A federal lawyer says a judge’s misdirection that Canadian authorities should secure the release of four men detained in northeast Syria amounts to a “massive extension” of the law.
Me Anne Turley says the decision creates the right to be returned to Canada — or even rescued by Ottawa — for citizens who find themselves in trouble abroad, despite the country’s lack of involvement in the detention . She made that point on Monday, asking the Federal Court of Appeals to overturn a January ruling by Federal Court Justice Henry Brown.
After a day of hearing on Monday, the Court of Appeal put the case under advisement. She will make her decision “soon”.
Judge Brown said Ottawa must seek the repatriation of men held in Syrian prisons run by Kurdish forces as soon as possible as well as provide them with emergency travel documents. The magistrate also determined that these men had the right to have a representative of the federal government in Syria to facilitate their release.
Federal lawyers argue that Justice Brown’s ‘new and expansive’ approach goes beyond the text, purpose and interests protected by the right to enter the country enshrined in the Charter of Rights and Freedoms, in addition to being inconsistent with established national and international law.
The federal 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 notes in his arguments. written.
Judge Brown’s ruling has been largely stayed while the appeal proceeds. But Ottawa must still start the process by establishing contact with the Kurdish forces who hold the men in an area recovered from the hands of the armed group Islamic State.
“Degrading” treatment
One of these men is Jack Letts. His 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. […] Jack Letts told his family and the Canadian government that he had been tortured and was considering taking his own life,” she said in the document.
The identity of the other three Canadians 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 to enter the country enshrined in the Charter. “Judge Brown’s decision is complete and correct in law,” says Mr. Greenspon’s factum filed with the Court of Appeal.
In the rare circumstances where Canadians have been arbitrarily detained in a foreign country and the federal government has been asked to take steps to facilitate their entry into Canada, the court has 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, saying refusing to do so violated their rights. The federal government insisted that the Charter of Rights and Freedoms did not oblige Ottawa to repatriate Canadians detained in Syria.
Mr. Greenspon, however, 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 men were 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 on their behalf to Kurdish forces in the north and east. of Syria, he had written.