Khadr v. Canada (Attorney General)

Khadr v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2006-06-08
Neutral citation
2006 FC 727
File numbers
T-937-04
Notes
Reported Decision
Decision Content
Date: 20060608
Docket: T-937-04
Citation: 2006 FC 727
Ottawa, Ontario, June 8, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ABDURAHMAN KHADR
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. OVERVIEW
[1] This judicial review concerns a Canadian citizen, who is neither convicted nor charged with any offence nor said to be a threat to Canada, who applied for his passport renewal for which he qualified in all respects under the existing provisions. The government, recognizing that the Applicant was entitled to his passport, changed the qualifications, without notice to anyone, to deprive the Applicant of his passport. This is the judicial review of the decision to deny the issuance of the passport, a decision made pursuant to an exercise of the prerogative of the Crown.
[2] The above neutral description is the legally relevant synopsis of what occurred. However, the description lacks the colour of the surrounding facts, that the Applicant is a member of a family, many of whom are openly supporters of al-Qaeda. The principal reason for denying the passport - in the interests of national security - was based on concern about Canada-U.S. relations and public disapproval for issuing a passport to a member of such an infamous family. National security was not a ground for denial of a passport listed in the Canadian Passport Order at the time.
[3] The principal issues raised by this case can be summarized as follows:
· the jurisdiction of the Federal Court over the exercise of the Crown Prerogative;
· who can exercise the prerogative in respect of the Canadian Passport Order;
· whether the prerogative was exhausted by the Canadian Passport Order;
· the role of the Charter, in particular s. 6 (mobility rights), s. 7 (liberty and security of the person), and s. 1 (reasonable limitation), in the exercise of the prerogative;
· the applicability of the doctrine of legitimate expectation; and
· the appropriate remedy, if any.
[4] For the reasons which follow, I have concluded that, in this case, every citizen is entitled to be treated, procedurally at least, in the manner in which the government says his or her rights or interests will be dealt with. It is part of our law of procedural fairness that in order to know the case one must meet, one is entitled to know who will decide and on what criteria the decision may be based. As a result, the Applicant will be entitled to have his passport renewal dealt with by the Passport Office in accordance with the Canadian Passport Order as it stood at the time he applied for renewal of that passport.
However, nothing in these Reasons should be held to conclude that the Respondent is prevented from immediately taking steps to revoke the passport on the grounds now enumerated in the amended Canadian Passport Order, if such grounds exist.
II. BACKGROUND
[5] This is an application for judicial review in respect of the April 16, 2004 denial of Abdurahman Khadr's (Khadr) passport application purportedly made by the Passport Office, Department of Foreign Affairs and International Trade. The actual decision was made by the Minister of Foreign Affairs (Minister) on March 3, 2004.
The judicial review includes a review of a decision of the Minister to refuse the Applicant access to passport services pursuant to the exercise of the Crown Prerogative. However, the central issue is the refusal to issue a new passport.
[6] The Applicant seeks a declaration, pursuant to section 18(1)(a) of the Federal Courts Act that the Minister's decision is unlawful, unconstitutional, is a violation of sections 6 and 7 of the Canadian Charter of Rights and Freedoms, and therefore invalid.
As a remedy, the Applicant seeks an order of mandamus directing the Minister to issue or cause to be issued a passport to him.
[7] The Respondent, in the course of the litigation, admitted that the Minister's decision was procedurally unfair, largely through failure to disclose certain information. The Respondent requested that the decision be quashed and the matter remitted to the Minister for re-determination in accordance with the amended Canadian Passport Order.
[8] Given the Minister's concession, the Respondent had argued, in a motion to amend the application for judicial review, that the whole matter was moot because of the Minister's concession.
Justice MacKay (sitting as a deputy judge) concluded that the matter was not moot because the Applicant contests the Minister's decision "in light of the principles of the Rule of Law and of the Charter". In summary, Justice MacKay concluded:
The submissions invite this Court to ignore any questions concerning the jurisdiction of the Minister to make the decision of March 3. In my opinion, the proper exercise of the prerogative, by anyone purporting to be authorized, is a matter of concern to the Court when it is raised by an individual affected by the exercise.
[9] It is common ground between the parties that the grant or refusal of a passport is a matter within the prerogative of the Crown. They also agree that refusal of a passport application on the grounds of national security is not within the authority vested in the Passport Office by the Canadian Passport Order as it stood at the time of the Applicant's application. There was no statute or order vesting that specific authority in the Minister or anyone else until the Canadian Passport Order was subsequently amended to add national security as grounds for refusal and giving the authority to deny a passport to the Minister.
III. FACTS
[10] The Applicant is a Canadian citizen, in his early 20s. In November 1999 he was issued a Canadian passport. That passport was scheduled to expire in November 2004.
[11] Sometime in November 2001, the Applicant's father (now deceased) took the passport from the Applicant, allegedly for safekeeping. The passport then fell into the hands of his mother in Pakistan. As a result of unusual circumstances, by November 2003 he ended up in Bosnia and reported his passport inaccessible.
[12] According to the Applicant, in November 2001 he was detained in Afghanistan. He was subsequently liberated by U.S. authorities and in March 2003 he was flown to Guantanamo Bay, Cuba to act as a "mole" for the U.S. Central Intelligence Agency (CIA). He was released from Guantanamo Bay in November 2003 and flown to Sarajevo, Bosnia by the CIA. It was there in November 2003 that he went to the Canadian Embassy to obtain help returning to Canada and where he received an emergency passport.
[13] Members of the Khadr family have admitted involvement as associates of Osama Bin Laden and the parents and four of their children, including the Applicant, have been on the passport control list since 2000 as "persons of interest".
[14] Based on the information in its file showing the connection between members of the Khadr family and al-Qaeda, the Passport Office became concerned that the issuance of passports to members of the family might be contrary to the national security interests of Canada.
[15] In this regard and in respect of the Applicant, there is no evidence that the Canadian authorities took any steps to revoke the passports previously issued. Revocation of a passport can occur on the same grounds as a refusal to issue a passport under the then Canadian Passport Order.
[16] The Respondent states that there were meetings between officials of the Department of Foreign Affairs and the Canadian Security Intelligence Service (CSIS) concerning the issuance of passports and that CSIS provided a report expressing national security concerns. No effort was made to put this evidence before the Court. However, on March 3, 2004, the Passport Office prepared an Action Memorandum, more fully described in paragraph 22.
[17] On April 5, 2004, the Applicant applied to the Canadian Passport Office for a replacement passport. He submitted all the required documents to the Passport Office in support of his application. In all respects, his application was in accordance with the Canadian Passport Order and there was no known basis upon which to refuse his application.
[18] The issuance and revocation of Canadian passports has been governed since 1981 by the Canadian Passport Order issued by the Governor in Council to replace the Canadian Passport Regulations. At the time, a passport could be refused on the following grounds:
9. The Passport Office may refuse to issue a passport to an applicant who
(a) fails to provide the Passport Office with a duly completed application for a passport or with the information and material that is required or requested
(i) in the application for a passport, or
(ii) pursuant to section 8;
(b) stands charged in Canada with the commission of an indictable offence;
(c) stands charged outside Canada with the commission of any offence that would, if committed in Canada, constitute an indictable offence;
(d) is serving a term of imprisonment or is forbidden to leave Canada by
(i) the terms and conditions of any parole or mandatory supervision imposed under or by virtue of the Parole Act,
(ii) the conditions of a probation order made under the Criminal Code, or
(iii) the conditions of the grant of a temporary absence without escort from a prison or penitentiary;
(e) has been convicted of an offence under section 58 of the Criminal Code;
(f) is indebted to the Crown for expenses related to repatriation to Canada or for other consular financial assistance provided abroad at his request by the Government of Canada; or
(g) has been issued a passport that has not expired and has not been revoked or whose name is included in such a passport.
9. Le Bureau des passeports peut refuser de délivrer un passeport à un requérant qui
a) ne lui présente pas une demande de passeport dûment remplie ou ne lui fournit pas les renseignements et les documents exigés ou demandés
(i) dans la demande de passeport, ou
(ii) selon l'article 8;
b) est accusé au Canada d'un acte criminel;
c) est accusé dans un pays étranger d'avoir commis une infraction qui constituerait un acte criminel si elle était commise au Canada;
d) purge une peine d'emprisonnement ou est frappé de l'interdiction de quitter le Canada
(i) selon les modalités découlant d'une libération conditionnelle ou d'une libération sous surveillance obligatoire imposée en vertu de la Loi sur la libération conditionnelle de détenus,
(ii) selon les dispositions d'une ordonnance de probation établie en vertu du Code criminel, ou
(iii) selon les conditions régissant une absence temporaire sans escorte d'une prison ou d'un pénitencier;
e) a été déclaré coupable d'un acte criminel selon l'article 58 du Code criminel;
f) est redevable envers la Couronne par suite des dépenses engagées en vue de son rapatriement au Canada ou d'une autre assistance financière consulaire qu'il a demandée et que le gouvernement du Canada lui a fournie à l'étranger; ou
g) détient un passeport ou dont le nom est inscrit dans un passeport qui n'est pas expiré et n'a pas été révoqué.
[19] The Applicant has not been charged with any offence in Canada or any other nation, has never been convicted of any crime or served any term of imprisonment and is not indebted to the Crown for expenses related to repatriation to Canada. There were no stated grounds upon which to refuse to issue the passport.
[20] In the face of what officials obviously saw as a forthcoming undesirable public reaction, the Passport Office issued an Action Memorandum dated March 3, 2004 (one month before the Applicant's passport application filing) signed by the Deputy Minister and two Assistant Deputy Ministers. The version before the Court of this memorandum and related subsequent documents are severely redacted.
[21] This Action Memorandum, which recommended that the Minister refuse further passport issuance to the Applicant in the interests of the national security of Canada, was signed by the Minister, indicating his decision to refuse passport issuance to the Applicant. However, the Applicant was initially advised by the Passport Office that it had been decided to deny Khadr's application, the clear implication being that the decision was made by the Passport Office in accordance with the Canadian Passport Order. It took the Applicant some period of time to force out disclosure that the decision had actually been made by the Minister and not the Passport Office.
[22] The Action Memorandum sets out the rationale for the decision and contains the gravamen of the decision. The pertinent parts of the Action Memorandum state:
· "The Passport Office requires your approval or that of Cabinet, to formally refuse further passport issuance to ... Abdurahman Khadr (they hold passports valid until November 2004) in the interests of the national security of Canada and the protection of Canadian troops in Afghanistan."
· "National interests and national security are not listed in the Canadian Passport Order as grounds for the refusal of passport services. This limitation constrains passport officials but does not constrain the Crown."
· "The Passport Office believes that denial of passport services to several members of the Khadr family (a family tree is attached) is warranted."
· "Section 9 of the Canadian Passport Order (CPO) limits the right to refuse passport issuance to specific circumstances. Threats to national security are not within the scope of the CPO and as such the Passport Office has no legal justification to refuse to issue full validity passports to the Khadr family. A Canadian citizen must stand charged with an indictable offence (such as terrorist activity or affiliation) in order to refuse or revoke a passport under the CPO."
· "However, in the interim, the Passport Office is unable to support Canadian government interests in cases where a subject is a threat to national security or is a person of interest to other agencies."
· "Further, if the refusal of passports were subjected to judicial review before the Federal Court, it is doubtful that a court would be satisfied with a bald assertion by the Passport Office alone that the members of the Khadr family are the subject of a national security investigation. The Passport Office must have documentation from source agencies on file, including any sensitive intelligence prior to the Minister taking the decision to refuse passport issuance. The Passport Office now holds that documentation from CSIS on file."
· "The Canada Evidence Act provides a mechanism by which a prohibition order can be obtained from the court to prevent disclosure of information, that, if made public, would encroach on the public interest, in this case national security."
[As it stands, none of this evidence has been presented, and no such prohibition order sought. The Court is largely left with the "bald assertions". There is evidence of a general concern about misuse of Canadian passports and the activities of members of the Khadr family. However, there is nothing that singularly addresses the Applicant as distinct from other members of his family.]
· Lastly - "We believe the implications of providing passports to the high risk members of the Khadr family are significant in terms of "Canada-U.S. relations". Given the circumstances described, it seems likely that the Canadian public and the American government would be highly critical of full passport services being provided to this family."
[23] In summary, the unestablished national security concern, coupled with the concerns for the approbation of an ally and the Canadian public, was the shoal upon which the interests of a Canadian citizen in obtaining his passport foundered.
[24] By letter of April 16, 2004 from the Chief Executive Officer of the Passport Office, the Applicant was informed that his application was denied. The letter did not state the grounds for the denial, the identity of the person who made the decision or the legal authority on which the decision was based.
[25] On September 1, 2004, the Governor General in Council enacted an Order Amending the Canadian Passport Order, including the following amendments:
4.(3) Nothing in this Order in any manner limits or affects Her Majesty in right of Canada's royal prerogative over passports.
4.(4) The royal prerogative over passports can be exercised by the Governor in Council or the Minister on behalf of Her Majesty in right of Canada.
10.1 Without limiting the generality of subsections 4(3) and (4) and for greater certainty, the Minister may refuse or revoke a passport if the Minister is of the opinion that such action is necessary for the national security of Canada or another country.
4.(3) Le présent décret n'a pas pour effet de limiter, de quelque manière, la prérogative royale que possède Sa Majesté du chef du Canada en matière de passeport.
4.(4) La prérogative royale en matière de passeport peut être exercée par le gouverneur en conseil ou le ministre au nom de Sa Majesté du chef du Canada.
10.1 Sans que soit limitée la généralité des paragraphes 4(3) et (4), il est entendu que le ministre peut refuser de délivrer un passeport ou en révoquer un s'il est d'avis que cela est nécessaire pour la sécurité nationale du Canada ou d'un autre pays.
IV. ISSUES
[26] The issues arising in this case have been described earlier in paragraph 3.
V. ANALYSIS
A. Court Jurisdiction
(1) Justiciability
[27] In the current case, this is an exercise of the Crown Prerogative outside any statutorily based discretion. The first question then is whether this particular exercise of the Crown Prerogative is subject to judicial review. If so, the second question is whether the Federal Court has jurisdiction to conduct that review.
[28] In Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441, the Supreme Court of Canada held that where the Crown Prerogative violates an individual's rights provided under the Charter, then that exercise of the prerogative can be reviewed by the Court.
[29] At about the same time, the House of Lords in the case of Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All E.R. 935; [1984] 3 W.L.R. 1174; [1985] 1 A.C. 374; [1985] I.C.R. 14 (H.L.) expanded the areas of the Crown Prerogative which may be subject to judicial review to include situations where the prerogative power affected rights either by altering an individual's legal rights and obligations or by affecting the individual's legitimate expectations.
To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:
(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or
(b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker [that the benefit or advantage] will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.
[30] It is well to bear in mind that in the U.K., the doctrine of legitimate expectations creates substantive and procedural rights whereas in Canada the Supreme Court has limited the principle to the protection of procedural rights. (Mount SinaiHospital Centerv. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41, [2001] S.C.J. No. 43 (QL) This Court is therefore constrained by the more limited application in this country of the principle of legitimate expectation.
[31] In the context of the Crown Prerogative, Laskin J.A. in Black v. Canada(Prime Minister), 54 O.R. (3d) 215, [2001] O.J. No. 1853, a case involving the award (or non-award) of honours by the Crown, held that a matter is justiciable and amenable to judicial review if its subject matter affects the rights or legitimate expectations of an individual.
Under the test set out by the House of Lords, the exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual. Where the rights or legitimate expectations of an individual are affected, the court is both competent and qualified to judicially review the exercise of the prerogative.
[32] I adopt Justice Laskin's rationale in respect of justiciability. In the instant case the Applicant raises both Charter and legitimate expectation arguments. Most importantly, the subject matter, the granting of a single passport to an individual (in contrast to a matter of great state policy such as war or treaty making), is readily justiciable. The issue then becomes under what grounds can the matter be reviewed. I do not understand Justice Laskin's comments to extend to creating protection of substantive rights under the principle of legitimate expectation.
[33] In Black, above, the Court of Appeal, in what is clearly obiter, proceeded to expound on the very issue of passports. It made the point that common sense dictates that a refusal to issue a passport for an improper purpose or without affording a person procedural fairness should be judicially reviewable.
[34] That Court then went on to discuss the basis upon which the refusal to issue a passport may be reviewed:
In today's world, the granting of a passport is not a favour bestowed on a citizen by the state. It is not a privilege or a luxury but a necessity. Possession of a passport offers citizens the freedom to travel and to earn a livelihood in the global economy. In Canada, the refusal to issue a passport brings into play Charter considerations; the guarantee of mobility under s. 6 and perhaps even the right to liberty under s. 7. In my view, the improper refusal of a passport should, as the English courts have held, be judicially reviewable.
[35] While the Ontario Court of Appeal's comments must be considered obiter in Black, both because passports were not the subject of that case and because such a refusal is a matter for the Federal Court, it is not obiter in this case and I adopt it. The law is now that the refusal to issue a passport is justiciable - particularly where there are issues of Charter rights and questions of fairness and legitimate expectations - as are the issues in this case.
(2) Federal Court
[36] In Black, the Ontario Court of Appeal held that despite (or because of) s. 2 of the Federal Court Act, there was a gap in jurisdiction in respect of the federal Crown Prerogative. As a result, it concluded that a provincial superior court had jurisdiction over the exercise of federal Crown Prerogative in certain limited circumstances. The pertinent part of s. 2 is as follows:
2. (1) In this Act,
...
"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
...
« office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867.
(Emphasis added)
[37] The issue of jurisdiction turned on whether the Federal Court had exclusive jurisdiction under s. 18 of the Federal Courts Act where the exercise of the federal Crown Prerogative is not exercised by means of an order.
[38] The Ontario Court of Appeal expressed concern that s. 2 and s. 18 of the Federal Court Act were efforts to oust the inherent jurisdiction of a provincial superior court. It therefore held that in s. 2 of the Federal Court Act, the phrase "an order made pursuant to" modifies "by" and "under" and concluded that absent an order, the exercise of the federal Crown Prerogative power may be reviewed by a provincial superior court. In other words, the exercise of the prerogative itself, absent an antecedent order, would not fall within the jurisdiction of the Federal Court.
[39] The counterargument, rejected by the Ontario Court of Appeal, was that "an order" related to "under" but not "by". This interpretation was said to be more consistent with the purpose of the Federal Court Act and avoided the "gap" in jurisdictional consistency created by the alternate interpretation.
[40] As a result of this jurisdictional issue, the Court asked the parties to address the issue of this Court's jurisdiction, although both parties had accepted that the Federal Court was the appropriate forum.
[41] The Applicant submitted that the Minister's decision not to issue a passport was an "order" and therefore fell squarely within s. 2(1). In the alternative, the Applicant argued that, applying a purposive approach, the pure exercise of the prerogative would fall within s. 2(1). The Respondent takes a slightly different tack contending that the Minister's decision is a direct exercise of the prerogative power but that the Ontario Court of Appeal erred in Black and that under a purposive test, the Federal Court has the jurisdiction over the exercise of the federal Crown Prerogative.
[42] It is my conclusion that the Federal Court has jurisdiction on both the grounds that there is an "order" and further that a purposive interpretation of the legislation indicates that Parliament intended the Federal Court to have exclusive jurisdiction over the exercise of the justiciable aspects of the federal exercise of the Crown Prerogative. On the facts of this case, there is a decision which resulted in an order to deny the passport. The Minister's decision was carried out by an order to officials to deny the passport application. That order flows from the Minister's acceptance of the Action Memorandum. As such, it was an order made pursuant to the exercise of the Crown Prerogative. It falls squarely within the exclusive jurisdiction of the Federal Court, as recognized in Black.
[43] However, even accepting the Respondent's view that there was a direct exercise of the prerogative, this Court has jurisdiction. The Ontario Court of Appeal acknowledges that there were two reasonable interpretations of the relevant parts of s. 2(1) of the Federal Court Act. When that situation occurs, a court must engage in a purposive approach to the legislation as mandated by the Interpretation Act and the Supreme Court of Canada.
[44] In interpreting the jurisdiction of the Federal Court set out in the Federal Courts Act, one must take a fair and liberal approach to the words as best achieves the objectives of the legislation. Section 12 of the Interpretation Act reads:
12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
12. Tout texte est censé apporter une solution de droit et s'interprète de la manière la plus équitable et la plus large qui soit compatible avec la réalisation de son objet.
[45] In Southam Inc. v. Canada(Attorney General), [1990] 3 F.C. 465, [1990] F.C.J. No. 712 (QL), Justice Iacobucci (C.J., as he then was) described the purpose of the then Federal Court Act as:
The major purpose of this aspect of the Federal Court Act was to transfer the supervisory jurisdiction of federal boards and tribunals from provincial superior courts to the newly created Federal Court ...
[46] The concern which was to be addressed by the expanded powers of the Federal Court (as it moved from the Exchequer Court) was to ensure consistency with respect to the exercise of justiciable federal powers. This was articulated by Desjardins J.A. in Canada v. Tremblay (F.C.A.), [2004] 4 F.C.R. 165, [2004] F.C.J. No. 787 (QL), 2004 FCA 172:
The Parliament of Canada thus ensured that federal boards, commissions or other tribunals, whose activities are spread across Canada, would not be subjected to potentially contradictory decisions from one province to the next. Henceforth, they would come under the superintending and reforming power of the Federal Court of Canada.
[47] In Canada (Human Rights Commission) v. Canadian LibertyNet, [1998] 1 S.C.R. 626; [1998] S.C.J. No. 31 (QL), Justice Bastarache addressed some of the jurisdictional issues raised in this judicial review. In Black, the Ontario Court of Appeal was concerned with what it saw as the ousting of superior court jurisdiction and therefore gave a narrow interpretation to the Federal Court Act. However, in Canadian Liberty Net, the Supreme Court cautioned against such approach - the inherent jurisdiction of a provincial superior court is to ensure that, absent some other court's jurisdiction, there is always a court available to vindicate a right.
The notion of "inherent jurisdiction" arises from the presumption that if there is a justiciable right, then there must be a court competent to indicate the right. The issue addressed in Board v. Board was whether a failure to grant jurisdiction should be read as implicitly excluding jurisdiction. In that context, the doctrine of inherent jurisdiction requires that only an explicit ouster of jurisdiction should be allowed to deny jurisdiction to the superior court. In my view, the case does not stand for the fundamentally different proposition that statutes which purport to grant jurisdiction to another court should be read narrowly so as to protect the jurisdiction of the superior court. That is not the purpose of the doctrine of inherent jurisdiction, which is simply to ensure that a right will not be without a superior court forum in which it can be recognized.
[48] In the same vein, the Supreme Court adopted the fair and liberal interpretation of the Federal Court Act and cautioned against finding gaps unless the words clearly created them.
But in my view, there is nothing in this articulation of the essentially remedial concept of inherent jurisdiction which in any way can be used to justify a narrow, rather than a fair and liberal, interpretation of federal statutes granting jurisdiction to the Federal Court. The legitimate proposition that the institutional and constitutional position of provincial superior courts warrants the grant to them of a residual jurisdiction over all federal matters where there is a "gap" in statutory grants of jurisdiction, is entirely different from the proposition that federal statutes should be read to find "gaps" unless the words of the statute explicitly close them. The doctrine of inherent jurisdiction raises no valid reasons, constitutional or otherwise, for jealously protecting the jurisdiction of provincial superior courts as against the Federal Court of Canada.
[49] Finally, the Supreme Court underlined the intent of Parliament to grant to the Federal Courts general administrative jurisdiction over federal decision-makers. I take this to mean all persons exercising powers conferred by statute or prerogative.
As is clear from the face of the Federal Court Act, and confirmed by the additional role conferred on it in other federal Acts, in this case the Human Rights Act, Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion. This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction.
[50] This Court has previously, either expressly or by action, taken jurisdiction in matters involving the Crown Prerogative. (See Schreiber v. Canada (Attorney General) (T.D.), [2000] 1 F.C. 427; [1999] F.C.J. No. 1276 (QL) and Copello v. Canada (Minister of Foreign Affairs), [2002] 3 F.C. 24, [2001] F.C.J. No. 1835 (QL), 2001 FCT 1350.) However, the issue raised in Black has not been considered explicitly by this Court.
[51] With the greatest respect to the Ontario Court of Appeal and while I adopt that Court's conclusions on the justiciability of the Crown Prerogative, on this issue of jurisdiction, I cannot concur.
[52] The provisions of the Federal Courts Act should be read purposefully to give effect to its objects and aims of the legislation, in this instance, subjecting the exercise of federal decision-making powers to this Court's supervisory jurisdiction. It is evident by the inclusion of a reference to the Crown Prerogative that Parliament intends the Federal Court to have jurisdiction over justiciable matters of the exercise of that prerogative.
[53] It would be inconsistent with that intent that some aspect of the justiciable area of federal Crown Prerogative could be truncated off to the jurisdiction of another court. That could lead to the very inconsistency of judicial decisions which the Federal Courts Act was designed to avoid.
[54] The Federal Courts Act, in particular s. 2(1), is aimed at control of the exercise of a federal power - that is, its central purpose - the means of exercise are secondary. The focus of the provision is the source of the power, be it Parliament or the executive. The alternate interpretation adopted by the Ontario Court of Appeal focuses attention on the means of the exercise not the source of the power.
[55] Finally, on this point, in the face of two acknowledged reasonable interpretations, a court must find the one which better accords with the purpose of the legislation, the intent of the section, and avoids inconsistency and problems. A "gap" should not be accepted where a reasonable interpretation resolves the issue of the gap. Therefore, in my view, by interpreting s. 2(1) in this manner, one must conclude that even where there is no order, the exercise of the federal Crown Prerogative as the source of the power in the area of justiciable matters, is within the jurisdiction of the Federal Courts under s. 2(1) and specifically assigned to the Federal Court under s. 18.
B. Charter Issues
(1) Preliminary
[56] The Applicant has, as indicated in paragraph 6, raised the issue of whether the Minister's decision is contrary to s. 6 and s. 7 of the Charter. On the other hand, the Respondent asks that the Court exercise its discretion not to decide the issue because of the inadequacy of the record before the Court upon which to make such a determination.
[57] The Respondent's concern for the record is two-fold. Firstly, the Respondent acknowledges that the Applicant was not treated fairly because he did not have a chance to address the new grounds for denial of a passport - national security. This assumes that the Minister had the right to create this new ground outside the bounds of the Canadian Passport Order. Secondly, the Respondent says that it has not put forward sufficient s. 1 Charter evidence to demonstrate that any breach of a Charter right is justified.
[58] The simple response to that is that the Respondent cannot deprive the Applicant of his rights to a proper determination because of the Respondent's failure to put forward proper evidence. The Applicant must take the record as it is - not the record it would like. So too, the Respondent has to take the record it created - it does not get a second chance to create a further and better record.
[59] With respect to section 1 evidence, the Respondent gambled that the Charter arguments would be dismissed without the necessity of a section 1 analysis. Sometimes the gamble does not pay out.
[60] In this case, the section 1 analysis would be critical, particularly to the issue of whether the Crown Prerogative, as interpreted by the Respondent, is a matter "prescribed by law". The Respondent argues that the Canadian Passport Order does not limit the Crown in any way. It has argued that the Minister can add to or subtract from the grounds for refusal of a passport as it sees fit without notice or publication. In my view, if the argument is correct, it truly challenges the notion of "prescribed by law" because it takes an arbitrary and important power, the Crown Prerogative, and allows it to operate secretly and arbitrarily.
[61] However, in this case, the Applicant's rights can be addressed sufficiently under the doctrine of legitimate expectation. I therefore will not decide this case on Charter grounds raised in the application for judicial review because, as stated in Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J No. 39 (QL), "courts should refrain from dealing with Charter issues raised in an application for judicial review where it is unnecessary to do so". I will, nevertheless, address the Charter arguments as they give context and importance to the legitimate expectations of this Applicant and any other applicant for a passport.
(2) Section 6 - Mobility Rights
[62] Section 6 gives to citizens a right to enter, remain and leave Canada. A passport plays a role in two out of three of the rights accorded under s. 6. The Ontario Court of Appeal in Black captured the modern approach to passports when it said, "[i]n today's world, the granting of a passport is not a favour bestowed on a citizen by the state. It is not a privilege or a luxury but a necessity".
[63] The right to leave Canada is a hollow right if it cannot be exercised in a meaningful way due to the actions of the Canadian government directed against an individual or group of individual citizens. At the time of the hearing, 201 countries required Canadians to carry passports to enter their country: these include some of the countries with whom Canadians have the closest personal and business relations such as France, England, Australia and New Zealand.
[64] Virtually everyone in Canada is aware of the current issue with the United Stateswhich may result in Canadians being required to carry passports for travel to the United States. The passport is becoming the primary international travel document for much of the world. It symbolizes not only the ability to travel but one's identity and nationality. It has gone long past the point of a form of diplomatic communication only.
[65] Applied at an individual level, it is no answer to say that it is not the Canadian government which prevents one from leaving Canada when a passport is denied, that the responsibility is solely that of the foreign country which requires it. If that were correct, the right to leave would in any realistic sense in today's world, be subject to the will of the Canadian government. To accept this interpretation is to give a narrow and technical meaning to a Charter right.
[66] In United States of Americav. Cotroni, [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56 (QL), the Supreme Court, in the context of an extradition case, held that the "central thrust of s. 6(1) is against exile and banis