First Application for Judicial Review against the Canadian Minister of Foreign Affairs

Claimant’s Submission

The initial arguments before the Federal Court of Canada proceeded on two main grounds.

First, that the Minister had failed to properly conduct a risk assessment as required by governing legislation because of the failure to consider critical facts highlighting Saudi Arabia’s record of limited compliance with IHL and IHRL. The claimant argued that coupled with the past and ongoing conduct of Saudi Arabia in Yemen as well as evidence of serious and repeated violations of human rights against its own population, the assessment should have concluded there was a clear risk of the arms being used in an unlawful manner, irrespective of whether they are actually so used. Export and Import Permits Act, Section 3 and Section 7

Second, the claimant brought forward an argument based on an alleged violation of Common Article 1 of the Geneva Conventions, namely the obligation to ensure respect for IHL. It also referred more broadly to the compelling evidence pointing to serious IHL violations committed by Saudi Arabia. Geneva Conventions Act, Article 2 

The claimant requested that the court prohibit the issuance of permits for the export of military goods (namely LAVs) to Saudi Arabia and declare any permits already issued void. 

Court Decision

The Court dismissed the claim for judicial review on both grounds.

First, it found that the Minister had acted within his discretionary powers, had taken into account all relevant human rights and humanitarian concerns and reached a reasonable conclusion in deciding to grant the licences. The particular crux of the Court’s argument was that the risk assessment did not show “at least … some connection between Saudi Arabia’s alleged human rights violations and the use of the exported goods.”

Second, the claimant was denied standing to raise a violation of Common Article 1. As Canada was not party to the armed conflict in Yemen, the Court held that the government was not bound by obligations applicable to parties to the conflict under the Geneva Conventions.

Appeal Submission

The Claimant’s appeal proceeded as follows:

First, that the Minister had not exercised reasonable discretion in issuing the licences because of several considerations that had not been considered by the lower court. In particular, it was argued that the Minister had failed to properly assess whether there was a reasonable risk the exported goods would be involved in IHL violations.

Second, the lack of transparency in licensing decision making was also brought forward as a factor that made it impossible to determine the extent of the Minister’s assessment.

Third, on Common Article 1, the claimant reasserted standing to complain of a violation of the Geneva Conventions under the relevant domestic law.

Court Decision

These arguments were dismissed on appeal, which upheld the judgement of the Federal Court that the Minister had correctly exercised discretion in its licensing decision.

The Court of Appeal maintained that the Minister had properly considered all relevant factors and details to determine the risk that the exported goods would be used to commit IHL and/or IHRL violations in Saudi Arabia and/or Yemen. Critically, it held that there was no order of priority in this assessment and the “Minister could, despite the reasonable risk that the exported equipment will be used against a civilian population, decide to issue permits because, in his opinion, exporting LAVs was in Canada’s interest in compliance with the EIPA.”

The court also upheld that the claimant did not have standing to claim a violation of the Geneva Conventions, because this can only be exercised by signatory states rather than persons affected by a violation.

The Claimant submitted an application for leave to appeal the decision before the Supreme Court of Canada, asking three questions to the Court.

These considered first whether a judicial review plaintiff has interest to raise a violation of international treaties to which Canada is party; second whether the Minister’s discretion to issue licences is restricted by its international treaty obligations, and third the criteria and level of evidence that should be considered in an assessment of the risk that exported weapons will be involved in IHL and IHRL violations.

 The Supreme Court dismissed the claimant’s application for leave to appeal without providing any reasons for this refusal.