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T-745-20 Notice of Application
T-745-20 Notice of Application
: T-745-20
FEDERAL COURT
B E T W E E N:
Applicants
and
HER MAJESTY THE QUEEN AND THE MINISTER OF FOREIGN AFFAIRS AND
INTERNATIONAL TRADE
Respondents
NOTICE OF APPLICATION
Pursuant to section 18 and 18.1 of the Federal Courts Act
____________________________________________________________________________________
TO THE RESPONDENTS:
A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the
applicant appears on the following page.
THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial
Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by
the applicant. The applicant requests that this application be heard at (place where Federal Court
of Appeal (or Federal Court) ordinarily sits).
IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the
application or to be served with any documents in the application, you or a solicitor acting for
you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and
serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant,
WITHIN 10 DAYS after being served with this notice of application.
Copies of the Federal Courts Rules information concerning the local offices of the Court and
other necessary information may be obtained on request to the Administrator of this Court at
Ottawa (telephone 613-992-4238) or at any local office.
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July , 2020
information which might tend to identify them as any further identification may
Court Act that the Respondent(s) comply with their statutory duties pursuant to:
Child (ICRC);
(ii) Failing to or refusing to comply with the provisions of the Citizenship Act
(iii) Failing to or refusing to make a formal request for the repatriation of Amira;
Amira`s repatriation.
(v) Failing to or refusing to engage/work with a 3rd party Nation that has consular
(vii) Failing or refusing to take the above mentioned steps when it is just to do so.
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3. To the extent and if required, an Order granting leave to the Applicants to seek leave for
4. A declaration that the Respondents failure to take all reasonable steps to repatriate Amira
5. A declaration that the Respondents failure to take all reasonable steps to repatriate Amira
6. Should mandamus not issue, an Order pursuant to section 24(1) of the Charter
recognizing that there has been a breach of one or all of Amira’s section 6, 7, 9, 12 and
15 rights and then requiring the Respondents to take reasonable steps referred to in
paragraph 2(i) through 2(vi) above as a remedy which is appropriate and just in these
circumstances.
7. An Order pursuant to s. 24(1) of the Charter that the Court retain jurisdiction to hear
reports from the Respondents concerning their progress as to compliance with the terms
8. Such injunctive or interlocutory relief as may be sought by the Applicants and this
9. Such further and other relief as counsel may advise and this Honourable Court permit.
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Overview
10. This application is being brought on behalf of the Applicant child Amira (age 5) by her
uncle the Applicant Ibrahim. Amira is one of 47 Canadians, 26 of whom are children
who are being detained in North Eastern Syria under the auspices of the Syrian
(“AANES”).
11. The AANES and SDF have repeatedly stated their willingness to facilitate the
repatriation of Amira as they have done with at least 20 other countries who have made
SDF/AANES control.
12. Ibrahim has done everything humanly possible, including travelling to Syria on his own
13. The Respondent’s, despite their statutory and international law obligations and the rights
of the Applicant Amira, guaranteed by the Charter, have for more than a year been
unwilling to take a single step to enable the repatriation of Amira to take place.
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The Applicants
A. Amira
14. Amira is one of four children. At the age of 4, she became an orphan when her Canadian
parents and her 3 siblings were killed in an airstrike in Northeastern Syria, which took
15. After the death of her entire family, Amira was found and brought to the Al-Hawl
detention camp in North Eastern Syria under the auspices of the SDF. Al-Hawl is a camp
with anywhere between 60,000 and 70,000 inhabitants, of which 10-12,000 detainees are
foreign nationals.
16. Al-Hawl is hopelessly overcrowded, has a lack of clean water, many of its detainees
suffer from malnutrition and non-existent hygiene measures and there is an acute
17. Given the overcrowded and unsanitary conditions, the camp detainees are at heightened
risk of Covid-19.
19. Within the past 2 weeks, the Syrian Regime has made specific inquiries regarding Amira.
AANES has been clear about their willingness to facilitate in Amira’s repatriation. It is
unlikely that there will be such a favourable position from the Syrian Regime in light of
B. Ibrahim
20. Ibrahim is the uncle of Amira, his brother was Amira’s father.
21. Ibrahim was raised in Toronto and currently resides there with his parents, Amira’s
grandparents.
23. Since April 13, 2019 Ibrahim has done everything in his power to have his niece Amira
return to Canada.
24. He has communicated with Global Affairs Canada, Immigration Refugee and Citizenship
25. In early 2020, Ibrahim travelled to North Eastern Syria without any assistance from the
Canadian Government.
26. Ibrahim was able to cross the border from Iraq into Syria without knowing anyone in the
27. Ibrahim personally met with Dr. Abdulkarim Omar, the Co-chair of Foreign Affairs for
AANES, and was assured that upon Canada’s request coupled with the attendance of a
28. Ibrahim was subsequently able to enter Al-Hawl camp and visit his niece Amira but was
Legal Foundation
29. The Federal Court has the jurisdiction to act and conduct judicial oversight of Canada’s
“a federal board, commission or other tribunal means any body, person or persons
Crown…”
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31. Pursuant to s. 18(1) of the Federal Courts Act the remedy of mandamus may only be
32. On an application for judicial review, the Federal court may pursuant to section 3(a)
“order a federal board, commission or other tribunal to any act or thing it has unlawfully
“In addition to any other relief that the Federal Court of Appeal or the Federal Court may
granted or a receiver appointed by that court in all cases in which it appears to the court
any terms and conditions that the court considers just.” (emphasis added)
(b) The person was born outside Canada after February 14, 1988 and at the time of
his birth on of his parents, other than parent adopted him, was a citizen; (emphasis added)
35. Section 3(1.2) of the Citizenship Act states that a person who would not become a citizen
under (1)(b), (g), (h), (o) or (p) for the sole reason that, on the coming into force of this
citizen under that paragraph if that parent but for his or her death, would have been a
36. While Canadians abroad are generally bound by the law of the country in which they find
this case, their refusal to participate in activities of a foreign state are contrary to
37. The Federal Court has jurisdiction to apply the Charter which applies to inter alia, the
Parliament and the government of Canada in respect of all matters within their authority.
The Parliament and Government of Canada bear the burden of complying with the
pervasive obligation.
38. Even the exercise of what traditionally have been discretionary-type or common law
powers under the royal prerogative are not exempt from judicial security for
39. In order for the mobility rights to which all Canadians are entitled to be meaningful,
respected and to be exercised, the Canadian citizen is entitled to a passport. The failure
but the refusal to do so is a violation of the mobility rights guaranteed by section 6 of the
Charter.
40. Given the repeated stated willingness of AANES, SDF and Dr. Abdulkarim Omar to
“hand over” Amira to Canada, there is only one entity which continues to cause and is
responsible for the deprivation of liberty, and the risk to the health, safety and security of
41. The violation of Amira’s s. 7 rights under the Charter has resulted in deprivation of life,
liberty and security which is not in accordance with the principles of fundamental justice.
42. The Charter remedy being sought requiring the government of Canada to formally ask
for the repatriation of Amira and then take reasonable steps to facilitate this is one that
meaningfully vindicates the rights and freedoms of Amira. The breach of s. 6, 7, 12 and
15 of the Charter is ongoing and lies at the feet of the Government of Canada.
43. The Federal Court has jurisdiction and the obligation to interpret the jurisdictional reach
and limits of the Charter. Where the question of application involves issues of
exercise.
44. The Courts have also looked to international law to assist in the interpretation of the
Charter. The Courts have sought to ensure consistency between Canada’s international
obligations and the relevant principles of international law. The Charter and those
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entitled to the full benefit of its protection are to be afforded protection at least as great as
that afforded under similar provisions in international human rights documents which
45. The Court should seek to ensure compliance with Canada’s binding obligations under
international law.
46. Canadian Courts have adopted and incorporated directly into Canadian domestic law, the
rules of customary international law provided there is no valid legislation that conflicts
47. The International Convention on the Rights of the Child (“ICRC”) was adopted and
opened for signature by resolution of the United Nations on November 20, 1989 and
entered into force on September 2, 1990. Canada became a signatory to the ICRC in
Other Countries
48. At least 20 countries including the United States, France and Germany have successfully
repatriated their citizens upon request and without any incident or harm. Five countries
that do not have consular services in Syria have arranged through 3rd part Nations and/or
49. Despite numerous request the Respondents have failed or refused to:
c) Make any attempt to coordinate with AANES or its representative Dr. Abdulkarim
e) Engage or work with other third party nations that have consular services and have
f) Engage or work with a recognized 3rd party humanitarian organization to facilitate the
repatriations of Amira;
g) Properly assess the security situation on the ground despite relying on it as the basis
for the failure/refusal to take any of the steps outlined in (a) to (d) above.
(a) Federal Courts Act, RS 1985, c. F-7, sections 3(a), 18(1), 18.1 and s. 44 .
(b) Citizenship Act, RSC 1985, C-29 sections 3, 4, 5.1, 6 and 22.1.
(c) Canadian Charter of Rights and Freedoms, sections 6, 7, 9, 12, 15 and 24 (1).
(d) International Convention on the Rights of the Child, Arts. 7.1, 7.2, 8.1, 8.2, 10.1, 10.2,
MATERIALS:
(d) Such further and other material as counsel may advise and this Honourable Court permit.
_____Lawrence Greenspon__
Greenspon Granger Hill
331 Somerset St West
Ottawa, ON K2P 0J8
Tel: (613) 288-2890
Fax: (613) 288-2896
Lawrence Greenspon
(Lawrence@gghlawyers.ca)
Graham Bebbington
(graham@gghlawyers.ca)