Friday, May 08, 2009

Abdelrazik: "It's like Kafka, isn't it?"

Today the government presented its case, and counsel Anne "didn't you really torture yourself?" Turley began with a procedural bombshell.

In her opening remarks, she stated that once Foreign Minister Lawrence Cannon invoked "national security" under S.10.1 of the Canadian Passport Order, as he did on April 3, the presiding judge has no jurisdiction to determine if an emergency passport was denied improperly or not. The correct procedure, she stated, is to seek judicial review of the Minister's decision in a separate proceeding, and the deadline for that expired this past Monday. The Minister's exercise of discretion, she said, was therefore not properly before the court.

Sn. 10.1, she argued, in effect, gives the Minister virtually unfettered discretion to refuse to issue passports or revoke them at will. And the Minister's action, she said with a straight face, wasn't "part of a pattern." Justice Russel Zinn, of course, will have to determine whether this latest move, after a string of broken promises, is something entirely new that wipes the previous slate clean.

Turley then outlined a number of measures allegedly taken on Abdelrazik's behalf during his long exile in the Sudan. She argued that all kinds of consular assistance was offered, especially when he was in a Sudanese jail, but made the claim--to be echoed later by her sidekick Elizabeth Richards--that in any case no Canadian citizen has a legal right to consular assistance.

Before the UN placed Abdelrazik on its "no-fly" list in 2006, she claimed, Embassy staff were indeed trying to help him get repatriated. But somehow all of those plans fell through, including an offer, then repeated, by the Sudanese authorities to fly him to Canada themselves. What happened to those latter opportunities remains shrouded in mystery--or, as some might argue, in obfuscation.

She went on to argue that the mobility rights section of the Charter (Sn. 6) doesn't guarantee a right to travel though other countries. And a country's airspace is part of that nation, she said, invoking various international conventions. Hence Abdelrazik can't come home without transiting through the sovereign territory of other nations. A UN exemption for a national returning home, she said, only allows entry to a state, not transit through other states.
In fact the UN, she went on, expressly forbids other nations to permit entry to those on the UN list. All this, she said, "makes perfect sense."

She then attempted to distinguish the Abdelrazik case from a recent similar one in which the UN had granted an exemption to a person on the list to travel from the UK to Somalia, with a stop in Nairobi, Kenya. The person involved has received an exemption to land in Kenya on the way back. What she failed to mention (but Paul Koring of the Globe and Mail noted to me in conversation) was that no overflight states in that case were covered in the exemption. Nevertheless, his repatriation duly took place. And in that case, an exemption was actually sought: whereas (and government counsel was vague on this point) the Canadian government, for all of the "help" they allegedly offered Abdelrazik, never sought such an exemption.

In the afternoon, Elizabeth Richards took over. She stated that under UN rules, Abdelrazik can make an application for an exemption all by himself, and bring evidence to support his request.

The response from Justice Zinn was swift:

"It's like Kafka, isn't it?"

He pointed out that Abdelrazik has no idea of either the evidence that put him on the list in the first place, or what evidence he should bring to overturn the decision.

Plowing along, Richardson, like Turley, argued that everything the government has or hasn't done to or for Abdelrazik is within its executive discretion. Consular assistance is discretionary. The Minister's decisions are discretionary. Asking the UN for an exemption for one of its citizens is discretionary. So I learned from government representatives today what a Canadian passport is worth if you get stuck overseas--whatever the government wants it to be worth. There is no legal obligation, said Richardson, for the government to come to the aid of its citizens.

(Imagine, whispered Koring to me, a lawyer standing up in an American court to argue that the US has no obligation to free its citizens from Somali pirates.)

In any case, the government argued, Canada isn't the problem here. It's a third party--the UN--that stands in Abdelrazik's way. Surely, asked the judge, issuing an emergency passport would be sufficient to get him home, so that not doing so is a violation of his mobility rights under the Charter?

Not so fast, was the response. The Charter doesn't even apply here, but if it does, the most you can do is ask the Minister to take a second look at his original decision. It would be most improper, they argued, for the judge to order that an emergency passport be issued--that's treading on executive authority and power.

What we had here, in a nutshell, was an argument for nearly unfettered discretion by Ministers to make decisions, and never mind the Charter of Rights and Freedoms--they have a kind of sovereign immunity, virtually shielded from judicial action.

So now we wait for the judge's verdict, while the government busies itself trying to keep another beige citizen out of Canada, Omar Khadr. It is appealing a lower court order to make every attempt to bring him home. Too bad, as I've said before (but it bears repeating) that neither of the people in question are lightskinned Canadians surnamed "Martin."

No comments: