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INTERNATIONAL TREATIES AND CONVENTIONS - Construction and interpretation

Monday, February 13, 2017 @ 11:33 AM  


Application by Turp for judicial review of a decision by the Minister of Foreign Affairs, approving the issuance of permits for the export of light armoured vehicles (LAVs) to Saudi Arabia. The LAVs were manufactured in Ontario by GDLS-C, the Canadian division of General Dynamics, an American corporation. Saudi Arabia had been using the LAVs since the 1990s, but until recently, had purchased them by way of contracts negotiated with the United States. In 2014, Saudi Arabia decided to negotiate directly with Canada, signing the contract that led to the export permits at issue. The Minister approved export permits sought by GDLS-C, relying on a memorandum prepared by department officials noting that none of the branches of government consulted had any objection to the issuance of the permits. Saudi Arabia was considered a key partner for Canada and an important ally in the fight against terrorism in the Middle East. The contract represented thousands of jobs in Ontario. The memorandum also noted that Canada had concerns about Saudi Arabia’s human rights record, but found no connection between the LAVs and human rights violations in Saudi Arabia and no report of the use of LAVs against civilians by Saudi Arabia since the exports began in the 1990s. A UN expert report, mentioned in the memorandum, indicated that all parties to the conflict in Yemen had violated international humanitarian law, particularly through targeted airstrikes, but that there was no evidence the LAVs had been used for that purpose.

HELD: Application dismissed. Turp was granted public interest standing to seek review of the Minister’s decision. The question Turp raised was sufficiently important and Turp, a law professor with experience as an intervenor in court proceedings, was an appropriate person to bring the question before the court. Turp had exhausted other administrative avenues for challenging the Minister’s decision. The Minister had broad discretion in issuing export permits for controlled goods such as the LAVs. He was entitled to issue export permits if he concluded doing so was in Canada’s interest. Canada or the UN had issued no export prohibitions in relation to Saudi Arabia. Saudi Arabia did not pose a threat to Canada. None of the thousands of LAVs Canada had sold to Saudi Arabia since the 1990s had been used against the civilian population or to perpetrate human rights violations. The Minister took into account the relevant factors of Canada’s security, economy and trade in issuing the export permits. Canada’s international obligations to uphold human rights were addressed by the Minister’s consideration of Saudi Arabia’s involvement in the Yemen conflict. Canada had no obligation under the Geneva Conventions Act (GCA) with respect to internal conflicts, such as the one in Yemen in which the Saudi Arabian government had become involved. A declaration by the Court that issuing export permits was contrary to the GCA would not have any practical effect because the Court could not dictate to the executive the measures to be taken in the event of violations of Article 1 of the Conventions.

Turp v. Canada (Minister of Foreign Affairs), [2017] F.C.J. No. 56, Federal Court, D. Tremblay-Lamer J., January 24, 2017. Digest No. 3638-008