It’s time to go back to basics when discussing the issue of the Canadians currently imprisoned in Syria. This issue can be approached in several different ways. But it can’t be ignored. Canadians may not like where this case is headed, but the end game is predictable.
The story of these Canadians is a sorry, controversial one. A few years ago, some 40 or so Canadians were imprisoned in Syria because of their decisions to support an indefensible, radical Islamic cause. It’s easy enough to say this group of Canadians got what they deserved. But the international community is now trying to mop up a mess involving thousands of foreign nationals in Syria. It’s asking Canada to resolve the murky remnants of the Canadian problem. Perhaps as many as nine adults, and up to 13 children, are believed to be imprisoned in Syria, in harsh conditions. Some who return to Canada will (and should) face prosecution for having travelled abroad in support of a terrorist cause.
Why should Canada repatriate Canadians, some of whom are likely to end up in prison? The answer is as simple as it is unpopular: because all Canadians have a right to return to Canada. If we give the Government of Canada arbitrary power to decide whether or how or when that right can be exercised, we’re headed down a dangerous path. Consular service should be delivered dispassionately to all Canadians – not left to the arbitrary whims of our security agencies.
Unfortunately, Court judgments to date have only paved the way for additional court action. An initial decision by the Federal Court of Canada in January 2023 ordered Global Affairs Canada (GAC) to take action to “repatriate” the four Canadians. Had the Court focused only on the Charter right of Canadians to “enter” Canada, it might have come to a more modest but sensible conclusion. Instead, it over-reached, giving grounds for the Federal Court of Appeal (FCA) to shred the Federal Court’s decision in May 2023, accusing the Federal Court of trying to “secure judicial recognition of a new Charter right for Canadians in the area of consular affairs” and declaring that “Canada is not constitutionally obligated or otherwise obligated at law to repatriate the respondents.” The legal battle will continue because the core principle affecting the remaining Canadians in Syria has yet to be addressed, and the government has shown little disposition to act.
Why should Canada repatriate Canadians, some of whom are likely to end up in prison? The answer is as simple as it is unpopular: because all Canadians have a right to return to Canada.
The real problem in this case, which the two courts should have exposed, is the performance of Canadian security agencies. CSIS and the RCMP don’t want these Canadians in Canada, and they’ve convinced the federal government to erect artificial (and illegal) barriers blocking their return. In addition to ensuring that GAC is prevented from offering consular assistance, they’ve imposed two new layers of bureaucratic maze: a notional “security report” on the Canadians; and a new “Policy Framework to Evaluate the Provision of Extraordinary Measures to Assist Canadians detained in North-Eastern Syria.”
Both items are needless exercises in obfuscation and delay. The purpose of the security report, as the Federal Court seems to have discerned, is to provide bureaucratic cover for continuing inaction, with the intention of leaving most of these Canadians to their own devices.
The courts should have done better. If the FCA had focussed on the mobility rights of S. 6(1) of the Charter, including the right to enter Canada, it might have found the key Canadian issue behind this case, namely, the need for Canadians to have travel documents, without unreasonable hindrances, if these documents are required to return to Canada. Without a deep dive into the Syrian situation, it might also have discovered that some barriers to the release of the Canadians are resolvable.
The resolution of this awkward mess will likely require two steps. The first step is for non-governmental groups (like the Canadian group recently on the ground in Syria) to negotiate the release of some, or all of, the remaining Canadians, seeking their temporary relocation to a city from which they can travel to Canada. Canadian government assistance is unnecessary if the local de facto authority and the international organizations with influence in this area want these detained people out of the region. The costs of this operation will have to be borne by the families and interested support groups.
The second step is securing documents to return to Canada, like emergency passports. As this is an essential step enabling their return to Canada, it’s bound to go to Court once again, thanks to a bureaucratic process in Ottawa (led by the PMO and PCO) that has placed domestic security agencies in charge of consular service. On this central point – the provision of documents essential for travel back to Canada – there is abundant legal precedent based on the previous misconduct of Canadian security agencies.
Many things prevent the Canadian government from solving most of these cases quickly: the negative views of most Canadians; the opposition of provincial authorities, who will have to deal with these people on arrival; and Canadian security agencies like CSIS (who will have to watch some of these Canadians) and the RCMP (who will have to prepare cases against some of the men).
But there is an upside to the prospect of another court case. Focusing the Court action only on the issuance of travel documents and the right to enter Canada means the results are a foregone conclusion. And a future Court judgment that orders the Canadian government to act on this issue provides an irrefutable reason for the government to close the case. It will have no choice.
Eventually, these cases will end. A principled government would allow Global Affairs Canada to discharge its duties dispassionately. But that’s unlikely to happen when the government has other things on its mind. Once again, the Courts will save Canadians from governments that have had time to do everything with this case except the right thing.
