How False Labeling Threatens the Lives of Canadian Muslims Illegally Detained in Syria

“Canadians are dying or at risk of dying every day this matter is adjourned.” – Federal Court Judge Henry Brown, December 6, 2022

 
In the blitz of breaking news coverage regarding the repatriation of  23 Canadian Muslim men, women and kids from prison camps and jails in northeast Syria, Canadian media fell into predictable patterns of Islamophobic labeling, irresponsibly assuming anyone in the camps and prisons was “ISIS-linked,” screaming out unsubstantiated fears about whether these returnees from conditions akin to torture could be prosecuted, and generally ranting about wholly unproven security “risks” even as the Federal Court decision reported that the federal government itself had not alleged any acts of violence or criminal wrongdoing on the part of the detainees. That decision was a vindication of the rights that these long-suffering Canadians have been so long denied because of racial, religious, and political profiling.
 
This piece calls on journalists and commentators to hold to a higher standard. Such labeling can prove incredibly harmful, as documented by two judicial inquiries into the torture of Canadian Muslims held overseas with Ottawa’s complicity. It also tells the story of one 9-year-old detained Canadian boy who urgently requires life-saving surgery, but Canada has abandoned him and his family.
 
 
By Matthew Behrens

At the tender age of 9, Canadian “Yusuf” has spent almost half his life arbitrarily detained inside a prison camp in northeast Syria. Like his younger brother and sister, they have known only barbed wire, hunger, disease, and bombardment, and been seared by a desert sun from which there is no escape.  
 
Yusuf urgently requires brain surgery to address his carotid artery stenosis – which causes life-threatening blood clots and strokes. The Canadian government has long been fully aware of the life-threatening medical challenges facing Yusuf, but has refused to assist him, even though his Kurdish captors have repeatedly offered to release him and his family as long as Canada requests it.
 
These three children are among 50 Canadian Muslim men, women and children arbitrarily detained for years at a series of prisons and prison camps known as Guantanamo in the Desert, ostensibly at Canada’s behest. Until January 6, 2023 the federal government had spent endless hours in court fighting against their return to Canada. Yet once lawyers from the Dept. of Justice seemed to sense their case was collapsing, they suddenly agreed on January 19 to bring back 19 Canadian women and children listed in the court case, but not the four men, and certainly not the other Canadians still arbitrarily detained under conditions the UN calls akin to torture.
 

Magna Carta Mandates Repatriation
The very next day, Federal Court Judge Henry Brown issued a remarkable decision ordering Ottawa to repatriate the four men who remained in the lawsuit. The decision harkens back to core principles of the Magna Carta and invokes Canada’s domestic Charter and international treaty obligations in calling for an end to the arbitrary detention and banishment/exile of these Canadians.  
 
Midway through the hearings on repatriation that preceded his decision, Brown felt the urgency of the case when he declared: “Canadians are dying or at risk of dying every day this matter is adjourned.”
 
While that statement certainly applies to 9-year-old Yusuf, he is not included in the Federal Court’s repatriation order or the January 19 agreement. As such, he and his family are among 30+ additional Canadians who remain in a frightening limbo. 
 
Yusuf also has severe autism, is non-verbal, and still wears diapers while limping from a shrapnel wound in his leg. He is malnourished and suffers from serious digestive infections that have seen him suffer diarrhea for almost four years.   His mother struggles to feed him because he has great difficulty consuming most of the little that is available at the camp, so he is continually losing weight.

Yusuf’s only point of reference in the world is his mother, “Asiya,” an electrical engineer. Because she is not a Canadian citizen, Ottawa is insisting that for Yusuf and his siblings to even be considered for repatriation, Asiya must give them up and remain behind in the prison camp. Thus, the only adult who has provided the children stability, love and care under impossibly cruel conditions would remain in the prison camp under threat of return to her home country, where she would face torture and even more arbitrary detention than she’s already been subjected to. The kids would become de facto orphans, as it has been years since Yusuf hugged his father, a Canadian scholar of Middle East history and religions, also illegally detained under even more brutal conditions in a northeast Syrian prison.
 
Asiya’s other kids include 7-year-old “Jacob,” who suffered third degree burns when he fell accidentally on a gasoline heater, an unhealed injury which prevents him from being able to put on a full set of clothes or sit properly. Baby daughter “Yocheved,” just over 3 years old, was born in a tent as Asiya wasn't allowed to go to the hospital. The poor, paper-thin tents in the camps fail to protect the detainees from the brutal effects of massive sand storms, intense cold, flooding, and the desert sun, under which Yocheved has suffered permanent burns that Asiya fears will lead to skin cancer.
 

Canada Pursues Forced Separation of Kids
This inexcusable state of affairs – reflecting a shameful and ongoing Canadian colonial history built on the forced separation of Indigenous children from their families – is something against which Save the Children (STC) has repeatedly warned, recently declaring that it is vital to ensure there is a path out of the detention camps “for mixed nationality families that takes into consideration the best interests of the child, including their right to a family life.” STC notes that for families like Yusuf’s, “their caregiver relationship is likely to be even more central to their lives because of the lack of fathers or older male relatives.” In their study of children and women who have returned from the camps, Human Rights Watch quoted a repatriated Swedish mother on the devastating impact of forced separation, noting:
 
In the camps, their mom is the only person the children trust. Suddenly taking the mom out of their life can be traumatizing.… During the three months of separation, my children were sad and confused about what was happening, and why they were separated from me. I felt the separation traumatized them even more.… Some of my children developed behavioral problems they didn’t have before. My 3-year-old son did not speak for weeks. His foster family thought he was mute.”
 
While neither Yusuf, his mother or siblings are included in the repatriation agreement, the children are being “considered” for assessment under a rights-violating policy framework developed in secret in 2021 by Global Affairs Canada (GAC). In his repatriation decision, Judge Brown reserved harsh words for this so-called framework, which he said may include a “useful set of internal guidelines to assist the executive in assessing the situations of the Applicants [detainees], but it is no substitute for nor does it permit the executive to unilaterally derogate from subsection 6(1)” of the Charter of Rights and Freedoms, which guarantees the right of Canadians to return home.

Despite the insufficiency of those guidelines, they do explicitly state that “children will not be separated from their parents except in extraordinary circumstances.” Notably, Kurdish officials have also been very clear that they do not wish to participate in such forced family separation either, and they have reportedly allowed other non-citizen mothers to be repatriated with their citizen children. There are no extraordinary circumstances to justify separating Yusuf and his siblings from their mother when a reasonable solution (such as the legal and practical issuance of a temporary resident permit to enter Canada as the children’s mother) is available.  I have personally written to Global Affairs Canada (GAC) on numerous occasions on Yusuf and Asiya’s behalf offering to work on this commonplace and widely accepted solution, but they have refused to respond.
 
Canadians Abandoned to Torture  

If GAC has known about the lethal risks faced by this family and so many others – GAC receives regular updates about the medical challenges and other conditions described by the United Nations as “akin to torture” – why have they abandoned these Canadians when they could easily have brought them home so kids could be going to school, play games, and ice skate as their proud, loving mothers and fathers looked on?
 
Had these children been born with first names like Michael and been held in China, their chances for survival would be far better. But the Canadian government (and some of the media) sees these children, along with their mothers and fathers, as one monolith of “Extremist” travelers whose children are “ticking time bombs”, an alleged Muslim contagion of risk and violence that is just as nonsensical as the old Red Scare tropes about communists hiding under our beds and inserting coded messages into popular Hollywood movies.
 
As mentioned, Global Affairs Canada bureaucrats know the details of their plight. When they bother to reply – which is rare – they tell the loved ones of the detainees they will place such vital information “in the file.” What, exactly, that file is meant to be used for is exquisitely unclear. It’s certainly not moved the dial towards their repatriation (only court action has for some of the detainees). 
 
In the aftermath of Judge Brown’s repatriation order, Global Affairs Canada has remained muted, saying only that it was “reviewing” the decision. It remains unmoved by Yusuf’s plight, where the consequences for this inaction are developmental delays and possible death each day his unique medical needs remain unaddressed. Yet despite having full knowledge of this, Canada’s racist response has been, essentially: you made your bed and now you must lie in it.
 
Absent in most discussion of these issues is any sense of nuance or understanding of the very real, human stories about how so many of these detainees wound up in the prison camps in the first place. Asiya travelled to Syria in 2015 to help retrieve her husband, a scholar who had gone to the region as a researcher, fallen ill, and was unable to get out. (Getting into Daesh territory was notoriously easy, as the Canadian spy agency CSIS showed when it trafficked underage teenage girls into the region, but getting out was impossible, usually risking a death sentence).
 
Once she entered the region and met up with her husband, Asiya too was unable to escape. Her husband, who in addition to being fluent in Classical Arabic and having studied Biblical Hebrew and Sanskrit, is currently imprisoned and losing his eyesight due to diabetes. Asiya has not heard from him for years following a brief letter received via the International Committee of the Red Cross.
 
Dangerous Labels

As families like Asiya’s pray that they too will get the news that Canada is working on their repatriation, it is helpful to explore who most of the detainees in northeast Syria actually are. Indeed, everything from sloppy media headlines to reports produced by well-meaning human rights groups inaccurately label them “ISIS-linked”, a dangerous appellation that has contributed to the fear-mongering and Islamophobia that, at root, have served the Canadian government’s agenda to prevent repatriation.
 
For example, some of the best work on the conditions in the prison camps and jails has been produced by the venerable Human Rights Watch, whose on-the-ground research and reporting by a small, dedicated, courageous crew is bold and absolutely essential work. Their spokespersons have played a key role in addressing the issue for years. Yet the titles of their reports are, sadly, enough to turn off anyone who is vulnerable to the Islamophobic narratives of the so-called War on Terror while unintentionally opening the door to the very media sloppiness that has trumpeted the overblown and, in many cases, false “ISIS-linked” narrative.
 
“My Son is Just Another Kid: Experiences of Children Repatriated from Camps for ISIS Suspects and Their Families in Northeast Syria,” produced in November 2022, and the equally powerful and illuminating June 2020 “Bring Me Back to Canada: Plight of Canadians Held in Northeast Syria for Alleged ISIS Links” both sport titles that promote a false and harmful narrative about who camp residents actually are. (Compare this to Save the Children’s study title, When am I Going to Start to Live? The urgent need to repatriate foreign children trapped in Al Hol and Roj Camps,” which focuses on the same issue without throwing in the unnecessary and inaccurate red flag that completely distorts how its findings will be viewed and reported). When one of the world’s leading human rights organizations uses such inflammatory language, one can see how media will unquestioningly run with that narrative.
 
Why is it critical that “ISIS-linked” not be employed as a one-brush-tars-all title or headline? The ill-effects of such language are far-reaching, and have been well-documented by two judicial inquiries into the torture of four Canadian Muslim men, all of whom suffered due to Canadian government actions driven by racial and religious profiling. Justice O’Connor’s Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar noted “Labels have a way of sticking to individuals, reputations are easily damaged and when labels are inaccurate, serious unfairness to individuals can result.” Equally critical, “Written labels, particularly when no caveats are attached, have a way of sticking to an individual and then spreading to others and becoming the accepted fact or wisdom.”
 
            Among other findings, O’Connor reminds us that:

• “The impact on an individual’s reputation of being called a terrorist in the national media is severe. As I have stated elsewhere, labels, even unfair and inaccurate ones, have a tendency to stick.”
• “It is important that precision be used when attaching labels to individuals, particularly in terrorism-related investigations in these times. There is a danger that loose language can lead to unfair and misleading or erroneous conclusions.”
• “Caution is also necessary with respect to the use of potentially emotive or inflammatory phrases. To say that someone is an ‘Islamic extremist’ or a ‘jihadist’ can open the door to a slipshod and casual process in which guilt is assigned by association.”
• “The use of loose or imprecise language about an individual or an event can have serious and unintended consequences. Labels, even inaccurate ones, have a way of sticking.”

 
Labels not only erase an individual’s humanity, they also erase individualized histories. Indeed, our ahistorical culture, in which yesterday’s news is ancient history, fails to recall that thousands of people traveled to Syria a decade ago in support of the Arab spring and to support the victims of the brutal dictator Bashar al-Assad’s barrel bombs, torture centres, and scorched earth military campaigns. Others who actually believed the Daesh videos that promised a state free of discrimination and violence quickly found out it was all a lie, but faced death if they tried to leave. While such mistakes are normally forgiven or simply overlooked if, for example, Canadians travel abroad and join groups engaged in documented war crimes (from the Israeli “Defence” Forces to the Ukrainian military), that mercy rarely extends to Muslims.
 
When Daesh fell, tens of thousands filled up the main detention camps at Al Hol and Al Roj.  It’s worth remembering that Al-Hol exists because of our (“Western”) imperial violence. It originally sprang from the 1991 US/UK/Canadian military violence now called “Gulf War 1,” when a massive bombing campaign and innumerable war crimes were committed against the Iraqi people, forcing many to flee across the border into Syria. The camp was reopened in 2003 during the illegal continuation and escalation of the war, an invasion based on the lies of non-existent weapons of mass destruction. The subsequent torture-enforced occupation created the very conditions that led to the creation of Daesh.
 
Detainees are Victims of Daesh

According to Save the Children (STC), over 30,000 Al-Hol prisoners are Iraqi, many having fled Daesh advances in 2016 and others fleeing again in 2019 as Daesh retreated. It is remarkable that despite being victims of Daesh (aka ISIS), such camp prisoners are now referred to as “ISIS-linked,” a label that will prevent many from being repatriated to home countries because it will make them the targets of local surveillance, harassment, discrimination, arrest, detention, torture, and death. (Canada has spent close to $3 million on a project to repatriate some of those Iraqis while at the same time it has devoted millions in court to prevent repatriation of its own citizens).
 
STC confirms that many “arrived in the [Al Hol] camp fleeing from violence and conflict caused by ISIS…fleeing these final offensives, these women and children made arduous journeys to the camps. Many children arrived in critical condition suffering from hypothermia and malnutrition, and over the course of the next year many died in the camps… The scale of the violence, hardship, deprivation and trauma that children living in these camps experience every day cannot be overstated.”  
 
In addition, STC notes that these detainees “are often portrayed in the media as monolithic adherents to ISIS ideologies and their children described as ‘ISIS children.’ In reality, the population of the camps is diverse and many of their personal stories are complex.” STC also points out that there are hundreds of Yazidi women and children in the camps “who were captured and enslaved by ISIS as part of a genocide against the ethno-religious group.” Other women found themselves under Daesh control through “misapprehension, circumstance or coercion.” Yet all are tarred with the same “ISIS-linked” brush when in reality, those with links to ISIS are reportedly a relatively small minority.
 
(Notably, STC also found that when faced with starvation, there are reports of some women who swore allegiance only “as a strategic move due to the funds that ISIS provided to followers” in a region where poverty and despair were rife. Hardly the stuff of hard-core adherents, more the stuff of doing what they had to do to survive.)  
 
STC points to a British study by the human rights organization Reprieve that shows 63% of UK women in the prison camps are victims of trafficking: “This is based on evidence that these women were all subjected to sexual and other forms of exploitation, and were either transported to Syria as children; coerced into travelling to Syria; or kept and moved within Syria against their will. Some of these women were as young as 12 when they were taken to Syria.”
 
An affidavit from Reprieve’s Joint Executive Director, Maya Foa, submitted to the recent Canadian court hearing, pointed out that from “Reprieve’s interviews and investigations, we believe that a significant number of individuals of other nationalities were also likely to have been trafficked by ISIS, including Canadian nationals. … It is well established that States have a positive obligation to identify, assist, and protect victims of trafficking.  With respect to potential trafficking victims being detained in [northeast Syria], however, many states have failed to take any meaningful steps to offer any assistance or protection to their nationals. Moreover, the failure of states to facilitate their nationals’ release from detention may be in violation of the principle of non-punishment.  The non-punishment principle guarantees that victims of trafficking are not punished for unlawful acts committed as a consequence of their trafficking.”

Labels Could Result in Permanent Exile

Another widely-respected organization, Medicins Sans Frontieres (MSF), has also reported extensively on the diverse populations of the prison camps and the fact that many detained are in fact victims of Daesh. In discussing the largest camp, Al-Hol, their outstanding November 2022 report, “Between two fires: Danger and desperation in Syria’s Al-Hol camp,” again did not use an unnecessary red-flag “ISIS-linked” title, and took great pains to point out that the “ideological demography of the camp’s population is far more diverse than narratives regarding their affiliations with IS suggest. Many of the camp’s population report having been displaced multiple times as a result of conflict. Far from identifying with IS ideology, many say they were arrested at checkpoints when trying to flee IS-controlled territories. Many report that they were living in areas that later came under the control of IS and were forced to leave their homes on IS orders. They say that if they chose to stay, they risked being bombed by coalition forces or being accused of supporting IS by dint of their location.”
 
MSF quotes one camp detainee as saying, “People were forced to leave their homes because mostly they were in the wrong place at the wrong time. We were forced to leave our city and forced to stay in the city of IS, and we were forced to move from place to place by IS.” Another detainee calls Al-Hol “a detention centre – it is like Guantanamo, it is a death camp, a prison…The media are not putting out the right message about Al-Hol, with the result that one bad person affects all the people here.”
 
Some detainees are actually afraid to leave this death camp because of what might await them upon return home, that they will be treated as terrorists or social pariahs because of the mislabeling of all detainees as “ISIS-linked.”
 
Further proof that many of those held in the prison camps have nothing to do with Daesh is in the fact that not everyone who returns faces prosecution (which, in itself, is not a sign that someone has committed a crime because there still exists in some quarters something called presumption of innocence). Indeed, going to court under “anti-terror” legislation is always difficult because the standards are so low and the definitions so broad that many apparently innocent acts can be falsely attributed as terrorist simply because of political considerations and racial and religious profiling.
 
In Kazakhstan, 19 of 187 women returnees were convicted of terrorism-related offences in secret trials (which, clearly, do not meet acceptable international fair trial standards). In Sweden, only 2 of 18 have been convicted.
            
Meanwhile, the demonization of Muslim boys and men is also rife, from the Canadian government’s ongoing refusal to repatriate any men from the brutal prisons to the Islamophobic rantings of individuals who, despite supporting repatriation in principle, only do so through a lens that dehumanizes the detainees as “trash.”

It’s exactly this refusal to recognize the diversity and humanity of the detainees which has played a significant role in their monstering, just as it has in the case of Jack Letts, another Canadian individual brutally smeared by a Murdoch media empire that generated false and deceitful headlines about him and then used information gleaned from torture to try and reinforce its false narrative.

Fionnuala Ní Aoláin, the trailblazing “Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,” has called out the way Muslim men and boys are discriminated against, noting “certain male children in this conflict setting [are viewed] as being inherently untrustworthy of the status of civilian, child or victim status and [are] presumed by virtue of gender (male), religious affiliation (Muslim) and geography (Syria) to be a non-child for the purpose of international law protection.”

The corrosive effects of the past 20+ years of demonizing Muslims is widely documented. Its very human effects are played out daily, and journalists perhaps unfamiliar with this history can easily fall into the standard trap of easily assigning dangerous labels without knowing the harm they cause. But it’s a trap for which there is no excuse. Guilt by alleged association should never trump the presumption of innocence, yet the media frenzy in this case sadly appears to have concluded otherwise. 

In the meantime, Yusuf and his siblings and mom and father are desperate to be together again in Canada. That day will hopefully come soon. One way to make that happen is to refuse the unsubstantiated labels and stereotypes that have prevented it thus far.

 

Call/Write to Ensure Ottawa Obeys Court Order to Bring Canadian Detainees Home from Syria ASAP: https://www.change.org/p/canadians-are-dying-free-jack-letts-43-canadian-kids-women-men-in-syria/u/31247951

 

 

 

Federal Court Orders Repatriation of Canadians Illegally Detained in Syria

 

 

By Matthew Behrens

 

            In an important ruling with global human rights implications, Federal Court Judge Henry Brown has informed the Canadian government that it must end the years-long arbitrary detention without charge endured by dozens of Canadian men, women and children in northeast Syrian jails and prison camps.

 

            The January 19 judicial repatriation order applied to 4 Canadian men “imprisoned against their will without charge or trial” under conditions Brown deemed “dire” (with one of those men having “reported to Canadian government officials that he had been tortured”). It was released a day after the federal government confirmed a settlement to repatriate 19 women and children who’d originally been connected to the same court case.

 

              Brown was quick to point out that in this case “the legal principles applicable to the Canadian men are the same as those applicable to the Canadian women and children.”

 

            These 23 Canadians – who have suffered conditions the United Nations describes as akin to torture – are among almost 50 who have been unlawfully detained at Canada’s behest in the Kurdish autonomous region of northeast Syria also known as Rojava. Going back as far as 2017, Ottawa has refused to respond to the Kurdish captors’ simple 3 requests: to send an official letter requesting repatriation, issue travel documents, and appoint a representative to attend in Rojava for a handover.

 

            While dozens of other countries, including the United States, have been able to manage the simple journey to Northeast Syria  – a well-documented fact relied upon by Brown – Canada instead spent those years in the full knowledge that it was prolonging Canadian citizens’ needless suffering by creating a racist None is Too

 Many “Policy Framework to Evaluate the Provision of Extraordinary Measures to Assist Canadian Citizens detained in North-Eastern Syria.” (None is Too Many is a phrase that was used by Canadian officials seeking to prevent entry of Jewish refugees from the Holocaust, one with particularly contemporary resonance).

 

            The Policy Framework was infused with bureaucratic state security bafflegab and designed to ensure these tortured souls, over half of them under the age of 10, would perish abroad from disease, malnutrition and violence due to Canadian government-sanctioned criminal negligence causing death (“culpable homicide” being defined in the Criminal Code of Canada as any act which “directly or indirectly, by any means… causes the death of a human being.”)

            Judge Brown carefully parsed through the conditions for repatriation and declared that, as soon as reasonably possible, “Canada must make a formal request for their repatriation,” that the detainees “must be provided necessary travel documents,” and Canada be required to  “appoint either a delegate or representative to accept their hand over.” He made these findings based on well-settled Supreme Court of Canada jurisprudence and Canada’s international treaty obligations “in the expectation the executive government will act in good faith as its counsel represented to the Court.”

 

Judge Rejects Government’s Islamophobic Framing

          The landmark decision ends a protracted legal battle that included three days of repeatedly delayed public hearings in December and January, with two sets of secret hearings.

         

          Brown, a highly respected expert on Supreme Court jurisprudence and practice, spoke barely above a whisper during the hearings, and appeared non-plussed with the government’s Islamophobic framing of the case. While Department of Justice (DOJ) lawyer Anne Turley attempted to portray the children, women and men as alleged threats to the security of Canada, Brown asked questions revealing an intimate knowledge of the case and illustrated, in his own modest way, what can only be described as a loving commitment to the core constitutional principles and international human rights laws and treaties to which Canada, at least on paper, has committed itself.

 

          (Notably, Turley similarly lost a 2009 case in which she fought against the repatriation of another Muslim Canadian abandoned abroad and tortured with Canadian complicity, Abousfian Abdelrazik. As The Globe and Mail reported at the time, Turley notoriously engaged in a vicious, racist cross-examination of Abdelrazik “attempting to discredit [his] assertions that he was beaten and abused by Sudanese police, suggesting instead that [Abdelrazik] mutilated himself and that ‘tribal’ practices of cutting or burning account for the scars on his body.”)

 

No Evidence of Violence by Detainees

          Critically, Judge Brown delivered as part of his 85-page decision a finding that should tamp down some of the inflamed and inaccurate reporting that has followed its release.  “Notably the [government] Respondents do not allege any of the Applicants [detainees] engaged in or assisted in terrorist activities,” Brown declared. “The Respondents affirmed this position at the hearing.” In other words, if the government had any evidence that these 50 Canadian children, women and men had been up to no good in Syria, this had been their opportunity to share it. Possessing no such evidence, Canadian officials – who have based their refusal to repatriate on Islamophobic “national security” tropes and vague allegations of nefarious associations – must now halt their illegal practice of banishment and end their years-long complicity in the arbitrary detention of their own citizens.

 

          As if Brown’s finding was not enough to obliterate the government’s thin house of cards case, he also added, “Canadians are entitled to have political opinions, no matter how abhorrent they may be to other Canadians. The limitation is when Canadian opinion holders take actions, whether inside of [or] outside of Canada, that constitute offences against Canadian law including the Criminal Code of Canada. However there is no evidence to that effect before this Court [emphasis added].” Again, this should undermine any subsequent attempts to prosecute the Canadian returnees from conditions of torture. If Ottawa had any evidence of criminal wrongdoing, why didn’t it place that before the Court?

 

Magna Carta Rights Inform Decision

            To the consternation of DOJ lawyers who zealously fought right up until the last minute to perpetuate what had become the de facto exile of almost 50 Canadian Muslim men, women and children, Brown has issued what can only be called a radical decision (inasmuch as radical means to get to the root of things) by relying on the 808-year-old Magna Carta that informs and undergirds such a broad swath of constitutional governance, rights and principles in Canadian jurisprudence.

 

            “With respect, from its antiquity I conclude the 808 year old promise to end banishment and exile illustrates how long our constitutional order has concerned itself with protecting the right to enter and return to one’s country,” Brown writes, referencing the bedrock roots of Section 6(1) of the Canadian Charter of Rights and Freedoms (“Every citizen of Canada has the right to enter, remain in and leave Canada.”). Indeed, the Supreme Court of Canada has clearly defined 6(1) as a “foundational” and “fundamental” right preventing “the exclusion of membership in the national community.” The scope of this right, Brown noted, is “expansive, generous and powerful” and cannot be overridden by the Charter’s often abused notwithstanding clause. Brown also points out that the government lawyers chose not to invoke a Section 1 Charter argument that would have raised in this case the question of “reasonable limits” to the right to enter, remain in and leave Canada.

 

In addition, Brown refers approvingly the Supreme Court’s Divito decision and the need for Canada to take actions and design policies in accordance with international law:

 

Divito unequivocally states the right to enter or return to Canada guaranteed by subsection 6(1) must be defined generously - and not in a legalistic manner - in light of the interests it is to protect. It is “foundational” right because without the ability to enter one’s country of citizenship, the “right to have rights” cannot be fully exercised. The right to return to Canada, says Divito, is a “fundamental right associated with citizenship”…. Importantly, Canada’s international obligations not only inform Charter rights. Divito confirms earlier Supreme Court jurisprudence that: “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.” The right to enter protected by subsection 6(1) of the Charter must be interpreted in a way that is consistent with or greater than Canada’s international treaty obligations.

 

            During the court proceedings, Brown questioned government lawyer Turley about the Magna Carta, noting he used to teach a university course on the document that is regularly ignored by what he referred to as “troublesome” regimes that essentially tell banished individuals, “You can't come back. We don't want you back. We don't like what you think… I just wonder whether that's so ingrained in our system as opposed to European systems, which in many cases may not have had constitutions like we've inherited [with] principles as referred to in the opening words of our Constitution. I just throw it out because it's historical fact and interests me. Have any thoughts on it?”

 

            Turley, whose whole case rested on rejecting the Magna Carta, stumbled through an answer about “the law as it exists today in Canada” before decking off into another area of rights-denying submissions. Brown later repeatedly shot down her arguments in his decision.

 

            “The primacy of the right to return to Canada is reinforced in Canadian law,” Brown writes. “This is also a critical factor in this Judgment. Simply put, there is no known offence in Canada that carries with it exile or banishment as a penal consequence,” yet both by its actions and conscious inaction, exile or banishment were plainly the result for Canadians stuck in northeast Syria. Indeed, Brown carefully cited jurisprudence that Section 6(1) “forbids the executive from frustrating the rights of Canadians to enter and return whether by executive actions taken in Canada or abroad.” In this instance, the government’s None is Too Many Policy Framework, which he later called into question, was exactly the kind of obstacle employed to frustrate rights of the detainees.

 

Ottawa Failed To Request Repatriation

          Throughout the landmark decision, Brown is not shy about sharing his reservations about clear government misconduct. “The Applicants are Canadian citizens who are not able to return home in part because their government seems never to have formally requested their repatriation,” he writes at one point.

          Brown expresses concern that six months before the detainees even started their legal challenge, their lawyer wrote to Global Affairs Canada asking them to appoint a delegation to visit Rojava and receive the detainees, but no such appointments were ever made. “I appreciate this may not be the first step in the exercise of the Applicants’ right to return, but it is still one that I find essential to the exercise of the Charter rights at issue,” Brown declares. “The Applicants absolutely must have Canada make such appointments or they will never be able to return to Canada.”

In addition, Brown also points out that although the detainees’ counsel “have repeatedly asked for travel documents not only before commencing this proceeding but up and to the close of oral submission, none have been provided. Instead Canada relies on and requires the Applicants meet the conditions in its Policy Framework. With respect, I am not persuaded compliance with the Policy Framework is a precondition of the exercise of the Applicant’s Charter protected right to return to Canada.” He adds as well in what can only by a stinging rebuke to the designers and administrators of the None is Too Many policy, that the Framework is “a likely very useful set of internal guidelines to assist the executive in assessing the situations of the Applicants, but it is no substitute for nor does it permit the executive to unilaterally derogate from subsection 6(1).”

 

            In addressing what he deems “not correct” the government assertion that a Charter breach must be established before a remedy is granted, Brown also expresses his dismay at the inexplicable and indefensible failure of the government to act despite years-long requests for them to do so. “While I might have found Charter breaches in terms of travel documents and making a formal request for repatriation, rights requested almost two years ago but not afforded [emphasis added],” he writes, “I do not consider that necessary because of well-established jurisprudence that a Charter breach is not a necessary pre-condition for the declaratory orders to be issued in this case as already determined.”

 

          Later in the decision, Brown says that he remains “perplexed as to why the [government] did not share the Policy Framework with the Applicants [detainees] when they requested relief and were in effect requesting it in February 2021 [a month after it was created].” He ponders why the government  “for unknown reasons chose not to tell the Applicants of the Policy Framework until November 2021. The Court was not provided with a satisfactory explanation for what it considers an unreasonable delay in informing the Applicants of the Policy Framework. The Respondents delayed from February, 2021 to November, 2021 … a delay of nine months.”

 

Sally Lane has published with Dundurn Press her memoir about the 9-year struggle to rescue her son Jack Letts and have him returned home.  She hopes the decision means Jack will be home as soon as possible.
 

 

Human Consequences of Delay

          Beneath that language of a 9-month “unreasonable delay” is the human reality that never enters the government’s cynical calculations, even though family members have flooded Global Affairs Canada with individualized reports on the appalling, life-threatening conditions. Indeed, each moment of that 9-month delay was rife with risk and continued suffering, in which severely malnourished children are forced to eat sand and dirt, there is no clean water or nutritious food, there are rarely diapers or sanitary towels, there is no medical care, education, or privacy. It was an additional 9 months where children played (and some drowned) in cesspools of human waste, sewage flooded their paper-thin tents, and wild dogs roamed the camps terrorizing people. As Brown would note repeatedly, the conditions for the imprisoned men were even worse.

 

            Throughout his decision, Brown outlines the hugely problematic process engaged by the creation of the secret Policy Framework, noting that without informing the detainees of the framework’s assessment criteria nor seeking their input, Global Affairs Canada conducted assessments on all of the detainees and concluded in 2021 that only one of them met the criteria for “consideration” (in that case, a deathly ill woman, Kimberly Polman, was finally repatriated a year afterwards).

 

            On the eve of the December 2022 repatriation hearing, in a clumsy move clearly designed to undercut the detainees’ case, Global Affairs Canada pulled a 180-degree move and informed the court that all of the women and children were suddenly, after all this time, eligible for “consideration” under the Framework, though no timeline was attached to that announcement. None of the men were thusly considered, a point of clear discrimination that Brown would repeatedly return to during the hearings and in his written decision.

            Brown’s clear discomfort with the discriminatory None is Too Many framework is frequently referenced, as when he writes that he finds himself  “compelled to observe the three threshold criteria for eligibility to be considered under the Policy Framework appear drafted to exclude the Canadian men imprisoned” in Rojava and that, if this were indeed the case, the policy could not withstand a Charter challenge.

          While pointing out the first two of those criteria apply only to children, the third is based on the premise that “Canadian men held in very dire circumstances in makeshift prisons” may only be considered eligible if they show their condition has “changed significantly,” and in the view of Global Affairs Canada, “none of the four men Applicants have met the threshold criteria.”

          In language that must feel validating to all those family members who have dealt with the maddening gaslighting of the rights-violating Framework, Brown expresses his disbelief that such a nonsensical policy could be engaged to prevent the enjoyment of Charter rights, noting with respect to the finding that the men did not meet the criteria: 

With respect these conclusions are very problematic. I say this because, based on evidence before this Court, the conditions of the Applicant Canadian men are even more dire than those of the women and children who Canada has just agreed to repatriate. Numerous questions arise. Do those incarcerated men, who imprisoned with 30 others in cells designed for 6, need to demonstrate they are now with 35 others or more? Do these Canadian prisoners receiving inadequate food and inadequate medical care need to establish their rations have been further reduced or their medical treatment terminated? Do those who allege they have been tortured…need to establish they have been tortured more frequently or in even worse ways? And how exactly are Policy Framework administrators to determine if conditions in the prisons for men have worsened “significantly” given these men have not been heard of since 2019? This issue was discussed at the hearing where I suggested this aspect of the Policy Framework was inacceptable from a Charter point of view, a view I am not persuaded to abandon. I add these comments based on the evidence before the Court as of 2019, not knowing their current situation but assuming it is the same or worse, which may not be correct, in the hope the Policy Framework will be materially revised, or that the Canadian male prisoners be considered for repatriation as is not the case with the Canadian women and children.

 

Brown Debunks Government Arguments

            At every turn in Brown’s decision, he dismisses the baseless arguments made by government lawyers, who were unable to sneak past this Supreme Court scholar poorly constructed rationales that, in one instance, he called “debunked”. Indeed, despite government exhortations to discard the numerous findings of the United Nations Special Rapporteur on this issue, Brown relied heavily on them, including the urgent June, 2022 report sent to the Trudeau regime which reiterated “again that the urgent, voluntary and human rights compliant repatriation of all the citizens of your Excellency’s Government is the only international law-compliant response to the complex and precarious human rights, humanitarian and security situation faced by those detained in inhumane conditions in overcrowded prisons or other detention centres in North-East Syria, with limited access to food and medical care putting detainees' lives at increased risk.” [Emphasis added].”

 

            These conditions, Brown writes, and the manner in which they violate Canada’s international treaty obligations, constitute “a matter the Court is unable to ignore or set aside in coming to its conclusions.”

 

            Critically, Brown discusses how, while one can be entitled to Charter rights, the government of Canada can act in such a way that makes those rights become illusory. While Brown does place faith in government acting on his decision, he says Ottawa must be  “alive and sensitive and guided by the fact the Applicants do not merely depend on the goodwill or discretion of the executive but have the constitutional rights declared in this Judgment.” Importantly, he notes the court “is granting relief in accordance with binding jurisprudence,” finding  “no merit” to government arguments that this would somehow represent “an unprincipled expansion of the right to enter Canada,” adding his “declarations flow from the very dire circumstances of the Applicants” and international treaty obligations.

 

Next Steps for Repatriation

            Because Judge Brown did not impose a timeline on repatriation beyond “as soon as reasonably possible,” there remains concern that the federal government (which regularly professes its respect for court decisions and rule of law but often fails to act on them) will do what it always does in such cases: drag its feet and continue to perpetuate the well-documented rights violations suffered by these Muslim Canadians.

 

            While advocates will continue to apply pressure for immediate repatriation (which is entirely practicable given how often this has been occurring with other nations), Brown himself will no doubt be monitoring whether the faith he has placed in Ottawa doing the right thing is being honoured as well. Indeed, given that Canada has already agreed to repatriate 19 women and children, the exact same infrastructure will be in place for the remaining four men in the legal case. In addition, there are almost 30 more men, women and children not named in the lawsuit who should also be brought home (including the non-Canadian mothers of Canadian children).

 

            In the meantime, while Global Affairs Canada is “reviewing” the decision as so-called “security” experts try to generate Islamophobic hysteria about the detainees’ return, it’s instructive to recall the words of lawyer Barb Jackman who, in representing one of the male detainees, Jack Letts, opened her arguments by noting she was counsel at two earlier commissions of inquiry that found Canada complicit in the overseas arrest, detention, interrogation, and torture of four Muslim Canadians. She noted with a combination of sadness and rage that none of the recommendations flowing from these inquiries had been substantively implemented, and that she was seeing in this case the same patterns of racial and religious profiling contributing to torture.

 

The Lethal Cost of Delay

            Against that backdrop of lessons unlearned and contemptuously ignored, Jackman informed Brown, “I’m appalled that we’re even here,” but added in comments that proved prophetic, “I’m glad it’s before this court because if there’s any obligation, it rests with you to make sure Canada does what it’s supposed to do, because they obviously didn’t listen” to the justices who presided over the earlier commissions of inquiry.

 

                         Lawyer Barbara Jackman represents Canadian detainee Jack Letts
 

            Jackman noted the ease with which Canadian governments and their agencies have always improperly labeled Muslims as security threats. “Once you get the Islamic terrorist label on you, nobody wants to help you,” she said, adding that in the present case, where such labels were being improperly affixed to the detainees “from the highest levels of the Canadian government,” it appeared no different from cases she’d worked on 20 years earlier.

            As of December 2022, Jackman said,

Nothing has changed. Nobody’s looking at the actual facts of the case. Instead, [her client] is labeled a terrorist and they don’t want to help him. It’s one of the reasons why access to a court is so important, because a court will look at the facts and will try and determine what’s right in terms of the law and its application to human rights matters. The question you have to answer [is] can Canada wipe its hands of its citizens who are living in such appalling conditions over such an extended period of time? Are we the kind of country that doesn’t care about the humanity of our citizens who are outside our border when we know they’re dying?...if you don’t tell the government of Canada to act to bring these people back, they’re not coming back.

            Thankfully, Judge Brown heard Jackman’s challenge and answered her question well. Brown noted at the close of the December portion of the hearing that he felt an urgency to hear the rest of the matter as soon as possible because “Canadians are dying or at risk of dying every day this matter is adjourned.”

            While the detainees and their families have much to celebrate with this decision, they are all too aware that the government must also act quickly because, as Brown clearly stated, Canadians are dying or at risk of dying with every day of delay in implementing this historic decision.

TAKE ACTION TO ENSURE The Government of Canada complies with the court order. Sample letter and call at: https://www.change.org/p/children-forced-to-eat-sand-sign-to-free-jack-letts-43-canadian-kids-women-men-in-syria/u/31247951