Case Comment -- Federal Court Trial Decision in Khadr

Posted June 10: It's Saturday, it's all over the papers, and the Federal Court website still hasn't posted the Khadr decision, in which Justice Phelan decided to require the Canadian government to give a member of the al Qaeda-linked Khadr family a passport. It sounds like it has major implications for the future of the Crown prerogative. You gotta get faster, people....

Posted June 12: OK, the decision is here. My review? I agree with the result, but not with the reasoning.

Basically, the issue is whether the Feds could keep Mr. Khadr (supposedly the black sheep of the al-Qaeda Khadr family) from getting a passport for reasons other than those specifically enumerated in the Canadian Passport Order.

The Feds admitted that they didn't give Mr. Khadr proper notice of the reasons for denying it to him, and that they therefore had to make the decision over again. Justice Phelan probably should have declared the matter moot as a result.

Instead, he decided that passports could only be denied for specifically-enumerated reasons. The better argument for this result is from section 6 of the Charter, which gives citizens the right to enter, remain and leave Canada. Phelan was right that denying someone a passport effectively denies them their mobility rights, correctly dismissing the technical response that it is the foreign country that denies entry to a person without a passport. Since the Charter trumps Crown prerogatives -- including the prerogative power not to issue a passport -- and since the Crown didn't bother to try to prove the restriction was a "reasonable limit" under section 1 of the Charter, that should settle it.

However, Phelan didn't want to decide on constitutional grounds. He held that the Order restricted the discretion inherent in the prerogative to the specifically enumerated grounds. I don't think much of that reading of the order, and it isn't consistent with the clear intention to maintain the prerogative.

Bonus Geekiness: Phelan also continues a pissing match between the federal courts and the Ontario superior courts concerning who has jurisdiction over exercises of federal Crown prerogatives where no order is involved. Only the Supreme Court of Canada can resolve that one, so there is another good reason to appeal.