Charter Trumps UN Program and Brings Canadian Home

By Cathleen Powell

Introducing his judgment in Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada, Justice Russel Zinn of the Federal Court describes the applicant, Abousfian Abdelrazik, as “as much a victim of international terrorism as the innocent persons whose lives have been taken by recent barbaric acts of terrorists.” The Abdelrazik story is a stark reminder of the dan- gers of anti-terrorism, demonstrating the human rights abuses which can result from both domestic and international anti-terrorism measures. However, this story also helps to build a groundswell of resistance to these abuses, joining recent domestic and regional cases which have extended their critique of anti-terrorism measures to the international regime. (See, for example, the case of Kadi v. Council and Commission before the European Court of Justice).

The anti-terrorism measure in this case was the “listing” system of the United Nations Security Council. Originating in Security Council Resolution 1267 of 1999, this mechanism imposes sanctions on individuals and entities connected to the Taliban and Al-Qaeda. The founding resolution set up a committee, commonly called the “1267 Committee”, to determine which entities should be listed, to monitor states’ compliance with the sanctions against them, and to grant exemptions from the sanctions on humanitarian grounds. Once persons or entities have been listed by this committee, states are bound under the UN Charter to implement a number of sanctions against them. Amongst these sanctions is a travel ban, designed to prevent listed persons from entering into or passing through the territory of any state.

Born in Sudan, Abdelrazik fled the country after a military coup by Omar al-Bashir in 1989. He was granted refugee status in Canada and subsequently acquired Canadian citizenship. Returning to Sudan in August 2003, he was arrested by the Sudanese government at the request of the Canadian government, detained and tortured. After being released in July 2004, he was re-arrested in November 2005 and released again in July 2006. Immediately afterwards, he was listed by the 1267 Committee of the Security Council.

Abdelrazik took refuge from the Sudanese authorities in the Canadian Embassy in Khartoum. He found himself unable to travel back to Canada, mainly because the Canadian government refused to issue him a passport. In early 2009, Abdelrazik brought a claim against the Minister of Foreign Affairs and the Attorney General of Canada in the Federal Court of Canada.

Abdelrazik’s constitutional claim was based solely on his right, as a citizen of Canada, to enter Canada; a right guaranteed by s. 6(1) of the Charter. In countering this claim, the Minister of Foreign Affairs and the Attorney General of Canada brought two substantive arguments: first, they argued that s. 6(1) did not require any positive performance from the government of Canada; second, they claimed that they were prevented by the Security Council sanctions regime from allowing Abdelrazik to return to the country.

Justice Zinn dismissed all the re- spondents’ objections. In response to the government’s contention that s. 6(1) bound it merely to permit Canadian citizens to enter the country (rather than to take the positive steps of providing a passport), Justice Zinn cited Canada (Attorney General) v. Kamel as saying the right to enter one’s country is meaningless in the absence of a passport. In the context of this case, therefore, s. 6(1) created a positive obligation on the government. On the affect of the Security Council sanctions regime, Justice Zinn held that the respondents had misinterpreted the travel ban provisions. SCR 1822 contains an exception to the ban; it provides that the travel ban may not require “any State to deny entry or require the departure from its territories of its own nationals...”. Justice Zinn held that this exception applied to Abdelrazik and ordered the Canadian government to issue Abdelrazik with a passport and allow him to travel to and enter Canada. The respondents’ argument – that the flight ban still applied because Abdelrazik would first have to pass over other territories before reaching the border of Canada - was dismissed as absurd because it would provide relief only to those persons who found themselves on the border of Canada at the moment their listing occurred.

In one sense, this case might not seem so exciting. No new interpretations of existing legal principles were necessary for the finding; no important doctrinal battles were resolved. Instead, the case is noteworthy for pitting itself against the listing system of the United Nations Security Council. This is more remarkable as Abdelrazik did not challenge the listing system; rather, he merely questioned its interpretation in his case. As a result, Justice Zinn’s critique of the system may be obiter but it is scathing: 

“There is nothing in the listing or de-listing procedure that recognizes the principles of natural justice or that provides for basic procedural fairness.... [T]he 1267 Committee listing and de-listing processes do not even include a limited right to a hearing. It can hardly be said that the 1267 Committee process meets the requirements of independence and impartiality when, as appears may be the case involving Mr. Abdelrazik, the nation requesting the listing is one of the members of the body that decides whether to list or, equally as important, to de-list a person. The accuser is also the judge.”

Furthermore, the judgment suggests that the Federal Court accepted its task of ensuring Abdelrazik’s rights because the in- ternational system provides no meaningful protection:

“... [I]t is disingenuous of the respondents to submit, as they did, that if he is wrongly listed the remedy for Mr. Abdelrazik is 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.”

Here, lies the significance of Abdelrazik – in identifying the deficiencies of listing, and the consequences attached to them. Faced with a dearth of effective review at the international level, courts are starting to carry out that review at the domestic level.

The victory is the seemingly spontaneous growth of a legal system to comply with the rule of law. In developing mechanisms to ensure the application of human rights law, domestic courts become part of the engine of reform of the international legal system, ensuring that those who wield power are subject to law.