A federal lawyer says a judge’s misdirection that Canadian authorities should secure the release of four men detained in northeastern Syria amounts to a “massive extension” of the law.
Lawyer Anne Turley says the decision creates a new right to be sent back to Canada, or even rescued by Ottawa, when a citizen gets into trouble abroad, despite the lack of involvement of the Canada in detention in another country.
Turley made that point on Monday, asking the Federal Court of Appeals to overturn a January decision by Federal Court Judge Henry Brown.
In his ruling, Judge Brown said Ottawa should seek the repatriation of men who are in Syrian prisons run by Kurdish forces as soon as reasonably possible and provide them with passports or emergency travel documents.
Judge Brown ruled that the men also have the right to have a representative of the federal government in Syria to help facilitate their release once their captors agree to release them.
Federal lawyers argue that Justice Brown’s “new and expansive” approach goes beyond the text, purpose and protected interests of the Charter right to enter and is inconsistent with established domestic and international law.
The government also argues that the court has usurped the role of the executive on foreign policy and passport issues.
“Mandatory actions do not respect the proper role of the executive and prevent it from making necessary, timely and individualized assessments within the framework of its expertise on a series of complex considerations”, he pleads in his arguments. written.
The judge’s decision has been largely stayed while the appeal proceeds. But Ottawa must still start the process by initiating contacts with the Kurdish forces who hold the men in an area recovered from the hands of the armed group Islamic State.
Treatments that would be degrading
One such man is Jack Letts, whose parents John Letts and Sally Lane led a major campaign to get Ottawa to come to his aid.
Lawyer Barbara Jackman, who represents Mr. Letts, points out in a brief to the Court of Appeal that the four Canadian men have not been charged with any crime.
“They did not have access to the necessities of life and were subjected to degrading, cruel and unusual treatment during their nightmarish stay in Syrian prisons,” she said in the document.
“Jack Letts told his family and the Canadian government that he had been tortured and was considering taking his own life. »
The identity of the other three Canadian men is not publicly known.
Their lawyer, Lawrence Greenspon, says Judge Brown’s decision that Canada should take steps to facilitate the repatriation of the men is a practical solution, which recognizes the right of entry enshrined in the Charter.
“Judge Brown’s decision is complete and correct in law,” said Mr. Greenspon’s brief to the Court of Appeal.
In these rare circumstances, where Canadians are arbitrarily detained in a foreign country and the federal government has been asked to take steps to facilitate their entry into Canada, the court correctly ruled that Ottawa should take those steps, the document adds. .
repatriated families
The men’s family members, along with several women and children, argued in proceedings in Federal Court that Global Affairs Canada should arrange for their return, claiming that refusing to do so violated the Charter.
The government has insisted that the Charter does not oblige Ottawa to repatriate Canadians detained in Syria.
However, Mr Greenspon struck a deal with the federal government in January to bring home six Canadian women and 13 children who had been part of the lawsuit.
In his ruling, Judge Brown said the Canadian men are unable to return home “in part because their government appears to have never formally requested their repatriation.”
They cannot enjoy “a truly meaningful exercise” of their Charter right to enter Canada until the federal government makes a formal request to the Self-Governing North and East of Syria on their behalf, he wrote.