The Federal Court heard final arguments on Friday in a challenge by relatives of 23 Canadians detained in Syria who say Ottawa is violating the Charter by not organizing their return home.
These Canadians are among many foreign nationals being held in Syrian camps run by Kurdish forces in areas recaptured from the jihadist group Islamic State (IS) in a war-torn region.
Lawyers disagreed Friday on whether new evidence submitted by the petitioners, including the letter from a United Nations special rapporteur, was relevant to determining whether Canada breached procedural fairness in deciding of the fate of these nationals.
The UN rapporteur’s paper includes details on how Canada’s record in repatriating its nationals detained in the region compares to efforts by other countries in the same situation.
Canada has so far repatriated four citizens. At least seven other countries have repatriated their nationals, including 659 Iraqis and 58 French. Seventeen Australians, 12 Germans, 40 Dutch, 38 Russians and two Britons were also taken home.
These details were tendered into evidence, but Crown attorney Anne Turley argued, successfully, that other details were irrelevant and should not be taken as evidence in this case.
Family members hope the Federal Court will rule that the government’s inaction was unreasonable and formally request the detainees’ repatriation. They want the court to order Ottawa to issue travel documents urgently and authorize a Canadian representative to proceed with their repatriation.
An unfair procedure?
Lawyers representing the federal government say the four men, six women and 13 children detained in Syria were told by correspondence in November 2021 why they were denied extraordinary assistance from Global Affairs Canada.
Crown attorneys began their closing arguments by arguing that the plaintiffs wanted a court ruling on procedural fairness with respect to the general regulatory framework, rather than individual decisions made in November 2021.
The Crown asserts that federal legislators are not bound by procedural fairness when simply creating policy, and that the court must respect policy decisions made by legislators.
Despite the November 2021 decisions, Global Affairs recently determined that the six women and 13 children named in this case have now met the threshold established in the diplomatic assistance policy.
As a result, Global Affairs has begun assessments under the Guiding Principles of the Regulatory Framework, to determine whether to provide this assistance.
The identities of the women and children have not been disclosed.
Among the Canadian men detained in Syria is Jack Letts, whose parents have publicly called on the government to help their son. According to them, there is no evidence that he became a terrorist fighter abroad.