Travel Restrictions in a Pandemic: What are your Charter Rights?

The COVID-19 pandemic has modern Canada facing unprecedented challenges. The severity of the crisis has led governments to restrict personal liberties in ways that were unthinkable only a few weeks ago. One of these restrictions is the decision to place limitations on travel. The mobility rights of all Canadians are protected by section 6 of the Charter of Rights and Freedoms .[1] Though it is an infrequently discussed section of the Charter, the protections afforded by section 6 figure prominently in this era of government-mandated travel restrictions. (more…)

Mobility Rights

At their most basic, mobility rights allow individuals to move from place to place, largely free from government intervention. In a country as large and diverse as Canada, the ability to live and work in a location of your choosing, and enter and leave the country freely, are of great importance.

The significance of these rights is reflected in their inclusion as section 6 of the Charter of Rights and Freedoms.[1]

The Mobility Rights section of the Charter is subdivided into: (1) the mobility right of citizens and (2) the right to move and to gain a livelihood for citizens and permanent residents.

(1) The mobility right

This right allows all citizens of Canada to enter, remain in, and leave Canada as they please. To facilitate this right, the courts have decided that citizens also have a right to a government-issued passport.[2] The mobility right does not extend to permanent residents and those who are non-citizens.[3] Non-citizens can be refused entry into the country without the need for justification, and their admittance into Canada can be subject to strict conditions (e.g. visa conditions).[4] They also do not have a right to remain in the country once their pre-determined stay in the country has expired, unless they apply for an extension, or for permanent resident status.[5]

(2) The rights to move and to gain a livelihood

These rights allow Canadian citizens and permanent residents to move freely about and reside in, any province they choose. They also grant the right to earn a livelihood in any province. It should be noted that this however, does not create a constitutional right to work.[6] You can apply for a job in any province, regardless of which province you are coming from, but that does not give you a constitutional right to a job.[7]

Section 6(2)’s Built-in Limitations

The rights to move and to gain a livelihood are subject to specific limitations which are outlined within Section 6 of the Charter. The rights are subject to provincial laws that do not discriminate primarily on the basis of one’s province of residence (either past or present), and are meant to apply generally to everyone in that province. This limit would save laws that require both in-province and out-of-province individuals to re-license or re-certify, in a regulated profession such as law or medicine, before being allowed to practice.[8] This is because these provincial licensing requirements apply to everyone equally. Similarly, requiring a person to obtain a new driver’s license or health care insurance when s/he moves to a different province is considered justifiable.

In addition, both provincial and federal laws that are passed to ensure individuals qualify for social services/assistance (based on reasonable residency periods) are allowed to limit this right.[9] For example, British Columbia revokes social assistance if the recipient is absent from the province for more than 30 consecutive days per year.[10]

Finally, certain laws, programs or activities are allowed to discriminate based on province of residence, so long as their objective is improving the conditions for socially or economically disadvantaged individuals.[11] In this way, an ‘affirmative action’ law or activity that ensures preferential hiring of certain individuals residing in a province could be constitutional, despite the fact that it, on its face, infringes on the mobility rights of others.[12]

Justifiable Infringement of Section 6

Mobility rights, like all other Charter rights, are subject to reasonable limits as prescribed by law. This means that the government may justify an infringement of section 6 rights. Say for example, that you were on Canada’s equivalent of the no-fly list, the Passenger Protect Program.[13] If your inclusion on that list had a valuable or important purpose the Government would likely be able to argue that its infringement of your mobility right – to leave the country – was justified as a reasonable limit under section 1 of the Charter. In a case involving the denial of a passport to a Canadian citizen – and convicted terrorist – the Federal Court of Appeal held that the government’s decision was justifiable, as the denial was a reasonable method of addressing national security concerns.[14]

Not Withstanding

Interestingly, mobility rights are not subject to the “notwithtanding” clause that allows Parliament or a provincial legislature to override certain Charter rights and freedoms.[15] As such, provinces can not ‘opt out’ and enact a law that allows for a specific limitation of mobility rights. So, while a province may wish to pass legislation protecting the livelihood of their own residents by restricting the ability of residents of other provinces to gain employment (for example), unless that legislation falls within the built-in limitations of Section 6, or is a justifiable infringement, it is unconstitutional for them to do so.

[1] Canadian Charter of Rights and Freedoms,Part 1 of the Constitution Act, 1982, s 6, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[2] Kamel v Canada (Attorney General), 2008 FC 338, [2009] 1 FCR59, aff'd 2009 FCA 21, [2009]4FCR 449.

[3] Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) (loose-leaf revision 1) vol 2 at 46-1 [Hogg]; see also Government of Canada, “New Immigrants – Life in Canada: Carrying identification and traveling outside of Canada” (13 November 2013), online: <http://www.cic.gc.ca/english/newcomers/after-life-id.asp>.

[4] Hogg, supra note 3 at 46-1, 46-2.

[5] Canada, “Extend your stay in Canada as a visitor” (24 June 2016), online: <http://www.cic.gc.ca/english/visit/extend-stay.asp>.

[6] Mollie Dunsmuir & Kristen Douglas, “Mobility Rights and the Charter of Rights and Freedoms” (19 August 1998), online: <http://publications.gc.ca/Collection-R/LoPBdP/CIR/904-e.htm#2.%20%20Selftxt>.

[7] See Law Society of Upper Canada v Skapinke,[1984] 1 SCR 357 at 382, DLR (4th) 161.

[8] Hogg, supra note 3 at 46-7. It should however be noted that virtually all provinces in Canada have acted to increase labour mobility: see Agreement on Internal Trade (entered into force 1 July 1995), online: <www.ait-aci.ca/>.

[9] Charter, supra note 1 at s 6(3)(b).

[10] British Columbia, “Residency in BC Eligibility” (20 May 2010), online: <www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/residency>.

[11] Ibid at s 6(4). This discrimination is allowed to happen when the disadvantaged individuals reside in a province with an employment rate below the national average, see Hogg, supra note 3 at 46-8.

[12] Hogg, supra note 3 at 46-8.

[13] Public Safety Canada, “Recourse for Listed Persons” (20 June 2016), online: <http://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/pssngr-prtct/rcnsdrtn-eng.aspx>.

[14] Kamel v Canada (Attorney General), [2009] 4 FCR 449, 2009 FCA 21 (CanLII).

[15] Charter, supra note 1 at s 33; Hogg, supra note 3 at 39-5, 46-2.

The "Khadr Resolution" & the Conservative Party convention, 2011

During the lead-up to the 2011 Conservative Party convention in Ottawa, media attention turned to a proposal termed by some as the “Khadr Resolution”.[1] The resolution was inspired by the case of Omar Khadr, a young Canadian citizen who fought alongside the Taliban in Afghanistan in 2002, while Canada was engaged in combat against the Taliban.[2] The case was controversial because it pitted the Canadian government's duty to protect citizens' Charter rights against its interest in punishing what might amount to treason.[3]

If the Khadr Resolution had been successful, the Conservative Party would have sought to allow the revocation of Canadian citizenship as punishment for those convicted of treason. This would have required an amendment to the Criminal Code.[4] Members voted to defeat the resolution. This proposal raises questions regarding the appropriate limits for government action in redefining citizenship. Does the government violate a constitutional right when it arbitrarily changes the rules of citizenship acquisition or revocation?   The answer to this question is unclear, since the Canadian Charter of Rights and Freedoms does not contain an explicit right to citizenship. Some might fear that the government will be allowed to sidestep its duty to protect citizens' Charter rights under sections 3, 6, & 23 simply taking a person's citizenship away through the enactment of legislation. In other words, when the government simply enacts legislation that revokes people’s citizenship, people will automatically lose the Charter rights that specifically protect them as citizens. If the Khadr Resolution had been agreed to, there are many ways in which it would likely have been challenged: i)        based on the argument that the Charter contains a right to citizenship; or, ii) based on the argument that the arbitrary removal of an individual's Canadian citizenship to constitute a violation of that individual's “security of the person”.[5]

[1]    See Steven Chase, “Conservatives reject proposal to strip citizenship of anyone fighting against Canada”, Globe and Mail (11 June 2011). [2]    “Indepth: Khadr”, CBC News Online (30 October, 2006). [3]  See Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44. [4]    Criminal Code, RSC 1985, c C-46, s 46. [5]    This would be based on the idea that the proposed amendment might have violated section 7 of the Charter; that is, “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

Supreme Court Declines to Hear Terrorist’s Charter Appeal of Denied Passport

On August 20, 2009, the Supreme Court of Canada decided not to hear an appeal from a convicted terrorist living in Canada who had applied for a Canadian passport. Earlier this year, in Canada (Attorney General) v. Kamel,[1] the Federal Court of Appeal determined that the discretion of the Minister of Foreign Affairs to deny a passport is constitutional. Following its normal practice, the Supreme Court did not give reasons for dismissing the application for leave to appeal; its refusal to hear the case, however, does not necessarily mean the Court thinks the lower court rightly decided the case.[2]

Background

Fateh Kamel, a Canadian citizen since 1993, was convicted by a French court of membership in a terrorist organization and complicity in the forgery of three Canadian passports. He was imprisoned in France, where he served half of his eight-year sentence. Upon his release in 2005, the Canadian government provided him with a temporary passport so he could return home to Montréal.[3]   In 2005, Kamel applied for a new passport to fly to Thailand on business. His application was denied.[4] The denial was at the discretion of the Minister of Foreign Affairs, as provided by sections 4 and 10.1 of the Canadian Passport Order:

4. (3) Nothing in this Order in any manner limits or affects Her Majesty in right of Canada’s royal prerogative over passports. (4) The royal prerogative over passports can be exercised by the Governor in Council or the Minister on behalf of Her Majesty in right of Canada.

10.1 Without limiting the generality of subsections 4(3) and (4) and for greater certainty, the Minister may refuse or revoke a passport if the Minister is of the opinion that such action is necessary for the national security of Canada or another country.[5]

Mr. Kamel challenged the constitutional validity of section 10.1 of the Passport Order, arguing that it breached his mobility rights. Section 6(1) of the Charter provides that “every citizen of Canada has the right to enter, remain in and leave Canada.”

Charter Mobility Rights

Both levels of the Federal Court found that section 10.1 of the Passport Order breaches section 6(1) of the Charter. The trial decision noted that it may be theoretically possible to enter and exit Canada without a passport, but it is not the practical reality.[6] Unanimously, the Federal Court of Appeal agreed:

To determine that the refusal to issue a passport to a Canadian citizen does not infringe that citizen’s right to enter or leave Canada would be to interpret the Charter in an unreal world…. [T]here are very few countries that a Canadian citizen wishing to leave Canada may enter without a passport and very few countries that allow a Canadian citizen to return to Canada without a passport…. Subsection 6(1) [of the Charter] establishes a concrete right that must be assessed in light of present day political reality. What is the meaning of a right that, in practice, cannot be exercised?[7]

According to both the trial and appeal courts, then, the ability of the Minister of Foreign Affairs to deny a passport to a Canadian citizen is contrary to Charter mobility rights.[8] Consequently, the constitutional question turned on section 1 of the Charter, which authorizes limitations on Charter rights as long as they are both “prescribed by law” and “demonstrably justified in a free and democratic society.”

Reasonable Limits: “prescribed by law”

The trial and appeal levels of the Federal Court parted company on the question of whether the Minister’s discretion to deny a passport is genuinely “prescribed by law.”   At the trial level, the Federal Court found that section 10.1 of the Passport Order did not pass this hurdle under section 1. The limitations on mobility rights are not “prescribed by law” because this part of the Passport Order is not a law.[9] The judge found that it lacks the necessary precision: “The applicant contends that the Order is not law. I agree. Its source lies in the royal prerogative; it is … vague and it is ultimately overbroad.”[10] The court noted in particular the lack of any explanation of the term “national security” in thePassport Order:

How can anyone know what the rules of the game are when the basic concept on which the decision rests exists only in the mind of the decision maker? It seems to me that we have entered the realm of the arbitrary. National security would at least have to be placed in some context….[11]

Having found that the power to deny a passport is not “prescribed by law,” the trial court saw no need to proceed to an analysis of whether it is justified in a free and democratic society.[12]   The Federal Court of Appeal rejected the trial judge’s conclusion that section 10.1 is too vague to be a law.[13] Applying the Supreme Court of Canada’s standard of “vagueness,” the Court of Appeal found that “the Order satisfies the test of precision that is required to constitute a ‘law’ … within the meaning of section 1 of the Charter.”[14] The appeal court noted that under Supreme Court precedent, “the threshold for finding a law vague is relatively high” and “a law is unconstitutionally vague [only] if it does not provide an adequate basis for legal debate and analysis.” Further, “some fields, such as international relations and security, do not lend themselves to precise codification.”[15]   In particular, the appeal court cited a Supreme Court decision in finding the term “national security” precise enough to amount to “law” under the Charter.[16] Therefore, the Passport Order is constitutional under the “prescribed by law” standard. Nonetheless, an individual decision of the Minister under the Order may be unconstitutional:

If the court believes that, in a given case, the link between the refusal to issue a passport and the national security of Canada or another country was not established or that the Minister’s decision does not meet the other requirements of Canadian administrative law, the remedy is not to strike down the enabling provision but to set aside the decision.[17]

Reasonable Limits: “demonstrably justified”

Having found that the Minister’s decision-making power “prescribed by law,” the Federal Court of Appeal proceeded to consider justifications for the power, as section 1 of the Charter requires. The appeal court applied the section 1 test (the Oakes test). The court found that “a passport is an essential work tool for terrorist groups.”[18] Thus there is a “causal connection between the violation – refusing to issue a passport – and the benefit sought – maintaining the good reputation of the Canadian passport and Canada’s participation in the international fight against terrorism.”[19]   The Court of Appeal went on to find that the denial of a passport is a “minimal impairment” of mobility rights, and the effects of the impairment are proportional to the objective of the Passport Order.[20] The infringement of section 6 mobility rights is therefore justified under section 1.[21]   With the Supreme Court’s decision not to hear Kamel’s appeal, the decision of the Federal Court of Appeal is the final word on section 6 of the Charter and ministerial discretion to withhold a passport on grounds of national security.

[1] 2009 FCA 21. [2] “Judgments in Leave Applications” Supreme Court of Canada (20 August 2009); Hogg, Peter W.,Constitutional Law of Canada, 2008 Student ed. (Toronto: Thomson Carswell) at 256. [3] Supra note 1 at paras. 5-6. [4] Ibid. at paras. 7-8. [5] Canadian Passport Order, SI/81-86. [6] Kamel v. Canada (Attorney General), 2008 FC 338 at paras. 112-113. [7] Supra note 1 at para. 15. [8] Ibid. at para. 68. [9] Supra note 6 at paras. 115-132. [10] Ibid. at para. 120. [11] Ibid. at para. 128. [12] Ibid. at para. 132. [13] Supra note 1 at para. 19. [14] Ibid. at para. 31. [15] Ibid. at para. 20. [16] Ibid. at para. 30. [17] Ibid. at para. 31. [18] Ibid. at para. 53. [19] Ibid. at para. 56. [20] Ibid. at paras. 65-67. [21] Ibid. at para. 68.

Abdelrazik Set to Return to Canada, as Government Retreats from Confrontation

Author: Jim Young and Ken Dickerson[1]

A Canadian citizen who has spent more than a year living in a Canadian embassy, unable to return to Canada amid suspicions of terrorist sympathies, is about to return to Montreal. The Government of Canada has announced that it will comply with – and apparently will not appeal – a Federal Court order to issue him a passport and assist him in returning to Canada.[2]
 
Government Avoids Collision with Court

The Federal Court’s June 4th decision in Abdelrazik v. Canada[3]ordered the Government of Canada to make arrangements no later than June 19, 2009 to repatriate Abousfian Abdelrazik. He has been stranded in the Canadian embassy in Sudan, trying to obtain a passport so he can return to Canada. In the week that followed the decision, opposition members demanded to know when, how, and even whether, the government would comply with the court order. The government answered every question with essentially the same taciturn answer, saying only that they were reviewing the court decision and would make their own decision in due course.[4]

The government’s reticence invited speculation on its intentions.[5] Would the government appeal? Would it ignore the decision completely and maintain a collision course with the court? What would happen if the government were to be found in contempt of court?

This speculation was rendered moot in Question Period on June 18, when Justice Minister Rob Nicholson responded to the latest demand for answers on Abdelrazik with a succinct answer that seems to have surprised the House.[6] He said, “Mr. Speaker, the government will comply with the court order.”[7]. It seems that Canada’s “remarkable history of compliance with court decisions” is intact. [8] 

Charter of Rights and Freedoms to the Rescue: the Significance of the Federal Court Decision

The June 4 decision shows the Federal Court applying the Charter to redress the government’s ill-treatment of a citizen, rather than identifying and repairing flaws in legislation. Much more than a typical constitutional case, Abdelrazik raises issues of the separation of powers between the courts and the executive, rather than the separation between the courts and the legislature (or Parliament).

In simple terms, the court’s judgment required the government to help Abdelrazik, not because the government was acting outside the laws of Parliament, and not because it was following an unconstitutional law, but because it used its discretionary powers in a way that breached one of Abdelrazik’s Charter rights.

The Charter right the government violated is subsection 6(1): “Every citizen of Canada has the right to enter, remain in and leave Canada.” The court interpreted its effect as follows:

In my view, where a citizen is outside Canada, the Government of Canada has a positive obligation to issue an emergency passport to that citizen to permit him or her to enter Canada; otherwise, the right guaranteed … in subsection 6(1) of the Charter is illusory.[9]

The decision makes it clear that Abdelrazik was not obligated to exercise his Charter rights in a wise or cautious way:

In March 2003, Mr. Abdelrazik traveled to Sudan in order to visit his ailing mother and, he says, to escape harassment by the Canadian Security Intelligence Service (CSIS) in the wake of the terrorist attacks against the United States of America on September 11, 2001…. The wisdom or foolishness of his choosing to return to his country of birth is irrelevant to the application before this Court. Charter rights are not dependent on the wisdom of the choices Canadians make, nor their moral character or political beliefs. Foolish persons have no lesser rights under the Charter than those who have made wise choices or are considered to be morally and politically upstanding.[10]

In effect, it was no defence for the government to say that Abdelrazik should have been more careful to avoid raising suspicions about himself.

Moreover, the government could not use international anti-terrorism measures as an excuse to deny Charter rights. Mr. Abdelrazik’s 2003 visit to Sudan was extended when Sudanese authorities detained him on the recommendation of CSIS.[11] It was further complicated in 2006 when he was listed by the United Nations “1267 Committee” as a suspected terrorist associate – apparently at the request of the United States.[12] Justice Zinn of the Federal Court of Canada criticized the unfairness of the United Nations procedure in a tone of genuine outrage,[13] and concluded:

[I]t is disingenuous of the respondents [the Ministers of Justice and Foreign Affairs] to submit, as they did, that if he is wrongly listed the remedy is for Mr. Abdelrazik to apply to the 1267 Committee for de-listing and not to engage this Court. The 1267 Committee regime is … a situation for a listed person not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime.[14]

Mr. Abdelrazik would have returned to Canada in April if the Minister of Foreign Affairs had not abruptly denied him an emergency passport. The Federal Court found that “the only reason that Mr. Abdelrazik is not in Canada now is because of the actions of the Minister on April 3, 2009.”[15]

The Federal Court found a specific Charter breach specifically in the failure, under section 6, to issue an emergency passport earlier this year.[16] The judge went on to say:

Had it been necessary to determine whether the breach was done in bad faith, I would have had no hesitation in make that finding on the basis of the record before me.[17]

These remarks were directed on June 4 at the respondents in the case, the ministers of Foreign Affairs and Justice. It is hard not to read them as a rebuke to the current ministers, who were both in the same ministerial positions on April 3. A judgment such as this brings the separation-of-powers issue into sharp focus.

The Abdelrazik decision acknowledges “a tension in this case between the roles of the executive and the judiciary. This is a positive tension; it results from the balancing necessary in a constitutional democracy that follows the rule of law.”[18] The “positive tension” nonetheless puts the government and the court in a relatively unfamiliar and uncomfortable relationship:

Although tensions between the Legislature and the Judiciary inevitably arise as the result of courts invalidating legislation, they are minor compared to the tensions that can arise between the Judiciary and the Executive.[19]

These tensions may be most acute – as in Abdelrazik and the key Supreme Court of Canada precedent, Doucet-Boudreau v. Nova Scotia[20] – when a court places itself in the position of ordering specific and ongoing actions by the government, and then retains jurisdiction to supervise the government’s compliance with the order.

The Court Order: Did the Court Overstep Its Authority?  

Referencing the Supreme Court’s decision in Doucet-Boudreau, Justice Zinn agreed that the court should go no further than it has to when fashioning a remedy for a Charter breach.[21]

The order in the Abdelrazik decision required the government to arrange for transportation from Khartoum to Montreal within 15 days, and to ensure that Mr. Abdelrazik arrived in Canada no later than 30 days from the date of judgment. As well, “the Court reserve[d] the right to oversee the implementation of this Judgment and reserve[d] the right to issue further Orders as may be required to safely return Mr. Abdelrazik to Canada.”[22]

The court considered the bounds of its authority, saying that “the manner of returning Mr. Abdelrazik, at this time, is best left to the [government] in consultation with [Abdelrazik], subject to the Court’s oversight, and subject to it being done promptly.”[23]

Calgary lawyer Laura Snowball,[24] who appeared before the Supreme Court in Doucet-Boudreau, says that Justice Zinn fashioned “a remedy that takes into account the inherent tension between a just, meaningful and timely remedy for the Canadian citizen whose Charter rights have been breached, and the constitutional necessity of leaving the government as much discretion as possible in how (not whether) it fulfills its Charter duties.”[25]

Ms. Snowball added that Zinn’s reasons “show clearly that the court was conscious that Doucet-Boudreau is the guiding precedent.” The decision shows the court’s understanding that “those principles are about the tension between granting meaningful remedies for the citizen and respecting the discretionary authority of the executive in how it meets its Charter obligations.”[26]

Asked if Abdelrazik represents an extraordinary intrusion of courts into public administration, Snowball said she “would be inclined to say that the court’s order is about encouraging compliance rather than supervising it. It may turn into supervision if the deadlines are not met and the government fails to provide a legal excuse, or demonstrate impossibility of compliance.”[27]

In general, Snowball expects that “courts will be reluctant to tell the executive how to comply with its constitutional obligations in any particular instance; setting calendar deadlines for compliance is much less [assertive] than directing how to carry out the obligation in question.”[28]

The court order that will bring Abdelrazik home to Canada shows how the constitution, including the Charter, can be a practical tool of last resort for Canadian citizens. The conclusion of his ordeal, ultimately, illustrates the health and vigour of the Canadian system of government.

 

[1] Jim Young is a student in the Faculty of Law, University of Alberta. Ken Dickerson is Program Manager at the Centre for Constitutional Studies. The authors’ views do not necessarily reflect those of the Management Board and staff of the Centre for Constitutional Studies.
[2] Paul Koring, “I want to hold my children” The Globe and Mail (19 July 2009).
[3] 2009 FC 580 (“Abdelrazik”).
[4] House of Commons, Hansard (5 June 2009) at 1140, Hansard (8 June 2009) at 1445, Hansard (9 June 2009) at 1450, Hansard (15 June 2009) at 1155.
[5] Canadian Press, “Ottawa must act on Abdelrazik ruling, lawyers say” Toronto Star (15 June 2009).
[6] Aaron Wherry, “The Commons: And then, suddenly, an answer” macleans.ca  (18 June 2009).
[7] House of Commons, Hansard (18 June 2009) at 1420.
[9] Abdelrazik at para. 152.
[10] Ibid at para. 12.
[11] Ibid at para. 91: “I find, on the balance of probabilities, on the record before the Court, that CSIS was complicit in the initial detention of Mr. Abdelrazik by the Sudanese.”
[12] Ibid at paras. 23-24.
[13] Ibid at paras. 51-54. Para. 51: “The accuser is also the judge.” Para. 53: “One cannot prove that fairies and goblins do not exist any more than Mr. Abdelrazik or any other person can prove that they are not an Al-Qaida associate.” Para. 54: “I pause to comment that it is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion.”
[14] Ibid at para. 53.
[15] Ibid at para. 148 (emphasis in original).
[16] Ibid at para. 153.
[17] Ibid
[18] Ibid at para. 5.
[19] Hon. Justice McHugh AC, “Tensions between the Executive and the Judiciary,” speech at Australian Bar Association Conference (10 July 2002).
[21] Abdelrazik at para.158.
[22] Ibid at para.168.
[23] Ibid at para.161.
[24] Laura Snowball is a litigation lawyer with the Calgary firm Davison Worden LLP. Her practice includes Federal Court matters. Ms. Snowball was interviewed by the Centre for Constitutional Studies (CCS) on June 19, 2009.
[25] Snowball interview with CCS (19 June 2009).
[26] Ibid.
[27] Ibid.
[28] Ibid.

Court Orders Canadian Government to Bring Abdelrazik Home

On June 4, 2009, Federal Court Justice Russell Zinn ordered the government to take immediate action to repatriate Abousfian Abdelrazik, a Canadian citizen who has been stranded in Sudan since 2004. Abdelrazik had charged the government with “procrastination, evasiveness, obfuscation and general bad faith” in dealing with his application for an emergency passport.[1] The government maintains that the only thing stopping Abdelrazik from leaving Sudan is that his name is on a United Nations list of al-Qaeda associates.[2] Justice Zinn did not agree entirely with Abdelrazik’s assessment, but he did find that there had been “a course of conduct and individual acts that constitute a breach of Mr. Abdelrazik’s rights which the [government has] failed to justify.”[3]

Justice Zinn made it clear that a Canadian’s Charter rights are not dependent on moral character or political beliefs. The question of Mr. Abdelrazik’s sympathy or support for Al-Qaeda cannot be a factor in determining if his Charter rights were violated.[4] Justice Zinn stated that the only relevant issue in this case is whether Abdelrazik’s constitutional right to enter and leave Canada (as guaranteed by section 6(1) of the Charter) was violated. If there is a breach of that right, the court must consider whether that breach is saved by section 1 as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society (the Oakes test).[5]

In his 107-page judgment, Justice Zinn presents a detailed analysis of eleven acts and omissions by the federal government which, according to Abdelrazik, formed a pattern that constitutes a breach of his Charterright to enter Canada.[6] Justice Zinn found that “the only reason that Mr. Abdelrazik is not in Canada now is because of the actions of the Minister on April 3, 2009.”[7] On that date, Abdelrazik was scheduled to fly out of Khartoum. Financially destitute, Abdelrazik had scraped together the money for airfare, based on the promise that Canada would provide him with an emergency passport. The government failed to follow through on the promise, citing the prerogative power to grant or deny passports under section 10.1 of the Passport Order.

The government maintained that it was under no positive obligation to facilitate Abdelrazik’s Charter right to enter Canada. Justice Zinn did not agree: “where a citizen is outside Canada, the Government of Canada has a positive obligation to issue an emergency passport to that citizen to permit him or her to enter Canada; otherwise, the right guaranteed by the Government of Canada in subsection 6(1) of the Charter is illusory.”[8]

Justice Zinn acknowledged that Passport Canada has the prerogative authority to deny the issuance of a passport under section 10.1 of the Passport Order, but “whenever a citizen may be denied passport privileges, there is a mechanism in place that provides the citizen with procedural fairness and natural justice…. There is no suggestion that the Minister followed this process.”[9]

The government is obligated to justify a prima facie breach of Charter rights pursuant to section 1 of the Charter.[10] Rather than justifying the breach, the government denied that there was a breach. In the absence of a government justification, Justice Zinn considered whether the determination that Abdelrazik poses a danger to national security constitutes a justifiable limitation of his section 6(1) mobility right. Zinn concluded that it was not a justifiable limitation. Therefore, the breach could not have been justified, even if the government had so argued.[11]

Because the Canadian government denied Abdelrazik’s Charter right to enter Canada, he is entitled to a remedy under Charter section 24(1). To effect that remedy, the government was ordered to make travel arrangements for Abdelrazik within 15 days of the judgment. Furthermore, Justice Zinn ordered that the government must ensure that Abdelrazik appears before him in an Ottawa courtroom on July 7, 2009 at 2:00 p.m.[12]

The judgment prompted immediate reaction during question period in the House of Commons on June 5, 2009. Four times, Minister of Justice Rob Nicholson was asked about the government’s plan to comply with the order. He replied that “because this is a very extensive ruling, we are looking at it very carefully. We are reviewing all aspects of the decision and we will make a decision in due course.”[13]

The minister’s comments leave the door open to speculation as to whether the government will comply with the court order or appeal the decision, as it did in response to a similar Federal Court ruling in Khadr v. Canada[14] just last month.[15]

Further Reading

Jim Young, “’Kafkaesque’ Abdelrazik Saga Raises Mobility Rights Question” Centre for Constitutional Studies (12 May 2009).

 

[2] Ibid. at para. 3.
[3] Ibid. at para. 7.
[4] Ibid. at para. 12.
[5] Ibid. at para. 61.
[6] Ibid. at para. 62.
[7] Ibid. at para. 148.
[8] Ibid. at para. 152.
[9] Ibid. at para. 155.
[10] Ibid.
[11] Ibid. at para. 154.
[12] Ibid. at para. 73.
[13] House of Commons, Hansard (5 June 2009) at 1140.
[14] 2009 FC 405.
[15] Joanna Smith and Tonda MacCharles, “Government will Appeal Omar Khadr Order” The Toronto Star (8 May 2009).

“Kafkaesque” Adelrazik Saga Raises Mobility Rights Question

Does the Government of Canada have a constitutional obligation to make good faith efforts to repatriate citizens stranded abroad? Section 6(1) of the Charter of Rights and Freedoms reads, “Every citizen of Canada has the right to enter, remain in and leave Canada.”[1] However, it is unclear what positive efforts, if any, the government must make to facilitate the exercise of a citizen’s mobility rights. This is the crux of the controversy over Abousfian Abdelrazik.

Mr. Abdelrazik, a Canadian citizen since 1995, traveled to his ancestral homeland of Sudan in 2003. During the Bush administration in the United States, the CIA alleged that Abdelrazik attended an al-Qaeda training camp, despite his claims that he was visiting his mother. In any case, he has never been formally charged with terrorism nor has he been given the opportunity to defend himself in court.  While detained by Sudanese authorities, Abdelrazik claims he was “abused and tortured,” contrary to statements from Canada’s head of mission that there were no signs or complaints of abuse during his incarceration.  Since his release in 2004, he has been entangled in a bureaucratic dispute with Foreign Affairs and International Trade Canada in an attempt to acquire a passport for his return to Canada.[2]

The Canadian government maintains that it is living up to its international obligations by not facilitating the travel of Mr. Abdelrazik as he is on a United Nations (UN) list of suspected terrorists affiliated with Osama bin Laden and al-Qaeda. In the House of Commons last week, opposition members emphasized that the United Nations has not discouraged Canada, or any other nation, from issuing travel documents to its nationals.[3]Opposition members went on to charge that the excuse of the United Nations list is merely the latest in a series of obfuscations the government has used to evade its responsibility to aid a citizen wishing to return to Canada.[4]

On May 8, 2009, lawyers for Abdelrazik asked a Federal Court judge for an order demanding the government make efforts to repatriate him.[5] Lawyers for the government argued that there is no positive obligation to facilitate a citizen in exercising the section 6 Charter right to mobility. They claimed it was up to Abdelrazik to clear his name from the UN list. Justice Russell Zinn seemed sceptical, calling the situation “Kafkaesque.” A ruling from the Federal Court is expected within weeks.[6]

Mr. Abdelrazik’s situation has parallels with that of Omar Khadr. Khadr has been held without benefit of the writ of habeas corpus at the U.S. detention facility in Guantanamo Bay for several years. Like Abdelrazik, Khadr has alleged that the Canadian government abandoned its constitutional obligation to aid in the repatriation of its citizen. In Khadr v Canada (Prime Minister),[7] the Federal Court of Canada ordered the government to take positive steps to seek the repatriation of Khadr. The government recently indicated that it will appeal that decision.[8]

Abdelrazik differs from Khadr in that there is apparently nothing other than the lack of a passport to prevent Abdelrazik from boarding a plane for Canada. Rather than the Prime Minister and cabinet, it is Passport Canada that is allegedly denying Abdelrazik his constitutional right to enter Canada.

Passport Canada is a quasi-independent entity, a Special Operating Agency, that receives no funding from government tax dollars. Instead, it generates its own funding from the fees its charges for services.[9] Its authority to issue passports comes from the royal prerogative rather than legislation. The Canadian Passport Order, in part, reads:

10.1 …the Minister may refuse or revoke a passport if the Minister is of the opinion that such action is necessary for the national security of Canada or another country.[10]

In Canada v Kamel, [11] the Federal Court of Appeal found that section 10.1 of the Passport Order infringed section 6(1) of the Charter. The court then made a detailed examination of whether limitations on section 6(1) could be justified under section 1 of the Charter (the “reasonable limits” clause). The court concluded that the mobility right limitations were sufficiently precise to constitute a reasonable limit as demonstrably justified in a free and democratic society. Therefore, Passport Canada was constitutionally justified in using its discretion when deciding whether or not to issue a passport.

Whether the Kamel precedent will determine the upcoming decision in Abdelrazik remains to be seen. In any case, as in other Canadian cases involving allegations of terrorism, further appeals seem likely.

 

[1] Constitution Act, 1982, s.6(1).

[2] William Kaplan, “William Kaplan: Bring home Abousfian Abdelrazik” The National Post (14 April 2009)
[3] “Canada free to bring Abdelrazik home: UN” The Globe and Mail (6 May 2009); Res.1390, UN Security Council (2002) 2(b). With respect to persons on the list, member states are obligated to "[p]revent the entry into or the transit through their territories of these individuals, provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfillment of a judicial process or the Committee determines on a case by case basis only that entry or transit is justified." [emphasis added]
[4] House of Commons, Hansard (7 May 2009) at 1415 (Hon. Bob Rae) and 1425 (Hon. Jack Layton).
[5] Paul Koring, “Order Abdelrazik home, lawyers tell court” The Globe and Mail (7 May 2009).
[6] Don Butler, “Canadian stuck in Sudan in Kafkaesque quandary: judge” Canwest News Service (8 May 2009).
[7] (2009) FC 405.
[8] Mike De Souza, “Government to appeal Khadr repatriation ruling” The National Post (8 May 2009).
[9] Passport Canada, “Passport Canada”.
[10] Canadian Passport Order, SI/81-86.

Government’s Use of Surveillance Cameras

“Always under surveillance. You can’t go far in Toronto without being seen on camera”[1]

Toronto police have installed surveillance cameras in areas of the city to deter and fight crime as part of a $2 million pilot project. There has been a surprising public acceptance of the cameras despite the privacy concerns associated with the technology. The Canadian public hasn’t always accepted public surveillance cameras on their streets.

In June 2002, federal privacy commissioner George Radwanski began a lawsuit against the RCMP in British Columbia in an attempt to prevent the installation and operation of surveillance cameras in a Kelowna park [2]. Radwanski argued that the cameras infringed sections 2(d), 6, 7, and 8 of the Canadian Charter of Rights and Freedoms. The court dismissed the lawsuit because Radwanski, as privacy commissioner, did not have the requisite statutory authority. The court did not discuss whether the cameras constituted an infringement of the Charter. However, during that process former Supreme Court Justice Gerard La Forest “issued a legal opinion that general video surveillance for law enforcement purposes - recorded or not - likely infringes upon one's reasonable expectation of privacy . A Charter challenge on that basis could render public video surveillance illegal in Canada, according to a paper by the Canadian Internet Policy and Public Interest Clinic (CIPPIC). That is, if anyone can be found to challenge it.” [1]

Sources

[1] Francine Kopun, “Always under surveillance” The Toronto Star (5 May 2007).

[2] Canada (Privacy Commissioner) v. Canada (Attorney General), 2003 BCSC 862 (CanLII).

Further Reading

Websites