A lawyer for citizens detained in northern Syria who want to return to Canada says the federal government will continue to create obstacles and reverse decisions unless it is ordered to bring them home.
The Federal Court heard final arguments Friday in a challenge from family members of 23 Canadians held in Syria who say Ottawa is violating Charter rights by not arranging for their return.
Lawrence Greenspon, one of the lawyers representing detainees, questioned whether Global Affairs Canada could be trusted to appropriately deal with the issue in the absence of a court order to act.
"What is inevitable is that the government will continue to create obstacles ... they will continue to delay," he said. "They'll continue to create secret frameworks without notice, and then change their position at the last minute. That's what's inevitable."
The detainees are among many foreign nationals in Syrian camps run by Kurdish forces in regions reclaimed in the war-torn region from the extremist Islamic State of Iraq and Levant.
Lawyers sparred Friday over whether new evidence submitted by the applicants, including a letter from a United Nations special rapporteur, was relevant in determining if Canada breached procedural fairness when deciding whether the detainees should be repatriated.
The report includes details on how Canada's record of repatriating citizens held in the region compares to efforts by other countries.
Canada has brought four citizens home. At least seven other countries have repatriated people, including 659 from Iraq and 58 from France. Seventeen Australian nationals, 12 Germans, 40 Dutch, 38 Russians and two British have also been returned home.
Those details were submitted into evidence, but Crown lawyer Anne Turley successfully argued other details weren't relevant and should not be considered evidence.
The family members want a declaration saying the government's lack of action was unreasonable, a formal request for repatriation of the detainees, emergency travel documents issued and authorization of a Canadian representative to bring about their return.
Lawyers representing the federal government say the four men, six women and 13 children detained in Syria were told via correspondence in November 2021 why they did not meet the threshold of a Global Affairs Canada policy framework for receiving extraordinary assistance.
The Crown lawyers began closing arguments by saying the applicants are asking the court to make a ruling on procedural fairness with respect to a policy framework, rather than decisions in individual detainee cases.
"The individual decisions made in November of 2021 are not the subject of this judicial review, they are not challenged," said Crown lawyer Helene Robertson. "What is before you is quite simply the question of procedural fairness in the policy itself."
The Crown says federal legislators do not have a duty of procedural fairness when simply creating policy, and the court must give deference to policy decisions made by legislators.
Despite the 2021 decisions, Global Affairs recently determined that the six women and 13 children included in the court case have now met a threshold under the policy framework for providing assistance.
As a result, Global Affairs has begun assessments under the guiding principles of the framework to determine whether to provide that assistance.
Crown lawyers argue Global Affairs should be able to proceed with the assessments, but Greenspon pointed to the track record of the federal government on the file thus far and questioned whether it could be trusted to appropriately repatriate the detainees.
"Yes, it's complicated. And yes, it's difficult. And yes, it's challenging. And yes, there are logistical (challenges). But what we're talking about here is the life and liberty of 23 Canadian men, women and children," he said.
"There is no reason why these constitutional violations need to continue. Canada has the consent (to bring citizens home). They have the ability. They've done it already without incident."
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.
The proceedings Friday marked the end of three days of public hearings. A closed-door hearing involving information the government considers sensitive is slated for next week, and Justice Henry Brown is expected to make a ruling in the case some time after that.
This report by The Canadian Press was first published Jan. 6, 2022.
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