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PUIL - Justiciability. Canada v. Boloh 1(a)
In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal considered an issue of 'justiciability', here in the context of international relations:[65] In deciding cases, judges are restricted to the evidence supplied by self-interested parties and have a deep knowledge of law but little else at their disposal. In the sort of ever-evolving, sensitive and complex context we have here, are judges well placed to easily substitute their opinion for that of the Government of Canada, given the foreign information and intelligence, knowledge, and experience and expertise in foreign relations and international affairs it has? Of course not.
[66] Courts must appropriately defer to the executive when it acts on matters quintessentially and uniquely within its ken: Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin. L.R. (6th) 11 at para. 25; CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101 at para. 49; Re:Sound v. Canadian Association of Broadcasters, 2017 FCA 138, 148 C.P.R. (4th) 91 at para. 49; Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58, 422 D.L.R. (4th) 112 at para. 100; Hupacasath First Nation at paras. 66-67, citing numerous cases from the Supreme Court. Sensitive issues of foreign relations and international affairs are just such a matter: Portnov v. Canada (Attorney General), 2021 FCA 171, 461 D.L.R. (4th) 130 at para. 44; Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, 7 D.L.R. (4th) 95 at 522-523 S.C.R.; Spencer v. The Queen, 1985 CanLII 4 (SCC), [1985] 2 S.C.R. 278, 21 D.L.R. (4th) 756; Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, 84 D.L.R. (4th) 438; Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481.
[67] The Government of Canada correctly submits that the Federal Court accorded insufficient deference in this case:The Court directed Canada to undertake what can only be understood as diplomatic negotiations with [the Autonomous Administration of North and East Syria], a foreign non-state actor, and to travel to a foreign territory, without the relevant foreign State’s consent as normally required, to effect the repatriation of the detained Respondents as soon as possible after [the Autonomous Administration of North and East Syria] agrees to release them. This decision leaves the Government little flexibility or control over important matters of high policy. (Government of Canada’s memorandum of fact and law at para. 82.) In the words of the Supreme Court in Khadr (2010) (at para. 39), the Federal Court gave "“too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests”".
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