Khadr Decision Released -- Disclosure Ordered

The Supreme Court decision in Canada (Justice) v. Khadr, 2008 SCC 28 was released a few moments ago.  The short version is the Charter applies and full disclosure, subject to some limited national security restrictions must be made.  A summary follows.

           

K, a Canadian, has been detained by U.S. Forces since 2002 at Guantanamo Bay, Cuba, where he is currently facing murder and other terrorism-related charges.  He was taken prisoner in Afghanistan when he was 15 years old.  In 2003, Canadian officials, including agents of the Canadian Security and Intelligence Service, questioned K at Guantanamo Bay with respect to matters connected to the charges he is now facing, and shared the product of these interviews with U.S. authorities.  After formal charges were laid against him, K, invoking Stinchcombe, sought disclosure in Canada of all documents relevant to these charges in the possession of the Canadian Crown, including the records of the interviews.  The Federal Court refused the request, but the Federal Court of Appeal set aside the decision and ordered that unredacted copies of all relevant documents in the possession of the Crown be produced before the Federal Court for review under ss. 38 ff. of the Canada Evidence Act.

 

The Supreme Court dismissed the appeal.  The Federal Court of Appeal’s order should be varied as it relates to the scope of disclosure to which K is entitled as a remedy under s. 7 of the Canadian Charter of Rights and Freedoms.

 

K is entitled to disclosure from the appellants of the records of the interviews, and of information given to U.S. authorities as a direct consequence of conducting the interviews.  The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law and which might otherwise preclude application of the Charter to Canadian officials acting abroad, do not extend to participation in processes that violate Canada’s binding international human rights obligations.  The process in place at Guantanamo Bay at the time Canadian officials interviewed K and passed on the fruits of the interviews to U.S. officials has been found by the U.S. Supreme Court, with the benefit of a full factual record, to violate U.S. domestic law and international human rights obligations to which Canada subscribes.  The comity concerns that would normally justify deference to foreign law do not apply in this case.  Consequently, the Charter applies.

 

With K’s present and future liberty at stake, Canada is bound by the principles of fundamental justice and is under a duty of disclosure pursuant to s. 7 of the Charter.  The content of this duty is defined by the nature of Canada’s participation in the process that violated its international human rights obligations.

 

In the present circumstances, this duty requires Canada to disclose to K records of the interviews conducted by Canadian officials with him, and information given to U.S. authorities as a direct consequence of conducting the interviews, subject to claims for privilege and public interest immunity.  Since unredacted copies of all documents, records and other materials in the appellants’ possession which might be relevant to the charges against K have already been produced to a designated judge of the Federal Court, the judge will now review the material, receive submissions from the parties and decide which documents fall within the scope of the disclosure obligation.