Charter right ‘to enter’ Canada does not oblige Ottawa to return jailed Canadians from Syria: FCA

Law360 Canada (June 2, 2023, 4:22 PM EDT) -- The Federal Court of Appeal has ruled there was “no basis” for a groundbreaking Charter s. 6(1) mobility rights ruling that declared Ottawa must take certain steps to facilitate the return of four Canadians imprisoned without charge in northeastern Syria for alleged suspected involvement with the terrorist group, Daesh (aka Islamic State of Iraq and Syria).   

Federal Court of Appeal Justice David Stratas’s May 31 judgment, concurred in by Justices Wyman Webb and Siobhan Monaghan, overturns the Federal Court below and holds that “the Government of Canada is not constitutionally obligated or otherwise obligated at law to repatriate” the applicants, who Justice Stratas said have been jailed for years in “abysmal, deplorable” conditions by the Syrian Kurdish self-governing non-state entity, the Autonomous Administration of North and East Syria (AANES): Canada v. Boloh 1(a) et al., 2023 FCA 60.

Counsel for the four men (who are part of the larger “Bring Our Loved Ones Home” (BOLOH) litigation), persuaded Federal Court Justice Henry Brown last January that Canada is legally obliged, based primarily on s. 6(1) of the Charter, to take three steps, as soon as reasonably possible, to facilitate their clients’ return to Canada: (1) make a formal request asking AANES to allow the voluntary repatriation of the Canadians’ held in several makeshift prisons run by the SDF, AANES’ military wing; (2) provide appropriate travel documents; and (3) appoint a representative or delegate to travel to AANES-controlled territory, or as otherwise agreed, after AANES agrees to hand over the four men (these conditions reflect prerequisites for a handover stipulated by AANES): Boloh 1(A) v. Canada, 2023 FC 98.

The crux of the case is the proper interpretation of the scope of s. 6(1) of the Charter, which states that “every citizen of Canada has the right to enter, remain in and leave Canada.”

“The words appear to be carefully chosen, specific and clear: self-evidently, a right to enter Canada is not a right to be returned to Canada,” Justice Stratas remarked. “The interpretation of s. 6(1) of the Charter offered by the [applicant] respondents requires the Government of Canada to take positive, even risky action, including action abroad, to facilitate the respondents’ right to enter Canada.”

“In the context of this case, this transforms the right ‘to enter ... Canada’ into a right to be returned to Canada,” Justice Stratas said.

He went on to set aside the decision below that he said adopted an overly broad interpretation of s. 6(1), which “overshoots its proper scope” by following “a looser” and “now discredited and rejected” approach to interpreting the Charter.

In dismissing the respondents’ applications, Justice Stratas did not award costs against them and added a “postscript” that “these reasons stand for the proposition that the Government of Canada is not constitutionally obligated or otherwise obligated at law to repatriate the respondents. However, these reasons should not be taken to discourage the Government of Canada from making efforts on its own to bring about that result.”

The case is going to the Supreme Court of Canada, confirmed Barbara Jackman, who with Zoe Chong of Toronto’s Jackman and Associates represents Jack Letts (Boloh 13). “We have instructions to seek leave to appeal,” Jackman said.

Lawrence Greenspon of Ottawa’s Greenspon Granger Hill, counsel for the other three applicants, said he is consulting with his clients, but expects to receive instructions to seek leave to appeal what he called a “disappointing” decision.

“The Federal Court of Appeal recognized that the men are in horrendous conditions," Greenspon told Law360 Canada. “Their Charter rights are being violated on a continuing basis, and the question is really, in the unique circumstances, where an autonomous administration in northeastern Syria, is saying to Canada and the rest of the countries of the world, ‘please come and take your nationals,’ in those circumstances does Global Affairs [Canada], does Canada, have an obligation to at least take some steps to try to bring these Canadians home?" he said. “If submitted to the Supreme Court of Canada, hopefully we would be able to get leave on that issue. ... It’s a matter clearly that has a national importance.”

Greenspon said the Federal Court of Appeal’s determination that the Charter s. 6(1) right to enter the country doesn’t encompass a right to be returned to Canada does not clearly address the nub of the case. “We’re not saying the Global Affairs has the obligation to put these Canadians or any others on a plane and bring them home,” he explained. “What we’re saying is that, in these circumstances, [the federal government has] an obligation to ask for the repatriation, provide emergency travel documents, appoint a representative ... and those are the three things which Justice Brown declared they should do. And [for the Federal Court of Appeal] to expand the notion of the right to enter to a right to be returned is, in my view, not what we were seeking to have the government do, and it’s not what Justice Brown declared they should do.”

In a June 1 statement, Global Affairs Canada said “we are satisfied that the appeal was allowed.”

“The safety and security of Canadians is our government’s top priority,” the foreign affairs department added. “Due to the unique nature of the complex cases of Canadians in Syria, the Government of Canada considers providing extraordinary consular assistance on a case-by-case basis and will continue to do so.”

The government also cited “privacy and operational security considerations” as the reason it “cannot comment on specific cases or potential future actions.”

The Federal Court below “took the right of Canadian citizens ‘to enter ... Canada’ and transformed it into a right of Canadian citizens, wherever they might be, regardless of their conduct abroad, to return to Canada or to have their government take steps to rescue them and return them to Canada,” Justice Stratas said.

“The Federal Court required the Government of Canada to take steps to cause the return of the respondents — who acted against government warnings in circumstances where government did nothing to cause their plight — in the face of challenging issues of planning, logistics, diplomacy, international relations, national security and personal safety.”

The Federal Court of Appeal held that imposing such a positive obligation on the government of Canada “would rewrite the text of s. 6(1) and extend it beyond its proper scope.”

Applying what Justice Stratas said the Supreme Court reaffirmed in 2020 as the proper “Big M” approach to Charter interpretation, i.e. examining the text in light of (among other things) the historical context, the larger objects of the Charter, the purpose of the specific guarantee, and the meaning and purpose of any associated Charter rights, Justice Stratas held that s. 6(1) “properly interpreted, gives Canadian citizens a right to enter, remain in and leave Canada, nothing more.”

“Imposing a positive obligation would transform s.  6(1) from its genuine meaning — just a right to enter Canada — into a sweeping right of Canadian citizens to have the Government of Canada take all necessary steps to return them to Canada,” Justice Stratas wrote. “Such a right would have potentially limitless scope. It would cover cases ranging from the repatriation of someone detained abroad for whatever reason, including the alleged violation of foreign law in a foreign land, to the payment of ransom to foreigners holding a Canadian citizen hostage. A right of that scope could potentially collide with international law understandings of state sovereignty.”

Citing Supreme Court caselaw on the right to enter Canada, including Divito v. Canada (Public Safety and Emergency Preparedness, 2013 SCC 47, Justice Stratas said the top court did not extend s. 6(1) to include a right of Canadian citizens to have the government of Canada return them to Canada. “Reading s. 6(1) of the Charter as including an enforceable constitutional obligation on the Government of Canada to take steps in other countries to rescue and repatriate citizens in trouble, where they alone are responsible for their trouble, greatly overshoots the mark.”

Citing Cotroni v. Canada (Attorney General), [1976] 1 S.C.R. 219, Justice Stratas said the Supreme Court analyzed the text of s.  6(1) in light of the wider Big M considerations, holding that its “central thrust” is “against exile and banishment, the purpose of which is the exclusion of membership in the national community.”

“This implies that s. 6(1) is aimed at state action that removes people from Canada or prevents their return, or both,” Justice Stratas reasoned. “The Supreme Court’s analysis in Cotroni offers no encouragement for the idea that s. 6(1) includes a right to be returned to Canada.”

Justice Stratas dismissed the applicants’ arguments that they based on other Charter guarantees. Subsection 6(1) is a specifically worded right meant to govern in the circumstances and is “not overborne by other, more broadly worded, general rights,” he said.

Moreover, the Charter and the sections the applicants invoked “do not apply,” he held.

“Canadian state conduct did not lead to the respondents being in northeastern Syria, did not prevent them from entering Canada, and did not cause or continue their plight,” he wrote. “The respondents’ own conduct and persons abroad who have control over them alone are responsible. In no way is the Government of Canada infringing the respondents’ right to liberty nor on these facts is it violating a [Charter] principle of fundamental justice (s. 7), arbitrarily detaining the respondents (s. 9), inflicting cruel and unusual punishment on them (s. 12) or discriminating against them (s. 15). To the extent these rights are being infringed, entities other than the Government of Canada are responsible.”

The Federal Court of Appeal agreed with the federal government’s submission that the Federal Court “accorded insufficient deference” to the government by placing too little weight on the executive’s constitutional responsibility to make decisions on matters of foreign affairs.

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