Canada (Justice) v. Khadr

Canada (Justice) v. Khadr

When Canadian officials participate in a foreign process that violates Canada’s binding international human rights obligations, the Charter applies to the extent of that participation and s.7 imposes a duty on Canada to disclose records arising from that participation; here Canada must disclose records of interviews and information given to U.S. authorities as a direct consequence of those interviews, subject to privilege and ss.38 ff. review.

Citation
2008 SCC 28
Parties
Appellants: Minister of Justice; Attorney General of Canada; Minister of Foreign Affairs; Director of the Canadian Security Intelligence Service; Commissioner of the Royal Canadian Mounted Police; Respondent: Omar Ahmed Khadr; Intervener: British Columbia Civil Liberties Association; Intervener: Criminal Lawyers' Association (Ontario); Intervener: University of Toronto, Faculty of Law — International Human Rights Clinic; Intervener: Human Rights Watch
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
23 May 2008
Procedural Posture
Appeal — Constitutional Challenge Under S.7 of the Charter Concerning Disclosure by Crown Relating to Guantanamo Interviews / Supreme Court of Canada Judgment on Appeal From the Federal Court of Appeal
Outcome
Appeal dismissed with variations to the Federal Court of Appeal order
Legal Topics
Charter S.7 Disclosure Obligation, Extraterritorial Application of Charter, Comity and International Law Exception, Canada Evidence Act Ss.38 Ff., Public Interest Immunity
Source Language
English
Constitutional Law Evidence International Law Human Rights Law Charter S.7 Disclosure Obligation Extraterritorial Application of Charter Comity and International Law Exception Canada Evidence Act Ss.38 Ff. +1 more

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Parties

Minister of Justice; Attorney General of Canada; Minister of Foreign Affairs; Director of the Canadian Security Intelligence Service; Commissioner of the Royal Canadian Mounted Police

Appellants

Omar Ahmed Khadr

Respondent

British Columbia Civil Liberties Association

Intervener

Criminal Lawyers' Association (Ontario)

Intervener

University of Toronto, Faculty of Law — International Human Rights Clinic

Intervener

Human Rights Watch

Intervener

Procedural Posture

Appeal — Constitutional Challenge Under S.7 of the Charter Concerning Disclosure by Crown Relating to Guantanamo Interviews / Supreme Court of Canada Judgment on Appeal From the Federal Court of Appeal

Legal Issues

  1. 1 Whether the Canadian Charter applies to Canadian officials acting abroad in circumstances where they participate in a foreign process
  2. 2 Whether Canada participated in a Guantanamo Bay process that violated Canada’s international obligations
  3. 3 Whether participation triggered a s.7 duty of disclosure and the scope of that duty

Ratio Decidendi

When Canadian officials participate in a foreign process that violates Canada’s binding international human rights obligations, the Charter applies to the extent of that participation and s.7 imposes a duty on Canada to disclose records arising from that participation; here Canada must disclose records of interviews and information given to U.S. authorities as a direct consequence of those interviews, subject to privilege and ss.38 ff. review.

Court Disposition

Appeal dismissed with variations to the Federal Court of Appeal order

Orders

  • Appellants to produce to a judge as defined in s.38 of the Canada Evidence Act unredacted copies of all documents, records and other materials in their possession which might be relevant to the charges against Omar Khadr (subject to claims of privilege and public interest immunity)
  • The designated judge shall consider any privilege or public interest immunity claim, including claims under ss.38 ff. of the Canada Evidence Act, and make disclosure orders in accordance with these reasons