The Charter of Rights and Freedoms does not obligate Ottawa to repatriate Canadians held in Syrian camps, a government lawyer told a Federal Court hearing Tuesday.
Family members of 23 detained Canadians — six women, four men and 13 children — are asking the court to order the government to arrange for their return, saying that refusing to do so violates the charter.
The Canadian citizens are among the many foreign nationals in Syrian camps run by Kurdish forces that reclaimed the war-torn region from the extremist Islamic State of Iraq and the Levant.
Federal lawyer Anne Turley told the court there is no legal obligation to facilitate their repatriation under the charter or in any statute or international law.
"In arguing that the failure to repatriate violates charter rights, the applicants are making novel arguments. To date, the courts have taken a measured and cautious approach to the extraterritorial application of the charter," Turley said.
"It made it clear that in order for the charter to apply abroad, there must be evidence of Canadian officials participating in activities of the foreign state that are contrary to Canada's international obligations or fundamental human rights norms. There is no such evidence here, or allegations of that nature."
The people involved in the court case are detained abroad by foreign entities that are operating independently of Canada's jurisdiction or control, Turley said.
Requiring the government to take action would require the court to wade into matters of Crown control over international relations and foreign affairs, she added.
A small number have returned
A handful of women and children have returned from the region in recent years, but Canada has, for the most part, not followed the path of other countries that have successfully repatriated citizens.
Even so, Global Affairs Canada recently determined that the six women and 13 children included in the court case have met a threshold under its January 2021 policy framework for providing extraordinary assistance.
As a result, Global Affairs has begun assessments under the guiding principles of the framework to determine whether to provide that assistance.
The names of the women and children have not been disclosed.
The Canadian men include Jack Letts, whose parents have publicly pushed the government to help their son. They maintain there is no evidence he became a terrorist fighter overseas.
In a filing with the court, the families of the detained Canadians argue the process by which the government has determined whether to repatriate its citizens "constitutes a breach of procedural fairness."
They say no applicant was informed of the federal policy framework put in place to determine whether to extend assistance until November 2021 — some 10 months after it was implemented and about two months after the court application began.
The family members want a declaration that the government's lack of action was unreasonable, a formal request for repatriation of the family members, issuance of emergency travel documents and authorization of a representative to facilitate their return.
Turley argued that the process is more complex than it might appear.
"It's not, as the applicants would have you see it, a simple, straightforward exercise," she said. "This is not a one-size-fits-all approach."
The government's policy framework is intended to guide decision-making regarding possible extraordinary assistance "on an individual basis," Turley said.
Officials must consider the safety and security of Canadian government officials involved in repatriation efforts as well as that of the individual detainees, she said.
In addition, the government must weigh "the threat to public safety and national security, the protection of the Canadian public," Turley added.
"The government has to assess these variables, and they are fluid. It's a point-in-time decision."