Date: 20050808
Docket: T-536-04
Citation: 2005 FC 1076
Ottawa, Ontario, this 8th day of August, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
OMAR AHMED KHADR by his Next Friend FATMAH EL-SAMNAH
Plaintiff
and
HER MAJESTY THE QUEEN OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1] The Plaintiff, Omar Khadr is a 17 year-old Canadian citizen who has been detained since 2002 by the US government as a result of his alleged involvement with Al-Qaeda forces in Afghanistan. He is currently being held at Camp Delta in Guantanamo Bay.
[2] During his detention, the Plaintiff submits that he has been regularly interrogated and has been denied access to consular officials, counsel and his family. He has not been brought before an independent tribunal, but has faced a special Combatant Status Review Tribunal for detainees, has been designated as an Enemy Combatant and continues to be detained. The summary of the evidence for that hearing reveals the gravity of the allegations against him.
Subject: Summary of Evidence for Combatant Status Review Tribunal.
1. Under the provisions of the Secretary of the Navy Memorandum, dated 29 July 2004, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base Cuba, a Tribunal has been appointed to review the detainee's designation as an enemy combatant.
2. An enemy combatant has been defined as "an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
3. The United States Government has previously determined that the detainee is an enemy combatant. This determination is based on information possessed by the United States that indicates that he is a member of al Qaida and participated in military operations against U.S. Forces.
a. The detainee is an al Qaida fighter:
1. The detainee admitted he threw a grenade which killed a U.S. soldier during the battle in which the detainee was captured.
2. The detainee attended an al Qaida training camp in the Kabul, Afghanistan area where he received training in small arms, AK-47, Soviet made PK guns, RPGs.
3. The detainee admitted to working as a translator for al Qaida to coordinate land mine missions. The detainee acknowledged that these land mine missions are acts of terrorism and by participating in them would make him a terrorist.
b. The detainee participated in military operations against U.S. forces.
1. Circa June 2002, the detainee conducted a surveillance mission where he went to an airport near Khost to collect information on U.S. convoy movements.
2. On July 20, 2002 detainee planted 10 mines against U.S. forces in the mountain region between Khost and Ghardez. This region is choke point where U.S. convoys would travel...
(Summary of evidence for Combatant Status Review Tribunal, Applicant's Record, Ahmad affidavit, Tab 2N, p. 132)
[3] The decision made on the basis of these allegations states:
7. Conclusions of the Tribunal
Upon careful review of all the evidence presented in this matter, the Tribunal makes the following determinations:
a. The detainee was mentally and physically capable of participating in the proceeding. No medical or mental health evaluation was deemed necessary.
b. The detainee understood the Tribunal proceedings. The detainee chose not to participate in the Tribunal process, as indicated in Exhibit D-a.
c. The detainee is properly classified as an enemy combatant because his is a member of, or affiliated with al-Qaida.
(Summary of Basis for Tribunal Decision - Combatant Status Review Tribunal, Applicant's Record, Ahmad affidavit, Tab 2N, p. 129)
[4] It is undisputed evidence that the Plaintiff was visited three times by officials of the Department of Foreign Affairs and International Trade ("DFAIT") and the Canadian Security Intelligence Service ("CSIS"). The Defendant's counsel advised at the hearing of this motion that the last visit took place after this action was commenced. Summaries of the information gathered during those visits was provided to both US authorities and the Royal Canadian Mounted Police ("RCMP").
[5] The Plaintiff argues that by questioning him, but failing to advise him of his right to silence and his right to counsel, his rights under the Canadian Charter of Rights and Freedoms (the "Charter") were infringed.
[6] In the Statement of Claim the Plaintiff seeks:
a) A declaration that the Plaintiff's Charter rights have been breached;
b) Damages for $ 100,000.00; and
c) An injunction against further interrogation by Canadian government agents.
[7] The Plaintiff also filed a Notice of Motion for an interim injunction on February 8, 2005 and on February 18, 2005 seeking:
1. An order in the nature of an interim injunction prohibiting the Defendant from conducting any further interviews, interrogations or questioning of the Plaintiff pending the trial of this action, nothing in the nature of such order to detract from or interfere with the Defendant's duty to provide the Plaintiff with humanitarian aid and consular assistance
[8] In support of his motion, the Plaintiff filed an affidavit dated February 8, 2005 by his US counsel Mr. Muneer Ahmad who has actually visited the Plaintiff in Guantanamo Bay. Mr Ahmad was not cross-examined on his affidavit.
[9] To counter the Plaintiff's motion, the Respondent filed affidavits by Sergeant Labonté on behalf of the RCMP, Serge Paquette of behalf of DFAIT and William Hooper on behalf of CSIS. Subsequent to cross-examinations on the affidavits, which took place on March 2, 2005, the Respondents refused to give undertakings and produce documents:
a) In respect of Hooper, as to what transpired during interviews with the Plaintiff, specifically whether he was advised of his rights; and
b) In respect of Paquette, as to communications between Canadian and US officials, specifically what use the US would make of information obtained during these interviews.
[10] On a motion to produce such undertakings, this Court ruled in Khadr v. Canada 2005 FC 632 at para 20:
Since he is being held in a US prison, but the role of Canadian security officers is not clear, the issue of liability under the Charter needs to be litigated. However, whether he has a right to silence and a right not to be interviewed or interrogated by Canadian Security agents depends on his rights, not on any of the information that would be garnered if the Defendants are compelled to comply with the undertakings. Thus, the answers to the undertakings are simply not relevant to the motion for an interim injunction.
[11] Mr. Ahmad's affidavit contains various US government documents that establish that detention conditions, interrogation techniques used and rules of evidence employed at the Combatant Status Review Tribunal hearings do not comply with Charter standards. (Applicant's Record, Ahmad affidavit, Tabs 2J, 2K, and 2W, pp. 62, 64 and 179 respectively.)
[12] However, treatment of the Plaintiff by US officials is not the issue before this Court. What is at issue in these proceedings is the questioning of the Plaintiff by Canadian authorities.
[13] Through his US counsel, the Plaintiff:
(S)trenuously object(s) to any future interviews (...) (being) conducted by agents or officials of the Canadian government (and) invokes his rights under the Canadian Charter (...) including his right to remain silent, his right to counsel, and his right to be advised as to the nature of any and all allegations raised against him.
(Applicant's Record, Ahmad affidavit, Tab 2, p. 4, para 4)
Issues:
[14] Three issues present themselves:
1. Is relief by way of an injunction against the Crown available to the Plaintiff?
2. Is there a sufficient nexus to a criminal or quasi criminal investigation?
3. Does the Plaintiff meet the threefold conjunctive test set out in RJR MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311?
[15] The Defendant advances three arguments. First, the Defendant argues that:
a) At common law, no injunction can lie against the Crown;
b) The Federal Courts Act and the Crown Liability and Proceedings Act expressly prohibit injunctions against the Crown or a Crown servant acting within the scope of his/her authority; and
c) Injunctions may only be granted where the Crown or Crown servant acts outside its scope of authority or where the statute granting the authority is itself unconstitutional.
In the Defendant's view, neither of these conditions apply as it is not alleged that either DFAIT or CSIS agents were acting outside the scope of their authority or under constitutionally invalid statutes.
[16] Secondly, in so far as Charter violations are concerned, the Defendant argues that the Charter is not engaged without a sufficient connection to a criminal or quasi criminal investigation or prosecution. In this case, there are no allegations or ongoing investigative actions, let alone charges, by Canadian police in connection with a crime committed or to be prosecuted in Canada. Rather, the visits provided DFAIT (which was denied consular visits to the Plaintiff) an opportunity to evaluate the Plaintiff's well-being and general circumstances. They also allowed CSIS officials to interview the Plaintiff for the purpose of collecting intelligence information that may be of assistance in its investigation of Al-Qaeda.
[17] Thirdly, the Defendant maintains that the Plaintiff has not, in any event, met the threefold test of RJR MacDonald, supra. In that case the Supreme Court stated at para 43:
Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
Issue #1 - Is relief by way of an injunction against the Crown available to the Plaintiff?
[18] The first contention by the Crown misses the point. None of the propositions put forward are really in issue. The Plaintiff is not relying on common law relief. The question here is whether the Plaintiff's Charter rights will be violated by future interviews, not whether the Crown or its agents are or were acting within the scope of their authorities or under constitutionally valid legislation. The injunction sought is with regard to breaches of the Plaintiff's Charter rights, there is no allegation of constitutional invalidity of the DFAIT or CSIS statutes.
[19] It is well established that interlocutory injunctions can be obtained as part of Charter litigation. As Robert J. Sharpe so clearly stated in Essentials of Canadian Law; The Charter of Rights and Freedoms, 2nd Ed. 2002 at p. 295:
Another form of injunction that may be used as a Charter remedy is the interlocutory injunction that is awarded pending a full trial on the merits. This remedy, which may also involve a temporary stay or suspension of legislation pending a full trial on its constitutionality may be of great practical importance. In a series of cases, the Supreme Court has outlined the test for granting pre-trial or interlocutory relief in Charter cases. First, the applicant must establish that he or she is raising a serious question under the Charter that is not frivolous or vexatious. There is no presumption that legislation is constitutional and there will be a serious question in cases in which the applicant demonstrated that the state must justify a violation under section 1 of the Charter. Second, the applicant must establish a risk of irreparable harm should the pre-trial relief not be granted. Again, this is not often an onerous requirement given that many Charter rights would not be adequately repaired by the award of damages after a full trial. The third and, in most cases, more difficult and crucial requirement is whether the balance of convenience favours granting the relief. Here it is important for the court to consider the public interest. Democratically enacted legislation is presumed to be in the public interest.
[20] While I appreciate that the cases cited by Sharpe all deal with challenges to the constitutional validity of statutes and the issue of whether suspension of the statute in issue or exemption therefrom should be granted, I fail to appreciate why an injunction would lie when the constitutionality of a statute is challenged, but not when the constitutionality of conduct under a valid statute is challenged. Surely the purpose of an interlocutory injunction is to prevent a violation of Charter rights while the underlying action is being tried. It should make no difference whether the violation occurs as a result of prohibited conduct, rather than as a result of invalid legislation. Accordingly, I find that an injunction against the Crown for conduct in violation of Charter rights may be granted, provided the preconditions for such an injunction, as laid down in RJR MacDonald, supra, are met.
Issue #2 - Is there a sufficient nexus to a criminal or quasi criminal investigation?
[21] With respect to the Defendant's second contention concerning the alleged violation of the Plaintiff's rights and the corollary engagement of the Charter, this is the key issue to be decided in the upcoming trial. Previously the Defendant brought a motion to strike the Statement of Claim for disclosing no cause of action. In refusing to strike, this Court ruled inKhadr v. Canada (Attorney General) [2004] FC 1394 at paras 18 to 20:
In this case, it is impossible at this time to make a contextual analysis. The Statement of Claim is relatively sparse in terms of what actually happened at Guantanamo Bay. The relative provisions of the Statement of Claim state:
5. On two or more occasions since the Plaintiff's detention in Camp X-Ray, agents or employees of the Defendants whose identity is unknown to the Plaintiff attended at Camp X-Ray for the purpose of extracting incriminating statements from the Plaintiff by interrogating him, and did in fact conduct such interrogations of the Plaintiff.
6. The interrogations of the Plaintiff conducted by the unidentified agents or employees of the Defendants were conducted for the whole or partial purpose of assisting the government of the United States of America in gathering incriminating evidence to be used against the Plaintiff in future military justice proceedings.
7. At no time prior to the Defendant's interrogations of the Plaintiff did the Defendants or their employees or agents advise the Plaintiff as to the reasons for his detention or as to the nature of any charges laid against him, thereby violating the Plaintiff's rights under inter alia ss. 7 and 10 (a) of the Canadian Charter of Rights and Freedoms.
8. At no time prior to the Defendant's interrogations of the Plaintiff did the Defendant or her agents advise the Plaintiff of his rights to remain silent and to retain and instruct counsel, thereby violating the Plaintiff's rights under inter alia ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms.
Without evidence it is impossible to construe what is meant by "for the whole or partial purpose of assisting the government of the United States of America in gathering incriminating evidence". Several questions have to be answered first. For instance: What was the role of Canadian Authorities? Who was in charge of the interviews? What did they ask Omar Khadr? How are the results of the interrogation going to be used?
Once all these questions are answered, it will be possible to establish a context, make the necessary analysis and then determine if Omar Khadr's Charter rights were engaged or not. Assuming the Statement of Claim to be true, it is possible (although difficult at this time to surmise from the sparse facts pleaded) that there is sufficient context for Charter rights to be engaged. Given that possibility, the Statement of Claim cannot be struck, at this point, for failing to disclose a cause of action.
[22] Since that time, the affidavits of Sergeant Labonté of the RCMP, Serge Paquette of DFAIT and William Hooper of CSIS have been filed. Cross-examinations of Serge Paquette and William Hooper have taken place. In addition, the Plaintiff's US counsel Muneer Ahmad filed a lengthy memorandum with numerous exhibits containing US and Canadian documents, which (although some are heavily redacted) shed further light on the situation. Muneer Ahmad was not cross-examined on his affidavit and thus his evidence stands uncontradicted.
[23] The relevant portions of this body of evidence indicate that:
a) Conditions at Guantanamo Bay do not meet Charter standards (FBI note dated August 2, 2004, Applicant's Record, Ahmad affidavit, Tab 2J);
b) The Plaintiff is in poor mental and physical shape (Plaintiff's statement to his US counsel, Applicant's Record, Ahmad affidavit, Tab 2F, pp 49 and 50, para 21);
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 andcross-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);
g) There is no evidence that the Plaintiff was advised of his Charter rights, e.g. right to silence, right to counsel (cross-examination of William Hooper, Respondent's Record, Tab 5, pp. 30-31);
h) There is no evidence that assurances were sought or provided by US authorities that the interviews would not be taped or that the evidence would not be used against the Plaintiff (cross-examination of William Hooper, Respondent's Record, Tab 5, p. 16); and
I) CSIS would like to reserve the right to question the Plaintiff in future so that the Plaintiff can help CSIS contextualize information that they have or may acquire (cross-examination of William Hooper, Respondent's Record, Tab 5, pp. 30 and 44).
[24] Lastly, it is of considerable significance that DFAIT's own documents advise that the purpose of the visits is dual, intelligence gathering and law enforcement. As a November 1, 2002 e-mail from DFAIT Washington stated:
First, the purpose of the visit was the collection and sharing of information for intelligence and law enforcement purposes. Consular visits were a non-starter, and applications that appeared to be consular visits by other means would be scrutinized very closely - which could lead to delays. We noted that, as part of our normal practice, a Canadian mission to Guantanamo would include a DFAIT official and asked if this would problematic. The US responded that this would not necessarily be a problem. Foreign ministry officials had been part of the other visiting delegations. The US initially noted that these officials were often indispensable to confirming the identification of the detainees, but then stressed that, as long as the core of the mission - to maximize cooperation on the intelligence and law enforcement front - was not affected, a DFAIT presence would be acceptable. (Underlining added)
(Applicant's Record, Ahmad affidavit, Tab 2Q, p. 148, para 10)
[25] The Supreme Court established in R. v. Cook [1998] 2 S.C.R. 597 that Charter rights may apply outside Canada. As stated by Iacobucci J. at para 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 United States does not, in this particular case, interfere with the sovereign authority of the foreign state and thereby generate an objectionable extraterritorial effect.
[26] Cooke, of course, concerned the actions of Vancouver police in the US for the purpose of obtaining evidence in support of a prosecution in Canada. Bastarache J. in his concurring reasons stated at para 127:
(i)f the Canadian officials were primarily responsible for obtaining the evidence in a manner which violated the Charter, then the Charter will apply to them and to the evidence obtained by them.
[27] In the present case, there is no question of a prosecution or even an investigation in Canada. Canadian agents are in the US, with the permission of the US, for the purpose of gathering intelligence. By their own admission, Canadian agents took a primary and directing role in previous interviews and can be expected to do the same in future questioning. However, the US were provided with summaries of the interviews, they may have taped the interviews, and any such information may be used in proceedings against the Plaintiff as an Enemy Combatant. There is no evidence that any future questioning will be conducted under different rules.
[28] Once all the evidence as to what happened at Guantanamo Bay is in, the court will have to decide whether it makes any difference that the information may be used for a US prosecution, as opposed to a Canadian prosecution. The Plaintiff will argue that it should not. As long as Canadian officials are primarily responsible for obtaining information from the Plaintiff, he is entitled to the protection of the Charter. The Defendant, undoubtedly, will submit that the Charter is not engaged unless there are prosecutorial consequences in Canada.
[29] By seeking to prohibit Canadian security agents from questioning him further, the Plaintiff is really invoking the Charter to prevent any future US prosecution from being aided by information obtained through questioning by Canadian security agents (such agents who are, in his view, acting in violation of the Charter).
[30] If the new evidence is proven to the satisfaction of the court at trial, in light of the evidence regarding the detention and questioning at Guantanamo Bay, the court will have to decide if the conditions of Cook, supra, apply. Depending on the evidence, there may be a sufficient nexus between the investigation by Canadian agents, the passing of information to the US and subsequent prosecution by the US to engage the Charter. Thus, the Defendant's second contention will have to be dealt with at trial and cannot, nor should it be, disposed of in this motion. The evidence presented via affidavits and cross-examinations, while helpful, is not in itself determinative.
Issue #3 - Does the Plaintiff meet the threefold conjunctive test set out in RJR MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311?
Serious issue
[31] Proceeding to the Defendant's third contention regarding the three fold conjunctive test of RJR MacDonald, the Court notes that the Defendant does not dispute that there is a serious issue, namely whether Charter rights were engaged when CSIS or DFAIT interviewed the Plaintiff in Guantanamo Bay. Thus, the Plaintiff clearly meets this leg of the test.
Irreparable harm
[32] Will the Plaintiff suffer irreparable harm if the injunction is not granted? The Plaintiff is being held in the custody of the US and he will face serious charges regarding his activities in Afghanistan and his Al-Qaeda membership. There is no evidence as to whether the interviews are tape recorded. No assurances were sought that they would not be recorded. The summaries of his interviews are being provided to his US captors. It is not known for what purpose they will be used and CSIS has refused to undertake to inform itself as to what use they would be put.
[33] It is unclear what form the US prosecution against the Plaintiff will take and what rules of procedure and evidence will apply. The rules of procedure employed thus far regarding detainees at Guantanamo Bay suggest that little confidence is warranted that material obtained by CSIS will not be used against the Plaintiff (Ahmad affidavit, US Documents Regarding Detention, Treatment and Trial of Combatants in War on Terrorism, Applicant's Record, Tabs 2U, V, and W).
[34] Although not so stated, the Defendant in effect argues that it has a right to question the Plaintiff as long as it is done for national security purposes. It claims there will be no consequences in Canada for the Plaintiff as a result of this questioning. If the Plaintiff does not want to answer, he does not have to. He, however, should have the option of assisting the Defendant if he changes his mind and wants to cooperate. Any possibility of prosecution by the US based on the interviews is remote and purely speculative.
[35] I find it difficult to agree with the Defendant's submission. Evidently, the Plaintiff seeks the protection of this Court from further questioning. It stands to reason that he feels he is not completely free to resist questioning of his own accord. Obviously, if an injunction is issued and he changes his mind, he could always apply to have the injunction lifted. While CSIS and DFAIT have a duty to collect information for national security purposes, I fail to see anything amounting to the right to question a person who does not want to be questioned. Whether DFAIT and/or CSIS should have such a right, or need such a right is something for Parliament to decide, it should not be established by judicial interpretation.
[36] In addition, DFAIT itself stated that "the core of the mission was to maximise cooperation on the intelligence/law enforcement front" (see para 24 above). DFAIT and CSIS refused to undertake during cross-examination to inform themselves as to how the US would use information provided to it as a result of interviews with the Plaintiff.
[37] DFAIT and CSIS also refused on cross-examination to undertake to inform themselves as to whether assurances were sought from the US (or given by the US) as to the future use of any information obtained by Canadian agents from the Plaintiff and provided to the US. This leads the Court to draw an adverse inference that such information will be used against the Plaintiff. In the absence of such evidence, it is impossible at this stage to determine if prosecution by the US is too remote and purely speculative. Given the gravity of the allegations against him, any US prosecution may entail irreparable harm. I am convinced that on the basis of evidence presented thus far (and on the failure of the Defendant to present evidence regarding use by the US of the results of the Plaintiff's questioning) the Plaintiff has met the irreparable harm leg of the RJR MacDonald, supra, test.
Balance of convenience
[38] As the above quote from Robert J. Sharpe points out, balance of convenience is usually a difficult issue in Charter injunction cases as it involves balancing the public interest against the interest of the individual litigant. The basic principle was clearly stated in Attorney General of Canada v. Fishing Vessel Owner's Association of B.C. [1985] 1 F.C. 791:
When a public authority is prevented from exercising its statutory powers, it can be said, (...) that the public interest, of which that authority is the guardian, suffers irreparable harm; (...)
[39] In this case the Defendant argues:
a) The courts should be loath to define how CSIS may conduct its intelligence gathering activities. There are already restrictions with regard to CSIS' ability to gather intelligence through intrusive measures without a court order. Any further non-statutory restriction on the ability of CSIS or other government agencies to discover and counter potential threats to Canada's national security would be extremely prejudicial to the public interest.
b) American authorities have not yet allowed the Canadian Government to exercise consular access to the Plaintiff. The visits complained of in the Amended Statement of Claim involving DFAIT officials were, at that point in time, the only opportunity for Canadian officials to observe and evaluate the Plaintiff's well being. Any restriction on the ability of DFAIT officers to visit the Plaintiff in the future may hinder DFAIT's ability to provide services to him and will not improve DFAIT's chances of obtaining permission for future access from the American authorities.
[40] The Defendant relies on Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd. [1987] S.C.J. No. 6 where Beetz, J. stated at paras 55 and 56:
Whether or not they are ultimately held to be constitutional, the laws which litigants seek to suspend or from which they seek to be exempted by way of interlocutory injunctive relief have been enacted by democratically-elected legislatures and are generally passed for the common good, for instance: the providing and financing of public services such as educational services, or of public utilities such as electricity, the protection of public health, natural resources and the environment, the repression of what is considered to be criminal activity, the controlling of economic activity such as the containing of inflation, the regulation of labour relations, etc. It seems axiomatic that the granting of interlocutory injunctive relief in most suspension cases and, up to a point, as will be seen later, in quite a few exemption cases, is susceptible temporarily to frustrate the pursuit of the common good.
While respect for the Constitution must remain paramount, the question then arises whether it is equitable and just to deprive the public, or important sectors thereof, from the protection and advantages of impugned legislation, the invalidity of which is merely uncertain, unless the public interest is taken into consideration in the balance of convenience and is given the weight it deserves. As could be expected, the courts have generally answered this question in the negative. In looking at the balance of convenience, they have found it necessary to rise above the interests of private litigants up to the level of the public interest, and, in cases involving interlocutory injunctions directed at statutory authorities, they have correctly held it is erroneous to deal with these authorities as if they have any interest distinct from that of the public to which they owe the duties imposed upon them by statute. (Emphasis added by the Defendant)
[41] Metropolitan Stores, supra, is indeed one of the key cases regarding suspension or exemption of statutes while their constitutionality is being litigated. The principles of Metropolitan Stores should also be applied in the present case, however, it should be borne in mind that in this case there is no question of suspension or exemption from the CSIS Act or the DFAIT Act due to a constitutional attack on those statutes. Rather, the Plaintiff asks that intelligence gathering activities that relate to him are enjoined while he is in US custody and subject to an as yet undetermined legal process.
[42] The final conclusion reached by Beetz J. in Metropolitan Stores can be found at para 89, namely:
On the whole, I thus find myself in agreement with the following excerpt from Sharpe, op. cit., at pp. 176-77:
Indeed, in many situations, problems will arise if no account is taken of the general public interest where interlocutory relief is sought. In assessing the risk of harm to the defendant from an interlocutory injunction which might later be dissolved at trial, the courts may be expected to be conscious of the public interest. Too ready availability of interlocutory relief against government and its agencies could disrupt the orderly functioning of government.
[43] Applying this finding to the present case, one must weigh CSIS' legitimate intelligence gathering in the name of fighting Al-Qaeda and DFAIT's activities in support of Canadians abroad, against the danger to the Plaintiff that any information extracted from him may be used in proceedings against him which may lead to his long term imprisonment or worse. In other words, will the public interest suffer irreparable harm if CSIS is deprived of any future opportunity to question the Plaintiff?
[44] It strikes me that when so posited, the balance of convenience (fully taking into account the public interest as served by the activities of CSIS and DFAIT and the public's need to have the protection of these organizations in the fight against terrorism) has to lie in favour of the Plaintiff. First of all, the Plaintiff is in captivity and, at the very least, his freedom is at stake. Secondly, it is questionable whether after three years of captivity the Plaintiff still has any information of use to CSIS or DFAIT. Thirdly, given the conditions at Guantanamo Bay, there is considerable doubt as to whether he is free to decide (without fear of consequences) whether he wants to be interviewed by CSIS/DFAIT agents. Fourthly, there is also another public interest at play and that is assuring that Canadian officials, when questioning Canadians (whether in Canada or abroad) respect the Charter. Thus, the danger to the public interest caused by CSIS/DFAIT agents not being able to access the Plaintiff is outweighed by the possible conviction of the Plaintiff in the US on the basis of evidence obtained in violation of the Charter.
[45] In Morgentaler v. Ackroyd (1983) 42 O.R. 659, (admittedly another case dealing with suspension or exemption from an allegedly unconstitutional law but containing persuasive reasoning that can equally be applied here), Linden J. stated at p. 668:
In my view, therefore, the balance of convenience normally dictates that those who challenge the constitutional validity of laws must obey those laws pending the court's decision. If the law is eventually proclaimed unconstitutional, then it need no longer be complied with, but until that time, it must be respected and this court will not enjoin its enforcement. Such a course of action seems to be the best method of ensuring that our society will continue to respect the law at the same time as it is being challenged in an orderly way in the courts. This does not mean, however, that in exceptional circumstances this court is precluded from granting an interim injunction to prevent grave injustice, but that will be rare indeed. (Underlining added)
[46] In my view, the present case is one of these rare exceptional cases where granting an injunction is required to prevent a potential grave injustice. Accordingly, an interim injunction will issue prohibiting the Defendant and its agents from conducting any further interviews of the Plaintiff pending the trial of this action.
ORDER
THIS COURT ORDERS that:
1. The Defendant and its agents are prohibited from conducting any further interviews or questioning of the Plaintiff pending trial of this action. However, nothing in this order shall detract from or interfere with any efforts of the Defendant to provide consular assistance to the Plaintiff.
2. Costs of this motion to follow the cause.
" Konrad von Finckenstein " F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-536-04
STYLE OF CAUSE: OMAR AHMED KHADR by his Next Friend
FATMAH EL-SAMNAH
and
HER MAJESTY THE QUEEN OF CANADA
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: July 7th, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Justice von Finckenstein
DATED: August 8th, 2005
APPEARANCES:
Nathan Whitling FOR THE PLAINTIFF
Dennis Edney
Doreen Mueller FOR THE DEFENDANT
Robert Drummond
SOLICITORS OF RECORD:
NATHAN WHITLING FOR THE PLAINTIFF
DENNIS EDNEY
Edney, Hattersley & Dolphin
Edmonton, Alberta
JOHN H. SIMS, Q.C. FOR THE DEFENDANT
Deputy Attorney General of Canada
Edmonton, Alberta
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