Date: 20080704
Docket: T-727-08
Citation: 2008
FC 839
BETWEEN:
ABOUSFIAN
ABDELRAZIK
Applicant
and
MINISTER OF FOREIGN AFFAIRS
AND
INTERNATIONAL TRADE
Respondent
REASONS FOR ORDER
MACTAVISH
J.
[1]
Abousfian Abdelrazik is a Canadian citizen currently taking safe haven
in the Canadian Embassy in Khartoum, Sudan. He has commenced an application
for judicial review in this Court seeking a mandatory order requiring that the
Minister of Foreign Affairs and International Trade repatriate him immediately
by any safe means at the Minister’s disposal. Mr. Abdelrazik also seeks a
declaration that the Minister violated his right to enter Canada, contrary to
subsection 6(1) of the Canadian Charter of Rights and Freedoms.
[2]
In the context of this application for judicial review, Mr. Abdelrazik
has brought a motion seeking an order requiring that the Minister pay for his
legal costs in this matter on a solicitor and client basis, in advance, and in
any event of the cause. He also seeks an order requiring the Minister to
permit, and, if necessary, to facilitate, confidential communications between
Mr. Abdelrazik and his Canadian legal counsel while Mr. Abdelrazik is given
safe haven in the Canadian Embassy in Khartoum.
[3]
For the reasons that follow, Mr. Abdelrazik’s request for advance costs
will be dismissed. However, an order will issue stipulating that the
respondent not read any documents passing between Mr. Abdelrazik and his
Canadian counsel or impede the passage of communications between Mr. Abdelrazik
and his counsel.
The Hameed Affidavit
[4]
As a preliminary matter, the Crown seeks to have paragraphs 16, 20, 21,
30, 40, 42 and 45 struck form the affidavit of Yavar Hameed on the basis that
they are irrelevant, scandalous, vexatious, or contain legal opinion.
[5]
Mr. Abdelrazik consents to the striking of paragraphs 16, 30 and 40, as
well as to the striking of the first sentence of paragraph 45, but submits that
the other paragraphs are indeed relevant, and are properly before the Court.
[6]
Paragraph 20 deals with false information allegedly provided by senior
officials of the respondent to counsel for Mr. Abdelrazik. This paragraph also
contains references to exhibits attached to the affidavit which allegedly
support Mr. Abdelrazik’s allegations of misfeasance on the part of the
respondent.
[7]
On a motion for an advance order of costs, the Court is bound, amongst
other things, to consider whether there are “special circumstances” that would support an extraordinary order of this sort, as
well as whether there are any other factors which might militate for or against
the granting of relief: see Hagwilget
Indian Band v. Canada (Minister
of Indian Affairs and Northern Development) [2008] F.C.J.
No. 723, at paragraph 20.
[8]
Given the broad range of matters that may be considered on a motion of
this nature, I am not persuaded that paragraph 20 of the Hameed affidavit should
be struck as scandalous or irrelevant. For the same reasons I am also not
persuaded that paragraph 21 of the Hameed affidavit, which deals with
information provided to journalists by government representatives should be
struck.
[9]
I do agree with the respondent that paragraph 42 of the Hameed
affidavit, which discusses the cases of Maher Arar, Abdullah Almalki, Ahmad
Abou-Elmaati and Muayyed Nureddin is irrelevant, and should be struck.
[10]
The remaining portions of paragraph 45 contain the assertion by counsel
that granting the motion and allowing this litigation to go ahead will
ultimately result in savings to the public purse, as it will thereby obviate
the need for a future public inquiry such as that which was conducted in the
case of Mr. Arar. Given the teachings of the jurisprudence in this area that
an advance order of costs is not intended to be a substitute for the public
inquiry process, as well as the entirely speculative nature of this contention,
I am of the view that the paragraph should be struck in its entirety.
Background
[11]
Mr. Abdelrazik submits that the facts of this case are so rare and
exceptional that they justify the granting of the admittedly extraordinary
interim relief of an order for the payment of advance costs. As a consequence,
in order to appreciate Mr. Abdelrazik’s argument, it is therefore necessary to
have some understanding of the allegations giving rise to his application for
judicial review.
[12]
Mr. Abdelrazik was born in Sudan, and as such is a citizen of that
country. He came to Canada in 1990 as a refugee, and became a landed immigrant
in 1992. He obtained his Canadian citizenship in 1995.
[13]
In March of 2003, Mr. Abdelrazik returned to Sudan to visit family. In
August of that year, he was arrested and detained by Sudanese authorities.
Although Mr. Abdelrazik was never charged with an offence, his detention lasted
for nearly a year.
[14]
A Canadian government memo obtained by Mr. Abdelrazik’s counsel under
the provisions of the Privacy Act states that the Sudanese authorities
were holding Mr. Abdelrazik at the request of the Canadian government.
[15]
According to the evidence adduced on behalf of Mr. Abdelrazik, while he
was in Sudanese custody, he was interviewed by individuals identifying
themselves as representatives of “the Canadian security services”.
[16]
In anticipation of Mr. Abdelrazik’s release from jail, in July of 2004,
efforts were made by the respondent, and by members of Mr. Abdelrazik’s family,
to bring him back to Canada. To this end, a commercial airline ticket from Khartoum
to Montreal was purchased for him. However, it was subsequently determined
that Mr. Abdelrazik’s name appeared on the “no fly lists” of various airlines,
and, as a result, he was unable to leave Sudan at this time.
[17]
Mr. Hameed’s affidavit also contains an October 31, 2004 letter from the
Head of the Canadian office at the Canadian Embassy in Khartoum which seemingly
suggests that an offer had been made for the use of a private plane to
transport Mr. Abdelrazik from Khartoum to Montreal.
[18]
The identity of recipient of the letter has been redacted from the copy
of the letter provided to counsel and to the Court. As a result, it is not
clear from this letter alone that the offer was in fact made by the Sudanese
government. However, a May, 2005 memo from a consular case officer assigned to
Mr. Abdelrazik’s case confirms that an offer was indeed made by Sudanese
officials to send Mr. Abdelrazik home on a private plane. The memo goes on to
note that for reasons that were not clear, “this never materialised”.
[19]
In October of 2005, Mr. Abdelrazik was again arrested by Sudanese
authorities. This time, he was held, again without charge, until July of
2006. Shortly thereafter, the United Nations’ Al- Qaida and Taliban Sanctions
Committee added Mr. Abdelrazik’s name to its consolidated list of persons
allegedly associated with Al-Qaida. This Committee is also known as the “1267
Committee”, after United Nations’ Security Council Resolution 1267, under which
it was established.
[20]
Mr. Abdelrazik has made efforts to have himself removed from the 1267
list, which efforts were evidently supported by the Canadian government.
However, these efforts were not successful, and Mr. Abdelrazik remains on the
1267 list. Despite this listing, Mr. Abdelrazik has never been charged with a
criminal offence.
[21]
Mr. Abdelrazik continued to fear for his safety at the hands of Sudanese
officials, and on April 29, 2008, he sought refuge at the Canadian Embassy in Khartoum.
He was granted temporary safe haven, and is currently living in the public
areas of the Embassy building.
[22]
Mr. Abdelrazik has advised his counsel that he is currently
impecunious. The Canadian Embassy in Khartoum has been loaning him $100 a
month to cover his basic living expenses.
The Law Governing Advance Orders of Costs
[23]
As a result of two recent decisions of the Supreme Court of
Canada, it is now clear that this Court does have the power, in advance of the
final determination of a given case, to order that the costs of plaintiffs or
applicants be paid by the responding party: see British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371 and Little Sisters Book and Art Emporium v. Canada
(Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38.
[24]
However, as Justice Hugessen recently observed in the Hagwilget case cited
earlier, these
decisions, along with ordinary prudence and common sense, dictate that extreme
caution should be used in the exercise of this power.
[25]
Indeed, Justice
Hugessen observed that requiring a respondent
to fund, on a possibly unrecoverable basis, legal proceedings against itself before
there has been any finding of legal right on the part of the applicant, is a
drastic and unusual step, and one that should be taken only on the imperative
dictates of the interests of justice: see Hagwilget, at paragraph 1.
[26]
At paragraph 40 of the Okanagan case, the Supreme Court of Canada identified the three criteria that must be satisfied in order to
justify an award of interim costs. That is, the burden is on the party seeking
such an order to show that:
1. The party seeking interim costs genuinely
cannot afford to pay for the litigation, and no other realistic option exists
for bringing the issues to trial -- in short, the litigation would be unable to
proceed if the order were not made.
2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient
merit that it is contrary to the interests of justice for the opportunity to
pursue the case to be forfeited just because the litigant lacks financial
means.
3. The issues raised transcend the individual
interests of the particular litigant, are of public importance, and have not
been resolved in previous cases.
[27]
The Supreme Court then went on in the next paragraph to observe that:
These are necessary conditions that must be met for
an award of interim costs to be available in cases of this type. The fact that
they are met in a particular case is not necessarily sufficient to establish
that such an award should be made; that determination is in the discretion of
the court. If all three conditions are established, courts have a narrow
jurisdiction to order that the impecunious party's costs be paid prospectively.
Such orders should be carefully fashioned and reviewed over the course of the
proceedings to ensure that concerns about access to justice are balanced
against the need to encourage the reasonable and efficient conduct of
litigation, which is also one of the purposes of costs awards. When making
these decisions courts must also be mindful of the position of defendants. The
award of interim costs must not impose an unfair burden on them. In the context
of public interest litigation judges must be particularly sensitive to the
position of private litigants who may, in some ways, be caught in the crossfire
of disputes which, essentially, involve the relationship between the claimants
and certain public authorities, or the effect of laws of general application.
Within these parameters, it is a matter of the trial court's discretion to
determine whether the case is such that the interests of justice would be best
served by making the order.
[28]
Finally, not every case of
interest to the public will satisfy the test. Moreover, as the Supreme Court
has made clear, the justice system must not become a proxy for the public
inquiry process: see Little Sisters, at paragraph 39.
Mr. Abdelrazik’s Position
[29]
While recognizing that advance orders of costs are rarely made, and that
the test is strict, Mr. Abdelrazik argues that several considerations bring
this case within the very limited class of cases in which an advance order of
costs is appropriate.
[30]
Specifically, counsel for Mr. Abdelrazik argues that the evidence
demonstrates that Canada played a role in Mr. Abdelrazik’s detention in Sudan,
and that, by refusing to repatriate Mr. Abdelrazik when it had the chance to do
so, Canada has subjected him to de facto exile in a country where his
health and safety are at risk.
[31]
Not only is Mr. Abdelrazik impecunious, counsel argues that as a result
of his name having been added to the United Nations’ Resolution 1267 list of
persons allegedly associated with Al- Qaida, Mr. Abdelrazik is subject to Canada’s
United Nations Al-Qaida and Taliban Regulations. This has the effect of
preventing anyone from assisting Mr. Abdelrazik with his legal expenses,
without exposing themselves to the risk of potential criminal prosecution.
Analysis on the Advance Order of Costs Issue
[32]
It should be noted at the outset that while counsel for Mr. Abdelrazik
made a brief passing reference in his oral submissions to two funding cases
dealing with section 7 of the Charter, namely the decision of the Supreme Court
of Canada in New Brunswick (Minister of Health and Community Services) v. G.
(J.) [1999] S.C.J. No. 47 and that of the Ontario Court of Appeal in R.
v. Rowbotham [1988] O.J. No. 271. However, neither party addressed the law
that has developed in this regard in the criminal and administrative law
contexts. Indeed, counsel did not even provide the Court with copies of either
the G. (J.) or Rowbotham decisions, nor was any reference made to
the cases in Mr. Abdelrazik’s memorandum of fact and law.
[33]
Given that it is section 6 rather than section 7 of the Charter that is
relied upon by Mr. Abdelrazik in this case, coupled with the fact that both
parties limited their submissions to the issue of advance orders of costs as
contemplated by the Supreme Court of Canada in the Okanagan and Little
Sisters cases, the Court will confine its analysis to this issue.
[34]
In determining whether the
circumstances of this case are such as to justify the granting of the
exceptional interim relief of an advance order of costs in Mr. Abdelrazik’s
favour, the first of the Okanagan factors to be considered is that of
impecuniosity. That is, Mr. Abdelrazik must demonstrate that he genuinely cannot afford to pay for the litigation,
and no other realistic option exists for bringing the issues to trial, such
that the litigation will be unable to proceed if the order were not made.
[35]
In this regard, in Little
Sisters, the Supreme Court of Canada
noted that having regard to the exceptional nature of an advance order of
costs, there was an obligation on an applicant to clearly demonstrate that
there was no other way that the litigation would be able to proceed. In this
regard, the Court noted at paragraph 40 of the decision that:
… Therefore, the applicant must explore all other
possible funding options. These include, but are not limited to, public funding
options like legal aid and other programs designed to assist various groups in
taking legal action. An advance costs award is neither a substitute for, nor a
supplement to, these programs. An applicant must also be able to demonstrate
that an attempt, albeit unsuccessful, has been made to obtain private funding
through fundraising campaigns, loan applications, contingency fee agreements
and any other available options. If the applicant cannot afford all costs of
the litigation, but is not impecunious, the applicant must commit to making a
contribution to the litigation. Finally, different kinds of costs mechanisms,
like adverse costs immunity, should also be considered. In doing so, courts
must be careful not to assume that a creative costs award is merited in every
case; such an award is an exceptional one, to be granted in special
circumstances. Courts should remain mindful of all options when they are called
upon to craft appropriate orders in such circumstances ….
[36]
It appears that Mr. Abdelrazik is indeed impecunious. However,
on the basis of the current record, he has not satisfied me that absent an advance order of costs, there is no other
way that this litigation will be able to proceed.
[37]
Mr. Abdelrazik has, to this
point in the litigation, been represented by counsel acting on a pro bono
basis. Mr. Abdelrazik’s primary counsel has been Yavar Hameed, an Ottawa
lawyer practicing in a small firm. To his credit, Mr. Hameed has been
representing Mr. Abdelrazik for nearly a year, and has expended considerable
time on the file and has also incurred disbursements on Mr. Abdelrazik’s
behalf.
[38]
It is not at all clear from the
evidence before me that this state of affairs will not continue in the future.
On this point, Mr. Hameed states in his affidavit that:
36. While it is my goal to give his case the
fullest possible treatment, as a practical matter it is a month-to-month
decision whether I can afford to continue representing him. I make the
decision of whether to continue providing pro bono services in light of
the available financial resources within my law practice and the hours of time
or disbursements that his case demands.
37. I am assisted in Mr. Abdelrazik’s file by the pro
bono help of others. I have assigned part of the work in Mr. Abdelrazik’s
file to my junior associate, Audrey Brousseau, who is volunteering significant
overtime hours. I also have sought help with expert legal research from
Professor Amir Attaran, of the Faculty of Law and the Faculty of Medicine at
the University of Ottawa, who has refrained from billing me for his time
or disbursements. Professor Attaran has informed me that he wishes to go on
assisting Mr. Abdelrazik’s file, but that his decision to keep giving pro
bono services is subject to similar constraints as my own. Both Ms.
Brousseau and Dr. Attaran inform me that they re-evaluate every few weeks if
they have sufficient resources to dedicate to Mr. Abdelrazik’s case.
[39]
While Mr. Hameed does assert
that the ongoing expense of continuing to represent Mr. Abdelrazik will cause
him personal hardship, and that he does not believe that the litigation will be
able to proceed on the pro bono basis which has brought it to this
point, based upon the statements in his affidavit quoted above, it is not all
clear from the record that either Mr. Hameed or his associates will indeed be
forced to withdraw from the file if the motion is denied.
[40]
As a consequence, I am not
satisfied that no other realistic option exists for bringing the issues in this
case to a hearing, or that the litigation will be unable to proceed if the
order for advance costs is not made.
[41]
I am also not persuaded that
Mr. Abdelrazik has fully explored the funding alternatives potentially
available to him to assist him in bringing this litigation forward.
[42]
I am satisfied that legal aid
is not available to Mr. Abdelrazik. Ms. Brousseau has evidently contacted the
Legal Aid authorities in both Ontario and Quebec, and has been advised that Mr.
Abdelrazik is not eligible for legal aid in either province, as he is not
resident in either Ontario or Quebec. This makes sense, given that these are
provincially administered plans. I agree with Mr. Abdelrazik that in the
absence of any evidence from the respondent suggesting that this information is
not correct, he should not be obliged to pursue a funding option that is quite
clearly doomed to failure.
[43]
That said, it appears that Mr.
Abdelrazik has family and friends in Canada, and there is no evidence before the Court to
suggest that they are not in a financial position to assist Mr. Abdelrazik with
the cost of this litigation. Moreover, Mr. Hameed has deposed to the interest
that groups such as the Canadian branch of Amnesty International, the Canadian
Islamic Congress, and the Canadian Branch of the Council on American-Islamic
Relations have expressed in Mr. Abdelrazik’s case. Other members of the
community have also expressed an interest in supporting Mr. Abdelrazik.
[44]
However, counsel for Mr. Abdelrazik is
of the view that the provisions of the United Nations Al-Qaida
and Taliban Regulations preclude Mr.
Abdelrazik’s Canadian family or friends or others from providing funds
to pay for Mr. Abdelrazik’s legal expenses, given that he is on the United
Nation’s consolidated list of persons allegedly associated with Al-Qaida.
Counsel is further of the view that it would amount to an ethical breach if
counsel were to ask Mr. Abdelrazik’s family or friends to fund his litigation,
since this would amount to counselling them to commit a criminal offence.
[45]
In particular, Counsel points to section 3 of the Regulations, which
provides that:
|
3. No person in Canada
and no Canadian outside Canada shall knowingly provide or collect by any means,
directly or indirectly, funds with the intention that the funds be used, or
in the knowledge that the funds are to be used, by the Taliban, a person
associated with the Taliban, Usama Bin Laden or his associates.
|
3. Il est interdit à toute personne au Canada et à tout Canadien à
l’étranger de fournir ou de collecter sciemment, par quelque moyen que ce
soit, directement ou indirectement, des fonds avec l’intention qu’ils soient
utilisés par le Taliban, toute personne liée au Taliban ou Oussama ben Laden
ou ses associés.
|
[46]
Government representatives have
evidently advised counsel for Mr. Abdelrazik that in accordance with section
5.7 of the Regulations, it is possible to obtain an exemption from the
application of the Regulations to cover the basic expenses of a listed
individual. In accordance with United Nations Security Council Resolution 1452
(2002), legal fees and reasonable disbursements are considered basic expenses.
[47]
Despite having received this
advice, no such exemption has yet been sought by Mr. Abdelrazik.
[48]
The parties disagree in their
interpretation of the Regulations, and it does not appear that the scope of the
exemption provision has ever been considered by the courts. Given that the
issue was not fully argued before me, I prefer not to offer an opinion at this
point on the proper interpretation of the Regulations. This issue is better
determined in the future, on the basis of a complete evidentiary record,
including whatever reasons may be given with respect to Mr. Abdelrazik’s
request for an exemption, as well as fully developed arguments.
[49]
Suffice it to say that at this
juncture, there is at least a chance that Mr. Abdelrazik may be able to obtain
an exemption from the application of the United Nations Al-Qaida
and Taliban Regulations so as to allow his supporters to assist him with
his legal expenses.
[50]
Until this possibility has been
fully explored, Mr. Abdelrazik will not have demonstrated that he has exhausted
all other possible funding options, as he is required to do before the Court
can consider his request for an advance order of costs: see Little Sisters,
at paragraph 68.
[51]
Given my conclusion in relation
to the first of the Okanagan factors, it is not necessary to address the
remaining factors, nor is it necessary to consider whether this case
involves “special circumstances” that support
the making of an extraordinary order of the type sought here.
[52]
As a consequence, I am not
prepared to make an advance order of costs in Mr. Abdelrazik’s favour at this
time. The motion will be dismissed, without prejudice to Mr. Abdelrazik’s
right to bring a further motion in the future, in the event that circumstances
change, or in the event that his request for an exemption from the application
of the United Nations Al-Qaida and Taliban Regulations is
not dealt with in a timely manner.
[53]
However, any such future
request for advance costs should also include a budget for the litigation, as
the Court is required to consider the potential cost of the litigation. No
such information has been put before the Court in this case: see Little
Sisters, at paragraph 69.
Communications between Mr. Abdelrazik and his Counsel
[54]
Mr. Abdelrazik also seeks an order requiring the Minister to permit,
and, if necessary, to facilitate, confidential solicitor-client communications
between Mr. Abdelrazik and his Canadian legal counsel while he is given safe
haven in the Canadian Embassy in Khartoum.
[55]
Mr. Abdelrazik initially complained of both the timing and frequency of
his opportunities to contact his counsel by telephone. At the hearing of this
motion, the Court was advised that these issues have largely been resolved, but
that there is still a concern about the potential monitoring of telephone
discussions between Mr. Abdelrazik and his counsel.
[56]
It appears that the Minister of Foreign Affairs and International Trade
has given an undertaking that neither Ministry representatives nor embassy
personnel in Khartoum will monitor Mr. Abdelrazik’s telephone discussions with
his counsel. However, the Minister takes the position that he has no power to
control the activities of other government departments or agencies, or those of
foreign governments, none of whom are parties to this litigation. I agree, and
decline to make the order sought in this regard.
[57]
Mr. Abdelrazik’s counsel also states that he has encountered significant
difficulties in exchanging documents such as draft affidavits with Mr.
Abdelrazik because the respondent will not give the assurance that it will
respect the solicitor and client privilege attaching to such documents.
[58]
Counsel for the respondent submits that Mr. Abdelrazik has other
alternatives available to him, such as using an international courier service
to transmit documents or engaging local counsel in Khartoum to facilitate such
communications. Moreover, the respondent has expressed its willingness to
extend the time limits for filing materials in order to accommodate the delays
that may result from difficulties in communications between Mr. Abdelrazik and
his counsel.
[59]
The respondent also says that given that Mr. Abdelrazik has made
allegations of mistreatment against embassy personnel, it would put embassy
officials in an untenable position should Mr. Abdelrazik later assert that his
privileged communications had been interfered with.
[60]
Finally, the Minister says that what is being sought by Mr. Abdelrazik
is effectively an interim order of mandamus, which is not something that
can be granted by this Court on an interim basis.
[61]
This is unquestionably an unusual case. In my view, in the peculiar
circumstances of this case, the ability of this Court to control its own process
so as to safeguard the integrity of the litigation process and ensure the
timely advancement of the case through the justice system extends to allow the
Court to order that the respondent, including personnel in the Canadian embassy
in Khartoum, not read communications passing between Mr. Abdelrazik and his
counsel, or make copies of those communications.
[62]
Moreover, the delivery of documents from Mr. Abdelrazik’s counsel to Mr.
Abdelrazik himself should not be delayed, once those documents have been received
by the Canadian embassy in Khartoum, nor should the delivery of documents from
Mr. Abdelrazik to his counsel be delayed by representatives of the respondent,
including personnel in the Canadian embassy in Khartoum.
Specially Managed Proceeding
[63]
Counsel for the respondent submits that having regard to the nature of
this matter, and the fact that interlocutory motions may reasonably be
anticipated, the case would benefit from case-management. I agree, and an
order will go directing that the matter continue as a specially managed
proceeding.
Conclusion
[64]
For these reasons, the motion is granted, in part. Given the fact that
success was divided, there will be no order as to costs.
[65]
Counsel are to consult between themselves with respect to the form that
the order should take, particularly as it relates to the issue of the
facilitation of communications between Mr. Abdelrazik and his counsel, and to
provide the Court with a draft order in this regard. In the event that the
parties are unable to agree to the form of the order within 10 business days,
an order will issue.
“Anne
Mactavish”
Ottawa,
Ontario
July
4, 2008
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