Judge Richard Mosley ruled that a government document relating to the possible mistreatment of Khadr at Guantanamo Bay is part of the material that must be disclosed to his defence team lawyers. Khadr is at the U.S. naval base in Cuba awaiting trial before a military commission on charges that he murdered a U.S. army sergeant in Afghanistan in 2002, when he was 15.
Mosley said a paragraph in one of the documents, which had been blacked out by the federal government, contains information from a member of the U.S. military regarding "steps taken by Guantanamo authorities to prepare" Khadr for an interview with a Canadian foreign affairs official in March 2004.
"The practice described to the Canadian official in March 2004, was, in my view, a breach of international human rights law respecting the treatment of detainees," Mosley said.
Canada "became implicated" in violating international human rights when the foreign affairs official learned about Khadr's treatment but decided to interview him anyway, the judge said.
Mosley referred to a recent report in the U.S. describing harsh interrogation techniques used on Guantanamo detainees that would not have been permissible under American law and that are prohibited by the U.S. military.
"Canada cannot now object to the disclosure of this information. The information is relevant to the applicant's complaints of mistreatment while in detention," Mosley wrote.
Mosley's ruling follows a Supreme Court decision in May that Khadr has a constitutional right to see certain videos and documents held by Foreign Affairs, the RCMP and CSIS. The items relate to interviews Canadian officials conducted with Khadr during his detention at the U.S. naval base in Cuba in 2003 and 2004.
The Supreme Court ordered Ottawa to grant limited access to the material and gave a federal court judge the task of assessing what parts of the documents should be passed to Khadr's lawyers by determining whether they "fall within the scope of disclosure obligations."
Lawyers for the Canadian government had argued that releasing the files could jeopardize international relations and reveal classified information. They said that Canada isn't obligated to hand over the files.
Mosley said an edited version of the tapes should be handed over to Khadr's defence team. Sensitive information and the identities of officials who attended the 2003 interview must be edited out, he said.
He also ordered that five pages of the 186 pages of interview notes and witness statements that had originally been withheld be disclosed to the defence team.
Mosley left it up to Khadr's defence team to decide what material they will release to the public.
"Mr. Khadr and his counsel will be free to use the information as they see fit for the purposes of his defence, including release to the media for publication," he ruled.
Media, including the CBC, intervened at the federal court, asking for the release of the videotaped interviews by CSIS and foreign affairs officials. Lawyers argued the footage should be released in order for the public to assess how CSIS helped U.S. forces.