TORONTO - Two former residents of Montreal detained in Guantanamo Bay for alleged terrorist ties lost their bid Monday to gain access to Canadian intelligence documents because the men don't have a strong connection to Canada.
In turning down their request for the material, a Federal Court judge ruled the Charter of Rights and Freedoms doesn't apply to Ahcene Zemiri and Mohamedou Slahi.
"The charter, an integral part of Canada's supreme law, is a Canadian instrument enacted to enshrine and protect the fundamental rights of Canadians and those finding themselves within Canada's territory," Judge Edmond Blanchard wrote in his decision.
"Its extraterritorial reach is exceptional and limited."
Zemiri and Slahi are fighting civil actions in the U.S. to be released from Guantanamo Bay, where they have been held since 2002.
They were looking for evidence to prove their confessions to terrorist activities resulted from torture by Americans and others.
Zemiri, 41, is an Algerian who lived in Canada for seven years until June 2001. He has a wife and son in the country.
He was imprisoned at Guantanamo Bay seven years ago amid allegations that he gave money and a camera to fellow Algerian Ahmed Ressam, who was later convicted in the "millennium plot" to bomb the Los Angeles airport.
After Ressam's arrest, Zemiri was interrogated by Canadian intelligence and law enforcement officials in Montreal, and he claims material from those interviews formed the basis of his ongoing detention in Guantanamo, where Canadian officials interrogated him again.
Slahi, 38, is a Mauritanian who lived in Montreal as a permanent resident for two months in 1999 and 2000.
The Americans allege Slahi was a high-level member of al-Qaida who approved the millennium plot and played a role in the 9-11 terrorist attacks in the U.S. He has admitted travelling to Afghanistan to wage jihad, but argues the enemy was the Soviet occupiers.
Like Zemiri, he was interrogated by Canadian intelligence agents at Guantanamo Bay in 2003 and 2004.
In making their arguments, the two men relied on a Supreme Court of Canada decision involving Canadian citizen Omar Khadr, who is also detained at Guantanamo Bay.
In Khadr's case, the high court ordered the release of Canadian intelligence. The material included videotaped interviews in Guantanamo Bay that confirmed Khadr had been subjected to abuse.
The men's lawyer, Nate Whitling, said he was disappointed but not surprised by Blanchard's ruling.
"I had thought the Supreme Court was fairly clear that the charter is going to apply if the investigators or the interviewers are Canadian nationals," Whitling said from Edmonton.
"But this was an issue that had not been clearly decided in any previous case."
The government argued the Khadr case is different because he is a Canadian charged in the U.S, while the two men are not Canadians and are going through a regular court process in the U.S.
Whitling said it is difficult to assess the impact of Blanchard's ruling given that the documents will now remain secret.
He also said the men's court cases in the United States would likely be heard before any appeal of Monday's decision could be heard.
