A-184-06
2007 FCA 182
Omar Ahmed Khadr (Appellant)
v.
The Minister of Justice and Attorney General of Canada, The Minister of Foreign Affairs, The Director of the Canadian Security Intelligence Service, and The Commissioner of the Royal Canadian Mounted Police (Respondents)
Indexed as: Khadr v. Canada (Minister of Justice) (F.C.A.)
Federal Court of Appeal, Desjardins, Létourneau and Ryer JJ.A.—Edmonton, March 13; Ottawa, May 10, 2007.
Constitutional Law — Charter of Rights — Life, Liberty and Security — Appeal from Federal Court’s dismissal of application for judicial review seeking remedy under Canadian Charter of Rights and Freedoms (Charter), s. 24(1) for violation of s. 7 right to full answer and defence to criminal charges laid by U.S. Government — Appellant apprehended in 2002 by American military, currently detained in Guantánamo Bay, Cuba — Charged with several serious terrorism-related crimes, offences — Appellant obtaining redacted copies of some of Crown’s documentary materials after submitting Access to Information requests, instituting court proceedings — Canadian officials interviewing appellant in Cuba, playing active role in gathering information, passing on summaries thereof to U.S. authorities — Since Canadian officials assisted U.S. authorities in conducting investigation against appellant, preparing case against him, Federal Court erring in concluding not sufficient causal connection between Canadian government’s participation in foreign investigation, appellant’s potential deprivation of life, liberty, security of person — Because establishing prima facie case of substantial risk of not being able to present full answer and defence to U.S. charges if denied access to relevant information, appellant having right to full disclosure of all relevant documents within Crown’s possession, subject to Crown’s privilege, public interest immunity claims reviewable by court of law — Appeal allowed.
Criminal Justice — Evidence — Appeal from Federal Court’s dismissal of application for judicial review seeking remedy under Canadian Charter of Rights and Freedoms (Charter), s. 24(1) for violation of s. 7 right to full answer and defence to criminal charges — Crown having continuing obligation to disclose all relevant information to accused — Failure to do so impeding accused’s ability to make full answer and defence — Federal Court erring when finding disclosure of relevant materials to Canadian citizens to defend against foreign prosecutions might lead to interference with foreign legal proceedings, impede provision of consular services by Canada — However, since appellant not seeking direction or order purportedly directing Military Commission to do anything, disclosure order would not interfere with U.S. sovereign authority — Matter returned to Federal Court since impossible to decide whether Crown failed to comply with disclosure obligation as established by case law.
This was an appeal from the Federal Court’s dismissal of an application for judicial review seeking a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms (Charter) for a violation of the appellant’s section 7 right to a full answer and defence to criminal charges. He sought an order of mandamus directing the respondents to make full and complete disclosure of all documents, records and other materials in the possession of all departments of the Crown that might be relevant to the charges laid against him by the U.S. Government. The appellant, a Canadian citizen, was apprehended by the American military in July 2002 and is detained in Guantánamo Bay, Cuba. He was charged with several serious terrorism-related crimes and offences for events alleged to have occurred in Afghanistan and elsewhere when the appellant was 15. He is awaiting prosecution by a U.S. Military Commission. Prior to the laying of charges, which carry a maximum penalty of life imprisonment, Canadian officials from the Canadian Security Intelligence Service (CSIS) and the Department of Foreign Affairs and International Trade (DFAIT), with the consent of U.S. authorities, interviewed the appellant in Guantánamo Bay in the absence of his counsel. Canadian agents took a primary role in the interviews and were acting independently of U.S. authorities. Summaries of information collected were passed on to the RCMP and to U.S. authorities. Through requests made pursuant to the Access to Information Act (AIA) and through production and disclosure in Federal Court proceedings, the appellant obtained redacted copies of some of the documentary materials in the Crown’s possession. The deletions and redactions were made on grounds of international relations, national defence and national security, and more specifically, under certain statutory exemptions under the AIA and a “specific public interest immunity” under section 38 of the Canada Evidence Act. After the charges were laid, the appellant’s counsel formally requested that copies of all materials in the possession of all departments of the Crown that might be relevant to the charges raised against the appellant be provided since it was his client’s constitutional right to raise full answer and defence but the respondents never replied thereto.
On judicial review, the Federal Court held that the requirement that there be a sufficient causal connection between the Government of Canada’s participation and the appellant’s potential deprivation of the right to life, liberty and security of the person was not met. The Court also concluded that the first two requirements for an order of mandamus to be granted were not met. The issues were: (1) whether the Federal Court erred in finding that the Charter does not have extraterritorial application in the circumstances of this case; (2) whether the application of the Charter interferes with the sovereign authority of the U.S.; (3) whether section 7 of the Charter was engaged; and (4) what was the nature of the order to be issued.
Held, the appeal should be allowed.
The Supreme Court of Canada decision in R. v. Stinchcombe established that the Crown has a continuing obligation, triggered by the request of an accused, to disclose all relevant information, whether inculpatory or exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainly irrelevant. A failure to disclose impedes an accused’s ability to make full answer and defence and creates the risk of an innocent person being convicted and imprisoned. The right to make full answer and defence has been entrenched in the section 7 protection of the right to life, liberty and security of the person. The Supreme Court of Canada has recognized that in rare circumstances the Charter may apply outside Canada.
(1) The guarantee of fundamental justice applies even to deprivations of life, liberty and security effected by actors other than the Canadian government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately affected. The visits from Canadian officials were purely information-gathering visits with a focus on intelligence/law enforcement. Summaries of the information collected were passed on to U.S. authorities and the Canadian officials were acting independently and were not under U.S. authorities’ instructions. The participation of the Canadian officials in gathering evidence against the appellant at a pre-charge level raised a justiciable Charter issue. Canada’s participation may have made it more likely that criminal charges would be laid against the appellant and thus increased the likelihood that he would be deprived of his right to life, liberty and security of the person. The Charter applied since there was a sufficient causal connection between the Canadian government’s participation in the foreign investigation and the potential deprivation of life, liberty and security of the person which the appellant faced. The Federal Court therefore erred in concluding that a sufficient causal connection did not exist.
(2) The Federal Court also erred when it found that the disclosure of relevant materials to Canadian citizens to defend against foreign prosecutions might lead to interference with foreign legal proceedings and could act as an impediment to the provision of consular services by Canadians. It has been established that a disclosure order does not interfere with the sovereign authority of the U. S. since disclosure does no more than put the individual in the position to offer the evidence obtained to the foreign court. It does not decide whether the evidence is admissible or the weight it deserves and does not take over the discovery process in the foreign court. The appellant was not seeking any direction or order which would purport to direct the Military Commission to do anything.
(3) As a Canadian citizen who falls within the purview of the word “everyone” in section 7 of the Charter, the appellant has the right under section 7 of the Charter not to be deprived of his right to life, liberty and security of the person except in accordance with the principles of fundamental justice. The appellant made a prima facie case showing a substantial risk of not being able to present a full answer and defence to the charges he faces in the U.S. if he were denied access to relevant information in the possession of the Crown. He therefore has the right to full disclosure of all relevant documents within the Crown’s possession. However, the Crown’s disclosure obligation is subject to privilege and public interest immunity claims that are reviewable by a court of law.
(4) It was not possible to decide whether the Crown failed to comply with its obligation under Stinchcombe. There was no way to verify whether there were relevant documents that had not been disclosed to the appellant when they should have been and whether the public interest immunity claims and statutory exemptions previously raised were justified exceptions to Stinchcombe disclosure. Therefore, the matter had to be returned to the Federal Court for a determination of the precise documents that the appellant was entitled to obtain under section 7 of the Charter after the respondents were ordered to produce all relevant documents within their possession.
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A-1, s. 50.
Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38 (as am. by S.C. 2001, c. 41, ss. 43, 141(4)), 38.06 (as enacted idem, s. 43).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 24(1), 32(1).
cases judicially considered
applied:
R. v. Stinchcombe, [1991] 3 S.C.R. 326; (1991), 120 A.R. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R. (2d) 93; 68 C.C.C. (3d) 1; 8 C.R. (4th ) 277; 130 N.R. 277; 8 W.A.C. 161; Purdy v. Canada (Attorney General) (2003), 226 D.L.R. (4th ) 761; 175 C.C.C. (3d) 306; 106 C.R.R. (2d) 106; 2003 BCSC 725; affd (2003), 230 D.L.R. (4th ) 361; 188 B.C.A.C. 195; 177 C.C.C. (3d) 438; 15 C.R. (6th) 211; 109 C.R.R. (2d) 160; 2003 BCCA 447; United States of America v. Kwok, [2001] 1 S.C.R. 532; (2001), 197 D.L.R. (4th ) 1; 152 C.C.C. (3d) 225; 41 C.R. (5th ) 44; 81 C.R.R. (2d) 189; 267 N.R. 310; 145 O.A.C. 36; 2001 SCC 18; United States v. Burns, [2001] 1 S.C.R. 283; (2001), 195 D.L.R. (4th ) 1; [2001] 3 W.W.R. 193; 148 B.C.A.C. 1; 85 B.C.L.R. (3d) 1; 151 C.C.C. (3d) 97; 39 C.R. (5th ) 205; 81 C.R.R. (2d) 1; 265 N.R. 212; 2001 SCC 7.
considered:
R. v. Cook, [1998] 2 S.C.R. 597; (1998), 164 D.L.R. (4th) 1; [1999] 5 W.W.R. 582; 112 B.C.A.C. 1; 57 B.C.L.R. (3d) 215; 128 C.C.C. (3d) 1; 19 C.R. (5th) 1; 55 C.R.R. (2d) 189; 230 N.R. 83; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 152; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; 2002 SCC 1; United States of America v. Dynar, [1997] 2 S.C.R. 462; (1997), 33 O.R. (3d) 478; 147 D.L.R. (4th) 399; 115 C.C.C. (3d) 481; 8 C.R. (5th) 79; 44 C.R.R. (2d) 189; 213 N.R. 321; 101 O.A.C. 321.
referred to:
Khadr v. Canada (Attorney General) (2004), 245 D.L.R. (4th) 556; 2004 FC 1394; Khadr v. Canada, [2006] 2 F.C.R. 505; (2005), 257 D.L.R. (4th) 577; 133 C.R.R. (2d) 189; 277 F.T.R. 298; 2005 FC 1076; Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742; (1993), 18 Admin. L.R. (2d) 122; 51 C.P.R. (3d) 339; 162 N.R. 177 (C.A.); Gold v. R., [1986] 2 F.C. 129; (1986), 25 D.L.R. (4th) 285; 18 Admin. L.R. 212; 64 N.R. 260 (C.A.); Canada (Attorney General) v. Ribic, [2005] 1 F.C.R. 33; (2003), 185 C.C.C. (3d) 129; 320 N.R. 275; 2003 FCA 246; Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504; (2003), 217 N.S.R. (2d) 301; 231 D.L.R. (4th) 385; 4 Admin. L.R. (4th) 1; 29 C.C.E.L. (3d) 1; 110 C.R.R. (2d) 233; 310 N.R. 22; 2003 SCC 54; R. v. Egger, [1993] 2 S.C.R. 451; (1993), 141 A.R. 81; 103 D.L.R. (4th) 678; 82 C.C.C. (3d) 193; 21 C.R. (4th) 186; 15 C.R.R. (2d) 193; 45 M.V.R. (2d) 161; 153 N.R. 272; R. v. Taillefer; R. v. Duguay, [2003] 3 S.C.R. 307; (2003), 233 D.L.R. (4th) 227; 179 C.C.C. (3d) 353; 17 C.R. (6th) 57; 114 C.R.R. (2d) 60 313 N.R. 1; 2003 SCC 70; R. v. Dixon, [1998] 1 S.C.R. 244; (1998), 166 N.S.R. (2d) 241; 122 C.C.C. (3d) 1; 13 C.R. (5th) 217; 50 C.R.R. (2d) 108; 222 N.R. 243; R. v. Chaplin, [1995] 1 S.C.R. 727; (1995), 162 A.R. 272; 27 Alta. L.R. (3d) 1; 96 C.C.C. (3d) 225; 36 C.R. (4th) 201; 26 C.R.R. (2d) 189; 178 N.R. 118; 83 W.A.C. 272.
APPEAL from a Federal Court decision ((2006), 290 F.T.R. 313; 2006 FC 509) dismissing an application for judicial review seeking a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms for a violation of the appellant’s section 7 right to a full answer and defence to criminal charges. Appeal allowed.
appearances:
Nathan J. Whitling and Dennis Edney for appellant.
Doreen C. Mueller for respondents.
solicitors of record:
Parlee McLaws LLP and Edney Hattersley & Dolphin, Edmonton, for appellant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
[1]Desjardins J.A.: This appeal raises the question of whether government action which occurred outside Canada triggers the application of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter).
[2]The appellant, Omar Ahmed Khadr, is appealing the decision of von Finckenstein J. of the Federal Court (Khadr v. Canada (Minister of Justice) (2006), 290 F.T.R. 313), which dismissed his application for judicial review. The appellant sought a remedy under subsection 24(1) of the Charter for a violation of his right under section 7 of the Charter to a full answer and defence to criminal charges. He sought an order in the nature of mandamus directing the respondents to make full and complete disclosure of all the documents, records and other materials in the possession of all departments of the Crown in right of Canada which might be relevant to the charges laid against him by the Government of the United States.
[3]The four respondents, the Minister of Justice and Attorney General of Canada, the Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service, and the Commissioner of the Royal Canadian Mounted Police (collectively referred to herein as the Crown), are officials of the Government of Canada who are in possession of voluminous documentary materials which are allegedly relevant to the charges against the appellant.
THE FACTS
[4]The appellant, a Canadian citizen, was apprehended by the American military in July 2002. He is presently detained in U.S. Naval Station, Guantánamo Bay, Cuba.
[5]In November 2005, the appellant was charged with: conspiracy to commit offences triable by Military Commission; murder by an unprivileged belligerent; attempted murder by an unprivileged belligerent; and aiding the enemy. As of February 2, 2007, the charges against him read: murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy; providing material support for terrorism; and spying.
[6]The charges relate to events which are alleged to have occurred in Afghanistan and elsewhere when the appellant was 15 years of age and younger. They carry a maximum penalty of life imprisonment. The prosecution is not seeking the imposition of the death penalty.
[7]The appellant currently awaits prosecution by a Military Commission established by order of the Secretary of Defence of the United States. No date for trial has yet been set.
[8]Prior to the laying of charges, Canadian officials from the Canadian Security Intelligence Service (CSIS) and the Department of Foreign Affairs and International Trade (DFAIT), with the consent of U.S. authorities, attended at Guantánamo Bay and interviewed the appellant in the absence of his counsel. These visits were allegedly not welfare visits or covert consular visits but were purely information-gathering visits with a focus on intelligence/law enforcement. The topics discussed with the appellant included matters which were the subject of the charges. Canadian agents took a primary role in these interviews, were acting independently and were not under instructions of U.S. authorities. Summaries of information collected were passed on to the RCMP and to U.S. authorities (Khadr v. Canada (Attorney General) (2004), 245 D.L.R. (4th) 556 (F.C.), at paragraph 4; Khadr v. Canada, [2006] 2 F.C.R. 505 (F.C.); exhibits to cross‑examination of William Robert James Johnston, A.B., Vol. 11, Tab 13, pages 257‑265; reasons for order and order of von Finckenstein J., at paragraph 19 (iv)).
[9]Through requests pursuant to the Access to Information Act, R.S.C., 1985, c. A‑1 (AIA) and through production and disclosure in Federal Court proceedings T‑536‑04 (an action by the appellant seeking various remedies under the Charter for an alleged violation by Canadian officials of his right to silence and his right to counsel in conducting interviews in Guantánamo Bay) and T‑686‑04 (an application by the appellant’s family in order to compel the government to extend consular and diplomatic services to him), the appellant obtained redacted copies of some of the documentary materials in the Crown’s possession. The deletions and redactions were made on grounds of international relations, national defence and national security, and more specifically, pursuant to certain statutory exemptions under the AIA and a “specific public interest immunity” under section 38 [as am. by S.C. 2001, c. 41, ss. 43, 141(4)] of the Canada Evidence Act, R.S.C., 1985, c. C‑5 (CEA). Over 3,000 pages of documents were provided by the respondents. No steps were taken by the appellant to challenge the redactions and deletions made to these documents.
[10]On November 21, 2005, the appellant’s counsel sent a letter to the respondents which read (A.B., Vol. 1, pages 20‑21):
The writer, Mr. Dennis Edney and Professors Muneer Ahmad and Richard Wilson of American University act as counsel for Mr. Omar Ahmed Khadr. Mr. Khadr is currently detained by U.S. forces in Guantanamo Bay, Cuba. Mr. Khadr has recently been charged by the United States with the offences of Conspiracy, Murder by an Unprivileged Belligerent, Attempted Murder by an Unprivileged Belligerent, and Aiding the Enemy as detailed in the enclosed Charge Sheet. Kindly receive this letter as our formal joint demand pursuant to s. 7 of the Canadian Charter of Rights and Freedoms for production of all relevant documents in the possession of the Crown in Right of Canada which might be relevant to the charges raised against Mr. Khadr and as such, are necessary to enable Mr. Khadr to raise full answer and defence to the charges.
Through our experience as Mr. Khadr’s counsel, we have obtained copies of voluminous materials from DFAIT, CSIS and the RCMP under both the Access to Information Act and the Crown’s production requirements in Federal Court of Canada Numbers T‑536‑04 and T‑686‑04. Much of the content of these documents has been redacted or withheld from us on the basis of assertions of privilege, including the statutory privilege created by s. 38 of the Canada Evidence Act. For further information regarding these materials, their content and the claims of privilege raised therein, we direct you to Mrs. Doreen Mueller, Department of Justice Canada, Counsel for Her Majesty the Queen in Action Numbers T‑536‑04 and T‑686‑04, (780) 495‑8352.
Based on our review of these materials, it is apparent that DFAIT, CSIS, the RCMP and possibly other departments of the Crown in Right of Canada are in possession of materials which are relevant to the serious charges now raised against our client, and which materials are therefore necessary for Mr. Khadr to raise full answer and defence to said charges.
At the time that the claims of privilege referred to above were made, Mr. Khadr was not facing the charges. Consequently, Mr. Khadr’s constitutional right to raise full answer and defence to the charges would not have been a factor taken into account. We take it you agree that Mr. Khadr’s right to raise full answer and defence to the charges now overrides and outweighs the interests forming the basis of these previous assertions of privilege.
In light of the above, we hereby demand that you now provide us with copies of all materials in the possession of all departments of the Crown in Right of Canada which might be relevant to the charges raised against Mr. Khadr in accordance with the requirements of R. v. Stinchcombe, [1991] 3 S.C.R. 326 as applied to extraterritorial prosecutions in such cases as Purdy v. Canada (Attorney General) (2003), 230 D.L.R. (4th) 361 (B.C.C.A.). Without limitations, these materials include all the content redacted from the documents referred to above. Relevance in this regard should be determined by reference to the matters pleaded in the enclosed charge sheet.
We confirm that we are willing to accept the materials requested above upon the provision of formal undertakings by the writer, Mr. Edney, Professor Ahmad and Professor Wilson that said materials may only be reviewed by ourselves and Mr. Khadr’s soon‑to‑be‑appointed military defence counsel absent consent from the Crown or direction from the Court. [Emphasis added.]
[11]The request covered all materials in the possession of all departments of the Crown in Right of Canada which might be relevant to the charges against Mr. Khadr in accordance with the requirements of R. v. Stinchcombe, [1991] 3 R.C.S. 326. It included all of the content redacted from the documents previously obtained under the AIA and in the context of Federal Court proceedings T‑536‑04 and T‑686‑04.
[12]The respondents did not respond to the request. On January 3, 2006, the appellant brought a judicial review application seeking:
An Order in the nature of mandamus directing the Respondents to provide counsel for the Appellant with full and complete disclosure of all documents, records and other materials in the possession of all departments of the Crown in Right of Canada which might be relevant to the Charges and which are therefore necessary for the purpose of allowing the Applicant to raise full answer and defence to the Charges . . . .
THE JUDGMENT BELOW
[13]The main issue before the applications Judge was whether the Charter applied in the circumstances of this case and whether a mandamus should issue.
[14]The applications Judge considered the Supreme Court of Canada decisions in R. v. Cook, [1998] 2 S.C.R. 597 and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. He also examined the decision in Purdy v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 761 (B.C.S.C.), affd (2003), 230 D.L.R. (4th) 361 (B.C.C.A.). He decided that the requirement that there be a sufficient causal connection between the Government of Canada’s participation and the appellant’s potential deprivation of the right to life, liberty and security of the person was not met. Furthermore, he was not convinced that the unique circumstances of Purdy applied.
[15]The applications Judge concluded that the first two requirements for an order of mandamus to be granted were not met (Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), at pages 766-769).
[16]He dismissed the application.
ISSUES
[17]This Court must decide whether the applications Judge erred in finding that the Charter does not have extraterritorial application in the circumstances of this case. If it finds that the Charter applies and that section 7 is engaged, it must determine the nature of the order to be issued.
SUBMISSIONS
[18]According to the appellant, the applications Judge erred in concluding that the Charter does not apply in the circumstances of this case. By withholding relevant documents, the Crown has itself frustrated the appellant’s ability to raise full answer and defence to the charges and has itself increased the risk that the appellant might be wrongly convicted of the charges. The conduct of the Crown in gathering information and evidence which was then passed on to U.S. authorities is relevant in this regard. The Crown’s refusal to disclose relevant documents constitutes a violation of the appellant’s right under section 7 of the Charter and warrants a just and appropriate remedy pursuant to subsection 24(1) of the Charter.
[19]The respondents submit that the applications Judge correctly dismissed the application since there is no causal connection between the actions of Canadian officials and the prosecution of the appellant by U.S. authorities.
[20]The respondents claim that the disclosure of documents pursuant to AIA requests and in the context of Federal Court proceedings T‑536‑04 and T‑686‑04 constitutes an adequate alternative remedy to an order under subsection 24(1) of the Charter. The appellant, they say, seeks concurrent disclosure of essentially the same documents already provided because, in the appellant’s view, the allegations made in this underlying judicial review application allow for a more persuasive argument to challenge the redactions of the documents than in previous proceedings.
[21]The appellant admits that many of the documents at issue in these proceedings have been produced in Federal Court proceedings T‑536‑04 and T‑686‑04 and/or pursuant to requests under the AIA. He accepts the legal limits to disclosure. He wishes however to challenge, in the most effective manner possible, the respondents’ reliance on public interest immunity claims and statutory exemptions under the AIA to provide heavily redacted copies of the documents sought or to withhold documents entirely. He wants to ensure that his challenge is determined under section 38 of the Canada Evidence Act and not under section 50 of the AIA. He also wants to ensure that his right to make full answer and defence will be taken into consideration in the balancing of interests (Gold v. R., [1986] 2 F.C. 129 (C.A.), at pages 137-138; Canada (Attorney General) v. Ribic, [2005] 1 F.C.R. 33 (F.C.A.), at paragraphs 13‑32). He was not facing charges at the time the earlier proceedings were initiated. Consequently, when applying section 38.06 [as enacted by S.C. 2001, c. 41, s. 43] of the Canada Evidence Act in the context of T‑536‑04 and T‑686‑04, it is doubtful, in his opinion, that the designated Judge may consider and weigh the appellant’s right to raise full answer and defence in the balancing of interests required by subsection 38.06(2).
STANDARD OF REVIEW
[22]The Federal Court Judge found that the Charter does not apply in the circumstances of this case. This is a question of law reviewable on the correctness standard: Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, at paragraph 31.
LEGISLATIVE PROVISIONS
[23]The relevant legislative provisions are the following:
Section 7 of the Charter:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Subsection 24(1) of the Charter:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Subsections 38.06(1) and (2) of the Canada Evidence Act:
38.06 (1) Unless the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information.
(2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non‑disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
ANALYSIS
Duty to disclose
[24]Since the landmark decision of the Supreme Court of Canada in R. v. Stinchcombe, it is trite law that the Crown has a continuing obligation to disclose all relevant information to an accused, whether inculpatory or exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainly irrelevant (at pages 339-340 and 343-344). The obligation to disclose is triggered by a request by or on behalf of the accused (page 343).
[25]The Supreme Court of Canada has broadly defined the concept of “relevance” such that little information will be exempt from the Crown’s duty to disclose: R. v. Egger, [1993] 2 S.C.R. 451, at page 467; R. v. Taillefer; R. v. Duguay, [2003] 3 S.C.R. 307, at paragraph 60. The Crown’s duty to disclose is triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence: R. v. Dixon, [1998] 1 S.C.R. 244, at paragraph 21; R. v. Chaplin, [1995] 1 S.C.R. 727, at paragraphs 26‑27.
[26]A failure to disclose relevant information impedes an accused’s ability to make full answer and defence and creates the risk of an innocent person being convicted and imprisoned. As one of the principles of fundamental justice, the right to make full answer and defence has been entrenched in the section 7 protection of the right to life, liberty and security of the person (Stinchcombe, at pages 336-338).
[27]In Stinchcombe, the accused seeking disclosure from the Crown was facing criminal charges in Canada. It is in this context that the Supreme Court of Canada set out the guiding principles governing disclosure by the Crown. In the case at bar, the charges are not being prosecuted in Canada.
[28]In R. v. Cook, [1998] 2 S.C.R. 597, the Supreme Court of Canada has recognized that there may be rare circumstances in which the Charter may apply outside Canada, namely where (1) the impugned act falls within subsection 32(1) of the Charter; and (2) the application of the Charter to the actions of the Canadian detectives in the United States does not interfere with the sovereign authority of the foreign state and thereby generate an objectionable extraterritorial effect (paragraph 25).
Does the Charter have an extraterritorial reach in the circumstances of this case?
[29]In United States of America v. Kwok, [2001] 1 S.C.R. 532, the Supreme Court of Canada explained that “[o]nly where a justiciable Charter issue can arise from the potential involvement of the Canadian authorities in the gathering of evidence is it necessary to consider the degree of disclosure that might be required of the Requested State” (paragraph 106) [emphasis added]. In doing so, the Supreme Court of Canada distinguished its earlier decision in United States of America v. Dynar, [1997] 2 S.C.R. 462 where it had stated that the disclosure requirements of Stinchcombe only applied to domestic criminal proceedings: “In Dynar, the fugitive was not entitled to further disclosure from the Canadian authorities because no justiciable Charter issue arose. Canadian authorities had not provided any assistance to the Americans in gathering evidence and, in any event, the latter were not relying on anything but their own evidence” (paragraph 106) (emphasis added).
[30]In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 54, the Supreme Court of Canada reaffirmed a principle previously recognized in United States v. Burns, [2001] 1 S.C.R. 283:
. . . the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately effected. We reaffirm that principle here. 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 justice merely because the deprivation in question would be effected by someone else’s hand. [Emphasis added.]
[31]In Purdy v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 761 (B.C.S.C.), a Canadian citizen, facing criminal charges in the United States following a joint sting operation involving the RCMP and American police, petitioned the British Columbia Supreme Court for an order pursuant to subsection 24(1) of the Charter compelling the RCMP to provide copies of the materials within its possession that related to the investigation. The British Columbia Supreme Court granted the order sought. It explained, at paragraphs 19‑22 of its reasons:
In the case at bar, the Attorney General of Canada submits there is no justiciable Charter issue because in the absence of criminal charges in Canada, Mr. Purdy has no right to disclosure and the Crown has no obligation to disclose.
This is a formidable argument worthy of consideration, but in my view, the unique circumstances of this case allow me to apply the general principle of Stinchcombe, that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right to make full answer and defence.
The right to make full answer and defence is a common law right that has been incorporated in s. 7 of the Charter as one of the principles of fundamental justice:
The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. Recent events have demonstrated that the erosion of this right due to non‑disclosure was an important factor in the conviction and the incarceration of an innocent person. [Stinchcombe, supra, at p. 336.]
The petitioner is a Canadian national whose life and liberty has been put in jeopardy because of an investigation which took place in Canada and in which Canadian authorities played a major part. In a joint investigation, such as this one, the ultimate forum in which the accused is tried should not deprive the accused from the observance by Canadian authorities of Charter rights to which the accused would otherwise have been entitled. [Emphasis added.]
[32]The British Columbia Supreme Court ordered disclosure as a remedy for the infringement of Mr. Purdy’s constitutional rights, finding that this was “[t]he only practical remedy” (paragraph 28). This decision was affirmed by the British Columbia Court of Appeal, (2003), 230 D.L.R. (4th) 361, which found that the causal connection between Canada’s participation and the deprivation of a liberty interest in a foreign state was direct and obvious (paragraph 20) and emphasized that “a justiciable issue on disclosure may arise in relation to foreign proceedings where Canadian authorities gathered some of the evidence” (paragraph 22) (emphasis added).
[33]In the case at bar, Canadian officials questioned the appellant in Guantánamo Bay prior to the laying of charges. As previously mentioned, the visits were purely information-gathering visits with a focus on intelligence/ law enforcement. Summaries of the information collected were passed on to U.S. authorities. The Canadian officials were acting independently and were not under instructions of U.S. authorities.
[34]In these circumstances, the participation of Canadian officials in gathering evidence against the appellant at the pre‑charge level raises, in my view, a justiciable Charter issue (Kwok, at paragraph 106; Purdy at paragraph 22 (B.C.C.A.)). They took an active role in interviewing the appellant and in transmitting summaries of the information collected to U.S. authorities. In doing so, they assisted U.S. authorities in conducting the investigation against the appellant and in preparing a case against him. Canada’s participation may have made it more likely that criminal charges would be laid against the appellant thereby increasing the likelihood that he would be deprived of his right to life, liberty and security of the person. I believe that in these circumstances the Charter applies. There is a sufficient causal connection between the Canadian government’s participation in the foreign investigation and the potential deprivation of life, liberty and security of the person which the appellant now faces. I am satisfied that the applications Judge erred in concluding that a sufficient causal connection did not exist.
Does the application of the Charter interfere with the sovereign authority of the United States?
[35]As an additional ground for dismissing the application before him, the applications Judge found that the disclosure of relevant materials to Canadian citizens to defend against foreign prosecutions might lead to interference with foreign legal proceedings and could act as an impediment to the provision of consular services by Canadians.
[36]A similar argument was raised in Purdy. In that case, the British Columbia Court of Appeal found that the order did not interfere with the sovereign authority of the United States since disclosure does no more than put the individual in the position to offer the evidence obtained to the foreign court. It does not decide whether the evidence is admissible or the weight it deserves. The order did not take over the discovery process in the foreign court (at paragraph 24). This reasoning equally applies here. The appellant is not seeking any direction or order which would purport to direct the Military Commission to do anything.
Is section 7 of the Charter engaged?
[37]It is uncontested that as a Canadian citizen the appellant falls within the purview of the word “everyone” in section 7 of the Charter. He has the right under section 7 of the Charter not to be deprived of his right to life, liberty and security of the person except in accordance with the principles of fundamental justice. As recognized by the Supreme Court of Canada in Stinchcombe, the right to make full answer and defence to criminal charges is a principle of fundamental justice (at pages 336-338). Withholding relevant documents from an accused increases the risk or danger of that person being wrongfully convicted or imprisoned. The appellant has made a prima facie case showing a substantial risk of not being able to present a full answer and defence to the charges he faces in the United States if he is denied access to relevant information in the possession of the Crown. The appellant therefore has the right to full disclosure of all relevant documents within the Crown’s possession. However, the Crown’s disclosure obligation is not absolute. It is subject to privilege and public interest immunity claims which are reviewable by a court of law.
The nature of the order to be issued
[38]Where a court is persuaded that undisclosed information meets the Stinchcombe threshold, an accused has met his burden of establishing a violation of his Charter right to disclosure: R. v. Dixon, [1998] 1 S.C.R. 244, at paragraph 33.
[39]This Court is not in a position to decide, in the case at bar, whether the Crown failed to comply with its obligation under Stinchcombe. A number of documents have already been disclosed to the appellant pursuant to requests under the AIA and in the context of Federal Court proceedings T‑536‑04 and T‑686‑04. At this stage, this Court has no way of verifying whether there are other relevant documents which should have been disclosed and whether the public interest immunity claims and statutory exemptions previously raised are justified exceptions to Stinchcombe disclosure in the circumstances of this case.
[40]In Purdy, the British Columbia Supreme Court found a breach of section 7. In that case, however, no disclosure at all had been made by the Crown. It was therefore not necessary for the Court to examine the materials withheld.
[41]The matter should be returned to the Federal Court for a determination of the precise documents the appellant is entitled to obtain under section 7 of the Charter. Since the applications Judge concluded that the Charter did not apply in the circumstances of the case, he did not turn his mind to that section of the Charter.
[42]The Federal Court will be unable to decide whether the Crown has complied with its disclosure obligation without having access to all the relevant documents including the unredacted documents at issue. For this reason, the respondents will be ordered to produce before a designated judge of the Federal Court all relevant documents within their possession. Any privilege or public interest immunity claim the Crown wishes to raise will be considered at that time. It will be up to the Federal Court to decide whether the Crown has complied with its disclosure obligation and exactly what documents the appellant may be entitled to.
CONCLUSION
[43]I am satisfied that the Charter applies in the circumstances of this case and that section 7 of the Charter is engaged. It may be that the respondents’ refusal to disclose relevant information goes as far as violating the appellant’s constitutional right to full answer and defence. This issue can only be determined by a review of the redacted and other relevant material and a balancing of the competing interests at stake with a view to reconciling them under the Charter.
[44]Consequently, I would allow this appeal with costs, I would set aside the decision of the applications Judge and I would grant the following order:
An order is issued directing that:
(a) the respondents, the Minister of Justice and Attorney General of Canada, the Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service and the Commissioner of the Royal Canadian Mounted Police, produce before the Federal Court unredacted copies of all documents, records and other materials in their possession which might be relevant to the charges against the appellant and which are therefore necessary for the purpose of allowing him to raise full answer and defence to the charges;
(b) the material produced be reviewed by a judge as defined in section 38 of the Canada Evidence Act; and
(c) the review be conducted pursuant to section 38 of the Canada Evidence Act.
Létourneau J.A.: I agree.
Ryer J.A.: I agree.