Date: 20071105
Docket: T-324-07
Citation: 2007 FC 1147
Ottawa, Ontario, November 5,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
AMNESTY INTERNATIONAL CANADA and
BRITISH
COLUMBIA CIVIL LIBERTIES ASSOCIATION
Applicants
and
CHIEF OF THE DEFENCE STAFF
FOR THE CANADIAN FORCES,
MINISTER OF NATIONAL DEFENCE and
ATTORNEY
GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Amnesty
International Canada and the British Columbia Civil Liberties Association (“the
applicants”) have brought an application for judicial review with respect to
“actions or potential actions” of the Canadian Forces deployed in the Islamic
Republic of Afghanistan. Specifically, the application seeks to review the
conduct of the Canadian Forces with respect to detainees held by the Canadian
Forces in Afghanistan, and the
transfer of these individuals to Afghan authorities.
[2]
The
Chief of the Defence Staff for the Canadian Forces, the Minister of National
Defence and the Attorney General of Canada (“the respondents”) now seek an
order striking the applicants’ Notice of Application. The respondents assert
that the applicants do not have standing to advance the issues identified in
the Notice of Application. The respondents further contend that the application
is bereft of any chance of success.
[3]
For
the reasons that follow, I am satisfied that the applicants should be granted
public interest standing in this case. I am further satisfied that while a
number of the issues raised by this case are novel, I cannot say that they are
clearly bereft of any chance of success. As a consequence, the motion to strike
will be dismissed.
Background
[4]
There
is an issue as to the extent to which evidence may be led on a motion such as
this. While I will discuss this question further on in this decision, I do not
understand there to be any dispute between the parties as to the following
background facts relating to this application for judicial review.
[5]
Canadian
Forces personnel are currently deployed in Afghanistan, both as
part of the multi-national International Security and Assistance Force
(“ISAF”), and as part of the American-led “Operation Enduring Freedom” (“OEF”).
[6]
On
December 19, 2005, the Afghan Minister of Defence and the Chief of the Defence
Staff for the Canadian Forces, General Rick Hillier, signed an agreement
entitled “Arrangement for the Transfer of Detainees between the Canadian
Forces and the Ministry of Defence of the Islamic Republic of Afghanistan”
(the “first Arrangement”). The first Arrangement was meant to establish
procedures to be followed in the event that a detainee was transferred from the
custody of the Canadian Forces to a detention facility operated by Afghan
authorities.
[7]
On
February 1, 2007, the applicants filed a Notice of Application for Judicial
Review “in respect of actions or potential actions of Canadian Forces deployed
in the Islamic Republic of Afghanistan.” Amongst other relief requested in the
Notice of Application, the applicants sought to prohibit further transfers of
detainees until adequate safeguards were put in place. To this end, the
applicants also sought an interim injunction restraining the transfer of
detainees until the hearing of the application for judicial review.
[8]
On
May 3, 2007, the day before the applicants’ motion for an interim injunction
was to be heard, Canada and Afghanistan concluded a second
Arrangement governing the transfer of detainees held by the Canadian Forces
(the “second Arrangement”). This Arrangement states that it supplements the
first arrangement, which continues to remain in effect.
[9]
The
second Arrangement provides that members of the Afghanistan Independent Human
Rights Commission and Canadian Government personnel have access to persons
transferred from Canadian to Afghan custody. The second Arrangement also
requires that approval be given by Canadian officials before any detainee who
had previously been transferred from Canadian to Afghan custody is transferred
on to a third country.
[10]
As
a result of the negotiation of the second Arrangement, the applicants’ motion
for an interim injunction was adjourned sine die.
[11]
In
the meantime, the respondents had filed their motion to strike out the
applicants’ Notice of Application. It is this motion that forms the subject
matter of this decision.
The Notice of
Application
[12]
In
order to address the respondents’ motion to strike, it is first necessary to
understand the facts asserted in, as well as the issues raised by the
applicants’ Notice of Application.
[13]
The
Notice of Application asserts that the first Arrangement does not provide
adequate safeguards to ensure that detainees transferred by Canadian Forces to
Afghan Forces will not be tortured by the Afghan authorities.
[14]
The
Notice of Application further asserts that there are substantial grounds to believe
that Afghan Forces are torturing detainees, and that the United
States of America - “a likely third country to which detainees may be
transferred” - is engaging in “cruel, degrading and inhuman treatment of
detainees”, contrary to the assurances that the American government has given
to other governments.
[15]
Finally,
the Notice of Application states that the Canadian Forces continue to capture
and detain individuals in Afghanistan, and to transfer these
individuals into the custody of Afghan authorities, without providing the
detainees with access to counsel before being transferred out of Canadian
custody.
[16]
According
to the Notice of Application, Canada’s international obligations, including the
Convention Against Torture, and the Body of Principles for the
Protection of All Persons Under any Form of Detention or Imprisonment
obligate Canada to protect
individuals from torture and other forms of cruel, degrading and inhuman
treatment.
[17]
By
way of relief, the applicants seek a declaration that the first Arrangement
violates sections 7 and 12 of the Canadian Charter of Rights and Freedoms,
as it provides for the transfer of detainees to the custody of other countries
without adequate substantive and procedural safeguards against a substantial
risk of torture.
[18]
The
applicants further ask for a writ of prohibition preventing further transfers
of detainees to the custody of other countries without the creation of adequate
substantive and procedural safeguards to protect against the risk of torture. The
applicants also seek a writ of mandamus requiring that a formal inquiry
be held into the condition of all detainees transferred from Canadian custody,
and that all detaining countries return the individuals in question to the
custody of Canada.
[19]
As
grounds for the Application, the applicants assert, amongst other things, that
the Canadian Charter of Rights and Freedoms applies to the actions of
the Canadian Forces in Afghanistan.
[20]
The
applicants further state that individuals detained by the Canadian Forces have
the right to counsel pursuant to subsection 10(b) of the Charter. In
addition, the applicants say that sections 7 and 12 of the Charter
mandate that the Canadian Forces may not take actions that place individuals at
risk of torture or death.
[21]
Finally,
the applicants seek relief under subsection 24(1) of the Charter and
section 18.1 of the Federal Courts Act.
Legal Principles
Governing Motions to Strike
[22]
Applications
for judicial review are intended to be summary proceedings, and motions to
strike Notices of Application add greatly to the cost and time required to deal
with such matters.
[23]
Moreover,
as the Federal Court of Appeal observed in David Bull Laboratories (Canada)
Inc. v. Pharmacia Inc., [1994] F.C.J. No. 1629, the striking out process is
more feasible in actions than in applications for judicial review. This is
because there are numerous rules governing actions which require precise
pleadings as to the nature of the claim or the defence, and the facts upon
which the claim is based. There are no comparable rules governing Notices of
Application for Judicial Review.
[24]
As
a consequence, the Federal Court of Appeal has observed that it is far more
risky for a court to strike out a Notice of Application for Judicial Review
than a conventional pleading. Moreover, different economic considerations come
into play in relation to applications for judicial review as opposed to
actions. That is, applications for judicial review do not involve examinations
for discovery and a trial - matters which can be avoided in actions by a
decision to strike: David Bull, at ¶10.
[25]
In
contrast, the full hearing of an Application for Judicial Review proceeds in
much the same way that a motion to strike the Notice of Application would
proceed, namely on the basis of affidavit evidence and argument before a judge
of this Court.
[26]
As
a result, the Federal Court of Appeal determined that applications for judicial
review should not be struck out prior to a hearing on the merits of the
application, unless the application is “so clearly improper as to be bereft of
any possibility of success”.
[27]
The
Federal Court of Appeal further teaches that “Such cases must be very
exceptional and cannot include cases ... where there is simply a debatable
issue as to the adequacy of the allegations in the notice of motion”: David
Bull, at ¶15.
[28]
Unless
a moving party can meet this very stringent standard, the “direct and proper
way to contest an originating notice of motion which the respondent thinks to
be without merit is to appear and argue at the hearing of the motion itself.” (David
Bull, at ¶10. See also Addison & Leyen Ltd. v. Canada, [2006]
F.C.J. No. 489, 2006 FCA 107, at ¶5, rev’d on other grounds [2007] S.C.J. No.
33, 2007 SCC 33).
[29]
The
reason why the test is so strict is that it is ordinarily more efficient for
the Court to deal with a preliminary argument at the hearing of the application
for judicial review itself, rather than as a preliminary motion: see the
comments of the Federal Court of Appeal in Addison & Leyen, at ¶5.
[30]
By
analogy to the process prescribed in the Federal Courts Rules with
respect to the striking out of statements of claim, as a general rule, no
evidence may be led on a motion to strike a Notice of Application. In
addition, the facts asserted by the applicant in the Notice of Application must
be presumed to be true: Addison & Leyen Ltd. et al., above, at ¶6.
[31]
However,
the Court is not obliged to accept as true allegations that are based upon
assumptions and speculation. Nor is the Court obliged to accept as true
allegations that are incapable of proof: see Operation Dismantle Inc. v. R.,
[1985] 1 S.C.R. 441, at ¶27.
[32]
There
is an exception to the general principle that no evidence may be led on a
motion such as this. That is, where the jurisdiction of the Court is
contested, the Court must be satisfied that there are jurisdictional facts or
allegations of such facts supporting the attribution of jurisdiction: see MIL
Davie Inc. v. Hibernia Management & Development Co. (1998), 226 N.R.
369.
[33]
Finally,
in deciding whether an Application for Judicial Review should be struck as
bereft of any possibility of success, the Notice of Application should be read
as generously as possible, in a manner that accommodates any inadequacies in
the allegations that are merely the result of deficiencies in the drafting of
the document: see Operation Dismantle, at ¶14.
Standing
[34]
The
first reason why the respondents say that the applicants’ Notice of Application
should be struck out is that the applicants lack the requisite standing to
bring the application.
[35]
The
applicants and the respondents agree that there is sufficient information
before the Court to allow for a final determination on the issue of standing to
be made, and both sides ask that such a determination be made at this time.
The parties also agree that while the burden of demonstrating that the
applicants lack standing is on the respondents on a motion to strike, it is the
applicants who bear the ultimate burden of demonstrating that they are entitled
to standing.
[36]
In
Finlay v. Canada (Minister of Finance), [1986] 2
S.C.R. 607, the Supreme Court of Canada considered whether the issue of
standing could be decided in the context of a motion to strike. In this
regard, the Supreme Court observed that it may be preferable to have all the
issues in a case, including questions of standing, decided at the same time.
That said, the Court went on to note that it is a matter of judicial
discretion, having regard to the particular circumstances of a case, whether
the question of standing should be determined with final effect as a
preliminary matter, or to reserve it for consideration on the merits: Finlay,
at page 616.
[37]
In
this case, I am satisfied that the record before me is sufficient to allow me
to make a final determination in relation to the issue of standing, and that it
is in the interests of justice that I do so.
[38]
Subsection
18.1(1) of the Federal Courts Act allows for an application for judicial
review to be brought by anyone “directly affected” by the matter in respect of
which relief is sought. All of the parties agree that the applicants are not
directly affected by the conduct of the Canadian Forces in Afghanistan. However,
the applicants submit that they satisfy the criteria to be granted public
interest standing to allow them to pursue this matter.
[39]
There
is also no dispute between the parties as to the criteria that must be
satisfied in order to establish a basis for public interest standing. In cases
such as Chaouilli v. Quebec (Attorney General), [2005] 1 S.C.R. 791,
2005 SCC 35, Chamberlain v. Surrey School District No. 36, [2002] 4
S.C.R. 710, 2002 SCC 86, Hy & Zel’s Inc. v. Ontario (Attorney General),
[1993] 3 S.C.R. 675, Canadian Council of Churches v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 236, and Finlay v. Canada
(Minister of Finance), previously cited, the Supreme Court of Canada has
recognized that courts have the discretion to grant standing to litigants who
have no personal interest in an issue of constitutional or public law where the
litigants in question can establish that:
1. The action raises a serious
legal question;
2. The party seeking
standing has a genuine interest in the resolution of the question; and
3. There is no other
reasonable and effective manner in which the question may be brought to court.
[40]
In
this case, the respondents concede that the applicants meet the second branch
of the tripartite test: that is, that they have a genuine interest in the
resolution of the questions raised by the application. However, the respondents
submit that the application does not raise a serious issue, and that there are
other reasonable and effective ways in which these issues may be brought before
the Court.
[41]
Insofar
as the serious issue component of the test is concerned, the respondents submit
that the determination of the existence of whether an application raises a
serious issue requires an inquiry not only into the importance of the issue,
but also into the likelihood of the matter being resolved in favour of the
applicants.
[42]
In
this regard, the respondents point to the decision in Sierra Club of Canada
v. Canada (Minister of Finance), [1999] 2 F.C. 211, at ¶38-39, where
Justice Evans observed that in deciding whether public interest standing should
be granted in a given case, the Court should not probe more deeply into the
issues other than to assess whether, on the basis of the materials before the
Court, an applicant has “a fairly arguable case or, putting it the other way,
has no reasonable cause of action”.
[43]
As
Justice Evans observed, having regard to the discretionary nature of public
interest standing, it is necessary to determine whether an application raises a
fairly arguable case in order to ensure that scarce public resources are not
squandered, and other litigants are not subjected to further delay: Sierra
Club, at ¶38.
[44]
I
will review each of the respondents’ arguments as to what they say the problems
are with the applicants’ case in my consideration of whether the application is
bereft of any chance of success. Suffice it to say at this juncture that the
applicants have satisfied me that the application raises one or more serious
issues and that the applicants have a fairly arguable case.
[45]
As
to whether there is any other reasonable and effective way in which the questions
raised by this application may be brought to court, the respondents say that it
is always open to the individuals in Afghanistan who are directly
affected by the actions of the Canadian Forces to initiate their own legal
proceedings in Canada.
[46]
In
support of this contention, the respondents point to the fact that the family
of a deceased resident of Kandahar province has evidently instituted
proceedings against the government of Canada in the Ontario Superior
Court. This action evidently arises out of actions of the Canadian Forces in Afghanistan.
[47]
I
cannot agree that individuals who have been handed over to the custody of the
Afghan government have any meaningful or realistic ability to mount a challenge
in this country with respect to the conduct of the Canadian Forces in Afghanistan.
[48]
Firstly,
the fact that the family of one deceased resident of Kandahar province has
been able to commence an action against the Canadian Forces in Ontario is, in my
view, of limited value in establishing that legal action by the individuals
directly affected is a realistic alternative in this case. We have no
information as to the circumstances surrounding the Ontario action. In
particular, the respondents could not say whether, for example, the action was
brought by individuals still in Afghanistan, or by relatives of the deceased
individual who are living in Canada.
[49]
It
is not disputed that the individuals whose situation is in issue in this case
are on the other side of the world, in a desperately poor country – a country
whose infrastructure is in tatters. Quite apart from any logistical,
educational, linguistic, cultural or economic considerations that might limit
the ability of these individuals to assert whatever rights they may have in
this country, as far as we know, the individuals in question may well still be
in detention in Afghanistan.
[50]
Moreover,
it is also not disputed that while these individuals were in the custody of the
Canadian Forces, they were denied access to legal counsel.
[51]
In
these circumstances, I am satisfied that there is no other reasonable and
effective way in which the questions raised by this application may be brought
before the Court.
[52]
Having
found that the applicants satisfy all three components of the test for public
interest standing established by the Supreme Court of Canada, I am therefore
prepared to exercise my discretion and grant the applicants public interest
standing to pursue this matter.
Is There any Basis for
Judicial Review Under the Federal Courts Act?
[53]
Assuming
that the applicants have standing to bring this application, the respondents
say that the application is bereft of any chance of success as it does not
raise a “matter” in respect of which a remedy is available under section 18.1
of the Federal Courts Act.
[54]
To
reiterate, subsection 18.1(1) of the Federal Courts Act allows for an
application for judicial review to be brought by anyone directly affected by
“the matter” in respect of which relief is sought.
[55]
In
this case, the respondents submit that the application does not identify any
administrative or executive action that violates or is likely to violate the Charter
rights of any specific individual or individuals. As such, it does not involve
a “decision, order, act or proceeding”, as contemplated by subsection 18.1(3)
of the Federal Courts Act.
[56]
Rather,
the respondents say that the Court is being asked whether a policy - namely the
first Arrangement - is sufficient to protect the rights of unknown individuals
in unknown circumstances. The Court is also being asked to address unspecified
“potential actions” relating to unknown individuals, and to identify the
elements of a constitutionally permissible practice.
[57]
The
respondents contend that the first Arrangement is not an “act or proceeding”.
Moreover, it does not compel the Canadian Forces to transfer detainees to the
custody of Afghanistan or any other
country. Rather, the document merely establishes procedures to be followed, in
the event of a transfer.
[58]
Moreover,
the respondents say that the first Arrangement contains explicit terms designed
to protect detainees from abuse or torture. According to the respondents, the
first Arrangement does not violate the Charter rights of any individual,
nor does it provide for the violation of such rights. As such, the respondents
say, it is not reviewable.
[59]
While
the Notice of Application asserts that existing transfer procedures are
insufficient because they do not provide for adequate safeguards, the
applicants have not demonstrated how the rights of specific individuals have
been violated. According to the respondents, the Court should not be asked to
intervene in an abstract debate, without the benefit of a live dispute on the
basis of concrete facts: see P.I.P.S.C. v. Canada (Customs
& Revenue Agency), 2004 FC 507, at ¶77 and Canadian Bar
Association v. British Columbia, 2006 BCSC 1342.
[60]
Finally,
the respondents say that if the decision under review is the decision of the
Chief of the Defence Staff to enter into the first Arrangement on December 18,
2005, the applicants were aware of the existence of the first Arrangement by
April of 2006. As such, the application for judicial review is out of time.
[61]
The
applicants argue that what is in issue in this application is not a specific
decision, but rather the ongoing policy or practice of the Canadian Forces in
transferring detainees to Afghan authorities in circumstances where the
individuals in question face a substantial risk of torture. As such, the time
limits set out in section 18.1 of the Federal Courts Act do not apply:
see Krause v. Canada, [1999] 2 F.C. 476.
[62]
The
applicants further submit that there is a sufficient evidentiary basis upon
which the application can be determined. In this regard, the applicants point
to the fact that the respondents do not dispute that specific individuals have
been detained by the Canadian Forces, and have subsequently been transferred to
Afghan custody.
[63]
While
the applicants may not be able to identify these individuals by name, the
applicants contend that there is nothing hypothetical about the individuals or
their plight.
[64]
Moreover,
the applicants argue that the individuals in question are not part of an
amorphous group, as was the case in the Canadian Bar Association
decision relied upon by the respondents. Rather, the detainees in question are
part of a finite and readily identifiable group.
[65]
In
addition, the applicants state that the only reason they have been unable to
identify specific individuals affected by the Canadian Forces’ policy or
practice in their Notice of Application is because the respondents have thus
far refused to identify the individuals in question. Indeed, the applicants’
request for this information is currently the subject of a proceeding in this
Court under section 38 of the Canada Evidence Act, R.S., c. E-10, s. 1.
[66]
The
essence of the applicants’ allegations is contained in the following statement
in the Notice of Application:
Canadian Forces continue to capture and
detain individuals in Afghanistan. Canadian Forces continue to
transfer these individuals into the custody of Afghan authorities, despite the
substantial risk that these individuals shall be subject to torture. General
Hillier has refused to allow these detainees to have access to legal counsel
before being transferred to the Afghanistan
authorities.
[67]
As
was noted earlier in this decision, for the purposes of this motion, these
allegations must be taken as true.
[68]
Moreover,
read generously, as the jurisprudence dictates should be done, I am satisfied
that the application for judicial review is directed not just to the first
Arrangement, but also to the policy or practice of denying detainees access to
counsel, and transferring them to the custody of Afghan authorities, where they
face a substantial risk of torture. As the policy or practice is ongoing, I am
not persuaded that the application for judicial review is bereft of any chance
of success on the basis that it is out of time.
[69]
Moreover,
the absence of a "decision" is not an absolute bar to an application
for judicial review under the Federal Courts Act, and the role of this
Court has been found to extend beyond the review of formal decisions, and to
include the review of "a diverse range of administrative action that does
not amount to a 'decision or order', such as subordinate legislation, reports
or recommendations made pursuant to statutory powers, policy statements,
guidelines and operating manuals, or any of the myriad forms that
administrative action may take in the delivery by a statutory agency of a
public programme.": see Markevich v. Canada, [1999] 3 F.C. 28
(T.D.), at ¶11, rev’d on other grounds, [2001] 3 F.C. 449, 2001 FCA 144, rev’d
[2003] 1 S.C.R. 94, 2003 SCC 9. See also Nunavut Tunngavik Inc. v. Canada (Attorney
General)
[2004] F.C.J. No. 138, 2004 FC 85, at ¶8.
[70]
For
the purpose of this motion, it is neither necessary nor appropriate for me to
reach any conclusion with respect to the actions of the Canadian Forces in
relation to detainees in Afghanistan. It is sufficient for
me to find, as I do, that the applicants’ argument that the policy or practice
in issue in this proceeding is amenable to judicial review is not bereft of any
possibility of success on the basis that it does not raise a “matter” in
respect of which a remedy is available under section 18.1 of the Federal
Courts Act.
Extraterritorial
Application of the Charter
[71]
As
this application for judicial review is framed entirely under the Canadian Charter
of Rights and Freedoms, the respondents say that it is therefore clearly
bereft of any chance of success.
[72]
In
this regard, the respondents point to subsection 32(1) of the Charter,
which the respondents say is determinative of the application. Subsection
32(1) provides that:
This Charter applies
a) to the Parliament and government of
Canada in respect of all matters within the authority of Parliament including
all matters relating to the Yukon Territory and Northwest Territories; and
b) to the legislature and government of
each province in respect of all matters within the authority of the legislature
of each province.
[73]
The
respondents contend that the Canadian Forces in Afghanistan are not
acting as Canadian “state actors”. In this regard, the respondents rely on the
affidavit of Christopher Greenwood, which is tendered as an expert opinion in
matters of international law.
[74]
The
Greenwood affidavit
discusses facts relating to the nature of Canada’s participation in Afghanistan as part of
ISAF and OEF, and includes as exhibits a number of documents relating to the
nature of, and terms governing Canada’s involvement in Afghanistan.
[75]
Professor
Greenwood further considers documents such as various resolutions of the United
Nations Security Council, and the “Afghan Compact”. These documents
address the nature and ambit of Canada’s involvement in Afghanistan, as well as
that of the international community.
[76]
Given
their position that the Canadian Forces in Afghanistan are not acting as
Canadian “state actors”, the respondents submit that the activities of the
Canadian Forces in Afghanistan fall outside of the ambit of subsection 32(1)
of the Charter. Moreover, the respondents say that it would be absurd
to attempt to impose a particular country’s laws on a multi-national
international effort.
[77]
Even
if the Canadian Forces deployed in Afghanistan can properly be viewed as
Canadian state actors, the respondents say that the Charter still has no
application, as there is no exception to the principle of state sovereignty
that would justify giving the Charter an extraterritorial effect in this
case.
[78]
The
respondents point to evidence in the record such as the “Technical
Arrangements between the Government of Canada and the Government of the Islamic
Republic of Afghanistan”, which the respondents assert, demonstrates that Canada and
Afghanistan have agreed to the application of a limited range of Canadian laws
in Afghanistan. According
to the respondents, this agreement does not extend to include the application
of Canadian domestic law to Canadian Forces’ detention and transfer activities.
[79]
The
respondents say that the applicants are asking this Court to extend Charter
rights to Afghan detainees on Afghan soil. This would involve an unlawful
extension of Canada’s
enforcement jurisdiction into Afghan territory, and constitute an impermissible
encroachment on Afghanistan’s sovereignty.
[80]
According
to the respondents, the Supreme Court of Canada has stated unequivocally that
the Charter does not have such an extraterritorial effect.
[81]
In
this regard, the respondents refer to the recent decision of the Supreme Court
of Canada in R. v. Hape, 2007 SCC 26. According to the respondents, the
majority decision in Hape is “crystal clear” that absent the consent of
the foreign state in issue, the Charter has no application outside of Canada.
[82]
The
respondents point out that the Notice of Application in this case does not
allege that the sovereign Islamic Republic of Afghanistan has consented to the
application of the Charter within its territory. In the absence of such
consent, the respondents say, the Charter cannot apply.
[83]
Finally,
the respondents say that none of the judgments in Hape contemplate the
extension of Charter rights to non-Canadians outside of Canada. To the
extent that the Supreme Court in Hape may have left open the potential
extraterritorial application of the Charter, the only way that this
effect could be justified or recognized would be through the exclusion of
evidence improperly obtained outside of Canada in a trial
taking place in this country.
[84]
In
contrast, the applicants say that the Supreme Court’s decision in Hape
is not nearly as clear-cut as the respondents would have me believe.
[85]
Firstly,
the applicants note that Hape (and its predecessors) were all decided in
the law enforcement context. Indeed, Hape itself involved an off-shore
criminal investigation. This case arises in quite a different context - namely
the overseas exercise of military power. Moreover, unlike Hape, which
involved issues related to search and seizure, this case involves the issues
related to detention. The questions raised by this case are issues of first
impression, say the applicants, and it remains to be seen how they will be
treated by the courts in Canada.
[86]
The
applicants also refer to the majority decision in Hape, where, they say,
Justice Lebel specifically left open the possibility that the Charter
may have extraterritorial application in cases where fundamental human rights
are at stake. In this regard, the applicants point to the following statement
in the majority decision in Hape:
[52] In an era characterized by
transnational criminal activity and by the ease and speed with which people and
goods now cross borders, the principle of comity encourages states to cooperate
with one another in the investigation of transborder crimes even where no
treaty legally compels them to do so. At the same time, states seeking
assistance must approach such requests with comity and respect for sovereignty.
Mutuality of legal assistance stands on these two pillars. Comity means that
when one state looks to another for help in criminal matters, it must respect
the way in which the other state chooses to provide the assistance within its
borders. That deference ends where clear violations of international law and
fundamental human rights begin. If no such violations are in issue, courts
in Canada should interpret Canadian
law, and approach assertions of foreign law, in a manner respectful of the
spirit of international cooperation and the comity of nations. [emphasis added]
[87]
Given
that this case involves the right to freedom from torture, the applicants say
that fundamental human rights norms are at stake, giving rise to the exception
to the general rule against the extraterritorial application of the Charter
recognized by Hape.
[88]
The
applicants also note that Justice Binnie’s concurring decision in Hape
cautions against sweeping pronouncements as to the lack of extraterritorial
effect of the Charter. In this regard, Justice Binnie observed that
“serious questions of the utmost importance have arisen respecting the extent
to which, if at all, a constitutional bill of rights follows the flag when
state security and police authorities operate outside their home territory”: Hape,
at ¶184.
[89]
Justice
Binnie then goes on to discuss this very case, describing it as raising “the
sort of issues that may eventually wind up before us and on which we can expect
to hear extensive and scholarly argument in relation to the extraterritorial
application of the Charter”: Hape, at ¶184.
[90]
Justice
Binnie further notes that cases such as this may not ultimately result in
prosecutions in Canada, and would not therefore engage “the remedial
potential of s. 24(2) of the Charter under which evidence may, in
certain circumstances, be excluded from a Canadian trial”: Hape, at ¶185.
[91]
Nevertheless,
Justice Binnie was prepared to leave open the question as to whether those
harmed by the extraterritorial conduct of Canadian authorities should be denied
Charter relief in situations where they did not face trial in Canada: Hape,
at ¶187.
[92]
While
recognizing that Justice Binnie’s comments refer to Canadian citizens harmed by
the extraterritorial activities of Canadian authorities, and accepting that
there is no suggestion that there are Canadian citizens amongst the Afghan
detainees, the applicants nonetheless say that the implications of the decision
in Hape for this case are by no means clear.
[93]
In
addition, the applicants point to jurisprudence from the House of Lords and the
United States Court of Appeal for the District of Columbia which has held that
domestic human rights legislation applies to individuals detained by military
forces in Iraq: see Al Skeini et al. v. Secretary of State for Defence,
[2007] UKHL 26, and Omar et al. v. Secretary of the United States Army et
al., 479 F.3d 1 (D.C. Cir. 2007).
[94]
According
to the applicants, this jurisprudence suggests constitutional rights guarantees
do indeed “follow the flag” when state security authorities operate outside
their home territory. As a consequence, Canadian human rights law should be
extended to cover individuals such as the detainees held by Canadian Forces in Afghanistan.
[95]
Finally,
the applicants say that a review of the evidence relating to the terms
governing the participation of the Canadian Forces in Afghanistan demonstrates
that in surrendering significant powers to Canada, including giving up the
state monopoly over the use of coercive power within its territory, Afghanistan has
implicitly consented to the application of Canadian law within its territory.
[96]
It
is not appropriate on a motion such as this to enter into a detailed discussion
of the relative merits of the parties’ competing positions. Unless I am
persuaded that the case is clearly bereft of any chance of success, that task
is for the judge hearing the application for judicial review.
[97]
The
applicants’ argument that the government of Afghanistan has
implicitly consented to the application of Canadian law to the actions of the
Canadian Forces within its territory requires the examination and evaluation of
the agreements and other evidence governing the participation of the Canadian
Forces in ISAF and OEF. It is not the function of a judge, sitting on a motion
to strike, to weigh and interpret the evidence before the Court. That
responsibility rests with the judge dealing with the merits of the application
for judicial review.
[98]
Insofar
as the respondents’ other arguments relating to the Hape decision and
the extraterritorial application of the Charter are concerned, suffice
it to say at this juncture that this case seeks to have the Charter
apply in a novel factual context - one that has not been the subject of prior
judicial consideration. While the Supreme Court of Canada has recently
articulated general principles limiting the extraterritorial application of the
Charter, the majority has specifically left open the potential extraterritorial
application of the Charter in cases where fundamental human rights are
at stake.
[99]
In
the circumstances, and without opining in any way as to whether the Charter
does or does not apply in the circumstances of this case, I cannot conclude
that this application for judicial review is so clearly improper as to be
bereft of any possibility of success.
[100] In this
regard, I would simply echo the comments of the Supreme Court of Canada in Hunt
v. Carey, [1990] 2 S.C.R. 959, at ¶52, where the Court stated that:
The fact that a pleading reveals "an
arguable, difficult or important point of law" cannot justify striking out
part of the statement of claim. Indeed, I would go so far as to suggest that
where a statement of claim reveals a difficult and important point of law, it
may well be critical that the action be allowed to proceed. Only in this way
can we be sure that the common law […] will continue to evolve to meet the
legal challenges that arise in our modern industrial society.
[101] While these
comments were made in the context of a motion to strike out a statement of
claim, they are, in my view, equally apposite in this case.
Charter Sections not
Engaged
[102] The
respondents argue that even if the Charter has extraterritorial effect
in the circumstances of this case, none of the sections of the Charter
relied upon by the applicants are engaged on the facts alleged in the Notice of
Application, with the result that the application is therefore bereft of any
chance of success.
[103] Moreover, the
respondents say that sections 7 to 14 of the Charter are intended to
protect the rights of individuals engaged in the criminal process. The
detentions in issue in this case are not criminal in nature, with the result
that the sections of the Charter in issue in this case can have no
application.
[104] With respect
to section 7 of the Charter, the respondents say that the rights to
life, liberty and security of the person are individual rights, and cannot be
advanced by others on behalf of the individuals whose rights are in question.
[105] Insofar as
subsection 10(b) of the Charter is concerned, the respondents submit
that this section does not apply outside of the criminal process, and more
particularly, does not apply in the military context. Moreover, the
respondents say that requiring that detainees be provided with access to
counsel on their detention by the Canadian Forces would cripple the mission in Afghanistan.
[106] Relying on
extradition cases such as United States of America v. Burns, 2001 SCC 7,
[2001] 1 S.C.R. 283 and Kindler v. Canada (Minister of Justice), [1991]
2 S.C.R. 779, the respondents argue that section 12 of the Charter is
also not engaged in this case. According to the respondents, the law is clear
that section 12 does not apply where the allegedly cruel or unusual treatment
or punishment is to be carried out by officials in a foreign state.
[107] Finally, the
respondents contend that no subsection 24 Charter remedy is available to
the applicants, as such relief is only available to those individuals whose
rights have actually been infringed.
[108] The
applicants argue that Charter rights are not limited to the criminal
process. For example, deportation to torture has been found by the Supreme
Court of Canada to give rise to section 7 rights: see Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1. According to the applicants,
the surrender of individuals from the custody and control of the Canadian
Forces to the Afghan authorities is analogous to the deportation and
extradition processes.
[109] The
applicants submit that the fundamental question should be whether torture by
another state is a foreseeable consequence of the actions of Canadian state
actors.
[110] In this case,
the applicants say that detainees are subjected to a process which has many of
the hallmarks of the administration of justice, the final result of which is a
decision by the Canadian Forces Commander to release, transfer or continue the
detention of the detainee. Nevertheless, detainees are denied any procedural
rights – a process that the applicants say cannot accord with principles of
fundamental justice.
[111] Moreover, the
applicants submit that the respondents’ argument that the Charter cannot
apply in the context of armed conflict ignores the reality that a number of
acts of Parliament apply in just this situation. If ordinary statutes can
apply, the applicants say, surely the Charter must as well.
[112] With respect
to subsection 10(b) of the Charter, the applicants point out that the
respondents have provided no authority to support their argument that the
“detention” referred to in section 10 excludes detentions that occur within the
context of an armed conflict.
[113] Furthermore,
the applicants say that there is no rationale for denying counsel to an
individual in the context of armed conflict. In fact, the Prisoner-of-War
Status Determination Regulations, SOR/91-134, specifically afford the right
to counsel to prisoners of war. While conceding that there may be a dispute as
to whether these regulations apply to detainees in the control of the Canadian
Forces in Afghanistan, the
applicants say that the existence of the Regulations demonstrates that
providing detainees with access to counsel is nevertheless workable in the
context of an armed conflict.
[114] Insofar as
section 12 of the Charter is concerned, the applicants argue that there
are important differences between this case and cases of extradition or
deportation. In cases of extradition or deportation, the Supreme Court has
held that the nexus between torture on the one hand, and extradition or
deportation on the other, is too remote to engage section 12.
[115] In contrast,
the applicants submit that there is a very close nexus between the transfer of
detainees out of Canadian custody, and the exposure of the detainees to a
substantial risk of torture at the hands of the Afghan authorities. According
to the applicants, Afghan authorities deal with individuals at the insistence
of the Canadian Forces, on the basis of evidence gathered by Canadian state actors.
The context of this case is therefore distinguishable from the extradition and
deportation cases relied upon by the respondents, and section 12 of the Charter
is engaged on the facts of this case.
[116] With respect
to the ability of the applicants to assert Charter rights on behalf of
others, and to seek section 24 relief on their behalf, the applicants say that
it would be perverse if the Canadian Forces could immunize its conduct from
scrutiny by detaining individuals, denying them due process and the right to
counsel, transferring them into a situation where they face a substantial risk
of torture, and then insisting that no one else could assert the rights of the
detainees on their behalf.
[117] In support of
this contention, the applicants draw an analogy to habeas corpus cases.
Even though habeas corpus applications are ordinarily to be brought by
the individual whose rights are in issue, “strangers” have been allowed to
bring applications where there were grounds to believe that detainees were
being restrained from bringing the application personally: see Boudreau v.
Thaw (No 2) (1913), 13 D.L.R. 712 (C.S.), Hottentot Venus,
(1810) 13 East 195, 104 Eng. Rep. 344 (K.B.1810), and the dissenting judgment
in Ex Parte John Doe, (1974) 46 D.L.R. (3d) 547 (B.C.C.A.).
[118] Moreover, the
applicants point to the decision of the Supreme Court of Canada in R. v.
Gamble, [1988] 2 S.C.R. 595, where the Court had occasion to examine the
remedy of habeas corpus in the Charter era. In this regard, the
Supreme Court stated that a purposive approach should be applied to the
administration of Charter remedies as well as to the interpretation of Charter
rights.
[119] Both sides
have produced numerous cases to support their respective positions in relations
to the specific sections of the Charter in issue in this application for
judicial review. However, while some of the jurisprudence is arguably
applicable by analogy to this case, none of the case law deals with a similar
fact situation to that giving rise to this application for judicial review.
[120] As a
consequence, the respondents have not persuaded me that the application for
judicial review is clearly bereft of any chance of success as it relates to the
specific Charter sections invoked by the Notice of Application. Indeed,
I am of the view that the comments of the Supreme Court of Canada in Hunt v.
Carey are again applicable, and find that the fact that the Notice of
Application may involve novel or difficult points of law does not justify
striking it out.
The Issues are not
Justiciable
[121] The
respondents argue that the conduct in issue in this application for judicial
review involves the exercise of prerogative powers and matters of “high policy”
that are generally not justiciable.
[122] In this
regard, the respondents submit that this application would require the Court to
express an opinion on the wisdom of the exercise of defence powers by the
Executive Branch of government, which is not the role of the judiciary.
[123] That said, to
the extent that the applicants’ Notice of Application is framed in Charter
terms, the respondents concede that the matter is justiciable, based upon the
comments of the Supreme Court of Canada in Operation Dismantle,
previously cited, at ¶63.
[124] The
applicants submit that the application for judicial review does not challenge
any matter of “high policy”, such as Canada’s decision to deploy
forces into Afghanistan. Rather,
the applicants say that their application involves real individuals, and
decisions made by the Canadian Forces in relation to their liberty and security
of the person.
[125] Whether or
not this case involves a matter of high policy, I do not understand the scope
of the applicants’ case to extend beyond their Charter claims. As a
consequence, the matter is not bereft of any chance of success on the basis of
non-justiciability.
The Application is Moot
[126] Before
addressing the issue of mootness, I note that the parties agree that an
exception to the general principle that no evidence may be led on a motion to
strike a Notice of Application exists where the basis for the motion is that
the issue has become moot.
[127] This makes
sense, as questions of mootness will generally arise as a result of intervening
developments in relation to the underlying facts giving rise to the application
for judicial review. If evidence relating to these intervening developments
could not be put before the Court on a motion to strike, the Court could be
forced to proceed with a full hearing in relation to a case in which a live
controversy no longer exists.
[128] The respondents
contend that there is no longer a live controversy before the Court in this
case, and that the tangible and concrete dispute between the parties has now
disappeared. As a consequence, the respondents say that the issues raised by
the applicants’ Notice of Application have become academic.
[129] In support of
this contention, the respondents submit that the issue raised by the
application is the perceived inadequacies in the protections afforded to
detainees by the first Arrangement. According to the respondents, all of the
inadequacies in the first Arrangement that have previously been identified by
representatives of the applicants have now been addressed by the second
Arrangement. As a result, the respondents say that the controversy that
underpins the application for judicial review no longer exists, and the
application is moot.
[130] The
applicants argue that the issues underlying their application for judicial
review are not moot. They submit that the underlying application is not
directed solely at the first Arrangement, but is also concerned with the
transfers themselves. In this regard, the applicants say that they have always
sought a remedy that would protect detainees from the risk of torture, and that
goal has not changed.
[131] The
applicants do concede that the protections offered by the second Arrangement
may be an improvement over those afforded to detainees under the first
Arrangement. Nevertheless, the applicants contend that the protections offered
under the second Arrangement are still not sufficient in the context of a
country with as serious a history of systematic human rights abuses as is the
case with Afghanistan.
[132] In any event,
the applicants say that the adequacy of the protections afforded to detainees,
including those provided under the terms of the second Agreement, is a matter
for the judge hearing this application for judicial review on its merits.
[133] The
applicants’ Notice of Application states that there are substantial grounds to
believe that Afghan forces are torturing detainees. Not only must this
assertion be taken as true for the purposes of this motion, the applicants also
point to evidence which they say demonstrates that Canadian officials have
received at least six first-hand reports of detainees who had been transferred
by the Canadian Forces into the care of the Afghan authorities and had then
been subjected to torture in Afghan prisons.
[134] Moreover, the
applicants point to the fact that their Notice of Application makes specific
reference to the failure of the Canadian Forces to provide detainees with
access to counsel. There is no evidence before the Court that would suggest
that this is now happening. As a consequence, the applicants say that their
application for judicial review is clearly not moot.
[135] In Borowski
v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme Court of
Canada set out the principles to be applied in determining whether a case had
become moot. In this regard, the Court said:
The doctrine of mootness is an aspect of
a general policy or practice that a court may decline to decide a case which
raises merely a hypothetical or abstract question. The general principle
applies when the decision of the court will not have the effect of resolving
some controversy which affects or may affect the rights of the parties. If the
decision of the court will have no practical effect on such rights, the court
will decline to decide the case. This essential ingredient must be present not
only when the action or proceeding is commenced but at the time when the court
is called upon to reach a decision. According if, subsequent to the initiation
of the action or proceeding, events occur which affect the relationship of the
parties so that no present live controversy exists which affects the rights of
the parties, the case is said to be moot. [at ¶15]
[136] With these
principles in mind, I find that the respondents have not met their onus of
establishing that the issues raised by the applicants’ application for judicial
review are purely hypothetical or abstract. Nor have the respondents
established that there is no longer a live controversy between the parties,
such that the application for judicial review is therefore bereft of any chance
of success.
The Applicants’
Mis-application of International Law
[137] In their memorandum
of fact and law, the respondents submit that the applicants’ application for
judicial review is founded on a misapprehension of the applicable principles of
international law, and as such is bereft of any chance of success.
[138] According to
the respondents, the individuals for whom the applicants purport to advocate
are not entitled to any further safeguards at international law than those that
are already being provided by the Canadian Forces. The respondents further
submit that the applicants have misunderstood the legal basis for Canada’s
activities in Afghanistan, including
the significance of United Nations’ Security Council resolutions.
[139] In support of
this argument, the respondents rely on the opinion of Professor Greenwood.
[140] While this argument
was not developed in the course of the hearing of the motion to strike, I do
not understand it to have been abandoned.
[141] In support of
their argument relating to the applicable principles of international law, the
applicants rely on the evidence of their own expert – Professor Michael Byers.
[142] Suffice it to
say that I have concerns as to the appropriateness of looking at evidence
concerning the nature of Canada’s engagement in Afghanistan on a motion
such as this.
[143] I do not
understand the respondents to be saying that this Court has no jurisdiction to
entertain the applicants’ application for judicial review, but rather that it
is so fatally flawed and mis-conceived that it is bereft of any chance of
success. This is not a true jurisdictional challenge, and the Court should not
be asked to weigh and interpret the conflicting expert evidence before the
Court on a motion to strike. This is a matter to be left to the judge hearing
the application for judicial review on its merits.
Conclusion
[144] For these
reasons, I find that the applicants are entitled to public interest standing in
order to pursue this application for judicial review. Moreover, the
respondents have not persuaded me that the matter is bereft of any chance of
success. As a consequence, the motion to strike is dismissed.
[145] In the
interests of certainty, I wish to make it clear that nothing in these reasons
should be taken as deciding any of the issues argued on the motion to strike,
apart from the issue of standing. Furthermore, the decision should not be
interpreted as limiting or restricting the right of the respondents to advance
any or all of its arguments, save and except arguments relating to the standing
of the applicants, before the judge hearing the application for judicial review
on its merits.
[146] While I am
satisfied that the applicants should have their costs, I am not persuaded that
the circumstances are such as would warrant an award of solicitor and client
costs in the applicants’ favour.
Next Steps
[147] The
respondents have asked that they be given a further 90 days in which to file
their supporting affidavits, as contemplated by Rule 307 of the Federal
Courts Rules, in the event that their motion to strike is dismissed.
[148] In light of
the applicants’ expressed intention to seek leave to amend their Notice of
Application to deal with the second Arrangement, as well as the outstanding Canada
Evidence Act proceedings, I am of the view that establishing a time limit
for the filing of the respondents’ affidavits is a matter best dealt with
through the case management process.
[149] Accordingly,
a case management conference will be scheduled to take place as quickly as
possible in order to establish a schedule for the remaining steps to be taken
in relation to this application for judicial review.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The applicants are
granted public interest standing to pursue this matter; and
2. The respondents’
motion to strike is dismissed, with costs.
“Anne
Mactavish”
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