Kamel v. Canada (Attorney General), (2009) 388 N.R. 4 (FCA)

JudgeDécary, Létourneau and Blais, JJ.A.
CourtFederal Court of Appeal (Canada)
Case DateJanuary 12, 2009
JurisdictionCanada (Federal)
Citations(2009), 388 N.R. 4 (FCA);2009 FCA 21

Kamel v. Can. (A.G.) (2009), 388 N.R. 4 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. MR.008

Le Procureur général du Canada (appelant) v. Fateh Kamel (intimé)

(A-167-08; 2009 FCA 21; 2009 CAF 21)

Indexed As: Kamel v. Canada (Attorney General)

Federal Court of Appeal

Décary, Létourneau and Blais, JJ.A.

January 23, 2009.

Summary:

Kamel, an Algerian citizen, immigrated to Canada in 1988 and obtained Canadian citizenship in 1993. He obtained a Canadian passport in 1993. On several occasions, his passport was either lost or stolen and he was issued a new passport. In 2001, Kamel was convicted, in France, of membership in a criminal organisation for the purpose of preparing a terrorist act. After he had served his imprisonment, the Canadian Passport Office (CPO) issued a special passport to allow him to return to his place of residence in Canada. In 2005, Kamel again applied for a passport. The application was made the subject of an administrative investigation. The CPO recommended that the application be denied. The Minister of Foreign Affairs denied Kamel's application for a passport under s. 10.1 of the Order Amending the Canadian Passport Order. Kamel applied for judicial review, asserting that the principles of procedural fairness had been violated and that ss. 4 and 10.1 of the Order and the decision were an unjustifiable infringement of the rights guaranteed by ss. 6, 7 and 15 of the Charter.

The Federal Court, in a decision reported at 324 F.T.R. 250, allowed the application in part. The principles of procedural fairness were violated in the investigation that led to the Minister's decision. The passport was essential to the exercise of the mobility rights guaranteed by s. 6 of the Charter and s. 1 could be of no assistance, given that s. 10.1 of the Order was not a law. Accordingly, there had been an infringement of the rights guaranteed by s. 6 of the Charter. Section 10.1 of the Order was declared invalid and the Minister's decision was set aside. The court gave the Governor in Council six months to rewrite s. 10.1 of the Order. The request for a decision to issue a passport to be made in the place and stead of the Minister was denied. The Attorney General of Canada appealed. The appeal was limited to the violation of s. 6 of the Charter and the justification under s. 1 of the Charter.

The Federal Court of Appeal allowed the appeal and set aside that part of the Federal Court judge's decision that declared s. 10.1 of the Order invalid.

Civil Rights - Topic 589

Mobility rights - Violation - What constitutes - Passports - Kamel applied for judicial review of the decision of the Minister of Foreign Affairs denying his request for a passport under s. 10.1 of the Order Amending the Canadian Passport Order (right of the Minister to refuse the issuance of a passport if such action was necessary for the national security of Canada or another country) - The Federal Court of Appeal affirmed that s. 10.1 of the Order and the Minister's decision were an infringement of the rights guaranteed by s. 6 of the Charter (mobility rights) - That there was almost nowhere a Canadian citizen could go without a passport and there was almost nowhere from which he or she could re-enter Canada without a passport were restrictions on a Canadian citizen's right to enter or leave Canada, which was sufficient to engage Charter protection - See paragraphs 14 to 18.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Kamel applied for judicial review of the decision of the Minister of Foreign Affairs denying his request for a passport under s. 10.1 of the Order Amending the Canadian Passport Order (right of the Minister to refuse the issuance of a passport if such action was necessary for the national security of Canada or another country) - The applications judge held that s. 10.1 of the Order and the Minister's decision were an infringement of the rights guaranteed by s. 6 of the Charter (mobility rights) - The Order did not contain any law on the basis of which it could be ultimately concluded that the infringement of the rights associated with the mobility rights guaranteed in s. 6(1) of the Charter was justified under s. 1 of the Charter - It was therefore not necessary to apply the tests for the s. 1 analysis (R. v. Oakes (SCC)) - The Federal Court of Appeal held that the applications judge erred in law by confusing the constitutional validity of a provision with the validity of the decision made under that provision - Section 10.1 of the Order satisfied the test of precision that was required to constitute a "law" within the meaning of s. 1 of the Charter - See paragraphs 19 to 31.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Kamel applied for judicial review of the decision of the Minister of Foreign Affairs denying his request for a passport under s. 10.1 of the Order Amending the Canadian Passport Order (right of the Minister to refuse the issuance of a passport if such action was necessary for the national security of Canada or another country) - The Federal Court of Appeal affirmed that s. 10.1 of the Order and the Minister's decision were an infringement of the rights guaranteed by s. 6 of the Charter (mobility rights) - Section 10.1 had both a broad objective to contribute to the international fight against terrorism and to comply with Canada's commitments in this area, and a particular objective to maintain the good reputation of the Canadian passport - These objectives were, on their face, sufficiently important for a measure to be adopted that restricted the right of a Canadian citizen to enter or leave the country - There was a causal connection between the violation, refusing to issue a passport, and the benefit sought, maintaining the good reputation of the Canadian passport and Canada's participation in the international fight against terrorism - There was minimal impairment - The refusal could only be exercised in accordance with the rules of Canadian administrative law and if it was a "necessary" measure - Further, the refusal to issue a general passport did not necessarily result in completely depriving a Canadian citizen of his or her right to leave the country - There were other types of passports that could be issued, including the limited validity passport for urgent or compassionate reasons - Finally, the possible collective harm outweighed the real individual harm - See paragraphs 32 to 67.

Cases Noticed:

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, folld. [para. 20].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, folld. [para. 20].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, folld. [para. 20].

JTI-Macdonald Corp. et al. v. Canada (Attorney General), [2007] 2 S.C.R. 610; 364 N.R. 89; 2007 SCC 30, folld. [para. 20]; refd to. [para. 58].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, folld. [para. 20].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, folld. [para. 20].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 51 Q.A.C. 161, addendum 147 N.R. 335, refd to. [para. 29].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, appld. [para. 32].

D.W.T. v. British Columbia (Attorney General) et al., [2003] 1 S.C.R. 835; 304 N.R. 201; 183 B.C.A.C. 1; 301 W.A.C. 1; 2003 SCC 34, refd to. [para. 32].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 34].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 35].

R. v. Bryan (P.C.) et al., [2007] 1 S.C.R. 527; 359 N.R. 1; 237 B.C.A.C. 33; 392 W.A.C. 33; 2007 SCC 12, refd to. [para. 36].

Statutes Noticed:

Canadian Passport Order, SI/81-86, sect. 10.1 [para. 13].

Authors and Works Noticed:

Canada, Policy Statement, Securing An Open Society: Canada's National Security Policy (April 27, 2004), generally [para. 39].

Counsel:

Nathalie Benoit, for the appellant;

Johanne Doyon, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Doyon et Associés, Montreal, Quebec, for the respondent.

This appeal was heard on January 12, 2009, at Montreal, Quebec, by Décary, Létourneau and Blais, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Décary, J.A., on January 23, 2009.

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