A-79-09
Docket: A-78-09
BETWEEN:
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
Docket: A-79-09
BETWEEN:
AHCENE ZEMIRI
Appellant
and
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
Heard at Ottawa, Ontario, on September 9, 2009.
Judgment delivered from the Bench at Ottawa, Ontario, on September 9, 2009.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20090909
Docket: A-78-09
Citation: 2009 FCA 259
CORAM: SEXTON J.A.
EVANS J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
MOHAMEDOU OULD SLAHI
Appellant
and
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
Docket: A-79-09
BETWEEN:
AHCENE ZEMIRI
Appellant
and
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
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on September 9, 2009)
[1] This is an appeal from a decision of the Federal Court in which Justice Blanchard (“Applications Judge”) dismissed an application for judicial review by the appellants. Relying on Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 (“Khadr”), the appellants requested disclosure of the records of interviews with them by Canadian officials in the U.S. facility at Guantànamo Bay and of any material handed over to U.S. authorities as a result of those interviews.
[2] The appellants base their claim on section 7 of the Canadian Charter of Rights and Freedoms. However, the Applications Judge held that section 7 does not apply to the appellants because the conduct of Canadian officials of which they complain occurred outside Canada and they are not Canadian citizens. The fact that the appellants had resided in Canada at one time, he said, was an insufficient nexus to Canada to bring them within the protection of section 7.
[3] The Federal Court’s decision in these consolidated applications is reported as Slahi v. Canada (Minister of Justice), 2009 FC 160.
[4] The only issue to be decided in these consolidated appeals is whether the Applications Judge erred in concluding that section 7 was inapplicable to the appellants while detained by the U.S. authorities at Guantànamo Bay because they are not Canadian citizens. Substantially for the reasons given by the Applications Judge, we are of the view that his conclusion was correct. Khadr is distinguishable on the ground that Mr Khadr is a Canadian citizen, whereas the appellants are not. Further, there are no proceedings pending in Canada against the appellants which might provide a nexus to Canada.
[5] We would only add this. The fact that the rights contained in some sections of the Charter are limited to Canadian citizens, while others, including section 7, are not, is not of much significance in a case where it is argued that the Charter applies extraterritorially. The Charter normally applies to governmental action within Canada and was drafted with that in mind.
[6] Counsel for the appellants advances two arguments. First, he says that the two-step inquiry for determining whether the Charter applies to an investigation conducted by Canadian officials outside Canada does not include the citizenship of the individual concerned: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 113. By adding a requirement that the individual must have a nexus to Canada, counsel argues, the Applications Judge erred by modifying the test prescribed by the Supreme Court for applying the Charter extraterritorially.
[7] We do not agree. Since Mr Hape was a Canadian citizen, it was obvious that he had a nexus with Canada and it was unnecessary for the Court to address the question. Consequently, by requiring a nexus in a case where the individual was not a Canadian citizen, the Applications Judge cannot be said to have reached a decision that is inconsistent with Hape. He correctly distinguished Khadr on the basis that Mr Khadr is a Canadian citizen, whereas the appellants are not.
[8] Second, counsel argues that Canada’s obligations in international law inform the interpretation of the Charter. He submits that the Applications Judge’s interpretation of section 7 as not protecting the appellants in this case should not be accepted because it is inconsistent with Canada’s obligations under the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47. In particular, he notes that Article 2(1) of the Covenant provides that each State Party undertakes to respect and ensure Covenant rights to all individuals within its territory and subject to its jurisdiction, without distinction based on national origin.
[9] We are not persuaded by this argument. Apart from the fact that section 7 was found not to apply to the appellants on the facts of this case by virtue of their nationality, not their national origin, while the appellants were detained at Guantànamo Bay they were subject to the jurisdiction of the U.S., not Canada. The fact that they were interviewed by Canadian officials at Guantànamo Bay did not make them subject to Canada’s jurisdiction within the meaning of Article 2(1) of the Covenant.
[10] The statements from international law opinions on which counsel relies as indicating that the phrase “subject to its jurisdiction” should be given a meaning broad enough to apply to the facts of the present case were made in very different contexts. For example, the Advisory Opinion of the International Court of Justice in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (ICJ Reports 2004, 180) concerned activities by the Government of Israel outside its territory, but within territory that it occupied. And, in Lopez Borgos v. Uruguay (U.N. Doc. CCPR/C/13D/1979 (1981)), the United Nations’ Human Rights Committee was dealing with a complaint by a Uruguayan national against Uruguay.
[11] For these reasons, the appeals will be dismissed with one set of costs and a copy of the reasons will be inserted in both files.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-78-09 / A-79-09
STYLE OF CAUSE: MOHAMEDOU OULD SLAHI / AHCENE ZEMIRI
and
THE MINISTER OF JUSTICE and THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF FOREIGN AFFAIRS, THE DIRETOR OF THE CANADIAN SECURITY INTELLIGENCE SERVICE, and THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 9, 2009
REASONS FOR JUDGMENT OF THE COURT BY: Evans J.A.
APPEARANCES:
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FOR THE APPELLANT
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FOR THE RESPONDENTS
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SOLICITORS OF RECORD:
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Edmonton, Alberta |
FOR THE APPELLANT
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Deputy Attorney General of Canada |
FOR THE RESPONDENTS
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