Date: 20180109

Docket: T-1457-17

Citation: 2018 FC 12

[ENGLISH TRANSLATION]

Ottawa, Ontario, January 9, 2018

PRESENT: The Honourable Mr. Justice Martineau

BETWEEN:

DANIEL TURP

Applicant

and

THE MINISTER OF FOREIGN AFFAIRS AND GENERAL DYNAMICS LAND SYSTEMS CANADA INC.

Respondents

ORDER AND REASONS

I.  Introduction

[1]  On September 27, 2017, the applicant, Mr. Daniel Turp, served and filed this application for judicial review – amended on November 21, 2017 – in which he invited the Federal Court to determine whether it was legal and reasonable for the Minister of Foreign Affairs [Minister] to expressly or implicitly refuse to suspend or cancel,  pursuant to section 10 of the Export and Import Permits Act, RSC 1985, c E-19 [EIPA], the permits issued to General Dynamics Land Systems Canada Inc [GDLS] to export the light armoured vehicles [LAVs] that they manufactured to the Kingdom of Saudi Arabia [Saudi Arabia].

[2]  It should be noted that on January 24, 2017, the Federal Court dismissed a first application for judicial review by the applicant of a previous decision made on April 8, 2016, to authorize the issuance of the export permits in question pursuant to section 7 of the EIPA (T-462-16): Turp v Canada (Foreign Affairs), 2017 FC 84 [Turp FC ]. That judgment is now under appeal (A-59-17).

[3]  Since this application for judicial review was instituted, the applicant served the affidavits that he intends to rely on. On the other hand, the Minister has not yet served any affidavits even though the time for doing so has expired.

[4]  On October 17, 2017, the Minister’s counsel advised the applicant’s counsel that he objected to the request for material made under Rule 317 of the Federal Courts Rules, SOR/98-106 [Rules].

[5]  On October 18, 2017, based on the Federal Court’s inherent powers, and by analogy on Rules 221(1)(a), (b) and (f) , the Minister, represented by the Attorney General of Canada, served and filed a motion to strike this application for judicial review on the grounds that it is plain and obvious that the application has no chance of success, that it is redundant and that, ultimately, it is an abuse of process.

[6]  On October 25, 2017, Roy J. stayed the time provided under the Rules – which included the service of the Minister’s affidavits and the ruling on the objection to the request for material – so that the Court could decide the Minister’s motion to strike.

[7]  The Minister filed the following documentary evidence in support of her motion to strike:

• (a) The notice of amended application for judicial review dated April 21, 2016, in docket T-462-16;

• (b) The Federal Court judgment dated January 24, 2017, in docket T‑462‑16; and

• (c) The notice of appeal dated February 21, 2017, in docket A-59-17.

[8]  For his part, the applicant, who objects to this motion to strike, filed the following documentary evidence into his Reply Record:

• (a) The letter from Mr. Bernard Letarte dated October 17, 2017, in this case, objecting to the request for material made in the notice of application for judicial review dated September 27, 2017;

• (b) An excerpt from the House of Commons debates dated September 28, 2017, where the Minister answers a question about the export permits issued following allegations to the effect that Saudi Arabia uses Canadian weapons against its civilian population; and

• (c) The Minister’s Memorandum of Fact and Law dated July 11, 2017, in docket A-59-17.

[9]  In the Applicant’s Supplemental Reply Record, there is an affidavit by the applicant, dated October 23, 2017, and the following documentary evidence:

• (a) A release from the Department of External Affairs dated September 10, 1986, entitled “Exports Controls Policy”(Exhibit A) – alleged in the notice of amended application T-462-16 (para 17) and the notice of application dated September 27, 2017 (para 26);

• (b) The Export Controls Handbook, revised in June 2015 (Exhibit B) – alleged in the notice of amended application T-462-16 (paras 18 and 27) and the notice of application dated September 27, 2017 (paras 27 and 30);

• (c) A document from Amnesty International, Report 2016/17 “The State of the World’s Human Rights” (Exhibit C) – alleged in the notice of application dated September 27, 2017 (para 15);

• (d) A release from the Office of the United Nations High Commissioner for Human Rights dated April 5, 2017, entitled “UN experts urge Saudi Arabia to halt forced evictions and demolitions of the Al-Masora neighborhood in Awamia” (Exhibit D) – alleged in the notice of application dated September 27, 2017;

• (e) A release from the Office of the United Nations High Commissioner for Human Rights dated May 24, 2017, entitled “Saudi Arabia’s use of force and demolitions in the Al-Masora neighborhood violates human rights” (Exhibit E) – alleged in the notice of application dated September 27, 2017 (events of April to August 2017, paras 20 et seq.);

• (f) An article from the Globe and Mail reporting an announcement made at the end of July 2017 by the Minister to the effect that she was very concerned about the use of Canadian LAVs against civilians and relating a statement by the Saudi Embassy to the effect that it considered it necessary to use military equipment to fight the terrorists (Exhibit F) – in reference to the facts alleged in the notice of application dated September 27, 2017 (paras 22 and 37);

• (g) A release from the Office of the United Nations High Commissioner for Human Rights dated May 4, 2017, entitled “UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Saudi Arabia” (Exhibit G) alleged in the notice of application dated September 27, 2017 (paras 18 et seq.);

• (h) A summary of the situation prepared by the Office for the Coordination of Humanitarian Affairs on the crisis in Yemen, entitled “Crisis Overview” (Exhibit H) – in reference to the facts alleged in the notice of application dated September 27, 2017 (paras 23 and 24);

• (i) A report by the Human Rights Council dated September 13, 2017, entitled “Situation of human rights in Yemen, including violations and abuses since September 2014” (Exhibit I) – in reference to the facts alleged in the notice of application dated September 27, 2017 (paras 23 and 24);

• (j) An article from the Globe and Mail dated July 28, 2017, entitled “Saudi Arabia appears to be deploying Canadian-made armoured vehicles against its own citizens” and an article from CBC News dated July 28, 2017, entitled “Ottawa ready to review Saudi arms deals amid crackdown” (Exhibit J) – in reference to the facts alleged in the notice of application dated September 27, 2017 (paras 20 and 37).

[10]  On November 20, 2017, the Court heard counsel’s oral submissions. At the outset of the hearing, the Court noted that, given the nature of the general remedies sought by the applicant in this application for judicial review, GDLS is a directly interested party with interests adverse to the applicant’s within the meaning of section 18.1 of the Federal Courts Act, RSC 1985, c F-7 [FCA]. The applicant’s counsel also specified the remedies that he is seeking, which are already covered by the basket clause in the notice of application for judicial review dated September 27, 2017. The Court granted leave to the applicant to file and serve a notice of amended application and allowed both parties to make supplementary written submissions after the hearing.

[11]  On November 21, 2017, the applicant filed and served a notice of amended application for judicial review, in which he added GDLS as a co-respondent and specified the remedies that he sought – which is consistent with the amendments announced at the hearing on November 20, 2017. No other amendment was made to the notice of application dated September 27, 2017.

[12]  GDLS did not appear in this matter, even though it is designated as a co-respondent.

[13]  In the exercise of my judicial discretion, and for the reasons given below, I do not believe that it is appropriate to strike this application for judicial review.

II.  General principles for striking out

[14]  It is useful to set out below the general – moreover well-known – principles that were considered by the Court in exercising its discretionary jurisdiction.

A.  The inherent jurisdiction of the Court and its underlying values

[15]  It is important to note that the motion judge’s discretion to summarily strike out a notice of judicial review for failing to disclose a cause of action or abuse of process arises from the Court’s inherent jurisdiction to control the processes before it.  In reality, “[t]he Federal Courts’ power to control the integrity of its own processes is part of its core function, essential for the due administration of justice, the preservation of the rule of law and the maintenance of a proper balance of power among the legislative, executive and judicial branches of government.” (Canada (National Revenue) v RBC Life Insurance Company, 2013 FCA 50 at para 36 and the case law cited; see also Lee v Canada (Correctional Service), 2017 FCA 228 at paras 13-15). Different considerations apply.

[16]   “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.” (Hryniak v Mauldin, 2014 SCC 7 at para 1). Not only can trials be time-consuming and expensive, but the multiplicity of interlocutory motions and incidental appeals causes expenses and additional delays that weigh down litigants and the entire judicial system. On the other hand, “[t]he power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial” (R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 19 [Imperial Tobacco]; see also Canada v Olumide, 2017 FCA 42 at para 18).

[17]  This is also a fact: the Rules governing the conduct of actions (Part 4) are more restrictive than the Rules governing applications (Part 5). The first include a wide range of preliminary motions – including the motion to strike referred to in Rule 221 – which we do not find in the second case. The reason is simple. It is a matter of saving the Court’s limited resources by forcing the parties to put forward all of their arguments at the hearing on the merits of the application. Also, although the Federal Court could order that an application for judicial review proceed as though it were an action, generally, the application is heard and determined without delay and in a summary way (see subsection 18.4(1) of the FCA).

[18]  But the opportunity to file a motion to strike in the case of a judicial review is not limited to cases where the application is converted to an action. Regardless of any statutory or regulatory provision, this Court can summarily strike out a notice of application for judicial review, if it is so clearly improper as to be bereft of any possibility of success or if it is otherwise an abuse of process (see Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at paras 47-50 and case law cited [JP Morgan]; Canada v Garber, 2008 FCA 53 at paras 33-41 and case law cited [Garber].

B.  Striking out for want of a reasonable cause of action

[19]  According to the jurisprudence, the Court can strike an application for judicial review for want of a reasonable cause of action. But the motion judge’s discretion must not be trivialized. Discretion is exercised only in the most exceptional circumstances – i.e., when it is bereft of any possibility of success. The applicant must therefore persuade the judge that there is an obvious radical defect which fundamentally vitiates the Court’s ability to hear the application. It is a very onerous burden (see JP Morgan at para 47; Odynsky v League for Human Rights of B’Nai Brith Canada, 2009 FCA 82 at para 5 citing David Bull Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1 FCR 588, 176 NR 48 (CA)). As discussed below, I am not persuaded that the Minister has discharged that burden.

[20]  One starts from the proposition that in a motion to strike, the facts alleged in the notice of application for judicial review are taken as proved, unless they can clearly not be proved (see by analogy: subsection 221(2) of the Rules; see also Operation Dismantle Inc v The Queen, [1985] 1 S.C.R. 441 at p 455; 18 DLR (4th) 481; Imperial Tobacco at para 22; JP Morgan at para 52). This eliminates the need to supply facts through an affidavit. This does not apply to a document mentioned and incorporated by reference in the notice of application, which can be appended, nothing more, in order to help the Court (see JP Morgan at para 54).

[21]  The situation can become complicated when the applicant goes beyond requesting that the application for judicial review be struck for want of a reasonable cause of action, but adds supplemental reasons such as abuse of process. There is nothing to then prevent the applicant from relying on documents that are not referred to in the notice of application for judicial review to prove that the question is redundant, vexatious, or is otherwise an abuse of process (see by analogy and a contrario: paragraphs 221(1)(b), (c), and (f) and subsection 221(2) of the Rules). For his part, the applicant may file any evidence to refute these allegations. That is indeed what happened here.

[22]  When the Court has a motion to strike before it, the Court must read the notice of application for judicial review in such a way as to grasp its true nature (see, generally, JP Morgan). The Court must do a comprehensive and practical reading, without focussing on matters of form. A defect that must be established through an affidavit is not obvious, no more than motions to strike that raise substantive issues that must be raised at the hearing (see JP Morgan at paras 48, 50, 52, and case law cited). In my opinion, this applies to most of the arguments raised by the Minister in her motion to strike.

[23]  It had been stated time and again, the jurisdictional defect that prevents the Court from hearing the application for judicial review or from granting the requested remedy must clearly appear. For example, applications for judicial review have been struck because there was a statutory appeal procedure by way of exception to sections 18 and 18.1 of the FCA. Striking out was also possible when the only remedy sought by the applicant could not be granted by the Court – like vacating a tax assessment (see section 18.5 of the FCA; see also JP Morgan at paras 81 et seq.; Canada v Addison & Leyen Ltd, 2007 SCC 33 at paras 6‑8).

[24]  In this case, the striking out is not requested because the Court does not have jurisdiction or because there is another appropriate remedy, but rather because, essentially, the Minister challenges the applicant’s legal interest and the existence of a legal obligation to the applicant, as well as the nature of the remedy that could be obtained if the Minister were to refuse to suspend or cancel an export permit under section 10 of the EIPA. In this case, I find that the issues instead involve the merits of the case and cannot be summarily decided without a review of the evidence. Without making a final decision on the issues of this application for judicial review, it is not plain and obvious that the applicant does not have public interest standing, that the Minister’s implicit or express refusal to exercise the jurisdiction under section 10 of the EIPA is not reviewable, that a decision was not rendered, that the application for judicial review is premature or that none of the remedies set out in sections 18 and 18.1 of the FCA, can be granted by the Court in this case.

C.  Striking out for abuse of process

[25]  According to the jurisprudence, striking out for abuse of process is available to the respondent in circumstances where the applicant files a new proceeding before the Court that bears on the same subject after a discontinuance or after a final judgment is rendered dismissing a previous judicial review, which is not the case here.

[26]  Still, the doctrine of abuse of process has also been raised “to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice” (Toronto (City) v CUPE, Local 79, 2003 SCC 63 at para 37 [CUPE]).

[27]  However, even if the reasons for the principles underlying the doctrine of abuse of process for relitigation and the doctrine of issue estoppel seem to have a common basis, the doctrine of abuse of process essentially seeks to preserve the integrity of the administration of justice in order to avoid inconsistent results (see CUPE at para 43; Garber at para 36). the underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter (see Johnson (AP) v Gore Wood and Co (A firm), [2001] 2 WLR 72, cited in Garber at para 81).

[28]  In short, the finality and the authority of judicial decisions, first, and the right to be heard, second – interests that are sometimes conflicting – must be balanced by the judge who is asked to strike an application for abuse of process: ultimately, it is the integrity of the judicial process which should be the court’s fundamental concern (see Garber at para 1). In this context, a motions judge’s determination as to whether the relitigation of issues and material facts constitutes an abuse of process is a discretionary matter (see CUPE at para 35; Garber at para 17).

[29]  In this case, as it is discussed more fully below, I am not persuaded that this application for judicial review must be struck on the grounds that it is redundant and is ultimately an abuse of process.

III.  Legal framework regulating the export of military goods

[30]  This case calls for a brief review on the legal framework regulating the export of military goods to fully understand the nature of the debate to resolve in docket T-462-16 in relation to the one that is raised today in this case following new facts that occurred since April 8, 2016.

[31]  Section 3 of the EIPA authorizes the Governor in Council to establish a list of goods and technology, to be called an Export Control List, including therein any article the export or transfer of which the Governor in Council deems it necessary to control. According to paragraph 2(a) of the Export Control List, SOR/89-202 and amendments [List], military equipment is subject to export controls when it is designated for export to anywhere other than the United States.

[32]  From a technical point of view, here we are referring to goods and technology from Group 2 of A Guide to Canada’s Export Control List [Guide], published by the Department of Foreign Affairs, Trade and Development [Department], export control that Canada agreed to in accordance with the Wassenaar Arrangement and the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (see paragraph (a) of Group 2 of the Annex to the List).

[33]  Under subsection 7(1) of the EIPA, the Minister can issue, to any resident of Canada who applies, a permit to export or transfer goods or technology in such quantity and of such quality, by such persons, to such places or persons and subject to such other terms and conditions as are described in the permit or in the regulations.

[34]  In order to establish that the export is consistent with the purpose of the export control, the applicant must provide various information to the Minister, including the quantity, unit value and total market value of the goods, a copy of the contract of sale between the applicant and the person to whom the applicant sold the goods for export, a summary report on prior exports of like goods by the applicant, the intended end-use of the goods by the consignee of the goods, the intended end-use location of the goods if different from the location of the consignee, etc. (see section 3 of the Export Permits Regulations, SOR/97-204).

[35]  In deciding whether to issue the export permit, subsection 7(1.01) of the EIPA sets out the factors that the Minister may consider:

[36]  The Export Controls Handbook [Handbook], an administrative tool that supplements the EIPA, provides guidance regarding the relevant factors:

With respect to military goods and technology, Canadian export control policy has, for many years, been restrictive. Under present policy guidelines set out by Cabinet in 1986, Canada closely controls the export of military items to:

•  countries which pose a threat to Canada and its allies;

•  countries involved in or under imminent threat of hostilities;

•  countries under United Nations Security Council sanctions;

•  countries whose governments have a persistent record of serious violations of the human rights of their citizens, unless it can be demonstrated that there is no reasonable risk that the goods might be used against the civilian population.

[Emphasis added.]

[37]  As discussed below, in docket T-462-16, only the application of section 7 of the EIPA was reviewed by the Court. In this case, however, the Court must consider the application of section 10 of the EIPA which reads as follows:

[38]  In this case, it is therefore the general discretionary power under subsection10 (1) of the EIPA that is used to review the legal significance and application in the event that new relevant information regarding the use of military goods is communicated to the Minister. It is apparent on the face of these proceedings that the cause of action in 2017 is not the same as in 2016.

IV.  The first application for judicial review in docket T-462-16

[39]  Since the Attorney General of Canada submits on behalf of the Minister that this application for judicial review is redundant and is ultimately an abuse of process, it is also necessary to review the first application for judicial review, the issues in docket T-462-16, as well as the Federal Court’s judgment dated January 24, 2017.

A.  General factual framework

[40]  The facts that gave rise to that first application for judicial review are not at issue today and are not really disputed by the parties.

[41]  Saudi Arabia is an absolute Islamic monarchy whose power is based on a powerful army. According to the documentary evidence, the Saudi State routinely, seriously, and systematically violates the fundamental rights of its citizens. These violations (death penalty, execution of this penalty by decapitation, torture and other cruel, inhumane and degrading treatment, including corporal punishment such as whipping and amputation) have been repeatedly reported by human rights protection organizations. Moreover, the Saudi State considers any peaceful criticism of the government as terrorism – including when religious minorities seek to protect their rights. In fact, the Shiite minority of the Kingdom is particularly at risk. Arabia is also leading a coalition intervening in Yemen. Several reports reveal serious violations of human rights and of international humanitarian law by this coalition, which attacks civilian targets such as hospitals, schools, and places of worship, resulting in thousands of innocent victims.

[42]  For its part, GDLS is a Canadian company that specializes in the manufacturing of military vehicles – in particular LAVs. Since this is military equipment contemplated by the Guide that is subject to export control, GDLS cannot export LAVs to Saudi Arabia without export permits issued by the Department or on its behalf under section 7 of the EIPA.

[43]  In this regard, the export to Saudi Arabia of LAVs manufactured in Canada is nothing new. Between 1993 and July 2015, the Minister issued export permits for more than 2900 LAVs in Saudi Arabia. During that period, more than a dozen other countries authorized the export of military equipment to Saudi Arabia. Until very recently, the contracts of sale for LAVs were negotiated between Saudi Arabia and United States, and given to GDLS by the Canadian Commercial Corporation [CCC], an agent Crown Corporation. In 2014, CCC entered directly into a contract with Saudi Arabia for GDLS to supply several hundred LAVs with an estimated value of 14 billion dollars – the actual terms of this contract being confidential – over a 14-year period. The continuation of this lucrative contract became an electoral issue during the federal campaign in 2015. In fact, the termination of this contract could result in a significant loss of jobs and the payment of onerous penalties by the Crown,

[44]  On March 21, 2016, the applicant filed an application for judicial review in order to prohibit the issuance of export permits for LAVs to Saudi Arabia. Bear in mind that on the day that the notice of application was filed in docket T-462-16, the information available to be applicant indicated that no permits had yet been issued for the export of LAVs, apart from the submission of technical data.

[45]  However, according to the documentation later sent on April 16, 2016, by the tribunal pursuant to Rule 317, one would have learned that the Minister at that time, the Honorable Stéphane Dion, had just approved, on April 8, 2016, the issuance of six export permits for LAVs to Saudi Arabia [the 2016 ministerial approval]. Also, on April 21, 2016, the applicant amended his notice of application for judicial review in order to have all of the export permits issued by the Minister cancelled and to obtain various declarations of unlawfulness relating to the 2016 ministerial approval.

B.  2016 ministerial approval

[46]  According to the documentation transmitted by the tribunal, the 2016 ministerial approval was based on the Deputy Minister of Foreign Affairs’ recommendation in a memorandum dated March 21, 2016, entitled “Memorandum for Action” [memorandum]. The recommendation is the product of collaborative work of several branches of the Department, as well as the Department of National Defence, and the Department of Innovation, Science and Economic Development.

[47]  After describing the profile of the exporter, GDLS, the history of LAV exports to Saudi Arabia, and the context in which the permit applications were made here, the memorandum sets out the following considerations in particular:

• Saudi Arabia is a key partner for Canada and an important ally in a region undermined by instability, terrorism and conflict; In particular, Saudi Arabia is not a threat, but rather a key military ally that supports the efforts of the international community to fight the Islamic State in Iraq and in Syria as well as the instability in Yemen; the acquisition of a new generation of vehicles will help it in its efforts, which are consistent with Canada’s defence interests;

• The importance of the commercial relationship between Canada and Saudi Arabia;

• Canada’s concerns regarding the human rights situation in Saudi Arabia;

• The long-standing defence relationship between Canada and Saudi Arabia, including the fact that Canada and other western countries encourage Saudi Arabia to arm itself to be able to defend itself against neighbouring States;

• The importance of the exports at issue for the Canadian military industry and the economic benefits that Canada will receive from the exports, including in terms of job creation;

• Saudi Arabia’s involvement in the conflict in Yemen and the allegations to the effect that Saudi Arabia and other countries involved in this conflict may have violated international humanitarian law in the context of this conflict; and

• The fact that thousands of Canadian LAVs have been exported to Saudi Arabia since 1993 and that to the Department’s knowledge, there was no incident suggesting that these vehicles were used to commit human rights violations. In particular, the fact that there was no indication that the military equipment of Canadian origin had been used to commit international humanitarian law violations.

[48]  Ultimately, the federal public servants were of the opinion that the proposed exports were consistent with Canada’s foreign policy priorities and with Canada’s interests in defence and in security in the Middle East and that there were no reasons to believe that LAVs would be used to commit human rights and international humanitarian law violations. This last consideration is crucial in this case, because according to the facts alleged in this application for judicial review – which must be taken as proved at this stage – the Minister currently has tangible evidence to the effect that Canadian LAVs were used against civilians in Saudi Arabia.

C.  Arguments raised by the applicant

[49]  In the applicant’s challenge of the 2016 ministerial approval, the applicant submitted various grounds for setting it aside revolving around three distinct themes.

[50]  First, the applicant submitted that the Minister had acted illegally in issuing the export permits to GDLS. Therefore, the applicant submits that the issuance of the permits was contrary to the EIPA, to its various guidelines, and to the Geneva Conventions Act, RSC 1985, c G-3 [GCA].

[51]  Second, the applicant also argued that the Minister had a closed mind and had exercised her discretion by assigning preponderant weight to irrelevant considerations, which was in particular evident from the Minister’s public statements.

[52]  Third, the applicant submitted that the ministerial approval was unreasonable: since Saudi Arabia is directly involved in the hostilities in Yemen and in repeated and documented fundamental rights violations, there was a significant risk that the LAVs would be used against civilians.

[53]  As we will see below, in her judgment dated January 24, 2017, Justice Tremblay-Lamer dismissed each of these arguments, but not without certain nuances that are important to point out today. This is particularly the case with the reasonableness of the 2016 ministerial approval, given the absence of tangible evidence of Canadian LAVs being used against civilian populations.

D.  Judgment dated January 24, 2017

[54]  In Justice Tremblay-Lamer’s judgment dated January 24, 2017, she dealt with the case as follows: by first disposing of the standard of review and the applicant’s interest, and then addressed the contested issues.

(1)  Reviewability of the ministerial approval

[55]  First, the 2016 ministerial approval was addressed by the Court as a reviewable decision under section 18 of the FCA.

[56]  Since the power to issue permits under section 7 of the EIPA is discretionary and since exercising the discretion involves government policies, the standard of reasonableness applies (Turp FC at paras 23-24). In that case, the Court’s contextual analysis must consider the economic and commercial objectives of the EIPA, Canada’s national and international security interests, and the Minister’s expertise in regard to international relations, as well as human rights considerations (Turp FC at para 25).

(2)  The applicant’s standing

[57]  The Court granted the applicant public interest standing with respect to the issue of the reasonableness of the Minister’s decision dated April 6, 2016, authorizing the issuance of export permits to GDLS (Turp FC at paras 26-30).

[58]  However, the Court found that the applicant could not raise procedural fairness issues – which includes the issues raised by the applicant regarding the procedural defect and the Minister’s closed mind (Turp FC at paras 31-32).

[59]  Moreover, even though the Court commented on the application of the GCA – it is possible that the first articles of the four Geneva Conventions of 1949 [Conventions] were integrated into Canadian law – the Court noted that nonetheless the first articles confer rights and obligations to the States parties to the Conventions, but not to individuals (Turp FC at 58 and 65).

(3)  Substantive issues

[60]  Sitting on judicial review, Justice Tremblay-Lamer notes that “[t]he role of this Court is . . . to determine whether the Minister acted within his jurisdiction” (Turp FC at para 38), while “[i]t is for him to decide … how much weight to give to each [factor], as long as he exercises his power in accordance with the object and spirit of the EIPA” (Turp FC at para 37). In this regard, one question of law that was the subject of lively debate by the parties was whether or not the factors listed by the legislator at subsection 7(1.01) of the EIPA were exclusive and binding. In fact, the memorandum prepared for the Minister indicates a certain number of policy factors that were considered that are not expressly mentioned in the EIPA or the Handbook.

[61]  In particular, the applicant relied specifically on the Handbook that refers to “present policy guidelines set out by Cabinet in 1986”. Yet, according to the press release dated September 10, 1986, entitled “Export Controls Policy”, “… Canada will not allow the export of military equipment to countries whose [foreign] governments have a persistent record of serious violations of human rights of their citizens; unless it can be demonstrated that there is no reasonable risk that the goods might be used against the civilian population. … the onus of proving ‘no reasonable risk [is] squarely on the exporter’ ”.

[62]  The Court however dismissed the applicant’s general claim to the effect that based on subsection 7(1.01) of the EIPA and of the Handbook, and considering Canada’s international obligations, the Minister is not only required to consider the factors set out in subsection 7(1.01) of the EIPA, but must refuse to issue an export permit if there is a reasonable risk that the exported equipment could be used against the civilian population (Turp FC paras 39 et seq.). Indeed, the guidelines, while useful to guide the Minister’s discretion as well as the interpretation of the provisions of the EIPA, are not binding (Turp FC at para 46).

[63]  Generally, the Court instead decided that the Minister is free to issue an export permit if the Minister finds that it is in Canada’s interest to do so, considering the relevant factors (Turp FC para 40). First, the EIPA and the Handbook do not contain any export prohibitions. Second, Canada did not take any measure under the Special Economic Measures Act, SC 1992, c 17, to prevent the export of military material to Saudi Arabia, either because of serious and systematic human rights violations which had been committed in Saudi Arabia or because of the serious humanitarian crisis in Yemen after the armed conflict in which Saudi Arabia was involved (Turp FC at para 41).

[64]  Moreover, with respect to the risk factors set out in the Handbook, the Court states that they were explicitly considered in the context of the consultations that led to the decision (Turp FC at para 42). Yet, according to the documentation considered by the public servants, there was no evidence that the military equipment of Canadian origin – including the LAVs – had been used in Yemen to commit acts contrary to international humanitarian law (Turp FC at para 42), or that the LAVs exported since the 1990s had been used to commit human rights violations in Saudi Arabia (Turp FC at para 44).

[65]  At paragraph 45 of her judgment, Justice Tremblay-Lamer writes:

It is for the Minister, whose expertise in such matters has been recognized by the courts (Lake v Canada (Minister of Justice), 2008 SCC  at para 37 [Lake]), to assess whether there is a reasonable risk that the goods might be used against the civilian population. The fact that there have been no incidents in which LAVs have been used in human rights violations in Saudi Arabia since trade relations between that country and Canada began in the 1990s is significant evidence in the context of this assessment. For there to be a reasonable risk, there must at least be some connection between Saudi Arabia’s alleged human rights violations and the use of the exported goods.

 

[Emphasis added.]

[66]  The Court indeed stated that it was satisfied that the Minister’s discretion was exercised in good faith based on the relevant considerations. The Court determined that the decision approving the issuance of the export permits is a possible, acceptable outcome that is defensible in respect of the facts and the law (Turp FC at para 55). That said, the Court’s role is not to cast a moral eye on the decision in question but only to ensure that this decision is legal (Turp FC at para 76). In this regard, the Minister considered the economic impact of the proposed export, Canada’s national and international security interests, Saudi Arabia’s human rights history, as well as the conflict in Yemen, therefore respecting the underlying values of the Geneva Conventions of 1949 (Turp FC at para 76). Even though the Minister’s broad discretion would have permitted the Minister to refuse the export permits, the Court determined that the Court was not open to set aside the 2016 ministerial approval (Turp FC at para 76).

[67]  This first application for judicial review to set aside the 2016 ministerial was therefore dismissed.

(4)  Non-binding and persuasive nature

[68]  The judgment dated January 24, 2017, is not yet final since the appeal proceedings have not yet all been exhausted.

[69]  For the purposes of this motion to strike, after reviewing the jurisprudence and the submissions of counsel, I found that I should follow, as a matter if judicial comity, Justice Tremblay-Lamer’s decision in Turp FC, to the extent that this decision already decides many of the same issues that could be raised on the merits of this application for judicial review. This refers specifically to the reviewability of the 2016 ministerial approval, to the applicant’s standing and to the substantive issues involving the reasonableness of the 2016 ministerial approval.

[70]  On the other hand, the issue regarding whether or not this ministerial refusal to suspend or cancel the export permits under article 10 of the EIPA is an unreasonable decision – in light of the new facts and the new evidence referred to in this application for judicial review – was not decided in the judgment dated January 24, 2017. Also, after a thorough comparative analysis of the proceedings in docket T-462-16, and in this case, I find below that this application is not redundant and is not ultimately an abuse of process.

[71]  Finally, note in passing that the applicant’s appeal was heard on December 6, 2017 (A‑59-17). The Federal Court of Appeal’s decision is still pending.

V.  No abuse of process in this case

[72]  In this case, I am not persuaded that this application for judicial review must be summarily struck on the ground that it is redundant and ultimately an abuse of process. I specifically considered the fact that there must be an end to litigation and that the Minister should not be vexed twice for the same cause of action. That is not the case here.

A.  The position of the parties

[73]  In this case, the Minister cannot ask that this application for judicial review be struck as res judicata. In fact, the appeal proceedings relating to the judgment dated January 24, 2017, are not yet exhausted, so the judgment is not final. Nevertheless, the Minister’s counsel argue today that the application for judicial review in this case is redundant and ultimately an abuse of process, since the applicant essentially wishes to reopen the debate that took place before the Court in the context of docket T-462-16, the only difference being that the applicant – relying on new facts that occurred after the approval on April 8, 2016, to issue export permits to GDLS – is not asking that the Minister reconsider her decision and cancel or suspend the permits in question under section 10 of the EIPA. In this regard, according to what was learned from the judgment dated January, 24, 2017, section 10 of the EIPA does not require the Minister to cancel permits, even if the new facts alleged by the applicant are taken as proved. In short, to avoid any risk of contradictory judgments, the judgment dated January 24, 2017, must now be followed by the Court, unless it is overturned on appeal. Also, the Court should summarily strike this application for judicial review.

[74]  The applicant submits that there is no abuse of process, or redundancy, or risk of contradictory judgments. The Minister’s counsel misread the applicant’s proceedings. To the contrary, the applicant is not trying to reopen the debate on issues that were already decided by the Court on January, 24, 2017, and if he were, the appropriate remedy would be to suspend the proceedings pending the Federal Court of Appeal’s – if not the Supreme Court of Canada’s – final ruling on the issues. Moreover, the irrefutable evidence of the use of Canadian LAVs by the Saudi State against innocent civilian populations in 2017 – a new and determinative fact that must be must be taken as proved – raises a new cause of action, since in such a case the Minister has the power to amend, suspend, or cancel an export permit under section 10 of the EIPA. Even though the Court is not bound by the judgment dated January 24, 2017, Justice Tremblay-Lamer nevertheless recognized that the risk of the use of Canadian LAVs against civilian populations was a determinative factor in exercising the ministerial power to issue an export permit to GDLS under section 7 of the EIPA.

B.  Nature of this application for judicial review

[75]  I agree with the applicant that this application for judicial review raises a new cause of action in light of the new facts alleged in the notice of application. Generally, this application for judicial review capitalizes on the fact that in the Turp FC judgment, the Court clearly states that, for there to be a reasonable risk, there must at least be a link between the violations alleged against Saudi Arabia and the use of the property that was exported. As noted above, the Court showed great deference to the Minister, given the absence of evidence, to the knowledge of Canadian authorities, that Canadian LAVs exported under previous contracts were used against civilian populations.

[76]  If many of the facts involving human rights violations in Saudi Arabia and in Yemen had already been alleged in docket T-462-16, in his notice of application, the following allegations, report new facts that occurred since the 2016 ministerial approval:

[TRANSLATION]

…

11.  In fact, the risk that Canadian armoured vehicles sold to Saudi Arabia could be used against civilians, even though initially denied by the Minister, has materialised. The Saudi Embassy itself has recognized that Canadian tanks were used in recent months against the civilian population during the siege of Awamiyah, a city with a Shiite majority located in the East of Saudi Arabia.

12.  Even though the Minister was sent a formal notice in a letter dated August 3, 2017, to reconsider her predecessor’s decision in light of this evidence and to cancel the permits issued, the Minister refused to act.

…

19.  The Shiite minority of the Kingdom is most particularly targeted by the so-called “fight against terrorism” led by the Saudi regime.

20.  Therefore, from April to August 2017, the Saudi armed forces have occupied the predominantly Shiite city of Awamiyah in the Qatif region and have destroyed the historic neighbourhood, killing civilians and making residents flee. It was in this context that the Canadian armoured vehicles, sold to Saudi Arabia in earlier contracts, were used.

21.  Starting in May, United Nations experts still required the Saudi authorities to end the destruction of the cultural heritage and to reinstate the rights of the people of Awamiyah. Unfortunately, the situation, far from resolved, only got worse after this communiqué was released.

22.  Saudi Arabia defended itself, saying that it considered it necessary to use the military equipment to fight “the terrorists”, when even the UN Special Rapporteur finds that the definition of terrorist used by Riyadh is unacceptable.

…

37. The Minister now has evidence that Canadian LAVs were used against religious minorities in Saudi Arabia.

38. Considering this evidence, the applicant sent a letter to Minister Freeland on August 3, 2017, calling on her to cancel the export permits for LAVs to Saudi Arabia. That letter was not answered.

…

[77]  These allegations are not utterly without merit and are not made gratuitously. In support of the applicant’s allegations, the notice of application specifies that the applicant intends to rely on the following evidence:

(a)  An affidavit from Ali Al-Ahmed, Director of the Gulf Institute;

(b)  An affidavit from Mark Hiznay, Director at Human Rights Watch;

(c)  Two affidavits from a Saudi refugee and a Saudi refugee claimant, including videos made in Awamiyah, in Saudi Arabia;

(d)  Various public reports about the human rights situation in Saudi Arabia;

(e)  Various public reports about the military intervention in Yemen;

(f)  Letter from André Lespérance to Minister Freeland (August 3, 2017);

(g)  Report on Exports of Military Goods from Canada 2012-2013;

(h)  The material from the tribunal that will be transmitted under Rule 317 of the Federal Courts Rules, which will be considered relevant;

(i)  Any other evidence advised by counsel, with leave of the Court.

[78]  As specified in the amended notice of application dated November 21, 2017, the purpose of this application is to order the Minister to cancel the permits or to order her to decide whether the permits issued to GDLS should be maintained, or revoked. The applicant requests alternatively that the Court order any remedy that it considers appropriate and just in the circumstances, including:

C.  Criteria for abuse of process not met

[79]  The Attorney General of Canada’s claim to the effect that the applicant essentially wants to reopen the same debate on the merits that was made before the Court in the context of docket T-462-16, must be dismissed, considering the substance and the purpose of this application for judicial review. The applicant is not challenging the 2016 ministerial approval and is also not requesting that the Minister reconsider her decision based on facts that he raised before. Certainly, some facts alleged by the applicant in his notice of amended application dated November 21, 2017, echo what was alleged in the notice of amended application dated April 21, 2016 (T-462-16). But there is nothing abusive about that. Given the historic framework, common to both files, such redundancy is simply a general background of the human rights situation in Saudi Arabia and in Yemen.

[80]  In this case, the applicant submitted in docket T-462-16 that the issuance of export permits for LAVs going to Saudi Arabia was against the EIPA, against its various guidelines and against the GCA. Strictly speaking, Canada is not bound by international standards found in a treaty unless it is incorporated into Canadian law by statute. However, the courts can call on international law to determine the meaning of the Constitution of Canada. It is also known that the protection of human rights or humanitarian law are peremptory norms of international law from which a State cannot easily derogate (see Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paras 60, 64-65). That said, an informed reading of the notice of amended application dated November 21, 2017, leads us to find that the applicant does not intend to reopen the debate on that issue.

[81]  What is crucial here is that the applicant alleges that since the ministerial approval dated April 8, 2016, Canadian LAVs have, in fact, been used by the Saudi State against innocent civilians. This evidence did not exist when the 2016 ministerial approval was granted. Therefore, from April to August 2017, the Saudi armed forces occupied the predominantly Shiite city of Awamiyah in the Qatif region. At that time, acts of repression were perpetrated against the population. We can even see images of the Canadian LAVs. These incidents were reported in the media and were the subject of various reports by humanitarian organizations. The Saudi State defended itself, claiming that it had acted to combat terrorists in the region.

[82]  Contrary to what is suggested by the Attorney General of Canada, I do not believe that this application for judicial review is a disguised attack of Justice Tremblay-Lamer’s judgment dated January, 24, 2017. In this case, there is no risk of contradictory judgments. Whether the judgment dated January 24, 2017, is confirmed or set aside, that changes nothing about the fact that new facts have arisen since the 2016 ministerial approval. Any jurisdiction that could be exercised by the Federal Court of Appeal or the Supreme Court of Canada on appeal, in lieu of the Federal Court, can only be exercised based on the situation and the evidence that existed at the time that the Minister authorized the issuance of the export permits. On the other hand, the issue that the Court will have to decide on the merits is whether, in themselves, the new facts and the new evidence raised in the notice of amended application dated November 21, 2016, warrants the reconsideration of the 2016 ministerial approval, and, if necessary, whether the Minister’s refusal to suspend or cancel the export permits is unreasonable.

[83]  In Turp FC, Justice Tremblay-Lamer determined that the possibility that the LAVs could be used against the civilian population was a relevant factor for the Minister to consider. The lack of evidence of such use was found to be determinative. It is therefore logical that the factor must again be considered if the authority were to be exercised under section 10 of the EIPA. The parameters have undeniably changed since the 2016 ministerial approval. As the Minister has refused to suspend or cancel the export permits issued to GDLS, it is incumbent on this Court to assess the reasonableness of the Minister’s new decision at a hearing on the merits. It is not because the Court decided in 2017 that the Minister’s balance of the factors was reasonable in April 2016, that the same finding is required with respect to the refusal to suspend or cancel the export permits based on the new facts and evidence in the record.

[84]  Even if the applicant’s appeal against the judgment dated January 24, 2017, should be dismissed, this application for judicial review is not redundant and continues to be relevant and topical in all respects. In this regard, bear in mind that GDLS – that is the company that holds the export permits – was not a party to docket T-462-16. The six export permits at issue were never filed into the Court record. One wonders if these include specific conditions regarding Saudi Arabia’s final use of the LAVs. We do not know whether, at the time, they had a validity or expiry period, and whether GDLS would have to apply for the issuance of new export permits.

[85]  “This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of justice” (CUPE at para 35 and case law cited). This is not the case here, for the reasons already described above. Any discretion that is exercised by the Court to control the proceeding before it must serve the interest of justice and protect the integrity of the judicial system. The factors referred to above militate largely in favour of these proceedings continuing independently of the state of the appeal proceedings brought against the judgment dated January 24, 2017, in docket T-462-16. In this case, higher considerations of maintaining the integrity of the judicial review system instead require that the issues of national importance raised in this application for judicial review be reviewed as soon as possible on the merits – as the Court is not persuaded that it is certain to fail for the reasons raised by the Attorney General of Canada in its motion to strike.

VI.  The existence of a cause of action

[86]  By taking as proved the allegations of fact in the notice of amended application dated November 21, 2017, I am not persuaded that this application for judicial review must be summarily struck on the grounds that it is bereft of any possibility of success or that there is an obvious and radical defect that fundamentally vitiates the Court’s ability to hear the application.

A.  Position of the parties

[87]  In short, the Attorney General of Canada challenges, first, the applicant’s legal interest to bring this application for judicial review before the Court and, second, the Court’s power to grant on the merits any remedy sought by the applicant in his notice of amended application dated November 21,2017, and this even in taking as proved the fact that, since the 2016 ministerial approval, Saudi Arabia has used Canadian LAVs against civilian populations. In this case, there is no legal duty  to act at the request of a citizen. The conditions to obtain a writ of mandamus are not satisfied (see Apotex Inc v Canada (Attorney General), [1994] 1 FCR 742, 162 NR 177 (FCA) conf by Apotex Inc v Canada, [1994] 3 S.C.R. 1100, 176 NR 1 [Apotex]). Inter alia, there must be a public legal duty to act toward the applicant, which is not the case here. In this sense, the Minister did not make a reviewable decision. Any recourse seeking the exercise of the discretion under section 10 of the EIPA is premature. At the very most here, there is a refusal by failure to act, so that the application to set aside (certiorari) or for declaratory relief are not applicable, unnecessary or redundant. The Court is not an appropriate forum to sit at first instance in lieu of the Minister.

[88]  In response, the applicant submits that the Minister’s implicit or express refusal to exercise the discretion under section 10 of the EIPA to amend, suspend, or cancel an export permit is a decision reviewable by the Court. Yet, the applicant’s legal interest – which is no different than the one that was recognized by the Court in docket T‑462‑16 – is indisputable. In this case, the applicant has serious arguments to make on the merits regarding the unreasonableness of the ministerial refusal that occurred after the 2016 ministerial approval. The entire argument of the Minister’s counsel is based on an incorrect characterization of this application for judicial review and on a semantic debate about the existence of a reviewable decision and the nature of the remedies sought by the applicant. Even though the applicant did effectively request orders that are similar to mandamus or a mandatory injunction, he also asked the Court to order any other remedy that it considers appropriate. Therefore, if the Court decides that the applicant does not meet all of the conditions to issue a writ of mandamus, it is open to order any other remedy that it deems appropriate, whether it be to issue a declaratory judgment or simply to set aside the Minister’s decision and refer the matter back for reconsideration (see Centre québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 at para 83 [CQDE]).

B.  Applicant’s standing

[89]  The Attorney General of Canada treats this application for judicial review as an unwarranted intrusion in the exercise of ministerial discretion. Whether it is to seek a writ of mandamus or a declaratory judgment, the applicant does not have standing. Otherwise, any citizen could compel the Minister to undertake a decision-making process on any export permit issued under the EIPA. It follows that the Minister could simply have ignored the notice dated August 3, 2017 – without even acknowledging receipt – and that the Court is again authorized to strike this application for judicial review. In fact, since the applicant cannot claim that there is a duty toward him personally, this application for judicial review is certain to fail. The Attorney General of Canada relies on the fact that, since the EIPA does not provide any participation or consultation process for persons with interests that compete with a Canadian resident who applies for an export permit, accepting to proceed with this application for judicial review would be the equivalent of creating a judicial forum to debate policy issues regarding which he has no direct or personal interest, and transferring to the Court the decision-making power that Parliament conferred to the Minister.

[90]  It appears to me that the Attorney General of Canada is attempting to debate the justiciability of the application and the applicant’s interest, which has already been decided by Justice Tremblay-Lamer in her judgment dated January 24, 2017 (Turp FC at paras 26-32). In fact, it was decided that the applicant had public interest standing in regard to the issue of the reasonableness of the Minister’s decision to issue the export permits to GDLS. Why would that be different today?

[91]  Bear in mind that to grant public interest standing to an applicant, the courts must consider three factors:

• 1) Is a serious justiciable issue raised?

• 2) Does the applicant have a real or genuine interest in the outcome of this issue?

• 3) In all of the circumstances, is the proposed suit a reasonable and effective way to bring the issue before the courts?

(see Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 37).

[92]  In terms of the applicant’s standing, in all cases, the principles that apply to granting public interest standing must be given a liberal and generous interpretation by the courts (see Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 at p 253, 88 DLR (4th) 193 [Canadian Council of Churches cited to SCR]). In fact, too broad a restriction for granting public interest standing would have the effect of immunizing public acts from challenge (see Canadian Council of Churches, at page 252; League for Human Rights of B’Nai Brith Canada v Odynsky, 2010 FCA 307 at para 61 et case law cited).

[93]  Yet, in the judgment dated January 24, 2017, Justice Tremblay-Lamer finds at paragraph 29:

 I am of the view that the question of the issuance of export permits for controlled goods is sufficiently important from the public’s perspective to meet the first criterion. As for the second criterion, the applicant is a professor of constitutional and international law for whom the principles of the rule of law, respect for fundamental rights and international humanitarian law are of particular concern. Among other things, through several interventions before the courts, he has shown himself to be an engaged citizen with a genuine interest in issues involving fundamental rights around the world. I also find that this judicial review is a reasonable and effective way to bring the issue before the Court. Aside from the administrative avenues that have already been exhausted, there exists no other way to bring such a challenge before the Court. No other party has a higher interest than the applicant when it comes to challenging the approval of export permits by the Minister, with the possible exception of a Canadian living in Saudi Arabia or Yemen.

 

[94]  At first glance, there is no reason not to follow Justice Tremblay-Lamer’s reasoning and to not apply it to the exercise of the power to reconsider conferred to the Minister by section 10 of the EIPA. I would only add that a democratic life – a profoundly Canadian value – presupposes that citizens can act in the public interest by submitting justiciable questions involving the exercise of public powers, when the question cannot otherwise be submitted to the courts. Yet, the Court should only in the most obvious cases accept to end an application for judicial review at the stage of a preliminary motion to strike for lack of standing (see Sierra Club of Canada v Canada (Minister of Finance), [1999] 2 FC 211 at para 25, 157 FTR 123 (F.C.T.D.); Apotex Inc v Governor in Council, 2007 FCA 374 at para 13). In this case, it is not plain and obvious at this stage that the applicant does not have public interest standing.

C.  Reviewability of the ministerial refusal alleged by the applicant

[95]  Without deciding this issue on the merits, it also seems to me at this stage that the applicant has a reasonable cause of action – as the Minister at this stage of the case has not filed any affidavit and has refused to file the documents sought under the request for material made under Rule 317. The Minister’s refusal to reconsider the 2016 ministerial approval and to exercise any jurisdiction provided under section 10 of the EIPA in light of the new facts alleged in the notice of amended application dated November 21, 2017, is, on its face, a reviewable decision under sections 18 and 18.1 of the FCA, and, a truncated interpretation of this application for judicial review will not prevent this Court from exercising its constitutional supervisory role.

[96]  The rule of law is recognized in the preamble of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11 [Charter]. It is a major operational principle of any legislative action, executive or judicial. The rule of law incorporates a number of themes and requires government officials to exercise their authority according to law, and not arbitrarily (see Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 134 [Charkaoui]; Roncarelli v Duplessis, [1959] S.C.R. 121, 16 DLR (2nd) 689). The corollary of this constitutionally protected principle is that superior courts – including the Federal Courts (see Charkaoui at para 136), – may be called upon to review whether particular exercises of state power fall outside the law (see Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 at para 10). That is the case here, even if great caution is required. But, we have not yet arrived at the merits of the case.

[97]  Discretionary decisions of the government will generally be given considerable respect, but that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter (see Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 56; 174 DLR (4th) 193). Even when an executive power involves exercising the royal prerogative or the government’s foreign affairs prerogative – which is not the case here – courts are empowered to make orders ensuring that this prerogative is exercised in accordance with the Constitution and any applicable law (see Canada (Prime Minister) v Khadr, 2010 SCC 3 at para 37 and case law cited).

[98]  Yet, it is not disputed that the refusal to exercise statutory jurisdiction is a reviewable decision (see for example CQDE; Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190 [Alberta Wilderness]; Centre québécois du droit de l’environnement v Oléoduc Énergie Est ltée, 2014 QCCS 4147 citing Morin v 9247-9104 Québec inc, 2013 QCCA 1968; Communications, Energy and Paperworkers Union of Canada v Canada (Attorney General), 2013 FC 34 at para 29). As indicated in the jurisprudence, this refusal can be express or implied. Neglect to perform the duty or unreasonable delay in performing it may be deemed an implied refusal to perform (see Dragan v Canada (Minister of Citizenship and Immigration), 2003 FCT 211 at para 45, the appeal was dismissed for mootness, see Canada (Minister of Citizenship and Immigration) v Dragan, 2003 FCA 233; see also Mersad v Canada (Citizenship and Immigration), 2014 FC 543 at para 15; 0769449 BC Ltd (Kimberly Transport) v Vancouver Fraser Port Authority, 2015 FC 252 at para 24). In this case, on August 3, 2017, the applicant sent the Minister a formal notice to exercise the jurisdiction provided under section 10 of the EIPA, but by taking as proved the facts alleged in the notice of amended application dated November 21, 2017, the Minister still refuses to respond to the notice and to act in accordance with the law.

[99]  In the Minister’s motion to strike, the Minister counters that she has no legal duty to act, such that none of the remedies sought in the notice of amended application dated November 21, 2017, can be granted by the Court, which of course the applicant challenges. I agree with the applicant that these issues cannot be decided on a preliminary basis and without evidence before the Court. This is not a summary judgment proceeding, where the Court, based on the evidence submitted by the parties, can decide a certain number of issues. At this stage, I am not persuaded that the applicant has no cause of action. The problem goes far beyond the context of the formal notice. The possible failure to exercise a public power, like the one set out in section 10 of the EIPA, is a justiciable issue.

[100]  Needless to say, the power to issue export permits under section 7 of the EIPA is a public act delegated by Parliament to the Minister whose permanence is ensured in practice by the regulatory nature of the permit that will be issued to the exporter. On the other hand – and this is very important for the orderly administration of the EIPA – section 10 of the EIPA confers to the Minister a general power to amend, to suspend, to cancel or to reinstate permits and authorizations issued or granted under the EIPA. In passing, it does not seem necessary to refer here to the doctrine of jurisdiction by necessary implication, according to which the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by it (see ATCO Gas & Pipelines Ltd v Alberta (Energy & Utilities Board), 2006 SCC 4 at para 51; Bell Canada v Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722 at pp 1756‑1758, 60 DLR (4th) 682).

[101]  Prima facie, there is nothing to prevent the Minister – after giving the permit holder the opportunity to make submissions – to amend the conditions of the permit, to suspend an authorization or permit, even to cancel any export permit, after the discovery of new facts or a final use that does not comply with the EIPA or its regulations, or with the specific conditions of any permit issued to the exporter. Even if section 10 of the EIPA does not impose an obligation on the Minister, the Court could intervene when the discretion at issue is not exercised in good faith, is based on considerations that are extraneous or irrelevant to the purpose of the EIPA or if the rules of procedural fairness were not respected (see Maple Lodge Farm v Government of Canada, [1982] 2 S.C.R. 2 at pp 7-8; 137 DLR (3rd) 558; YM (Sales) Inc v Canada (Minister of International Trade), 2008 FC 78 at paras 20-22).

[102]  The Attorney General of Canada would prefer that the Court could review the ministerial decision made by the Minister under section 10 of the EIPA only when a person is directly affected. In practice, it would limit the applications for judicial review to the exporter. Yet, for the moment, GDLS has no interest, from an economic or legal point of view, to ask the Minister to suspend or cancel the export permits on the grounds that Saudi Arabia used – as the applicant alleges in his notice of amended application dated November 21, 2017 – Canadian LAVs against civilian populations in 2017. On the other hand, CCC is a party to the military goods supply contract and could find itself in a difficult situation and face a demand for payment of penalties if the promised deliveries are not carried out. The fact remains that the integrity of the export permit still rests on the legislative affirmation of the  broad monitoring and oversight powers delegated by the EIPA to the Minister. How then can we ensure that the Minister acts in accordance with her legislative mandate at all times, to ensure continuous oversight of the export of military goods?

[103]  In this case, the applicant can seriously argue that the issue is not whether the Minister has any duty toward the applicant or GDLS. This is not a traditional permit issuance matter where the jurisprudential rules for issuing writs of mandamus govern the exercise of judicial jurisdiction. The applicant’s recourse is much broader and involves issues that relate to public interest and to the statutory interpretation of the powers to review and cancel export permits conferred to the Minister under section 10 of the EIPA. On the merits, the Courts will be called to determine whether the duty of the Minister – as the officer mandated by the EIPA to ensure the ongoing monitoring and oversight of the export of military goods – was performed within the law and in accordance with Parliamentary intent.

[104]  As already noted above, the applicant challenged in docket T-462-16 the lawfulness and the reasonableness of the decision previously made by the Minister to authorize the issuance of permits for the export to Saudi Arabia of LAVs manufactured by GDLS. Although the 2016 ministerial approval could be described as a “decision”, strictly speaking, such an act of public authority is not a judicial or quasi-judicial decision – since no right is formally decided by the Minister in the context of an adversarial relationship. It is more of a legislative act. And since it is a blanket authorization – valid for only six export permits – it is still necessary that the exporter later comply with all the statutory conditions and with other specific conditions contained in any subsequent permit issued under section 7 of the EIPA.

[105]  The legal characterization that could be made of the implied or express refusal alleged in the notice of amended application dated November 21, 2017, does not fall to the parties, but exclusively to this Court. It goes without saying that this characterization will depend on the evidence in the Court record and cannot be summarily decided at this stage. In fact, there is a clear distinction between making a decision – the refusal to act could itself be a decision – and the documentation of it (see Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services), 2001 SCC 41 at paras 2-3 [Mount Sinai Hospital Center]).

[106]  If the facts alleged in the notice of amended application are taken as proved – which are in passing supported by the documentary evidence relied on by the applicant in the notice of amended application – the Minister has new facts and tangible evidence in her possession (including public reports and videos) to the effect that Canadian LAVs have in fact been used by the Saudi State against civilian populations in 2017, in this case, in the largely Shiite city of Awamiya in the Qatif region. The allegation that, despite this new evidence, the Minister has refused to suspend or cancel the export permits issued to GDLS under the 2016 ministerial approval must also be taken as proved at this stage. It is not plain and obvious at this stage that the Minister’s implicit or express refusal to exercise the authority under section 10 of the EIPA is not reviewable or that the applicant does not have a reasonable cause of action.

D.  The argument that the application for judicial review is premature

[107]  According to the jurisprudence, the absence of a “decision” is not an absolute bar to an application for judicial review (see Amnesty International Canada v Canada (Attorney General), 2007 FC 1147 at para 69 and case law cited). That said, given that the record is incomplete, it is not appropriate for the Court to make a preliminary decision on the argument that the application for judicial review is premature, and given the fact that, according to the Attorney General of Canada, to date the Minister has not made a reviewable decision under section 10 of the EIPA. That is an issue that will have to be decided on the merits after a review of the evidence and the certified record, if applicable. Indeed the lack of transparency in the decision-making process is not a barrier that prevents the Court from examining the lawfulness of any ministerial action that could be disputed. The judicial dialogue that arises from the principle of separation of powers cannot be initiated without a certain candor and transparency from public authorities.

[108]  The problem here is that the ministerial approvals and the export permit issued under section 7 of the EIPA are not documents generally accessible to the public. The same applies to any decision to amend, suspend, cancel, or reinstate an export permit under section 10 of the EIPA. At the same time, the Minister’s deliberations and consultations will not be accessible until an application for judicial review questioning the legality or reasonableness of any such decision has been served on the Minister with a request for material under Rule 317. In fact, the applicant and the Court learned of the existence of the 2016 ministerial approval only after the service of the originating notice of application in docket T-462-16.

[109]  The question of whether or not the Minister decided to disregard the formal notice dated August 3, 2017, to reconsider the 2016 ministerial approval, and to suspend or cancel the export permits already issued under the 2016 ministerial approval, necessarily requires a review of the documents that are part of the certified record transmitted under Rule 318 to the Court’s registry Court and to the party who requested it. Yet, to date, despite this request for material included in the notice of application for judicial review served and filed on September 27, 2017, the Minister objected to transmitting to the Registry and to the applicant the documents regarding the reconsideration of the decision dated April 8, 2016 – following the new facts reported by the media in July 2017, or sent to the attention of the Minister in the formal notice dated August 3, 2017.

[110]  On the other hand, at the end of July 2017, the Minister as well as the Prime Minister stated to the media that the Federal Government took [translation] “very seriously the allegations” that the Canadian LAVs had been by Saudi Arabia to repress the Shiite minority: “We made a commitment, as a government, to be more open, more transparent, and more accountable towards Canadians about issues like these, and that is exactly what we are going to do” (Prime Minister). [translation] “If we discover that Canadian exports were used to commit serious human rights violations, Minister [Chrystia Freeland] will intervene” (statement by email from Global Affairs (Canada) (see Radio-Canada, La Presse Canadienne and RCI, “Ottawa se penche sur l’utilisation de blindés canadiens in Saudi Arabia”, Radio-Canada (July 29, 2017), on line: http://ici.radio-canada.ca/new/1047828/ottawa-armee-blindes-canadiens-arabie-saoudite).

[111]  On September 28, 2017, called out by the Member of Parliament for Montcalm on the subject of what the Minister intended to do following the allegations that Canadian LAVs were used against civilian populations, the Minister advised the House of Commons:

Mr. Luc Thériault (Montcalm, BQ):

Mr. Speaker, Saudi Arabia uses Canadian weapons against civilians.

On July 28, the minister said that she was going to take action. Nevertheless, armoured vehicles are still making their way to Riyadh, and Saudi money is still making its way to Canada.

 

Why does the Minister of Foreign Affairs want to sign the Arms Trade Treaty, when her government does not even intend to abide by it?

 

 Hon. Chrystia Freeland (Minister of Foreign Affairs, Lib.):

 

Mr. Speaker, Canada expects the end user of all exports to abide by the end use terms in issued export permits. I requested a review of the situation and department officials are actively requesting more information on these allegations. I can confirm that no new export permits have been issued for Saudi Arabia.

[112]  In passing, the Member of Parliament for Montcalm was referring to Bill C-47 entitled “An Act to amend the Export and Import Permits Act and the Criminal Code (amendments permitting the accession to the Arms Trade Treaty and other amendments)”. Note that according to Article 7, paragraph 7, of the Arms Trade Treaty, April 2, 2013, (entry into force on December 24, 2014) [ATT], an exporting State Party is encouraged to reassess its authorization, after consulting with the importing State, if appropriate, if it becomes aware of new relevant information indicating an overriding risk that the arms could be used to commit or facilitate a serious violation of international humanitarian law or international human rights law. Bill C-47 was given first reading on April 13, 2017. Since then, it has passed the second reading and was referred to the Standing Committee on Foreign Affairs and International Development on October 3, 2017. There is no legislative amendment foreseen for sections 7 and 10 of the EIPA for the moment – as the government is of the opinion that the current system for export permits is consistent with the provisions of the ATT and with Canada’s other undertakings.

[113]  The Attorney General of Canada says that the Minister did not make a reviewable decision. But how to be sure? The transparency of the decision-making power conferred to the Minister under the EIPA is at the heart of this debate before the Court. In this case, how can the applicant and all Canadian citizens know whether or not the Minister decided to refuse to suspend or cancel the export permits, following the new facts and evidence of Canadian LAVs being used against civilian populations? What undertaking has the Minister made to the Canadian population to act so that we can consider that she made a “decision” that raises the public’s legitimate expectations? From what moment can we say that a refusal to exercise statutory jurisdiction under section 10 of the EIPA arises from the Minister’s deliberation?

[114]  Without deciding on the merits of the objection made to the filing of the documents that were requested under Rule 317, the answer to these issues therefore depends on the evidence that will be reviewed on the merits of the application for judicial review and the content of the certified record. Several months have gone by since the formal notice was sent on August 3, 2017, and the Minister’s public undertaking to review the situation and act if necessary. Taking as proved the facts stated in the amended notice of application dated November 21, 2017, it must be concluded that the allegation of the refusal to act and the existence of a negative decision by the Minister is not without merit now at this stage of the proceedings.

[115]  In the absence of an affidavit from the Minister or an authorized representative from her Department, the Court cannot, at this stage, be content with the general statement contained in the letter dated October 17, 2017, addressed from the Minister’s counsel to the applicant’s counsel to the effect that [translation] “the only decision that was made in relation to the export permits issued to General Dynamics Land Systems Canada (GDLS) is the decision made on April 8, 2016, by the Honourable Stéphane Dion, Minister of Foreign Affairs, authorizing the issuance of these permits”. It is not plain and obvious at this stage that no decision was made and that the application for judicial review is premature.

E.  Remedies that can be granted on the merits of the matter

[116]  I am also of the opinion that the remedies that could be granted by the Court on the merits is a litigious issue that should be decided by the judge on the merits after considering the evidence in the record and the content of the certified record transmitted to the Court by the tribunal. In fact, pursuant to subsection18.1(3) of the FCA, the Court has to grant a remedy that is appropriate and adapted to the facts to correct errors made or problems raised in a matter.

[117]  Ultimately, the remedies may vary according to the Court’s legal characterization of the refusal or of the impugned decision. It depends on the nature of the reviewable errors and on the situation at the time when the Court is called to decide on the merits of the matter. By analogy, the following statement by the Supreme Court of Canada in Imperial Tobacco, at paragraph 21, invites motions judges to show caution before deciding, on a preliminary basis, that none of the remedies sought by the applicant can be granted by the Court:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. . . . The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions . . . Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[Emphasis added.]

[118]  Or, if there is an area of law that is not frozen, it is indeed administrative law. Largely dependent on principles enunciated by the superior courts, it is a perpetually evolving area of law and if there is a range of extraordinary remedies – injunction, writ of certiorari, of mandamus, of prohibition, or quo warranto, declaratory judgment – it is the jurisprudence that defined their contours and the conditions for exercising them. One thing is certain, however: the courts are not as attached to the particular form of the administrative act. What counts first is its legal effect. Because, needless to say, judicial review rests on the constitutional necessity – for the rule of law and the principle of separation of powers – that superior courts be able to verify the lawfulness – even the reasonableness – of any legislative or governmental action, whatever its nature or origin.

[119]  On the other hand, without deciding the case on the merits, I note however that the Federal Court may, in appropriate cases, make an order of mandamus that requires the Minister to exercise any discretion conferred to the Minister (see JP Morgan at para 94; Canada (Public Safety and Emergency Preparedness) v LeBon, 2013 FCA 55 at paras 14‑15). In fact the Apotex decision relied on in this case by the Attorney General of Canada clearly recognized that organizations with discretionary decision-making powers still face an order of mandamus, in certain cases (see Apotex; see also Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 at paras 41, 43, and 44; Mont-Sinai Hospital Center at para 117).

[120]  Finally, the Court has a broad declaratory power with respect to any tribunal or the Attorney General of Canada (see Bilodeau-Massé v Canada (Attorney General), 2017 FC 604 at para 39; see also CQDE; Native Women’s Association of Canada v Canada, [1994] 3 S.C.R. 627 at p 646, 119 DLR (4th) 224 [Native Women’s Assn. cited to SCR]). For example, in the case where an applicant – like in this case – has no proprietary or pecuniary interest in the outcome of the proceeding and is acting in the public interest, the appropriate remedy could be a declaratory judgment on the interpretation of the statute – here, section 10 of the EIPA – and the scope of any obligation of the responsible minister in the context of exercising a discretionary power (see MiningWatch Canada v Canada (Fisheries and Oceans), 2010 SCC 2 at paras 8, 12, 43 and 50-53). If the Court can grant a declaratory judgment when the notice of application contains a basket clause (see Native Women’s Association of Canada at pp 646-648), a fortiori, when the notice of application alternatively requires a declaratory judgment and/or a judgment setting aside the decision made, the respondent cannot complain that he is prejudiced.

[121]  By taking as proved the facts alleged by the applicant in the notice of amended application dated November 21, 2017, it is not plain and obvious at this stage that none of the remedies provided under sections 18 and 18.1 of the FCA can be granted by the Court in this case.

VII.  Conclusion

[122]  In conclusion, the Minister’s claims to the effect that this application has no chance of success, that it is redundant, and is ultimately an abuse of process are not founded in this case.

[123]  This motion to strike is dismissed without costs.

ORDER in docket T-1457-17

THE COURT ORDERS the motion to strike be dismissed without costs.

  “Luc Martineau” 

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		T-1457-17
STYLE OF CAUSE:		DANIEL TURP v THE MINISTER OF FOREIGN AFFAIRS AND DYNAMICS LAND SYSTEMS CANADA INC.
PLACE OF HEARING:	Ottawa, Ontario
DATE OF HEARING:	novembeR 20, 2017
ORDER AND REASONS:	MARTINEAU J.
DATED:	JANUARY 9, 2018

APPEARANCES:

André Lespérance Anne-Julie Asselin	for the applicant
Bernard Letarte Vincent Veilleux	for the respondent THE MINISTER OF FOREIGN AFFAIRS

SOLICITORS OF RECORD:

Trudel Johnston & Lespérance Avocats / Barristers & Solicitors Montréal, Quebec	for the applicant
Attorney General of Canada	for the respondent THE MINISTER OF FOREIGN AFFAIRS