Khadr v. Canada (Attorney General), (2006) 293 F.T.R. 58 (FC)

JudgePhelan, J.
CourtFederal Court (Canada)
Case DateJune 08, 2006
JurisdictionCanada (Federal)
Citations(2006), 293 F.T.R. 58 (FC);2006 FC 727

Khadr v. Can. (A.G.) (2006), 293 F.T.R. 58 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. JN.046

Abdurahman Khadr (applicant) v. Attorney General of Canada (respondent)

(T-937-04; 2006 FC 727)

Indexed As: Khadr v. Canada (Attorney General)

Federal Court

Phelan, J.

June 8, 2006.

Summary:

The Minister of Foreign Affairs exercised Crown prerogative and changed passport qualifications without notice such as to deny a passport to a qualified applicant, a Canadian citizen, for national security reasons (i.e., alleged Al Qaeda connections). According to the Canadian Passport Order issued by the Governor-in-Council and in effect at the time, the applicant was entitled to be issued a passport by the Passport Office. The Order was silent on issues of national security, but was subsequently amended to address this ground for denying a passport. The applicant applied for judicial review.

The Federal Court allowed the application and quashed the Minister's decision to refuse to issue the passport. Fairness dictated that the applicant was entitled to have his passport application processed by the Passport Office in accordance with the Passport Order as it stood at the time of the application. However, the court added that the Crown was entitled to take steps to revoke the passport on the grounds subsequently enumerated in the amended Canadian Passport Order, if such grounds existed.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - The Federal Court reiterated that in Canada the principle of legitimate expectations was part of the doctrine of fairness or natural justice and did not create substantive rights; rather, the principle was limited to the protection of procedural rights - See paragraphs 30 and 116.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - The Minister of Foreign Affairs exercised Crown prerogative to change passport qualifications without notice such as to deny a passport to a qualified applicant for national security reasons - According to the Canadian Passport Order issued by the Governor-in-Council and in effect at the time, the applicant was entitled to be issued a passport by the Passport Office - The Order was silent on issues of national security, but was subsequently amended to address this ground for denying a passport - The applicant applied for judicial review - Only well into the litigation, upon receipt of the Crown's material, was it revealed that the true decision-maker was the Minister rather than the Passport Office - The Federal Court held that the applicant had a legitimate expectation that his application would be dealt with by the Passport Office - The court stated that the Minister's decision was contrary to the fairness principle generally and to the legitimate expectation that the Minister directly and through officials of the Department created (i.e., that the Passport Office would deal with passport applications) - The applicant was entitled to have that legitimate expectation met - The court ordered that the applicant's passport be remitted to the Passport Office to be dealt with in accordance with the Passport Order as it was when the application was submitted - The court noted however that nothing in its reasons should be taken as preventing the Crown from immediately taking steps to revoke the passport on the grounds enumerated in the amended Canadian Passport Order, if such grounds existed - See paragraphs 4 and 98 to 134.

Administrative Law - Topic 3205

Judicial review - General - Royal or Crown prerogative - The Minister of Foreign Affairs exercised Crown prerogative to change passport qualifications such as to deny a passport to a qualified applicant for national security reasons - The applicant applied for judicial review - An issue arose respecting the jurisdiction of the court over the exercise of the Crown prerogative - The Federal Court held that this particular exercise of the Crown prerogative was subject to judicial review and the court had jurisdiction to conduct that review - The court stated that the refusal to issue a passport was justiciable, particularly where there were issues of Charter rights and questions of fairness and legitimate expectations as in this case - As to jurisdiction, the court interpreted s. 2(1) of the Federal Courts Act, holding that the exercise of the federal Crown prerogative as the source of the power in the area of justiciable matters was within the jurisdiction of the Federal Courts under s. 2(1) and specifically assigned to the Federal Court under s. 18 - See paragraphs 27 to 55.

Administrative Law - Topic 3205

Judicial review - General - Royal or Crown prerogative - The Minister of Foreign Affairs exercised Crown prerogative to change passport qualifications without notice such as to deny a passport to a qualified applicant for national security reasons - According to the Canadian Passport Order issued by the Governor-in-Council and in effect at the time, the applicant was entitled to be issued a passport by the Passport Office - The Order was silent on issues of national security, but was subsequently amended to address this ground for denying a passport - The applicant applied for judicial review - The Crown argued that the use of the word "may" in the Canadian Passport Order gave a wide discretion and as such a significantly reduced level of procedural fairness was warranted in respect of passport issuance and control - The Federal Court interpreted the word "may" as used in the order and stated that "S. 4, read together with ss. 9 and 10, mean that the Passport Office has the permission or authority of the Governor-in-Council to issue passports, and to refuse or revoke passports in accordance with the terms of the Order. No reasonable person reading this Order would conclude that if one otherwise complied with the terms of this Order, the Minister could, and on entirely new grounds, deny one a passport or indeed that the Passport Office could act likewise" - See paragraphs 103 to 112.

Administrative Law - Topic 3205

Judicial review - General - Royal or Crown prerogative - [See second Administrative Law - Topic 2267 and Civil Rights - Topic 589 ].

Civil Rights - Topic 589

Mobility rights - Violation - What constitutes - Passport requirements - The Minister of Foreign Affairs exercised Crown prerogative to change passport qualifications such as to deny a passport to a qualified applicant for national security reasons - The applicant applied for judicial review, alleging a breach of ss. 6 and 7 of the Charter - The Federal Court held that the applicant's rights could be sufficiently addressed under the doctrine of legitimate expectations (i.e., administrative law grounds), therefore, it was unnecessary to decide the case on Charter grounds - However, the court opined that access to a passport was a manifestation of the exercise of a s. 6 Charter right such that any exercise of power which impacted on that Charter value would be held to a high standard of fairness - The importance of a passport meant that the principle of fairness, of which legitimate expectation was one, had to be closely and rigorously adhered to - The court opined, noting in particular that the matter of choice to leave Canada was enshrined in s. 6 of the Charter, that it did not consider that the right to leave Canada constituted a s. 7 right to liberty - See paragraphs 62 to 78.

Civil Rights - Topic 787

Liberty - Particular rights - Right to leave the country (incl. passports) - [See Civil Rights - Topic 589 ].

Courts - Topic 102

Stare decisis - Authority of judicial decisions - English, American and foreign authorities - English decisions - The Federal Court stated that in Canada the principle of legitimate expectations was part of the doctrine of fairness or natural justice and did not create substantive rights; rather, the principle was limited to the protection of procedural rights - For this reason, the court could not fully follow the United Kingdom cases on the subject of passport issuance, because in the United Kingdom, the doctrine of legitimate expectations created substantive and procedural rights - See paragraphs 30 and 116.

Courts - Topic 4016

Federal Court of Canada - Jurisdiction - Federal Court - General - The Federal Court stated that in interpreting the jurisdiction of the Federal Court as set out in the Federal Courts Act one should take a fair and liberal approach to the words as would best achieve the objectives of the legislation - See paragraph 44.

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Federal Court - Relief against federal boards, commissions or tribunals - The Federal Courts Act, s. 2(1), provided, inter alia, that "federal board, commission or other tribunal" meant "any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867" - The Federal Court interpreted the underlined portion of s. 7 dealing with Crown prerogative - The court stated that "the provisions of the Federal Courts Act should be read purposefully to give effect to its objects and aims of the legislation, in this instance, subjecting the exercise of federal decision-making powers to this Court's supervisory jurisdiction. It is evident by the inclusion of a reference to the Crown Prerogative that Parliament intends the Federal Court to have jurisdiction over justiciable matters of the exercise of that prerogative" - See paragraphs 43 to 52.

Courts - Topic 4059.2

Federal Court of Canada - Jurisdiction - Federal Court - Review of exercise of Crown prerogative - [See first Administrative Law - Topic 3205 and Courts - Topic 4021 ].

Crown - Topic 2202

Crown privilege or prerogative - General - Statutory limitations and orders-in-council - [See second and third Crown - Topic 2213 ].

Crown - Topic 2213

Crown privilege or prerogative - Respecting passports - The Federal Court stated that there was no question that the source of power for the issuance of passports was the Royal Prerogative, both in the United Kingdom and Canada - See paragraph 80.

Crown - Topic 2213

Crown privilege or prerogative - Respecting passports - The applicant, a Canadian citizen, who qualified for a passport under the Canadian Passport Order was denied a passport - The Crown (i.e., the Minister of Foreign Affairs), for reasons of national security, upon recognizing that the applicant qualified for a passport, exercised its prerogative and without notice changed the qualifications thereby depriving the applicant of the passport - The applicant applied for judicial review, arguing that the Canadian Passport Order issued by the Governor-in-Council deprived the Minister of authority to exercise the Crown prerogative over passports - The Federal Court noted that while prerogative could only be abolished or exhausted by clear words in a statute or by necessary implication from words in a statute, there was no such statute in play in this case - The Canadian Passport Order, not being a statute, could not raise the necessary implication that the prerogative had been exhausted - However, while the prerogative might not have been exhausted and remained in place, that did not mean that the executive could exercise that prerogative in any manner it chose - The power was still subject to other legal norms including the Charter and the duty of fairness - See paragraphs 79 to 92.

Crown - Topic 2213

Crown privilege or prerogative - Respecting passports - The applicant, a Canadian citizen, who qualified for a passport under the Canadian Passport Order was denied a passport - The Crown (i.e., the Minister of Foreign Affairs), for reasons of national security, upon recognizing that the applicant qualified for a passport, exercised its prerogative and without notice changed the qualifications thereby depriving the applicant of the passport - The applicant applied for judicial review - An issue arose over whether the Minister could exercise the prerogative given that an Order-in-Council governed the administration of passports - The Federal Court noted that there was nothing in the Canadian Passport Order, other than it emanated from Cabinet, to suggest that the authority respecting passports was being transferred from the Department of External Affairs, where it was first transferred in 1909 - The prerogative could be exercised by either the Governor-in-Council or by the responsible minister (in this case the Minister of Foreign Affairs) - Therefore, to the extent that this prerogative could be exercised, the Minister still had the power to do so, but in a proper manner - See paragraphs 93 to 96.

Crown - Topic 2213

Crown privilege or prerogative - Respecting passports - [See second Administrative Law - Topic 2267 and second Administrative Law - Topic 3205 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Courts - Topic 4016 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See second Administrative Law - Topic 3205 ].

Words and Phrases

May - The Federal Court discussed the meaning of the word "may" as used in ss. 4(1) and 9 of the Canadian Passport Order, SI/81-86 - See paragraphs 102 to 112.

Cases Noticed:

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 28].

Council of Civil Service Unions et al., Re, [1985] 1 A.C. 374; 62 N.R. 336; [1984] 3 All E.R. 935; [1984] 3 W.L.R. 1174; [1985] I.C.R. 14 (H.L.), refd to. [para. 29].

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. 30].

Black v. Canada (Prime Minister) - see Black v. Chrétien et al.

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(3d) 215 (C.A.), disagreed with [paras. 31, 51].

Southam Inc. and Rusnell v. Canada (Attorney General) et al., [1990] 3 F.C. 465; 114 N.R. 255; 73 D.L.R.(4th) 289 (F.C.A.), refd to. [para. 45].

Tremblay v. Canada (Procureur général), [2004] 4 F.C.R. 165; 327 N.R. 160; 2004 FCA 172, refd to. [para. 46].

Canadian Human Rights Commission v. Canadian Liberty Net et al., [1998] 1 S.C.R. 626; 224 N.R. 241, refd to. [para. 47].

Schreiber v. Canada (Attorney General), [2000] 1 F.C. 427; 174 F.T.R. 221 (T.D.), refd to. [para. 50].

Copello v. Canada (Minister of Foreign Affairs) et al., [2002] 3 F.C. 24; 213 F.T.R. 272; 2001 FCT 1350, refd to. [para. 50].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 61].

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; 48 C.C.C.(3d) 193, refd to. [para. 66].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 73].

Ross River Dena Council Band et al. v. Canada et al., [2002] 2 S.C.R. 816; 289 N.R. 233; 168 B.C.A.C. 1; 275 W.A.C. 1, refd to. [para. 89].

Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127 (T.D.), refd to. [para. 92].

Canadian Pacific Railway Co. v. Vancouver (City) (2006), 345 N.R. 140; 221 B.C.A.C. 1; 364 W.A.C. 1; 2006 SCC 5, refd to. [para. 100].

R. v. S.S. - see R. v. Sheldon S.

R. v. Sheldon S., [1990] 2 S.C.R. 254; 110 N.R. 321; 41 O.A.C. 81, refd to. [para. 107].

Julius v. Lord Bishop of Oxford (1880), 5 App. Cas. 214 (H.L.), refd to. [para. 107].

Brown v. Metropolitan Authority et al. (1996), 150 N.S.R.(2d) 43; 436 A.P.R. 43 (C.A.), refd to. [para. 108].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 209 D.L.R.(4th) 564; 2002 SCC 13, refd to. [para. 116].

Brink's Canada Ltd. v. Canadian Human Rights Commission, [1996] 2 F.C. 113; 105 F.T.R. 215 (T.D.), refd to. [para. 124].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 130].

Statutes Noticed:

Canadian Passport Order, SI/81-86, sect. 4(1) [para. 103]; sect. 9 [para. 18]; sect. 10 [para. 103].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 2(1) [para. 36].

Counsel:

Clayton C. Ruby and Jai Dhar, for the applicant;

Peter Southey and Michael H. Morris, for the respondent.

Solicitors of Record:

Ruby and Edwardh, Toronto, Ontario, for the applicant;

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

This application was heard at Toronto, Ontario, on December 5 and 6, 2005, before Phelan, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on June 8, 2006.

To continue reading

Request your trial
31 practice notes
  • Oberlander c. Canada (Procureur général),
    • Canada
    • Federal Court (Canada)
    • September 27, 2018
    ...2 F.C.R. 312; Beltran v. Canada (Citizenship and Immigration), 2011 FC 516 , 204 A.C.W.S. (3d) 602; Khadr v. Canada (Attorney General), 2006 FC 727, [2007] 2 F.C.R. 218 .CONSIDERED:Oberlander v. Canada (Attorney General), 2016 FCA 52 , [2016] 4 F.C.R. 55 , leave to appeal to S.C.C. refu......
  • Kamel c. Canada (Procureur général) (C.F.),
    • Canada
    • Federal Court (Canada)
    • March 13, 2008
    ...Canada (Attorney General), [2007] 2 F.C.R.218; (2006), 268 D.L.R. (4th) 303; 54 Admin. L.R. (4th)188; 142 C.R.R. (2d) 116; 293 F.T.R. 58; 2006 FC 727;Vancouver Island Peace Society v. Canada, [1994] 1 F.C.102; (1993), 19 Admin. L.R. (2d) 91; 11 C.E.L.R. (N.S.)1; 64 F.T.R. 127 (T.D.); Operat......
  • Table of Cases
    • Canada
    • Irwin Books National Security Law. Second Edition Accountability
    • August 5, 2021
    ...575 Khadr v Canada (Attorney General) (2006), [2007] 2 FCR 218 , 268 DLR (4th) 303 , 2006 FC 727 ................................................................ 575 Khan v Canada (Minister of Citizenship and Immigration), [1996] 2 FC 316 , 110 FTR 81 , [1996] FCJ No 190 ...................
  • Table of cases
    • Canada
    • Irwin Books Immigration Law. Second Edition Part Four
    • June 19, 2015
    ...(1986), 5 FTR 150, [1986] FCJ No 501 (TD) ............................................................. 43 Khadr v Canada (AG), 2006 FC 727 .................................................................. 458 Khan v Canada (Minister of Citizenship and Immigration), 2005 FC 833 .................
  • Request a trial to view additional results
24 cases
  • Oberlander c. Canada (Procureur général),
    • Canada
    • Federal Court (Canada)
    • September 27, 2018
    ...2 F.C.R. 312; Beltran v. Canada (Citizenship and Immigration), 2011 FC 516 , 204 A.C.W.S. (3d) 602; Khadr v. Canada (Attorney General), 2006 FC 727, [2007] 2 F.C.R. 218 .CONSIDERED:Oberlander v. Canada (Attorney General), 2016 FCA 52 , [2016] 4 F.C.R. 55 , leave to appeal to S.C.C. refu......
  • Kamel c. Canada (Procureur général) (C.F.),
    • Canada
    • Federal Court (Canada)
    • March 13, 2008
    ...Canada (Attorney General), [2007] 2 F.C.R.218; (2006), 268 D.L.R. (4th) 303; 54 Admin. L.R. (4th)188; 142 C.R.R. (2d) 116; 293 F.T.R. 58; 2006 FC 727;Vancouver Island Peace Society v. Canada, [1994] 1 F.C.102; (1993), 19 Admin. L.R. (2d) 91; 11 C.E.L.R. (N.S.)1; 64 F.T.R. 127 (T.D.); Operat......
  • Hupacasath First Nation v. Canada (Minister of Foreign Affairs) et al., (2015) 469 N.R. 258 (FCA)
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • June 10, 2014
    ... [2004] 4 F.C. 165 ; 327 N.R. 160 ; 2004 FCA 172 , refd to. [para. 52]. Khadr v. Canada (Attorney General), [2007] 2 F.C. 218 ; 293 F.T.R. 58; 2006 FC 727 , refd to. [para. 55]. Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44 ; 397 N.R. 294 ; 2010 SCC 3 , consd. [para. 60].......
  • Hassouna c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • May 10, 2017
    ...Ct.); Canada (Secretary of State) v. Luitjens (1992), 9 C.R.R. (2d) 149 , 142 N.R. 173 (F.C.A.); Khadr v. Canada (Attorney General), 2006 FC 727, [2007] 2 F.C.R. 218 ; Canada (Citizenship and Immigration) v. Houchaine, 2014 FC 342 , 25 Imm. L.R. (4th) 109 ; Montoya v. Canada (Attorney......
  • Request a trial to view additional results
7 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books National Security Law. Second Edition Accountability
    • August 5, 2021
    ...575 Khadr v Canada (Attorney General) (2006), [2007] 2 FCR 218 , 268 DLR (4th) 303 , 2006 FC 727 ................................................................ 575 Khan v Canada (Minister of Citizenship and Immigration), [1996] 2 FC 316 , 110 FTR 81 , [1996] FCJ No 190 ...................
  • Table of cases
    • Canada
    • Irwin Books Immigration Law. Second Edition Part Four
    • June 19, 2015
    ...(1986), 5 FTR 150, [1986] FCJ No 501 (TD) ............................................................. 43 Khadr v Canada (AG), 2006 FC 727 .................................................................. 458 Khan v Canada (Minister of Citizenship and Immigration), 2005 FC 833 .................
  • The Federal Courts and National Security and Intelligence Law
    • Canada
    • Irwin Books The Federal Court of Appeal and the Federal Court. 50 Years of History
    • October 4, 2021
    ...79 Ibid , s 4. 80 Ibid , ss 9–10. 81 Ibid , s 10.1. 82 Khadr v Canada (Attorney General) , 2004 FC 1719 . See also Khadr v Canada , 2006 FC 727. 83 Senate of Canada, Standing Committee on National Security and Defence, Evidence , 2nd Sess, 41st Parl ( 28 May 2015 ) (John Davies, Director G......
  • Judicial and Quasi-judicial Control and Scrutiny
    • Canada
    • Irwin Books Fundamentals of National Security Accountability in Canada
    • Invalid date
    ...80 81 82 83 84 Ibid, s 4. Ibid, ss 9–10. Ibid, s 10.1. Khadr v Canada (Attorney General), 2004 FC 1719. See also Khadr v Canada, 2006 FC 727. Senate, Standing Committee on National Security and Defence, Evidence, 41-2, No 18 (28 May 2015) (John Davies), online: 138 | Fundamentals of Nationa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT