Khadr et al. v. Canada (Minister of Foreign Affairs), (2004) 266 F.T.R. 20 (FC)

Judgevon Finckenstein, J.
CourtFederal Court (Canada)
Case DateAugust 12, 2004
JurisdictionCanada (Federal)
Citations(2004), 266 F.T.R. 20 (FC);2004 FC 1145

Khadr v. Can. (2004), 266 F.T.R. 20 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. AU.065

Omar Ahmed Khadr by his Next Friend Fatmah Elsamnah, Fatmah Elsamnah, Muhammed Elsamnah, and Abdurhaman Khadr (applicants) v. The Minister of Foreign Affairs (respondent)

(T-686-04; 2004 FC 1145)

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

Federal Court

von Finckenstein, J.

August 18, 2004.

Summary:

Khadr, a 17 year old Canadian citizen, was being detained by the U.S. government at Guantanamo Bay as a result of his alleged involvement with Al-Queda. Khadr's family brought an application to compel the government to extend consular and diplomatic services to Khadr. They argued that, in failing to provide those services, the Minister of Foreign Affairs breached his duties under s. 10 of the Department of Foreign Affairs and International Trade Act (DFAITA) and infringed the Charter rights of Khadr and his family. The applicants also sought various relief with respect to alleged interviews of Khadr by Canadian government agents in Guantanamo Bay. A related action (T-536-04) sought similar relief with respect to those interviews. The respondent moved to strike the notice of application, arguing that it contravened Federal Court Rule 302 and that it was an abuse of process due to its similarity to T-536-04.

The Federal Court struck those portions of the notice of application which related to the interviews of Khadr by Canadian government agents as well as those portions which alleged Charter violations as a result of the Minister's failure to provide consular and other services to Khadr. The allegations regarding s. 10 of the DFAITA would be continued, except for allegations which related to international instruments other than the Vienna Convention on Consular Relations.

Administrative Law - Topic 25

Abuse of process - Multiplicity of proceedings - Khadr, a 17 year old Canadian citizen, was being detained by the U.S. government at Guantanamo Bay as a result of his alleged involvement with Al-Queda - Khadr's family brought an application to compel the government to extend consular and diplomatic services to Khadr - They argued that, in failing to provide those services, the Minister of Foreign Affairs acted contrary to the Department of Foreign Affairs and International Trade Act and infringed the Charter rights of Khadr and his family - The applicants also sought various relief with respect to alleged interviews of Khadr by Canadian government agents - A related action sought similar relief with respect to those interviews - The Federal Court struck those portions of the notice of application which related to the interviews of Khadr - An applicant could not challenge two decisions in one application where the decisions did not form a continuing course of conduct (Federal Court Rule 302) - Secondly, it was an abuse of process to challenge the same decision and seek the same relief in parallel proceedings - See paragraphs 7 to 12.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See first International Law - Topic 11 ].

Administrative Law - Topic 3354.3

Judicial review - General - Practice - Application - Limitation re orders sought - [See Administrative Law - Topic 25 ].

Civil Rights - Topic 8311.1

Canadian Charter of Rights and Freedoms - Application - Government inaction - [See third International Law - Topic 11 ].

Courts - Topic 4071.1

Federal Court of Canada - Jurisdiction - Trial Division - Practice - Judicial review applications - General - [See Administrative Law - Topic 25 ].

International Law - Topic 11

Duty to Canadian citizens detained abroad - Khadr, a 17 year old Canadian citizen, was being detained by the U.S. government at Guantanamo Bay as a result of his alleged involvement with Al-Queda - Khadr's family brought an application to compel the government to extend consular and diplomatic services to Khadr - The notice of application alleged, inter alia, that s. 10 of the Department of Foreign Affairs and International Trade Act (DFAITA) imposed a duty on the Minister of Foreign Affairs to provide the requested services as a result of the doctrine of legitimate expectation - The Federal Court declined to strike that part of the notice of application - A persuasive case could be made that a legitimate expectation to consular services had been created - Section 10 of the DFAITA stated that the Minister "shall" conduct all diplomatic and consular relations on behalf of Canada - The publication "A Guide for Canadians Imprisoned Abroad" also stated that the government would "make every effort to ensure that" a Canadian detained abroad received "equitable treatment" - The expectation was arguably composed of both procedural and substantive elements - See paragraphs 19 to 25.

International Law - Topic 11

Duty to Canadian citizens detained abroad - Khadr, a 17 year old Canadian citizen, was being detained by the U.S. government at Guantanamo Bay as a result of his alleged involvement with Al-Queda - Khadr's family brought an application to compel the government to extend consular and diplomatic services to Khadr - They argued, inter alia, that in failing to provide those services, the Minister of Foreign Affairs breached his duties under s. 10 of the Department of Foreign Affairs and International Trade Act (DFAITA) - The applicants submitted that s. 10 imposed a duty on the Minister to provide the requested services by virtue of international law and principles - The Federal Court struck the portion of the notice of application which related to international instruments other than the Vienna Convention on Consular Relations (VCCR) - The applicants had made out an arguable case that s. 10 of the DFAITA should be interpreted with regard to the VCCR, to which Canada was a signatory - The applicants were also to have the opportunity to present evidence that an international custom had evolved with regard to the provision of certain consular services - See paragraphs 26 to 28.

International Law - Topic 11

Duty to Canadian citizens detained abroad - Khadr, a 17 year old Canadian citizen, was being detained by the U.S. government at Guantanamo Bay as a result of his alleged involvement with Al-Queda - Khadr's family brought an application to compel the government to extend consular and diplomatic services to Khadr - They argued, inter alia, that, in failing to provide those services, the Minister of Foreign Affairs infringed the Charter rights of Khadr and his family - The Federal Court struck those portions of the notice of application which alleged Charter violations - The applicants had not established a Charter violation, where they had not shown that a sufficient connection existed between the government's actions and the rights deprivation - The applicants failed to establish an arguable case that the Minister's decision was a necessary precondition to the deprivation, i.e., the current or future treatment of Khadr by the U.S. government - The Canadian government was not under a positive obligation pursuant to the Charter to address possible deprivations of Khadr's rights - See paragraphs 15 to 18.

Cases Noticed:

Truehope Nutritional Support Ltd. et al. v. Canada (Attorney General) et al. (2004), 25 F.T.R. 155 (F.C.), refd to. [para. 9].

NFC Canada Ltd. v. Canada (Attorney General), [1999] F.T.R. Uned. 203 (T.D.), refd to. [para. 11].

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48; 58 C.P.R.(3d) 209 (F.C.A.), refd to. [para. 13].

Pharmacia Inc. et al. v. Canada (Minister of National Health and Welfare) - see Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al.

Pfeiffer v. Superintendent of Bankruptcy et al. (2004), 322 N.R. 62 (F.C.A.), refd to. [para. 13].

Scheuneman v. Canada (Attorney General) (2003), 303 N.R. 359 (F.C.A.), refd to. [para. 13].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1, refd to. [para. 15].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 15].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, refd to. [para. 17].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104; 2001 SCC 41, refd to. [para. 23].

Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, [2002] E.W.J. No. 4947 (C.A.), refd to. [para. 24].

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, refd to. [para. 26].

LaGrand (Germany v. United States of America), [2001] I.C.J. 3 (Int. Ct. Just.), refd to. [para. 27].

Statutes Noticed:

Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22, sect. 10 [para. 19].

Counsel:

Nathan Whitling, for the applicants;

Dennis Edney, for the plaintiff in T-536-04;

Doreen Mueller and Robert Drummond, for the respondent.

Solicitors of Record:

Parlee McLaws LLP, Edmonton, Alberta, for the applicants;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This motion was heard at Edmonton, Alberta, on August 12, 2004, before von Finckenstein, J., of the Federal Court, who delivered the following decision on August 18, 2004.

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