Supremes Order Delivery of Khadr-Log

By Christopher Bird

The Supreme Court today announced, in a 9–0 decision, that the federal government of Canada is obligated to disclose to Omar Khadr and his attorneys all relevant documents and information obtained through Canadian interviews of Khadr conducted in 2003. (A federal judge will determine which of these documents are relevant to Mr. Khadr’s case.) The federal government previously withheld this information on security grounds.
Khadr is the youngest detainee in Guantanamo Bay and the only Canadian (and Torontonian) held there. He currently faces charges from the American government for allegedly killing a soldier with a thrown grenade—however, much of the evidence, his lawyer asserts, has been doctored.
The government argued in the case that the protections granted by the Charter of Rights and Freedoms did not apply to Khadr, as previous Supreme Court decisions found that the Charter does not apply to Canadian agents acting outside the country. When settting down that rule, however, the Court made sure to emphasize that it did not apply where Canada’s international human rights obligations were violated. As Guantanamo Bay was found in 2006 to be violating habeas corpus rights in Hamdan v. Rumsfeld, the Court’s decision was fairly straightforward and easy to follow.
The decision, while certainly a rebuke of Canada’s security policies, is not terribly harsh: it continues the Canadian tradition of general judicial deference to federal powers by recognizing that national security concerns may still be an issue in allowing release of such documents, and the federal judge tasked with deciding which documents fall within the disclosure privilege will also be considering their potential security consequences. (Khadr’s lawyers have expressed worry that the documents they particularly require for the trial will not be made available to them based on these grounds.) However, it is probably the strongest decision yet made by the Supreme Court coming down against Canada’s violation of Charter rights in international settings.
The full text of the decision can be found here.