Turp v. Canada (Foreign Affairs)

Turp v. Canada (Foreign Affairs)
Court (s) Database
Federal Court Decisions
Date
2018-01-09
Neutral citation
2018 FC 12
Decision Content
Date: 20180109
Docket: T145717
Citation: 2018 FC 12
[ENGLISH TRANSLATION]
Ottawa, Ontario, January 9, 2018
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
DANIEL TURP
Applicant
and
THE MINISTER OF FOREIGN AFFAIRS AND
GENERAL DYNAMICS LAND SYSTEMS CANADA INC.
Respondents
ORDER AND REASONS
I. Introduction
[1] On September 27, 2017, the applicant, Daniel Turp, served and filed this application for judicial review—amended on November 21, 2017—in which he is asking the Federal Court to rule on the legality and the reasonableness of the express or implied refusal by the Minister of Foreign Affairs [Minister] to suspend or cancel, pursuant to section 10 of the Export and Import Permits Act, RSC 1985, c E19 [EIPA], the permits issued to General Dynamics Land Systems Canada Inc [GDLS] to export the light armoured vehicles [LAVs] they manufacture to the Kingdom of Saudi Arabia [Saudi Arabia].
[2] It should be noted that on January 24, 2017, the Federal Court dismissed a first application for judicial review by the applicant of a previous decision made on April 8, 2016, to authorize the issuance of the export permits in question pursuant to section 7 of the EIPA (T46216): Turp v Canada (Foreign Affairs), 2017 FC 84 [Turp FC]. That judgment is now under appeal (A5917).
[3] Since this application for judicial review was filed, the applicant served the affidavits on which he intends to rely. However, the Minister has not yet served any affidavits even though the time limits for doing so have expired.
[4] On October 17, 2017, counsel for the Minister advised counsel for the applicant that he objected to the request for material made under rule 317 of the Federal Courts Rules, SOR/98106 [Rules].
[5] On October 18, 2017, citing the Federal Court’s inherent powers and, by analogy, paragraphs 221(1)(a), (b) and (f) of the Rules, the Minister, represented by the Attorney General of Canada, served and filed a motion to strike this application for judicial review on the grounds that it is plain and obvious that it has no chance of success, that it is redundant and that it is ultimately an abuse of process.
[6] On October 25, 2017, Justice Roy suspended the time limits provided in the Rules—which included the service of the Minister’s affidavits and the ruling on the objection to the request for material—so that the Court could decide the Minister’s motion to strike.
[7] The Minister filed the following documentary evidence in support of her motion to strike:
a) The notice of amended application for judicial review dated April 21, 2016, in docket T46216;
b) The Federal Court judgment dated January 24, 2017, in docket T46216; and
c) The notice of appeal dated February 21, 2017, in docket A5917.
[8] For his part, the applicant, who objects to this motion to strike, filed the following documentary evidence in his reply record:
a) The letter from counsel Bernard Letarte dated October 17, 2017, regarding this case, objecting to the request for material made in the notice of application for judicial review dated September 27, 2017;
b) An excerpt from the House of Commons debates dated September 28, 2017, in which the Minister answers a question about the export permits issued following the allegations that Saudi Arabia uses Canadian weapons against its civilian population; and
c) The Minister’s memorandum of fact and law dated July 11, 2017, in docket A5917.
[9] The applicant’s supplementary reply record contains an affidavit from the applicant, dated October 23, 2017, and the following documentary evidence:
a) A release from the Department of External Affairs dated September 10, 1986, entitled “Exports Controls Policy” (Exhibit A) – alleged in the notice of amended application T46216 (paragraph 17) and the notice of application dated September 27, 2017 (paragraph 26);
b) The Export Controls Handbook, revised in June 2015 (Exhibit B) – alleged in the notice of amended application T46216 (paragraphs 18 and 27) and the notice of application dated September 27, 2017 (paragraphs 27 and 30);
c) Amnesty International Report 2016/17 entitled “The State of the World’s Human Rights” (Exhibit C) – alleged in the notice of application dated September 27, 2017 (paragraph 15);
d) A release from the Office of the United Nations High Commissioner for Human Rights dated April 5, 2017, entitled “UN experts urge Saudi Arabia to halt forced evictions and demolitions of the AlMasora neighborhood in Awamia” (Exhibit D) – alleged in the notice of application dated September 27, 2017;
e) A release from the Office of the United Nations High Commissioner for Human Rights dated May 24, 2017, entitled “Saudi Arabia’s use of force and demolitions in the AlMasora neighborhood violates human rights” (Exhibit E) – alleged in the notice of application dated September 27, 2017 (events of April to August 2017, paragraphs 20 et seq.);
f) An article from the Globe and Mail reporting an announcement by the Minister in late July 2017 to the effect that she was very concerned about the use of Canadian LAVs against civilians and relating a statement by the Saudi Embassy indicating that it considered it necessary to use military equipment to fight the terrorists (Exhibit F) – in reference to the facts alleged in the notice of application dated September 27, 2017 (paragraphs 22 and 37);
g) A release from the Office of the United Nations High Commissioner for Human Rights dated May 4, 2017, entitled “UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Saudi Arabia” (Exhibit G) – alleged in the notice of application dated September 27, 2017 (paragraphs 18 et seq.);
h) A summary of the situation prepared by the Office for the Coordination of Humanitarian Affairs on the crisis in Yemen, entitled “Crisis Overview” (Exhibit H) – in reference to the facts alleged in the notice of application dated September 27, 2017 (paragraphs 23 and 24);
i) A report by the Human Rights Council dated September 13, 2017, entitled “Situation of human rights in Yemen, including violations and abuses since September 2014” (Exhibit I) – in reference to the facts alleged in the notice of application dated September 27, 2017 (paragraphs 23 and 24);
j) An article from the Globe and Mail dated July 28, 2017, entitled “Saudi Arabia appears to be deploying Canadianmade armoured vehicles against its own citizens” and an article from CBC News dated July 28, 2017, entitled “Ottawa ready to review Saudi arms deals amid crackdown” (Exhibit J) – in reference to the facts alleged in the notice of application dated September 27, 2017 (paragraphs 20 and 37).
[10] On November 20, 2017, the Court heard the oral submissions of counsel. At the outset of the hearing, the Court noted that, given the nature of the general remedies sought by the applicant in this application for judicial review, GDLS is a directly interested party adverse in interest to the applicant within the meaning of section 18.1 of the Federal Courts Act, RSC 1985, c F7 [FCA]. Counsel for the applicant also specified the remedies that he is seeking, which are already covered by the basket clause in the notice of application for judicial review dated September 27, 2017. The Court granted leave to the applicant to file and serve a notice of amended application and allowed both parties to make supplementary written submissions after the hearing.
[11] On November 21, 2017, the applicant filed and served a notice of amended application for judicial review, in which he added GDLS as a corespondent and specified the remedies he is seeking, in keeping with the amendments announced at the hearing on November 20, 2017. No other amendment was made to the notice of application dated September 27, 2017.
[12] Although it was designated as a corespondent, GDLS did not appear in this matter.
[13] In exercising my judicial discretion, and for the reasons set out below, I do not consider it appropriate to strike this application for judicial review.
II. General principles for striking out
[14] It is relevant to set out below the general and well known principles that the Court considered in exercising its discretionary jurisdiction.
A. The inherent jurisdiction of the Court and its underlying values
[15] It should be noted that the motions judge’s discretion to summarily strike out a notice of judicial review because it discloses no cause of action or is an abuse of process arises from the Court’s inherent jurisdiction to control the processes before it. In reality, “[t]he Federal Courts’ power to control the integrity of its [sic] own processes is part of its core function, essential for the due administration of justice, the preservation of the rule of law and the maintenance of a proper balance of power among the legislative, executive and judicial branches of government” (Canada (National Revenue) v RBC Life Insurance Company, 2013 FCA 50 at paragraph 36 and cited case law; see also Lee v Canada (Correctional Service), 2017 FCA 228 at paragraphs 13–15). Different considerations come into play.
[16] “Ensuring access to justice is the greatest challenge to the rule of law in Canada today” (Hryniak v Mauldin, 2014 SCC 7 at paragraph 1). Not only can trials be protracted and expensive, but the proliferation of interlocutory applications and crossappeals generates additional delays and expenses that are burdensome on litigants and the entire judicial system. On the contrary, “[t]he power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial” (R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at paragraph 19 [Imperial Tobacco]; see also Canada v Olumide, 2017 FCA 42 at paragraph 18).
[17] This is also a fact: the Rules governing the conduct of actions (Part 4) are more restrictive than the Rules governing applications (Part 5). The former include a wide range of preliminary motions, including the motion to strike referred to in rule 221, which is not true for the latter. The reason is simple. It is a matter of saving the Court’s limited judicial resources by forcing the parties to make all of their arguments at the hearing of the application on the merits. Thus, although the Federal Court could order that an application for judicial review proceed as though it were an action, generally, the application is heard and determined without delay and in a summary way (see subsection 18.4(1) of the FCA).
[18] Nevertheless, the opportunity to file a motion to strike a judicial review is not limited to cases where the application has been converted into an action. Regardless of any statutory or regulatory provision, this Court can summarily strike a notice of application for judicial review if it is so clearly improper as to be bereft of any possibility of success or if it is otherwise an abuse of process (see Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at paragraphs 47–50 and cited case law [JP Morgan]; Canada v Garber, 2008 FCA 53 at paragraphs 33–41 and cited case law [Garber].
B. Striking out for want of a reasonable cause of action
[19] According to the case law, the Court may strike an application for judicial review for want of a reasonable cause of action. However, the motions judge’s discretion must not be trivialized. This discretion is exercised only in the most exceptional circumstances, namely when the application is bereft of any possibility of success. The moving party must therefore satisfy the judge that there is an obvious, fatal flaw that fundamentally vitiates the Court’s power to hear the application. This is a very onerous burden (see JP Morgan at paragraph 47; Odynsky v League for Human Rights of B’Nai Brith Canada, 2009 FCA 82 at paragraph 5 citing David Bull Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1 FCR 588, 176 NR 48 (CA)). As discussed below, I am not persuaded that the Minister has discharged that burden.
[20] The underlying principle is that in a motion to strike, the facts alleged in the notice of application for judicial review are assumed to be true, unless they are manifestly incapable of being proven (see, by analogy: subsection 221(2) of the Rules; see also Operation Dismantle v The Queen, [1985] 1 SCR 441 at page 455; 18 DLR (4th) 481; Imperial Tobacco at paragraph 22; JP Morgan at paragraph 52). This eliminates the need to submit the facts through an affidavit. This does not apply where a document is referred to and incorporated by reference in a notice of application, which may merely be appended, nothing more, for the assistance of the Court (see JP Morgan at paragraph 54).
[21] The situation can become complicated when the moving party goes beyond seeking that the application for judicial review be struck for want of a reasonable cause of action, but adds supplementary grounds, such as abuse of process. In that case, nothing prevents the moving party from relying on documents that are not referred to in the notice of application for judicial review to prove that the application in question is redundant, vexatious, or is otherwise an abuse of process (see, by analogy and a contrario: paragraphs 221(1)(b), (c) and (f) and subsection 221(2) of the Rules). For his part, the applicant may file any evidence to refute these allegations. That is exactly what happened here.
[22] In a motion to strike, the Court must read the notice of application for judicial review in such a way as to grasp its true nature (see, in general, JP Morgan). The Court must perform a comprehensive and practical reading, without getting mired in matters of form. A flaw that must be demonstrated through an affidavit is not obvious, no more than motions to strike that raise substantive issues that must be made at the hearing (see JP Morgan at paragraphs 48, 50, 52 and cited case law). In my opinion, this applies to most of the arguments raised by the Minister in her motion to strike.
[23] It has been stated time and again that the jurisdictional defect that prevents the Court from hearing the application for judicial review or from granting the remedy sought must be clear. For example, applications for judicial review have been struck because, as an exception to sections 18 and 18.1 of the FCA, there was a statutory appeal proceeding. Striking out was also possible when the only remedy sought by the applicant could not be granted by the Court, such as vacating a tax assessment (see section 18.5 of the FCA; see also JP Morgan at paragraphs 81 et seq.; Canada v Addison & Leyen Ltd, 2007 SCC 33 at paragraphs 6–8).
[24] In this case, the striking out is not being sought because the Court does not have jurisdiction or because there is another appropriate remedy, but rather because, essentially, the Minister is challenging the applicant’s legal interest and the existence of a legal duty to the applicant, as well as the nature of the remedy that could be obtained if the Minister were to refuse to suspend or cancel an export permit under section 10 of the EIPA. In this case, I find that the issues instead pertain to the merits of the case and cannot be decided summarily without an examination of the evidence. Without making a final decision on the issues in this application for judicial review, it is not plain and obvious that the applicant does not have public interest standing, that the Minister’s express or implied refusal to exercise the jurisdiction provided for in section 10 of the EIPA is not reviewable, that no decision was rendered, that the application for judicial review is premature or that none of the remedies set out in sections 18 and 18.1 of the FCA can be granted by the Court in this case.
C. Striking out for abuse of process
[25] According to the case law, striking out for abuse of process is available to the respondent in circumstances where the applicant has filed a new proceeding before the Court that concerns the same subject matter after a discontinuance or after a final judgment is rendered dismissing a previous judicial review, which is not the case here.
[26] Nevertheless, the doctrine of abuse of process has also been cited “to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice” (Toronto (City) v CUPE, Local 79, 2003 SCC 63 at paragraph 37 [CUPE]).
[27] However, although the reasons for the principles underlying the doctrine of abuse of process for relitigation and the doctrine of issue estoppel seem to have a common basis, the doctrine of abuse of process essentially seeks to preserve the integrity of the judicial system in order to avoid inconsistent results (see CUPE at paragraph 43; Garber at paragraph 36). The underlying public interest is the same: there should be finality in litigation and a party should not be twice vexed in the same matter (see Johnson (AP) v Gore Wood and Co (A Firm), [2001] 2 WLR 72, cited in Garber at paragraph 81).
[28] In short, the finality and authority of judicial decisions, first, and the right to be heard, second—interests that are sometimes conflicting—must be weighed by the judge called upon to strike an application for abuse of process: ultimately, it is the integrity of the judicial process which should be the court’s fundamental concern (see Garber at paragraph 1). In this context, a motions judge’s determination as to whether the relitigation of issues and material facts constitutes an abuse of process is a discretionary matter (see CUPE at paragraph 35; Garber at paragraph 17).
[29] In this case, as it is discussed more fully below, I am not persuaded that this application for judicial review must be struck on the grounds that it is redundant and is ultimately an abuse of process.
III. Legal framework governing the export of military equipment
[30] This case calls for a brief review of the legal framework governing the export of military equipment to contextualize the nature of the issue addressed in docket T46216 in relation to that raised today in this case following new facts that arose since April 8, 2016.
[31] Section 3 of the EIPA authorizes the Governor in Council to establish a list of goods and technology, including therein any article the export or transfer of which the Governor in Council deems it necessary to control. According to paragraph 2(a) of the Export Control List, SOR/89202 and amendments thereto [List], military equipment is subject to export control when it is intended for export to any destination other than the United States.
[32] From a technical standpoint, this refers to goods and technology in Group 2 of A Guide To Canada’s Export Control List [Guide], published by the Department of Foreign Affairs, Trade and Development [Department], of which Canada agreed to control the export in accordance with the Wassenaar Arrangement and the Inter­American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives and other Related Materials (see paragraph (a) of Group 2 of the Annex to the List).
[33] Under subsection 7(1) of the EIPA, the Minister may issue to any resident of Canada applying therefor a permit to export or transfer the abovementioned goods or technology 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.
[34] In order to establish that the export is consistent with the purpose of the export control, the applicant must provide the Minister with various details, including the quantity, unit value and total market value of the goods; a copy of the contract of sale between the applicant and the person to whom the applicant sold the goods for export; a summary report on prior exports of like goods by the applicant; the intended enduse of the goods by the consignee of the goods; the intended enduse location of the goods if different from the location of the consignee, etc. (see section 3 of the Export Permits Regulations, SOR/97204).
[35] In deciding whether to issue the export permit, subsection 7(1.01) of the EIPA sets out the factors that the Minister may consider:
7(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
7(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.
[36] The Export Controls Handbook [Handbook], an administrative tool that complements the EIPA, provides guidance regarding the relevant factors:
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:
• countries which pose a threat to Canada and its allies;
• countries involved in or under imminent threat of hostilities;
• countries under United Nations Security Council sanctions;
• 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.]
[37] As discussed below, in docket T46216, only the application of section 7 of the EIPA was reviewed by the Court. In this case, however, the Court must consider the application of section 10 of the EIPA, which reads as follows:
10(1) Subject to subsection (3), the Minister may amend, suspend, cancel or reinstate any permit, import allocation, export allocation, certificate or other authorization issued or granted under this Act.
10(1) Sous réserve du paragraphe (3), le ministre peut modifier, suspendre, annuler ou rétablir les licences, certificats, autorisations d’importation ou d’exportation ou autres autorisations délivrés ou concédés en vertu de la présente loi.
(2) If a permit has been issued under this Act to any person for the exportation or importation of goods that have been included on the Export Control List or the Import Control List solely for the purpose described in subsection 5(4.3), (5) or (6), 5.1(1), 5.2(1), (2) or (3) or 5.4(6), (7) or (8), and
(2) Le ministre peut modifier, suspendre ou annuler une licence, au besoin, lorsqu’il y a eu délivrance, en vertu de la présente loi, d’une licence pour l’exportation ou pour l’importation de marchandises figurant sur la liste des marchandises d’exportation contrôlée ou sur celle des marchandises d’importation contrôlée aux seules fins visées aux paragraphes 5(4.3), (5) ou (6), 5.1(1), 5.2(1), (2) ou (3) ou 5.4(6), (7) ou (8), et que l’on se trouve dans l’une des circonstances suivantes :
(a) the person furnished, in or in connection with his application for the permit, information that was false or misleading in a material particular,
a) la personne qui a fait la demande de licence a fourni, à l’occasion de la demande, des renseignements faux ou trompeurs sur un point important;
(b) the Minister has, subsequent to the issuance of the permit and on the application of the person, issued to the person under this Act another permit for the exportation or the importation of the same goods,
b) le ministre a délivré en vertu de la présente loi, après la délivrance de la licence et à la demande de cette personne, une seconde licence pour l’exportation ou l’importation de ces marchandises;
(c) the goods have, subsequent to the issuance of the permit, been included on the Export Control List or the Import Control List for a purpose other than that described in subsection 5(4.3), (5) or (6), 5.1(1), 5.2(1), (2) or (3) or 5.4(6), (7) or (8),
c) les marchandises ont, après la délivrance de la licence, été portées sur la liste des marchandises d’exportation contrôlée ou sur celle des marchandises d’importation contrôlée à d’autres fins que celles visées aux paragraphes 5(4.3), (5) ou (6), 5.1(1), 5.2(1), (2) ou (3) ou 5.4(6), (7) ou (8);
(d) it becomes necessary or desirable to correct an error in the permit, or
d) il est nécessaire ou indiqué de corriger une erreur dans la licence;
(e) the person agrees to the amendment, suspension or cancellation of the permit,
the Minister may amend, suspend or cancel the permit, as is appropriate in the circumstances.
e) le titulaire de la licence consent à la modification, la suspension ou l’annulation.
(3) Except as provided in subsection (2), the Minister shall not amend, suspend or cancel a permit that has been issued under this Act in the circumstances described in that subsection unless to do so would be compatible with the purpose of subsection 8(2) or section 8.1 or 8.2, namely, that permits to export or to import goods that have been included on the Export Control List or the Import Control List in those circumstances be issued as freely as possible to persons wishing to export or import those goods and with no more inconvenience to those persons than is necessary to achieve the purpose for which the goods were placed on that List.
(3) Sauf les cas prévus au paragraphe (2), le ministre ne peut modifier, suspendre ou annuler une licence délivrée en vertu de la présente loi dans les circonstances visées à ce paragraphe que dans la mesure compatible avec l’objet du paragraphe 8(2) ou des articles 8.1 ou 8.2, c’est-à-dire que les licences d’exportation ou d’importation de marchandises figurant sur la liste des marchandises d’exportation contrôlée ou sur celle des marchandises d’importation contrôlée dans ces circonstances soient délivrées aussi librement que possible aux personnes qui désirent exporter ou importer les marchandises sans plus d’inconvénients qu’il n’est nécessaire pour atteindre le but visé par leur mention sur cette liste.
[38] In this case, it is therefore the legal scope and application of the general discretionary power under subsection 10(1) of the EIPA that must be examined in cases where new material information regarding the use of military equipment is communicated to the Minister. It is apparent on the face of these proceedings that the cause of action in 2017 is not the same as in 2016.
IV. The first application for judicial review in docket T46216
[39] Since the Attorney General of Canada submits on behalf of the Minister that this application for judicial review is redundant and is ultimately an abuse of process, it is also necessary to examine the first application for judicial review, the issues in docket T46216, and the Federal Court’s judgment dated January 24, 2017.
A. General factual background
[40] The facts related to the first application for judicial review are not at issue today and are not really disputed by the parties.
[41] Saudi Arabia is an Islamic absolute monarchy whose power lies in a strong army. According to the documentary evidence, the Saudi State routinely, gravely and systematically violates the fundamental rights of its citizens. These violations (death penalty, execution of this penalty by decapitation, torture and other cruel, inhuman and degrading treatment, including corporal punishment, such as whipping and amputation) have been repeatedly reported by human rights protection organizations. Moreover, the Saudi State considers any peaceful criticism of the government as terrorism, including when religious minorities seek to protect their rights. In fact, the Kingdom’s Shiite minority is particularly at risk. Saudi Arabia is also the leader of a coalition intervening in Yemen. A number of reports reveal serious violations of human rights and of international humanitarian law by this coalition, which attacks civilian targets, such as hospitals, schools, and places of worship, resulting in thousands of innocent victims.
[42] For its part, GDLS is a Canadian company that specializes in the manufacture of military vehicles, namely LAVs. Since these vehicles are military equipment that is concerned by the Guide and subject to export control, GDLS cannot export LAVs to Saudi Arabia without export permits issued by the Department or on its behalf under section 7 of the EIPA.
[43] In this regard, the export to Saudi Arabia of LAVs manufactured in Canada is nothing new. Between 1993 and July 2015, the Minister issued permits to export more than 2,900 LAVs to Saudi Arabia. During that period, more than a dozen other countries authorized the export of military equipment to Saudi Arabia. Until very recently, the contracts of sale for LAVs were negotiated between Saudi Arabia and United States and were awarded to GDLS by the Canadian Commercial Corporation [CCC], a Crown corporation. In 2014, CCC entered directly into a contract—the terms of which are confidential—with Saudi Arabia for GDLS to supply several hundred LAVs with an estimated value of 14 billion dollars over a 14year period. The continuation of this lucrative contract became an election issue during the 2015 federal campaign. In fact, the termination of the contract could result in significant job losses and the payment of onerous penalties by the Crown.
[44] On March 21, 2016, the applicant filed an application for judicial review seeking to prohibit the issuance of permits for the export of LAVs to Saudi Arabia. Note that, on the day the notice of application was filed in docket T46216, the information the applicant had at his disposal indicated that no permits had yet been issued for the export of LAVs, except for the transmission of technical data.
[45] However, according to the documentation subsequently transmitted by the tribunal on April 16, 2016, pursuant to rule 317, the Minister at the time, the Honourable Stéphane Dion, had just authorized, on April 8, 2016, the issuance of six permits to export LAVs to Saudi Arabia [the 2016 ministerial authorization]. Furthermore, on April 21, 2016, the applicant amended his notice of application for judicial review in order to have all of the export permits issued by the Minister cancelled and to obtain various declarations of illegality relating to the 2016 ministerial authorization.
B. 2016 ministerial authorization
[46] According to the documentation transmitted by the tribunal, the 2016 ministerial authorization was based on the recommendation of the Deputy Minister of Foreign Affairs in a memorandum dated March 21, 2016, entitled “Memorandum for Action” [memorandum]. The recommendation was the result of the collaboration of several branches of the Department, as well as of the Department of National Defence and the Department of Innovation, Science and Economic Development.
[47] After describing the profile of the exporter, GDLS, the history of LAV exports to Saudi Arabia, and the context in which the permit applications were made, the memorandum sets out the following considerations in particular:
Saudi Arabia is a key partner for Canada and an important ally in the region, plagued with instability, terrorism, and conflict. More particularly, Saudi Arabia is not a threat, but moreso a key military ally who backs efforts of the international community to fight the Islamic State in Iraq and Syria and the instability in Yemen. The acquisition of these nextgeneration vehicles will help in those efforts, which are compatible with Canadian defence interests;
The importance of trade relations between Canada and Saudi Arabia;
Canada’s concerns regarding the human rights situation in Saudi Arabia;
The longstanding defence relationship between Canada and Saudi Arabia, including the fact that Canada and other Western countries encourage Saudi Arabia to arm itself to be able to defend itself against neighbouring States;
The importance of the exports in question to the Canadian military industry and the economic benefits that Canada will receive from the exports, including in terms of job creation;
Saudi Arabia’s involvement in the conflict in Yemen and the allegations to the effect that Saudi Arabia and other countries involved in this conflict may have violated international humanitarian law in the context of this conflict; and
The fact that thousands of Canadian LAVs have been exported to Saudi Arabia since 1993 and that, to the Department’s knowledge, there have been no incidents indicating that these vehicles were used to commit human rights violations, in particular, the fact that there is no indication that military equipment of Canadian origin was used in violations of international humanitarian law.
[48] Ultimately, the federal officials were of the opinion that the proposed exports were consistent with Canada’s foreign policy priorities and with Canada’s defence and security interests in the Middle East and that there were no reasons to believe that LAVs would be used to commit violations of human rights and of international humanitarian law. This latter consideration is critical in this case, because according to the facts alleged in this application for judicial review—which must be assumed to be true at this stage—the Minister currently has concrete evidence to the effect that Canadian LAVs were used against civilians in Saudi Arabia.
C. Arguments raised by the applicant
[49] In challenging the 2016 ministerial authorization, the applicant submitted various grounds for setting it aside revolving around three separate themes.
[50] First, the applicant submitted that the Minister had acted illegally in issuing the export permits to GDLS. Therefore, the applicant submits that the issuance of the permits was contrary to the EIPA, its various guidelines and the Geneva Conventions Act, RSC 1985, c G3 [GCA].
[51] Second, the applicant also argued that the Minister had a closed mind and had fettered her discretion by giving significant weight to irrelevant considerations, which was evident namely from the Minister’s public statements.
[52] Third, the applicant submitted that the ministerial authorization was unreasonable: since Saudi Arabia is directly involved in hostilities in Yemen and in repeated and documented violations of fundamental rights, there was a significant risk that the LAVs would be used against civilians.
[53] As we will see below, in her judgment dated January 24, 2017, Justice TremblayLamer dismissed each of these arguments, but not without certain nuances that are important to highlight today. This is particularly true of the reasonableness of the 2016 ministerial authorization, given the absence of concrete evidence of Canadian LAVs being used against civilian populations.
D. Judgment dated January 24, 2017
[54] In Justice TremblayLamer’s judgment dated January 24, 2017, she approached the case as follows: by first addressing the standard of review and the applicant’s interests, followed by the issues in dispute.
(1) Reviewability of the ministerial authorization
[55] First, the Court addressed the 2016 ministerial authorization as a reviewable decision under section 18 of the FCA.
[56] Since the authority to issue permits under section 7 of the EIPA is discretionary and since exercising that discretion relates to government policies, the standard of reasonableness applies (Turp FC at paragraphs 23–24). In such cases, the Court’s contextual analysis must take into account the economic and trade objectives of the EIPA, Canada’s national and international security interests and the Minister’s expertise with regard to international relations, as well as considerations relating to human rights (Turp FC at paragraph 25).
(2) The applicant’s standing
[57] The Court granted the applicant public interest standing with respect to the issue of the reasonableness of the Minister’s decision on April 8, 2016, to authorize the issuance of export permits to GDLS (Turp FC at paragraphs 26–30).
[58] However, the Court found that the applicant could not raise procedural fairness issues, which includes the issues raised by the applicant regarding procedural errors and the Minister’s closed mind (Turp FC at paragraphs 31–32).
[59] Moreover, even though the Court commented on the application of the GCA—it is possible that the first article of the four Geneva Conventions of 1949 [Conventions] has been integrated into Canadian law—it nevertheless noted that the first article confers rights and imposes obligations on the State Parties to the Conventions, but not on individuals (Turp FC at paragraphs 58 and 65).
(3) Substantive issues
[60] On judicial review, Justice TremblayLamer reiterates that “[t]he role of this Court is thus to determine whether the Minister acted within his jurisdiction and exercised his discretion on the basis of proper considerations” (Turp FC at paragraph 38), and that “[i]t is for him to decide . . . how much weight to give to each, as long as he exercises his power in accordance with the object and in the spirit of the EIPA” (Turp FC at paragraph 37). In this regard, one question of law that was hotly debated by the parties was whether or not the factors listed by Parliament in subsection 7(1.01) of the EIPA are exclusive and binding. In fact, the memorandum prepared for the Minister sets out a certain number of policy factors that were considered that are not expressly mentioned in the EIPA or the Handbook.
[61] In particular, the applicant relied specifically on the Handbook, which refers to “present policy guidelines set out by Cabinet in 1986”. Yet, according to the press release dated September 10, 1986, entitled “Exports Controls Policy”, “. . . Canada will not allow the export of military equipment to countries whose [foreign] 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 . . . the onus of proving ‘no reasonable risk’ [is] squarely on the exporter.”
[62] However, the Court dismissed the applicant’s general argument to the effect that under subsection 7(1.01) of the EIPA and the Handbook, and in light of Canada’s international obligations, the Minister is not only obliged to consider the factors set out in subsection 7(1.01) of the EIPA, but must also refuse to issue an export permit if there exists a reasonable risk that the exported goods might be used against the civilian population (Turp FC at paragraphs 39 et seq.). Moreover, the guidelines, while useful for informing the exercise of the Minister’s discretion and the interpretation of the provisions of the EIPA, are not binding (Turp FC at paragraph 46).
[63] Generally, the Court instead decided that the Minister is free to issue an export permit if the Minister concludes that it is in Canada’s interest to do so, considering th