COURT FILE NO.: CV-17-576756
MOTION HEARD: 20191108
Morris et al. v. Khadr
Court File No.: CV-17-576756
Motion Heard: November 8/19
In attendance: J.S. Schacter, for the plaintiffs
N.J. Whitling, for the defendant
Endorsement
[1] The plaintiffs brought an undertakings and refusals motion that resolved, in part, before the November 8th return date. I have been asked to rule on a number of questions, discussed below, which Mr. Khadr declined to answer when examined for discovery in this proceeding.[^1]
Motion Backdrop:
[2] In 2010, after the 2008 decision of the Supreme Court of Canada in Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, Mr. Khadr entered into a plea agreement and executed a Stipulation of Fact in which he stipulated, inter alia, that: on July 27/02, he threw a grenade that killed American soldier, SFC Speer, and that he helped to construct and plant improvised explosive devices.
[3] At his examination for discovery herein, Mr. Khadr conceded his participation in the construction and planting of improvised explosive devices and bombs. He also conceded having freely participated in the making of a documentary film entitled Guantanamo’s Child. Among the statements made by him in the film were these: he “wasn’t thinking much of the morality of what [he] was doing”; he was told that the actions of the Islamic militants with whom he was staying “was for a cause and they [were] fighting invaders”; and he “threw [a] grenade thinking it might scare away the Americans [whom the militants said were invaders]”.
[3] This action, converted from an application, was brought to enforce a Utah default judgment obtained against Mr. Khadr, for damages sustained by the families of SFC Morris, injured during the July 27/02 firefight (referenced above), and SFC Speer, killed during the July 27/02 firefight.
[^1]: I note that Belobaba, J. permitted the hearing of this motion by a Master.
[4] Before default judgment was obtained, Mr. Khadr was served with the (Utah) Complaint and counsel for the plaintiffs communicated with a number of lawyers, (ostensibly) on behalf of Mr. Khadr, about the Complaint. Mr. Khadr failed to respond to the Complaint; and, default judgment was obtained against him.
[5] Mr. Khadr now pleads, in this action, that he refutes the reliability of the Stipulation of Fact (that formed part of the Complaint) and says that his confession, as reflected in the Stipulation of Fact (and as commented upon by him in Guantanamo’s Child), was coerced and must not be considered. “[T]he great majority of the factual statements contained in the Stipulation were and are false [emphasis added]”, he alleges at para. 22 of his statement of defence.
[6] He says, too, that his failure to respond to the Utah proceeding was as a result of his having been denied natural justice. He pleads, in this action, that he was not permitted to enter into the United States to defend the Complaint (a prohibition is referenced at para. 35 of his statement of defence), to respond to the claims against him, and that he was “totally impecunious” (para. 35 of his statement of defence). “The rules of natural justice at least required [that he] be accorded an opportunity to appear before the Court determining the Utah action, both personally and through legal counsel. Since [he] was legally prohibited from doing so, [he] was not accorded natural justice in the Utah proceedings”, he pleads (para. 36 of his statement of defence).
The Motion:
[7] Refusals 4-9 (as enumerated in the Refusals and Undertakings Chart) all deal with Mr. Khadr’s plea of denial of natural justice. All are ordered answered. Save for Refusal 4, on which comment is made below, none of these questions requires of the defendant that he provide details of any potentially privileged advice that he may have sought or obtained.
[8] There is evidence before me that Utah counsel communicated with and shared details of the Complaint with Messrs. Edney, Fericks and Morse: all lawyers. Indeed, there is evidence that one lawyer, Mr. Morse, indicated that he might be retained to defend the Complaint.
[9] To inquire as to whether the defendant spoke with lawyers, Messrs. Edney and Whitling, or consulted with or retained counsel to set aside the default judgment, is simply to ask that he
confirm what Utah counsel has already indicated was the case and to confirm issues of timing already addressed in evidence by Mr. Khadr (re: Mr. Edney: see QQ. 1834-1841 and Q. 1848; Mr. Fericks: Q. 1855). It is also to address Mr. Khadr’s own evidence that he didn’t have access to information to guide him in next steps (QQ. 1876-1878).
[10] Refusal 8, ordered answered, is a little different. In stating that he was “totally impecunious”, Mr. Khadr brings into question his financial capacity/capability at the relevant time—his personal financial health as well as his ability to raise funds/to access funds. There were at least three identified lawyers corresponding with the plaintiffs’ Utah lawyer, on Mr. Khadr’s behalf (see: paras. 23 and 24 of the August 22/19 affidavit of Donald J. Winder). The defendants are entitled to know, not how much (if anything) the lawyers were paid, but whether the defendant had, and exercised, the financial capability of paying them. They are entitled to test his plea of total impecuniosity which, here, he has used as a shield.
[11] In respect of Refusal 4, my comments are as follows. The defendant has pled that he was “legally” prohibited from appearing before the Utah court--either personally or through legal counsel; and, that he was not accorded an opportunity to appear before the court.
[12] At Q. 1864/p. 347, Mr. Khadr was asked whether he had a discussion with anyone as to his ability to participate in the Utah proceeding by way of telephone or videoconference. He said that he “didn’t know one way or the other”. The question seeks to explore how he came to the view that he was being denied an opportunity to participate in the legal proceedings (personally and through legal counsel) at a time that, he admits, he “had lawyers in Canada and in the United States working for [him]” (Q. 1884). And if he “didn’t know one way or the other” whether he could participate other than by way of an in-person appearance, as he says, what steps did he take to determine whether he could/couldn’t?
[13] Refusal 4 (and, to some extent, Refusals 5 and 9), as posed, seek to probe whether the plea that Mr. Khadr was precluded from participating in the Utah proceeding was borne of an informed conclusion (whatever may have informed it/whoever may have informed it) and to test the notion that Mr. Khadr was legally prohibited from participating in the Utah proceedings because he “couldn’t afford to retain counsel”; and “didn’t have access…[t]o acquiring any kind of information” (QQ. 1875-1878).
[14] At Q. 1932, Mr. Khadr says that there were a number of factors that went into his failure to defend the Utah proceeding. One was choice borne of a concern that he would not be given a fair hearing; the others, he posits, were not his choice: “[P]rison and [he] couldn’t afford”. These refusals seek to explore Mr. Khadr’s active prohibition plea and to test the notion that, with no “access…[t]o acquiring any kind of information”, Mr. Khadr did not know and could not know that there were steps that could have been taken by him to engage in the process (see, for instance, paras. 12-13 of the August 22/19 affidavit of Donald J. Winder).
[15] “The fact of receiving legal advice is not privileged, since it reveals nothing about the content of the advice” (578115 Ontario Inc. v. Sears Canada Inc., [2013 O.J. No. 2783 (S.C.J.), at para. 31). “…[T]here is no waiver of privilege associated with lawyer and client communications from the mere fact that during the events giving rise to the claim or defence, the party received legal advice, even if the party relied on the legal advice during the events giving rise to the…defence… …[T]here must be the further element that the state of mind involves the party understanding its legal position in a way that is material to the lawsuit. The materiality of the legal advice to the defences in the lawsuit makes questions about it relevant.” (Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at paras. 27-28).
[16] In disclosing the information sought by way of the refusals now ordered answered, it does not follow that Mr. Khadr’s “entire legal file[s are] open to review” (Arci v. Miklavc, 2018 ONSC 7642, at para. 9. And, indeed, the plaintiffs “do not seek a wide swath of potentially privileged information but rather a very narrow and specific reply to the pleading advanced by [Mr. Khadr]. [Mr. Khadr] says an appearance was not possible, but had he received advice to the contrary which is now inconsistent with his own pleading” (factum of plaintiffs, at para. 22)?
[17] Such information as may have been imparted to Mr. Khadr may have been incorrect or incomplete or Mr. Khadr may have chosen not to rely on it. But, I agree with plaintiffs’ counsel when he says that fairness supports the notion that the plaintiffs ought to be able to look behind the denial of natural justice veil which cloaks Mr. Khadr’s defence.
[18] Mr. Khadr pleads an active and absolute (legal and physical) prohibition against appearing before the court determining the Utah proceeding and points the finger at the Utah court process in stating that he was denied an ability to participate and an opportunity to inform
himself as to his options (QQ. 1875-1878). Mr. Khadr has thus put his state of mind at issue: being his understanding of his legal position in a way that is material to his defence. Called into question are: Did the Utah court fail to accord him an opportunity to appear before it or did Mr. Khadr simply decline to participate in the process? Was his failure to participate in the Utah court process a matter of circumstance/denial of natural justice (i.e. active prohibition) or was it a choice (whether because alternatives were not explored or because a decision was made by Mr. Khadr to fail to avail himself of alternative means of responding to the Complaint)? Was he granted a fair process of which he failed to avail himself, having relied on someone’s advice?
Did Mr. Khadr, in fact, have access to information and did that information guide his steps in failing to address to the Complaint?
[19] Refusal 11 is also to be answered. At paragraph 2 of his statement of defence, actions contrary to the Optional Protocol to the Contravention on the Rights of the Child on the Involvement of Children in Armed Conflict are pled. The plaintiffs are entitled to know Mr. Khadr’s position as to what actions taken by the signatories to the Protocol were contravened,
i.e. what Mr. Khadr is relying on in support of his pleading (Q. 1947).
[20] Refusal 14, too, is to be answered. I recognize that Mr. Khadr’s position is that the Statement of Fact was derived from “abusive interrogations” (Q. 1988). That notwithstanding, with the defendant pleading the falsity of the “great majority of the factual statements”, the plaintiffs are entitled to know which factual statements Mr. Khadr now says are false and which factual statements do not form part of the “great majority”.
[21] The plaintiffs have said that Mr. Khadr may elaborate on his answers so as to indicate whether statements alleged by him to be false are derived from something he told someone, someone told him or he adopted for reasons that he may wish to state (Q. 1989). The plaintiffs are entitled to know which specific factual statements Mr. Khadr alleges are untrue, given the manner in which Mr. Khadr has pled. To go through the Statement of Fact fact-by-fact, according Mr. Khadr an opportunity to agree or disagree with specific factual statements, is not tantamount to using discovery as “an instrument of torture” (Ontario v. Rothmans Inc., 2011 ONSC 2504, at para. 129), as posited. The Statement of Fact may be “unreliable” and inadmissible evidence, as Mr. Whitling says; but the question, as here posed, seeks only to permit Mr. Khadr to explain which specific statements, statements with which he joined issue in
his pleading (and in respect of which he made comment in Guantanamo’s Child), he alleges are factually untrue and why.
[22] Failing agreement as to the costs of the motion, I may be spoken to—this by month’s- end.
February 3/20 “Original Signed by Master Abrams”