Omar Khadr’s case has certainly reached mythical proportions. His circumstances have garnered more international attention and press coverage than perhaps those of any other detainee held by the United States in its war against terror. Khadr is the only Canadian –  and the only Western citizen – still detained at Guantanamo Bay. While countries including the UK, France, Germany and Sweden have successfully negotiated the release and transfer of their citizens, Khadr continues to be detained at Guantanamo after five years and is facing ongoing prosecution by the U.S. for alleged acts of violence committed as a child against U.S.-led forces in Afghanistan in 2002. The Canadian government has refused to demand that Khadr be repatriated to Canada.

Khadr was only 15 years old at the time he is alleged to have committed acts of murder, attempted murder, conspiracy, providing material support for terrorism, and spying. As a matter of international law, Khadr was a child soldier. It is a principle of customary international law that children are to be accorded special protections in all criminal proceedings, and in any prosecution for participation in warlike acts. Nevertheless, throughout Khadr’s detention, the U.S. has continuously violated international standards for juvenile detention, and the Military Commissions Act lacks juvenile justice safeguards. Moreover, looming overhead are the larger rule of law and basic human rights violation issues facing Guantanamo Bay detainees in general, including arbitrary detention, denial of procedural due process, and denial of the right to trial within a reasonable period of time before a fair and impartial tribunal.

Khadr’s alleged acts have triggered a web of legal proceedings in Canada’s federal courts, the U.S. civilian courts, and the military commissions process. This article focuses on the proceedings in Canadian courts and reviews the recent decision of the Supreme Court of Canada.  

The Canadian trials

The Federal Court and the Federal Court of Appeal have issued a total of eight decisions in Khadr’s case since 2004. The issue at the root of litigation was whether or not Canada offered adequate consular assistance to Khadr and whether the Canadian Charter of Rights and Freedoms applied to his circumstances.

Back in 2004, Khadr’s lawyers sought to compel the Canadian government to extend consular and diplomatic services to Khadr. When arrested and imprisoned abroad, Canadians can generally expect to have welfare visits from consular officials and to have officials facilitate communications with friends, family and lawyers, as well as a host of other methods of assistance. Khadr’s lawyers argued that by failing to provide these services, the government had acted contrary to the Charter, the Department of Foreign Affairs and international Trade Act and the ministerial policy regarding Canadians imprisoned abroad.

It was accepted as evidence in Khadr v. Canada, 2005 F.C. 1076 that Khadr was visited several times by officials from the Department of Foreign Affairs and Canadian Security Intelligence Service (CSIS) in 2003. The Federal Court of Appeal determined that instead of being consular in nature, these interrogations focused exclusively on intelligence-gathering and national security issues. Moreover, Canadian officials interrogated him without counsel and then turned over the fruits of these interrogations to the U.S. authorities without seeking any assurance that they would not be used in future prosecution against him. This means that Canadian officials “assisted” the U.S. in conducting the investigation against Khadr and may very well have contributed to the U.S.’s decision to charge Khadr. It is noteworthy that Khadr was initially detained for two years without being charged. He was eventually formally charged on November 4, 2005.

Last May (and prior to the Supreme Court’s decision in R. v. Hape [2007] S.C.J. No. 26 on the extraterritorial application of the Charter), the Federal Court of Appeal in Khadr v. Minister of Justice et al., 2007 F.C.A. 182 ruled on the issue of whether the Canadian government had an obligation to disclose all documents, records and other materials in its possession that might be relevant to charges laid against Khadr by the U.S. government. In a unanimous opinion, the Federal Court of Appeal wrote that:

• the Charter applied to Khadr ’s circumstances: the Canadian government’s active role in interviewing Khadr and transmitting the information collected to U.S. authorities assisted them in preparing a case against him, which may have made it more likely that charges were laid against him, thereby increasing the likelihood that he would be deprived of his right to life, liberty and security of the person;

• the extraterritorial application of the Charter did not interfere with the sovereign authority of the United States and should not impede the provision of consular services by Canadians, since disclosure does no more than enable Khadr to offer the evidence obtained to the foreign court; and,

• Section 7 of the Charter was engaged, as Khadr had made a prima facie case of showing a substantial risk of not being able to present full answer and defence to the charges he faced in the U.S. if denied access to relevant information in the Crown’s possession.

Khadr’s lawyers had argued that while they had obtained volumes of documents from the government, much had been redacted or withheld on the basis of privilege and public interest. Justice Desjardins ordered the government to produce non-redacted copies of all documents in their possession which might be relevant to the U.S. charges against Khadr. This material was to be reviewed by a Federal Court judge in accordance with s. 38 of the Canada Evidence Act, which allows for disclosure to be limited where it would be injurious to “international relations, national defence, or national security.”

The government appealed this decision and the Supreme Court of Canada heard the appeal on March 26, 2008. This case presented the first opportunity for the Supreme Court to pronounce on the legality of Guantanamo Bay and the obligations of the Canadian government to protect Canadians abroad, under both international law and the Charter, in spite of spectre of the war on terror.

Charter applies to Khadr’s interrogation at Guantanamo Bay

The decision of the Supreme Court was released May 23, 2008. The government had argued that in the absence of Canadian proceedings, Khadr does not have a right to the production of documents. The government also took the position that s. 7 of the Charter was not engaged in the circumstances of this case, because in providing summaries of CSIS interviews to the American authorities, Canadian actors could not play any role in the potential deprivation of liberty that Khadr faced in the U.S., should he be convicted.

A number of organizations were granted leave to intervene in this case, including the British Columbia Civil Liberties Association, the Criminal Lawyers' Association (Ontario) and the University of Toronto, Faculty of Law - International Human Rights Clinic (IHRC) and Human Rights Watch (HRW). 

The IHRC and HRW argued that Canadian officials violated Khadr’s international human rights, and consequently his Charter rights, by interrogating him while he was detained. In addition, the interveners argued that the Canadian officials participated in violating Khadr’s human rights by unconditionally sharing the fruits of their interrogation with U.S. authorities, in circumstances where his prosecution before the military commissions was reasonably foreseeable. By doing so, Canadian officials violated Khadr’s liberty and security of the person in a manner that does not accord with the principles of fundamental justice under s. 7 of the Charter.

In dismissing the government’s appeal, the court unanimously held that Canada was bound by the principles of fundamental justice pursuant to s. 7 of the Charter. The court anchored the disclosure discussion in a fundamental justice analysis. Where an individual’s s. 7 right to liberty is engaged by Canada’s participation in a foreign process that is contrary to our international human rights obligations, the Charter imposes a duty of disclosure on the government.

Further, the 9-0 ruling held that principles of international law and comity, which might otherwise preclude the application of the Charter to Canadian officials acting abroad, do not apply in this case to the assistance provided by Canadian officials to U.S. authorities at Guantanamo Bay. The Hape case reiterated international law principles against extraterritorial enforcement of domestic laws and the principle of comity, which ordinarily justifies deference to foreign law. But the court held that comity has no application in circumstances of this case, where participation in the Guantanamo Bay “process” was contrary to Canada obligations under international law. The court declared that Canadian officials acted illegally when they interrogated Khadr at Guantanamo Bay on the basis of two U.S. Supreme Court decisions, Rasul v. Bush, 542 U.S. 466 (2004) and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). These cases had held that the Guantanamo Bay “process” violates international law.

Because of the illegality of Guantanamo, the court was able to apply the exception as stated in Hape: comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations. The judgment repeats the view that “the deference required by the principle of comity ends where clear violations of international law and fundamental human rights begin (at para. 18, quoting Hape). ”

The court consequently ordered the federal government to hand over all records in any form of Khadr’s interviews conducted by Canadian officials in 2003 at Guantanamo, and any records of the information given to U.S. authorities as a direct consequence of Canada’s having interviewed him. The court rejected demands for other materials in the government’s possession dealing with other parts of the case. This is a variation on the “all-relevant-documents” (R. v. Stinchcombe [1991], 3 S.C.R. 326) disclosure order given by the Federal Court of Appeal. Also, before any documents are disclosed to Khadr and his counsel, a designated judge of the Federal Court will still review the material to ensure it does not threaten national security.

The Supreme Court’s decision is to date Canada’s strongest pronouncement condemning Guantanamo and our government’s treatment of Khadr. What remains to be seen is the extent to which the Supreme Court decision will impact Khadr’s proceedings in the U.S. and influence the Canadian government to abide by its international law commitments and bring an end to Khadr’s illegal detention and the serious violation of his fundamental constitutional rights.

The Supreme Court of Canada recently had occasion to tackle the extraterritorial application of the Charter and the domestic judicial interpretation and application of international law in R. v. Hape, 2007 SCC 26. Shortly thereafter, Hape came to figure prominently in the application for judicial review concerning the Canadian Armed Forces’ treatment of Afghani detainees.

In an age of exponential growth in international law, a state’s judiciary cannot afford the luxury of oblivion to its domestic implications. Whether we like it or not, more than ever before, international law has become part of domestic regulation and governance, and if only by distinction.

Hape glaringly illustrates this prise de conscience. It also demonstrates that in matters of security, incorporating international legal considerations within our domestic law is a complex fiat. Although the full court reached the same final decision and rejected the appeal, it was divided into three groups, reasoning along three different lines. Moreover, the two concurring judgments strongly challenged the reasons of the majority.

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This article focuses on the status of women lawyers in the practice of international law. Specifically, it addresses the participation of women lawyers in international dispute resolution (IDR) processes as neutrals, adjudicators, and judges, as distinguished from their role in private practice and in the public service in the capacity of counsel in IDR proceedings.

A cursory compilation of statistics reflects the dearth of women on the lists of members or rosters of international tribunals and IDR service providers. The October 2007 German appointment of two women to the ICSID arbitration panel is a welcome step in remedying this deficit. It suffices here to say that the proliferation of international tribunals and the diversification of international law, which have been exponential and without precedent, warrant representation of women’s voices.

The first part of this paper addresses the stages that women (and men alike) have to pass in the course of building a successful and fulfilling career in IDR. It then discusses the relevance of women’s voices to IDR, follows with women lawyer initiatives to remedy what from their perspective represents an inadequate situation, and concludes with a proposal for future action.

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Since our last report was issued on April 4, 2007, the International Trade and Investment Committee has been meeting and active on various fronts. During this time, our membership increased to 48, and we have been involved in a number of activities and initiatives, the most prominent of which are briefly summarized below:

1. On April 10, 2007, in conjunction with the OBA International Law Section executive, the committee held an event at McCarthy Tétrault’s offices in Ottawa on the negotiation of a bilateral investment treaty between Canada and China. Gilles Gauthier, Director of the Investment Trade Policy Division of Foreign Affairs and International Trade Canada, who was leading those negotiations, discussed ongoing Canada-China investment protection treaty issues and briefed us on the state of other BIT negotiations.

2. Over the past year, a subcommittee comprised of committee members and representatives of DFAIT/JLT has been considering and discussing means of increasing interaction and consultation between the private trade bar and DFAIT/JLT. During the summer of 2007, Kim Alexander-Cook, Noemi Gal-Or and John Boscariol provided DFAIT/JLT with a proposal for an initial full-day meeting/seminar between the committee and DFAIT/JLT. DFAIT/JLT has advised that they require several months to review the proposals and consider further alternatives. In the meantime, the committee intends to pursue more informal opportunities to discuss current trade and investment issues and concerns through smaller programs, brown-bag lunches, etc.

3. On November 21, 2007, committee representatives, along with other members of the International Law Section Executive and representatives from the CBA Sales and Commodity Tax Law Section, met with Meg Kinnear and other members of her JLT team from the Department of Justice, as well as CBSA officials, to raise and discuss a number of issues of concern and potential co-operation between the private trade bar and JLT and CBSA. Topics addressed included procedures for challenging seizures and ascertained forfeitures, Special Import Measures Act issues, NAFTA Chapter 11 cases, ICSID ratification, bilateral investment treaty and free trade agreement negotiations, WTO cases, the Softwood Lumber Agreement arbitrations, and retainers of outside counsel by JLT/DFAIT for SLA arbitrations and WTO cases.

4. Committee members supported, promoted and participated in a November 26, 2007, dinner program at the OBA on the Supreme Court of Canada’s decision in R. v. Hape, in which the court revised its jurisprudence on the application of the Charter outside the country and clarified and confirmed the application and status of international customary law within Canadian domestic law. Committee member H. Scott Fairley was an organizer and speaker at the event.

5. On December 3, 2007, Dr. Gabrielle Marceau, Counsellor, Office of the Director General, made a presentation to the committee on developments at the World Trade Organization and status of Doha Round negotiations. The event was hosted by Bernard Colas at Gottlieb & Pearson in Montreal, and was attended by many committee members both in person and via teleconference. Dr. Marceau has offered to return to our committee in the coming months with further reports on progress of WTO negotiations.

6. The International Trade Digest Sub-Committee had a conference call in mid-January 2008 and welcomed Martha Harrison of Heenan Blaikie, who has replaced Rajeev Sharma on the sub-committee. The other members are Tom Abols and Orlando Silva.

7. On January 10, 2008, David Plunkett, Director General of DFAIT, Bilateral and Regional Trade Policy Division, spoke to the committee on bilateral and regional free trade negotiations and agreements, including those with the European Free Trade Association, Peru, Colombia, the Caribbean Common Market, and the Dominican Republic, as well as an update on on-going negotiations with Korea, Singapore and others. The event was hosted by Paul Lalonde at Heenan Blaikie in Ottawa, and was well attended by committee members both in person and via teleconference.

8. On January 22, 2008, at an event hosted by Cliff Sosnow at Blake Cassels & Graydon’s offices in Ottawa and organized by Noemi Gal-Or, Alejandro Trujillo, the Deputy Trade Representative at the NAFTA office of the Mexican embassy spoke to the committee on various trade issues arising between Canada and Mexico, including the NAFTA dispute settlement mechanisms. This event was also well attended by committee members both in person and via teleconference.

9. Over the last year, members of the committee have been closely monitoring developments concerning ratification of Canada’s membership in ICSID (International Centre for the Settlement of Investment Disputes) Convention — Bill C-53. This has included making written submissions to parliamentarians and working with officials from DFAIT/JLT in encouraging quick passage of the implementing legislation. The committee continues to monitor these developments — the bill is currently in the Senate, although it is expected to be passed shortly.

10. The committee is currently participating in the planning of the ILS's proposed full-day CLE program for later this year — “an exploration and examination of customary international law and soft law norms, their role in international dispute resolution and legal development, and their incorporation into and interaction with Canada’s domestic legal system.” We are presently considering topics and speakers for break-out sessions that will be of particular relevance to the International Trade and Investment Committee.

11. The committee continues to consider and plan additional events for the coming months, including an update on bilateral investment treaty negotiations, an update on the WTO Doha Round negotiations, a program on how to start a WTO case for your client, and an event with the leader of the Warwick Commission, which has recently released a report and recommendations for the future of the WTO.

The Rights of Persons and Communities Committee is continuing to work on building links with federal departments which have the responsibility for international human rights and labour issues. We are looking at arranging further teleconferences with federal officials such as the one held in December 2007 with Assistant Deputy Minister of Labour, Scott Streiner. This will allow for more informal access of committee members to federal representatives with responsibilities in this area.

As well, the committee is working on preparing a panel for the Section’s Fall CLE, which is being held in Toronto on October 23, 2008. The panel will explore the use of customary international law and “soft law” norms in the area of labour and human rights, their role in international dispute resolution, and their incorporation into and interaction with Canada’s domestic legal system.

The committee continues to seek new members to become involved in the committee’s ongoing activities. Anyone interested is invited to contact Mary Cornish at mcornish@cavalluzzo.com or Monique Pongracic-Speier at monique@shroeder.bc.ca.

Please also contact us if you have suggestions for committee activities or topics you wish addressed in teleconferences.

The Dispute Resolution Committee is open to the participation of CBA members with an interest in the law and practice relating to civil and commercial disputes which have an international dimension, whether these disputes are to be decided by arbitration, mediation or the courts.

Our areas of focus include international commercial arbitration and private international law (including questions of jurisdiction, choice of law and recognition of foreign judgments). The committee is actively seeking members to form a steering group dedicated to the planning of activities in this area.

Please contact Christopher Richter in Montreal at (514) 982-4558 or by e-mail at crichter@woods.qc.ca

The International Business and Regulation Committee focuses on non-trade-related international regulations and legal developments, including issues pertaining to international business transactions, commercial contracts, tenders, financing, security, intellectual property, energy and natural resources, taxation, conflict of laws and standards.

Committee members work together to form a platform and forum for discussion of new developments, to provide input into and lobby for changes to international treaties proposed or being negotiated by governments in Canada, and to assist one another with difficult or unusual legal issues which may emerge.

If you are interested in joining this committee, please contact Charlotte Janssen at cmj@janssen-law.com.

The year 2008 promises to be an exciting and fruitful year for the National Section on International Law.

I’m pleased to announce that the Section will hold a one-day CLE on October 23, 2008 in Toronto. The program will explore and examine customary international law and soft law norms, their role in international dispute resolution and legal development, and their incorporation into and interaction with Canada’s domestic legal system. Should you wish to contribute to the development of the programme, please contact conference organizers Monique Pongracic-Speier (Monique@schroeder.bc.ca) or Paul Lalonde (plalonde@heenan.ca).

The Section’s four committees also continue to be active in sponsoring CLE programs in their respective areas of interest. We encourage members to join one or more of the committees to benefit from the programs offered and to contribute to committee work such as commenting on proposed legislation and liaising with government officials. This edition of the newsletter features a description of the committees and their activities, as well as contact information for the committee chairs.

I hope you enjoy this edition of the newsletter and would encourage you to comment on or contribute to subsequent editions by contacting our newsletter editor, Wendy Wagner (wendy.wagner@gowlings.com). My thanks to all who have submitted content, and to all members of the section who have been and are active in advancing our many initiatives.

The Internaional Law Section is now seeking nominations for a Secretary and up to ten Executive Members for the term September 1, 2008 to Augus 31, 2009. For further details, see the full call for nominations.

“Crisis litigation: The role of the lawyer”
Toronto, June 19-20, 2008

The conference will focus on the roles of external and internal counsel in international corporate crises. For more information, please visit the IBA website, http://www.ibanet.org.

The Section's next CLE, The Hard Edge of Soft Law: The Real Impact of Customary International Law in Canada will be held on Thursday, October 23, 2008 in Toronto.

Join us to hear our key note speaker, Judge Philippe Kirsch, President of the International Criminal Court, as well as a variety of other speakers on topics of interest to practitioners in the areas of trade and investment, international dispute resolution, international business law and human rights and labour law.

More programme details to follow.