Docket: T-990-15
Citation:
2016 FC 903
Vancouver, British Columbia, August 5, 2016
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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KARL WALTHER
KELLER
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Applicant
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and
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THE MINISTER OF
FOREIGN AFFAIRS
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, Mr. Karl Walther Keller, is a
Canadian citizen and a pastor at Walnut Grove Lutheran Church in Langley,
British Columbia, who is publicly known to have helped Mr. Jose Luis
Figueroa to avoid deportation in El Salvador. Mr. Figueroa was a student member
of the FMLN (Farabundo Martí National Liberation Front) which was a guerrilla
group active in El Salvador during the civil war in the 1980s. The FMLN has now
become one of the major political parties in El Salvador. That being said, the
FMLN may have been labelled in the past by Canadian government officials as a “terrorist organization”. See Figueroa v. Canada
(Minister of Public Safety and Emergency Preparedness, 2014 FC 836, at
paras 2 to 6 [Figueroa].
[2]
Section 10(1) of the Regulations Implementing
the United Nations Resolutions on the Suppression of Terrorism,
SOR/2001-360, as amended [Regulations] provides that a person claiming not to
be a listed person may apply to the Minister for a certificate stating that the
person is not a listed person. Section 1 defines a “listed
person” to mean a person whose name is listed in the Schedule in
accordance with section 2 of the Regulations. Pursuant to subsection 10(2), the
Minister shall, within 15 days after receiving the application, issue a certificate
if it is established that the applicant is not a listed person.
[3]
Today, the applicant seeks the judicial review
of the so-called “implied refusal” of the
Minister of Foreign Affairs [Minister] to issue a certificate under section 10
of the Regulations. The applicant made his application for the issuance of a
certificate on April 12, 2015. The impugned decision was purportedly made on
behalf of the Minister by Mr. Keith Morrill, Director, United Nations
Human Rights and Economic Law Division, Department of Foreign Affairs
[Minister’s representative], by way of a letter dated May 4, 2015 [the May 4th
Letter], which was received by the applicant on May 16, 2015.
[4]
The applicant submits that the requisites for
the issuance of a certificate under section 10 of the Regulations are met here.
He also notes that the impugned decision, though it is dated May 4, 2015,
has nevertheless been made outside the statutory time limit to issue a
certificate, which expired on May 4, 2015. Be that as it may, he challenges the
legality or reasonableness of the ministerial refusal which, he submits, is
motivated by his failure to provide to the Minister’s delegate further
information on the following, if applicable:
• An indication of the listed person for when the applicant
claims to have been mistaken or for whom he is at risk of being mistaken; and
• A copy of the confirmation from the applicant’s financial
institution of the reason(s) for which it has frozen his accounts, if his bank
assets or other assets have been frozen.
[5]
The respondent takes the position that the
present application for judicial review is premature, and, subsidiarily, that
the request made by the Minister’s representative to obtain the further
information mentioned in the May 4th letter was reasonable in any event.
Accordingly, the respondent submits that this Court should refuse to issue a
writ of certiorari and/or a writ of mandamus, and forthwith
dismiss the present application, with costs fixed in the amount of $1500.
[6]
The present application must fail. The
preliminary ground of dismissal raised by the respondent is well founded. No
final decision was taken on behalf of the Minister by the Minister’s
representative on May 4, 2015. The present application is accordingly premature.
Considering that this finding is determinative, it is not necessary that I comment
on the merits of the application made to the Minister. However, since the
parties have divergent views with respect to the correct or reasonable interpretation
of section 10 of the Regulations, I offer these general observations.
[7]
Firstly, the burden is on an applicant to
convince the Minister or his representative that all of the conditions
mentioned in section 10 of the Regulations are met. Where an applicant
challenges the legality or reasonableness of a final decision refusing to issue
such a certificate, there should be a proper evidentiary record before the
Court, including any part of the material in possession of the Minister which
is not in possession of the applicant. This is lacking in the present case.
Moreover, even if it had decided to consider the May 4th letter as a
final decision, this Court could not have considered the particular elements of
personal prejudice raised by the applicant at the outset of the hearing. He
stated that his name appears on the internet and that he and his family are
encountering difficulties with the authorities, notably the American ones,
because asylum was granted in his church to Mr. Figueroa. This is the reason
why he wishes to obtain a certificate so that he and his family do not
encounter problems during travel. However, such concerns were never explicitly mentioned
by the applicant in his application for the issuance of a certificate made on
April 12, 2015. Even if evidence supporting this claim would have been included
in the applicant’s affidavit of July 5, 2015, any such relevant evidence
would not be admissible in this proceeding because it must first be provided by
the applicant to the decision-maker.
[8]
Secondly, I doubt very much today that, as
suggested by the applicant, a certificate should automatically be delivered by
the Minister to any applicant who is not a listed person, simply because an
applicant’s name is not listed in the Schedule. The words of section 10 of the
Regulations are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme, object and purposes of the
Regulations (Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27 at para
21). In particular, the Regulations were enacted in 2001 under the United
Nations Act, R.S.C., 1985, c. U-2, to implement in Canadian domestic law
the binding elements of United Nations, Security Council Resolution 1373
(2001) and that its purpose is to prevent terrorist individuals and
entities listed in the Regulations, from using global financial systems to
further terrorist activity. In this respect, despite any apparent similarities
with Figueroa, the decision rendered by the Court in the latter case
must be read with caution since the application for a certificate of Mr.
Figueroa was made under section 83.07 of the Criminal Code,
RSC 1985, c C-46, which is not applicable in this proceeding.
[9]
Thirdly, while section 10 of the Regulations
does not expressly refer to “mistaken identity”,
I agree with the respondent that, in the case of “mistaken
identity”, an applicant certainly qualifies and has interest in making to
the Minister an application for the issuance of a certificate. However, I am
not ready at this time to endorse the restrictive interpretation of section 10
of the Regulations proposed by the respondent that only “mistaken identity” cases qualify under this regulatory
provision. Perhaps, there can be other types of situations which may also
justify the delivery of a certificate. However, it is not the role of the Court
to define these. I prefer to leave it to the Minister to address this possibly
contentious issue, notably if the applicant decides to pursue his application
and provides other relevant information in support of his request for a
certificate. That being said, I doubt that, in advance, the Minister can have a
closed mind on the merit of an application and refuse to process it, without
considering any other possible relevant information, simply because the
application is not presented by a person or entity having the same or a similar
name as one of the persons or entities listed in the Schedule of the
Regulations. Any refusal on the merit should be motivated by clear and
articulate reasons.
[10]
Finally, considering the particular
circumstances of the case, the fact that the applicant is self-represented and
is acting in good faith, and that the preliminary objection made by the
respondent is determinative and could have well been raised earlier by a motion
to strike the proceeding, there shall be no costs.
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