A Federal Court judge has drawn a line between citizens such as Omar Khadr and overseas detainees with other connections to Canada in turning down two terror suspects seeking evidence from Canadian intelligence agents.
The judge found only citizens can benefit from the Canadian Charter of Rights and Freedoms when they are jailed overseas, and even then under limited circumstances.
Ahcène Zemiri and Mohamedou Ould Slahi, who have both lived in Montreal, wanted Canadian material to bolster U.S. court cases seeking their release from Guantanamo Bay prison.
Mr. Justice Edmond Blanchard found foreign nationals must be in Canada or facing Canadian legal proceedings to be entitled to full disclosure from Canadian authorities.
"The circumstances must connect the claimant with Canada," Judge Blanchard wrote in a decision released yesterday. "[The charter's]extraterritorial reach is exceptional and limited."
In the case of Mr. Khadr, the Supreme Court of Canada ordered the release of Canadian intelligence, including videotaped interviews from Guantanamo Bay, that supported his claims of abuse.
Mr. Zemiri and Mr. Slahi have ongoing cases in the United States demanding authorities justify their detentions in front of civilian courts. Both men say they were subject to torture since they were imprisoned in Guantanamo Bay in 2002.
Mr. Zemiri, an Algerian who was a permanent resident of Canada and has a Canadian wife and child, was accused of befriending and helping millennium bomber Ahmed Ressam by giving him $1,000 and a camera.
Mr. Zemiri, 41, was questioned by Canadian intelligence and law-enforcement officials several times over 18 months after Mr. Ressam's 1999 arrest. Nicole Moen, Mr. Zemiri's Minneapolis-based lawyer, said she believes Canadian officials have evidence that would help clear Mr. Zemiri.
"They interviewed him many times, they didn't arrest him, they didn't detain him," Ms. Moen said. "Presumably if they were worried or thought he'd done something bad, they would have arrested him."
Ms. Moen said she was not surprised by the ruling, but had hoped the Canadian courts would emphasize principles of fairness over citizenship.
Mr. Zemiri left Canada after seven years and moved to Afghanistan three months before the Sept. 11 attacks. In October, he was captured by Northern Alliance forces and sold for a $5,000 bounty to the United States. He was again questioned by Canadian officials after landing in Guantanamo.
Prior to his capture, Mr. Slahi, 38, a telecommunications engineer raised in Mauritania, surfaced on the periphery of terrorist cells in Montreal and Hamburg. He has been accused of playing a vital, if unwitting, early role in history's most infamous terrorist attack.
In 2004, the U.S. 9/11 commission publicly faulted him for recruiting the German-based fundamentalists who eventually became the pilots in al-Qaeda's hijacking conspiracy. As those hijackers became indoctrinated in the Afghan camps, Mr. Slahi moved to Canada, where authorities targeted him as an associate of Mr. Ressam. Mr. Ressam was caught at the border with a carload of explosives, en route to the Los Angeles airport, in late 1999. Mr. Ressam is serving a 22-year prison sentence.
Complaining that Canadian agents all but chased him out of the country after the Ressam affair, Mr. Slahi returned to his North African homeland, where he was arrested after 9/11. He says he was tortured in Jordan and then Guantanamo.
With a report from Colin Freeze
Les Perreaux