Docket: T-686-04
Ottawa, Ontario, this 28th day of January, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
OMAR AHMED KHADR by his Next Friend FATMAH ELSAMNAH,
FATMAH ELSAMNAH, MAHA ELSAMNAH, MUHAMMED ELSAMNAH and
ABDURHAMAN KHADR
Applicants
and
THE MINISTER OF FOREIGN AFFAIRS
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application brought under Rules 318(4) and 369 for the production of relevant documents in the possession of the Respondent required for the purposes of a judicial review application.
Background
[2] 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.
[3] During his detention, the Applicants 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.
[4] This application has been brought by Omar Khadr's family in order to compel the government to extend consular and diplomatic services to him. It is argued that, in failing to provide these services, the Minister has acted contrary to the Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22 ("DFAITA") and has infringed the rights of Omar Khadr and his family under the Canadian Charter of Rights and Freedoms ("Charter").
[5] In response to a motion to strike the application as revealing no cause of action, this Court ordered, inter alia, on August 18, 2004:
1. Those portions of the Notice of Application which relate to the interview of Omar Khadr and which allege Charter violations as a result of the Minister's failure to provide consular and other services to Omar Khadr are struck.
2. The Notice of Application, as it relates to the Applicants' allegations under section 10 of the Department of Foreign Affairs and International Trade Act, will be continued except for the allegations related to international instruments other than the Vienna Convention on Consular Relations.
[6] The Applicants filed a second Amended Notice of Application on December 22, 2004 which, aside from asking for an order of mandamus, also makes an application for "an order quashing the Minister's decision dated June 3, 2004 and directing their reconsideration".
[7] The Applicants, as part of their application, asked for:
(T)he Respondent to send a certified copy of the following material that is not in the possession of the Applicants but is in the possession of the Respondent to the Applicants and to the Registry: All non-privileged material in the possession of the Respondent touching upon the matters referred to herein.
[8] In response, the Respondent provided the Applicants with all the non-privileged documents that were before the Minister when he made his decision on June 4, 2004:
1. Letter from Edney to the Minister dated December 11, 2003
2. Letter from Edney to the Minister dated January 20, 2004
3. Letter from Edney to the Minister dated February 4, 2004
4. Letter from Whitling to the Minister dated February 9, 2004
5. Letter from the Minister to Edney dated June 3, 2004
6. Letter from the Minister to Whitling dated June 3, 2004
[9] The Applicants have now brought the present motion under Rule 317 and Rule 369 asking that the Respondent furnish:
1. All communications and representations made to the relevant U.S. authorities on behalf of Mr. Khadr, including with regard to his health, consular visits, the conditions of his detention, and the requirements of due legal process;
2. All communications and representations made to the relevant U.S. authorities regarding opposition to the death penalty as an acceptable punishment or as a sentence for any Canadian detainee held at Guantanamo Bay;
3. All communications and representation made to the relevant U.S. authorities regarding the legal protections to be accorded to Mr. Khadr while he is incarcerated, as well as the legal protections that he is entitled to receive when, and if, he goes to trial; and
4. All responses received by the Minister in relation to the above.
[10] During a subsequent case management conference, counsel for the Applicants also took the position that the issue at the core of these proceedings is an ongoing one and that they are, therefore, entitled to all documents before the Minister, up to the present day.
Issues
[11] This application raises two issues:
i) What constitutes the record that was before the Minister?
ii) Are the Applicants entitled to documents before the Minister up to the present day, as the issue at the core of these proceedings is an ongoing issue?
Issue i) What constitutes the record that was before the Minister?
[12] The remedy sought by the Applicants is somewhat ambiguous. On the one hand, the Applicants seek a judicial review of the decision made in the two letters of June 4, 2004, which they characterize as a refusal to provide consular services. On the other, the Applicants seek a mandamus to oblige the Minister to provide consular services. There is no mention that these two remedies are sought in the alternative or sequentially. I will treat this as an application to review the decision made on June 4, 2004, as this motion was brought under Rule 318 which refers back to Rule 317 which refers to "a tribunal whose order is the subject of the application". It would appear likely that these two rules cannot apply to a mandamus application, as such an application is brought where the tribunal fails to make an order. However, I am reluctant to rule on this point without having first received submissions in this regard. Accordingly, I will restrict myself to a review of the application in respect of the decision of June 4, 2004 without prejudice to the Applicants to raise subsequently the issue of the appropriateness of Rule 317 in a mandamus application.
[13] It is well established that materials that were before the decision maker must be produced under Rule 317 (see 1185740 Ontario Ltd v. Canada (Minister of National Revenue) [1999] F.C.J. No 1432 para. 5 and Quebec Ports Terminals v. Canada (Labour Relations Board) 17 Admin. L. R. (2d) 16). A guiding statement regarding the contents of a record under Rule 317 was made by MacGuigan J.A. in Canada (Human Rights Commission) v. Pathak [1995] 2 F.C. 455 at 460:
A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent. (Underlining added)
[14] The issue then narrows to what was "before" the Minister when he wrote these letters. An examination of the June 3, 2003 letter from Minister Graham to Mr. Edney reveals that the Minister did enter into discussions about "consular visits", "conditions of his detention" and "requirements of due legal process". A key excerpt of that letter states:
In the meantime, the Government continues to make representations to the relevant U.S. authorities on behalf of Mr. Khadr, including with regard to his health, consular visits, the conditions of his detention, and the requirements of due legal process. In particular, we have formally registered our opposition to the death penalty as an acceptable punishment or as a sentence for any Canadian detainee held at Guantanamo Bay. (Underlining added)
[15] The June 3, 2004 letter from the Minister to Mr. Whitling refers to discussions with the US regarding "legal protections". An important passage provides:
We have discussed with U.S. officials the legal protections to be accorded to Mr. Khadr while he is incarcerated, as well as the legal protections that he is entitled to receive when, and if, he goes to trial. In regard to the latter, it should be noted that, unlike the case of the Australian citizen, the American government has not yet determined that Mr. Khadr is subject to the jurisdiction of the U.S. military commissions. Further, Mr. Khadr is not currently charged with any crime.
In closing, let me say that the Canadian government will continue to monitor closely the situation at Guantanamo Bay. Our dialogue with U.S. officials about the legal protections to be accorded to Mr. Khadr will also continue. (Underlining added)
[16] The two letters, which the Applicant construes as a refusal to provide consular services, refer to discussions the Minister is having with the US regarding "consular visits", "conditions of detention", "requirements of due legal process" and "legal protections". All these matters can be considered part of consular services. This is amply demonstrated by referring to the booklet issued by the Minister entitled "Guide for Canadians Imprisoned Abroad" in which "Services provided by Consular Officials" are listed on p. 6:
Services Provided by Consular Officials
The range of services provided by Canadian consular officials varies from case to case and from country to country. Services appropriate to your case and situation will be discussed with you and/or those you designate. At your request, officials can:
- notify your family or friends of your situation and let them know whether - and how - they can help;
- help you communicate with your representative, family or friends;
- request immediate and regular access to you;
- seek to ensure equitable treatment under local laws upon your arrest or detention consistent with the standards of the host country;
- obtain information about the status of your case and encourage authorities to process the case without undue delay;
- provide you, your representative or family with information on the local judicial and prison systems, approximate times for court action, typical sentences in relation to the alleged offence and bail provisions (...) (Underlining added)
[17] The letters themselves are evidence that these issues were in the Minister's mind, or to put it another way, these were issues that the Minister considered when he wrote the letters. Documents touching on these issues thus meet the test of Pathak, supra, of being relevant documents that "may (have) affect(ed) the decision".
[18] As this judicial review concerns the Minister's alleged refusal to provide consular services to the Applicants, the following materials are relevant and thus form part of the record that was "before the Minister" and should be produced under Rule 318:
- materials relating to the Applicant's detention,
- materials relating to the requests by his counsel, and
- materials that informed and briefed the Minister and that the Minister considered and relied on to make the observations in the letters of June 4, 2004, relating to "consular visits", "conditions of detention", "requirements of due legal process" and "legal protections".
[19] The Respondent has indicated that privilege issues may be raised if the Minister is ordered to disclose further materials. The Applicants argue that since the Respondent in its initial response did not claim any privilege, any such future claims should be made in one notice containing all grounds for objection to disclosure and the Applicants should be compensated by way of sanctions in the form of costs on a solicitor and client basis. As no such claims of privilege have been made at this point in time, there is no need to decide this issue now. I would, however, note that the original request of the Applicants asked for all non-privileged documents. Therefore, at first glance, I fail to see the logic in the Applicants' contention.
Issue ii) Is the Applicant entitled to documents before the Minister up to the present day, as the issue at the core of these proceedings is an ongoing issue?
[20] The Applicants argue that since the issue at the core of these proceedings is an ongoing one, any materials before the Minister (up to the present time) should be produced. In support, they rely on Mahmood v. Canada [1998] F.C.J. No 1345, Truehope Nutritional Support Ltd v. Canada (A.G.) [2004] F.C.J. No. 806 and Puccini v. Canada [1993] 3 F.C. 557.
[21] While the first two of these cases dealt with a review of a series of continuing acts under circumstances where it was difficult to find a single decision point from which relief was sought, in each of these cases, the continuing acts or decisions under review had been concluded. The Puccini case involved a preliminary motion for an injunction and the judge specifically stated on page 572 that it was not a motion under Rule 1612 (the forerunner of Rule 318). The above cases, therefore, do not support the proposition that materials that arose subsequent to a decision under review have to be produced by the tribunal under Rule 317. Indeed, it would be Kafkaesque to order the production of materials on the grounds that they were relevant to a decision, if the materials did not exist at the time the decision was made.
[22] Accordingly, the following order under Rule 318 will be issued.
ORDER
THIS COURT ORDERS that:
1. The Respondent shall furnish within 20 days, as part of the record before the Minister, all materials:
a) related to the Applicant's detention,
b) related to the requests by his counsel, and
c) that informed and briefed the Minister and that the Minister considered and relied on to make the above quoted observations in the letters of June 4, 2004, relating to "consular visits", "conditions of detention", "requirements of due legal process" and "legal protections".
2. The Applicants shall have their costs in this motion.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-686-04
STYLE OF CAUSE: OMAR AHMED KHADR by his Next Friend FATMAH ELSAMNAH, FATMAH ELSAMNAH, MAHA ELSAMNAH, MUHAMMED ELSAMNAH and ABDURHAMAN KHADR
v.
THE MINISTER OF FOREIGN AFFAIRS
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF VON FINCKENSTEIN J.
DATED: January 28, 2005
WRITTEN REPRESENTATIONS BY:
Mr. Nathan J. Whitling FOR APPLICANTS
Ms. Doreen Mueller FOR RESPONDENT
SOLICITORS OF RECORD:
Parlee McLaws LLP
Edmonton, AB
Edney, Hattersly & Dolphin
Edmonton, AB FOR APPLICANTS
John H. Sims
Deputy Attorney General of Canada FOR RESPONDENT