was obvious that he had a nexus
with Canada and it was unnecessary for
the Court to address the question. Consequently, by requiring a nexus in a case
where the individual was not a Canadian citizen, the Applications Judge cannot
be said to have reached a decision that is inconsistent with Hape. He
correctly distinguished Khadr on the basis that Mr Khadr is a Canadian
citizen, whereas the appellants are not.
[8]
Second,
counsel argues that Canada’s obligations in
international law inform the interpretation of the Charter. He submits that the
Applications Judge’s interpretation of section 7 as not protecting the
appellants in this case should not be accepted because it is inconsistent with
Canada’s obligations under the International Covenant on Civil and Political
Rights, Can. T.S. 1976 No. 47. In particular, he notes that Article 2(1) of
the Covenant provides that each State Party undertakes to respect and ensure
Covenant rights to all individuals within its territory and subject to its
jurisdiction, without distinction based on national origin.
[9]
We are not
persuaded by this argument. Apart from the fact that section 7 was found not to
apply to the appellants on the facts of this case by virtue of their
nationality, not their national origin, while the appellants were detained at Guantànamo Bay they were subject to the
jurisdiction of the U.S., not Canada. The fact that they were interviewed by
Canadian officials at Guantànamo Bay
did not make them subject to Canada’s jurisdiction within the
meaning of Article 2(1) of the Covenant.
[10]
The
statements from international law opinions on which counsel relies as
indicating that the phrase “subject to its jurisdiction” should be given a meaning
broad enough to apply to the facts of the present case were made in very
different contexts. For example, the Advisory Opinion of the International
Court of Justice in the Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, (ICJ Reports 2004, 180) concerned
activities by the Government of Israel outside its territory, but within
territory that it occupied. And, in Lopez Borgos v. Uruguay (U.N. Doc.
CCPR/C/13D/1979 (1981)), the United Nations’ Human Rights Committee was dealing
with a complaint by a Uruguayan national against Uruguay.
[11]
For these
reasons, the appeals will be dismissed with one set of costs and a copy of the
reasons will be inserted in both files.
“John
M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-78-09
/ A-79-09
STYLE OF CAUSE: MOHAMEDOU
OULD SLAHI / AHCENE ZEMIRI
and
THE
MINISTER OF JUSTICE and THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF FOREIGN
AFFAIRS, THE DIRETOR OF THE CANADIAN SECURITY INTELLIGENCE SERVICE, and THE
COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 9, 2009
REASONS FOR JUDGMENT OF THE COURT BY: Evans J.A.
DELIVERED FROM THE BENCH BY:
DATED: September 9, 2009
APPEARANCES:
|
Nathan Whitling
|
FOR THE APPELLANT
|
|
Doreen
Mueller
|
FOR THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
Parlee McLaws LLP
Edmonton, Alberta
|
FOR THE APPELLANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENTS
|
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