Harper Govt Smackdown by Federal Judge Zinn
Apparently I’m not alone in thinking the situation of Mr. Abdelrazik is Kafkaesque. In a recent ruling, Federal Appeals Court Judge Zinn had some stern words to say about the Harper government’s treatment of this Canadian citizen (quote via Dawg’s Blog; read the whole Judgment) :
I have found that Canada has engaged in a course of conduct and specific acts that constitute a breach of Mr. Abdelrazik’s right to enter Canada. Specifically, I find:
(i) That CSIS was complicit in the detention of Mr. Abdelrazik by the Sudanese authorities in 2003;
(ii) That by mid 2004 Canadian authorities had determined that they would not take any active steps to assist Mr. Abdelrazik to return to Canada and, in spite of its numerous assurances to the contrary, would consider refusing him an emergency passport if that was required in order to ensure that he could not return to Canada;
(iii) That there is no impediment from the UN Resolution to Mr. Abdelrazik being repatriated to Canada – no permission of a foreign government is required to transit through its airspace – and the respondents’ assertion to the contrary is a part of the conduct engaged in to ensure that Mr. Abdelrazik could not return to Canada; and
(iv) That Canada’s denial of an emergency passport on April 3, 2009, after all of the preconditions for the issuance of an emergency passport previously set by Canada had been met, is a breach of his Charter right to enter Canada, and it has not been shown to be saved under section 1 of the Charter. (68)I agree with the respondents that a Court should not go further than required when fashioning a remedy for a Charter breach: Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3. In this case, the applicant is entitled to be put back to the place he would have been but for the breach – in Montreal. (68)
The judgment is quite witty and well written. Some of my favourite passages (emphases added):
The memorandum of argument filed by the respondents implies that Mr. Abdelrazik, having voluntarily returned to his country of birth, despite the fact that President Omar al-Bashir remains in power, may be said to be the author of his own misfortune. There is truth in the suggestion that whatever his motivation for returning to Sudan, it was ill-advised; if there was any doubt, subsequent events have proved it. The wisdom or foolishness of his choosing to return to his country of birth is irrelevant to the application before this Court. Charter rights are not dependent on the wisdom of the choices Canadians make, nor their moral character or political beliefs. Foolish persons have no lesser rights under the Charter than those who have made wise choices or are considered to be morally and politically upstanding.
There is no direct evidence before this Court that Mr. Abdelrazik supports, financially or otherwise, is a member of, or follows the principles of Al-Qaida. There is no evidence before this Court as to the basis on which the United States authorities concluded that Mr. Abdelrazik has provided support to Al-Qaida and poses a threat to the security of the United States of America. There is no evidence before this Court nor, as shall be discussed later, that is currently available to Mr. Abdelrazik as to the basis on which the 1267 Committee listed him as an associate of Al-Qaida. The only direct evidence before this Court is in an affidavit filed by Mr. Abdelrazik in which he swears that he has no connection to Al-Qaida.
[A] petitioner seeking de-listing “should provide justification for the de-listing request by describing the basis for this request, including by explaining why he/she no longer meets the criteria described in paragraph 2 of resolution 1617 (2005)…” (emphasis added). Those criteria are the four criteria set out above in paragraph 49. For a person such as Mr. Abdelrazik who asserts that he never met the criteria and was wrongly listed in the first instance, it is difficult to see how he can provide the requested justification, particularly when he has no information as to the basis for the initial listing. Section 7(g)(iii) of the Guidelines further provide that if the request for de-listing is a repeat request and if it does not contain any information additional to that provided in the first request, it is to be returned to the petitioner without consideration. It is difficult to see what information any petitioner could provide to prove a negative, i.e. to prove that he or she is not associated with Al-Qaida. One cannot prove that fairies and goblins do not exist any more than Mr. Abdelrazik or any other person can prove that they are not an Al-Qaida associate. It is a fundamental principle of Canadian and international justice that the accused does not have the burden of proving his innocence, the accuser has the burden of proving guilt. In light of these shortcomings, it is disingenuous of the respondents to submit, as they did, that if he is wrongly listed the remedy is for Mr. Abdelrazik to apply to the 1267 Committee for de-listing and not to engage this Court. The 1267 Committee regime is, as I observed at the hearing, a situation for a listed person not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime. [...] I pause to comment that it is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion.
(So you have to prove when you stopped beating your wife to be removed from the wife-beater list. Wonderful!)
An allegation that Canada was complicit in a foreign nation detaining a Canadian citizen is very serious, particularly when no charges are pending against him and in circumstances where he had previously fled that country as a Convention refugee. However, in my view, the evidence before the Court establishes, on the balance of probabilities, that the recommendation for the detention of Mr. Abdelrazik by Sudan came either directly or indirectly from CSIS. I find, on the balance of probabilities, on the record before the Court, that CSIS was complicit in the initial detention of Mr. Abdelrazik by the Sudanese.
[108] In my view, it is reasonable to conclude from the July 30, 2004 musings of the foreign Affairs official that Canadian authorities did not want Mr. Abdelrazik to return to Canada and they
were prepared to examine avenues that would prevent his return, such as the denial of an emergency passport. That conclusion is further supported by the extraordinary circumstances in which the Minister made the decision on April 3, 2009 to refuse the applicant an emergency passport.
[120] It was Canada’s view that it was illegal under the 1822 Resolution and the laws of Canada to financially assist Mr. Abdelrazik. Canada was also aware that he was impecunious. It is not unreasonable to suggest, as the applicant did, that in adding the condition that the itinerary be a paid one, Canada was ensuring that it would not be called upon to provide the emergency passport. The applicant submits that this added condition is further evidence that Canada never intended to permit him to return to Canada. The weight of the evidence supports that submission.
[127] Further, the respondents’ interpretation of the 1267 travel ban leads to a nonsensical result. According to their interpretation, the Resolution permits a citizen to enter Canada if and only if he happens to be standing at the Canadian border crossing, but it prevents that same citizen from reaching that border crossing as he cannot transit over land or through air to reach it. On the respondents’ interpretation the exemption that provides that no State is obliged to prevent its citizens from entry becomes meaningless as there is virtually no possibility that a listed person will be located at a border crossing and there is no possibility under current technology that he will be able to simply transport himself to the border crossing without transiting over land or through the air. Quite simply that could not have been the intention of the drafters of the Resolution.
(Love the Star Trek / transporter tacit reference there!)
[148] In my view, the submission that the applicant had not been denied entry into Canada by the Government of Canada was not accurate when made 6 days after the Minister had denied the
applicant an emergency passport. Whether or not the Etihad Airways flight scheduled for April 3, 2009 would breach the travel ban set out in the 1822 Resolution, there is no evidence before the Court that had Mr. Abdelrazik been in possession of an emergency passport issued by Canada that he would not have been on that flight and now in Canada. I find that the only reason that Mr. Abdelrazik is not in Canada now is because of the actions of the Minister on April 3, 2009.
[152] I agree with the Court of Appeal. In my view, where a citizen is outside Canada, the Government of Canada has a positive obligation to issue an emergency passport to that citizen to permit him or her to enter Canada; otherwise, the right guaranteed by the Government of Canada in subsection 6(1) of the Charter is illusory.
As I have noted throughout, there is evidence that supports the applicant’s contention that the Government of Canada made a determination in and around the time of the listing by the 1267 Committee that Mr. Abdelrazik would not be permitted to return to Canada. The only legal way to accomplish that objective was by order made pursuant to section 10.1 of the Canadian Passport Order. Rather than instituting that process then, Canada put forward a number of explanations as to why he was not being provided with an emergency passport, only some of which were accurate: he is on a no-fly list and commercial air carriers will not board him; he has secured an itinerary but not paid for the flight; he is listed on the 1267 Committee list and cannot fly in the air space of Member States; and lastly, when he had managed to meet the last condition set by Canada that he have a paid ticket, the refusal is necessary for the national security of Canada or another country. This was an opinion the Minister was to make only after the process prescribed by his own department was followed, giving Mr. Abdelrazik an opportunity to know of and address concerns. Not only was that not done, the Minister waited until the very last minute before the flight was to depart to deny the emergency passport, and although the basis of the refusal is indicated, he provides no explanation of the basis on which that determination was reached, no explanation as to what had changed while Mr. Abdelrazik resided in the Canadian embassy that warranted this sudden finding, and nothing to indicate whether the decision was based on him being a danger to the national security of Canada or on being a danger to another country. [...] In short, the only basis for the denial of the passport was that the Minister had reached this opinion; there has been nothing offered and no attempt made to justify that opinion.
It is simply not sufficient for the Minister to say that he has reached this opinion and “trust me” – he must show more; he must establish that it was “required”. While it is not the function of the judiciary to second guess or to substitute its opinion for that of the Minister, when no basis is provided for the opinion, the Court cannot find that the refusal was required and justified given the significant breach of the Charter that refusing a passport to a Canadian citizen entails. In this case, the refusal of the emergency passport effectively leaves Mr. Abdelrazik as a prisoner in a foreign land, consigned to live the remainder of his life in the Canadian Embassy or leave and risk detention and torture.
My hat’s off to that judge!!
Local Cache: The Abdelrazik Ruling
Possibly related posts:
Judge Zinn deserves a standing ovation…
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