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Charter - Mobility Rights (s.6). United States v. Jones
In United States v. Jones (Ont CA, 2023) the Court of Appeal considered a JR against "the Minister of Justice’s order of surrender under the Extradition Act". In these quotes the court assesses this extradition in light of Charter s.6 'mobility rights':(3) The applicant’s s. 6 rights were not unjustifiably violated
[43] The applicant’s third ground for the judicial review relates to the violation of his s. 6 rights. In particular, the right of Canadian citizens to remain in Canada under s. 6(1) of the Charter, which provides: “[e]very citizen of Canada has the right to enter, remain in and leave Canada.”
[44] In United States v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469, the Supreme Court determined that extradition is a prima facie limitation on the right to remain in Canada. However, the court also observed that extradition will be generally warranted under s. 1 of the Charter as a reasonable limitation of the right to remain in Canada, given the pressing and substantial objectives of extradition: “(1) protecting the public against crime through its investigation; (2) bringing fugitives to justice for the proper determination of their criminal liability; (3) ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law”: Akinbobola, at para. 9, citing Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 10.
[45] In this application, the Minister concluded that certain factors “weigh[ed] significantly” in favour of surrender, namely that the U.S. has a greater interest in prosecuting the applicant; the minor victim alleged to be exploited over an extended period of time resides in the U.S.; the impact of the applicant’s alleged conduct was felt most strongly in the U.S.; the U.S. has a more comprehensive case pertaining to the applicant’s alleged conduct, and the investigation involving Victim 4 has been undertaken primarily by the Federal Bureau of Investigation; in addition to Victim 4, the victim’s mother and key civilian witnesses all reside in the U.S.; and the one Canadian police officer whose testimony may form part of the U.S. prosecution has given evidence already in possession of the U.S. authorities. The Minister also confirmed that no Canadian prosecutorial agency has expressed interest in prosecuting the conduct for which extradition is sought.
[46] With respect to the applicant’s undertaking to plead guilty if charged for criminal conduct in relation to Victim 4 in Canada, the Minister responded that, “[i]t is my view that Mr. Jones’ request to plead guilty in Canada should be denied. Canada’s commitment to fighting crime involves not only prosecuting alleged perpetrators in Canada, but also ensuring Canada does not become a safe haven for those, including Canadians, who victimize persons abroad from within Canada.” The Minister emphasized the importance of this point in the context of internet-based criminal conduct.
[47] The Minister concluded that, in all of the circumstances of the case, it would not be an unjustifiable breach of the applicant’s s. 6 Charter rights to surrender him to face prosecution in the U.S.
[48] According to the applicant, in his s. 6 analysis, the Minister made numerous legal errors: he created a false dichotomy between surrender and the applicant walking free; applied the wrong test to considering sentencing disparity; failed to respond to an important aspect of the applicant’s submissions; and dismissed the applicant’s undertaking to plead guilty for erroneous and/or unfair reasons.
[49] The Minister concluded that surrender did not constitute an unjustifiable breach of s. 6 because it would not shock the conscience of Canadians. The applicant takes issue with the reference to the threshold for a s. 7 violation as part of the s. 6 Cotroni analysis. The applicant argues that the Cotroni analysis is concerned with whether domestic prosecution would be an equally effective or desirable outcome as extradition, not with whether surrender would shock the conscience of Canadians, nor whether surrender would be unjust or oppressive. By conflating the tests to consider sentencing disparity under s. 7 of the Charter and s. 44(1)(a) of the Extradition Act, the Minister erred in dismissing sentencing disparity as a consideration under s. 6 altogether.
[50] The applicant also argues that the Minister erred in failing to accept his undertaking to plead guilty to a Canadian prosecution of criminal conduct in relation to Victim 4, which would best serve the public interest considerations of costs, delays, and inconvenience to witnesses (particularly considering the lack of incentive to plead guilty in the U.S., given the likely sentence).
[51] Again, I am not persuaded by these arguments.
[52] As stated above, the Supreme Court has confirmed that the prima facie infringement of s. 6 that extradition entails can generally be justified under s. 1. The determination of whether it is justified requires the Minister to weigh the factors favouring domestic prosecution against the interest of the requesting state in prosecuting. This means that the Minister’s assessment rests largely on his political decision of whether Canada should defer to the interests of the requesting state: see Lake, at paras. 30, 37.
[53] It was open to the Minister to conclude that, short of a situation where surrender was unjust or oppressive or shocked the conscience of Canadians, the surrender did not constitute an unjustifiable breach of s. 6. This conclusion, in the circumstances of this case, was not unreasonable. Similarly, the Minister’s rejection of the applicant’s undertaking to plead guilty to the child luring charge in relation to Victim 4, if a prosecution was initiated in Canada, also was reasonable, especially where no Canadian agency had expressed any interest in such a prosecution. The applicant also could point to no other case where the rejection of such an undertaking was found to be unreasonable.
[54] In summary, the Minister thoroughly considered the applicant’s s. 6 submissions, consulted with his own officials, as well as the Ministry of the Attorney General of Ontario, to discuss prosecuting the applicant in Canada, considered the evidence before him, and made inquiries to the U.S. Department of Justice about the treatment of this case. The Minister reviewed the applicable law, balanced the relevant factors, and came to the conclusion that extradition would not constitute an unjustified violation of s. 6(1) of the Charter. . 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. . Canada v. Boloh 1(a)
In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal considers the Charter s.6 ['mobility rights'] right to re-enter Canada, here in a case where the applicants sought a positive governmental duty to re-patriate them:[69] Finally, this Court called for supplementary written submissions on the issue whether the Government of Canada might have a positive obligation to take steps to facilitate the respondents’ subsection 6(1) rights to enter Canada, following the framework supplied in cases such as Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673 and Toronto (City), above. The Court has received the parties’ supplementary submissions and has read and considered them.
[70] Given the interpretation of subsection 6(1) of the Charter, set out above, imposing a positive obligation on the Government of Canada would rewrite the text of subsection 6(1) and extend it beyond its proper scope. Subsection 6(1), properly interpreted, gives Canadian citizens a right to enter, remain in and leave Canada, nothing more. Imposing a positive obligation would transform subsection 6(1) from its genuine meaning—just a right to enter Canada—into a sweeping right of Canadian citizens to have the Government of Canada take all necessary steps to return them to Canada. Such a right would have potentially limitless scope. It would cover cases ranging from the repatriation of someone detained abroad for whatever reason, including the alleged violation of foreign law in a foreign land, to the payment of ransom to foreigners holding a Canadian citizen hostage. A right of that scope could potentially collide with international law understandings of state sovereignty.
[71] For good measure, the reasoning in subsection 6(1) cases such as Cotroni, Divito, Kamel and Abdelrazik, above, precludes imposing positive obligations on government to facilitate the right to enter Canada. The only recognized circumstance is the issuance of a passport or travel document in Kamel and Abdelrazik, the failure of which was taken to be government action preventing the right to enter Canada.
[72] Finally, courts normally impose positive obligations on government to assist in the exercise of a right or freedom where government itself is responsible for the inability to exercise a fundamental freedom: Dunmore, above; Baier, above at paras. 29-30; Toronto (City), above at para. 23; Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815 at para. 37. In this case, the Government of Canada is not responsible for the respondents’ inability to enter Canada: here, the responsibility lies with the Autonomous Administration of North and East Syria, the Syrian Democratic Forces, the respondents themselves who entered Syria against the Government of Canada’s advice, or any combination of them.
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