Date: 20070510
Docket:
A-184-06
Citation: 2007 FCA 182
CORAM: DESJARDINS
J.A.
LÉTOURNEAU
J.A.
RYER J.A.
BETWEEN:
OMAR AHMED
KHADR
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
DESJARDINS
J.A.
[1]
This
appeal raises the question of whether government action which occurred outside
Canada triggers the application of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the
Charter).
[2]
The
appellant, Omar Ahmed Khadr, is appealing the decision of von Finckenstein J.
of the Federal Court (Khadr v. Canada (Minister of
Justice),
2006 FC 509) which dismissed his
application for judicial review. The
appellant sought a remedy under subsection 24(1) of the Charter for a violation
of his right under section 7 of the Charter to a full answer and defence to
criminal charges. He sought an order in the nature of mandamus directing
the respondents to make full and complete disclosure of all the documents, records
and other materials in the possession of all departments of the Crown in Right
of Canada which might be relevant to the charges laid against him by the
government of the United States.
[3]
The
four respondents, 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 (collectively
referred to herein as the Crown), are officials of the government of Canada who
are in possession of voluminous documentary materials which are allegedly
relevant to the charges against the appellant.
THE FACTS
[4]
The
appellant, a Canadian citizen, was apprehended by the American military in July
2002. He is presently detained in U.S. Naval Station, Guantánamo Bay, Cuba.
[5]
In
November 2005, the appellant was charged with: conspiracy to commit offences
triable by Military Commission; murder by an unprivileged belligerent;
attempted murder by an unprivileged belligerent; and aiding the enemy. As of
February 2, 2007, the charges against him read: murder in violation of the law
of war; attempted murder in violation of the law of war; conspiracy; providing
material support for terrorism; and spying.
[6]
The
charges relate to events which are alleged to have occurred in Afghanistan and
elsewhere when the appellant was 15 years of age and younger. They carry a
maximum penalty of life imprisonment. The prosecution is not seeking the imposition
of the death penalty.
[7]
The
appellant currently awaits prosecution by a Military Commission established by
Order of the Secretary of Defence of the United States. No date for
trial has yet been set.
[8]
Prior
to the laying of charges, Canadian officials from the Canadian Security
Intelligence Service (CSIS) and the Department of Foreign Affairs and
International Trade (DFAIT), with the consent of U.S. authorities,
attended at Guantánamo Bay and
interviewed the appellant in the absence of his counsel. These visits were allegedly
not welfare visits or covert consular visits but were purely information
gathering visits with a focus on intelligence/law enforcement. The topics
discussed with the appellant included matters which were the subject of the
charges. Canadian agents took a primary role in these interviews, were acting
independently and were not under instructions of U.S. authorities.
Summaries of information collected were passed on to the RCMP and to U.S.
authorities (Khadr v. Canada (Attorney General), 2004 FC 1394 (T.D., para.
4); Khadr v. Canada (Attorney General), 2005 FC 1076 (T.D); Exhibits to
cross-examination of William Robert James Johnston, A.B. vol 11, tab 13, pp.
257-265; Reasons for order and order of von Finckenstein J. at para. 19
(iv)).
[9]
Through
requests pursuant to the Access to Information Act, R.S.C. 1985, c. A-1 (AIA)
and through production and disclosure in Federal Court proceedings T-536-04 (an
action by the
appellant seeking various remedies under
the Charter for an alleged violation by Canadian officials of his right to
silence and his right to counsel in conducting interviews in Guantánamo Bay) and
T-686-04 (an application by the appellant’s family in order to compel the
government to extend consular and diplomatic services to him), the appellant
obtained redacted copies of some of the documentary materials in the Crown’s
possession. The deletions and redactions were made on grounds of international
relations, national defence and national security, and more specifically,
pursuant to certain statutory exemptions under the AIA and a “specific public
interest immunity” under section 38 of the Canada Evidence Act, R.S.C.
1985, c. C-5 (CEA). Over 3,000 pages of documents were provided by the
respondents. No steps were taken by the appellant to challenge
the redactions and deletions made to these documents.
[10]
On
November 21, 2005, the appellant’s counsel sent a letter to the respondents which
read (A.B. vol. 1, p. 20-21):
The writer, Mr. Dennis
Edney and Professors Muneer Ahmad and Richard Wilson of American University act as
counsel for Mr. Omar Ahmed Khadr. Mr. Khadr is currently detained by U.S.
forces in Guantanamo
Bay, Cuba. Mr. Khadr
has recently been charged by the United States with the offences of
Conspiracy, Murder by an Unprivileged Belligerent, Attempted Murder by an
Unprivileged Belligerent, and Aiding the Enemy as detailed in the enclosed
Charge Sheet. Kindly receive this letter as our formal joint demand pursuant
to s. 7 of the Canadian Charter of Rights and Freedoms for
production of all relevant documents in the possession of the Crown in Right of
Canada which might be relevant to the charges raised against Mr. Khadr and as
such, are necessary to enable Mr. Khadr to raise full answer and defence to the
charges.
Through our experience
as Mr. Khadr’s counsel, we have obtained copies of voluminous materials from
DFAIT, CSIS and the RCMP under both the Access to Information Act and
the Crown’s production requirements in Federal Court of Canada Numbers T-536-04
and T-686-04. Much of the content of these documents has been redacted or withheld
from us on the basis of assertions of privilege, including the statutory
privilege created by s. 38 of the
Canada Evidence Act. For further
information regarding these materials, their content and the claims of
privilege raised therein, we direct you to Mrs. Doreen Mueller, Department of
Justice Canada, Counsel for
Her Majesty the Queen in Action Numbers T-536-04 and T-686-04, (780) 495-8352.
Based on our review of
these materials, it is apparent that DFAIT, CSIS, the RCMP and possibly other
departments of the Crown in Right of Canada are in possession of materials which
are relevant to the serious charges now raised against our client, and
which materials are therefore necessary for Mr. Khadr to raise full answer and
defence to said charges.
At the time that the
claims of privilege referred to above were made, Mr. Khadr was not facing the
charges. Consequently,
Mr. Khadr’s constitutional right to raise full answer and defence to the
charges would not have been a factor taken into account. We take it you agree
that Mr. Khadr’s right to raise full answer and defence to the charges now
overrides and outweighs the interests forming the basis of these previous
assertions of privilege.
In light of the above,
we hereby demand that you now provide us with copies of all materials in the
possession of all departments of the Crown in Right of Canada which might be
relevant to the charges raised against Mr. Khadr in accordance with the
requirements of R. v. Stinchcombe, [1991] 3 S.C.R. 326 as applied to
extraterritorial prosecutions in such cases as Purdy v. Canada (Attorney
General) (2003), 230 D.L.R. (4th) 361 (B.C.C.A.). Without
limitations, these materials include all the content redacted from the
documents referred to above. Relevance in this regard should be determined by
reference to the matters pleaded in the enclosed charge sheet.
We confirm that we are
willing to accept the materials requested above upon the provision of formal
undertakings by the writer, Mr. Edney, Professor Ahmad and Professor Wilson
that said materials may only be reviewed by ourselves and Mr. Khadr’s
soon-to-be-appointed military defence counsel absent consent from the Crown or
direction from the Court.
[Emphasis
added.]
[11]
The
request covered all materials in the possession of all departments of the Crown
in Right of Canada which might be relevant to the charges against Mr. Khadr in
accordance with the
requirements of R. v. Stinchcombe,
[1991] 3 R.C.S. 326. It included all of the content redacted from the documents
previously obtained under the AIA and in the context of Federal Court
proceedings T-536-04 and T-686-04.
[12]
The
respondents did not respond to the request. On January 3, 2006, the
appellant brought a judicial review application seeking:
An Order in the nature
of mandamus directing the Respondents to provide counsel for the Appellant with
full and complete disclosure of all documents, records and other materials in
the possession of all departments of the Crown in Right of Canada which might
be relevant to the Charges and which are therefore necessary for the purpose of
allowing the Applicant to raise full answer and defence to the Charges…
THE JUDGMENT BELOW
[13]
The
main issue before the applications judge was whether the Charter applied in the
circumstances of this case and whether a mandamus should issue.
[14]
The
applications judge considered the Supreme Court of Canada decisions in R. v.
Cook, [1998] 2 S.C.R. 597 and Suresh v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 3 . He also examined the decision in Purdy
v. Canada (Attorney General of Canada) (2003), 226
D.L.R. (4th) 761 (B.C.S.C.) aff’d (2003), 230 D.L.R. (4th)
361 (B.C.C.A.). He decided that the requirement that there be a sufficient
causal connection between the government of Canada's participation
and the appellant's potential deprivation of the right to life, liberty and
security of the person was not met. Furthermore, he was not convinced that the
unique circumstances of Purdy applied.
[15]
The
applications judge concluded that the first two requirements for an order of mandamus
to be granted were not met (Apotex Inc. v. Canada (Attorney General),
[1994] 1 F.C. 742 at paragraph 45).
[16]
He
dismissed the application.
ISSUES
[17]
This
Court must decide whether the applications judge erred in finding that the
Charter does not have extraterritorial application in the circumstances of this
case. If it finds that the Charter applies and that section 7 is engaged, it
must determine the nature of the order to be issued.
SUBMISSIONS
[18]
According
to the appellant, the applications judge erred in concluding that the Charter
does not apply in the circumstances of this case. By withholding relevant
documents, the Crown has itself frustrated the appellant’s ability to raise
full answer and defence to the charges and has itself increased the risk that
the appellant might be wrongly convicted of the charges. The conduct of the
Crown in gathering information and evidence which was then passed on to U.S. authorities
is relevant in this regard. The Crown’s refusal to disclose relevant documents
constitutes a violation of the appellant’s right under section 7 of the Charter
and warrants a just and appropriate remedy pursuant to subsection 24(1) of the
Charter.
[19]
The
respondents submit that the applications judge correctly dismissed the
application since there is no causal connection between the actions of Canadian
officials and the prosecution of the appellant by U.S. authorities.
[20]
The
respondents claim that the disclosure of documents pursuant to AIA requests and
in the context of Federal Court proceedings T-536-04 and T-686-04 constitutes an
adequate alternative remedy to an order under subsection 24(1) of the Charter.
The appellant, they say, seeks concurrent disclosure of essentially the same
documents already provided because, in the appellant’s view, the allegations
made in this underlying judicial review application allow for a more persuasive
argument to challenge the redactions of the documents than in previous
proceedings.
[21]
The
appellant admits that many of the documents at issue in these proceedings have
been produced in Federal Court proceedings T-536-04 and T-686-04 and/or
pursuant to requests under the AIA. He accepts the legal limits to disclosure. He
wishes however to challenge, in the most effective manner possible, the
respondents’ reliance on public interest immunity claims and statutory
exemptions under the AIA to provide heavily redacted copies of the documents
sought or to withhold documents entirely. He wants to ensure that his challenge
is determined under section of the Canada Evidence Act and not under
section 50 of the AIA. He also wants to ensure that his right to make full
answer and defence will be taken into consideration in the balancing of
interests (Gold v. R., [1986] 2 F.C. 129 at paragraphs 15-17 (C.A.); Ribic
v. Canada (Attorney General) (2003), 185 C.C.C. (3d) 129 at paragraphs
13-32 (F.C.A.)). He was not facing charges at the time the earlier proceedings
were initiated. Consequently, when applying section 38.06 of the Canada
Evidence Act
in the context of T-536-04 and T-686-04, it
is doubtful, in his opinion, that the designated judge may consider and weigh
the appellant’s right to raise full answer and defence in the balancing of
interests required by subsection 38.06(2).
STANDARD OF REVIEW
[22]
The
Federal Court judge found that the Charter does not apply in the circumstances
of this case. This is a question of law reviewable on the correctness standard:
Nova
Scotia
(Workers' Compensation Board) v. Martin; Nova Scotia (Workers'
Compensation Board) v. Laseur, [2003] 2 S.C.R. 504 at paragraph 31.
LEGISLATIVE PROVISIONS
[23]
The
relevant legislative provisions are the following:
Section
7 of the Charter:
|
Legal Rights
Life, liberty and security of person
7.
Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles of
fundamental justice.
|
Garanties juridiques
Vie,
liberté et sécurité
7.
Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne
peut être porté atteinte à ce droit qu'en conformité avec les principes de
justice fondamentale.
|
Subsection
24.1 of the Charter:
|
Enforcement
Enforcement of guaranteed rignts and freedoms
24. (1) Anyone whose rights or freedoms,
as guaranteed by this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.
[…]
|
Recours
Recours en cas d'atteinte aux droits et libertés
24.
(1) Toute personne, victime de violation ou de négation des droits ou
libertés qui lui sont garantis par la présente charte, peut s'adresser à un
tribunal compétent pour obtenir la réparation que le tribunal estime
convenable et juste eu égard aux circonstances.
[…]
|
Subsections
38.06(1) and (2) of the Canada Evidence Act:
|
Disclosure order
38.06
(1) Unless the judge concludes that the
disclosure of the information would be injurious to international relations
or national defence or national security, the judge may, by order, authorize
the disclosure of the information.
Disclosure order
(2)
If the judge concludes that the disclosure of the information would be
injurious to international relations or national defence or national security
but that the public interest in disclosure outweighs in importance the public
interest in non-disclosure, the judge may by order, after considering both
the public interest in disclosure and the form of and conditions to
disclosure that are most likely to limit any injury to international
relations or national defence or national security resulting from disclosure,
authorize the disclosure, subject to any conditions that the judge considers
appropriate, of all of the information, a part or summary of the information,
or a written admission of facts relating to the information.
[…]
|
Ordonnance
de divulgation
38.06
(1) Le juge peut rendre une ordonnance autorisant la divulgation des
renseignements, sauf s’il conclut qu’elle porterait préjudice aux relations
internationales ou à la défense ou à la sécurité nationales.
Divulgation
modifiée
(2)
Si le juge conclut que la divulgation des renseignements porterait préjudice
aux relations internationales ou à la défense ou à la sécurité nationales,
mais que les raisons d’intérêt public qui justifient la divulgation
l’emportent sur les raisons d’intérêt public qui justifient la non-divulgation,
il peut par ordonnance, compte tenu des raisons d’intérêt public qui
justifient la divulgation ainsi que de la forme et des conditions de
divulgation les plus susceptibles de limiter le préjudice porté aux relations
internationales ou à la défense ou à la sécurité nationales, autoriser, sous
réserve des conditions qu’il estime indiquées, la divulgation de tout ou
partie des renseignements, d’un résumé de ceux-ci ou d’un aveu écrit des
faits qui y sont liés.
[…]
|
ANALYSIS
Duty
to disclose
[24]
Since
the landmark decision of the Supreme Court of Canada in R. v. Stinchcombe,
it is trite law that the Crown has a continuing obligation to disclose all
relevant information to an accused, whether inculpatory or exculpatory, subject
to the exercise of the Crown’s discretion to refuse to disclose information
that is privileged or plainly irrelevant (paragraphs 20, 29). The obligation to
disclose is triggered by a request by or on behalf of the accused (paragraph
28).
[25]
The
Supreme Court of Canada has broadly defined the concept of “relevance” such
that little information will be exempt from the Crown’s duty to disclose: R.
v. Egger, [1993] 2 S.C.R. 451 at 467; R. v. Taillefer; R. v. Duguay,
[2003] 3 S.C.R. 307 at paragraph 60. The Crown’s duty to disclose is triggered
whenever there is a reasonable possibility of the information being useful to
the accused in making full answer and defence: R. v. Dixon, [1998] 1
S.C.R. 244 at paragraph 21; R. v. Chaplin, [1995] 1 S.C.R. 727 at
paragraphs 26-27.
[26]
A
failure to disclose relevant information impedes an accused's ability to make
full answer and defence and creates the risk of an innocent person being
convicted and imprisoned. As one of the principles of fundamental justice, the
right to make full answer and defence has been entrenched in the section 7
protection of the right to life, liberty and security of the person (Stinchcombe
at paragraph 17).
[27]
In
Stinchcombe, the accused seeking disclosure from the Crown was facing
criminal charges in Canada. It is in this context that the Supreme Court of
Canada set out the guiding principles governing disclosure by the Crown. In the
case at bar, the charges are not being prosecuted in Canada.
[28]
In
R. v. Cook, [1998] 2 S.C.R. 597, the Supreme Court of Canada has recognized
that there may be rare circumstances in which the Charter may apply
outside Canada, namely where (1) the impugned act falls within subsection 32(1)
of the Charter; and (2) the application of the Charter to the actions of the
Canadian detectives in the United States does not interfere with the sovereign
authority of the foreign state and thereby generate an objectionable
extraterritorial effect (paragraph 25).
Does the Charter have an
extraterritorial reach in the circumstances of this case?
[29]
In
United States of America v. Kwok, [2001] 1 S.C.R. 532, the Supreme Court
of Canada explained that “[o]nly where a justiciable Charter issue can
arise from the potential involvement of the Canadian authorities in the
gathering of evidence is it necessary to consider the degree of disclosure
that might be required of the Requested State” (paragraph 106). [Emphasis
added.] In doing so, the Supreme Court of Canada distinguished its earlier
decision in United States of America v. Dynar, [1997] 2 S.C.R. 462 where
it had stated that the disclosure requirements of Stinchcombe only
applied to domestic criminal proceedings: “In Dynar, the fugitive was
not entitled to disclosure from Canadian authorities because no justiciable
Charter issue arose. Canadian authorities had not provided any assistance to
the Americans in gathering evidence and, in any
event, the latter were
not relying on anything but their own evidence.” (paragraph 106).
[Emphasis added.]
[30]
In
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3 at paragraph 54, the Supreme Court of Canada reaffirmed a principle
previously recognized in United States v. Burns, [2001] 1 S.C.R. 283:
… the guarantee of
fundamental justice applies even to deprivations of life, liberty or security
effected by actors other than our government, if there is a sufficient
causal connection between our government's participation and the deprivation
ultimately effected. We reaffirm that principle here. At least where
Canada's participation is a necessary precondition for the deprivation and
where the deprivation is an entirely foreseeable consequence of Canada's
participation, the government does not avoid the guarantee of fundamental
justice merely because the deprivation in question would be effected by someone
else's hand.
[Emphasis
added.]
[31]
In
Purdy v. Canada (Attorney General) (2003), 226 D.L.R. (4th)
76 (B.C.S.C.), a Canadian citizen, facing criminal charges in the United States
following a joint sting operation involving the RCMP and American police petitioned
the British Columbia Supreme Court for an order pursuant to subsection 24(1) of
the Charter compelling the RCMP to provide copies of the materials within its
possession that related to the investigation. The British Columbia Supreme Court
granted the order sought. It explained, at paragraphs 19-22 of its reasons:
In the case at bar, the
Attorney General of Canada submits there is no justiciable Charter issue
because in the absence of criminal charges in Canada, Mr. Purdy
has no right to disclosure and the Crown has no obligation to disclose.
This is a formidable
argument worthy of consideration, but in my view, the unique circumstances of
this case allow me to apply the general principle of Stinchcombe, that
information ought not to be withheld if there is a reasonable possibility that
the withholding of information will impair the right to make full answer and
defence.
The right to make full
answer and defence is a common law right that has been incorporated in s. 7 of
the Charter as one of the principles of fundamental justice:
The right to make full
answer and defence is one of the pillars of criminal justice on which we
heavily depend to ensure that the innocent are not convicted. Recent events
have demonstrated that the erosion of this right due to non-disclosure was an
important factor in the conviction and the incarceration of an innocent person.
[Stinchcombe, supra, at p. 336.] ]
The petitioner is a
Canadian national whose life and liberty has been put in jeopardy because of an
investigation which took place in Canada and in which Canadian
authorities played a major part. In a joint investigation, such as this one,
the ultimate forum in which the accused is tried should not deprive the accused
from the observance by Canadian authorities of Charter rights to which the
accused would otherwise have been entitled.
[Emphasis
added.]
[32]
The
British Columbia Supreme Court ordered disclosure as a remedy for the
infringement of Mr. Purdy’s constitutional rights, finding that this was “the only
practical remedy” (paragraph 28). This decision was affirmed by the British
Columbia Court of Appeal, (2003), 230 D.L.R. (4th) 361, which found that the causal connection
between Canada’s participation and the deprivation of a liberty interest in a
foreign state was direct and obvious (paragraph 20) and emphasized that “a
justiciable issue on disclosure may arise in relation to foreign proceedings where
Canadian authorities gathered some of the evidence” (paragraph 22).
[Emphasis added.]
[33]
In
the case at bar, Canadian officials questioned the appellant in Guantánamo Bay prior to the
laying of charges. As previously mentioned, the visits were purely information
gathering visits with a focus on intelligence/law enforcement. Summaries of the
information collected were passed
on to U.S. authorities.
The Canadian officials were acting independently and were not under
instructions of U.S. authorities.
[34]
In
these circumstances, the participation of Canadian officials in gathering
evidence against the appellant at the pre-charge level raises, in my view, a
justiciable Charter issue (Kwok at paragraph 106; Purdy at
paragraph 22 (B.C.C.A.)). They took an active role in interviewing the
appellant and in transmitting summaries of the information collected to U.S. authorities.
In doing so, they assisted U.S. authorities in conducting the
investigation against the appellant and in preparing a case against him. Canada’s
participation may have made it more likely that criminal charges would be laid
against the appellant thereby increasing the likelihood that he would be deprived
of his right to life, liberty and security of the person. I believe that in
these circumstances the Charter applies. There is a sufficient causal
connection between the Canadian government's participation in the foreign investigation
and the potential deprivation of life, liberty and security of the person which
the appellant now faces. I am satisfied that the applications judge erred in
concluding that a sufficient causal connection did not exist.
Does
the application of the Charter interfere with the sovereign authority
of
the United
States?
[35]
As
an additional ground for dismissing the application before him, the applications
judge found that the disclosure of relevant materials to Canadian citizens to defend
against foreign prosecutions might lead to interference with foreign legal
proceedings and could act as an impediment to the provision of consular
services by Canadians.
[36]
A
similar argument was raised in Purdy. In that case, the British Columbia
Court of Appeal found that the order did not interfere with the sovereign
authority of the United States since disclosure does no more than put the
individual in the position to offer the evidence obtained to the foreign court.
It does not decide whether the evidence is admissible or the weight it deserves.
The order did not take over the discovery process in the foreign court (at
paragraph 24). This reasoning equally applies here. The appellant is not
seeking any direction or order which would purport to direct the Military Commission
to do anything.
Is section 7 of the
Charter engaged?
[37]
It
is uncontested that as a Canadian citizen the appellant falls within the
purview of the word “everyone” in section 7 of the Charter. He has the right
under section 7 of the Charter not to be deprived of his right to life, liberty
and security of the person except in accordance with the principles of
fundamental justice. As recognized by the Supreme Court of Canada in Stinchcombe,
the right to make full answer and defence to criminal charges is a principle of
fundamental justice (at paragraph 17). Withholding relevant documents from an
accused increases the risk or danger of that person being wrongfully convicted
or imprisoned. The appellant has made a prima facie case showing a
substantial risk of not being able to present a full answer and defence to the
charges he faces in the United States if he is denied access
to relevant information in the possession of the Crown. The appellant therefore
has the right to full disclosure of all relevant documents within the Crown’s
possession. However, the Crown’s disclosure obligation is not absolute. It is
subject to privilege and public interest immunity claims which are reviewable
by a court of law.
The nature of the order
to be issued
[38]
Where
a court is persuaded that undisclosed information meets the Stinchcombe
threshold, an accused has met his burden of establishing a violation of his
Charter right to disclosure: R. v. Dixon, [1998] 1 S.C.R. 244 at
paragraph 33.
[39]
This
Court is not in a position to decide, in the case at bar, whether the Crown failed
to comply with its obligation under Stinchcombe. A number of documents
have already been disclosed to the appellant pursuant to requests under the AIA
and in the context of Federal Court proceedings T-536-04 and T-686-04. At this
stage, this Court has no way of verifying whether there are other relevant
documents which should have been disclosed and whether the public interest
immunity claims and statutory exemptions previously raised are justified
exceptions to Stinchcombe disclosure in the circumstances of this case.
[40]
In
Purdy, the British Columbia Supreme Court found a breach of section 7.
In that case, however, no disclosure at all had been made by the Crown. It was
therefore not necessary for the Court to examine the materials withheld.
[41]
The
matter should be returned to the Federal Court for a determination of the precise
documents the appellant is entitled to obtain under section 7 of the Charter. Since
the applications judge concluded that the Charter did not apply in the
circumstances of the case, he did not turn his mind to that section of the
Charter.
[42]
The
Federal Court will be unable to decide whether the Crown has complied with its
disclosure obligation without having access to the all relevant documents
including the unredacted documents at issue. For this reason, the respondents
will be ordered to produce before a designated judge of the Federal Court all
relevant documents within their possession. Any privilege or public interest
immunity claim the Crown wishes to raise will be considered at that time. It
will be up to the Federal Court to decide whether the Crown has complied with
its disclosure obligation and exactly what documents the appellant may be
entitled to.
CONCLUSION
[43]
I am satisfied that the Charter applies in the
circumstances of this case and that section 7 of the Charter is engaged. It may
be that the respondents’ refusal to disclose relevant information goes as far
as violating the appellant’s constitutional right to full answer and defence.
This issue can only be determined by a review of the redacted and other relevant
material and a balancing of the competing interests at stake with a view to
reconciling them under the Charter.
[44]
Consequently, I would allow this appeal with
costs, I would set aside the decision of the applications judge and I would grant
the following order :
An order is issued directing that:
(a)
the respondents, 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, produce before the Federal Court unredacted copies of
all documents, records and other materials in their possession which might be
relevant to the charges against the appellant and which are therefore necessary
for the purpose of allowing him to raise full answer and defence to the
charges;
(b)
the material produced be reviewed by a judge as defined in
section 38 of the Canada Evidence Act; and
(c)
the review be conducted pursuant to section 38 of the Canada
Evidence Act.
"Alice
Desjardins"
"I agree
Gilles Létourneau J.A."
I
agree
C.
Michael Ryer J.A."
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