Document Type

Working Paper

Publication Date

2011

Keywords

access to justice, Anti-terrorism, Canada, Constitutional Litigation, Interim Costs, National Security

Abstract

Abousfian Abdelrazik is a Canadian citizen who, after having his name added to various anti-terrorism lists, and after being tortured by Sudanese officials, found himself unable to return home from Sudan largely because of Canadian government actions. Abdelrazik sought to challenge the constitutionality of these restrictions on his ability to return to Canada. However, he had no money and no means of support, as he was unable to leave a Canadian embassy in Sudan where he had sought refuge to avoid further torture by Sudanese officials. He therefore brought a motion for interim costs in Canada’s Federal Court. If granted, this interim costs award would require the Canadian government to pay his legal fees so that his constitutional challenge could proceed.In Abdelrazik v Canada (re: Interim Costs), the Federal Court denied the request for interim costs – a decision that has serious implications not only for interim costs jurisprudence, but also for litigation involving citizens who allege that their right to be free from exile accorded by section 6 of the Charter has been violated.This comment critically analyzes the access to justice implications of the Federal Court decision in light of both the principle that courts may use costs awards to promote access to justice, and the unique challenges faced by Canadians mistreated abroad by the Canadian government.

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