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David Stratas is a clear believer in the idea that you can’t heal a wound without giving it some air.
Justice Stratas, a Federal Court of Appeal judge, was the author of a decision released this week, in which four Canadians suspected of being ISIS volunteers, and who are now detained in northern Syria, demanded that the federal government facilitate their repatriation.
Not only did the judge dismiss the argument summarily, he also took aim at two decades of judicial activism and “loose” interpretation of the Charter.
The decision was endorsed by Federal Court of Appeal justices Wyman Webb and K.A. Siobhan Monaghan, but it is clearly Justice Stratas’ misgivings on the top court’s recent trajectory that informs it.
The background is that four unidentified Canadians who are being held in Kurdish-controlled territory in northeastern Syria in “abysmal” conditions sought redress in the courts. Federal Court judge Henry Brown adopted a sympathetic view and ordered the federal government to take positive steps to repatriate the men, based on Section 6 of the Charter of Rights and Freedoms that establishes the right of Canadian citizens “to enter Canada.”
Justice Stratas’s response was blunt, if not scathing. He pointed out that the government of Canada warned citizens not to enter Syria, pointing out that if they did, the government would not be able to help them.
The men now being detained ignored those warnings and made their way to the war zone where, in Stratas’s words, “they did whatever they did.”
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The Kurds have been encouraging foreign states to repatriate their nationals, and Canada has done so on previous occasions. But, as Stratas described in his judgment, it is a complicated process that means government officials need to travel through dangerous territory where their safety cannot be guaranteed.
The judge was critical of the Federal Court decision. “It took the right of Canadian citizens to enter Canada and transformed that into a right of Canadian citizens, wherever they might be, regardless of their conduct abroad, to return to Canada or have their government take steps to rescue them,” he wrote.
He concluded that a right to enter Canada is not a right to be returned to Canada. “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.”
The appellate court’s ruling now means the families of the detainees are left with the option of appealing to the Supreme Court.
But Stratas’s ruling is as important for the argument that supported it as for the decision itself.
He said to reach his conclusion, he had to examine the historic interpretation of the Charter.
He referenced the Supreme Court’s own ruling that said interpretation should be “generous, rather than legalistic” but, at the same time, it should not “overshoot” the actual right or freedom in question.
He said that, since the turn of the century, the Supreme Court has been toying with a “looser” approach, reflecting a “much broader underlying feeling, spirit or vibe.”
The looser approach resulted in “doctrinal inconsistency,” at odds with the separation of powers between the judiciary and other branches of government.
The apogee of judicial activism was probably the early years of the Harper government’s majority, when the top court made a number of decisions, including striking down three prostitution-related laws.
I recall talking to senior Harper ministers who felt the unelected courts were overreaching, with the top court viewing itself as the unofficial opposition while being immune to criticism.
When the then chief justice Beverley McLachlin hit back at allegations that she was lobbying against Harper’s appointment of Quebec justice Marc Nadon to the top court (she and her fellow justices ultimately quashed Nadon’s appointment), an unprecedented and rather undignified war of words erupted between the executive and the judiciary.
Justice Stratas’s ruling made clear where his sympathies lay. He said the Supreme Court’s looser approach is now discredited, in favour of narrower “doctrinal stability” that keeps the judiciary in a “predictable, appropriate lane.”
As evidence, he pointed to a Supreme Court decision in 2020 where a Quebec corporation that was found guilty of construction work without holding a licence was hit by a mandatory minimum fine. The corporation challenged the constitutionality of the fine, claiming it offended its right to be protected against cruel and unusual punishment under Section 12 of the Charter. The Quebec Court of Appeal agreed but the top court struck down the ruling, saying protection under Section 12 is limited to human beings only.
I have considerable sympathy with the Federal Court of Appeal’s decision this week — both in the substantive case, and the logic behind it. A narrower, more legalistic approach by the courts was absolutely required after a number of decisions that appeared overtly political in the Harper years.
What I would question is whether it is a good idea in the current climate for the judiciary to air its dirty laundry in public.
A Léger poll for National Post this week revealed the disrepute into which many of our institutions have fallen. Elections Canada was the most highly regarded among those polled, and even then, nearly one in three Canadians said they don’t trust it to run fair elections. (Respondents weren’t asked specifically about the Supreme Court, perhaps mercifully.)
If the court has indeed “rejected and discredited” the looser approach and restored a more rigorous vision, let’s praise it, rather than bury it.