Date: 20060425
Docket: T-3-06
Citation: 2006
FC 509
OTTAWA, ONTARIO,
April 25, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
OMAR
AHMED KHADR
Applicant
and
THE MINISTER OF JUSTICE AND ATTORNEY GENERAL
OF
CANADA, THE
MINISTER OF FOREIGN AFFAIRS,
THE
DIRECTOR OF THE CANADIAN SECURITY
INTELLIGENCE
SERVICE and THE COMMISSIONER OF
THE
ROYAL CANADIAN MOUNTED POLICE
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
Applicant, Omar Khadr, is a Canadian citizen who is currently a prisoner in a US military detention camp located in Guantanamo Bay, Cuba. He faces charges of
conspiracy, murder by an unprivileged belligerent, attempted murder by an
unprivileged belligerent, and aiding the enemy. These charges carry a potential
maximum sentence of life imprisonment. He will be prosecuted before a Military
Commission established by Order of the Secretary of Defence of the United States of America.
[2]
Khadr was
apprehended in Afghanistan in July 2002 by the American
military. Months later he was sent to Guantanamo Bay. Charges were laid against
him in November 2005. No date has been set for his trial.
[3]
On
November 21, 2005, counsel for the Applicant wrote to the Respondents (the
Letter). A copy of the Letter is attached as Annex A hereto. The key paragraph
of that letter asked for:
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 limitation, 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.
[4]
On the
same day, the Applicant filed a request under the Access to Information Act,
R.S., 1985, c. A-1 with each of the Respondents and asked for the identical
information as requested in the Letter.
[5]
No
response has been forthcoming and the Applicant has now brought an application
for judicial review of:
The decision of the Respondents
to fail to respond to the demand made to the Respondents by letter dated
November 21st, 2005 for full and complete disclosure of all materials in the
possession of the Crown in Right of Canada which might be relevant to US
charges recently raised against the Applicant by the government of the United
States of America (the Charges)…
[6]
The
Applicant requests:
An order in the nature of mandamus
directing the Respondents to provide counsel for the Applicant 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
Applicant’s position is quite straight forward. He argues that under s. 7 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) he has a constitutional right
to be provided with disclosure of all material relevant to the Charges that are
in the possession of the Respondents.
[7]
Section
7 of the Charter states:
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.
[8]
The
Applicant relies on R. v. Stinchcombe, [1991] 3 S.C.R. 326, 68 C.C.C.
(3d) 1. He further argues that by virtue of Purdy v. Canada ( Attorney
General ) (2003) , 226 D.L.R. (4th) 761(BCSC) aff’d (2003), 230 D.L.R.
(4th) 361( B.C.C.A.), section 7 now applies to prosecutions in foreign
jurisdictions where Canadian authorities are in possession of materials that
can be used by the Applicant to defend himself against the foreign Charges.
[9]
The Applicant
suggests that the issue before me is the following:
Can officials of the Canadian
Government, acting in pursuance of legal authority, engage in conduct within Canada which itself frustrates the
fairness of foreign prosecution of a Canadian citizen?
[10]
It strikes
me that the matter is much more straight forward, namely do the Applicant’s
rights under s. 7 of the Charter (as explained by Stinchcombe, above and
expanded by Purdy, above) apply in the circumstances in which the Applicant
finds himself?
[10]
[11]
To answer
that question, one must examine first what Purdy, above stands for, and
second whether the situation of Purdy, above is analogous to that of the
Applicant.
[12]
It is
well-established that the rights of Canadians when interrogated abroad by
Canadian law enforcement agents are protected in certain circumstances. As
Justice Iacobucci stated in R. v. Cook, [1998] 2 S.C.R. 597, 164 D.L.R.
(4th) 1 at paragraph 25:
In our view, the Charter
applies to the actions of the Vancouver detectives in interviewing the
appellant in New
Orleans. Two
factors are critical to this conclusion and provide helpful guidelines for
recognizing those rare circumstances where the Charter may apply outside of
Canada: (1) the impugned act falls within s. 32(1) of the Charter; and (2) the
application of the Charter to the actions of the Canadian detectives in the
Untied States does not, in this particular case, interfere with the sovereign
authority of the foreign state and thereby generate an objectionable
extraterritorial effect.
[13]
There must
also be a reasonable foreseeable connection between Canada’s actions and the violation of the
Charter. This was established in Suresh v. Canada (Minister of Citizenship and
Immigration),
[2002] 1 S.C.R. 3, 2002 SCC 1 at paragraph 54:
While the instant case arises
in the context of deportation and not extradition, we see no reason that the
principle enunciated in Burns should not apply with equal force here. In
Burns, nothing in our s. 7 analysis turned on the fact that the case arose in
the context of extradition rather than refoulement. Rather, the governing
principle was a general one -- namely, that 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.
[14]
The facts
in Purdy, above were as follows. The Applicant was a Canadian citizen
who was arrested and charged in the United States. The investigation was a joint effort by Canadian and
American law enforcement agencies and was conducted primarily in Canada. The Applicant was arrested
in the United
States as a
result of a ruse which avoided an extradition hearing.
[15]
On the
basis of these facts, the trial judge, Justice Satanove, found at paragraphs 19
to 25:
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. Furthermore, if the ordinary extradition process had not been
circumvented by the inducement of Mr. Purdy to travel to the U.S.A. under the pretence of doing a
"clean deal", I believe he would have been entitled to disclosure, at
least from the Canadian authorities, of information they had in their possession
pertaining to their part in the investigation.
The Attorney General of Canada
spent a large part of its submissions on attempting to persuade me that the
Charter is not a general empowerment of the court to order disclosure of
government information, because to do so offends the other legislative schemes
in place such as the Access to Information Act, the Privacy Act
and s. 46 of the Canada Evidence Act.
I agree with this submission,
but I am not relying on any general empowerment of the Charter to order
disclosure. I am ordering disclosure as a remedy for the infringement of Mr.
Purdy's constitutional rights. I have found that Mr. Purdy is entitled to the
protection of his right to make full answer and defence, because he is a
Canadian whose freedom has been placed in jeopardy by the actions of
Canadian legal authorities conducting a joint investigation with U.S. agencies, in Canada.(Underlining added)
[16]
On appeal,
Justice Donald affirmed the trial judge’s decision and stated the proposition
even more succinctly at paragraph 20:
In the present case, the
deprivation of the right to full answer and defence is here in Canada by the
R.C.M.P.'s refusal to make disclosure, although the effect of the deprivation
will be felt in Florida. The respondent faces charges
in the U.S. because of an
investigation in Canada and because of the ruse
employed by the police to by-pass extradition. The causal connection is, in my
opinion, direct and obvious.
And, as stated in Cook, supra, the respondent's Canadian nationality is
a key consideration. (Underlining added)
[17]
From the
foregoing, it is quite obvious that the facts in Purdy, above were quite
particular. The investigation had been done primarily in Canada, the
investigation was a joint Canada-US investigation, and a ruse had been used to
lure the defendant to the US in order to avoid extradition
proceedings. Under those circumstances, the court felt that there was a
sufficient causal connection for the right to disclosure under s. 7 of the
Charter and the principles set out in Stinchcombe, above to apply.
[18]
Purdy, above stands for the
exceptional case where disclosure can be justified if peculiar factual
circumstances arise. Purdy, above does not stand for the proposition
that whenever there is a foreign prosecution against a Canadian citizen and the
Canadian government has some documents, that the accused is entitled to
disclosure. This proposition would not be desirable or useful as it might lead
to interference with foreign legal proceedings which Justice Iacobucci warned
against in Cook, above. It could also act as an impediment to the
providing of consular services by Canada,
which is ironically the very thing the Applicant is seeking from the
Respondents.
[19]
The facts
in the present case on the other hand are quite different:
i)
there are
no charges outstanding or investigations pending against the Applicant in Canada;
ii) the Applicant was arrested by
US authorities in Afghanistan and transported to Guantanamo Bay, Cuba where he is held in
custody;
iii) there was no investigation in Canada; and
iv) Canadian officials from CSIS
and DFAIT, with the consent of US authorities, questioned him in detention at Guantanamo bay. The circumstances
regarding that visit were examined in related proceedings, Khadr v. Canada (2005), 257 D.L.R. (4th) 577,
2005 FC 1076,
where the Applicant sought a further injunction from interviews by CSIS and
DFAIT. These proceedings were referred to in oral submissions by both sides. In
those proceedings, this court, and this judge (who also acts as case-managing
judge for the various proceedings of the Applicant against the Canadian
government), found on the basis of affidavit evidence at paragraph 23:
[…]
c) The DFAIT/CSIS visits were
not welfare visits or covert consular visits but were purely information gathering
visits with a focus on intelligence/law enforcement (DFAIT note of November 1,
2002, Applicant's Record, Ahmad affidavit, Tab 2Q, p. 148, para 7 and
cross-examination of Serge Paquette, Respondent's Record, Tab 4, pp. 35 and
70);
d) Summaries of information
collected in the interviews were passed on to the RCMP (cross-examination of
William Hooper, Respondent's Record, Tab 5, p. 7);
e) Canadian agents took a
primary role in the interviews, were acting independently and were not under
instructions of US authorities (cross-examination of William Hooper,
Respondent's Record, Tab 5, p. 22);
f) Summaries of the
information were passed on to US authorities (cross-examination of William
Hooper, Respondent's Record, Tab 5, pp. 14, 15);
[20]
The
foregoing amply demonstrates that the causal connection mentioned both in Suresh,
above and Purdy, above does not exist in this case. Nor do we have the
unique circumstances of Purdy, above. That being the case, there is no
analogy to Purdy, above and no basis for applying section 7 of the
Charter.
[21]
The
Federal Court of Appeal set out the requirements that must be met for an order
of mandamus to be granted in Apotex Inc. v. Canada (Attorney General),
[1994] 1 F.C. 742 at paragraph 45:
1. There must be a public
legal duty to act…
2. The duty must be owed to
the applicant…
3. There is a clear right
to performance of that duty, in particular:
(a) the applicant has
satisfied all conditions precedent giving rise to the duty;…
(b) there was (i) a
prior demand for performance of the duty; (ii) a reasonable time to comply with
the demand unless refused outright; and (iii) a subsequent refusal which can be
either expressed or implied, e.g. unreasonable delay...
4. Where the duty
sought to be enforced is discretionary, the following rules apply:
(a) in exercising a
discretion, the decision-maker must not act in a manner which can be
characterized as "unfair", "oppressive" or demonstrate
"flagrant impropriety" or "bad faith";
(b) mandamus is
unavailable if the decision-maker's discretion is characterized as being
"unqualified", "absolute", "permissive" or
"unfettered";
(c) in the exercise of
a "fettered" discretion, the decision-maker must act upon
"relevant", as opposed to "irrelevant", considerations;
(d) mandamus is
unavailable to compel the exercise of a "fettered discretion" in a
particular way; and
(e) mandamus is
only available when the decision-maker's discretion is "spent"; i.e.,
the applicant has a vested right to the performance of the duty.
5. No other adequate
remedy is available to the applicant ...
6. The order sought
will be of some practical value or effect...
7. The Court in the
exercise of its discretion finds no equitable bar to the relief sought...
8. On a "balance
of convenience" an order in the nature of mandamus should (or
should not) issue.
[22]
Given the
above finding, it is evident that the Applicant has failed to meet the first
two requirements of the test for mandamus. Thus, there is no need to consider
the other requirements and accordingly the Applicant’s request for an order of mandamus
is denied.
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