Boloh 1(A) v. Canada

Boloh 1(A) v. Canada
Court (s) Database
Federal Court Decisions
Date
2023-01-20
Neutral citation
2023 FC 98
File numbers
T-1483-21
Notes
A correction was made on January 26, 2023
Decision Content
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 21st 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:
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.
BOLOH 1a has a brother (31-years-old), who is currently at Derik Prison. The status of this individual is not known. Discontinued.
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.
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 of the threshold criteria in the Policy Framework as of November 24, 2022. Discontinued January 19, 2023 except for male. Presumably in prison.
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.
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. Discontinued January 19, 2023.
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.
BOLOH 12 has a brother in Qamishli prison (42-years-old). In common with all Canadian men in AANES prisons in this Application, BOLOH 12 while subject to the Policy Framework, was not advised he met its threshold criteria. Presumably in prison.
BOLOH 13 includes Jack Letts imprisoned in one of the AANES prisons. In common with all Canadian men in AANES prisons in this Application, BOLOH 12 while subject to the Policy Framework, was not advised he met its threshold criteria. Letts is represented by Barbara Jackman. All other Applicants are represented by Lawrence Greenspon. Presumably in prison.
BOLOH 14 is Kimberly Polman. On October 25, 2022, Officials of GAC travelled to north-eastern Syria to assist in her repatriation to Canada. At the same time GAC assisted in the repatriation of another Canadian woman and her two children. 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. A terrorism peace bond application has been initiated under section 810.001 of the Criminal Code of Canada in relation to Ms. Polman. The other woman has been charged with terrorism-related offences under sections 813.18(1), 83.181, 83.03 and 465(1)(c) of the Criminal Code of Canada. Discontinued January 19, 2023.
BOLOH 15 has 3 family members in Camp Roj, a sister (31-years-old), and two nephews (6-years-old, and 4-years-old). BOLOH 15 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 interlocutor between 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 their women 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 repatriation of Canadians.
[40] Ms. West I should say served with the Canadian Armed Forces, travelled to, interviewed and or participated in interviews of various actors in this matter in Syria and northeastern Syria, in 2019 and who both studies and teaches in relation to this region. Some years ago she served as a Clerk to Justice Mosley of this Court. Given these factors I generally accept her first hand evidence. Where Ms. West’s evidence is based on hearsay whether directly given to her or based on what she obviously considers credible media accounts, I also generally accept her testimony on the principled exception bases of necessity and reliability (R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915). There are certainly difficulties in obtaining information on the regional situation given its unstable nature meeting the test of necessity. I recognize the potential for bias and misreporting in media reports regardless of source or platform. That said, given the consistency of the evidence across various reports relied upon by Ms. West I accept it as reliable.
[41] Indeed, and buttressing the credibility of Ms. West’s testimony, the Respondent agrees that AANES is on record as wanting countries such as Canada to repatriate their nationals from the detention camps under its control. Ms. West reports in this regard that AANES requires only a formal request from the Canadian government is required, and the presence of a Canadian official or delegate at the 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 their nationals. This includes the United States, which has also acted as an intermediary to assist in the repatriation of foreign nationals of other countries.
[43] The Respondent is in material agreement with the foregoing. The Respondents’ evidence is that since 2018, AANES has advised GAC officials that in order to release a Canadian citizen in their custody, it requires a Canadian government delegation to visit its de facto 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 delegation would have to follow AANES protocols for release, which consist of at least one face-to-face meeting and the signing of a handover document 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:
Please confirm that GAC will provide a passport or equivalent once an itinerary is confirmed.
Please confirm that GAC will make an immediate request for the repatriation of these persons.
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 Framework 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 to waive any rights they might have in relation to the Respondents’ request that the Court hear and consider a request to file new evidence at a secret hearing, i.e., a hearing that would proceed in camera and ex parte under section 38 of the Canada Evidence Act. The section 38 hearing while it would not include counsel for the Applicants, would include counsel for the Respondents together with an experienced 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 previous evidence, and did so over the objections of the Applicants who they were (legitimately in my view) concerned the Respondents’ request would cause further delay to the prejudice of the individual women, children and male Applicants detained and or imprisoned in northeastern Syria. I granted the motion in the interests of procedural fairness. I was not persuaded the Respondents’ information was irrelevant.
[71] Matters were thereafter kept on a lengthened but tight timeline. The Chief Justice granted a one-month adjournment of the public hearings 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 Justice Simon Noël in Brar et al. v Canada (Public Safety and Emergency Preparedness), 2020 FC 729 in a matter under the Secure Air Travel Act, S.C. 2015, c. 20, s. 11 [“SATA”]. I did so because both neither the statutory regime under SATA nor the proceedings in the case at bar had specific provision for the appointment of the equivalents to “special advocates” provided in the Immigration 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 confidential material 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 submissions as 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 confidential material 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 public hearings were not complete. Therefore an additional half-day public hearing was schedule for January 6, 2023. That hearing took place albeit 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 amicus curiae Mr. van Ert representing the interest of the Applicants, concerning the confidential material admitted under section 38 of the Canada 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 extend extraordinary assistance to Canadian citizens, or to those with a claim to Canadian citizenship, detained in northeastern Syria. Pursuant to the 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 c