Canadian Federal Court finds that government must take positive steps to repatriate citizens detained in Syria
Boloh 1(A), Boloh 2(A) male only, Boloh 12 and Boloh 13 v The King and the Minister of Foreign Affairs and International Trade [2023] FC 98
Summary
The Federal Court of Canada found that the Canadian government had violated the Canadian Charter of Rights and Freedoms by failing to take all reasonable steps to repatriate the applicants in this case, who were Canadian citizens imprisoned in northeastern Syria on suspicion of being involved with Daesh/ISIS.
In particular, the Court found that the right of a Canadian citizen to return to Canada is generally “presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents”, including the ICCPR.
Consequently, the Court found that the government had a positive obligation to:
make formal requests to the Autonomous Administration of North and East Syria (AANES) that AANES allow the voluntary repatriation of the Canadian citizens held in the prisons;
provide the applicants with passports or emergency travel documents as soon as they are required; and
appoint a representative(s) or delegate(s) to attend within AANES controlled territory or as otherwise agreed as soon as possible after AANES agrees to hand over the imprisoned men.
Facts
The applicants in this case were four Canadian men who had travelled to Syria after the Canadian government had issued a travel advisory to avoid all travel to the region. At the time that the judgment was handed down, these men were being held in makeshift prisons in northeastern Syria, under the control of the AANES. The men were suspected of being involved with Daesh/ISIS, however no evidence was presented to the Court that the men had committed any offences. There was evidence, however, that at least one of the men had been tortured, and that all of them lacked adequate food and sanitation.
AANES is a non-state entity, and the rules of safe passage for diplomats is not available in AANES-controlled territory. The Canadian government also does not have a diplomatic presence in AANES-controlled territory. AANES is on record as wanting countries to repatriate their nationals from detention camps under its control, however there is some uncertainty as to what AANES requires to release prisoners under its control back to their own countries.
Canadian officials had corresponded with AANES in some capacity to request consular phone calls with the men and access to mental health assistance but did not consider that they met the threshold criteria for government-assisted repatriation to Canada under the government’s “Policy Framework”.
In seeking Charter relief, mandamus, judicial review and habeas corpus, the applicants argued that the Canadian government had failed to take reasonable steps to repatriate the men, and that therefore the government had failed to comply with the Canadian Charter of Rights and Freedoms (Charter) and that this was procedurally unfair and unreasonable.
The applicants sought that the Court find that the Canadian government was required to:
make a formal request to AANES to allow the repatriation of the men;
provide passports or emergency travel documents to the applicants as soon as AANES agrees to the repatriation; and
appoint a representative(s) or delegate(s) to attend within AANES controlled territory or as otherwise agreed as soon as possible to enable the applicants to be repatriated.
Decision
The Court ultimately found that the Canadian government had violated the Charter by failing to take all reasonable steps to repatriate men. The Court therefore granted the declarations sought by the men, with modifications.
In coming to this decision, the Court found that it was only necessary to consider section 6 of the Charter, which relevantly provides:
6.(1) Every citizen of Canada has the right to enter, remain in and leave Canada
(…)
What is the scope of the right conferred by section 6(1) of the Charter?
As outlined in the judgment, section 6(1) of the Charter aims to prohibit the banishment or exile of Canadian citizens by their government (United States of America v Cotroni (1989) 1 SCR 1469 at 1481). The scope of the right granted by section 6 was found to be an “expansive, generous and powerful right”.
The Court relied upon the decision of the Supreme Court of Canada in Divito v Canada (2013) SCC 47 to determine the scope and purpose of the citizen’s right to return to Canada under section 6(1) of the Charter. Divito directs that this right is “foundational”, “fundamental” and must be “generously interpreted” by Canadian courts. Further, the Court in Divito found that the right to return to Canada is “presumed to provide protection at least as great as those afforded by similar provisions in international human rights documents” ratified by Canada.
Canada is a party to the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty for the protection of the civil and political rights of individuals. Article 12(4) of the ICCPR provides that “[n]o one shall be arbitrarily deprived of the right to enter his own country”. Consequently, the Court found that the right to return to Canada under section 6(1) of the Charter must be at least as expansive as the right conferred by article 12(4) of the ICCPR, subject only to reasonable limiting provisions (Charter, section 1).
Further, article 6 of the ICCPR provides that every human being has an inherent right to life. This right is accompanied by a positive obligation to ensure access to the basic conditions for maintenance of life, including access to food and medical care. Article 6(1) of the ICCPR provides that no one should be arbitrarily deprived of life.
Canada is also a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 12 of the ICESCR provides that all people, including prisoners and detainees, have a right to the highest attainable standard of physical and mental health.
As a result of these combined rights, the Court found that nations must exercise due diligence to protect the lives of individuals from deprivations caused by persons or entities whose conduct is not attributable to the State.
The Court discussed the scope of the right conferred by section 6(1) at length, including that:
a citizen’s right to “enter” Canada is not restricted to matters under the control of Canadian border officials. Rather, in today’s closely regulated global travel environment, the right to enter contemplates actions that have implications outside of Canada, not just at the point of entry; and
the Charter, including section 6, may be interpreted to include positive obligations (Gosselin v Quebec (Attorney General) 2002 SCC 84).
Further, the UN Special Rapporteur (Rapporteur) had investigated the situation of Canadian men detained in AANES-controlled prisons and noted that other nations have successfully repatriated their nationals. The Rapporteur concluded that the only international law-compliant step that Canada could take would be to repatriate its citizens detained in such camps, particularly given the conditions suffered by detainees. The Court found that the Rapporteur’s conclusions supported the applicant’s case.
Based on obligations imposed on the Canadian government by the Charter and, by extension, international law, the Court found that the applicants had established:
that they have a right to obtain travel documents from the Canadian government, and that compliance with the Policy Framework was not a precondition to the exercise of this right;
the right to return to Canada would be illusory unless the Canadian government requested AANEs to allow the repatriation of the applicants, and therefore the Canadian government must make a formal request to AANEs.
The Court therefore granted the application, and declared that the Canadian government must:
make formal requests to AANES that AANES allow the voluntary repatriation of the Canadian citizens held in the prisons;
provide the applicants with passports or emergency travel documents as soon as they are required;
appoint a representative(s) or delegate(s) to attend within AANES controlled territory or as otherwise agreed as soon as possible after AANES agrees to hand over the imprisoned men.
Commentary
This case highlights the impact that a national Charter of rights may have on the level of rights protection that citizens of a country may expect. In this case the Charter provided the basis for the applicants to seek relief for the Canadian government’s failure to intervene on their behalf, and to compel the Canadian government to take steps to repatriate the men.
Further, the scope of the right to enter, remain in and leave Canada conferred by section 6(1) of the Charter was found to “provide protection at least as great as those afforded by similar provisions in international human rights documents”. This is significant, as it means that the Canadian government can be required to take positive steps beyond its borders, to protect the right of its citizens to enter Canada. In the absence of a Charter, it is unlikely that the protection of the applicants’ rights would have applied so broadly.
Since the decision was handed down, the Canadian government has appealed the case to the Federal Court of Appeal.