Khadr v. Canada (Minister of Foreign Affairs), 2004 FC 1145

Date: 20040818

Docket: T-686-04

Citation: 2004 FC 1145

Toronto, Ontario, August 18^th, 2004

Present:           The Honourable Mr. Justice von Finckenstein                                

BETWEEN:               

                                                        OMAR AHMED KHADR

by his Next Friend FATMAH ELSAMNAH,

FATMAH ELSAMNAH, MUHAMMED ELSAMNAH, and

ABDURHAMAN KHADR

                                                                                                                                           Applicants

                                                                           and

                                          THE MINISTER OF FOREIGN AFFAIRS

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                 These reasons arise from a motion brought by the Respondent for an order striking in whole or in part the Notice of Application in T-686-04.    

BACKGROUND

[2]                 Omar Khadr is a 17 year-old Canadian citizen who has been detained since 2002 by the US government as a result of his alleged involvement with Al-Queda forces in Afghanistan. He is currently being held at Camp Delta in Guantanamo Bay.

[3]                During his detention, the Applicants submit that Omar Khadr has been regularly interrogated, has not been brought before an independent tribunal and has been denied access to consular officials, to counsel and to his family. It is submitted that he now faces proceedings before a military tribunal as a result of which he may be sentenced to death for events that occurred when he was 15 years old.

[4]                Application T-686-04 has been brought by Omar Khadr's family in order to compel the government to extend consular and diplomatic services to him. It is argued that, in failing to provide these services, the Minister has acted contrary to the Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22 (DFAITA) and has infringed the rights of Omar Khadr and his family under the Canadian Charter of Rights and Freedoms (Charter).    

[5]                The Applicants also allege that, on at least two occasions, Canadian government agents interviewed Omar Khadr in Guantanamo Bay and provided information obtained therefrom to US officials.    Various forms of relief are sought with regards to the interviews, including a declaration of Charter violation. In a related action, T-536-04, similar relief, in addition to monetary damages, is sought with regards to the interviews.

[6]                 In this motion, the Respondent seeks an Order striking the Notice of Application on the basis that it contravenes Rule 302 of the Federal Court Rules, 1998, (S.O.R./98-106), constitutes an abuse of process due to its similarity to the Statement of Claim in T-536-04 and discloses no cause of action. The Respondent has indicated that a similar motion will be brought at the end of month with regards to action T-536-04.

ISSUES

1.          Should the Notice of Application be struck in whole or in part because it has been brought in contravention of the Rules or constitutes an abuse of process?

2.          Should the Notice of Application be struck in whole or in part because it discloses no cause of action?

ANALYSIS

Issue 1: Should the Notice of Application be struck in whole or in part because it has been brought in contravention of the Rules or constitutes an abuse of process ?

[7]                In T-686-04, the Applicants are seeking two types of relief:

1.          an order or orders of mandamus that the Minister provide Omar Khadr with the consular services set out in a Ministerial publication entitled 'A Guide for Canadians Imprisoned Abroad' (the Minister, in letters dated June 3^rd, 2004, merely indicated that representations to US officials regarding Mr. Khadr's treatment are being made) and;

2.          an order or orders prohibiting the Minister or officials acting on his behalf from interviewing Omar Khadr in Guantanamo Bay (it being submitted that such interviews breach his Charter rights) and a declaration of Charter violation with regards to past interviews.

[8]                With regards to the second type of relief, the Applicants seek substantially the same remedies in this application as are sought in the Statement of Claim for T-536-04, namely a declaration of Charter violation and an injunction prohibiting the Respondent from assisting the Government of the United States in any future prosecution of Omar Khadr.

[9]                There are two reasons that application T-686-04 and action T-536-04 cannot proceed on this basis. First, it is a contravention of Rule 302 for an applicant to challenge two decisions within one application unless it can be shown that the decisions formed part of a "continuing course of conduct" (Truehope Nutritional Support Ltd. v. Canada (Attorney General), [2004] F.C.J. No. 806). In this case, the first series of decisions challenged by the Applicants relate to the Minister's failure to provide Omar Khadr with the consular services set out in "A Guide for Canadians Imprisoned Abroad." These decisions focus upon ongoing ways in which the US government might be engaged in relation to Mr. Khadr's situation. The second series of decisions challenged by the Applicants relate to interviews of Omar Khadr in Guantanamo Bay by officials of the Canadian government. These decisions focus upon actions which Mr. Khadr may have taken and information which he may have.

[10]            As the two sets of decisions were made at different times and involve a different focus they cannot be said to form part of a "continuing course of conduct." Therefore, the Notice of Application would contravene Rule 302 if it was not amended.

[11]            Secondly, it constitutes an abuse of process for an applicant to challenge the same decision and to seek the same relief in parallel proceedings. As stated by Lutfy, now C.J., in NFC Canada Ltd. v. Canada (Attorney General), [1999] F.C.J. No. 454 at para. 22:

There is substantial overlap between the factual issues. This will result in duplication of the evidence in both proceedings. The possible of conflicting decisions....is to be avoided.

In this case, a duplicity of proceedings would result if the Applicants were allowed to challenge the Minister's decision regarding the interviews within both the Action and Application.

[12]            Given the above, the proper administration of justice and the most efficient use of judicial resources requires that those portions of the Notice of Application which relate to the interviews be struck. This will ensure that, pursuant to Rule 302, the application addresses only one decision. Further, it avoids duplicity by ensuring that all issues related to the interrogation are addressed within the same proceeding. Accordingly, all matters related to the interrogation will hereafter be addressed in Action T-536-04 and all other matters will be addressed in the Application T-686-04.

Issue 2. Should this Notice of Application be struck in whole or in part because it discloses no cause of action?

[13]            A Notice of Application may be dismissed summarily where it is so clearly improper as to be bereft of any possibility of success (David Bull Laboratories Can. (Inc.) v. Pharmacia Inc. (1994) 58 C.P.R. (3d) 209 (C.A.)). However, such circumstances will be exceptional as the Court must be satisfied based upon the motion record that the Application is bound to fail (Pfeiffer v. Canada (Superintendent of Bankruptcy), [2004] F.C.J. No. 902 (C.A.); Scheuneman v. Canada (Attorney General), [2003]_F.C.J. No. 686 (C.A.)).

[14]            In this Application, the Applicants are advancing two arguments:

1.          that the Minister's failure to provide the requested services constitutes a violation of the Charter rights of Omar Khadr and his family, and

2.          that the Minister's decision not to provide the services constitutes a breach of his duties under section 10 of the DFAITA.

The Respondent submits that neither argument discloses a valid cause of action.

The Charter

[15]            In order to establish a Charter violation, it must be shown that a "sufficient connection" exists between the government's actions and the rights deprivation (United States of America v. Burns, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3). As stated in Suresh at para. 54:

....where Canada's participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada's participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else's hand (underlining added).   

[16]            In this case, the Applicants have failed to establish an arguable case that the Minister's decision is a "necessary precondition" to the current or future treatment of Omar Khadr by the Government of the United States. Specifically, the Applicants have failed to provide this Court with any evidence that Omar Khadr's circumstances are similar to those of other detainees who have been released from Camp Delta or that diplomatic actions by the Canadian government would lead to the same result as those taken by foreign governments such as that of the United Kingdom, France and Afghanistan. It is not, therefore, an "entirely foreseeable consequence" that interventions by Canada will provide the same results as those by the United Kingdom, France and Afghanistan.

[17]            In addition, I am cognizant of the Supreme Court's judgment in Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, in which it was found at para. 81 that:

Nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state's ability to deprive people of these.

Unlike in Burns, Omar Khadr is not nor has he ever been in the custody of Canadian officials. Accordingly, the reasoning set out in Gosselin is applicable to the facts of this case and the Canadian government is not under a "positive obligation" pursuant to the Charter to address possible deprivations of his rights.

[18]            For the above reasons and given that the Applicants cannot meet the "sufficient connection" test set out in Burns and Suresh, I fail to see how they can successfully argue that there has been a Charter violation. Therefore, those portions of the Notice of Application which relate to Charter allegations are hereby struck.

The DFAITA

[19]            Section 10 of DFAITA states:

The Applicants submit that this section should be interpreted as imposing a duty on the Minister to provide the services which Omar Khadr has requested either as a result of the doctrine of legitimate expectation, or by virtue of existing international law and principles.

Legitimate Expectation

[20]            With regards to the first ground advanced by the Applicants, the language of the DFAITA is quite straightforward.    It states that the Minister shall conduct all diplomatic and consular relations on behalf of Canada. There is clearly an obligation to carry out these functions and not merely an authorization to do so.

[21]            The publication "A Guide for Canadians Imprisoned Abroad" reflects this state of affairs. It asserts that the government will "make every effort to ensure that" a Canadian detained abroad receives "equitable treatment" including ensuring that he or she is not penalized for being a Canadian. In addition, it states:

¼.Consular officials will facilitate communication between you, or someone you designate, and your lawyer¼.

The range of services provided by Canadian consular officials varies from case to case and from country to country. Services appropriate to your case and situation will be discussed with you and/or those you designate. At your request, officials can:

·                Notify your family or friends of your situation and let them know whether-and how-they can help;

·               help you communicate with your representative, family or friends;

·                seek to ensure equitable treatment under local laws upon your arrest or detention, consistent with the standards of the host country;

·                obtain information about the status of your case and encourage authorities to process the case without undue delay;

·                provide you, your representative or family with information on the local judicial and prison systems, approximate times for court action, typical sentences in relation to the alleged offence and bail provisions;

·               make every effort to ensure that you receive adequate nutrition, and medical and dental care;

·               arrange for the purchase, at your expense and if permitted, of necessary food supplements, essential clothing and other basic items not available through the prison system;

·               deliver mail and provide permitted reading material if normal postal services are unavailable;

·               convey messages to you if telephone or postal services are unavailable or impractical;

·                contact relatives or friends on your behalf and ask them to send you funds as required;

·               facilitate the transfer of funds to you if other means are unreliable or unavailable (fees apply);

·               and attempt to locate missing personal property.

In addition to making a commitment with regards to future action, the language of the Guide suggests that it has, in fact, been the Minister's practice to provide these services to most overseas detainees in the past.

[22]            Based upon the foregoing, there is a persuasive case that both the DFAITA and the Guide create a legitimate and reasonable expectation that a Canadian citizen detained abroad will receive many of the services which Omar Khadr has requested. Indeed, Canadians abroad would be surprised, if not shocked, to learn that the provision of consular services in an individual case is left to the complete and unreviewable discretion of the Minister.

[23]            With regards to the foregoing, I note that the expectation in this case is arguably composed of both procedural and substantive elements. This type of expectation has been subject to significant judicial commentary in recent years. The Respondent submitted that prior jurisprudence has held that the doctrine of legitimate expectation can only compel procedural rather than substantive outcomes. However, it is notable that the majority of the Supreme Court was silent on whether there may be an expectation to certain substantive outcomes in Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281. Further, Binnie J. writing in dissent in the Mount Sinai case, noted that the procedural/ substantive distinction had been removed in England, Australia and other jurisdictions. At para. 35 he concluded:

In affirming that the doctrine of legitimate expectations is limited to procedural relief, it must be acknowledged that in some cases it is difficult to distinguish the procedural from the substantive. In Bendahmane v. Canada, supra, for example, a majority of the Federal Court of Appeal considered the applicant's claim to the benefit of a refugee backlog reduction program to be procedural (p.33) whereas the dissenting judge considered the claimed relief to be substantive (p.25). A similarly close call was made in Canada (Attorney General) v. Canada (Commission f the Inquiry on the Blood System), [1996] 3 F.C. 259 (T.D.). An undue focus on formal classification and categorization of powers at the expense of broad principles flexibly applied may do a disservice here. (underlining added)

[24]            The situation in this case is not unlike the UK case of Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, [2002]_E.W.J. No. 4947 (C.A.), in which the Court of Appeal for England and Wales found that a legitimate expectation to some form of consular service had been created as a result of previous actions and statements by the British government. The logic of that case would appear to equally apply to the situation at hand.   

[25]            Accordingly, I am of the view that a persuasive case can be made that a legitimate expectation to consular services has been created through the DFAITA, the Guide and on the basis of the jurisprudence cited.

International Law

[26]            Having found that a persuasive case for a legitimate expectation can be built on the basis of the Guide, I do not need to pursue the Applicants' other arguments related to section 10 of the DFAITA. Nonetheless, I note that the Applicants have made out an arguable case that section 10 should be interpreted with regard to the Vienna Convention on Consular Relations, U.N.T.S. Nos. 8638-8640, vol. 596, pp. 262-512 (VCCR), to which Canada is a signatory.    As recently found by McLaughlin C.J. in in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 at para. 31:

Within this limited area of application, further precision on what is reasonable under the circumstances may be derived from international treaty obligations. Statutes should be construed to comply with Canada's international obligations: Ordon [page101] Estate v. Grail, 1. [1998] 3 S.C.R. 437, at para. 137¼. (underlining added)

[27]            Specifically, the International Court of Justice's decision in LaGrand (Germany v. United States of America), [2001]_ I.C.J. 3 (27 June 2001) states that the VCCR does create individual rights to the services requested by the Applicants in this case. The Applicants should also have the opportunity to present evidence that an international custom has also evolved with regards to the provision of certain consular services.    

[28]            I have not been persuaded that the same conclusion can be reached for the Applicants' arguments with regards to the Convention on the Rights of the Child, U.N.G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) 169 and the International Covenant on Civil and Political Rights, U.N.G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) 49. I am unable to conclude that either of these instruments provides relevant principles with regards to the specific consular and other services which the Applicants are seeking in this case.

CONCLUSION

[29]            Given my findings with regards to reasonable and legitimate expectations, I find that the application displays a possible cause of action that the decision of the Minister not to provide the appropriate services (required under the circumstances) set out in the Guide may constitute a breach of his duties under section 10 of the DFAITA. I also find that the Minister's duties under section 10 should be interpreted with regard to the VCCR, international jurisprudence and custom. As a result, I am not prepared to strike this application for failure to disclose a cause of action.

                                               ORDER

THIS COURT ORDERS that

1.          Those portions of the Notice of Application which relate to the interview of Omar Khadr and which allege Charter violations as a result of the Minister's failure to provide consular and other services to Omar Khadr are struck;

2.          This Notice of Application as it relates to the Applicants' allegations under section 10 of the Department of Foreign Affairs and International Trade Act will be continued except for the allegations related to international instruments other than the Vienna Convention on Consular Relations; and

3.          The Applicants are directed to submit a draft order to this Court no later than August 26^th, 2004, making appropriate changes to the Notice of Application in accordance with this decision.

"K. von Finckenstein"                                                                                               

                                                                                                  J.F.C.                          

FEDERAL COURT

Name of Counsel and Solicitors of Record

DOCKET:                                           T-686-04

STYLE OF CAUSE:               OMAR AHMED KHADR

by his Next Friend FATMAH ELSAMNAH,

FATMAH ELSAMNAH, MUHAMMED ELSAMNAH, and ABDURHAMAN KHADR

                                                                                            Applicants

and

THE MINISTER OF FOREIGN AFFAIRS

                                                                                       Respondent

DATE OF HEARING:                       AUGUST 12, 2004

PLACE OF HEARING:                     EDMONTON, ALBERTA

REASONS FOR ORDER

AND ORDER BY:                             VON FINCKENSTEIN J.

DATED:                                              AUGUST 18, 2004

APPEARANCES BY:

Mr. Nathan Whitling

FOR THE APPLICANTS

Mr. Dennis Edney

FOR THE PLAINTIFF IN T-536-04

Ms. Doreen Mueller, and

Mr. Robert Drummond

FOR THE RESPONDENT

Page: 2

SOLICITORS OF RECORD:

Parlee McLaws LLP                   

Barristers & Solicitors

Edmonton, Alberta

FOR THE APPLICANTS    

Morris Rosenberg                                                         

Deputy Attorney General of Canada

FOR THE RESPONDENT

             FEDERAL COURT

                                  Date: 20040818

                               Docket: T-686-04

BETWEEN:

OMAR AHMED KHADR

by his Next Friend FATMAH ELSAMNAH,

FATMAH ELSAMNAH, MUHAMMED ELSAMNAH, and ABDURHAMAN KHADR

                                           Applicants

and

THE MINISTER OF FOREIGN AFFAIRS

                                     Respondent

REASONS FOR ORDER AND ORDER