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Injunctions - Mandamus. Canada v. Boloh 1(a)
In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal considered declarations, in contrast with mandamus injunctions, as a Charter remedy:[58] For the benefit of future cases, the remedy granted by the Federal Court deserves comment. Here too, the Federal Court erred in law.
[59] The Federal Court said it was granting declarations. The relevant portions of its judgment are as follows:2. It is hereby declared that the Applicants are entitled as soon as reasonably possible to the Respondents making formal requests to [the Autonomous Administration of North and East Syria] that [the Autonomous Administration of North and East Syria] allow the voluntary repatriation of the Canadian men held in the prisons run by [the Autonomous Administration of North and East Syria’s] military wing the [Syrian Democratic Forces].
3. It is hereby declared that the Applicants are entitled to be provided by the Respondents with passports or emergency travel documents as soon as they are required after [the Autonomous Administration of North and East Syria] agrees to allow the Applicants to be repatriated to Canada.
4. It is hereby declared that the Applicants are entitled [to] appointment by the Respondents of a representative(s) or delegates(s) to attend within [the Autonomous Administration of North and East Syria] controlled territory or as otherwise agreed as soon as possible after [the Autonomous Administration of North and East Syria] agrees to hand over the Applicants for the repatriation to Canada. [60] Declarations are supposed to be declarations of rights held by those seeking them. But, in reality, what the Federal Court awarded were not declarations. They were disguised mandatory orders or disguised mandamus remedies against the Government of Canada.
[61] The established legal prerequisites for administrative law remedies cannot be avoided simply by applying a different label to the remedy, such as "“declaration”": Schmidt at paras. 21-22; Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737. Instead, the court must determine the essential character and real essence of the remedy being sought: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50. Once that is done, the court must first identify the legal prerequisites for it. Only then can it decide whether it is able to grant the remedy and, if so, whether it should.
[62] The essential character and real essence of the remedy the Federal Court awarded was the imposition of mandatory obligations upon the Government of Canada, something akin to mandamus. The Federal Court said that the Government of Canada "“must make a formal request”" for the repatriation of the respondents (at para. 155), must provide appropriate travel documents to the respondents (at para. 145) and "“must appoint”" a delegate or a Government of Canada official to travel to Syria to deal with the handover of the respondents (at para. 161). These matters had to be done "“as soon as reasonably possible”" (at para. 160), meaning forthwith.
[63] However, mandatory obligations or mandamus cannot be imposed without first determining whether their exacting legal prerequisites are met: for a statement of these prerequisites, see, e.g., Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93 at para. 14, citing, among other authorities, Apotex v. Canada (Attorney General), 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100, 29 Admin LR (2d) 1, aff’g 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742, 18 Admin LR (2d) 122 (C.A.) at 767-768 F.C. Here, the prerequisites were not met.
[64] Further, in granting mandatory remedies in this area, courts must proceed with caution. The Government of Canada is entitled to consider possible dangers and other considerations such as foreign relations, international affairs and national security, and their judgments on such matters deserve a wide margin of appreciation and deference: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at para. 56; Khadr (2010) at para. 37.
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[68] To the extent that the Court’s declaratory remedy was not just a mandamus order but was intended to be made under subsection 24(1) of the Charter as an "“appropriate and just”" remedy, many of the same considerations apply. For example, remedies under subsection 24(1) of the Charter must be granted with due respect for the proper roles of the judiciary and the executive, and the legal and practical limits of the judicial role: Doucet-Boudreau at paras 56-57.
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