For Whom These Rights Toll

Our neighbours to the south have been struggling mightily for quite a few years now with the issue of what protections, if any, detained members of the Taleban and Al-Qaeda should be afforded, both under international and US law. And in many ways they seem no closer to answers today than they were in 2002.

Don't believe me? Just witness the current crop of hopeful would-be presidential nominees:

[Republican John] McCain does not believe the detainees are entitled to the "full constitutional protections that are afforded to US citizens," he said.

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Obama [Democrat] now says that, as president, he would stop the military commissions and try the remaining Guantanamo Bay detainees in military courts-martial or in federal courts, which have successfully tried some terrorist cases.

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Now Clinton [Democrat] says, if she becomes president, she would ask the Justice Department to evaluate the cases of the detainees and decide whether they should be tried in federal courts or courts-martial.

So what about Canada? Have we done any better of a job in figuring it all out?

Ask Canadian-born Khadr. He was only 15 years old when he was captured by U.S. forces in Afghanistan in a firefight in 2002 and he’s spent over five years in detention at the American naval base in Guantanamo, Cuba. After already having made headlines and been the subject of much political and legal debate, he is expected to go on trial this summer before a special military tribunal, charged with murder, conspiracy and other terror-related offences.

In 2003, Khadr was questioned at Guantanamo by officials from Foreign Affairs and CSIS (the Canadian Security Intelligence Service), both of whom shared the results of their interrogations with U.S. authorities. The most recent issue surrounding Khadr has been whether the Canadian Charter of Rights and Freedoms (which among other things, guarantees full disclosure of Crown evidence to defendants in Canadian criminal cases) could be stretched to cover his situation.

Although the federal government contended that it couldn't, taking the position that the right to receive pre-trial disclosure is a right protected by the Charter only for persons accused of crimes in Canada and is not engaged in a foreign-prosecution, it would appear that the Supreme Court of Canada begs to differ.

In a 9-0 ruling that has broad implications for cases involving Canadians abroad, the court said Mr. Khadr is entitled to any records of the interrogations, as well as any information that Canadian authorities gave to their U.S. counterparts as a direct consequence.

The court reasoned that Mr. Khadr would have been entitled to the material were his trial set to take place in Canada - and he should have no less because he is in foreign hands.

The court firmly hitched its ruling to a recent U.S. Supreme Court decision that found that detainees at the Guantanamo Bay prison have suffered serious violations of legal and human rights.

"The effect of the United States Supreme Court's holdings is that the conditions nder which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law at the time that Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities," the court said.

Although Khadr's defence counsel were less than enthused by the practical effect of the ruling for their client (it still won't give Khadr the one report he most needs - a military report detailing the 2002 Afghan gun battle during which Khadr is alleged to have thrown a grenade that killed a U.S. soldier, which, although a copy was given to Canada, the Americans claim to have lost their only copy of, making the Canadian copy the only one whose location is known), they were quick to note the "symbolic significance" of the ruling. That, apparently, being a sign that Canada has "washed its hands of complicity in an abusive U.S. military process".

The SCC judges were careful in their portrayal of Guantanamo as illegal, relying on U.S. Supreme Court decisions from 2004 and 2006 that found various aspects of the system to be in violation of the law. It was under this system that CSIS agents interrogated Khadr in Guantanamo in 2003, and the documents pertaining to those interrogations were the subject of yesterday's ruling. And although the American laws dealing with the military commissions system have since been revamped, there are those who consider the process today to be essentially no different than the one that has now been deemed illegal.

Okay. Whatever.

Among the cheerleading crowd are those who feel that the judgment nudges the federal government toward demanding that Khadr either be tried in the domestic U.S. court system or sent back to Canada. My only comment on that being, whether or not one considers it to be the proper thing for us to do, the idea of Canada "demanding" anything from the US concerning Khadr or any other prisoner in in Guantanamo appears rather laughable to me.

And then are those who believe (and this is much more interesting to me, from a legal standpoint) that the ruling has great significance for future cases involving foreign jurisdictions.

Joe Arvay, a lawyer for the B.C. Civil Liberties Association, applauded the court for extending the Charter to "the conduct of Canadian officials acting outside of Canada when they participate in the processes of a foreign government that is in violation of international law.

"This is an extremely important and welcome decision, as it had been argued by the federal government that the Charter did not apply outside of Canada's territorial borders in such circumstances," Mr. Arvay said.

Personally, however, I'm not quite sure the decision actually goes that far. From the headnote to the SCC decision:

[Khadr] is entitled to disclosure from the appellants of the records of the interviews, and of information given to U.S. authorities as a direct consequence of conducting the interviews. The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law and which might otherwise preclude application of the Charter to Canadian officials acting abroad, do not extend to participation in processes that violate Canada’s binding international human rights obligations. The process in place at Guantanamo Bay at the time Canadian officials interviewed K and passed on the fruits of the interviews to U.S. officials has been found by the U.S. Supreme Court, with the benefit of a full factual record, to violate U.S. domestic law and international human rights obligations to which Canada subscribes. The comity concerns that would normally justify deference to foreign law do not apply in this case. Consequently, the Charter applies.

With [Khadr’s] present and future liberty at stake, Canada is bound by the principles of fundamental justice and is under a duty of disclosure pursuant to s. 7 of the Charter. The content of this duty is defined by the nature of Canada’s participation in the process that violated its international human rights obligations.

And from the text of the decision itself:

If the Guantanamo Bay process under which Mr. Khadr was being held was in conformity with Canada’s international obligations, the Charter has no application and Mr. Khadr’s application for disclosure cannot succeed: Hape. However, if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that participation.
[Emphasis added]

All of which, to my reading, severely limits the scope of the decision. The Court clearly approved previous law to the effect that Canadian officials are not bound by Charter constraints but rather can accept foreign laws and procedures when operating abroad. The only exception to this is where "clear violations of international law and fundamental human rights" have occurred as Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations will not be allowed.

And given that the the US Supreme Court had already found that the detainees at Guantanamo Bay had illegally been denied access to habeas corpus and that the procedures under which they were to be prosecuted violated the Geneva Convention, it could be argued that the SCC had an 'easy out'. After all, the Court was able to rely on the fact that those American findings were "based on principles consistent with the Charter and Canada’s international law obligations" and were sufficient to establish violations of these international law obligations, to which Canada subscribes.

So ... far-reaching repercussions, broad implications for cases involving Canadians abroad and important precedent?? Maybe not so much.

Realizing that I may have put many of you to sleep, for anyone suitably legally attuned, the SCC decision, itself, can be found here.