Friday, May 23, 2008
Today the Supreme Court of Canada issued a ground-breaking decision in Canada (Justice) v. Khadr. I wanted to share this with those who are interested in international criminal law, human rights law, conflict of laws, and what Canada is up to …
Before I provide the information about the decision, I want to say that I sympathize with the soldiers and families of soldiers in Iraq. I am not sending this to offend anyone or to make any sort of political commentary. I acknowledge that the topic is a difficult one for many and the facts are horrible. I only want to share this information because it may be relevant for some.
Omar Khadr is accused of killing a U.S. soldier in Iraq. He was injured in the same fire-fight. He was treated for his wounds. He was sent to Gitmo. Khadr's U.S. war-crimes trial is scheduled to begin later this year. His U.S. defence lawyers are seeking material in order to prepare his defence. Some of the information the U.S defence lawyers cannot get through the U.S. procedures have been requested from the Government of Canada.
In today's decision, the Supreme Court of Canada ordered the federal government of Canada to hand over information that it obtained during interrogation sessions that Canadian agents held with him in 2003. Further, the Court ordered the delivery of any information that Canadian authorities have given to their US counterparts as a direct consequence of conducting the interviews.
The reason for ordering the disclosure of the information is summarized as follows:
"The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law, do not extend to participation in processes that violate Canada’s international human rights obligations. ... The process in place at the time Canadian officials interviewed Mr. Khadr and passed the fruits of the interviews on to U.S. officials has been found by the United States Supreme Court to violate U.S. domestic law and international human rights obligations to which Canada is party. In light of these decisions by the United States Supreme Court that the process at Guantanamo Bay did not comply with either U.S. domestic or international law, the comity concerns that would normally justify deference to foreign law do not apply in this case. Consequently, the Charter applies, and Canada is under a s. 7 duty of disclosure. The content of this duty is defined by the nature of Canada’s participation in the process that violated Canada’s international human rights obligations. In the present circumstances, this duty requires Canada to disclose to Mr. Khadr 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."
However, the Supreme Court of Canada did not order the delivery of a U.S. military report of the battle that took place on the day Khadr was arrested, which had been shared with the Canadian authorities.
"The U.S. government claims to have somehow misplaced it," the U.S Defence lawyer said in an interview. "The only way to get that report was to get it from Canada. We requested everything, but unfortunately, the Supreme Court has not gone far enough today."
However with respect to the ordered disclosure and in an attempt to acknowledge the unique nature of the materials at issue, the Court states:
"....This disclosure is subject to the balancing of national security and other considerations as required by ss. 38 ff. of the Canada Evidence Act.
 ... it is not possible on the record before this Court to determine what specific records should be disclosed to Mr. Khadr. In order to assess what specific documents must be disclosed as falling within the group of documents described in para. 37, a designated judge of the Federal Court must review the documents. The designated judge will also consider any privilege or public interest immunity claim that is raised, including any claim under ss. 38 ff. of the Canada Evidence Act.
 The designated judge will review the material and receive submissions from the parties, and decide which documents fall within the categories set out in para. 37 above. In particular, the designated judge will determine which records fall within the scope of the disclosure obligation as being (i) records of the interviews conducted by Canadian officials with Mr. Khadr, or (ii) records of information given to U.S. authorities as a direct consequence of Canada’s having interviewed Mr. Khadr.
 Pursuant to s. 38.06 of the Canada Evidence Act, the designated judge will then consider whether disclosure of the records described in (i) and (ii) to Mr. Khadr would be injurious to international relations or national defence or national security, and whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. The designated judge will decide whether to authorize the disclosure of all the information, a part or summary of the information, or a written admission of facts relating to the information, subject to any conditions that the judge considers appropriate. We note that this review is currently ongoing pursuant to this Court’s order of January 23, 2008."
To read a copy of the decision, please click http://scc.lexum.umontreal.ca/en/2008/2008scc28/2008scc28.html
Cyndee Todgham Cherniak