Canada v. Khadr: What was that all about?

The Supreme Court in Canada v. Khadr 2008 SCC 28 was faced with a fascinating situation which afforded the Court an opportunity to assess the relationship between a citizen and his government on the one hand and the relationship between the government and her foreign sovereigns.

A brief background is necessary to situate the discussion. In 2002 Khadr, who was only 15 at the time, allegedly killed a U.S. Marine during a battle in Afghanistan. He was captured and charged with a series of offences stemming from his alleged role in that battle, including a charge of murder in the death of the Marine. He was transported to Guantanamo Bay where he has been these past six years. Khadr is a Canadian citizen.

During the military commission proceedings (the US process by which he is to be tried), he unsuccessfully tried to obtain from the U.S. authorities documents and interview notes of his interrogation by CSIS agents. (The CSIS agents had interrogated him while he was incarcerated at Guantanamo Bay.) He then applied to the Federal Court of Canada to obtain all information that the Canadian Government may have about his case with a view to potentially using that information to defend against the charges he is currently facing. He lost at trial but won on appeal. The Government of Canada appealed the decision to the Supreme Court of Canada.

The issue for the Court’s consideration was whether a Canadian citizen is entitled to access material that is in the possession of the Canadian government that might be capable of assisting him to defend against charge(s) in a foreign country. To decide this issue, the Court would have to define the relationship between a citizen and his government in these circumstances.

In deciding this question the Supreme Court delivered a judgment bereft of real analysis of this issue, instead treating the case as though it could be resolved on the bases of a very narrow exception referred to in obiter in R. v. Hape, 2007 SCC 26. In my view, resort to Hape does little more than obscure and even distort any meaningful analysis of the real issue presented by this case.

Hape involved a radically different situation. Mr. Hape sought to prevent the Canadian government from using information it had obtained abroad, while co-operating with a foreign government’s police force, to convict him at his trial in Canada. Whereas Khadr was asking to gain access to information that the Canadian government had to assist him in his defence against charges in a foreign country. The two situations could not be more different. Hape was not concerned with disclosure obligations to assist a citizen but rather the ability of our government to use information to convict a citizen.

In Hape the issue was whether the use of information obtained abroad in a manner that does not comport with Canadian constitutional standards is just. In other words did the Charter follow the Canadian officials and govern their actions even though they were acting in a foreign country in cooperation with foreign officials and in compliance with the law of that jurisdiction.

In Hape the Court noted that unless the foreign conduct violates our sense of fundamental justice, the Charter does not apply to the actions of Canadian government officials operating abroad. The reason, principles of international comity require that Canada not export its constitutional norms to other countries. In such circumstances any evidence gleaned is available for use by our courts unless there is a clear “violation of international law and fundamental human rights”. Hape, at paras. 51, 52 & 101 per LeBel J..

In Khadr the Court assessed the issue raised in light of Hape‘s analytical model and caste the issue as whether the conduct of CSIS agents was in violation of international law and fundamental human rights and therefore a violation of Khadr’s s. 7 Charter rights.

The Court concluded that CSIS did violate international law and therefore, by extension, Mr. Kadhr’s s. 7 rights. But the Court was careful to pinpoint the moment at which the s. 7 violation occurred. It did not occur when the CSIS agents attended Guantanamo Bay to interview Khadr or when they refused to turn over their interview notes or any other materials. Rather, the constitutional wrong arose when the CSIS officials turned over the fruits of their interrogation to American officials and then refused to provide these same materials to Khadr. It is difficult to understand how this information sharing can be the cause of any s. 7 violation. The reality is that CSIS routinely shares and receives information from foreign agencies, indeed sharing is the lifeblood of any intelligence agency?

It was not the sharing, per se, that violated international law and fundamental human rights. Rather, it was sharing in the context of participating in the American military commission process which, according the United States’ own Supreme Court, violates basic international human rights obligations. In other words, the violation stems from CSIS participating in a process that is in breach of international law and human rights norms, a process that could see a Canadian citizen deprived of his liberty,that violates s. 7 of the Charter.

What is the remedy for this constitutional wrong? It is to level the playing field, so that Mr. Khadr gets what the foreign state received. So the Court ordered that the Canadian government turn over what they gave the Americans, in particular “(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.”

The problem with approaching the issues raised in this way is that the Court manages to avoid dealing directly with the real issue that is at the heart of this case and which should have been central to its analysis. Namely, what is the duty of the Canadian government when a foreign state is treating a Canadian abroad in a manner that violates international law? Surely there must be a constitutional obligation on the Canadian government to assist its citizens in such circumstances. As a result, it is hard to understand why production was limited only to the material that CSIS had provided the Americans.

The duty to observe and protect s. 7 values, which must include a duty to assist citizens abroad whose fundamental human rights are in jeopardy, should undoubtedly extend to all information that Canadian Government officials might possess that is relevant to Mr. Khadr’s case, subject to any claims of national security privilege.

My preferred approach is to recognize that s. 7 and related rights are vested in individuals and define their individual relationships with the State. The State’s obligation to protect and nurture s.7 rights should require production where the failure to do so may impair the ability to make full answer and defence in any other country where the process is in violation of international law and basic human rights. So, if a person is detained in Syria, our government would have a constitutional duty to protect the citizen to ensure that the person is not tortured and can obtain a fair trial. If that cannot happen, our government should be required to do everything within its powers to secure a Canadian’s release. What I advocate is nothing more than a particular application of that principle.

If we accept that the Military Commission regime is violative of international law and basic human rights, then it follows that our government has a positive duty to assist. That means not only providing full disclosure but also taking positive steps to seek Khadr’s release from a detention that is illegal and contrary to international law. It should matter not what the degree of co-operation between the Canadian government and foreign government is. Rather, what should matter most is whether a citizen is about to be deprived of his s. 7 rights because a foreign legal system is out of step with international human rights norms to which Canada subscribes. It is in this sense that the Charter must have some minimal level of extra-judicial application.

Sadly, the Court did not engage that principle and focused on the Canadian government’s participation in a flawed regime as the principle that triggers an obligation on the part of our government to protect Mr. Khadr’s rights, rather than Mr. Khadr’s status as a Canadian citizen.