Digests

Khadr v. Canada (Minister of Foreign Affairs)

T-686-04

2004 FC 1145, von Finckenstein J.

18/8/04

15 pp.

Omar Khadr is 17-year-old Canadian detained at Camp Delta in Guantanamo Bay by U.S.A. as allegedly involved with Al-Qaida in Afghanistan--Applicants say Khadr has been regularly interrogated, not brought before a tribunal, denied access to lawyer, consular officials--Said to now face hearing by military tribunal, could be sentenced to death for events occurring when he was 15--Khadr's family brought application in F.C. for order to compel Canadian government to extend to him diplomatic, consular services--Arguing failure to do so contrary to Department of Foreign Affairs and International Trade Act (DFAITA), infringed Charter rights-- Also alleging Canadian government agents interviewed Khadr in Guantanamo Bay, gave information gained thereby to American officials--Minister now moves to strike notice of application for contravention of Federal Court Rules, 1998, r. 302, as abuse of process as application similar to statement of claim in related action claiming damages in respect of interviews and as disclosing no cause of action--Relief sought in application: (1) mandamus for provision of consular services; (2) order prohibiting Canadian officials from interviewing Khadr and declaration of Charter violation by past interviews--Relief (2) same remedy sought in related action--Contrary to r. 302 to challenge two decisions in one application unless decisions continuing course of conduct: Truehope Nutritional Support Ltd. v. Canada (Attorney General) (2004), 251 F.T.R. 155 (F.C.)--First series of decisions challenged is failure to furnish consular services-- Second series: interviews of Khadr by Canadian officials-- Two sets of decisions were made at different times, had different focus so did not form part of continuing course of conduct--Notice of application would contravene r. 302 if not amended--Also abuse of process to seek same relief in parallel proceedings--Proper administration of justice, efficient use of judicial resources demands portions of notice of application relating to interviews be struck--Will ensure application addresses just one decision, avoids duplicity as all interrogation-related issues will be addressed in action, other matters in application--As for alleged Charter violation, applicants not establishing arguable case Minister's decision is "necessary precondition" (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3) to current, future treatment of Omar Khadr by American Government-- No evidence his situation same as that of other Camp Delta detainees released following intervention of U.K., French, Afghanistan governments--Not an "entirely foreseeable consequence" (Suresh) Canadian government intervention would yield same results--Charter, s. 7 restricts state's ability to deprive people of life, liberty, security, does not impose positive duty on state to ensure people enjoy these rights: Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429 --Contrary to situation in United States v. Burns, [2001] 1 S.C.R. 283, Khadr never in custody of Canadian officials so reasoning in Gosselin applicable herein--Applicants not meeting "sufficient connection" test in Burns, Suresh-- Portions of notice of application concerning Charter violations struck--Applicants rely on DFAITA, s. 10: "In exercising his powers and carrying out his duties and functions under this Act, the Minister shall (a) conduct all diplomatic and consular relations on behalf of Canada"--Says this imposes duty on Minister to supply services Khadr requested under doctrine of legitimate expectation or international law--Publication "A Guide for Canadians Imprisoned Abroad" states government will "make every effort to ensure that" Canadians detained abroad receive "equitable treatment"--Says consular officials to facilitate communication between detainee, lawyer--Gives list of additional services provided--Persuasive case DFAITA, Guide create legitimate expectation Canadian citizen detained abroad will be furnished many of services requested by Khadr--Expectation herein composed of both procedural, substantive elements--In Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, majority silent on question whether there may be expectation of certain substantive outcomes--Binnie J., dissenting, noted procedural/substantive distinction removed in England, Australia--In U.K. case, Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, [2002] E.W.J. No. 4947 (C.A.), Court found legitimate expectation of consular service resulting from prior government actions, statements--Logic of that decision applicable to case at bar--Arguable case made out s. 10 to be interpreted with regard to Vienna Convention on Consular Relations (VCCR), to which Canada is signatory--Statutes to be construed so as to comply with Canada's international obligations--International Court of Justice decision in LaGrand (Germany v. United States of America), [2001] I.C.J. 3 held VCCR does create individual rights to services requested by applicants herein--Applicants should have chance to adduce evidence international custom has evolved as to provision of consular services--Court not prepared to strike application as not disclosing cause of action-- Applicants directed to submit draft order, changing notice of application in accordance with this decision--Department of Foreign Affairs and International Trade Act, R.S.C., 1985, c. E-22, ss. 1 (as am. by S.C. 1995, c. 5, s. 2), 10 (as am. idem, s. 7)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7--Federal Court Rules, 1998, SOR/98-106, r. 302--Vienna Convention on Consular Relations, March 19, 1967, 596 U.N.T.S. 261.