Mar 8, 2015

Abdelrazik and the United Nations Al-Qaida and Taliban Regulations: Exposing the Dark Underbelly of Canadian Law

Abdelrazik v. Canada (Minister of Foreign Affairs), [2010] 1 FCR 267, 2009 FC 580 (CanLII)

In September, Abousfian Abdelrazik filed a civil suit against federal government officials seeking damages for the violation of his s. 6 Charter rights. In Abdelrazik v Canada (Foreign Affairs), [2010] 1 FCR 267, Zinn J. of the Federal Court, in ordering the federal government to effect Mr. Abdelrazik’s return home after he had lived in the Canadian Embassy in Khartoum for over a year, had taken the remarkable step of declaring in obiter that he would have had “no hesitation” making a finding of bad faith had he been asked to do so. This set the table nicely for a civil claim, as a finding of mala fides – pending the Supreme Court of Canada’s (“SCC”) upcoming decision in Vancouver v Alan Cameron Ward, as discussed earlier on this website by Christine Kellowan – is generally considered to be a key hurdle in obtaining an award of damages under s. 24(1) of the Charter.

Abousfian Abdelrazik may thus be poised to join the likes of Henry Morgentaler, Karlheinz Schreiber, and Adil Charkaoui as the next high-profile litigant in the centre of an epic legal drama slowly winding its way through the Canadian court system. Whether any chapter in the unfolding saga will find its way before our nation’s top court is as yet unclear, but the case is well worth watching in the meantime. In this post, I would like to draw attention to one particular aspect of the case that, I believe, may form the basis of more litigation in future.
By now, most readers with reasonable access to Canadian media outlets will be familiar with the core facts giving rise to this dispute. After five years of sporadic detention and alleged torture for suspected involvement in terrorism at the hands of the Sudanese government, Mr. Abdelrazik, a Canadian citizen, sought and received protection from the Canadian Embassy in Khartoum in April 2008. However, the government refused to issue him a passport enabling him to return to Canada, and so there he languished until Zinn J. allowed his application in the Federal Court.

A factor of this remarkable case that receives comparably little public attention is the ostensible reason the federal government gave in court for refusing to issue Mr. Abdelrazik a travel document. In July 2006, Mr. Abdelrazik had been listed by the UN Committee established pursuant to Security Council Resolution 1267 (the “1267 List”) as an associate of Al-Qaida. As such, he became the subject of a global assets freeze, arms embargo, and travel ban. Unsurprisingly, Zinn J. found that the conclusion of a committee with no formal status under Canadian law could not pose a legal barrier to the exercise of a Canadian citizen’s s. 6 Charter rights.

It is this 1267 List which is worth highlighting as a potential target for further litigation in the Abdelrazik affair. The administration of this list by the 1267 Committee is, to put it mildly, procedurally deficient. An individual may be added to this list at the discretion of the 1267 Committee at the request of a Security Council member, and there are no guidelines, criteria, or standard of proof the Committee must adhere to in doing so. Neither are there any guidelines or criteria to which the Committee must adhere in considering whether to remove someone from the list. Meanwhile, individuals under consideration for inclusion on the list are not invited to make representations to the Committee in their own defence, and neither do they have a right to petition directly the Committee for removal from the list if they are included.

Not surprisingly, Zinn J. found all this “frightening” and “untenable under the principles of international human rights.” Even more frightening, perhaps, is that inclusion on this list also has tangible legal ramifications under domestic law. Under s. 2 of the federal United Nations Act, RSC 1985, c U-2, the Governor in Council is empowered to issue any order or regulation designed to implement any measure that the Security Council calls upon Canada to apply. In order to implement the measures required by UNSC Resolution 1267, the Governor in Council did, in fact, issue the United Nations Al-Qaida and Taliban Regulations, SOR/99-444, in 1999, which took effect ten years ago Saturday.

The Regulations impose some rather draconian measures on an individual identified on the 1267 List as associated with Al-Qaida. For example, no one may knowingly provide or collect funds with the intention that those funds are to be used by a person identified as associated with Al-Qaida. Neither may anyone make any property or financial or other service available for the benefit of a person identified as associated with Al-Qaida.

These absolute prohibitions are breathtakingly broad. For example, no one may offer Mr. Abdelrazik employment, as doing so would be to provide funds knowing they would be used by him. Mr. Abdelrazik could perhaps decide to carry on his own business, but then no one may purchase whatever goods or services he offers, as this would also breach the prohibition on providing funds to someone associated with Al-Qaida. Were Mr. Abdelrazik to somehow manage to raise some funds for himself, he would still have problems finding housing: for a landlord to rent him an apartment would be making property available for his benefit and, accordingly, also constitute an offence. In fact, under this provision, Mr. Abdelrazik cannot even technically go into a grocery store and buy a loaf of bread. Neither may any community organization sympathetic to his plight provide any resources or services to him for his benefit. Essentially, Mr. Abdelrazik is completely deprived of any capacity to operate as a functional member of society – all without any right to challenge his inclusion on the list, or make representations in his own defence, or even any articulated guidelines or standard of proof for inclusion of an individual on the list. Meanwhile, as Zinn J. noted in his judgment, both Sudanese and Canadian government authorities have cleared him of involvement in any criminal activity.

As if that were not alarming enough, s. 3 of the United Nations Act makes anyone who contravenes an order or regulation made under the Act guilty of an indictable offence punishable by up to ten years in prison. Under this provision, which effectively gives the Governor in Council the extraordinary power to legislate criminal law through an order or regulation, it is thus an indictable criminal offence to provide any material assistance or transact any business with Mr. Abdelrazik.

By this point, it will likely have crossed readers’ minds that this entire regime, which deprives a Canadian citizen of his ability to participate functionally in Canadian society and imperils his very livelihood without the least pretense of due process, is of dubious constitutionality under s. 7 of the Charter. Not surprisingly, no one has of yet been charged with a crime for conducting business with or otherwise providing material assistance to Mr. Abdelrazik. Given that such a prosecution would quite likely collapse under the weight of its own unconstitutionality, perhaps the hope is that leaving this provision unused – and therefore unchallenged – allows the mere spectre of a criminal prosecution to exert a ‘chilling effect’ on those who would otherwise provide some form of assistance to Mr. Abdelrazik. Or, to give the government some credit, perhaps there is simply a realization that this regime is sorely out of line with core Canadian values and one that most Canadians would find distasteful.

Whatever the case, it restores one’s faith in the good sense of Canadian society at large that a number of concerned citizens have in an act of civil defiance and defence of Canadian values stood up to publicly flaunt this law. Nevertheless, it is sobering to discover that there are measures of this nature lurking in the dark recesses of Canadian law. We have the Abdelrazik affair to thank for bringing these shocking measures to light. Although no constitutional challenge has yet been brought to these measures, hopefully we will see just such a claim filed before the Abdelrazik affair finishes winding its way entirely through the Canadian court system.