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.”
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.
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
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