First Application for Judicial Review against the Canadian Minister of Foreign Affairs
Armed Conflict in Yemen, Internal Repression
Administrative Challenge (Judicial Review)
This application for Judicial Review sought to challenge a decision to grant several licences for the export of military goods to Saudi Arabia. The contested licences were issued to a named manufacturer General Dynamics Land Systems Canada (GDLS-C) for the export of Light Armoured Vehicles (LAVs) with an end destination of Saudi Arabia.
The claim was submitted without verified information that the licences had actually been granted given the opacity in government decision-making and was therefore initially conditional on the licences having been issued without public knowledge. The claimant later became aware that six licences had been granted, at which point the claim was amended. In particular, internal records obtained by broadcaster CBC revealed that the agreement signed between the Canadian Commercial Corporation and the Saudi National Guard in February 2014 had an estimated value of $15 billion and involved 928 of the most modern light armoured vehicles, known as the LAV 6.
The claimant contented that the decision to issue these licences was unlawful due to Saudi Arabia’s involvement in serious international human rights law (IHRL) and international humanitarian law (IHL) violations in the armed conflict in Yemen, as well as in light of its actions towards its own population internally.
The claim went through several levels of the appeals process in Canada, with the claimant relying on somewhat different arguments in each instance. The claimant’s application for leave to appeal at the Supreme Court was dismissed in April 2019, bringing the case to a close.
News Article: Canada's arms sales to Saudi Arabia jumped in 2021, government report says
This article reflects on new information released by the Canadian government that indicates there has been an increase in military exports to Saudi Arabia, who are also found to be Canada’s...
Case Development: Supreme Court Decision on Application for Leave to Appeal
The Supreme Court dismisses the claimant's application for leave to appeal, without providing any reasons for this refusal.
Case Development: Judgement by the Federal Court of Appeal on the Appeal Lodged 17.02.2017 against the Decision of the Federal Court
The appeal judge agrees with the conclusions of the Federal Court in its entirety and dismisses the appeal, ruling that the Minister did not exercise his discretion in an unreasonable manner. The...
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 Article 1 Common to 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 Light Armoured Vehicles) to Saudi Arabia and declare any permits already issued void.
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.
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.
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.
21 Mar 2016
Daniel Turp files an application for judicial review of a prospective decision to grant licences for the export of arms and military goods to Saudi Arabia.Read the application for judicial review here
08 Apr 2016
Six licences issued for the export of light armoured vehicles (LAVs) by GDLS-C to Saudi Arabia.
21 Apr 2016
Claimant amends application for judicial review after becoming aware of the licensing decision of 08.04.2016.
24 Jan 2017
Judgement issued. Claim dismissed on all grounds.Read the judgement here
17 Feb 2017
Appeal submitted to the Court of Appeal.
06 Jul 2018
Judgement issued. Appeal dismissed on all grounds.Read the appeal judgement here
27 Sep 2018
Claimant submits an application for leave to appeal the judgement of the Federal Court of Appeal before the Supreme Court of Canada.
11 Apr 2019
Supreme Court dismisses application for leave to appeal.Read the case docket here
Application for Judicial Review against the Canadian Minister of Foreign AffairsRead the document in full
Judgement by the Federal Court of Appeal on the Appeal Lodged 17.02.2017 against the Decision of the Federal CourtRead the document in full
Judgement by the Federal Court on the Application for Judicial Review lodged 21.04.2016 against the Canadian Minister of Foreign AffairsRead the document in full
Contact the Claimants
This claim was brought by Professor Daniel Turp of the University of Montreal. The claimant was represented by Maître André Lespérance and Maître Anne-Julie Asselin of the firm Trudel Johnston & Lespérance.
If you would like to know more about this case, please get in touch with our primary contact Professor Daniel Turp by email.