Federal Court orders Ottawa to bring Abdelrazik home

Federal Court Judge Russell Zinn found that Abdelrazik is "as much a victim of international terrorism as the innocent persons whose lives have been taken by recent barbaric acts of terrorists" and has ordered the government to facilitate Abdelrazik's return within 30 days.
He also found CSIS "complicit" in Abdelrazik's detention by Sudanese authorities six years ago.

Some quotes from Justice Zinn's decision in Federal Court June 4, 2009

ABOUSFIAN ABDELRAZIK v THE MINISTER OF FOREIGN AFFAIRS
and THE ATTORNEY GENERAL OF CANADA

"Mr. Abdelrazik lives in the Canadian Embassy in Khartoum, Sudan, his country of citizenship by birth, fearing possible detention and torture should he leave this sanctuary, all the while wanting but being unable to return to Canada, his country of citizenship by choice. He lives by himself with strangers while his immediate family, his young children, are in Montreal.
He is as much a victim of international terrorism as the innocent persons whose lives have been taken by recent barbaric acts of terrorists.

I find that Mr. Abdelrazik’s Charter right to enter Canada has been breached by the respondents.

I find that Mr. Abdelrazik is entitled to an appropriate remedy which, in the unique circumstances of his situation, requires that the Canadian government take immediate action so that Mr. Abdelrazik is returned to Canada.
Furthermore, as a consequence of the facts found establishing the breach and the unique circumstances of Mr. Abdelrazik’s circumstances, the remedy requires that this Court retain jurisdiction to ensure that Mr. Abdelrazik is returned to Canada.

One cannot prove that fairies and goblins do not exist any more than Mr. Abdelrazik or any other person can prove that they are not an Al-Qaida associate. It is a fundamental principle of Canadian and international justice that the accused does not have the burden of proving his innocence, the accuser has the burden of proving guilt. In light of these shortcomings, it is disingenuous of the respondents to submit, as they did, that if he is wrongly listed the remedy is for Mr. Abdelrazik to apply to the 1267 [U.N.]Committee for de-listing and not to engage this Court. The 1267 Committee regime is, as I observed at the hearing, a situation for a listed person not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime..

Then following a review of correspondence between officials in DFAIT and consular officials in Khartoum :

I find, on the balance of probabilities, on the record before the Court, that CSIS was complicit in the initial detention of Mr. Abdelrazik by the Sudanese.
This finding is based on the record before the Court on this application. The role of CSIS may subsequently be shown to be otherwise if and when full and complete information is provided by that service as to its role.

CSIS has already denied this and asked for a review by SIRC, Security Intelligence Review Committee, the CSIS oversight body with which it has an alarmingly cosy relationship.

Justice Zinn also had a few choice words for DFAIT, with regards to this July 2004 DFAIT email in response to Abdelrazik's wife raising the possibility of chartering a private plane to return her husband to Montreal. Ms. Gaudet-Fee of Foreign Affairs :

"So, should she get a private plane, there is very little we could do to stop him from entering Canada. He would need an EP [i.e. Emergency Passport] and I guess this could be refused but on what ground.
So, stay tuned."

Justice Zinn :

I find the comment of the official of Foreign Affairs very troubling.
In my view, it is reasonable to conclude from the July 30, 2004 musings of the foreign Affairs official that Canadian authorities did not want Mr. Abdelrazik to return to Canada and they were prepared to examine avenues that would prevent his return, such as the denial of an emergency passport. That conclusion is further supported by the extraordinary circumstances in which the Minister made the decision on April 3, 2009 to refuse the applicant an emergency passport.

At no time however in the last five years did DFAIT admit to Abdelrazik that they had no intention of allowing him to return to Canada; in fact they repeatedly assured him that they would grant him an emergency passport.

The flight scheduled for April 3, 2009

[130] In March 2009, Mr. Abdelrazik managed to obtain and pay for a flight from Khartoum to Montreal with a stop over in Abu Dhabi. He had been repeatedly assured for years that an emergency passport would be provided in that eventuality. Notwithstanding the numerous assurances given by Canada over a period of almost 5 years, and repeated as recently as December 23, 2008, on April 3, 2009 just two hours before the flight was to leave, the Minister of Foreign Affairs [Lawrence Cannon] refused to issue that emergency passport on the basis that he was of the opinion, pursuant to Section 10.1 of the Canadian Passport Order, "that such action is necessary for the national security of Canada or another country."

I find that the only reason that Mr. Abdelrazik is not in Canada now is because of the actions of the Minister on April 3, 2009. ... the Minister waited until the very last minute before the flight was to depart to deny the emergency passport.

Had it been necessary to determine whether the breach was done in bad faith, I would have had no hesitation making that finding on the basis of the record before me.

[156] I have found that Canada has engaged in a course of conduct and specific acts that constitute a breach of Mr. Abdelrazik’s right to enter Canada. Specifically, I find:
(i) That CSIS was complicit in the detention of Mr. Abdelrazik by the Sudanese authorities in 2003;
(ii) That by mid 2004 Canadian authorities had determined that they would not take any active steps to assist Mr. Abdelrazik to return to Canada and, in spite of its numerous assurances to the contrary, would consider refusing him an emergency passport if that was required in order to ensure that he could not return to Canada;
(iii) That there is no impediment from the UN Resolution to Mr. Abdelrazik being repatriated to Canada – no permission of a foreign government is required to transit through its airspace – and the respondents’ assertion to the contrary is a part of the conduct engaged in to ensure that Mr. Abdelrazik could not return to Canada; and
(iv) That Canada’s denial of an emergency passport on April 3, 2009, after all of the preconditions for the issuance of an emergency passport previously set by Canada had been met, is a breach of his Charter right to enter Canada

[160] Accordingly, at a minimum, the respondents are to be ordered to provide Mr. Abdelrazik with an emergency passport that will permit him to travel to and enter Canada. There is any number of ways available to him to return to Canada. He once secured an airline ticket and may be able to do so again. In the Court’s view that would cure the breach and be the least intrusive on the role of the executive. If such travel is possible, and if funds or sufficient funds to pay for an air ticket are not available to the applicant from his April 3, 2009 unused ticket, then the respondents are to provide the airfare or additional airfare required because, but for the breach, he would not have to incur this expense.

In fulfilment of this judicial process, the applicant [Abdelrazik] is ordered to appear before me at 2:00 o’clock in the afternoon on Tuesday, July 7, 2009, at the Federal Court ...

“Russel W. Zinn”
Judge

Thank you, Justice Zinn.
.