Khadr vs. Attorney General and Minister of Foreign Affairs

Date: 20041013 Docket: T-536-04 Citation: 2004 FC 1394 Ottawa, Ontario, this 13th day of October, 2004

Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN

BETWEEN:

OMAR AHMED KHADR by his Next Friend FATMAH ELSAMNAH

Plaintiff

and

THE ATTORNEY GENERAL OF CANADA and THE MINISTER OF FOREIGN AFFAIRS

Defendants

Reasons for Order

[1] 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 Plaintiffs submit that Omar Khadr has been regularly interrogated, has not been brought before an independent tribunal and has been denied access to consular officials, to counsel and to his family. It is submitted that he now faces proceedings before a military tribunal as a result of which he may be sentenced to death for events that occurred when he was 15 years old. [3] The Plaintiffs alleges that, on at least two occasions, Canadian government agents interviewed Omar Khadr in Guantanamo Bay and provided information obtained therefrom to US officials. It is argued that, in failing to advise him of his right to silence, his right to counsel his rights under the Canadian Charter of Rights and Freedoms (Charter) were infringed. [4] In the Statement of Claim the Plaintiffs seek: a) a declaration that Omar Khadr's Charter Rights have been breached; b) damages for $ 100,000.00; and c) an injunction against further interrogation by Canadian government agents. [5] The Defendants have moved for an Order striking the Statement of Claim Notice of Application on the basis that it does not disclose a reasonable cause of action in this matter. [6] The Defendant's argument is, in essence, as follows: - Omar Khadr is in US custody not in the hands of Canadian authorities; - there is no investigation ongoing by Canadian authorities against Omar Khadr; - there are no charges pending or even contemplated against Omar Khadr by Canadian authorities; - Canada authorities have no influence over the US's action regarding Omar Khadr's detention, treatment or the laying of charges against him; - there is no joint Canadian/US law enforcement or prosecutorial activity against Omar Khadr; and - the Charter does not apply as Canadian authorities were not in control of the interrogation, therefore there is no causal connection between the actions of Canadian authorities and the detention, treatment or future charges by US authorities against Omar Khadr. [1] The Plaintiffs, on the other hand, allege that the actions of agents of Candian authorities in interrogating Mr. Khadr engage sections 7, 10 (a) and 10 (b). [2] Allegations regarding sections 6, 11, 12 and 10 (c) were withdrawn during oral argument. [3] For the purposes of considering a motion to strike, the Court has to assume that all allegations made can be proven. In the Operation Dismantle. et al. v. The Queen et al. 1985 CanLII 74 (S.C.C.), (1985),18 D.L.R. (4th) 481 case Wilson J. said at 515: The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is: do they disclose a reasonable cause of action, i.e., a cause of action "with some chance of success" (Drummond-Jackson v. British Medical Ass'n, [1970] 1 All E.R. 1094) or, as Le Dain J. put it in Dowson v. The Queen (1981), 124 D.L.R. (3d) 260 at p. 268, 37 N.R. 127 (sub nom. Dowson v. Government of Canada) (F.C.A.) at p. 138, is it "plain and obvious that the action cannot succeed" ? Is it plain and obvious that the plaintiffs' claim for declaratory or consequential relief cannot succeed? [4] Proceeding on that assumption, the issue is clear: Were Charter Rights engaged when agents of the Canadian authorities assisted US authorities in the interrogation of Omar Khadr at Guantanamo Bay? [5] The rights of Canadians when interrogated abroad by Canadian law enforcement agents were spelled out clearly in R. v. Cook 1998 CanLII 802 (S.C.C.), [1998] 2SCR 597 where Iacobucci J. stated 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 Untied States does not, in this particular case, interfere with the sovereign authority of the foreign state and thereby generate an objectionable extraterritorial effect. (Underlining added) [6] In this case, the reasons for arresting and , the justification for detaining Omar Khadr are somewhat murky. It is not clear from record why he is being detained, what offense he will be charged with and what procedures are being followed This lack of clarity also has an impact on Canadian law enforcement officials assisting foreign agencies. As Bastarache J. stated in Cook supra at para. 150, [I]t was argued that the application of the Charter to Canadian officials abroad would lead to an unmanageable complexity in knowing the rules by which they are bound. This argument is unconvincing. Canadian police officials are fully aware of their Charter obligations. The fact that they are operating abroad makes it no more difficult than in Canada to be aware of their obligations under the Charter. As is clear from the discussion above, there is no question of a "conflict" between foreign procedures and Canadian procedures. If the compulsory foreign procedure adopted falls below the standard required by the Charter, then the Canadian officials may not take a directing or primary role in the part of the investigation involving those techniques. In essence, they may not exercise, even when invited to do so by the foreign authority, the powers purportedly conferred on them by the foreign investigatory procedures. This is no more complex than the obligation imposed by the Charter within Canada. (underlining added) [7] While Cook supra dealt with a case where charges were pending in both jurisdictions, in Purdy v. Canada (Attorney General) [2003] B.C.J. No 1881 at para. 22, the Court found that the Charter also applies where there are no Canadian charges but Canadian law enforcement agencies gathered the evidence, Thus, a justiciable [Charter] issue on disclosure may arise in relation to foreign proceedings where Canadian authorities gathered some of the evidence.

[8] The Statement of Claim also alleges that Omar Khadr may face the death penalty as a result of proceedings in the US. U.S. v Burns 2001 SCC 7 (CanLII), [2001] 1 SCR 283 establishes that in extradition cases, anticipated treatment by the requesting country engages s. 7 of the Charter.

[9] Where section 7 rights are in play there must be a reasonable foreseeable connection between Canada's action and the violation of the Charter. As stated in Suresh v. Canada (MCI) 2002 SCC 1 (CanLII), [2002] 1 SCR 3 at para. 54: 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 [page36] justice merely because the deprivation in question would be effected by someone else's hand. (underlining added)

[10] It is also well established that section 7 rights encompass s. 10 (a) and (b) rights. In the R v. White, 1999 CanLII 689 (S.C.C.), [1999] 2 S.C.R. 417 at p. 13, Q.L., paras. 43-44 case, the Court explained that (t)he jurisprudence of this Court is clear that the principle against selfincrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. The principle can also be the source of new rules in appropriate circumstances. Within the Charter, the principle against selfincrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and the right to use immunity set out in s. 13. The Charter also provides residual protection to the principle through s. 7.

[11] Lastly, one must never forget that section 7 right must be considered in their context. As stated by Iacobucci in R. v White 1999 CanLII 689 (S.C.C.), [1999] 2 S.C. R. 417 at para 45

45 That the principle against self-incrimination does have the status as an overarching principle does not imply that the principle provides absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually-sensitive. This point was made in Jones, supra, at p. 257, per [page439] Lamer C.J., and in S. (R.J.), supra, at paras. 96-100, per Iacobucci J., where it was explained that the parameters of the right to liberty can be affected by the context in which the right is asserted. The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue. See also R. v. Lyons, 1987 CanLII 25 (S.C.C.), [1987] 2 S.C.R. 309, at p. 361, per La Forest J.

46 In Fitzpatrick, supra, at paras. 21-25, La Forest J., speaking on behalf of the full Court, confirmed that this Court has always expressly limited the application of the principle against self-incrimination to cover only the specific circumstances raised by a given case. He stressed, at para. 25, that a court must begin "on the ground", with a concrete and contextual analysis of the circumstances, in order to determine whether the principle against self-incrimination is actually engaged on the facts. 47 The contextual analysis that is mandated under s. 7 of the Charter is defined and guided by the requirement that a court determine whether a deprivation of life, liberty, or security of the person has occurred in accordance with the principles of fundamental justice. As this Court has stated, the s. 7 analysis involves a balance. Each principle of fundamental justice must be interpreted in light of those other individual and societal interests that are of sufficient importance that they may appropriately be characterized as principles of fundamental justice in Canadian society. This analytical approach was applied, for example, in S. (R.J.), supra, at paras. 107-8, per Iacobucci J., where it was stated: ... the principle against self-incrimination may mean different things at different times and in different contexts. The principle admits of many rules. What should the rule be in respect of testimonial compulsion? ... [page 440] I begin this inquiry by asserting that any rule demanded by the principle against self-incrimination which places a limit on compellability is in dynamic tension with an opposing principle of fundamental justice. That is the principle which suggests that, in a search for truth, relevant evidence should be available to the trier of fact... . Obviously, the Charter sanctions deviations from this positive general rule. Sections 11(c) and 13 stand as obvious examples. The question is whether we need another exemption, and if so, why? [Emphasis added.] See similarly, e.g., R. v. Seaboyer, 1991 CanLII 76 (S.C.C.), [1991] 2 S.C.R. 577, at p. 603, per McLachlin J., and Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (S.C.C.), [1993] 3 S.C.R. 519, at pp. 590-91, per Sopinka J.

48 It is the balancing of principles that occurs under s. 7 of the Charter that lends significance to a given factual context in determining whether the principle against self-incrimination has been violated. In some contexts, the factors that favour the importance of the search for truth will outweigh the factors that favour protecting the individual against undue compulsion by the state. This was the case, for example, in Fitzpatrick, supra, where the Court emphasized the relative absence of true state coercion, and the necessity of acquiring statements in order to maintain the integrity of an entire regulatory regime. In other contexts, a reverse situation will arise, as was the case, for example, in Thomson Newspapers, supra, S. (R.J.), supra, and Branch, supra. In every case, the facts must be closely examined to determine whether the principle against self-incrimination has truly been brought into play by the production or use of the declarant's statement. (Underlining added) [12] 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. (underlining added)

[13] 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?

[14] 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.

[15] Accordingly, this motion cannot succeed.

[16] The parties have consented to the removal of the Minister of Foreign Affairs as a Defendant to this action and the substitution of Her Majesty the Queen as Defendant for the Attorney General of Canada.

Order

THIS COURT ORDERS that:

• 1. the motion be dismissed with costs to the Plaintiff.
• 2. the Style of Cause in this matter will be changed to:

OMAR AHMED KHADR by his Next Friend FATMAH EL-SAMNAH

Plaintiff

and

HER MAJESTY the QUEEN IN RIGHT OF CANADA

Defendant

"K. von Finckenstein"

Judge

Federal Court Names of Counsel and Solicitors of Note

DOCKET: T-536-04 STYLE OF CAUSE: Omar Ahmed Khadr by his Next Friend Fatmah Elsamnah v The Attorney General of Canada and the Minister of Foreign Affairs PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: October 7, 2004 REASONS FOR : The Honourable Mr. Justice von Finckenstein DATED: October 13, 2004 APPEARANCES: Mr. Dennis Edney FOR PLAINTIFF Mr. Nathan Whitling Ms. Doreen Mueller FOR DEFENDANTS Mr. Robert Drummond SOLICITORS OF RECORD: Edney, Hattersley & Dolphin FOR PLAINTIFF Edmonton, Alberta Parlee McLaws LLP FOR PLAINTIFF Edmonton, Alberta Mr. Morris Rosenberg FOR DEFENDANTS Deputy Attorney General of Canada Edmonton, Alberta