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.