Fateh Kamel v. Attorney General of Canada

(Federal) (Civil) (By Leave)




Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights - Constitutional law - Mobility rights - Passport refused on ground that such action necessary for national security of Canada or another country - Whether Federal Court of Appeal erred in upholding constitutional validity of s. 10.1 of Canadian Passport Order (SI/81-86, as amended by SI/2004-113).

The Applicant Mr. Kamel has been a Canadian citizen since 1993. In 1999, he was arrested in Jordan and then extradited to France, where he was convicted in 2001 of membership in a criminal organization for the purpose of preparing a terrorist act and complicity in the forgery of three passports he had brought from Canada. He was imprisoned in France and later released. He returned to Canada in January 2005 with a temporary Canadian passport issued for that purpose on an exceptional basis. In June 2005, he applied for a passport. After numerous exchanges, the Canadian Passport Office recommended that the Minister of Foreign Affairs refuse the application under s. 10.1 of the Canadian Passport Order, which provides that the Minister may refuse a passport “if the Minister is of the opinion that such action is necessary for the national security of Canada or another country”. On December 1, 2005, the Minister accepted the Office’s recommendation.

Mr. Kamel then applied to the Federal Court for judicial review of the Minister’s decision. He alleged that the principles of procedural fairness had been violated and that his rights under ss. 6, 7 and 15 of the Canadian Charter of Rights and Freedoms had been unjustifiably infringed. The Federal Court judge ruled in Mr. Kamel’s favour with regard to the requirements of procedural fairness. He also held that s. 10.1 of the Order infringed freedom of movement as protected by s. 6(1) of the Charter. According to the judge, s. 10.1 was so vague that it could not be “law” within the meaning of s. 1 of the Charter, which meant that the justificatory analysis under s. 1 was unnecessary. The Attorney General of Canada appealed the decision, but the argument concerning violation of the principles of procedural fairness was abandoned. The Federal Court of Appeal concluded that s. 10.1 of the Order infringed s. 6 of the Charter but that the infringement was justified under s. 1 of the Charter.

Lower Court Rulings

March 13, 2008
Federal Court of Canada, Trial Division

T-100-06, 2008 CF 338
Demande de contrôle judiciare accueillie en parti
January 23, 2009
Federal Court of Appeal

A-167-08, 2009 CAF 21
L'appel est accueilli