Abdelrazik v. Can., (2009) 346 F.T.R. 186 (FC)

JudgeZinn, J.
CourtFederal Court (Canada)
Case DateJune 04, 2009
JurisdictionCanada (Federal)
Citations(2009), 346 F.T.R. 186 (FC);2009 FC 580

Abdelrazik v. Can. (2009), 346 F.T.R. 186 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. JN.005

Abousfian Abdelrazik (applicant) v. The Minister of Foreign Affairs and The Attorney General of Canada (respondents)

(T-727-08; 2009 FC 580)

Indexed As: Abdelrazik v. Canada (Minister of Foreign Affairs) et al.

Federal Court

Zinn, J.

June 4, 2009.

Summary:

Abdelrazik was a citizen of Canada and Sudan who was acquainted with two alleged terrorists in Canada, but had no other criminal or terrorist connections. When he went to Sudan for a visit in 2003, he was imprisoned on two occasions. His Canadian passport expired and he could not secure a renewal. He made ongoing attempts to get back to Canada which were thwarted for a number of reasons, including the passport problems. In 2008 he took up residence (i.e., a safe haven) at the Canadian Embassy in Khartoum, Sudan. Abdelrazik ultimately arranged for a flight home on April 3, 2009; however, two hours before his flight was to depart, and despite assurances to the contrary, the Minister of Foreign Affairs advised Abdelrazik that no emergency passport would be issued. Abdelrazik applied for a declaration that the Minister violated his right to enter Canada contrary to s. 6(1) of the Charter and an appropriate remedy.

The Federal Court held that Abdelrazik's rights under s. 6(1) were violated. As a remedy the court required the Canadian government to take immediate action to insure that Abdelrazik be returned to Canada, including issuing an emergency passport and arranging transportation from Khartoum to Montreal within 30 days. The court stated that "Furthermore, as a consequence of the facts found establishing the breach and the unique circumstances of Mr. Abdelrazik's circumstances, the remedy requires that this Court retain jurisdiction to ensure that Mr. Abdelrazik is returned to Canada".

Aliens - Topic 2623

Naturalization - Passports - Withholding passport services - [See all Civil Rights - Topic 505 ].

Civil Rights - Topic 505

Mobility rights - Right to enter Canada - Abdelrazik was a citizen of Canada and Sudan who was acquainted with two alleged terrorists in Canada, but had no other criminal or terrorist connections - When he visited Sudan in 2003 he was imprisoned on two occasions - His Canadian passport expired - That and other circumstances, including placement of his name on a no-fly list and his listing as a associate of Al-Qaida under a United Nations Security Council Resolution by UN Committee 1267 which triggered a global travel ban, thwarted his ongoing efforts to return to Canada - Ultimately he claimed safe haven at the Canadian Embassy in Sudan - Abdelrazik ultimately arranged for a flight home on April 3, 2009; however, two hours before his flight was to depart, and despite assurances to the contrary, the Minister of Foreign Affairs advised Abdelrazik that no emergency passport would be issued - He applied for a declaration that his right to enter Canada (Charter, s. 6(1) had been violated - The Federal Court held that Canada had engaged in a course of conduct and specific acts that constituted a breach of s. 6(1) - Specifically, the court found "(i) That CSIS [the Canadian Security Intelligence Agency] 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 Canada's 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 pre-conditions 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" - As a remedy the court required the Canadian government take immediate action to facilitate Abdelrazik's return to Canada and retained jurisdiction to ensure that he was returned - See paragraphs 1 to 157.

Civil Rights - Topic 505

Mobility rights - Right to enter Canada - Abdelrazik, a Canadian citizen, filed a notice of application claiming that his Charter right to enter Canada (s. 6(1)), was violated when the Minister of Foreign Affairs refused, on April 3, 2009, to issue an emergency passport to facilitate his repatriation from Sudan - The Minister argued that the right to enter Canada as provided under s. 6(1) did not entail positive obligations on Canada such as the issuance of a passport - The Federal Court stated that where a citizen was outside Canada, the Government of Canada had 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 was illusory - Where the Government refused to issue that emergency passport, it was a prima facie breach of the citizen's Charter rights unless the Government justified its refusal pursuant to section 1 of the Charter - Here Abdelrazik's Charter right as a citizen of Canada to enter Canada was breached by the failure to issue an emergency passport - The court stated that it was not necessary to decide whether that breach was done in bad faith; a breach, whether made in bad faith or good faith remained a breach and absent justification under section 1 of the Charter, the aggrieved party was entitled to a remedy - However the court opined that the breach in this case was done in bad faith - The court discussed what circumstances would have to exist before a citizen could be denied his right to enter Canada - As to s. 1, the court noted that the Minister provided no evidence to support a s. 1 defence - Notwithstanding that, the court considered whether the Minister's determination that Abdelrazik posed a danger to national security or to the security of another country constituted a s. 1 defence in itself and concluded that it did not - See paragraphs 147 to 154.

Civil Rights - Topic 505

Mobility rights - Right to enter Canada - Abdelrazik was a citizen of Canada and Sudan who was acquainted with two alleged terrorists in Canada, but had no other criminal or terrorist connections - When he went to Sudan for a visit in 2003, he was imprisoned on two occasions - His Canadian passport expired and he could not secure a renewal - He made ongoing attempts to get back to Canada which were thwarted for a number of reasons, including the passport problems - In 2008 he took up residence (i.e., a safe haven) at the Canadian Embassy in Khartoum, Sudan - Abdelrazik ultimately arranged for a flight home on April 3, 2009; however, two hours before his flight was to depart, and despite assurances to the contrary, the Minister of Foreign Affairs advised Abdelrazik that no emergency passport would be issued - Abdelrazik applied for a declaration that the Minister violated his right to enter Canada contrary to s. 6(1) of the Charter and an appropriate remedy - The Federal Court held that Abdelrazik's rights under s. 6(1) were violated - As a remedy the court required the Canadian government to take immediate action to facilitate Abdelrazik's return to Canada (including, issuing an emergency passport, arranging transportation and airfare, and an escort) - The court noted that the order respecting financial assistance did not violate UN Resolution 1267 because any such assistance would be provided by Canada in fulfilment of judicial process - The court ordered that Abdelrazik appear before the court to prove that he returned to Canada - The court also reserved the right to oversee implementation of the judgment and reserved the right to issue further orders as might be required to safely return Abdelrazik to Canada - See paragraphs 158 to 169.

Civil Rights - Topic 589

Mobility rights - Violation - What constitutes - Passports - [See all Civil Rights - Topic 505 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See second Civil Rights - Topic 505 ].

Civil Rights - Topic 8380.33

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Repatriation to Canada - [See third Civil Rights - Topic 505 ].

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decisions of federal boards, commissions or tribunals (incl. ministers) - Abdelrazik, a Canadian citizen, filed a notice of application claiming that his Charter right to enter Canada, s. 6(1), was violated by the Minister of Foreign Affairs and the Attorney General of Canada (the respondents) on an ongoing basis - Abdelrazik argued, inter alia, that most recently his rights were violated when the Minister of Foreign Affairs refused, on April 3, 2009, to issue an emergency passport to facilitate his repatriation from Sudan - The respondents argued that the manner in which Abdelrazik proposed to proceed was in effect a collateral attack on the Minister's decision - The Federal Court disagreed - Here the challenge could not be said to have been made in a collateral fashion - Rather Abdelrazik was challenging the decision head on and in the proper forum - See paragraphs 139 to 145.

International Law - Topic 11

General - Duty to citizens detained abroad - [See all Civil Rights - Topic 505 and International Law - Topic 1041 ].

International Law - Topic 1041

Territory - The air - General - United Nations Resolution 1267 (now 1822), relating to international terrorism, provided that States shall "prevent the entry into or transit through their territories" of listed individuals, "provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case-by-case basis only that entry or transit is justified" - The Federal Court held that States had certain rights with respect to travel through the airspace above their territory; however, it did not follow that the word "territory" in Resolution 1822 included airspace - This sanction was not intended to apply to transit in air when a person was returning to his country of citizenship - See paragraphs 121 to 123.

International Law - Topic 6008

International relations - Repatriation of Canadian citizen - [See third Civil Rights - Topic 505 and International Law - Topic 1041 ].

International Law - Topic 6066

International relations - International agreements, United Nations Security Council resolutions, etc. - Re terrorism - The United Nations Security Council 1267 Committee was established to implement UN Security Council Resolution 1267 (now Resolution 1822), which was aimed at controlling international terrorism by, inter alia, listing and sanctioning individuals associated with Al-Qaida, Usama bin Laden or the Taliban - There were no legal protections, procedures, rights to a hearing or remedies available to a person listed by the 1267 Committee - There was no prior notice and no effective procedure to challenge a listing - The Federal Court (Zinn, J.) stated that "I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or de-listing procedure that recognizes the principles of natural justice or that provides for basic procedural fairness ..." - See paragraphs 45 to 54.

International Law - Topic 6066

International relations - International agreements, United Nations Security Council resolutions, etc. - Re terrorism - [See International Law - Topic 1041 ].

Words and Phrases

Territory - The Federal Court discussed the meaning of the word "territory" as it was used in United Nations Resolution 1267 - See paragraphs 123 to 129.

Cases Noticed:

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 6].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182, refd to. [para. 43].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 51].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 88].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368, refd to. [para. 88].

Kamel v. Canada (Attorney General) (2009), 388 N.R. 4; 2009 FCA 21, refd to. [para. 132].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 132].

Multani v. Commission scolaire Marguerite-Bourgeoys et al. (2006), 345 N.R. 201; 2006 SCC 6, refd to. [para. 132].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 134].

Veffer v. Canada (Minister of Foreign Affairs), [2008] 1 F.C.R. 641; 367 N.R. 1; 2007 FCA 247, refd to. [para. 135].

Khadr v. Canada (Attorney General), [2007] 2 F.C.R. 218; 293 F.T.R. 58; 2006 FC 727, refd to. [para. 137].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22 , refd to. [para. 138].

Grenier v. Canada, [2006] 2 F.C.R. 287; 344 N.R. 102; 2005 FCA 348, refd to. [para. 139].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 139].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 149].

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 150].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311, refd to. [para. 158].

Chorzow Factory Case, [1928] P.C.I.J., Ser. A, No. 17, refd to. [para. 159].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 159].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Markevich v. Minister of National Revenue, [2003] 1 S.C.R. 94; 300 N.R. 321; 2003 SCC 9, refd to. [para. 163].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 6(1) [para. 42, Annex A].

United Nations, United Nations Security Council Resolution 1267, generally [para. 47].

United Nations, United Nations Security Council Resolution 1822, generally [para. 49, Annex A].

Authors and Works Noticed:

United Nations, Office of Legal Affairs, Security Council Report: Update Report, Report No. 4 (April 21, 2008), generally [para. 50, footnote 3].

Woolf, Harry, Judicial Review - The Tensions Between the Executive and the Judiciary (1998), 114 L.Q. Rev. 579, p. 580 [para. 5, footnote 1].

Counsel:

Yavar Hameed, Paul Champ, Audrey Brousseau and Halid M. Elgazzar, for the applicant;

Anne Turley, Elizabeth Richards and Zoe Oxaal, for the respondents.

Solicitors of Record:

Hameed Farrokhzad Elgazzar Brousseau, Ottawa, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondents.

This application was heard at Ottawa, Ontario, on May 7 and 8, 2009, by Zinn, J., of the Federal Court, who delivered the following reasons for judgment on June 4, 2009.

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40 practice notes
  • Canada (Procureur général) c. Almalki,
    • Canada
    • Federal Court (Canada)
    • November 8, 2010
    ...Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, 293 D.L.R. (4th) 629, 72 Admin. L.R. (4th) 1; Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267, 95 Admin. L.R. (4th) 25, 194 C.R.R. (2d) 255; Mills v. The Queen, [1986] 1 S.C.R. 863, (1986), 29 D.L.R. (4th) 161, 26......
  • Canada (Attorney General) v. Almalki et al., 2010 FC 1106
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    • Canada (Federal) Federal Court (Canada)
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    ...125; 375 N.R. 47; 2008 SCC 28, refd to. [para. 181]. Abdelrazik v. Canada (Minister of Foreign Affairs) et al., [2010] 1 F.C.R. 267; 346 F.T.R. 186; 2009 FC 580, refd to. [para. R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 183]. Statutes Noticed: Canada Evide......
  • Table of Cases
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    • Irwin Books The Law of Equitable Remedies. Second Edition
    • June 18, 2013
    ...[1992] 3 All E.R. 523 (H.L.) ................................................. 155 Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580 ................... 267 Abolins v. Greendale Farm and Garden Ltd., [2005] O.T.C. 285, [2005] O.J. No. 1616 (S.C.J.) ..................................
  • Table of Cases
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    • Irwin Books Constitutional Law. Fifth Edition Conclusion
    • August 3, 2017
    ...59 Abdelrazik v. Canada (Minister of Foreign Affairs) (2009), [2010] 1 F.C.R. 267, 2009 FC 580 ............................................................................. 59 Adult Entertainment Association of Canada v. Ottawa (City), 2007 ONCA 389 ...............................................
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15 cases
  • Canada (Procureur général) c. Almalki,
    • Canada
    • Federal Court (Canada)
    • November 8, 2010
    ...Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, 293 D.L.R. (4th) 629, 72 Admin. L.R. (4th) 1; Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267, 95 Admin. L.R. (4th) 25, 194 C.R.R. (2d) 255; Mills v. The Queen, [1986] 1 S.C.R. 863, (1986), 29 D.L.R. (4th) 161, 26......
  • Canada (Attorney General) v. Almalki et al., 2010 FC 1106
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 6, 2010
    ...125; 375 N.R. 47; 2008 SCC 28, refd to. [para. 181]. Abdelrazik v. Canada (Minister of Foreign Affairs) et al., [2010] 1 F.C.R. 267; 346 F.T.R. 186; 2009 FC 580, refd to. [para. R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 183]. Statutes Noticed: Canada Evide......
  • Apotex Inc. c. Ambrose,
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    • Federal Court (Canada)
    • May 10, 2017
    ...2014 FCA 55, 372 D.L.R. (4th) 176; Maguire v. Canada, [1990] 1 F.C. 742, (1989), 66 D.L.R. (4th) 121 (T.D.); Abdelrazik v. Canada, 2009 FC 580, [2010] 1 F.C.R. 267; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; ......
  • Almrei, Re, 2009 FC 1263
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    ...al., [2006] O.T.C. 286; 80 O.R.(3d) 378 (Sup. Ct.), refd to. [para. 354]. Abdelrazik v. Canada (Minister of Foreign Affairs) et al. (2009), 346 F.T.R. 186; 2009 FC 580, refd to. [para. Mahjoub v. Canada (Minister of Citizenship and Immigration) et al. (2006), 304 F.T.R. 290; 2006 FC 1503, r......
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25 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books The Law of Equitable Remedies. Second Edition
    • June 18, 2013
    ...[1992] 3 All E.R. 523 (H.L.) ................................................. 155 Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580 ................... 267 Abolins v. Greendale Farm and Garden Ltd., [2005] O.T.C. 285, [2005] O.J. No. 1616 (S.C.J.) ..................................
  • Table of Cases
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    • Irwin Books Constitutional Law. Fifth Edition Conclusion
    • August 3, 2017
    ...59 Abdelrazik v. Canada (Minister of Foreign Affairs) (2009), [2010] 1 F.C.R. 267, 2009 FC 580 ............................................................................. 59 Adult Entertainment Association of Canada v. Ottawa (City), 2007 ONCA 389 ...............................................
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    ...to Flouting” (1995) 17 Advocates’ Q. 80. GiLLeSpie, n., “ Charter Remedies: The Structural Injunction” (1990) 11 Advocates’ Q. 190. 151 2009 FC 580. 152 2001 SCC 7. 153 However, note the decision in Conseil Scolaire Fransaskois v. Saskatchewan , 2011 SKQB 210, ordering the government to pay......
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    ...jurisdiction to consider decisions that are set aside by the Federal Court. 154 See Abdelrazik v Canada (Minister of Foreign Affairs) , 2009 FC 580, wherein the court directed the government to issue an emergency passport. See also, for example, Ning v Canada (Minister of Citizenship and Im......
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