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Citizenship - Duty to Repatriate. Canada v. Boloh 1(a)
In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal extensively considered Charter s.6 ['mobility rights'], over whether the federal government has a duty to repatriate citizens when they get in trouble (they don't):[11] In these circumstances, the respondents say that, as a matter of law and the Charter of Rights and Freedoms, the Government of Canada must take positive steps to cause them to be returned to Canada from this dangerous, unstable war zone. The primary basis for this is subsection 6(1) of the Charter: the right of Canadian citizens "“to enter ... Canada”".
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(b) Applying the proper interpretive approach: subsection 6(1) of the Charter and specific jurisprudence
[30] The interpretation of subsection 6(1) of the Charter offered by the respondents requires the Government of Canada to take positive, even risky action, including action abroad, to facilitate the respondents’ right to enter Canada. In the context of this case, this transforms the right "“to enter…Canada”" into a right to be returned to Canada.
[31] This smacks of the looser approach of interpreting Charter provisions, now discredited and rejected. In this case, the respondents acknowledge the existence of the text of subsection 6(1), but then pluck broad words about its underlying purposes from certain isolated paragraphs in certain Supreme Court cases, ignoring the Supreme Court’s more specific observations and conclusions in those cases, and ignoring the specific text of the subsection 6(1) right. In the end, all that is left are the broad words ripped from their context and presented in the abstract. The result? Subsection 6(1) of the Charter is given a meaning that overshoots its proper scope.
[32] We must reject that approach. Instead, we must apply the Big M approach. Under the Big M approach, we keep front of mind the words of the Charter guarantee—the essential guardrails and signposts guiding our way and keeping us on track—while we examine, among other things, the purposes of the Charter and the purposes of the subsection 6(1) guarantee itself.
[33] The text of subsection 6(1) of the Charter is as follows: "“[e]very citizen of Canada has the right to enter, remain in and leave Canada”". In this case, the key words are "“right to enter…Canada”". The words appear to be carefully chosen, specific and clear: self-evidently, a right to enter Canada is not a right to be returned to Canada.
[34] Following the Big M approach, we must look at the historical context, the larger objects of the Charter, the meaning and purpose of any associated Charter rights, and the purpose of the particular guarantee.
[35] In the case of subsection 6(1) of the Charter, the Supreme Court has done this work for us: United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, 48 C.C.C. (3d) 193; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157. The Supreme Court’s words in these cases bind us. To the extent the Supreme Court has not yet spoken on an issue, our own jurisprudence binds us as well: R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521; Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149; Hon. Malcolm Rowe and Leanna Katz, "“A Practical Guide to Stare Decisis”", (2020), Windsor Rev. Legal Soc. Issues 1. Both the Supreme Court and the Federal Courts have developed their jurisprudence under subsection 6(1) following the accepted approach in Big M.
[36] In Cotroni, the Supreme Court analyzed the text of subsection 6(1) in light of the wider Big M considerations set out above. From that analysis, it concluded (at 1482) that the "“central thrust”" of subsection 6(1) is "“against exile and banishment, the purpose of which is the exclusion of membership in the national community”". This implies that subsection 6(1) is aimed at state action that removes people from Canada or prevents their return, or both. The Supreme Court’s analysis in Cotroni offers no encouragement for the idea that subsection 6(1) includes a right to be returned to Canada.
[37] Indeed, Cotroni found (at 1481) that extradition—the sending of a person already present in Canada to a foreign nation to face justice there—was only at the "“outer edges of the core values sought to be protected”" by subsection 6(1). What about an obligation on the Government of Canada to take positive actions, some of which expose its officials to personal danger, in order to bring back to Canada a person detained in a territory controlled by a non-state entity? Surely that falls outside the "“outer edges”" of subsection 6(1).
[38] In Divito, the Supreme Court further interpreted subsection 6(1) of the Charter and its right to enter Canada. It held that article 12 of the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 lay behind section 6 of the Charter and was essential to its interpretation.
[39] The Supreme Court noted that article 12(4) provides that "“[n]o one shall be arbitrarily deprived of the right to enter his own country”". In analyzing subsection 6(1), the majority of the Supreme Court found that few if any limitations on the right to enter would be considered reasonable. It found this interpretation bolstered by certain contextual factors. For example, section 6(1) is unqualified. This is unlike subsection 6(2), which is qualified by subsections 6(3) and 6(4). Further, subsection 6(1) is not subject to the override provision in section 33. See Divito at para. 28, citing Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519 at para. 11.
[40] But, importantly for present purposes, the Supreme Court limited subsection 6(1) of the Charter to a right to enter Canada, nothing more. The Supreme Court did not extend subsection 6(1) to include a right of Canadian citizens to have the Government of Canada return them to Canada.
[41] In particular, in Divito (at paras. 45 and 48), the Supreme Court held that an inmate in a prison in the United States could not rely on subsection 6(1) of the Charter to force the Government of Canada to take steps to return him to a prison in Canada. The inmate’s right to return to Canada was governed only by an international treaty and domestic implementing legislation. The Supreme Court emphasized that the ability of a Canadian citizen to leave a foreign territory is governed by the authority and power of the foreign state or entity with control over that territory: Divito at paras. 40 and 48.
[42] In its wording and in the concepts it deployed, the Supreme Court in Divito was consistent with Cotroni. Indeed, the best reading of Divito is that the Supreme Court embraced what it said earlier in Cotroni, telling us again what subsection 6(1) of the Charter is about and, importantly for the case at bar, what subsection 6(1) of the Charter is not about.
[43] The Supreme Court’s holdings in Divito and Controni bind us. And they make sense. For one thing, the Charter governs matters within the control of governments in Canada: Charter, section 32. Reading subsection 6(1) of the Charter as including an enforceable constitutional obligation on the Government of Canada to take steps in other countries to rescue and repatriate citizens in trouble, where they alone are responsible for their trouble, greatly overshoots the mark. As the Government of Canada puts it:The right to enter set out in s. 6(1) has a clear link to matters under the exclusive jurisdiction of Canada: namely control over who comes into the country by passing through the border. In contrast, the process of returning to Canada from abroad is inherently transnational and multi-jurisdictional. Returning to Canada, especially for citizens detained abroad, is a multi-step process including matters outside of Canada’s territory, jurisdiction and control.
(Government of Canada’s memorandum of fact and law at para. 31.) [44] Can the Government of Canada voluntarily try, through diplomacy or other means, to help a citizen in distress abroad? Of course it can. But, as a matter of constitutional law, does it have to? Of course not. Subsection 6(1) of the Charter, the right to enter, remain in and leave Canada, is not a golden ticket for Canadian citizens abroad to force their government to take steps—even risky, dangerous steps—so they can escape the consequences of their actions.
[45] The respondents submit that two authorities in the Federal Courts system support their position: Kamel v. Canada (Attorney General), 2009 FCA 21, [2009] 4 F.C.R. 449; Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267.
[46] Kamel and Abdelrazik do not help the respondents. They address a failure by the Government of Canada to issue a travel document without reasonable justification—a relatively easy, administrative step required by law and entirely within the control of Canada, the only step preventing entry into Canada.
[47] These authorities do not stand for the broader proposition that, as this Court put it in Kamel in summarizing a party’s submission (at para. 17), the Government of Canada must act "“to guarantee entry to or exit from another country”". Indeed, in Abdelrazik, the Federal Court expressly rejected the submission that Canada’s failure to take extraordinary measures to repatriate a citizen, such as arranging for a military jet to take the citizen home, infringed the citizen’s rights under subsection 6(1) of the Charter.
[48] The respondents also submit that international law supports their position. It does not. As mentioned in paragraphs 38-39 above, subsection 6(1) of the Charter is modelled upon article 12(4) of the International Covenant on Civil and Political Rights. Article 12(4) provides that "“[n]o one shall be arbitrarily deprived of the right to enter his own country”". Textually, this provision does not give people the right to be returned to their country of citizenship. And case law under article 12(4) confirms the interpretation the Supreme Court has adopted in Cotroni and Divito concerning subsection 6(1) of the Charter: Case of H.F. and Others v. France, Application Nos. 24384/19 and 44234/20, Decision of the Grand Chamber of the European Court of Human Rights (14 September 2022), especially at paras. 201, 250-252, 259, 261 and 272-276; see also C.B. v. Germany (no. 22012/93, Commission decision of 11 January 1994, unreported). H.F. tells us that article 12(4) prohibits state actions that arbitrarily prevent citizens from entering their country of citizenship and does not extend to a right to be returned to their country of citizenship. The parties have not placed before this Court any international authorities that conflict with H.F., nor has this Court found any.
[49] The Federal Court relied on a letter from the UN Special Rapporteur as support for its imposition of positive obligations upon the Government of Canada under subsection 6(1) of the Charter. The letter does support the Federal Court’s view. But, as we have seen, H.F., a decision of the European Court of Human Rights, says the opposite, in highly detailed, persuasive reasoning.
[50] Different international authorities are of different value, and, in particular, international court decisions in adjudicative contexts, such as H.F., deserve far more weight than the non-adjudicative individual opinions of other international actors, such as the letter from the UN Special Rapporteur relied upon by the Federal Court: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176 at paras. 142-144, 147-148. International law is not a box of chocolates from which one can take what one wants, leaving the rest in the box. Instead, international law is a specialized field calling for discipline, intellectual rigour and careful judgment when applying it to domestic issues: Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, 471 D.L.R. (4th) 391 at paras. 43-48, largely affirming Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2021] 1 F.C.R. 374 at paras. 76-92.
[51] The Federal Court did not cite the decision of the European Court of Human Rights in H.F., above. But H.F. is relevant. It concerns article 12(4) of the International Covenant on Civil and Political Rights, which was very much the inspiration behind subsection 6(1) of the Charter. It rejects the existence of a right to be returned from abroad to one’s country of citizenship. It strongly confirms the interpretation of subsection 6(1) of the Charter reached by the Supreme Court in Cotroni and Divito.
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[80] As mentioned, these reasons stand for the proposition that the Government of Canada is not constitutionally obligated or otherwise obligated at law to repatriate the respondents. However, these reasons should not be taken to discourage the Government of Canada from making efforts on its own to bring about that result.
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