BOLOH 1(A), BOLOH 2(A) adult male only, BOLOH 12, v. BOLOH 13, 2023 FC 98

Date: 20230120 Docket No.: T-1483-21 Citation: 2023 FC 98 Ottawa, Ontario, January 20, 2023 PRESENT: The Hon Mr. Justice Henry S. Brown BETWEEN: BOLOH 1(A), BOLOH 2(

A) adult male only, BOLOH 12, and BOLOH 13 Applicants and HIS MAJESTY THE KING AND THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE Respondents JUDGMENT AND REASONS I. Introduction [ 1 ] This is an application for Charter relief, mandamus, judicial review, habeas corpus , and judicial review that was most recently argued in respect of 6 Canadian women, 13 Canadian children and 4 Canadian men. However, on January 19, 2023 counsel for all the Canadian women and children discontinued proceedings.

While counsel for the women and children did not appraise the Court, it is now public information that Canada has agreed to repatriate these 19 additional Canadians. Unresolved are the claims of the four Canadian male Applicants. The Court encourages and welcomes the resolution effected between the Canadian women and children and the Respondents. In this case the legal principles applicable to the Canadian men are the same as those applicable to the Canadian women and children.

These Reasons are a revised version, removing references to the women and children Applicants, of draft Reasons written with respect to the previous Applicants be they women, men or children. These Reasons now address the claims of the men. [ 2 ] At its heart, these Applicants ask the Court to order the Canadian government to take all reasonable steps to repatriate them to Canada from northeastern Syria where they are imprisoned because they are suspected to be Daesh/ISIS terrorist fighters or associates.

Daesh/ISIS is a listed terrorist organization under subsection 83.05(1) of the Criminal Code, R.S.C., 1985, c. C-46 , and has been since 2012. [ 3 ] In broad strokes, the Applicants submit the response of the Government of Canada to their situation fails to comply with the Canadian Charter of Rights and Freedoms , Canada’s international obligations, and is moreover, is procedurally unfair and unreasonable. [ 4 ] These Applicants went to Syria after the Government of Canada issued a travel advisory to avoid all travel to the region.

Indeed, since March 2011, the Canadian government has advised Canadians to avoid non-essential travel to Syria. In April 2011, the Government of Canada updated its travel advisory for Syria and advised Canadians to avoid all travel to the country.

That advice is still in place. [ 5 ] From this, I conclude that risks faced by the Applicants from their decisions to go to this conflict zone, fairly described as a war zone, were taken by them; the evidence is that they travelled to this region against the advice of the Government of Canada and of their own free will. [ 6 ] In terms of the security situation in the region, Canada closed its embassy in Damascus, Syria in 2012 and expelled Syrian diplomats from Canada. Canada transferred responsibility for consular assistance to Canadian citizens in Syria to our Embassy in Beirut, Lebanon.

Canada’s Syrian travel advisory was updated in 2012 to reflect the closure of our Embassy and to advise Canadians that, due to the lack of a physical presence in country, Canada’s ability to provide consular and other support throughout Syria is very limited. I accept and it is not disputed that Canada has no diplomatic presence in northeastern Syria where the Applicants are imprisoned or detained. [ 7 ] The 4 Canadian men are held in what are described as makeshift prisons located in northeastern Syria, including the Hasakah, Derik, and Qamishli prisons.

The men are held because they are suspected to have gone to the region to fight for or assist Daesh/ISIS.

(1) Autonomous Administration of North and East Syria (AANES) [ 8 ] These prisons are under the de facto control of a self-governing non-state entity established in 2012 by Syrian Kurds, the Autonomous Administration of North and East Syria (AANES).

According to the Respondent, the Syrian Democratic Council (SDC) is the political/legislative wing of the AANES, and the Syrian Democratic Forces (SDF) is its military wing. [ 9 ] The prisons holding the Canadian men are located in the Al-Hasakah governorate, in the northeastern corner of Syria, bordering Iraq to the east, Turkey to the north, and the Syrian Raqqa and Deir Ez-Zor governorates to the west and southwest respectively. [ 10 ] AANES is non-state entity. Even the rules of safe passage offered diplomats by most nations to each other under various

international conventions, are not available in the territory controlled by AANES. As a non-state entity, the Vienna Convention on Consular Relations , which frames international consular relations between states, does not bind the AANES; neither does Canada have any treaty-like agreements with the AANES. Canadian government officials are at risk if they travel to this region. [ 11 ] It is equally important to note the Applicants have no assurance of safe passage out of AANES-controlled territory even if they were be able to leave their prisons.

I accept and find that the lives of the Applicants are also at risk outside their places of imprisonment (and possibly inside as well) given their suspected participation in atrocities and possible war crimes committed by Daesh/ISIS against various regional populations. [ 12 ] In particular, northeastern Syria remains unstable and is marked by long-standing intra-Kurdish tensions, Kurdish-Arab tensions, and tension between Turkey and Kurdish political and armed groups. Since January 2020, infighting between various Turkish-backed militia groups has added an additional element of insecurity.

Between January 2020 and October 2021, over 2800 security events were reported, including explosions/remote violence, protests, riots and instances of violence against civilians. [ 13 ] The conditions in the camps holding the Canadian women and children originally listed as Applicants in this proceeding are to say the least, very poor. In my view they are dire. These individuals live in crowded and unsanitary conditions. They are held without charge or trial, and lack adequate food and medical attention.

For example, the Al-Hawl detention camp for women and children houses 60,000 detainees, approximately 10,000 – 12,000 of whom are not from Iraq or Syria. According to the Applicant’s affidavit of Leah West, the tents in which the former Applicant women and children detainees live and sleep are overcrowded, and the camp has a low level of general sanitation and hygiene. The camp has been reported as extremely unsafe for both women and children. Gunfire and malnutrition are commonplace. Children have reportedly died from malnutrition, dehydration, and other medical issues.

In addition, there may be factions loyal to Daesh/ISIS within the camp who have executed other detainees. In this connection, a report indicate 19 residents of the camp were executed in January of 2021. [ 14 ] Similar conditions are reportedly present in Camp Roj, where other Canadian women and children previously Applicants live, with emissions from adjacent oil fields having caused asthma, deep coughing, and lung inflammation.

It is feared these camps are breeding grounds for potential supporters of Daesh/ISIS in that some may be controlled by Daesh/ISIS supporters. [ 15 ] Communication with the outside world is only available every 8 to 10 days, and the guards are known to be violent. [ 16 ] Current conditions in the prisons where the Canadian men are held are not known with precision. None of the men have been heard from since 2019. From information received at that at and before 2019, their condition are even more dire than those of the Canadian women and children.

While women and children live in tents, at least some of the men and perhaps many are held in small rooms or cells that are overcrowded and unsanitary. There is evidence BOLOH 13, for example is held in a cell with as many 30 other men that was built for 6. The overwhelming evidence which is not seriously disputed is that these male prisoners lack adequate food and adequate medical attention. [ 17 ] The Canadian men are imprisoned against their will without charge or trial. One of the Canadian men, BOLOH 13 says and reported to Canadian government officials that he had been tortured.

(2) Daesh/ISIS [ 18 ] Daesh/ISIS, the organization these Canadian men and women are suspected of fighting for or assisting, is an extremist fundamentalist militant group based largely in the middle-east that in the past controlled a great deal of territory in both Iraq and Syria. [ 19 ] Daesh/ISIS secured global infamy through videos of beheadings and other atrocities and war crimes it carried out and posted on social media. Daesh/ISIS is known for extreme violence and grave violations of human rights.

There is evidence Daesh/ISIS engaged in slavery, genocide, and destruction of cultural heritage sites. [ 20 ] Daesh/ISIS is designated a terrorist organization not only by Canada, but by the United Nations and many other nations.

(3) The Syrian conflict [ 21 ] By way of further background, the Syrian conflict led to the imprisonment and detention of these Canadian women, children and men. The Syrian conflict began in 2011 after the Assad regime used excessive force against protestors at local demonstrations inspired by the Arab Spring. Protestors expressed their frustrations over the oppressive regime and discontent with the economic situation. [ 22 ] According to the Respondent, the Syrian conflict developed into a violent, protracted crisis, negatively affecting regional and international security.

Further, this conflict caused one of the most severe humanitarian disasters of the 21 st century. [ 23 ] Since its beginning, the conflict in Syria and Iraq attracted a high volume of extremists from all over the globe, including from Canada, who chose to leave their homes and fight for and with Daesh/ISIS.

The Canadian men are imprisoned because they are suspected to have fought for or assisted those fighting for Daesh/ISIS. [ 24 ] According to the Respondent, in 2014, Daesh/ISIS declared the creation of a caliphate, an Islamic State under the leadership of an Islamic spiritual leader, and renamed itself to " “Islamic State” " (IS) to reflect its ambitions of expanding territorial control.

At its peak in 2014-2015, Daesh/ISIS reportedly comprised some 33,000 fighters, and controlled a large territory in eastern Syria and western Iraq, housing some six million people (Affidavit of Cynthia Termorshuizen, para 12). [ 25 ] In response, Kurdish forces together with nations from around the world formed the Global Coalition in September, 2014 to stop the rise of Daesh/ISIS. By 2017, Daesh/ISIS' control began to falter, following significant efforts by the Coalition-backed SDF.

While Daesh’s territorial caliphate in Syria was formally defeated in March 2019, the organization retains influence in eastern and southern Syria and has maintained sleeper cells across the country (Affidavit of Cynthia Termorshuizen, para 12).

[ 26 ] The Canadian Armed Forces provided various levels of support to the Global Coalition to degrade and ultimately defeat Daesh in Iraq and Syria. (Supplementary Affidavit of Cynthia Termorshuizen, para 3). [ 27 ] In this connection, and according to Rojava Information Center (RIC), an independent media organization based in Qamishli relied upon by the Respondents, 572 attacks, presumably carried out by Daesh/ISIS were reported in the SDF-controlled north-eastern Syria in 2020. 299 people were reportedly killed in these attacks.

According to the RIC, the authorities conducted 221 security operations targeting Daesh/ISIS sleeper cells and 575 arrests targeting alleged Daesh-affiliated individuals. The RIC notes that the majority of the attacks were carried out in eastern Deir Ez-Zor governorate, with 134 attacks reported in other parts of the SDF-controlled areas, which include Al-Hasakah governorate. In 2020, Daesh/ISIS reportedly changed its tactics and focused on an assassination campaign of high- valued targets (foreign governments or symbols associated with foreign interests).

As in the previous year, Daesh also used improvised explosive devices (IED) and vehicle-borne IEDs in its attacks (Affidavit of Cynthia Termorshuizen, para 24). [ 28 ] Daesh/ISIS reportedly conducted 153 attacks specifically in Al-Hasakah governorate (where the SDF-run prisons for men and detention camps for women are located) between March 2019 and May 2020, and continues to be active.

On November 8, 2021, the SDF reportedly thwarted a Daesh/ISIS attack plot against an SDF-run prison holding Daesh/ISIS fighters in Al-Hasakah governorate (Affidavit of Cynthia Termorshuizen, para 25). [ 29 ] In March 2019, SDF forces captured the last Daesh/ISIS stronghold in the city of Baghouz, southeast of Deir Ez Zor, ending the five-year battle against Daesh/ISIS's caliphate fought by SDF and the Global Coalition against Daesh/ISIS.

Daesh/ISI no longer controls territory and millions of people have been freed from its control in Iraq and Syria, but the threat posed by the group remains (Affidavit of Cynthia Termorshuizen, para 13). [ 30 ] It is reported that tens of thousands of innocents and combatants perished in Daesh/ISIS’s fight for supremacy and defeat. Many of those suspected of having fought for Daesh/ISIS were killed leading up to and after the fall of its caliphate in 2019.

(4) AANES’ SDF-run prisons for men [ 31 ] After the territorial defeat of Daesh/ISIS, AANES took de facto control of northeastern Syria and, despite ongoing tensions with local Arab tribes, has retained it to this day. AANES considers itself an autonomous government and therefore does not seek permission from the Syrian regime for matters of governance or " “foreign’’ " policy. AANES has maintained limited relations and coordination with the regime, mainly on issues of security.

The regime and AANES have an unofficial non-aggression understanding and have cooperated in battles against Turkish-backed opposition groups and Daesh/ISIS (Affidavit of Cynthia Termorshuizen, para 14). [ 32 ] While the area under AANES/SDF control is mostly stable, it is marked by longstanding tension between Kurdish political movements and neighbouring Turkey, as well as among local Syrian-Kurdish populations and Arab tribes.

Turkey considers the Democratic Union Party (PYD) and the People's Protection Units ( YPG), both part of the AANES/SDF to be the Syrian branches of the Kurdistan Workers Party ( PKK), which is a designated terrorist entity in Turkey and Canada (Affidavit of Cynthia Termorshuizen, para 15). [ 33 ] Following the U.S. announcement of troop withdrawal from northeastern Syria in 2019, Turkey launched Operation Peace Spring (OPS), a unilateral military offensive (air/ground) into north-eastern Syria aimed at pushing back Kurdish-led forces. Canada and most allies quickly and widely condemned the Turkish operation.

The Turkish incursion strengthened the coordination between the AANES and the Syrian regime, because the regime's forces entered the north-east to help counter the Turkish military incursion (Affidavit of Cynthia Termorshuizen, para 16). [ 34 ] Today, Turkish military operations/aggression against Syrian Kurds and regime affiliated militias continue across northern and north-eastern Syria. Tensions escalated in October 2021 following an attack by the YPG that killed two Turkish police officers in Syria's Azaz region, in response to which Turkish President Erdogan has threatened a military action.

Recently, on November 9. 2021, three people were reportedly killed after an SDF armoured vehicle was hit by a Turkish drone strike in Qamishli. In April 2021, armed clashes between the SDF and regime affiliated militias were recorded in the city of Qamishli, resulting in casualties and injuries (Affidavit of Cynthia Termorshuizen, para 17). [ 35 ] Materially for the purposes of this Application, after the fall of the Daesh/ISIS caliphate, AANES has imprisoned suspected male Daesh/ISIS fighters in what the Respondents describe as " “SDF-run prisons” " .

It also holds women suspected of Daesh/ISIS association and their children, in camps such as Al Hol and Al Roj, including the Canadian women and children former Applicants. The SDF as noted is AANES’ military wing. The SDF-run prisons hold approximately 10,000 detainees of whom around 2,000 are foreigners (Affidavit of Cynthia Termorshuizen, paras 26, 28).

(5) The parties [ 36 ] The status of some of the Applicants has changed since this Application was filed in September, 2021. BOLOH is an acronym to represent any given Applicant composed of a Canadian resident, their family members and a Canadian citizen currently detained in northeastern Syria. BOLOH stands for " ‘Bring Our Loved Ones Home’ " . The following individuals are affected by this application, and I have also indicated their status if known: 1 . BOLOH 1 has 3 family members in Al-Hawl, a daughter (27-years-old) and two granddaughters (5-years-old, and 3-years-old).

BOLOH 1 is no longer detained in any of the camps and their current whereabouts are unknown. Discontinued January 19, 2023. 2 . BOLOH 1a has a brother (31-years-old), who is currently at Derik Prison. The status of this individual is not known. Discontinued. 3 . BOLOH 2 has a daughter in Al-Hawl (31-years-old). BOLOH 2 met one of the threshold criteria in the Policy Framework as of November 24, 2022. Discontinued January 19, 2023.

4. BOLOH 2a has 5 family members in North East Syria. A son (36-years-old), a daughter (40-years-old), and three granddaughters(11-years-old, 14-years-old, and 13-years-old). 4 are in Al-Hawl and one is in the Hasakah Province Prison. BOLOH 2a met one ofthe threshold criteria in the Policy Framework as of November 24, 2022. Discontinued January 19, 2023 except for male.Presumably in prison. 5. BOLOH 3 has 4 family members in Camp Roj. A daughter (37 years-old), and 3 grandsons (9-years-old, 7-years-old, and 3-years-old). BOLOH 3 met one of the threshold criteria in the Policy Framework as of November 24, 2022.

Discontinued January 19,2023. 6. BOLOH 5 has 4 family members in Camp Roj. A sister (29-years-old), and 2 nieces (6 years-old, and 7 years old), and a nephew(3-years-old). BOLOH 5 met one of the threshold criteria in the Policy Framework as of November 24, 2022. DiscontinuedJanuary 19, 2023. 7. BOLOH 6 has 3 family members in Camp Roj. A daughter (27-years-old), and two granddaughters (7-years-old, and 2-years-old).BOLOH 6 met one of the threshold criteria in the Policy Framework as of November 24, 2022. Discontinued January 19, 2023. 8. BOLOH 12 has a brother in Qamishli prison (42-years-old).

In common with all Canadian men in AANES prisons in thisApplication, BOLOH 12 while subject to the Policy Framework, was not advised he met its threshold criteria. Presumably inprison. 9. BOLOH 13 includes Jack Letts imprisoned in one of the AANES prisons. In common with all Canadian men in AANES prisons inthis Application, BOLOH 12 while subject to the Policy Framework, was not advised he met its threshold criteria. Letts isrepresented by Barbara Jackman. All other Applicants are represented by Lawrence Greenspon. Presumably in prison. 10. BOLOH 14 is Kimberly Polman.

On October 25, 2022, Officials of GAC travelled to north-eastern Syria to assist in herrepatriation to Canada. At the same time GAC assisted in the repatriation of another Canadian woman and her two children. Theserepatriations were undertaken in accordance with the Policy Framework to Evaluate the Provision of Extraordinary Measures toAssist Canadian Citizens detained in North-Eastern Syria. A terrorism peace bond application has been initiated under section810.001 of the Criminal Code of Canada in relation to Ms. Polman.

The other woman has been charged with terrorism-relatedoffences under sections 813.18(1), 83.181, 83.03 and 465(1)(

c) of the Criminal Code of Canada. Discontinued January 19, 2023. 11. BOLOH 15 has 3 family members in Camp Roj, a sister (31-years-old), and two nephews (6-years-old, and 4-years-old). BOLOH15 met one of the threshold criteria in the Policy Framework as of November 24, 2022. Presumably in prison.

(6) Canadian contact with AANES [37] Global Affairs Canada (GAC) has been in communication with AANES. Dr. Abdulkarim Omar has been the primary interlocutorbetween AANES and GAC. Dr. Omar has been described as the de facto minister of foreign affairs for AANES. [38] AANES has maintained foreign governments should repatriate their nationals currently held in AANES custody, at least theirwomen and children. Dr. Omar has reportedly mused about international trials for suspected Daesh/ISIS fighters and its supporters. [39] According to the affidavit of Leah West ["“West Affidavit”"], Dr.

Omar indicated that AANES is willing to assist in the repatriationof Canadians. [40] Ms. West I should say served with the Canadian Armed Forces, travelled to, interviewed and or participated in interviews of variousactors in this matter in Syria and northeastern Syria, in 2019 and who both studies and teaches in relation to this region. Some years agoshe served as a Clerk to Justice Mosley of this Court. Given these factors I generally accept her first hand evidence. Where Ms.

West’sevidence is based on hearsay whether directly given to her or based on what she obviously considers credible media accounts, I alsogenerally accept her testimony on the principled exception bases of necessity and reliability (R. v. Khan, (SCC), [1990]2 S.C.R. 531; R. v. Smith, (SCC), [1992] 2 S.C.R. 915). There are certainly difficulties in obtaining information on theregional situation given its unstable nature meeting the test of necessity. I recognize the potential for bias and misreporting in mediareports regardless of source or platform.

That said, given the consistency of the evidence across various reports relied upon by Ms. WestI accept it as reliable. [41] Indeed, and buttressing the credibility of Ms. West’s testimony, the Respondent agrees that AANES is on record as wantingcountries such as Canada to repatriate their nationals from the detention camps under its control. Ms. West reports in this regard thatAANES requires only a formal request from the Canadian government is required, and the presence of a Canadian official or delegate atthe region’s border to take custody of the Canadian citizen(

s) to be repatriated. [42] According to the West Affidavit, I also accept that many other countries have met AANES at the Iraq border to repatriate theirnationals. This includes the United States, which has also acted as an intermediary to assist in the repatriation of foreign nationals ofother countries. [43] The Respondent is in material agreement with the foregoing.

The Respondents’ evidence is that since 2018, AANES has advisedGAC officials that in order to release a Canadian citizen in their custody, it requires a Canadian government delegation to visit its defacto capital city Qamishli to proceed with the hand-over. [44] Also according to the Respondents’ evidence provided by Ms.

Termorshuizen, AANES told Canada that any Canadian delegationwould have to follow AANES protocols for release, which consist of at least one face-to-face meeting and the signing of a handoverdocument by a senior Canadian government official (Affidavit of Cynthia Termorshuizen, paras 63-64). [45] Differences between the Applicant and Respondent in relation to AANES and its conditions for repatriation appear to be that

(1) Dr.Omar indicates a hand-over may take place at the region’s border while GAC’s evidence is the hand-over must take place at their de

facto capital city Qamishli, and

(2) Dr. Omar indicates Canada need only be represented by a delegate while GAC’s evidence appears to be that AANES requires the presence of a senior Canadian government official. [ 46 ] The issue of AANES’ requirements for repatriation was discussed at the hearing. With respect neither party presented the Court with current of up to date information on the requirements of AANES concerning the repatriation of Canadians in its detention camps and prisons. The Respondent’s evidence was set out in the affidavit of Ms.

Termorshuizen, a senior public servant with Global Affairs Canada [ " “GAC” " ], which in this respect is second hand and based on " ‘staff advice;’ " it did not set out how current Canada’s understanding of AANES’s repatriation requirements is. [ 47 ] Similarly, Ms. West did not provide the date on which she received her information from Dr. Omar. That said it would appear to date from her meetings and interviews dated from 2019.

Any preconditions required by AANES will doubtless be provided when Canada makes a formal request for repatriation as declared in the Court’s Judgment. [ 48 ] For completeness in connection with Canada’s contact and relationship with AANES, I note that despite the closure of our embassy, Canada has been able to provide some consular assistance to Canadians detained in northeastern Syria, mainly through engagement with the AANES.

For example, in June 2017, when GAC officials became aware of the first cases of Canadian citizens detained by the AANES, it undertook efforts to identify and establish contact with the appropriate AANES representative. A communication channel with Dr. Omar was not established until January 2018. Since then GAC has established communications with AANES representatives in both Lebanon and the United States.

In this connection it appears AANES has some support from the United States government. [ 49 ] GAC has also established communications with representatives of the Syrian Democratic Council [ " “SDC” " ] and the Kurdish Commission of Foreign Affairs. To recall, the SDC is political/legislative wing of the AANES, and the Syrian Democratic Forces (SDF) are its military wing. [ 50 ] According to the Respondent’s affidavit of Ms.

Termorshuizen, consular assistance to Canadians detained in northeastern Syria has included verifying the whereabouts and well-being of Canadians, requesting available medical care and conveying Canada’s expectations that Canadians be treated humanely, in line with the applicable principles of international humanitarian law and international human rights law.

As it pertains to the Applicant BOLOH 13, while GAC officials did not specifically raise his allegations of torture with the AANES because of a fear of reprisal, they did raise the " “expectation of humane treatment consistent with international law.” " [ 51 ] Ms. Termorshuizen’s Affidavit also indicates Canadian officials have requested direct consular phone calls with detainees, inquired about a potential system for families to transfer funds or items to loved ones and inquired about the possibility of access to mental health resources.

Moreover, in-person and telecommunication meetings between Government of Canada representatives and AANES representatives provided additional opportunities to raise the consular cases of Canadians in their custody, to seek updates on their health status, and to try to find new avenues to deliver consular assistance to Canadians in northeastern Syria. [ 52 ] Government officials have also provided consular assistance through engagement with international organizations and non- governmental organizations (NGOs) operating in the region to verify the well-being of Canadians and seek medical assistance. B.

Early history of this proceeding starting with the Applicant’s requests for assistance in January, 2021

(1) Request for assistance, Respondents’ repeated failures to respond, its belated disclosure of Policy Framework and unilateral assessment of the Applicants [ 53 ] All current and previous Applicants retained Lawrence Greenspon as their counsel to advance their repatriation to Canada. On February 25, 2021, Mr. Greenspon sent a letter to GAC requesting: 1 . Please confirm that GAC will provide a passport or equivalent once an itinerary is confirmed. 2 . Please confirm that GAC will make an immediate request for the repatriation of these persons. 3 .

Please confirm that GAC will authorize a representative, (Canadian official, charitable and/or humanitarian organization, 3rd party nation representative, or other person designated by GAC) for the purpose of the “hand-over” portion of the repatriation. [ 54 ] This letter requested a response to the above questions within 10 days. Despite receiving a confirmation of receipt, GAC chose not to respond. [ 55 ] On May 26, 2021, Mr. Greenspon sent a second letter restating his February 25, 2021 request. This letter requested an answer within 30 days.

Once again, GAC chose not to answer. [ 56 ] In continuing default of the provision of information by the respondent, Mr. Greenspon commenced this Application September 27, 2021. [ 57 ] In November 2021, Counsel for the Applicants learned for the first time that the Respondent had created – back in January, 2021 – a Policy Framework covering the very subject of Mr. Greenspon’s two neglected letters of February and May, 2021. The Policy Framewor k is called " “Government of Canada Policy Framework to Evaluate the Provision of Extraordinary Assistance: Consular Cases in North-Eastern Syria” " [ Policy Framework ].

(2) Respondents unilaterally and without notice assessed the Applicants under a previously undisclosed January 2021 Policy Framework and advised the Applicants of the results in November, 2021

[ 58 ] The Policy Framework contains " “threshold criteria” " that, unknown to the Applicants, they had to meet before Canada would advance repatriation efforts for Canadians such as themselves who wanted to be repatriated from northeastern Syria. [ 59 ] Notably, despite their letters of February 25, 2021 and May 26, 2021, the Respondents for unknown reasons chose not to tell the Applicants of the Policy Framework until November 2021. The Court was not provided with a satisfactory explanation for what it considers an unreasonable delay in informing the Applicants of the Policy Framework .

The Respondents delayed from February, 2021 to November, 2021 to respond – a delay of nine months. [ 60 ] The Respondents then advised the Applicants that as of November, 2021, only previous Applicant BOLOH 14 met the threshold criteria under the Policy Framework. [ 61 ] All other Applicants, Canadian women, children and men had also been assessed as of November 2021, but in the Respondents’ view none met the threshold criteria for repatriation under the Policy Framework . [ 62 ] Both the Policy Framework and letters from GAC to Mr.

Greenspon in November 2021 reporting on the Respondents’ assessment of each Applicant under the Policy Framework are contained in the affidavit of the Respondents’ Ms. Termorshuizen filed in response to this Application on November 22, 2021.

(3) Further procedural history including

section 38 of the Canada Evidence Act [ 63 ] In January, 2022, the Court was informed that Ms. Barbara Jackman had been retained by BOLOH 13, identified as including a male prisoner detained in northeastern Syria named Jack Letts. Mr.

Lett’s mother subsequently filed affidavit material in support of his application. [ 64 ] After various filings and other steps, the Chief Justice set November 2-3, 2022 as the hearing dates for this Application. [ 65 ] However, on August 29, 2022, shortly before filing deadlines for the hearing, the Respondents filed a Notice of Motion requesting leave to file a supplementary affidavit of the Respondents’ Ms. Termorshuizen. The Respondents stated that it was necessary to " “clarify” " and " “correct” " certain statements made by her in her previous affidavit dated November 22, 2021.

The Respondent filed a second affidavit of Ms. Termorshuizen stating: 1. I affirmed an affidavit in the above-noted matter on November 22. 202 1. At the time of affirming that affidavit. I was employed as the Assistant Deputy Minister of the Consular. Security and Emergency Branch of Global Affairs Canada (GAC). I was subsequently appointed to the position of Associate Deputy Minister of Foreign Affairs in January 2022. 2. In paragraph 31 of my November 22, 202 1 affidavit. I stated that “Canada does not have a military presence in territories held by the Syrian Regime or by the AANES, unlike other countries".

At the time of affirming my affidavit, I understood that to be the case, but I am now advised that this statement requires clarification. I am advised by Major-General Paul Prevost and do verily believe that Canada, other than Op IMPACT air missions that took place in Syrian airspace, does not have military missions in territories held by the Syrian Regime or by the AANES, unlike other countries. The Canadian Armed Forces have, however, provided various levels of support to the Global Coalition to degrade and ultimately defeat Daesh in Iraq and Syria.

A similar statement about Canada's lack of military presence was included in paragraph 37 of my November 22, 2021 affidavit, as well as in the Policy Framework to Evaluate the Provision of Extraordinary Measures to Assist Canadian Citizens detained in North-Eastern Syria that was produced by the Respondents as part of these proceedings. 3. At paragraph 68 of my affidavit, I stated that "Since the closure of the Embassy of Canada in 2012. Government of Canada officials have only been to north-eastern Syria once, in 2020, to accompany an orphaned child publicly known as 'Amira' out of the region".

At the time of affirming my affidavit 1 believed this statement to be true. I have now been informed by Martin Benjamin, Director-General of GAC's Intelligence Bureau, and do verily believe that while this statement was true in respect of GAC officials, there have been other Government of Canada officials who travelled to north- eastern Syria both before and after the date of my affidavit. 4. Steps were taken to clarify and correct my November 22. 2021 affidavit, including necessary consultations with other government departments and agencies, as soon as I was made aware of this information. 5.

I make this affidavit to clarify and/or correct certain statements made in my affidavit affirmed on November 22. 202 1 and in support of the Respondents' response to this application and for no other purpose. [ 66 ] The Respondents also advised the Court that notice had been given under the confidentiality provisions of

section 38 of the Canada Evidence Act , RSC, 1985, c. C-5 . [ 67 ] The Respondents requested an adjournment of the hearing and case management conference re next steps given the Respondents were unable to file their record in time for the scheduled hearings. [ 68 ] The Respondents’ request to delay the hearing was based on its submission it could no longer proceed on November 2-3, 2022. The Court notes it is not unusual for

section 38 proceedings to take two or three months and sometimes much more to resolve. This is because the Court generally needs to appoint an amicus curiae to assist it, confidential information must be prepared in relation to the allegedly confidential information, additional confidential material may be required to show injury to Canada under

section 38 , summaries may be prepared for public counsel for applicants who are otherwise excluded from participation in the

section 38 proceedings, cross- examinations may be conducted, legal submissions must be prepared by both the amicus curiae and the Attorney General of Canada, case management hearings may be required, there may be further public and in camera ex parte hearings on the admissibility and confidentiality of the material to be filed, and ultimately the Court must prepare a decision with respect to the admissibility and confidentiality of the new information which itself may be subject to redactions and even further proceedings in relation to redactions.

[69] The Court held a public case management hearing at which both Mr. Greenspon and Ms. Jackman, to minimize delay, agreed towaive any rights they might have in relation to the Respondents’ request that the Court hear and consider a request to file new evidenceat a secret hearing, i.e., a hearing that would proceed in camera and ex parte under

section 38 of the Canada Evidence Act. The section38 hearing while it would not include counsel for the Applicants, would include counsel for the Respondents together with anexperienced lawyer who I appointed as amicus curiae to represent the interests of the Applicants, namely Mr. Gib van Ert. [70] I granted the Respondents’ motion to file the supplementary affidavit of Ms.

Termorshuizen to correct and clarify her previousevidence, and did so over the objections of the Applicants who they were (legitimately in my view) concerned the Respondents’ requestwould cause further delay to the prejudice of the individual women, children and male Applicants detained and or imprisoned innortheastern Syria. I granted the motion in the interests of procedural fairness. I was not persuaded the Respondents’ information wasirrelevant. [71] Matters were thereafter kept on a lengthened but tight timeline.

The Chief Justice granted a one-month adjournment of the publichearings to December 5-6, 2022. [72] By Order dated October 20, 2022, in my capacity as a designated judge under

section 38 of the Canada Evidence Act, R.S., 1985, c.C-5, I appointed Mr. Gib van Ert as amicus curiae. I gave Mr. van Ert a special mandate to "“represent the interests of the Applicants”"in this proceeding and in the related

section 38 Canada Evidence Act proceedings, following the precedent of my colleague JusticeSimon Noël in Brar et al. v Canada (Public Safety and Emergency Preparedness), 2020 FCA 129 , 2020 FC 729 in a matterunder the Secure Air Travel Act, S.C. 2015, c. 20, s. 11 ["“SATA”"]. I did so because both neither the statutory regime under SATA northe proceedings in the case at bar had specific provision for the appointment of the equivalents to "“special advocates”" provided in theImmigration and Refugee Protection Act, S.C. 2001, c. 27, at

section 85 and following. [73] In terms of the

section 38 proceedings, and after hearing from the Respondents and Mr. van Ert, I was persuaded confidentialmaterial could be filed by the Respondents that might be considered by the Court in coming to its conclusions in the public proceeding.To that end, the amicus curiae Mr. van Ert was authorized to attend the public hearings in this matter so that he could make submissionsas he deemed advisable at a further in camera and ex parte proceeding that would take place after the conclusion of public hearings. [74] In the interim, the Respondents with the Court’s approval provided the Applicants and Mr. van Ert with redacted confidentialmaterial and

summary information. [75] By the end of the hearing on December 6, 2022 unfortunately and for very sad reasons but without any fault, the two-day publichearings were not complete. Therefore an additional half-day public hearing was

schedule for January 6, 2023. That hearing took placealbeit for almost a full day. [76] Thereafter the Court resumed on January 13, 2023, to hear in camera ex parte submissions from the Respondents, and from amicuscuriae Mr. van Ert representing the interest of the Applicants, concerning the confidential material admitted under

section 38 of theCanada Evidence Act. C. The Policy Framework of January 2021 [77] As noted, in January, 2021, the Respondent adopted a Policy Framework to guide decision-making on whether to extendextraordinary assistance to Canadian citizens, or to those with a claim to Canadian citizenship, detained in northeastern Syria. Pursuant tothe Policy Framework, extraordinary assistance would be provided only where an individual meets one or more of the following three"“threshold criteria”": 1) The individual is a child who is unaccompanied; 2) Extraordinary circumstances make it necessary for a child who is accompanied to be separated from their parent(

s) leaving thechild in a de facto unaccompanied state; and/or 3) The Government of Canada has received credible information indicating that the individual’s situation has significantly changedsince the adoption of the Policy Framework. [78] If an individual was determined to meet one or more of these threshold criteria, relevant departments within the Government ofCanada would initiate an assessment of whether to extend extraordinary assistance, considering the following guiding principles: A. Unaccompanied children will be prioritized. B.

Children will not be separated from their parents except in extraordinary circumstances. C. The individual’s identity and claim of Canadian citizenship must be established. D. Canadian government officials must not be put in harm’s way. E. Canadian government actions must not worsen the situation of the individual. F.

The threat to public safety and national security, if any, posed by the individual during transit and on arrival in Canada can bemitigated. [79] Under Principles A and B, GAC would engage with the AANES and with organizations operating in the region to seek to clarify thesituations of children and parent(

s) in order to assess the specific circumstances. For Principle B, this would also include consulting therelevant subject matter experts, such as child protection services, to determine if separating a child from their parents is in the bestinterests of the child. Under Principle C, an individual’s identity and citizenship must be assessed by IRCC. Principle D requires an

assessment of whether Canadian government officials could safely travel to north-eastern Syria. [ 80 ] Under Principle E, GAC would carefully assess the possible outcomes, intended and unintended, that the Government of Canada’s positive actions could have for the individual. Once a decision to provide extraordinary assistance is made under the Policy Framework, prior to and in addition to seeking their release from AANES custody, risks to the safety and security of any released detainees would need to be mitigated in order to enable their transit from northeastern Syria to Iraq for onward travel to Canada.

Under Principle F, the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS) are separately responsible for providing threat assessments. [ 81 ] At the end of this process, the Policy Framework required Ministerial decisions at two separate final stages before extraordinary consular assistance might be extended to an individual: Ministerial Decision 1 : approval to extend extraordinary measures in principle, pending development of a concept of operations (CONOPS) that outlines the logistical specifics of how those measures will actually be extended; and, Ministerial Decision 2 : approval of a final CONOPS.

D. Developments on November 24, 2022 [ 82 ] On November 24, 2022, two weeks before public hearings set for December 5-6, 2022, the parties advised the Court of further developments. By and agreed statement of facts, the parties advised: 1. On October 25, 2022, officials of Global Affairs Canada (GAC) travelled to north-eastern Syria to assist in the repatriation of Kimberly Polman, the Applicant in this matter otherwise known as BOLOH 14, as well as another Canadian woman and her two children, who are not applicants in this proceeding.

These repatriations were undertaken in accordance with the Policy Framework to Evaluate the Provision of Extraordinary Measures to Assist Canadian Citizens detained in North-Eastern Syria (the Policy Framework). A terrorism peace bond application has been initiated under s.810.011 of the Criminal Code of Canada in relation to Ms. Polman. The other woman has been charged with terrorism-related offences under sections 83.18(1) , 83.181 , 83.03 and 465(1) (

c) of the Criminal Code of Canada . 2. The Applicants known as BOLOH 1 are no longer detained in any of the camps in north-eastern Syria, and their current whereabouts are unknown. 3. By letters dated November 24, 2022 to their legal counsel, all of the remaining BOLOH women and children, namely BOLOH 2, 2(a), 3, 5, 6 and 15, were advised that GAC determined they had met one of the threshold criteria in the Policy Framework.

They were further advised that GAC has initiated assessments in accordance with the six guiding principles of the Policy Framework to evaluate whether to extend extraordinary assistance to them and they were given 30 days to provide any comments and supporting documentation they may have in relation to the assessment of these principles. II. Decision under review [ 83 ] Notably, as of November 24, 2022, the Respondents once again found none of male prisoners Applicants including BOLOH 13 eligible for repatriation: none met the threshold criteria.

However, all remaining Canadian women (and their children) were found eligible for further consideration for repatriation. [ 84 ] To recall, none of the male prisoner Applicants were considered eligible by GAC’s initial assessments reported by letters dated November 21, 2021. At that time, only BOLOH 14, (Ms. Polman) was deemed eligible for further repatriation consideration. In November, 2021 all other Canadian women and children were deemed ineligible. [ 85 ] As per the new evidence submitted November 24, 2022, all of Mr.

Greenspon’s women and children clients were found to meet the threshold criteria and because eligible for further repatriation consideration under the Policy Framework . That said, when asked at the hearing for his position, Mr. Greenspon requested an Order: " “

(1) That all decisions regarding the Applicants made by the Respondents between January 2021 and November 2021 pursuant to the “Policy Framework” are hereby declared null and void.” " That request no longer applies to his women and child clients, who have discontinued. However that request continues to apply in respect of his three Canadian male prisoner clients. In addition, Ms. Jackman takes the same position in respect of her Canadian male prisoner BOLOH 13, Mr.

Letts. [ 86 ] At the hearing December 6, 2022, both counsel for the Applicants when asked what specific remedy they requested advised they also sought the following additional Orders: Order #2 Having found that the continuing failure to act of the Respondents is causally connected to the ongoing violations of the Applicants Charter Rights under sections 7, 9, 12 and/or 15, And given the consent of AANES to the repatriation of the Applicants, Pursuant to Sections 3(

a) and/or

Section 44 of the Federal Courts Act and/or Section 24(1) of the Charter of Rights and Freedoms THIS COURT ORDERS the Respondents to do the following acts or thing(

s) it has unlawfully failed or refused to do or has unreasonably delayed in doing, namely:

1) Within 7 days of the date of this Order, make an official request to AANES, which has de facto control of the Roj and Al Hawl camps, the Derrick, Hasakeh and Qamishli prisons and the territory where they are all located, requesting the repatriation of the 23 Canadian men, women, and children BOLOH applicant detainees, 2) Within 15 days of the date of this Order, provide to the 23 Canadian children, women and men BOLOH applicant detainees, Canadian passports or the equivalent or Emergency Travel Documents (ETD’

s) in order to enable their return to Canada pursuant to section 6(1) of the Charter of Rights and Freedoms. 3) Within 30 days of the date of this Order, appoint a representative or delegate of the Respondents for the purpose of attending in Qamishli at the “hand-over” of the 23 Canadian men, women and children BOLOH applicant detainees. 3) Within 30 days of the date of this Order, appoint a representative or delegate of the Respondents for the purpose of attending in Qamishli at the “hand-over” of the 23 Canadian men, women and children BOLOH applicant detainees. 4) That repatriation of all 23 BOLOH applicants take place within 90 days of this Order.

It is further ordered that this Court retain jurisdiction in order to and shall receive reports from the Respondents concerning progress as to compliance with the above Order(s). III. Issues [ 87 ] The Applicants submit the following issues: 1 . That the Applicants were not afforded procedural fairness; 2 . That the inaction by Global Affairs Canada constituted a decision not to repatriate the Applicants from northeasternSyria, which was unreasonable; 3 .

That the Canadian Charter of Rights and Freedoms applies extra-territorially to those unlawfully detained in North Eastern Syria, and imposes positive obligations on the Canadian government under sections 6(1) and 7 of the Charter ; 4 . That the Applicants’ Charter protected rights under sections 6(1) and 7 , 9 , 12 , and 15 of the Charter , were breached by GAC’s inaction; 5 . That the Government of Canada breached its international obligations by failing to repatriate the Applicants from northeastern Syria; and 6 .

In the alternative, that Habeas Corpus is available to produce the unlawfully detained Applicants before the Court [ 88 ] The Applicant BOLOH 13 adopts the submissions of the other Applicants in their entirety, and submits additionally: 1 . Canada is in breach of

section 6 of the Charter in effectively subjecting BOLOH 13 to exile and/or banishment; 2 . Canada is in breach of

section 7 of the Charter by failing to take steps to repatriate BOLOH 13 to Canada. [ 89 ] The Respondents submits the following issues: 1 . the admissibility and/or relevance of the Applicants’ affidavit evidence; 2 . whether Canada has a legal obligation to facilitate repatriation of citizens detained abroad under the Charter or international law; 3 . whether the Applicants’ challenge to the procedural fairness and reasonableness of decisions made under the Policy Framework and/or the adoption of the Policy Framework itself are amenable to judicial review and/or founded; and 4 . whether habeas corpus can issue. [ 90 ] In my respectful view it is only necessary to consider

section 6 of the Charter , which is sufficient to provide the Applicants the relief to which they are entitled consistent with relevant binding jurisprudence and Canada’s international obligations. IV. Preliminary considerations [ 91 ] Before setting out my reasons for granting this Applications, it is important to appreciate two important points.

(1) The Court is not asked to and makes no finding why the Applicants went to the region where they are now imprisoned or detained. Further [ 92 ] First, there is no evidence identifying why any of the Applicants went to Syria or Iraq, and there is no evidence before this Court as to what any of them did there. The Applicants, with one exception, filed no evidence on the reasons for their travel or their activities in the region. The Respondents filed no evidence identifying the Applicants’ motives for their travel or of their activities in the region.

Notably the Respondents do not allege any of the Applicants engaged in or assisted in terrorist activities. The Respondents affirmed this position at the hearing.

[93] BOLOH 13 is an exception. His counsel said he went there to study. The affidavit of his mother in support says the government ofthe United Kingdom revoked his UK citizenship in 2019 based on its perceptions of his activities.

Her affidavit adds that after his parentssent money to him, a British court convicted them of sending the sum of £223 to a contact of his in Lebanon, "“due to the very broadwording of the UK terrorism legislation, which states that any money sent to an individual that 'might' be used for terrorism purposes (orfall into the wrong hands)”" but that the judge accepted the money was not, in fact, used for terrorism purposes and described BOLOH’sparents as "“defendants who are of positive good character and devoted parents.

They are clearly desperately concerned about theirson….Two perfectly decent people have ended up in custody because of the love of their child.”" [94] I also agree with counsel for BOLOH 13 who notes that as per Supreme Court jurisprudence in R. v. Zundel, (SCC),[1992] 2 S.C.R. 731, and R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697, Canadians are entitled to have political opinions,no matter how abhorrent they may be to other Canadians. The limitation is when Canadian opinion holders take actions, whether insideof outside of Canada, that constitute offences against Canadian law including the Criminal Code of Canada.

However there is noevidence to that effect before this Court. [95] To emphasize, the remaining Applicants are Canadian men imprisoned without charge or trial in northeastern Syria. The evidence isand I accept the adult Applicants are in prison because their captors suspect they are Daesh/ISIS fighters.

(2) No charges against the Applicants are known, and none have been tried; other Canadians who have beenrepatriated were arrested and made subject to proceedings under the Criminal Code of Canada immediatelyupon their return [96] Secondly, there is no evidence any of the remaining Canadian men Applicants, who are now in prison, face any charges.

There is doevidence any of them have been tried or convicted, let alone tried in a manner recognized or sanctioned by international law. [97] I also note that the women and children repatriated with Canadian assistance in October, 2022, were made subject to proceedingsunder the Criminal Code of Canada by way of terrorist peace bond or charges under its anti-terrorist provisions. Immediately on theirreturn to Canada – they were arrested and taken into custody. B. Analysis

(1) The Application under subsection 6(1) of the Charter it allowed and declaratory relief is grantedconsistent with Supreme Court of Canada’s decision in Canada (Prime Minister) v. Khadr, 2010 SCC 3 [98] As seen from the foregoing, a large number of issues are raised by the Applicants and Respondents as bases for this Court to grant orrefuse relief. [99] In

summary, for the following reasons, the Court will grant declarations requested by the Applicants, with modifications. [100] However, and while the Court undoubtedly has jurisdiction to make these declarations in connection with the conduct of Canada’sforeign affairs and international relations, particularly under subsection 6(1) of the Charter as in this case, it will not make Orderscompelling the Respondents to take specific actions given the executive government’s need for flexibility in these matters, the generaldesirability of maintaining separation of responsibilities between the courts and the executive government (whose authority is vested inthe Respondent Crown by

section 9 of the Constitution Act, 1867), and in the expectation the executive government will act in good faithas its counsel represented to the Court. [101] Therefore this Judgment follows the course taken by the Supreme Court of Canada in Canada (Prime Minister) v. Khadr, 2010SCC 3, [Khadr 2010] which granted declarations of Charter rights and breaches. There the Supreme Court held that while it could orderCanada to ask the United States to repatriate Mr. Khadr, it declined to make such an order at that time.

In this connection I note theSupreme Court of Canada’s decision was dated November 13, 2010, Canada initially declined to request the US government to repatriateMr. Khadr, Canada subsequently accepted Mr. Khadr’s May, 2011 application to be repatriated through transfer from a US to a Canadianprison, and that the US government returned Mr.

Khadr to Canada on a US government aircraft September 29, 2012. [102] This Court’s judgment therefore complies with the Supreme Court of Canada’s conclusions in Khadr 2010 which ruled: [47] The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court toallow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of itsopinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functionsand to consider what actions to take in respect of Mr.

Khadr, in conformity with the Charter. [103] In my respectful view, there is also very considerable jurisprudence from the Federal Court, the Federal Court of Appeal and theSupreme Court of Canada relating to subsection 6(1) of the Charter that requires this Court to grant the Applicants success in theirApplication. My reasons follow.

(2) Governing jurisprudence from the Supreme Court of Canada in United States of America v. Cotroni,(1989) (SCC), 1 S.C.R. 1469 at 1481/1482 and Divito v. Canada (Public Safety andEmergency Preparedness), 2013 SCC 47, the Federal Court in Kamel v. Canada (Attorney General), 2008 FC338, the Federal Court of Appeal in Kamel v. Canada (Attorney General), 2009 FCA 21, and the FederalCourt in Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, which require this Court to findbreaches of the Applicants subsection 6(1) Charter rights

(

a) Supreme Court of Canada jurisprudence: Cotroni and Divito [104] In my view this case is determined by reference to the constitutionally entrenched and jurisprudentially affirmed rights ofCanadians to "“enter, remain and leave Canada”" guaranteed by subsection 6 of the Charter. The Applicants, having left Canada, ask theassistance of this Court to exercise their constitutional right to “enter”, that is, to return to Canada. Subsection 6(1) of the Charterprovides: 6

(1) Every citizen of Canada has the right to enter, remain in and leave Canada. [105] To begin with, the Supreme Court of Canada established three decades ago that subsection 6(1) is aimed at prohibiting thebanishment or exile of Canadian citizens by their government. It is aimed at preventing the Government of Canada and any and all of itsemanations from severing or interfering with the right of Canadian citizens to leave and return to Canada. As Justice LaForest , speakingfor a majority of the Supreme Court of Canada, put it in United States of America v.

Cotroni, (1989) (SCC), 1 S.C.R.1469 at 1481/1482: "“Like the international and constitutional documents I have referred to, the central thrust of s. 6(1) is against exileand banishment, the purpose of which is the exclusion of membership in the national community.”" [106] It is significant this right belongs only to Canadian citizens (such as the Applicants). Notably, subsection 6(1) does not protectpermanent residents of Canada, it does not protect those on various temporary visas nor is it available to refugees. It has no application tocorporations.

The right to return ("“enter”") to Canada is a right only a citizen may claim. [107] What is the scope of the subsection right? The Federal Court, the Federal Court of Appeal and the Supreme Court of Canada haveconsidered the scope and applicability of subsection 6(1) of the Charter. In a word it is an expansive, generous and powerful right. [108] To begin with and most importantly, the Supreme Court of Canada comprehensively reviews the scope and purpose of the citizen’sright to return ("“enter”") to Canada in Divito v. Canada (Public Safety and Emergency Preparedness) 2013 SCC 47 [Divito].

I suggestwith the greatest respect that the following description of the scope of subsection 6(1) is relatively remarkable in Charter jurisprudence. [109] Divito directs that subsection 6(1) rights are "“foundational”", "“fundamental”", are of both "“expansive breadth”" and"“plentitude”", and must be "“generously interpreted”" by this and other Courts.

In Divito, the Supreme Court of Canada also directs thatcitizen’s right to return to Canada is protected not only by subsection 6(1) of the Charter but by Canada’s many obligations undernumerous duly ratified international treaties entered into by Canada. [110] In Divito, the Supreme Court of Canada confirms the "“expansive breadth”" and "“plentitude”" of the subsection 6(1) right toreturn to Canada guaranteed by subsection 6(1) may not be overridden by the notwithstanding clause (section 33 of the Charter). [111] Divito unequivocally states the right to enter or return to Canada guaranteed by subsection 6(1) must be defined generously - andnot in a legalistic manner - in light of the interests it is to protect.

It is "“foundational”" right because without the ability to enter one’scountry of citizenship, the "“right to have rights”" cannot be fully exercised. The right to return to Canada, says Divito, is a"“fundamental right associated with citizenship”". [112] Divito says that the right to return to Canada is generally "“presumed to provide protection at least as great as that afforded bysimilar provisions in international human rights documents”" ratified by Canada. In this connection, Divito determines that theInternational Covenant on Civil and Political Rights, Can.

T.S. 1976 No. 47 ("“ICCPR”"), ratified by 167 states, including Canada isbinding on Canada. Article 12(4) of the ICCPR states: "“4. No one shall be arbitrarily deprived of the right to enter his own country.”"Notably, in 1999, the U.N. Human Rights Committee issued guidelines for the

interpretation of

Article 12 of the ICCPR in its "“GeneralComment No. 27: Freedom of Movement”". Paragraph 19 states, in part, that "“[t]he right of a person to enter his or her own countryrecognizes the special relationship of a person to that country”". The U.N. Human Rights Committee’s

interpretation of the scope of theright is that there are "“few, if any”" limitations on the right to enter that would be considered reasonable. [113] Importantly, Canada’s international obligations not only inform Charter rights. Divito confirms earlier Supreme Courtjurisprudence that: “the Charter should be presumed to provide at least as great a level of protection as is found in the internationalhuman rights documents that Canada has ratified”. [114] The right to enter protected by subsection 6(1) of the Charter must be interpreted in a way that is consistent with or greater thanCanada’s international treaty obligations. [115] The foregoing is a but a

summary of what the Supreme Court of Canada directs with respect to the right of the Applicants to returnto Canada under subsection 6(1). For the record, Divito’s full reasons in this respect are: [18] The focus of this appeal is on s. 6(1). There are three rights found in s. 6(1): the right to enter, remain in, and leaveCanada. Only the right to enter is at issue in this appeal. [19] We must first consider the scope of the s. 6(1) right. We start with this Court’s primordial direction that rights bedefined generously in light of the interests the Charter was intended to protect: Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 156; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 344;Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624, at para. 53. In Big M DrugMart Ltd., Dickson J. summarized the requisite approach as follows: In Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, this Court expressed the view that theproper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one.The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of thepurpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant toprotect.

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be soughtby reference to the character and the larger objects of the Charter itself, to the language chosen to articulate thespecific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to themeaning and purpose of the other specific rights and freedoms with which it is associated within the text of theCharter. The

interpretation should be, as the judgment in Southam emphasizes, a generous rather than alegalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of theCharter’s protection. At the same time it is important not to overshoot the actual purpose of the right orfreedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as thisCourt’s decision in Law Society of Upper Canada v.

Skapinker, (SCC), [1984] 1 S.C.R. 357,illustrates, be placed in its proper linguistic, philosophic and historical contexts. [Emphasis added; emphasis inoriginal deleted; p. 344.] [20] Accordingly, the inquiry necessarily begins with an analysis of the purpose of the guarantee in s. 6(1) and aconsideration of what the right of citizens to enter Canada was intended to protect. [21] The protection for citizens in s. 6(1), like most modern human rights protections, had its origins in the cataclysmicrights violations of WWII.

Writing in the aftermath of that war about her own experience, Hannah Arendt observed that a“right to have rights” flows from citizenship and belonging to a distinct national community: The Origins of Totalitarianism(new ed. 1967), at p. 296; Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (2012), atp. 5. Without the ability to enter one’s country of citizenship, the “right to have rights” cannot be fully exercised.

The rightof a Canadian citizen to enter and to remain in Canada is therefore a fundamental right associated with citizenship. [22] Canada’s international obligations and relevant principles of international law are also instructive in defining the right:Slaight Communications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038; United States v. Burns, 2001 SCC7, [2001] 1 S.C.R. 283; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4,[2004] 1 S.C.R. 76; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292.

In Reference re Public Service Employee Relations Act(Alta.), (SCC), [1987] 1 S.C.R. 313, Dickson C.J., dissenting, described the template for considering theinternational legal context as follows: The content of Canada’s international human rights obligations is, in my view, an important indicia of themeaning of “the full benefit of the Charter’s protection”.

I believe that the Charter should generally bepresumed to provide protection at least as great as that afforded by similar provisions in international humanrights documents which Canada has ratified. [p. 349] [23] More recently, in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC27, [2007] 2 S.C.R. 391, McLachlin C.J. and LeBel J. confirmed that, “the Charter should be presumed to provide at least asgreat a level of protection as is found in the international human rights documents that Canada has ratified” (para. 70).

Thishelps frame the interpretive scope of s. 6(1). [24] The international law inspiration for s. 6(1) of the Charter is generally considered to be art. 12 of the InternationalCovenant on Civil and Political Rights, Can. T.S. 1976 No. 47 (“ICCPR”), which has been ratified by 167 states, includingCanada: John B. Laskin, “Mobility Rights under the Charter” (1982), 4 S.C.L.R. 89, at p. 89; Robert J. Sharpe and KentRoach, The Charter of Rights and Freedoms (4th ed. 2009), at p. 212. [25] As a treaty to which Canada is a signatory, the ICCPR is binding.

As a result, the rights protected by the ICCPRprovide a minimum level of protection in interpreting the mobility rights under the Charter.

Article 12 of the ICCPR states: 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty ofmovement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law,are necessary to protect national security, public order (ordre public), public health or morals or the rights andfreedoms of others, and are consistent with the other rights recognized in the present Covenant. 4.

No one shall be arbitrarily deprived of the right to enter his own country. [26] In 1999, the U.N. Human Rights Committee issued guidelines for the

interpretation of art. 12 of the ICCPR in its“General Comment No. 27: Freedom of Movement”. Paragraph 19 of the General Comment states, in part, that “[t]he rightof a person to enter his or her own country recognizes the special relationship of a person to that country”. The GeneralComment also provides some guidance on the

interpretation of “arbitrarily” in art. 12(4): In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to theconcept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative,administrative and judicial; it guarantees that even interference provided for by law should be in accordancewith the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in theparticular circumstances.

The Committee considers that there are few, if any, circumstances in whichdeprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping aperson of nationality or by expelling an individual to a third country, arbitrarily prevent this person fromreturning to his or her own country. [Emphasis added; para. 21.] [27] Although art. 12(4) protects against arbitrary interference with the right to enter, the U.N. Human Rights Committee’sinterpretation of the scope of the right suggests that there are in fact “few, if any” limitations on the right to enter that would

be considered reasonable. The right to enter protected by s. 6(1) of the Charter should therefore be interpreted in a way thatis consistent with the broad protection under international law. [28] The expansive breadth of the protection is also consistent with the fact that s. 6(1) of the Charter is exempt from thelegislative override in s. 33: Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, at para. 11.Moreover, the other rights conferred by s. 6 of the Charter in s. 6(2) are subject to express limitations within the provisionitself in ss. 6(3) and 6(4).

The fact that s. 6(1) is not subject to such limitations also confirms its plenitude. [29] And, finally in United States of America v. Cotroni, (SCC), [1989] 1 S.C.R. 1469, a case involvingextradition, this Court recognized that the “intimate relation between a citizen and his country” invited a generousinterpretation of a related right in s. 6(1), namely the right to remain in Canada (p. 1480). [Emphasis added] (

b) Related doctrine and enactments [116] In addition to the foregoing, given Canada has a "“constitution similar in principle to that of the United Kingdom”" per thepreamble to the Constitution Act, 1867, it is notable that as long ago as the Magna Carta (Great Charter of Liberties) of 1215, subjects ofthe English Crown were granted the right to leave and return to England. These are undoubtedly precursor rights to those in subsection6(1) of the Charter.

Article 42 of the Magna Carta provides: "“It is allowed henceforth to any one to go out from our kingdom, and toreturn, safely and securely, by land and by water…”" except for short duration in times of war. [117] With respect, from its antiquity I conclude the 808 year old promise to end banishment and exile illustrates how long ourconstitutional order has concerned itself with protecting the right to enter and return to one’s country: see Magna Carta,

article 42 in full,Select Documents of English Constitutional History, The Macmillan Company, London: MacMillan & Co., LTD., 1918: 42. It is allowed henceforth to any one to go out from our kingdom, and to return, safely and securely, by land and by water,saving their fidelity to us, except in time of war for some short time, for the common good of the kingdom; exceptingpersons imprisoned and outlawed according to the law of the realm, and people of the land at war with us, and merchants, ofwhom it shall be done as is before said. [Emphasis added] [118]

Article 41 of the Magna Carta gave merchants similar guarantees of the right to return to their country: 41.

All merchants shall be safe and secure in going out from England and coming into England and in remaining and goingthrough England, as well by land as by water, for buying and selling , free, from all evil tolls, by the ancient and rightfulcustoms, except in time of war, and if they are of a land at war with us; and if such are found in our land at the beginning ofwar, they shall be attached without injury to their bodies or goods, until it shall be known from us or from our principaljusticiar in what way the merchants of our land are treated who shall be then found in the country which is at war with us;and if ours are safe there, the others shall be safe in our land. [Emphasis added] [119] The primacy of the right to return to Canada is reinforced in Canadian law.

This is also a critical factor in this Judgment. Simplyput, there is no known offence in Canada that carries with it exile or banishment as a penal consequence. [120] See also subsection 2(

a) of the Canadian Bill of Right, S.C. 1960, c. 44, an earlier attempt by Parliament to forbid Canada’s abilityto exile any person: Construction of law 2 Every law of Canada shall, unless it is expressly declared by

an Act of the Parliament of Canada that it shall operatenotwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or toauthorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and inparticular, no law of Canada shall be construed or applied so as to authorize or effect the arbitrary detention, imprisonment orexile of any person; [Emphasis added] (

c) No issue of justification under

section 1 of the Charter [121] I also place importance on the Applicants’ right to return to Canada because on how this case was pleaded. Justification undersection 1 of the Charter is not raised. The Charter-protected rights of the Applicants to enter and return to Canada per subsection 6(1) are- by the words of our Constitution itself—"“subject only”" [emphasis added] to the reasonable limit provisions in

section

Section 1 is ageneral provision that enables the legislatures – in this case Parliament—to limit some constitutionally protected rights by laws thatprovide "“reasonable limits”" to those rights. [122] Thus while there might be law limiting subsection 6(1) rights, no such law or limits are advanced by the Respondents. While theRespondents submit relief under subsection 6 should not be granted, they do not ask the Court to find any of their submissions constitutesection 1 ‘reasonable limits’. As noted, by its very words, the right to return to Canada is "“only”" subject to

section 1 justification whichin this case the Respondents have not pursued.

[123] In a word, there is no need to consider

section 1 justification. Even if there was, the necessary factual background for such anassessment is absent: Front commun des personnes assistées sociales du Quebec v. Canada (Canadian Radio-Television andTelecommunications Commission) 2003 FCA 394 at para 9 and cases cited therein including Mackay v. Manitoba, (SCC), [1989] 2 S.C.R. 357. (

d) Exercise of royal prerogative [prerogative] is not exempt from constitutional scrutiny [124] Nor is there any support for the proposition that the government of Canada is exempt from constitutional scrutiny in the conduct ofinternational relations and foreign affairs, whether it acts under the prerogative or otherwise. Indeed the Supreme Court of Canada heldexactly to the contrary in Khadr 2010 at para 36: "“[I]n exercising its common law powers under the royal prerogative, the executive isnot exempt from constitutional scrutiny: Operation Dismantle v. The Queen, "" "" (SCC), ""[1985] 1 S.C.R. 441"".

It isfor the executive and not the courts to decide whether and how to exercise its powers, but the courts clearly have the jurisdiction and theduty to determine whether a prerogative power asserted by the Crown does in fact exist and, if so, whether its exercise infringes theCharter (Operation Dismantle) or other constitutional norms (Air Canada v. British Columbia (Attorney General), "" ""(SCC), ""[1986] 2 S.C.R. 539"").”" And see Hupacasath First Nation v.

Canada (Foreign Affairs and International Trade Canada),2015 FCA 4, where Justice Stratas for the Federal Court of Appeal concluded: [70] Assessing whether or not legal rights exist on the facts of a case lies at the core of what courts do. Under theconstitutional separation of powers, determining this is squarely within our province. Canada’s justiciability objection has nomerit. (

e) Federal Court of Appeal and Federal Court of Appeal jurisprudence [125] Between 2008 and 2010, both the Federal Court and the Federal Court of Appeal adjudicated on the applicability of a citizen’sright to return established by subsection 6(1) of the Charter. Notably they did so before the Supreme Court of Canada’s seminal 2013judgment in Divito.

Even so, both found the right to return a substantial one, and a right that may be enforced by judicial order against theexecutive government even when acting pursuant to the prerogative in the context passports. [126] Both the Federal Court and the Federal Court of Appeal also found—as this Court does—that a citizen’s right to "“enter”" Canadais not restricted to matters under the control of border officials inside Canada. [127] Indeed, it is critical to appreciate that for many if not most practical purposes, the subsection 6(1) right in today’s closely regulatedglobal travel environment is one that by definition embraces and contemplates actions with implications outside Canada, not just at apoint of entry. [128] These cases also confirm and establish the jurisdiction of this Court and its duty to ensure Canada’s executive government respectsand complies with rights of Canadian citizens to return to Canada.

Equally, subsection 6(1) of the Charter forbids the executive fromfrustrating the rights of Canadians to enter and return whether by executive actions taken in Canada or abroad. [129] The first decision I wish to rely on is that of Justice Noël in Kamel v. Canada (Attorney General), 2008 FC 338 [Kamel FC]. Byexercise of its prerogative powers the executive refused to issue a passport to a Canadian citizen on national security grounds. He neededit to leave Canada and return. This Court found a passport is essential to the exercise of the mobility rights guaranteed by subsection 6(1)of the Charter. It also found

section 1 was of no assistance to the executive because the relevant

section in the passport regulations wasnot a law. Thus (as here)

section 1 of the Charter had no application. The Court found at para 103: "“ In order for mobility rightsrespecting travel outside Canada to be truly meaningful, it seems to me more is needed than the right to enter or leave, because enteringmeans coming back from somewhere, and leaving means going to a foreign destination. In both cases, returning and leaving imply aforeign destination where a passport is required. This mobility right cannot be exercised without a passport.”" [Emphasis added] TheCourt declined to order the issuance of a passport but instead gave the executive time to re-write the passport regulation. [130] The Crown appealed Kamel FC to the Federal Court of Appe

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