Omar Khadr at the Supreme Court this Week

Omar Khadr, the Toronto-born, Canadian citizen currently being detained at the infamous Guantanamo Bay prison, will be given the attention of the Supreme Court of Canada this week. The Canadian government is appealing an order of the Federal Court of Appeal, Khadr v. Canada (Minister of Justice), 2007 FCA 182. Because this case has national-security aspects, it will be held in closed session; nevertheless, TheCourt.ca will endeavor to provide what coverage is possible.

As a brief background, Mr. Khadr was born in Toronto and moved to Afghanistan with his family as a child. In 2002, when he was 15, he was captured during a firefight with U.S. Special Forces in which he allegedly threw a grenade that killed Sgt. Christopher Speers. He was originally held at Bagram Air Base, and was then transferred to Guantanamo Bay, Cuba, where he has spent the last six years. He was formally charged in 2006, as the American government went through several iterations of prosecution systems; he is currently standing trial before a Military Commission.

The Supreme Court will consider whether the Canadian government is under an obligation to provide complete disclosure to Mr. Khadr so that he can meet the case against him. As many of our readers are aware, section 7 of the Charter mandates that the Crown provide all relevant information to the defence in a criminal trial, so that the accused is able to “make a full answer and defence.” The question in this case is whether the Crown is implicated in the Americans’ treatment of Mr. Khadr and is under any sort of obligation to him.

Relevant Facts

In 2003, members of the Canadian Security Intelligence Service (CSIS) and the Department of Foreign Affairs and International Trade (DFAIT) visited Mr. Khadr. Because the Pentagon forbade consular visits, these visits were purely “information-gathering.” Mr. Khadr alleged in an affidavit last week that these visits were quite horrible, and the Toronto Star has an excellent article on the subject here.

The members of CSIS and DFAIT questioned Khadr on a number of subjects relating to security, and also questioned him on the subject matter for his detention, i.e. the facts surrounding the death of Sgt. Speers. The Canadian government officials then passed on the information they collected from Mr. Khadr to the American authorities.

Mr. Khadr’s lawyers became aware of a number of important documents through Access to Information requests and ongoing litigation seeking damages for alleged breaches of the Charter. These documents were either referenced or were made available to them in redacted form based on national security concerns. On November 21, 2005, Mr. Khadr’s lawyers made a general demand to the government of Canada for production of “all relevant documents in the possession of the Crown in Right of Canada” (which would include CSIS, DFAIT, the RCMP, the Department of Justice, and any other branch of the Crown.) Their demand was not answered by the government, and Mr. Khadr’s lawyers then sought judicial review of the government’s de facto refusal.

Decision of the Federal Court of Appeal

Mr. Khadr was not successful at the Federal Court, his application for judicial review was denied (the judgment can be found here.) He was, however, successful at the Federal Court of Appeal, and it is the latter judgment which is being appealed to the Supreme Court. I will only outline the opinion of the Federal Court of Appeal.

It is settled law that the Crown is under an obligation to provide all relevant information to the defendant in a criminal trial, and also that “relevant” is very broadly defined: any information that has a reasonable possibility of being useful is considered relevant. It is also settled law that Canadian citizens are not uniformly entitled to information in the possession of the government of Canada. The question in this case is whether the Crown’s disclosure obligation applies to circumstances where (a) Mr. Khadr was captured abroad (in Afghanistan), (b) he was captured exclusively by the United States, and (c) he is being held by the United States without Canadian involvement.

In these circumstances, the government of Canada argued that it does not owe Mr. Khadr any rights under the Charter. The Federal Court of Appeal disagreed. Justice Desjardins, writing for a unanimous panel, explained:

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. 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.

In cases such as this, however, it is not enough merely to engage the Charter. The court must also be assured that any order issued by it, a branch of the Canadian state, does not interfere with the sovereign authority of another state. Justice Desjardins found that there would be no such interference, because the mere provision of relevant information to a defendant does not impinge on the foreign court’s ability to admit, weigh or accept any of that evidence.

It was uncontested that, provided the Charter applies, the Canadian government must provide a full disclosure. The FCA ordered such disclosure, but placed a stay on their order pending the Supreme Court’s decision.

Supreme Court

In an unusual turn, both the government of Canada and Mr. Khadr filed motions in the Supreme Court prior to the hearings beginning this week. The Supreme Court responded with written reasons on March 20, 2008, and it is available here. The government of Canada filed motions designed to limit the scope of argument in the SCC away from the legality of Guantanamo Bay under international law. To that end, the motions sought to strike out portions of Mr. Khadr’s factum as well as bar the B.C. Civil Liberties Association and Human Rights Watch from participating in the argument as interveners.

The Supreme Court refused both motions filed by the government, stating that nothing about international law precludes its argument before the Court. The government will be free to argue that the issues relating to international law lack a factual basis and are non-justiciable, but neither of those potential problems are sufficient to strike out the arguments summarily.

The Supreme Court also granted Mr. Khadr’s motion that any potential fresh evidence from his US Military Counsel, Lt. Cdr. William Kuebler, be sealed by the Supreme Court so that Lt. Cdr. Kuebler could obtain permission from the Pentagon to reveal potentially sensitive information.

The case certainly elicits strong opinions on all sides. The CBA recently renewed their plea that Mr. Khadr be repatriated to Canada on TheCourt.ca, available here. I happen to agree with them. Please comment on my post, and I as well as the other members of TheCourt.ca community will be happy to discuss this issue further.