Turp v. Canada (Foreign Affairs)

Turp v. Canada (Foreign Affairs)
Court (s) Database
Federal Court of Appeal Decisions
Date
2018-07-06
Neutral citation
2018 FCA 133
File numbers
A-59-17
Notes
A correction was made on April 30, 2019.
Reported Decision
Decision Content
Date: 20180706
Docket: A-59-17
Citation: 2018 FCA 133
[ENGLISH TRANSLATION]
CORAM:
NADON J.A.
BOIVIN J.A.
GLEASON J.A.
BETWEEN:
DANIEL TURP
Appellant
and
THE MINISTER OF FOREIGN AFFAIRS
Respondent
Heard at Montréal, Quebec, on December 6, 2017.
Judgment delivered at Ottawa, Ontario, on July 6, 2018.
REASONS FOR JUDGMENT BY:
NADON J.A.
CONCURRED IN BY:
BOIVIN J.A.
CONCURRING REASONS BY:
GLEASON J.A.
Date: 20180706
Docket: A-59-17
Citation: 2018 FCA 133
CORAM:
NADON J.A.
BOIVIN J.A.
GLEASON J.A.
BETWEEN:
DANIEL TURP
Appellant
and
THE MINISTER OF FOREIGN AFFAIRS
Respondent
REASONS FOR JUDGMENT
NADON J.A.
I. Introduction
[1] This is an appeal from a Federal Court decision rendered by Madam Justice Tremblay-Lamer (the judge) on January 24, 2017 (2017 FC 84), dismissing the appellant’s application for judicial review. Specifically, the judge concluded that the appellant could not challenge the decision of the Minister of Foreign Affairs (the Minister) on April 8, 2016, to issue permits for the export of light armoured vehicles (LAVs) to the Kingdom of Saudi Arabia (Saudi Arabia). LAVs appear on the Export Control List, S.O.R./89-202 (the List), established by the Governor in Council under section 3 of the Export and Import Permits Act, R.S.C. (1985), c. E-19 (the EIPA). It is important to note that under section 13 of the EIPA, an export permit must be obtained from the Minister in order to export LAVs.
[2] The appellant submits that pursuant to the EIPA, the Export Controls Handbook (Global Affairs Canada, August 2017) (the Handbook) and Canada’s international obligations, the Minister should have declined to issue said export permits on the ground of a reasonable risk that Saudi Arabia might use the LAVs against civilian populations, particularly in Yemen.
[3] For the reasons that follow, I am of the view that the appeal should be dismissed. Specifically, I am of the view that the judge did not make any error justifying our intervention, and I agree entirely with the reasons she set out to support her conclusion to dismiss the appellant’s application for judicial review.
II. Background
[4] General Dynamics Land Systems – Canada Corporation (GDLS) is a corporation based in London, Ontario, that manufactures military equipment, its most sought after products being LAVs. In 2014, an agreement was signed between Saudi Arabia and Canadian Commercial Corporation, agent of the federal Crown, providing for the purchase by Saudi Arabia of a certain quantity of LAVs to be produced by GDLS.
[5] On April 8, 2016, the Minister approved the issuance of six (6) permits for the export to Saudi Arabia of LAVs produced by GDLS. The Minister based his decision on a recommendation from the Deputy Minister of Foreign Affairs dated March 21, 2016.
[6] The Minister’s decision to approve the export of LAVs to Saudi Arabia was debated extensively in certain sectors of the Canadian community in view of alleged violations of international humanitarian law and human rights by Saudi Arabia in relation to conflicts in which it is involved.
[7] On March 21, 2016, the appellant filed an application for judicial review before the Federal Court. This application was subsequently amended on April 21, 2016, in response to the Minister’s decision of April 8, 2016.
III. Legal framework
[8] The structure providing the basis of the Minister’s decision includes both legislative and regulatory instruments as well as less formal tools intended to guide the decision-making process. In the light of this regime’s complexity, I will review the instruments constituting the legislative framework in this case before moving on to the Federal Court decision and my analysis.
[9] In short, the authority to issue export permits is provided for in the EIPA (Export and Import Permits Act), which makes reference to the List (Export Control List), the content of which is specified in A Guide to Canada’s Export Controls (Global Affairs Canada, December 2015). The whole process is guided by the Handbook (Export Controls Handbook), which channels the Minister’s implementation of the statutory regime. In addition to those instruments, there are various international conventions to which Canada is party and which are relevant in this case.
[10] The purpose of the regime provided for in the EIPA is to enable the federal government to regulate and control the export and import of certain goods and technology according to Canada’s economic, political and military interests. The object of this regime is set out in sections 3 and 7 of the EIPA, which grant the Minister broad discretion with respect to the issuance of permits:
3(1) The Governor in Council may 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 for any of the following purposes:
3(1) Le gouverneur en conseil peut dresser une liste des marchandises et des technologies dont, à son avis, il est nécessaire de contrôler l’exportation ou le transfert à l’une ou plusieurs des fins suivantes :
(a) to ensure that arms, ammunition, implements or munitions of war, naval, army or air stores or any articles deemed capable of being converted thereinto or made useful in the production thereof or otherwise having a strategic nature or value will not be made available to any destination where their use might be detrimental to the security of Canada;
a) s’assurer que des armes, des munitions, du matériel ou des armements de guerre, des approvisionnements navals, des approvisionnements de l’armée ou des approvisionnements de l’aviation, ou des articles jugés susceptibles d’être transformés en l’un de ceux-ci ou de pouvoir servir à leur production ou ayant d’autre part une nature ou valeur stratégiques, ne seront pas rendus disponibles à une destination où leur emploi pourrait être préjudiciable à la sécurité du Canada ;
(b) to ensure that any action taken to promote the further processing in Canada of a natural resource that is produced in Canada is not rendered ineffective by reason of the unrestricted exportation of that natural resource;
b) s’assurer que les mesures prises pour favoriser la transformation au Canada d’une ressource naturelle d’origine canadienne ne deviennent pas inopérantes du fait de son exportation incontrôlée ;
(c) to limit or keep under surveillance the export of any raw or processed material that is produced in Canada in circumstances of surplus supply and depressed prices and that is not a produce of agriculture;
c) limiter, en période de surproduction et de chute des cours, les exportations de matières premières ou transformées d’origine canadienne, sauf les produits agricoles, ou en conserver le contrôle ;
(c.1) [Repealed, 1999, c. 31, s. 88]
c.1) [Abrogé, 1999, ch. 31, art. 88]
(d) to implement an intergovernmental arrangement or commitment;
d) mettre en œuvre un accord ou un engagement intergouvernemental ;
(e) to ensure that there is an adequate supply and distribution of the article in Canada for defence or other needs; or
e) s’assurer d’un approvisionnement et d’une distribution de cet article en quantité suffisante pour répondre aux besoins canadiens, notamment en matière de défense ;
(f) to ensure the orderly export marketing of any goods that are subject to a limitation imposed by any country or customs territory on the quantity of the goods that, on importation into that country or customs territory in any given period, is eligible for the benefit provided for goods imported within that limitation.
f) assurer la commercialisation ordonnée à l’exportation de toute marchandise soumise à une limitation de la quantité de marchandise pouvant être importée dans un pays ou un territoire douanier qui, au moment de son importation dans ce pays ou territoire douanier dans une période donnée, est susceptible de bénéficier du régime préférentiel prévu dans le cadre de cette limitation.
7(1) Subject to subsection (2), the Minister may issue to any resident of Canada applying therefore a permit to export or transfer goods or technology included in an Export Control List or to export or transfer goods or technology to a country included in an Area Control List, 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.
7(1) Sous réserve du paragraphe (2), le ministre peut délivrer à tout résident du Canada qui en fait la demande une licence autorisant, sous réserve des conditions prévues dans la licence ou les règlements, notamment quant à la quantité, à la qualité, aux personnes et aux endroits visés, l’exportation ou le transfert des marchandises ou des technologies inscrites sur la liste des marchandises d’exportation contrôlée ou destinées à un pays inscrit sur la liste des pays visés.
(1.01) In deciding whether to issue a permit under subsection (1), the Minister may, in addition to any other matter that the Minister may consider, have regard to whether the goods or technology specified in an application for a permit may be used for a purpose prejudicial to
(1.01) Pour décider s’il délivre la licence, le ministre peut prendre en considération, notamment, le fait que les marchandises ou les technologies mentionnées dans la demande peuvent être utilisées dans le dessein :
(a) the safety or interests of the State by being used to do anything referred to in paragraphs 3 (1) (a) to (n) of the Security of Information Act; or
a) de nuire à la sécurité ou aux intérêts de l’État par l’utilisation qui peut en être faite pour accomplir l’une ou l’autre des actions visées aux alinéas 3(1)a) à n) de la Loi sur la protection de l’information ;
(b) peace, security or stability in any region of the world or within any country.
b) de nuire à la paix, à la sécurité ou à la stabilité dans n’importe quelle région du monde ou à l’intérieur des frontières de n’importe quel pays.
[my emphasis]
[mon soulignement]
[11] The List, meanwhile, provides as follows:
2 The following goods and technology, when intended for export to the destinations specified, are subject to export control for the purposes set out in section 3 of the Export and Import Permits Act:
2 Les marchandises et technologies ci-après, lorsqu’elles sont destinées à l’exportation vers les destinations précisées, sont assujetties à un contrôle d’exportation aux fins visées à l’article 3 de la Loi sur les licences d’exportation et d’importation :
(a) goods and technology referred to in Groups 1, 2, 6, and 7 of the schedule, except for goods and technology set out in items 2-1, 2-2.a. and 2-2.b., 2-3, 2-4. a., 6-1, 6-2, 7-2, 7-3, 7-12 and 7-13 of the Guide, that are intended for export to any destination other than the United States;
a) les marchandises et technologies des groupes 1, 2, 6 et 7 de l’annexe, sauf celles visées à l’article 2-1, aux alinéas 2-2.a. et 2-2.b., à l’article 2-3, à l’alinéa 2-4.a. et aux articles 6-1, 6-2, 7-2, 7-3, 7-12 et 7-13 du Guide, qui sont destinées à l’exportation vers toute destination autre que les États-Unis ;
[12] The Guide, mentioned in paragraph 2(a) of the List, establishes multiple categories of goods and technology whose export is controlled under the List. LAVs fall under category 2-6, “Ground vehicles and components,” which are listed under group 2, “Munitions List,” in the Guide. LAVs have been included on the List since at least 1954.
[13] In its introduction, the Guide indicates that it “includes military . . . goods and technology . . . that are controlled pursuant to Canada’s commitments made in multilateral export control regimes, bilateral agreements, as well as certain unilateral controls.” Military equipment such as LAVs may consequently be included on the List pursuant to paragraph 3(1)(a) of the EIPA so that the government can ensure that these goods are not exported to a country or region where their use might be detrimental to the security of Canada. Furthermore, under paragraph 3(1)(d) of the EIPA, these goods may be included on the List to implement an intergovernmental arrangement or commitment. These arrangements include the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies that was reached at the Plenary Meeting in Vienna, Austria, held on July 11 and 12, 1996, and amended by WA-LIST (15) 1 Corr. 1 at the Plenary Meeting in Vienna, Austria, held on December 2 and 3, 2015 (Wassenaar Arrangement). The objectives of this arrangement include the promotion of transparency and accountability in relation to weapon transfers.
[14] The tool constituting the framework of application of the EIPA, the List and its Guide is the Handbook, which concerns the export of military products to countries that pose a threat to Canada or its allies, are involved in hostilities, are under United Nations Security Council sanctions or whose governments commit human rights violations (Handbook, p. 54). Indeed, the Handbook provides further that the objectives of export controls are to ensure that exports of certain goods are consistent with Canada’s foreign and defence policies (Handbook, p. 6). At paragraph 35 of her reasons, the judge discusses the Handbook in the following terms:
The legislation is supplemented by one main administrative tool, the Export Controls Handbook. The Handbook describes as follows the factors to consider before issuing an export permit:
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:
Ÿ countries which pose a threat to Canada and its allies;
Ÿ countries involved in or under imminent threat of hostilities;
Ÿ countries under United Nations Security Council sanctions;
Ÿ 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, notes omitted]
[15] I also reproduce the excerpts from the Handbook cited by the appellant at page 8 of his memorandum of fact and law:
[translation]
Information contained in this Handbook includes: how to obtain the necessary permits for the export or transfer of controlled items and how to comply with the requirements of the Export and Import Permits Act and its related regulations (p. 1).
The main objective of export controls is to ensure that exports of certain goods and technology are consistent with Canada’s foreign and defence policies. Among other policy goals, export controls seek to ensure that exports from Canada:
Ÿ do not cause harm to Canada and its allies;
Ÿ do not undermine national or international security;
Ÿ do not contribute to national or regional conflicts or instability;
Ÿ do not contribute to the development of nuclear, biological or chemical weapons of mass destruction, or of their delivery systems;
Ÿ are not used to commit human rights violations; and
Ÿ are consistent with existing economic sanctions’ provisions (p. 6).
[emphasis in the original]
[16] It is also important to note that, as indicated by the respondent at paragraph 40 of its memorandum of fact and law, the Handbook essentially reproduces the “Export Controls Policy” issued by the government in 1986 (Appeal Record, volume 1, p. 118), also referred to as the Guidelines for Exports of Military and Strategic Goods (the Guidelines). I reproduce the excerpts from the Guidelines cited by the appellant at pages 7 and 8 of his memorandum of fact and law:
[translation]
The Minister noted that the government will no longer issue permits to export military equipment to countries where the government has seriously and repeatedly violated the rights of citizens, unless it can be demonstrated that there is no reasonable risk that the military equipment will be used against the civilian population. In keeping with the new policy concerning countries with a record of serious human rights violations, it is clearly up to the exporter to prove “that there is no reasonable risk.”
. . .
The Minister indicated that the government will closely control the export of military goods and technology to countries:
1) that pose a threat to Canada and its allies;
2) that are involved in or under imminent threat of hostilities;
3) that are under United Nations Security Council sanctions; or
4) 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 in the original]
[17] Both the Guidelines and the Handbook are aimed at regulating the control of exports of goods included in the List without entirely prohibiting their export. It is also important to note that both the Guidelines and the Report on Exports of Military Goods from Canada (Canada, Global Affairs, 2012-2013) (the Report) state the economic importance of the Canadian defence industry and the exports that it generates. Page 2 of the Report, which is cited in the Appeal Record, volume 1, page 158, reads as follows:
Canada’s defence industry makes a valuable contribution to the nation’s prosperity and employs tens of thousands of Canadians. It develops high-technology products and is closely integrated with counterparts in allied countries. Export controls are not meant to hinder international trade unnecessarily but to regulate and impose certain restrictions on exports in response to clear policy objectives, described above. Canada’s defence industry provides the Canadian Forces, as well as the armed forces of our allies, with the equipment, munitions and spare parts necessary to meet operational needs, including requirements for combat and peacekeeping missions. As stated in the United Nations Charter, all states share a right to legitimate self-defence.
[emphasis added]
[18] I also reproduce the excerpt from the Report cited by the appellant at page 9 of his memorandum of fact and law:
Canada has some of the strongest export controls in the world. A key priority of Canada’s foreign policy is the maintenance of peace and security. To this end, the Government of Canada strives to ensure that Canadian military exports are not prejudicial to peace, security or stability in any region of the world or within any country. (p. 1)
Once an application to export goods or technology has been received, wide-ranging consultations are held among human rights, international security and defence-industry experts at DFATD (including those residents at Canada’s overseas diplomatic missions), the Department of National Defence and, as necessary, other government departments and agencies. Through such consultations, each export permit application is assessed for its consistency with Canada’s foreign and defence policies. Regional peace and stability, including civil conflict and human rights, are actively considered (p. 2).
[emphasis in the original]
[19] Finally, according to the appellant, in addition to the Wassenaar Arrangement mentioned above, other international obligations influence Canada’s decisions concerning the issuance of permits, among them the Geneva Conventions of 1949 (Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 75 U.N.T.S. 31, Can. T.S. 1965 No. 20; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 U.N.T.S. 85, Can. T.S. 1965 No. 20; Geneva Convention relative to the Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. 135, Can. T.S. 1965 No. 20; Geneva Convention relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287, Can. T.S. 1965 No. 20) (Geneva Conventions). They provide as follows:
ARTICLE 1
ARTICLE PREMIER
The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.
Les Hautes Parties contractantes s’engagent à respecter et à faire respecter la présente Convention en toutes circonstances.
ARTICLE 3
ARTICLE 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
En cas de conflit armé ne présentant pas un caractère international et surgissant sur le territoire de l’une des Hautes Parties contractantes, chacune des Parties au conflit sera tenue d’appliquer au moins les dispositions suivantes :
…
[…]
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
Les Parties au conflit s’efforceront, d’autre part, de mettre en vigueur par voie d’accords spéciaux tout ou partie des autres dispositions de la présente Convention.
…
[…]
[20] The Geneva Conventions are approved under Canadian law by the Geneva Conventions Act, R.S.C. (1985), c. G-3 (GCA) as follows:
Conventions approved
Approbation des conventions
2(1) The Geneva Conventions for the Protection of War Victims, signed at Geneva on August 12, 1949 and set out in Schedules I to IV, are approved.
2(1) Sont approuvées les conventions de Genève pour la protection des victimes de guerre, signées à Genève le 12 août 1949 et reproduites aux annexes I à IV.
[21] Such is the statutory regime in force at the time of the Minister’s decision of April 8, 2016.
IV. Federal Court decision
[22] First, the judge concluded that the standard of review applicable to the Minister’s decision was that of reasonableness, adapted to the specific context in which the Minister’s discretion was exercised. In her opinion, this context included the objectives of the EIPA, Canada’s domestic and international interests, and the Minister’s expertise in international relations and human rights (reasons, at paragraph 25).
[23] Next, the judge acknowledged the appellant’s role in terms of acting in the public interest but concluded that he could not raise issues of procedural fairness since he was not affected directly by the decision (reasons, at paragraph 32).
[24] The judge then considered the Minister’s decision to issue permits for the export of LAVs to Saudi Arabia. She concluded that the Minister did not commit a reviewable error.
[25] The judge first examined the regulatory framework established by the EIPA concerning the Minister’s decision. The judge found that the Minister had broad discretion: “the Minister remains free to issue an export permit if he concludes that it is in Canada’s interest to do so, considering the relevant factors” (reasons, at paragraph 40). At the outset, she noted that neither the EIPA nor the Handbook contains any export prohibitions (reasons, at paragraph 41). After reviewing the Minister’s decision, the judge found that he had considered the factors relevant to his decision and had the necessary expertise to assess the risk that the goods might be used against civilians (reasons, at paragraphs 42 and 45). In the judge’s opinion, there was nothing in this regard in the Guidelines to fetter the Minister’s discretionary power since the Guidelines are not binding (reasons, at paragraphs 46-49). The judge concluded that the Minister had taken into consideration Canada’s security and trade interests, that these factors were neither irrelevant nor extraneous and that he had considered the conflict in Yemen (reasons, at paragraphs 51, 54).
[26] The judge concluded this portion of her analysis by stating that the scope of her power was limited to ascertaining that the Minister’s discretion had been exercised in good faith on the basis of the relevant considerations. Insofar as it was so exercised, the Court could not intervene (reasons, at paragraph 55).
[27] The judge then moved on to Canada’s international obligations. First, she accepted the respondent’s position according to which a treaty that does not confer any rights on individuals—as is the case in Common Article 1 of the Geneva Conventions—cannot be applicable even if it has been incorporated into domestic law (reasons, at paragraph 58).
[28] With respect to the authority of the Geneva Conventions under Canadian law, the judge noted that such agreements must generally “be endorsed by Parliament and expressly integrated into Canadian law in order to have force of law” (reasons, at paragraph 60). As such, approval of the Geneva Conventions in section 2 of the GCA does not necessarily amount to their incorporation into Canadian law (reasons, at paragraph 63). Although Parliament incorporated the serious offences provisions of the Geneva Conventions (section 3 GCA), by appending the Conventions, Parliament did not necessarily intend to implement the document in its entirety (reasons, at paragraph 62).
[29] Without ruling on the issue, the judge noted, however, that if an international rule does not require a modification of domestic law, Canada’s treaty obligations—notably Common Article 1 of the Geneva Conventions—may be incorporated into Canadian law by administrative means (reasons, at paragraph 63).
[30] This being said, the judge determined that in any event, since the only armed conflict referred to—that in Yemen—is not an international armed conflict, it is not Common Article 1 of the Geneva Conventions that applies but rather Common Article 3 (reasons, at paragraph 67). She makes reference to the doctrine according to which that since Canada is not directly involved in the Yemeni conflict, limits on arms trade do not apply to it, since they apply only to states that are already involved in an armed conflict. Citing the testimony of the international law experts brought forward by the parties, notably professor Éric David for the appellant and professor Michael Schmitt for the respondent, the judge held that Common Article 1 of the Geneva Conventions does not impose any obligations on the signatory states with respect to non-international conflicts (reasons, at paragraph 74). In this regard, the judge concluded that it is up to the executive, rather than the courts, to make decisions regarding international relations and that the Court could not intervene even if Common Article 1 did apply in this case (reasons, at paragraph 75).
[31] In paragraph 76 of her reasons, the judge concluded as follows:
The provisions of the EIPA confer a broad discretionary power on the Minister over the assessment of the relevant factors relating to the granting of export permits for goods on the Export Control List. In the impugned decision, the Minister considered the economic impact of the proposed export, Canada’s national and international security interests, Saudi Arabia’s human rights record and the conflict in Yemen before granting the export permits, thereby respecting the values underlying the Conventions. The role of the Court is not to pass moral judgment on the Minister’s decision to issue the export permits but only to make sure of the legality of such a decision. Of course, his broad discretion would have allowed him to deny the permits. However, the Court is of the opinion that the Minister considered the relevant factors. In such a case, it is not open to the Court to set aside the decision.
[32] Therefore, the judge dismissed the appellant’s application for judicial review without costs.
V. Issues
What is the standard of review?
Is the Federal Court’s decision reasonable?
i) Did the judge err in concluding that the Minister exercised his discretion in a reasonable manner?
ii) Did the judge err by refusing to consider the appellant’s argument that the Minister had a closed mind when he made his decision?
iii) Did the judge err when she rejected the appellant’s arguments based on Common Article 1 of the Conventions?
VI. Analysis
1. Standard of review
[33] With regard to the standard of review applicable to the Federal Court decision, this Court must determine whether the judge correctly identified the appropriate standard of review (in this case, that of reasonableness) and then determine whether she applied it correctly (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs 46 and 47) [Agraira]. In practical terms for this Court, this means stepping into the shoes of the Federal Court judge (Agraira, at paragraph 46). I agree entirely with the parties that the standard of review applicable to evaluation of the Minister’s decision is that of reasonableness.
2. Is the Federal Court’s decision reasonable?
[34] Before proceeding with my analysis, I find it useful—given its importance to the controversy generated by the appeal—to summarize in greater detail the Memorandum submitted to the Minister on March 21, 2016, by Deputy Minister of Foreign Affairs Daniel Jean concerning the export of LAVs by GDLS to Saudi Arabia.
[35] In short, this Memorandum addresses three main considerations: Saudi Arabia’s military role in the Middle East, Canada’s concerns regarding Saudi Arabia’s respect for human rights, and the direct and indirect economic advantages created in Canada by the contract between GDLS and Saudi Arabia.
[36] Firstly, the Memorandum notes that export permits are generally approved, for all intents and purposes, by Department officials on the Minister’s behalf. The Memorandum also notes that the Minister’s decision is rarely sought, except when the officials cannot reach a consensus or when the recommendation is unfavorable. In some situations, as in this case, the Minister’s intervention is requested even though the officials have agreed (Memorandum, at paragraph 7).
[37] The Memorandum describes GDLS’s stature as a global leader specializing in the production of LAVs used by the Canadian Forces and exported around the world. GDLS is a major employer in southern Ontario (GDLS has approximately 2100 employees in Canada, most of whom work in southern Ontario) and supports a supply chain consisting of nearly 500 small and medium-sized Canadian businesses (Memorandum, at paragraph 2).
[38] Since the 1990s, following Iraq’s invasion of Kuwait, Canada has been involved in the defence of Saudi Arabia by providing it with access to military equipment to face the threats posed by Iraq, Iran and, more recently, the Islamic State. Since 1993, Canada has issued export permits to GDLS, which is among the preferred suppliers of military equipment, particularly LAVs. More than 2900 LAVs were exported to Saudi Arabia between 1993 and 2015, representing nearly 90% of the value of Canadian military exports to the country, which total approximately 2.5 billion dollars (Memorandum, at paragraph 3). The contract in this case, signed in 2014, is part of this Canadian-Saudi Arabian military history and is valued at approximately 11 billion dollars (Memorandum, at paragraph 5).
[39] The following parties reviewed the permit application, and their comments are set out in Annex A of the Memorandum: more specifically, within Global Affairs Canada, the Europe and Middle East department, the International Security branch and the International Trade Development branch; the Department of National Defence; and Innovation, Science and Economic Development Canada. All recommended that the permits be approved. I note that a separate, but similar, Memorandum for Action was submitted to the Minister of International Trade for his comments and recommendations on December 21, 2015. None of the entities consulted raised concerns about the export of LAVs (Memorandum, at paragraph 8).
[40] In addition, the Memorandum addresses the issue of human rights in Saudi Arabia given the violation of democratic and human rights and the discrimination reported about that country. The Memorandum notes that Canada maintains a dialogue with Saudi Arabia in that regard and expresses its concerns when necessary (Memorandum, at paragraph 9).
[41] Canada, as well as its American and European allies, has maintained a military relationship with Saudi Arabia for a quarter century, which has often taken the form of access to military equipment. From a defence and trade standpoint, GDLS is a major supplier to the Canadian Forces, which will benefit from the economies of scale resulting from the proposed contract. The Memorandum also considers the importance of the contract and of LAVs in the effort to fight instability in Yemen. From an economic perspective, the contract will support thousands of manufacturing jobs in Canada and the Canadian supply chain and industry.
[42] The Memorandum concludes that the exports under consideration are consistent with Canada’s foreign affairs priorities and the objectives for the country and the area involved. Saudi Arabia does not pose a security threat to Canada or our allies, and is facing legitimate threats to its own safety (at paragraph 14).
[43] More specifically, paragraphs 15 to 18 of the Memorandum read as follows:
[translation]
15. However, as noted above, Canada has had and continues to have concerns about Saudi Arabia’s human rights history. A key consideration in reviewing export permit applications is whether the nature of the goods or technology to be exported lends itself to human rights violations and whether there is a reasonable risk that the goods will be used against the civilian population. The Minister is unaware of any connection between the military equipment in the application and the violation of human and political rights. According to the information provided, we do not think that the proposed exports would be used to violate human rights in Saudi Arabia. Canada has sold thousands of LAVs to Saudi Arabia since the 1990s, and to the best of the Department’s knowledge, there have been no incidents where these vehicles have been used to commit human rights violations.
16. In recent months, several articles have appeared in the popular media about Canada’s sale of LAVs to Saudi Arabia. One of the questions journalists raise regards the role of Canadian-manufactured LAVs in the 2011 uprising in Bahrain. Saudi Arabia supported Bahrain during those events under the “Peninsula Shield” of the Gulf Cooperation Council. To the best of the Department’s knowledge, Saudi troops were posted to protect important buildings and infrastructure and were not involved in the suppression of peaceful protests.
17. In recent months, certain NGOs, such as Amnesty International and Human Rights Watch, have criticized the airstrikes made by the coalition led by Saudi Arabia and, to a lesser extent, some of the actions of Houthi/Saleh forces in Yemen. More recently, the UN joined in on the criticism to denounce the high number of civilian deaths. The Final Report of the United Nations Panel of Experts on Yemen, published on February 23, 2016, notes that all the participants in the conflict in Yemen, including Saudi Arabia, committed international humanitarian law violations, namely by intentionally targeting civilians and attacking humanitarian organizations. The Report’s allegations about Saudi Arabia concern the use of aerial bombing, shelling and artillery fuses in regions occupied by civilians. The Panel also observed that the coalition provided weapons to resistance forces without taking the necessary measures to ensure the transparency and accountability of troops. They do not suggest that Canadian-manufactured equipment, including LAVs, might have been used in acts violating international humanitarian law. The members of the Panel experienced challenges when preparing the Report and were unable to travel to Yemen to obtain information from direct sources. The coalition led by Saudi Arabia issued an official statement to declare its compliance with the rules of international humanitarian law and human rights laws, as well as the commitment of its military personnel to these rules. Moreover, on January 31, 2016, the coalition led by Saudi Arabia announced the creation of an independent team of specialists to evaluate and verify the incidents of civilian deaths, prepare clear and objective reports on those incidents, make the necessary conclusions, and issue their recommendations on the procedures to put in place in the future to prevent such losses.
18. The media also reported that a Canadian-manufactured weapon (the LRT-3 long-range rifle [sniper rifle]) was photographed in the hands of a Houthi soldier in Yemen. More than 1300 long-range rifles—including hundreds of that model—were exported from Canada to Saudi Arabian military and security forces with valid permits. The Canadian embassy in Riyadh determined that this rifle, as well as other Saudi military equipment, was probably captured by Houthi soldiers during military operations along the border between Saudi Arabia and Yemen. The reports from open sources are to the effect that Houthi/Saleh raids along the Saudi border resulted in over 370 deaths, most of which were among the Royal Saudi Land Forces and border guards, as well as the seizure of equipment, weapons and ammunition. This type of loss of equipment in the battlefield is inevitable given Saudi Arabia’s military operations. The Canadian embassy in Riyadh remains in contact with Saudi authorities to facilitate the exchange of information on these losses.
[emphasis added]
[44] In the light of all these circumstances, the Memorandum recommends that the Minister approve and issue the permits for GDLS to export LAVs to Saudi Arabia (Memorandum, at paragraph 19).
i) Did the judge err in finding that the Minister exercised his discretion in a reasonable manner?
[45] According to the appellant, the judge made several errors by concluding as she did. Firstly, by citing the following Supreme Court cases: Halifax (Regional Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29, [2012] 2 S.C.R. 108, Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 147 D.L.R. (4th) 193 [Baker with references to S.C.R.], and Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 [Kanthasamy], the appellant submits that the Minister could not simply consider the relevant factors set out in the Handbook. Instead, considering the legislative objectives in the Handbook and Guidelines as well as Canada’s obligations under the GCA, the Minister had to give considerable weight to the factors set out in the Handbook. It is submitted that, having failed to give the necessary weight to these factors in making his decision, the Minister rendered an unreasonable decision, and the judge then erred by confirming it.
[46] Secondly, the appellant is making a distinction between the grounds that warrant the refusal of a permit and those that warrant the issuance of one. In his opinion, the former must take precedence over the latter, and economic and trade considerations are irrelevant [translation] “unless an export or transfer would harm Canadian trade or the economy” (appellant’s memorandum of fact and law, at paragraph 24). Consequently, the appellant argues that since the judge failed to consider that distinction, she committed a reviewable error.
[47] Thirdly, the appellant argues that, since LAVs are included on the List, the judge had to consider the purposes set out in section 3 of the EIPA. The appellant submits that the objective of paragraph 3(1)(d) of the EIPA must apply i