Docket: T-686-04
Ottawa, Ontario, this 13th day of October, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
OMAR AHMED KHADR by his Next Friend FATMAH ELSAMNAH,
FATMAH ELSAMNAH, MUHAMMED ELSAMNAH, and
ABDURHAMAN KHADR
Applicants
and
THE MINISTER OF FOREIGN AFFAIRS
Respondent
REASONS FOR ORDER AND ORDER
[1] Omar Khadr is a 17 year-old Canadian citizen who has been detained since 2002 by the US government as a result of his alleged involvement with Al-Queda forces in Afghanistan. He is currently being held at Camp Delta in Guantanamo Bay.
[2] During his detention, the Applicants submit that Omar Khadr has been regularly interrogated, has not been brought before an independent tribunal and has been denied access to consular officials, to counsel and to his family. It is submitted that he now faces proceedings before a military tribunal as a result of which he may be sentenced to death for events that occurred when he was in Afghanistan.
[3] Application T-686-04 has been brought by Omar Khadr's family in order to compel the government to extend consular and diplomatic services to him. It is argued that, in failing to provide these services, the Minister has acted contrary to the Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22 (DFAITA) and has infringed the rights of Omar Khadr and his family under the Canadian Charter of Rights and Freedoms (Charter).
[4] In response to a motion to strike the application as revealing no cause of action, this Court ordered, inter alia, on August 18, 2004:
1. Those portions of the Notice of Application which relate to the interview of Omar Khadr and which allege Charter violations as a result of the Minister's failure to provide consular and other services to Omar Khadr are struck.
2. The Notice of Application as it relates to the Applicants' allegations under section 10 of the Department of Foreign Affairs and International Trade Act will be continued except for the allegations related to international instruments other than the Vienna Convention on Consular Relations.
[5] The Applicant has now brought a motion under Rule 4 for an order directing Mr. Gar Pardy, former Director General of Consular Affairs at the Department of Foreign Affairs and author of the booklet "A Guide for Canadians Imprisoned Abroad" to attend before this Court for the purpose of being examined under oath by counsel for the parties for the proceedings.
[6] Applicant argues that Mr. Gar Pardy is needed to:
a) advice as to whether the Vienna Convention on Consular Relations has become part of customary international law and thus part of the common law of Canada;
b) advice as to the practices of the Department of Foreign Affairs in consular matters; and
c) testify from personal knowledge as to the steps taken by the Minister of Foreign Affairs to provide consular services to the Applicant.
[7] As rationale for his application, the Applicant argues as follows:
6. In this Court's reasons of August 18, 2004, the nature of the expert evidence which the Applicants are required to call for the purposes of these proceedings was referred to as follows:
Specifically, the International Court of Justice's decision in LaGrand (Germany v. United States of America), [2001] I.C.J. 3 (27 June 2001) states that the VCCR does create individual rights to the services requested by the Applicants in this case. The Applicants should also have the opportunity to present evidence that an international custom has also evolved with regards to the provision of certain consular services. Khadr v. Canada (Minister of Foreign Affairs), [2004] F.C.J. No. 1391 (T.D.) At para. 27. [Emphasis added] [Tab 7]
7. Mr. Gar Pardy has advised counsel for the Applicants that to his knowledge he is the only person in Canada who is able to provide expert evidence in relation to an international custom of providing consular services persons imprisoned abroad.
8. Further, as this Court is aware, the nature of the promises made by the Minister of Foreign Affairs in the publication A Guide to Canadians Imprisoned Abroad is a central issue in these proceedings. Mr. Pardy has advised counsel for the Applicant that he is the author of that publication. He would therefore be in a position to advise the Court as to the practice of the government of Canada and other governments in providing the types of services referred to therein.
9. Finally, Mr. Pardy has advised counsel for the Applicants that up to his retirement in November of 2003, he was the Canadian government official primarily responsible for all efforts to provide consular services to Omar since the date of his capture, both prior to and after his detention in Guantanamo Bay. The sufficiency of these efforts I the central issue of these proceedings.
[8] The Applicant further argues that given that the Federal Court rules have no rule for examination of witnesses in an application for judicial review, resort should be had to the gap rule and provincial rules of procedure. He points out that both Ontario Rule 230, Alberta Rules 266 and 267. He also cites Brown and Evans , Judicial review of Administrative Action in Canada, 1999 at para 6:5530 which states:
6:5530 Examination of a Witness
A witness may be summoned to give evidence under oath in support of an application for judicial review, 470 and any transcript of that evidence is to be included in the Application Record. This right, however, is subject to some limitations. As the Ontario Court of Appeal has noted:
There is a prima facie right to resort to a Rule 39.03 examination in relation to an application for judicial review and there is no onus on the party seeking the examination to prove any facts as a precondition. However, as there is no general right to discovery on a judicial review application, the party serving a notice of examination may be required to specify the scope of the proposed examination. The matters intended to be covered in the examination must be relevant to a ground that would justify judicial review. The evidence must not be excluded by statute. The proposed examination will not be allowed where it is being used for some improper purpose or where the examination or the application for judicial review would constitute an abuse of the process of the court. Where it is proposed to examine a tribunal member or senior tribunal official privy to the decision-making process, the right to conduct the examination must be balanced with the principle of deliberative secrecy. The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a relevant right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed. 471
[9] The Respondent opposes this application arguing that the Rules provide for judicial reviews to be heard based on affidavit evidence with exception being made by Rule 316 in special circumstances. No such circumstances have been made out.
[10] In my view, this application cannot succeed for several reasons.
[11] First, the supporting affidavit is unacceptable. It is sworn by the Applicants' legal assistant advising as to what counsel for the Defendant has told her about conversations he had with a Mr. Lee and with Mr. Pardy. As such, it is hearsay on hearsay and consequently does not meet the requirements of Rule 81.
[12] Secondly, the gap rule is a rule of last resort and should not be invoked unless all other avenues have been exhausted. One must start from the proposition that the rules are a complete code in themselves and provide the necessary tools to deal with all matters that are likely to come for the Court. As Walsh J. observed in Maple Leaf Mills Ltd. v. "The Baffin Bay" [1972]F.C. 1097.
5. I find it difficult to conclude, however, that the omission of such an important rule or set of rules could be an oversight. The words "where any matter arises not otherwise provided for by any provision in any Act of the Parliament of Canada or by any general rule or order of the Court" in Rule 5 should not in my view be used by the presiding judge to provide a rule for a special set of circumstances before him if such a general rule was deliberately omitted in making the Rules of the Court. The rule-making power of the Court is provided for in section 46 of the Act which provides for general rules to be made by the judges subject to the approval of the Governor in Council. Rules, orders and amendments are published in the Canada Gazette and laid before both Houses of Parliament. Rule 5 should therefore be applied quite restrictively and limited to supplementing general rules or orders to overcome a problem which may arise in their application which was perhaps not foreseen or foreseeable at the time the general rules were drawn. I have carefully examined the cases to which I have been referred in which the so-called "gap" rule was applied and find this to be the general tenor of their findings. Whether an attachment before judgment is a mere matter of procedure, or as defendant, Global Navigation Limited, argued the creation of a new substantive right for plaintiff, it certainly would introduce a new and important procedure into the Rules, the absence of which might in certain cases, such as the present, cause grave prejudice to the plaintiff, but the existence of which might also cause grave prejudice to a defendant against whom it is used, and it does not therefore appear to be a mere matter of providing a procedure for carrying out something already provided for in the Act or the Rules. On mature reflection and after having heard the arguments of counsel for both parties and examined the relevant jurisprudence I am forced to the conclusion that however desirable such a procedure may be it should, if so desired, be provided for by a general rule and not by a precedent-creating order of a judge making same to accommodate the situation in a particular case.
[13] These observations apply equally to this case. The rules contain a complete code for dealing with applications for judicial review applications. The principal rules are:
Rule
Applications for judicial review of administrative action 300
Notice of application 301, 302, 304
Notice of appearance 305
Application Record 309
Respondent's Record 310
Testimony 316
Affidavits 306, 307
Additional affidavits and their cross-examination 308, 312
Request for material from the Tribunal 317-319
Court feels application record is incomplete 313
Disposition of hearing 392 and up
[14] Given that the gap rule is a rule of last resort it should not be invoked if the evidence can be found elsewhere.
[15] In this case the Applicant has not established that he cannot obtain evidence from sources other than Mr. Pardy as to whether the Vienna Convention on Consular Relations has become part of customary international law and thus part of the common law of Canada and as to the practises of the Department of Foreign Affairs in consular matters.
[16] Evidence as to the steps taken by the Minister of Foreign Affairs to provide consular services to the Applicant may very well be contained in the Tribunal Record that can be obtained under Rules 317 to 319. Additional evidence can also be obtained by way of a request under the Access to Information Act and the Privacy Act.
[17] Consequently this application is either unnecessary or premature. If after having exhausted the rules and taken the steps set out above, the Applicant can bring another application under the gap rule provided:
a) it is supported by a proper affidavit;
b) the evidence shows that the materials cannot in all likelyhood be obtained from a person other Mr. Gar Pardy ; and
c) the nature and extent of the information sought from Mr. Gar Pardy is properly circumscribed in the application.
ORDER
THIS COURT ORDERS that this application be adjourned sine die.
The Applicant may bring another application under Rule 4 in accordance with and under the conditions set out in paragraph 17 of the above reasons, on 10 days notice.
The Respondent shall have costs in this motion.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-686-04
STYLE OF CAUSE: Omar Ahmed Khadr by his Next Friend Fatmah Elsamnah, Fatmah Elsamnah, Muhammed Eslamnah, and Abdurhaman Khadr v The Minister of Foreign Affairs
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 7, 2004
REASONS FOR : The Honourable Mr. Justice von Finckenstein
DATED: October 13, 2004
APPEARANCES:
Mr. Dennis Edney FOR APPLICANTS
Mr. Nathan Whitling
Ms. Doreen Mueller FOR RESPONDENT
Mr. Robert Drummond
SOLICITORS OF RECORD:
Edney, Hattersley & Dolphin FOR APPLICANTS
Edmonton, Alberta
Parlee McLaws LLP FOR APPLICANTS
Edmonton, Alberta
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Edmonton, Alberta