Federal Court Judge Zinn J. Delivers a Landmark ruling on Mr. Abousfian Abdelrazik’s Case
No one can deny that among the most sorrowful events that have taken place in the last two decades in the world, not one is more poignant than the series of bomb attacks in important cities in the world; Nairobi city in 1998 and September 9 attacks in New York city in 2001 just to name but a few examples. This has to be stated at the outset otherwise the subsequent details of a case regarding a suspected terrorist would definitely not make any sense. Various groups lobbying to condemn such events have come out strongly and clearly with the sole belief that the motives of their cause would fall into the right ears. Nevertheless, the overall outlook characterizing the response to these vices has raised concerns from the other side of the coin. Various human right groups are today more vibrant about how terror suspects are treated or otherwise the punishment meted to them. More importantly to state is the fact that some of these suspects are innocent. Such concerns are raised about the judgment rendered to Abdelrazik, a Sudanese national.
This is a case comment analysis of Abdelrazik v. Canada (Foreign Affairs), 2009 FC 580 (CanLII) that took place in Federal Court of, Ottawa on May 7, 8 and June 4, 2009.The issues in this case are to ascertain whether the legal outcome was appropriate in all the circumstances of the case; whether the decision has any impact on the rights of Canadian immigrants and refugee citizens in overseas; the role of courts in balancing human rights and national security matters in this age of terrorism and if there was a general systemic discrimination not addressed by the ruling.
The facts of the case are as follows: Mr. Abdelrazik was born in Sudan and received refugee status and later, Canadian citizenship; Mr. Abdelrazik was repeatedly imprisoned by Sudanese authorities; he was denied passport by Canadian authorities; Upon request from United States, Mr. Abdelrazik was put on a United Nations no-fly list; Security agents have no evidence of Mr. Abdelrazik’s involvement in terrorist activities; Although Mr. Abdelrazik admits to knowing suspected Millennium bomber, Ahmed Ressam of Montreal, he (Mr. Abdelrazik) has denied he is a terrorist and even testified against Ressam at his trial.
In his ruling of June 4, 2009, Federal Court judge Mr. Justice Russel Zinn observed the following: that CSIS was complicit in the detention of Mr. Abdelrazik by the Sudanese authorities in 2003 ; that there was no direct evidence before the Court that Mr. Abdelrazik supported, financially or otherwise, was a member of, or followed the principles of Al-Qaida; that there was no evidence before the Court as to the basis on which the United States authorities concluded that Mr. Abdelrazik had provided support to Al-Qaida and posed a threat to the security of the United States of America. The judge therefore ruled that Canada breached Mr. Abdelrazik’s right, as a Canadian citizen, to enter Canada, and ordered his return to this country.
Whether the decision of Justice Zinn. J was appropriate or not can be examined thus: The applicant came to Canada in 1990 and was accepted as a Convention refugee in 1993. He subsequently obtained his Canadian citizenship in 1995. In Canada, he associated with two individuals involved in terrorism. However, there was no evidence in the record on which one could reasonably conclude that the applicant had any connection to terrorism or terrorists, other than his association with these two individuals.
The applicant travelled to Sudan in 2003 with a valid Canadian passport but his passport expired during his time there and was not renewed. This fact and other circumstances prevented his return home to Canada. In Sudan, he was arrested, detained and allegedly tortured by the Sudanese authorities. He was also interrogated by Canadian Security Intelligence Service (CSIS) agents during his detention. After being released, the United Nations 1267 Committee, which implements UN Security Council Resolutions aimed at controlling international terrorism, listed the applicant as an associate of Al-Qaida. Persons listed by the 1267 Committee are subject to a global asset freeze, a global travel ban and an arms embargo.
A petition was filed to have the applicant de‑listed by the 1267 Committee but it was denied. As well, the applicant made several requests to Passport Canada for a new passport but these were also denied. Although the issue of an emergency passport or travel document to the applicant was promised on several occasions by the Minister of Foreign Affairs, once the applicant would be in a position to return to Canada, this promise was never fulfilled. In the end, all of the applicant’s attempts to return home failed.
The applicant made several requests to the Canadian Passport for an emergency passport to enable him travel back home but these requests were denied. While in Sudan, he was also listed as an associate of Al-Qaida by the United Nations Committee and this subjected him to asset freeze and travel ban, further curtailing his freedom of movement.
Even though there was no clear evidence from the Ministry of Foreign Affairs that the applicant posed danger to national security, the Canadian Passport authorities still denied him with an emergency passport ,hence breaching the Canadian Passport order and consequently breaching the applicant’s to enter Canada pursuant to order Charter,s.6.
In absence of tangible evidence that the applicant was involved in terrorism activities, the UN Security Council went ahead to list the applicant as an associate of Al-Qaida, consequently limiting his right to movement. Even the applicant’s efforts in filing a petition to have his name de-listed by the Committee were frustrated.
The reason to deny the applicant the right to return to Canada can therefore be seen as one reached in bad faith and with ulterior motives. Evidently, there was no mechanism that was put in place to ensure that the applicant was provided with procedural fairness and that the law of natural justice was applied. Hence the decision of Justice Zinn J. should be seen as very appropriate.
The decision reached by this court significantly advances the rights of Canadians, even immigrants and refugees residing in overseas lands because the rights of all Canadians as provided for in the Charter should not be limited unless there is a justifiable reason on the part of the state to do so. Hence, when the Government takes actions that are not in accordance with the law, and its actions affect a citizen, then that citizen is entitled to an effective remedy, whether the citizen is a refugee or immigrant cum citizen or is a natural citizen.
According to the 1951 United Nations Convention Relating to the Status of Refugees, a refugee is a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Canada has implemented this Convention and should therefore extend these rights to all Canadians living in other lands.
Even though the United Nations had issued a travel ban on Mr. Abdelrazik, Mr. Justice Zinn did not find a strong reason supporting the refusal of Canadian Government to allow Mr. Abdelrazik to enter Canada. This is because Canada did not require any permission or authority from external source to allow its citizens to move within its territory. The travel ban was only relevant to the UN Security committee’s objective of limiting the movement of suspected people from country to country and not within one’s own country. Hence, Justice Zinn saw the reluctance on the part of Canadian authority in repatriating Mr. Abdelrazik as intentional acts of denying him his right to move to Canada.
Evidently, it is difficult for a court to balance the rights of an individual on one side and matters of national security on the other. For instance, where do we draw the line between the imperative nature of an individual’s right and the general security of a country’s citizenly? As evident in this case, there is a tension between the obligations of Canada as a member of the UN to implement and observe its resolutions, especially those that are designed to ensure security from international terrorism and the requirement that in so doing Canada conform to the rights and freedoms it guarantees to its citizens.
The roles of the executive and the judiciary are also being put to balance and this has resulted into more tension. This is therefore difficulty in observing constitutional democracy while at the same time following the rule of law. The courts must, however, be seen as performing their role of ensuring that the actions of the Government are being taken in accordance with the law and hence, maintaining the balance of power between the legislature, the executive and the judiciary. This should create an environment that will ensure that terrorist are severely punished and at the same time, that the rights and fundamental freedoms of the people are observed and adhered to. Where the Government takes actions that are not in accordance with the law, and its actions affect a citizen, then that citizen is entitled to an effective remedy.
To illustrate this, in a case of The Supreme Court of Canada in United States of America v. Cotroni; United States of America v. El Zein, 1989 CanLII 106 (S.C.C.),  1 S.C.R. 1469 considered subsection 6(1) rights in the context of an extradition of a Canadian citizen to the United States of America to face criminal charges. The Court recognized the significance of the citizen and state relationship and further observed that interference with the right to remain in one’s country is not to be lightly interfered with. Justice La Forest, at page 1480 of the judgment, describes it as follows:
“In approaching the matter, I begin by observing that a Constitution must be approached from a broad perspective. In particular, this Court has on several occasions underlined that the rights under the Charter must be interpreted generously so as to fulfill its purpose of securing for the individual the full benefit of the Charter’s protection .The intimate relation between a citizen and his country invites this approach in this context. The right to remain in one’s country is of such a character that if it is to be interfered with, such interference must be justified as being required to meet a reasonable state purpose”(Federal Court, Ottawa, Ontario, June 4, 2009).
According to Lustgarten. L. (2010), the ‘war on terrorism’ engages all the institutions of the state. He argues that a constitutional structure devoted to protection of liberty must place a paramount value on separation of powers, and a parliamentary democratic constitution should ensure that the ultimate locus of responsibility rests in the legislature, the only branch which has a direct connection to the citizens. However, the judiciary, despite the enactment of legally enforceable human rights, has failed to exercise its proper function of curbing abuses of state power. The result is an over-mighty executive, able to draw upon the deference of other branches of government in prosecuting the ‘war on terrorism’ on the battlefield and in the statute book, this, he argues, has trampled on individual rights with virtually no check or counter-balance.
Further, in this case, Justice Zinn found at paragraph 153 of the judgment that Lawrence Cannon and Canada violated Abdelrazik’s constitutionally guaranteed right to return to Canada from Sudan by failing to issue an emergency passport. In so ruling the Court states at paragraph 152:
“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 by the Government of Canada in subsection 6(1) of the Charter is illusory. Where the Government refuses to issue that emergency passport, it is a prima facie breach of the citizen’s Charter rights unless the Government justifies its refusal pursuant to section 1 of the Charter”. (Federal Court, Ottawa, Ontario, June 4, 2009)
It is imperative, therefore that the court observes impartiality in making ruling especially on matters of terrorism and human rights. The judiciary should be independent of the executive since most international cases are exposed to a high risk of executive interference. For instance, in the above case, it is evident that the foreign affairs minister was not informed by solid facts in his decision to deny Mr. Abdelrazik the right to return to Canada, but rather, appeared to have been pressurized by the international community to do so. This should not be the case.
Mr. Justice Zinn’s decision did not fully address the concept of systemic discrimination as he did not evaluate chances that Mr. Abdelrazik had been denied entry into Canada purely on the basis of his country of origin and/or race. There is nowhere in his ruling that Justice Zinn mentions the significance of the concept of race to the outcome of this case does not also put into consideration the importance of positive discrimination where in this case the Canadian government should have given greater consideration to the general security of the country and hence put the rights of Mr. Abdelrazik in jeopardy.
In my own opinion, CSIS should be seen to have played a role in the detention of Mr. Abdelrazik by the Sudanese government. The evidence before the Court established, on a balance of probabilities, that the recommendation for the detention of Mr. Abdelrazik by Sudan came either directly or indirectly from CSIS.
It is also reasonable to conclude that Canadian authorities did not want Mr. Abdelrazik to return to Canada and that they were prepared to do anything that would prevent his return, even if it meant the denial of an emergency passport. This is demonstrated by the actions of even the Foreign Affairs minister.
There was no reason for Canada to deny Mr. Abdelrazik permission to return to his country since no permission of a foreign government is required to enhance the movement of Canadian citizens on its land and airspace. Therefore, the argument presented by authorities that was based on UN’s security alert to deny Mr. Abdelrazik right to return to Canada was part of the authorities’ conduct engaged in to ensure that Mr. Abdelrazik could not return to Canada. It is to be noted that the travel ban does not restrict mobility within a country. Its concern is to prevent these individuals from traveling from country to country raising funds and arms and spreading terrorism. Mr. Abdelrazik would have no more mobility if he is in Canada than in Sudan.
The Minister of Foreign Affairs’ last-minute refusal in April 2009 to issue Mr. Abdelrazik with an emergency passport pursuant to section 10.1 of the Canadian Passport Order, despite having given him assurances to the contrary once all of the pre-conditions had been met (i.e. paid itinerary), was a breach of the applicant’s Charter right to enter Canada. 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. Where the Government refuses to issue that emergency passport, it is a prima facie breach of the citizen’s Charter rights unless the Government justifies its refusal pursuant to section 1 thereof. Denying a citizen his right to enter his own country requires, at a minimum, that such increased risk be established to justify a determination made under section 10.1 of the Order. There was no evidence that the Minister’s determination that the applicant posed a danger to national security or to the security of another country constituted a section 1 defense under the Charter.
There was also no suggestion that the Minister followed the process under Passport Canada’s guidelines which provide that whenever a citizen may be denied passport privileges, there is a mechanism in place that provides the citizen with procedural fairness and natural justice. While it is not the function of the judiciary to second guess or to substitute its opinion for that of the Minister, when no basis is provided for the opinion, the Court cannot find that the refusal was required and justified given the significant breach of the Charter that refusing a passport to a Canadian citizen entails.
As to the effective remedy for the Charter breach, the applicant was entitled to be put back to the place he would have been but for the breach. Therefore, at a minimum, the respondents were ordered to provide the applicant with an emergency passport that would permit him to travel to and enter Canada.
The importance of the study to this case is manifold. First, it allows students of law to be able to analyze the relevance of court ruling constitutionally as well as politically. It also highlights the important attention given to cases involving terrorism, especially by the international community and the UN. It helps to identify and discuss the consequences of judicial ruling on the rights of other parties. Lastly, it helps the learner to identify loopholes in the judicial process and be in a position to prescribe solutions.
In summary, the recent development in matters pertaining to terrorist’s attacks and various states’ government executions of terror convicts as well as treatment of the suspects requires keen approach and fast intervention. Failure to heed to this cry might result into scenarios that have dire implications to the amazement of many stakeholders in this cause. If at all innocent people will continue being convicted for charges they never committed, while the real culprit walk free within the society, then this would be akin to calling for development of increased number of such terrorist to avenge for their loved ones. Various recommendations are hereby presented to all concerned parties including human right groups, the United Nations as well as state governments from all over the world. Firstly, there should be a legitimate and transparent protocol set to ensure that terror suspect follow the right channel within the criminal justice trying these suspects. This will ensure effectiveness and efficiency of institutions handling the cases. Secondly, whereas it is painful when a particular state fall victim of terrorist attacks, each state should appreciate the integrity of institutions that have been legitimately set to deal with these cases. It would therefore be discordant with international laws and regulations when such a country takes laws into their hands to try and convict the suspect by themselves. Inasmuch as involvement of that state would be inevitable in those circumstances, such involvement should be limited within the mandate granted and the rest should be left to be the sole obligations of international set institutions under the agreement of state governments.
Federal Court Ottawa, Ontario, (June 4, 2009) Abdelrazik v. Canada (Minister of Foreign Affairs) (F.C.) Retrieved July 26th, 2010 from, http://decisions.fct-cf.gc.ca/en/2009/2009fc580/2009fc580.html
Lustgarten. L. (2010) National Security, Terrorism and Constitutional Balance. Retrieved July 26th, 2010 from, http://www3.interscience.wiley.com/journal/120854401/abstract?CRETRY=1&SRETRY=0