Khadr v. Canada (Attorney General), 2004 FC 1719

Date: 20041209

Docket: T-937-04

Citation: 2004 FC 1719

BETWEEN:

                                                       ABDURAHMAN KHADR

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                       REASONS FOR ORDERS

MacKAY D.J.:

[1]                When this matter came on for hearing on November 3, 2004, there were before the Court opposing interlocutory motions in relation to the notice of application for judicial review filed by the applicant, Mr. Khadr, on May 13, 2004. The applicant's motion seeks leave to amend the notice of motion of May 13, while the respondent's motion seeks an Order quashing the decision in question, i.e. the refusal of the applicant's request for a passport.

[2]                The notice of motion of May 13, 2004 sought review of a decision apparently made by the Director of the Passport Office, an agency of the Department of Foreign Affairs, by letter dated April 16, 2004, whereby Mr. Khadr's application for a passport was denied. No reasons were given and by letter of April 30, 2004 counsel for the applicant requested reasons for the decision. When none were disclosed, Mr. Khadr filed the notice of application on May 13, 2004 seeking review of the decision. The notice sought an Order of mandamus requiring the issuance of a passport to Mr. Khadr, or a declaration that he is entitled to have a Canadian passport.

[3]                On July 2, 2004, the respondent served, under a covering letter from counsel, as responding material, the affidavit of the Deputy Director Security Operations of the Passport Office. The letter, and the affidavit, revealed that the decision to deny a passport to Mr. Khadr had been made on March 3, 2004 by the Minister of Foreign Affairs in exercise of the Crown prerogative on the basis of national security concerns.

[4]                The letter of July 2 expressly stated that the decision was not made under the Canadian Passport Order, SI/81-86, which authorizes the general practices of the Passport Office, rather it was made under the Crown prerogative based on privileged information from CSIS, i.e. the Canadian Security Intelligence Service, which required that the information not be disclosed. Until the communications of July 2, 2004, the circumstances of the refusal by the Minister were unknown by the applicant.

[5]                By the letter from respondent's counsel on July 2 the applicant was advised that the Minister, on the ground that his previous decision was made without proper regard for the principle of fairness, "will consent to an Order setting aside" his decision. Thereupon Mr. Khadr could re-apply for a passport and he would be provided with the information contained in any recommendation to the Minister, except for information considered privileged, and with an opportunity before any decision to comment on the information revealed to him. Further, when a new decision is made, reasons for it would be provided.

[6]                After correspondence exchanged between counsel for the parties, about the process each proposed to deal with the notice of application for judicial review filed May 13, 2004, the applicant made clear that amendment of the motion would be sought, rather than accepting the proposal that he re-apply for a passport if the decision of the Minister, conceded to have been made contrary to principles of fairness, were set aside.

[7]                Then on September 1, 2004, the Governor General in Council made an Order Amending the Canadian Passport Order, P.C. 2004-951, (SI/2004-113, registered 22 September 2004) which provides, inter alia:

[8]                Prior to the making of the Amending Order, the Canadian Passport Order provided, inter alia that every passport shall be issued in the name of the Minister and shall remain the property of Her Majesty in right of Canada (s. 3), that every person who is a Canadian citizen under the Citizenship Act may be issued a passport (s. 4), if he or she has applied to the Passport Office in a form prescribed by the Minister (s. 5), and has supplied the necessary documentation (s. 6) and information (s. 8).

[9]                On September 14, 2004 the respondent, the Attorney General of Canada filed a notice of motion for an Order allowing the applicant's motion for judicial review, setting aside the decision of the Minister made on March 3, 2004, and referring the applicant's application for a passport to be reconsidered by the Minister in accord with the princples of procedural fairness.

[10]            On September 30, 2004 the applicant's notice of motion was filed for an Order for leave to amend the original notice of motion by the addition of further grounds including:

i)              that The Crown Prerogative cannot be exercised by the Minister of Foreign Affairs respecting the refusal to issue a passport to a Canadian citizen consistently with the rule of law, which requires known legal rules adequately accessible to the public.

ii)             that the refusal of a passport to the Applicant on the grounds of Canada's national security interests is a violation of the Applicant's rights under s. 6 and s. 7 of the Canadian Charter of Rights and Freedoms.

[11]            When the matter was heard, after brief discussion with counsel the Court directed that the applicant's motion to amend be presented first. Thereafter the Crown's motion to allow judicial review because the concession of the respondent is said to render moot the hearing of the applicant's motion, and presumably of the original motion for judicial review itself.

[12]            I am not persuaded that the issues between the parties are moot as a result of the concession proposed by the Crown. The issue the applicant seeks to contest by the amendments proposed is the validity of the decision of the Minister of March 3, 2004, in light of the principles of the Rule of Law and of the Charter. This issue is not answered by the Crown's concession that the decision of the Minister was in breach of the principles of fairness by failure to provide an opportunity for Mr. Khadr to be informed, and to comment upon, information that was in the public record before the Minister when the decision was made.

[13]            Counsel for both parties accept that the grant or refusal of a passport is a matter within the prerogative power of the Crown. They agree that refusal of a passport application on grounds of national security is not within the authority vested in the Passport Office by the Canadian Passport Order. There was no suggestion to the Court concerning a statute or order vesting that specific authority in the Minister of Foreign Affairs or anyone else prior to the making of the Amending Order on September 1, 2004. The authority of the Minister to refuse an application for a passport on national security grounds at the time of his decision to do so, March 3, 2004, was not an issue directly discussed by the parties, aside from the grounds now sought by the applicant to be added by amendment to the original notice of motion.

[14]            Whether either of those grounds, or the issue of the delegation of authority to the Minister and the effective date of any delegation, would be determinative if the applicant's amended motion were heard, was not debated before me. The respondent's motion and the argument that the basic issue between the parties is moot may rely implicitly upon the assumption that the Minister was authorized to exercise the prerogative authority though it was exercised unfairly. Implicitly also, it may be based on the perception that the relief sought by the applicant would be met by an order setting aside the Minister's decision. The applicant, however, seeks an Order in the nature of mandamus directing the issuance of a passport as applied for, or a declaration that he is entitled to one, not merely that the Minister consider his application again.

[15]            The respondent urges not only that the main issue between the parties is now moot, but that there is not a basis on which the Court should permit the matter to be decided, for that would unnecessarily involve further judicial proceedings, and it would deal prematurely with an issue which might not arise if the matter were remitted to the Minister for redetermination in a fair process.

[16]            I am not persuaded that the issues raised by the applicant are resolved by the proposal of the respondent, and the applicant urges its motion for mandamus should be permitted to proceed in light of the legitimate expectations of Mr. Khadr at the time he applied for a passport. Whether he may succeed in that motion has yet to be argued. It is not an answer to his concern that the Minister, not the Passport Office as he was led to believe, decided to refuse his application, at least where the lack of authority of the Minister to make the decision when it was made is not conceded.

[17]            Finally, in written submissions in response to the applicant's motion to amend, the respondent urges

Given the Minister's power to revoke, and the Executive's general responsibility to ensure the national security of Canada, the effect of an adjudication of the applicant's proposed jurisdictional amendments, will, at the most be temporary. The Minister's jurisdiction to decide whether he is of the opinion that revocation of a passport is necessary for national security is now expressly stated, regardless of what his prerogative powers were prior to the amendments. It is the decision made on this national security issue that will have a practical effect on the applicant's rights.

[...]

[...] A new decision may resolve all of the applicant's issues, if the Minister decides that a passport should be issued. If the Minister decides to refuse the applicant a passport, this Court will be able to review the real issues in controversy between the parties, on a full and complete record.

[18]            The submissions invite this Court to ignore any question concerning the jurisdiction of the Minister to make the decision of March 3. In my opinion, the proper exercise of the prerogative, by anyone purporting to be authorized, is a matter of concern to the Court when it is raised by an individual affected by the exercise.

Conclusion

[19]            In the result, I am persuaded that the applicant's motion for leave to amend the notice of motion filed on May 13, 2004 shall be allowed in the terms sought, that is by amending the grounds urged for the relief sought.

[20]            The conflicting motion of the respondent to allow judicial review by striking the Minister's decision of March 3, 2004 and remitting the matter for his reconsideration, granting relief but of a different nature than that sought by the applicant, is dismissed.

Costs

[21]            When this matter was heard the applicant requested "full costs" of this motion, not merely party and party costs, payable forthwith, in view of Mr. Khadr's limited or lack of financial resources. Written argument requested only costs of this motion pursuant to the Court's Rules. For the respondent, while admitting the unfair decision of the Minister might warrant costs of the original notice of motion, it was urged that an award of costs of these interlocutory proceedings would be inappropriate.

[22]            In my view, the Court's Rules support an award of costs on a successful motion, but as party and party costs, not on a solicitor-client or "full costs" basis. In my view, the circumstances here warrant an award of costs to the applicant on a party and party basis, in an amount that counsel may agree upon, and failing agreement then in an amount fixed at $1,000., payable forthwith.

                                                                       "W. Andrew MacKay"

                            Deputy Judge

Ottawa, Ontario

December 9, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                               T-937-04

STYLE OF CAUSE: Abdurahman Khadr

- and -

Attorney General of Canada

PLACE OF HEARING:         Toronto, Ontario

DATE OF HEARING:           November 3, 2004

REASONS FOR ORDER

AND ORDEROF                  THE HONOURABLE MR. JUSTICE W. ANDREW MACKAY

DATED:                                  December 9, 2004

APPEARANCES:

Mr. Clayton C. Ruby

Ms. Emily Morton                                                         FOR APPLICANT

Mr. Peter Southey

Mr. Michael Morris                                                       FOR RESPONDENT

SOLICITORS OF RECORD:

Ruby & Edwardh

11 Prince Arthur Avenue

Toronto, Ontario

M5R 1B2                                                                     FOR APPLICANT

Mr. Morris Rosenberg

Deputy Attorney General of Canada

Department of Justice

Toronto, Ontario

M5X 1K6                                                                     FOR RESPONDENT