Ottawa must facilitate Canadians’ Charter s. 6 right to return to Canada from Syria: Federal Court

By Cristin Schmitz

Last Updated: Thursday, January 26, 2023 @ 4:35 PM

Law360 Canada (January 26, 2023, 10:30 AM EST) -- Citing the state’s obligation to facilitate its citizens’ Charter s. 6(1) right “to enter” Canada, a Federal Court judge has declared Ottawa must assist the return to Canada of four Canadians imprisoned without charge in northeastern Syria for their suspected involvement with Daesh/ISIS, which is listed as a terrorist organization under the Criminal Code.

In an 85-page Jan. 20 judgment, including critical obiter dicta about the January 2021 “Government of Canada Policy Framework to Evaluate the Provision of Extraordinary Assistance: Consular Cases in North-Eastern Syria,” Federal Court Justice Henry Brown declared that to vindicate the four men’s s. 6(1) Charter rights they are entitled “as soon as reasonably possible” to have Canada and the Department of Foreign Affairs make formal requests to the Autonomous Administration of North and East Syria (AANES) — the self-governing non-state entity established in 2012 by Syrian Kurds — asking AANES to allow the voluntary repatriation of the Canadians’ held in several makeshift prisons run by AANES’ military wing, the SDF: Boloh 1(A) v. Canada, 2023 FC 98.

Evidence before Justice Brown in what is known as the “Bring Our Loved Ones Home” (Boloh) litigation (which initially involved others too, including women and children) indicated that AANES wants to return captured suspected foreign fighters/supporters of Daesh, but first requires a formal request from the Canadian government, as well the presence of a Canadian official or delegate to take custody of the Canadian citizens who are to be repatriated.

To that end, Justice Brown declared that the applicants “are entitled to be provided” by the federal government with passports or emergency travel documents “as soon as they are required after AANES agrees to allow the applicants to be repatriated to Canada,” as well as with the appointment by Canada of representatives or delegates “to attend within AANES-controlled territory or as otherwise agreed, as soon as possible after AANES agrees to hand over the applicants for their repatriation to Canada.”

In response to a request for comment on the decision, a spokesperson for Global Affairs Canada, Grantly Franklin, said by email “the safety and security of Canadians is our government’s top priority. We remain committed to taking a robust approach to this issue.”

Franklin did not elaborate on what “a robust approach” means in this context, nor say whether the federal government will appeal. “We take note of the Federal Court’s decision rendered in Bring Our Loved Ones Home litigation. We are currently reviewing the decision and will have more to say in due course,” the Global Affairs Canada email states.

Lawrence Greenspon, Greenspon Granger Hill

Lawrence Greenspon, Greenspon Granger Hill

Three of the successful male applicants in the Boloh 1(A) decision were represented by Lawrence Greenspon of Ottawa’s Greenspon Granger Hill, while the fourth, Jack Letts (Boloh 13) was represented by Barbara Jackman and Farah Saleem of Toronto’s Jackman and Associates.

Greenspon said the Federal Court has reaffirmed the principle that “Canadians, no matter where they are in the world, if their rights are being violated and the Canadian government has the ability to do something about it, then they should. Simple as that.”

Jackman told The Lawyer’s Daily “the court made it clear through its declaration that Canada has a responsibility towards its citizens in distress and unable to help themselves.”

While the judgment’s precedential impact remains to be seen, depending on the specific facts of future cases, “here these men have been detained without charges or trial for a number of years,” Jackman said. “Without government assistance, they face indefinite and arbitrary detention. They have been subjected to cruel treatment.”

Jackman said she expects the government to make its best efforts to bring her client home. “It is a positive obligation on the government.”

Barbara Jackman, Jackman and Associates

Barbara Jackman, Jackman and Associates

She noted if the government opts to appeal, it will have to file for a stay of the judgment, “or else comply with it in any event.”

Greenspon launched the application for Charter relief, mandamus, judicial review and habeas corpus — not only with respect to the three imprisoned Canadian men he represents, but also on behalf of six Canadian women and 13 Canadian children languishing in camps in Syria. He discontinued proceedings in respect of the women and children Jan. 19 after the government agreed to repatriate them all, the judgment indicates.

Reacting to Justice Brown’s decision, the International Civil Liberties Monitoring Group called on Ottawa to “act immediately” to repatriate all Canadians being detained in northeast Syria. “Any further delay puts the health and lives of the Canadians detained at risk,” the coalition of 45 civil society groups said in a statement Jan. 26, noting that the applicants’ families began asking years ago for the government’s help to repatriate their loved ones within 90 days.

“The Canadian government must also end its use of unsubstantiated ‘national security’ concerns to justify its failure to assist these Canadians in coming home,” the group said. “As Justice Brown noted in his decision, ‘the [government] respondents do not allege any of the applicants [detainees] engaged in or assisted in terrorist activities. The respondents affirmed this position at the hearing.’”

Justice Brown found that the four applicant Canadians imprisoned by AANES, which suspects them of fighting for or otherwise assisting Daesh, have not been charged with, or tried, for any offences.

The precise nature of their “dire” living conditions are not known as they have not been heard from since 2019, Justice Brown said. But “at least some of the men and perhaps many are held in small rooms or cells that are overcrowded and unsanitary” — for example cells built for six which are packed with as many as 30 men. The SDF-run prisons hold approximately 10,000 detainees of whom around 2,000 are foreigners, the judgment indicates.

“The overwhelming evidence which is not seriously disputed is that these male prisoners lack adequate food and adequate medical attention,” Justice Brown wrote. One man reported to Canadian officials that he was tortured.

Counsel for the applicants argued that the federal government’s response to the men’s situation fails to comply with several Charter provisions, Canada’s international obligations, and is procedurally unfair and unreasonable.

For its part, Ottawa argued it has no obligation to assist the four Canadians, who the government contended were seeking an “entirely inappropriate” expansion of a citizen’s right to enter Canada, pursuant to s. 6(1) Charter, and who went to Syria in the face of repeated government warnings that Canadians should avoid travel to the conflict-riven region.

Justice Henry Brown

Justice Henry Brown

Justice Brown took a different view of the constitutional imperatives. The key issue in the case, he summed up, is: “whether and to what extent our executive government has a duty to assist its citizens in the pursuit of their Charter rights under subsection 6(1).”

He went on to hold that s. 6(1) of the Charter “forbids the executive from frustrating the rights of Canadians to enter and return whether by executive actions taken in Canada or abroad.”

Notably, he also held that the court could make its three declarations, without the applicants having to show that the state breached their s. 6 Charter rights. “While I might have found Charter breaches in terms of travel documents and making a formal request for repatriation, rights requested almost two years ago [by Greenspon] but not afforded, I do not consider that necessary because of well-established jurisprudence that a Charter breach is not a necessary pre-condition for the declaratory orders to be issued in this case,” Justice Brown said.  Rather, on the facts, “the court must declare these applicants’ applicable subsection 6(1) rights and will leave it to the executive to see they are respected ... being alive and sensitive and guided by the fact the applicants do not merely depend on the goodwill or discretion of the executive but have the constitutional rights declared in this judgment.”

Justice Brown agreed with the respondent Canada that there is no evidence or suggestion that the federal government is complicit in the applicants’ detention, nor was it disputed that the applicants’ detention prevents their return to Canada. “But that is not the issue,” the judge explained. “The issue is the scope and applicability to the applicants of their undoubted subsection 6(1) right to return to Canada, as addressed and determined in these reasons.”

Justice Brown reasoned that the constitutionally entrenched and jurisprudentially affirmed rights of Canadians to “enter, remain and leave Canada” (Charter s. 6(1)) were determinative of the application.

After reviewing the authoritative jurisprudence, he remarked that the Supreme Court of Canada “established three decades ago that subsection 6(1) is aimed at prohibiting the banishment or exile of Canadian citizens by their government.”

“What is the scope of the subsection right?” he observed. “The Federal Court, the Federal Court of Appeal and the Supreme Court of Canada have considered the scope and applicability of subsection 6(1) of the Charter. In a word it is an expansive, generous and powerful right.”

Indeed, the top court’s seminal ruling in Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, which “comprehensively reviews the scope and purpose of the citizen’s right to return” (i.e. “enter”) Canada, directs that s. 6(1) rights are “foundational” and “fundamental”; are of both“expansive breadth” and “plentitude”; and must be “generously interpreted” by this and other courts, Justice Brown noted.

He went on to find, on a balance of probabilities, that “the reality of the situation facing the applicants” is that they will not be released by AANES unless and until Canada actually and formally requests AANES to allow their repatriation. “I am not satisfied such a request has ever been made, notwithstanding the very long time the applicants have been detained in detention camps and prisons — i.e., since at least 2019 and longer.”

The judge concluded, based on what he said was uncontradicted evidence, that the applicants’ ability to return to Canada “is illusory” without Canada first asking AANES to allow their repatriation.

“Such a request, as with travel documents and Canada’s appointment of a delegate or representative, is a sine qua non of the applicants’ ability to exercise their subsection 6(1) rights per Divito and other grounds already mentioned,” Justice Brown reasoned. “The applicants are Canadian citizens who are not able to return home in part because their government seems never to have formally requested their repatriation. They are not able to enjoy a truly meaningful exercise of their Charter right to return ... unless and until Canada’s executive makes a formal request to AANES on their behalf. Canada must make a formal request for their repatriation because otherwise the court is asked to construe the Charter in an ‘unreal world’,” as per Kamel v. Canada (Attorney General), 2008 FC 338.

With respect to the government’s assertion that its obligations with respect to the four applicants’ return hinges on the applicants' eligibility as per the conditions set out in Ottawa’s “policy framework” Justice Brown remarked “it seems to me the applicants have their rights under subsection 6(1) of the Charter, and while Canada may assess the situation as per the Policy Framework, it must do so conscious of the fact these applicants have the substantial rights under the Charter set out in Divito and per Canada’s treaty obligations and elsewhere discussed above. That is why this declaration will be granted.”

The judge said, in obiter, that he hopes the policy framework “will be materially revised, or that the Canadian male prisoners be considered for repatriation as is now the case with the Canadian women and children,” adding that the conditions of the applicants “are even more dire than those of the women and children who Canada has just agreed to repatriate.”

“I am compelled to observe the three threshold criteria for eligibility to be considered under the Policy Framework appear drafted to exclude the Canadian men imprisoned in AANES’ prisons,” he said. “If that is the case the Policy Framework as presently advised could not withstand s. 6(1) Charter scrutiny.”

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