The Federal Court of Appeal has overturned a judge's declaration that four Canadian men being held in Syrian camps are entitled to Ottawa's help to return home. Pictured is a general view of Karama camp for internally displaced Syrians, by the village of Atma, Idlib province, Syria, on Feb. 14, 2022Omar Albam/The Canadian Press
A judge had no authority to order the federal government to try to repatriate four men being held in Syrian prison camps on suspicion of being Islamic State terrorists, the Federal Court of Appeal ruled on Wednesday.
The four Canadian men have been detained for several years by Syrian Kurds in the northeastern part of the country.
In January, Federal Court Justice Henry Brown determined that the men’s lives were at risk and said Ottawa must try to bring them home. (The case was brought by the men’s families in Canada.) He based his order on Section 6 of the Charter of Rights and Freedoms, which says Canadians have the right to enter (and leave) Canada.
But in a blunt, powerful and at times caustic ruling, Justice David Stratas said Justice Brown had transformed a right of return into a government obligation to rescue people from their own disastrous choices.
“Can the Government of Canada voluntarily try, through diplomacy or other means, to help a citizen in distress abroad? Of course it can. But, as a matter of constitutional law, does it have to? Of course not,” Justice Stratas wrote in a 3-0 ruling, endorsed by Justice Wyman Webb and Justice K.A. Siobhan Monaghan.
The right to enter Canada, Justice Stratas wrote, “is not a golden ticket for Canadian citizens abroad to force their government to take steps – even risky, dangerous steps – so they can escape the consequences of their actions.”
Lawrence Greenspon, a lawyer for three of the men, said he is considering an appeal to the Supreme Court of Canada.
“The families are disappointed with the result and are hopeful that we will pursue it further,” he said in an interview.
He said the scope of the Charter right of citizens to enter Canada is wider than the Federal Court of Appeal’s interpretation of it. “I think it’s an issue that should be heard and decided by the Supreme Court of Canada.”
A larger group that included six women and 13 children had asked the Federal Court to order the government to repatriate them, but Ottawa ultimately agreed to do so voluntarily.
The ruling by Justice Stratas expresses in strong terms that Justice Brown went off the rails in his ruling.
Moreover, Justice Stratas’s ruling took the exceedingly rare step of criticizing the Supreme Court of Canada itself, saying it lost its discipline, objectivity and rigour about 20 years ago, beginning around 2000.
In its powerful, even plaintive call to judges to stick to their lane, the ruling echoes a 2010 dissent by the now-retired Marc Nadon, then on the Federal Court of Appeal, in the case of Omar Khadr, a teenager being detained by the United States in its prison for suspected terrorists at Guantanamo Bay, Cuba.
In that case, too, a Federal Court judge had ordered Canada to ask the U.S. to repatriate Mr. Khadr. Mr. Nadon ridiculed that notion, and the Supreme Court ultimately declined to order Ottawa to seek his repatriation. (Justice Stratas cited that Supreme Court ruling in support of his decision, but so did Justice Brown, who said the Supreme Court affirmed it had a right to make such an order, even though it chose not to.)
Justice Stratas, who has appeared alongside Mr. Nadon at events held by the Runnymede Society, a law-student group that promotes a narrower approach to Charter interpretation than found in much of Canadian case law, took direct aim at judges who exceed their perceived authority.
Explaining that in his view the Supreme Court set down a template in 1985 for interpreting Charter rights according to their text, history and purpose, Justice Stratas said the country’s top court had adopted a “looser approach” when it struck down prostitution laws in 2013, or declared a constitutional right to strike exists in 2015, each ruling overturning long-established precedents.
The court “rejected and discredited” the looser approach in two Charter cases in the past three years, one from Quebec and one from Ontario, Justice Stratas said, and the court restored its more rigorous vision.
“Gone is inspiration from some vague feel, spirit or vibe, things that are in the eye of the beholder,” he wrote mockingly.
”The people we serve deserve to be governed by lasting legal doctrine carefully shaped and sculpted over the years by many – not by the personal diktat of whoever happens to sit in a particular judicial chair at a particular moment of time.”
Lawyers for the men had argued that international law was on their side. Justice Stratas, disagreeing, quoted himself from a 2020 ruling: “International law and foreign law are not ‘a series of tasty plates on a buffet table from which we can take whatever we like and eat whatever we please.’”
He said a right, in effect, to a government rescue would be potentially limitless: “It would cover cases ranging from the repatriation of someone detained abroad for whatever reason, including the alleged violation of foreign law in a foreign land, to the payment of ransom to foreigners holding a Canadian citizen hostage.”
Justice Stratas and Justice Webb were appointed to the appeal court by the Conservative government of Stephen Harper; Justice Monaghan was chosen by the current Liberal government.
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