The Federal Court of Appeal awaits arguments on whether Canada can continue to ensure four Canadian Muslim men remain arbitrarily detained forever under conditions akin torture. One judge notes "Canadians are dying or at risk of dying every day this matter is adjourned.”
By Matthew Behrens
On February 12, 2023, the Government of Canada chose to prolong the torturous conditions endured by four Canadian Muslim men arbitrarily detained in northeast Syria. By launching an appeal against a Federal Court repatriation order which concluded the four had for years been “imprisoned against their will without charge or trial,” Ottawa sought to extinguish the Charter rights of Canadians who, according to Federal Court Judge Henry Brown, “are dying or at risk of dying every day this matter is adjourned.”
In an equally disturbing development, the Federal Court of Appeal agreed on March 14 to place a stay on further repatriation efforts pending the outcome of the appeal, to be heard March 27. When weighing whether irreparable harm would come to the Canadian government if it were forced to repatriate four Canadian men held under conditions the UN describes as “akin to torture,” the Court of Appeal shamefully sided with Ottawa based on the government’s paper-thin House of Cards arguments, built on an astounding collection of lies, unfounded speculation, and an unspoken but very clearly enunciated Islamophobia (detailed below). “There may be additional harm suffered by [the detainees] as a result of the delay, but that delay will be short,” the Court of Appeal callously concluded.
In language normally reserved for nuclear waste, the appeal paints the uncharged detainees as an alleged threat to be “mitigated”. They are “unnecessary” human beings unworthy of assistance. Despite fully knowing for years the dire conditions of these arbitrarily detained Canadians – and despite the repeated pleas of US officials, including President Joe Biden, to repatriate all the detained foreign nationals in northeast Syria – Canadian government lawyers argue that repatriations should only occur if “absolutely necessary.”
Canada’s Orwellian appeal employs apocalyptic language while claiming that keeping these long-suffering men under brutal conditions is actually in their best interests since efforts to secure their release “could in some way result in harm to” the detainees. Ironically, on January 19, 2023, the day before the original repatriation order was released, the federal government confirmed a settlement to repatriate 19 women and children who had originally been connected to the same court case. Justice Brown was quick to point out in his decision that “the legal principles applicable to the Canadian men are the same as those applicable to the Canadian women and children.”
This discriminatory attempt to separate the men from the women and children comes on the heels of a concerted public relations effort to undermine the factual integrity of the landmark January 20 court order. Led by CBC and Globe and Mail reporters, a series of grossly inaccurate and inciting stories flew in the face of the publicly available court record. In the worst tradition of Islamophobic writing, they tarred all Canadian detainees with the same inflammatory brush, with headlines screaming about returning “Isis members” coming to terrorize Yazidi refugees while reviving long-dismissed fallacies about the potential for an international tribunal in northeast Syria. Despite numerous complaints to the CBC Ombudsperson about the grossly inflammatory pieces, the media outlet refused to end its scare-mongering.
Contrasting Approaches to Different Detainees
The appeal announcement also followed the astounding late January Global Affairs Canada ultimatum delivered to four detained women with Canadian children in the prison camps. Ironically, on the same day Canada announced its first representative to combat Islamophobia, the detained Muslim women were directly told to surrender their children or remain there with them forever because Canada would never come for them again. As a nation built on the forced separation of Indigenous children from their families, this latest Canadian move certainly ran afoul of its much-trumpeted “never again” promises, and contravened its legally binding commitments under the Convention on the Rights of the Child.
The January and February legal and media attacks against this relatively small group of detainees – the majority of them children – contributed to their ongoing banishment in an off-shored “Guantanamo in the desert” that seriously troubled Federal Court Justice Brown, who wrote on January 20 that “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.
It’s all a stark contrast to Canada’s well-publicized, robust efforts to secure the release of illegally detained white non-Muslim Canadians Michael Spavor and Michael Kovrig, who were always afforded the presumption of innocence by Canadian media while held by the Chinese regime. Canadian government efforts to free the two men included leading a 57-nation initiative against arbitrary detention. Mere weeks after the detention of “The Two Michaels,” then GAC Minister Chrystia Freeland told reporters that Canada was working with a broad range of allies on the issue and had secured support statements from the USA, UK and European Union, and that “we absolutely believe this is not only a Canadian issue,” but “an issue that concerns our allies.”
In the case of the detainees in northeast Syria, an affidavit from Global Affairs Canada’s official Julie Sunday tucked into the government’s appeal brief declares that compliance with the court order means her department “may be required to leverage diplomatic relationships with allies in negotiating and/or implementing conditions of release, which we would only wish to do if absolutely necessary.”
What was deemed absolutely necessary for the two Michaels is now viewed as not applicable for these children, women and men, Muslims who have been so demonized that human rights reports on Canadian children who are no nutritionally deficient that they have been forced to eat sand are dismissed by government lawyers as irrelevant and improper evidence. As one “extremism expert” shared with the International Crisis Group: “The problem is that we’ve expended all this effort promoting [what has become] the Western counter-terrorism paradigm and dehumanizing these people to mobilise against the ISIS threat. Now we have to humanize the population to convince countries that they can and should get them home.”
Misunderstanding the Detainees
What can account for such utterly different responses between the high-profile campaign to release the Two Michaels and Ottawa’s refusal to end the arbitrary detention of Muslim Canadians? Freeland’s global appeal went out a fast two weeks after the Michaels were arrested by a country that is not considered friendly to Canada. For Canadian detainee Jack Letts, it will soon be 71 months of arbitrary detention by a Canadian ally in the region that has repeatedly asked Canada to come and take its citizens home. In addition, the Federal Court of Appeal has just told Letts and the other men that they need to continue sucking it up because to do otherwise might bring some undefined harm to Canada’s international relations.
Perhaps the “only if absolutely necessary” standard employed here is because the four Canadian men are Muslim, and a lazy media, racist commentariat, and spy agency-worshipping national security academic-industrial complex (one of whose most high-profile adherents used to bake cakes celebrating the drone assassinations of Muslims) have refused to engage with any serious inquiry into the diverse humanity of those detained under conditions that former Guantanamo Bay detainees have called far worse than anything they ever endured.
Some of these detainees are among the most misunderstood groups of people on the planet, largely due to racist assumptions about their religious faith, alleged political beliefs, and geographic location. Many were fleeing or opposed ISIS when detained, or were trafficked by agencies like Canadian spies CSIS; others were in the region for humanitarian purposes; some were intrigued by the many videos promising a utopian paradise only to find out differently on day one and then being unable to escape. Hundreds of Yazidi refugees are in these prison camps too, unable to return home. Yes, there are no doubt adherents of Daesh who remain too (and they should be held accountable for whatever crimes they may have committed), but studies by the likes of Save the Children and Médecins Sans Frontières (MSF) show they are a minority.
In November 2022, the widely respected, Noble Peace Prize-winning MSF found that “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.”
Similarly, the globally respected Save the Children (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.
Colonial Missionaries and Repatriation
Despite such well-documented studies, amongst some supporters of repatriation, there are disturbing, unexamined attitudes that reek of white saviour colonial missionaries who view the detainees as depraved savages needing the West’s so-called civilizing influences. Their arguments start not from the assumption that these are long-suffering human beings who have inherent rights (including a presumption of innocence), but rather that they are dangerous reprobates for whom repatriation, accompanied by a potent cocktail of terrorism peace bonds, prosecution, and surveillance, is sought only as a last resort for our own protection. It’s almost a begrudging argument that reinforces white supremacy and a bloated sense of colonial self-virtue: we of the Great White West have fair and unbiased legal systems who will take back these deranged souls, much as we despise them, and place them somewhere where they cannot hurt anyone. Such a “we are better than them” position celebrates “our” (read white) humanity rooted in “rule of law” as we rescue them from “over there,” the heart of darkness territory where they cannot get a fair trial.
One such repatriation supporter made the wholly unsubstantiated claim that these detainees are “Canadians who have behaved abominably and acted stupidly and done things that are illegal.” As early as 2018, that same individual said of the nutritionally deficient children forced to eat sand, the women who were trafficked into the region, and the tortured men: “They’re our mess. We need to take responsibility for it and protect Canadians as well as the rest of the world from these people.”
But where is the evidence that we need protection from them, or that any of these Canadians have been involved in wrongdoing? As the Federal Court of Canada noted in it repatriation decision, not even the government of Canada alleges illegality or involvement in terrorism on the part of these detainees.
Another repatriation supporter told Maclean’s that “I don’t care about the adults” and called the detainees “trash.” Shockingly, they declared without evidence to CBC Power and Politics: “These people left Canada, they were radicalized here, travelled abroad, they’ve committed atrocities against others.” Yet within the same breath, the individual said: “We don’t have a good sense of the evidence that we have against any of these individuals.”
Who gets to say such atrocious things on a national news program? Where is the interviewer who pauses and asks, “Have you seen any evidence of what you allege?” Where is the accountability for casually applying such dangerous labels to long-suffering detainees?
This white-framing of the issue of the detained Canadian Muslims is premised on a sickening calculation, that these individuals are simultaneously sad sack individuals – women and children who need to be rescued despite being less than human because of their alleged “choices” – and male Super Muslims, hard-wired and indoctrinated to kill and pillage at the first opportunity, primed to take down Western civilization despite years of torture and incommunicado detention.
Home-Grown Islamophobic Stereotypes
Such Islamophobic stereotypes are baked into so-called Western Culture, as noted by books like Jack Shaheen’s Reel Bad Arabs, which analyzes over 900 pre-9/11 films demonizing Arabs and Muslims (a number that has no doubt doubled since). The notion that Arab Muslims are addicted to violence and biologically fated to fall prey to the first extremist preacher who comes to town is reflected in the words of one grudging repatriation supporter who says things like “I think we are creating a circumstance where we are potentially creating a second generation of ISIS the longer we leave them there.”
Those stereotypes are also given life time and again via the assumption of guilt and deference to a government which has consistently applied Islamophobic policies and lied about Muslim Canadians detained abroad (as documented by two judicial inquiries). They were reflected in one repatriation supporter’s comments on Canadian detainee Jack Letts (who publicly opposed ISIS and was jailed three times for doing so). In addressing the inflammatory comments of then Public Safety Minister Ralph Goodale about Jack Letts on the CBC, this repatriation supporter said “like you pointed out to the Minister, he’s satisfied that this individual is a terrorist, [so] there must be evidence there to support that.”
Yet what have the past two decades shown other than that such unsubstantiated claims of state security threats by government officials must not be taken on faith, and they certainly cannot be casually thrown about given the very real harm it can cause to the individuals being so labeled? As noted above, if the Government of Canada truly believes these detainees are a threat, why was not a single scintilla of evidence presented at the Federal Court hearing to that effect (even during the two days when they could have shared such information during secret hearings)? It was something that truly struck Justice Brown, who wrote: “Notably the [government] Respondents do not allege any of the Applicants [detainees] engaged in or assisted in terrorist activities. The Respondents affirmed this position at the hearing.”
As the women and children come home at some unspecified time (and
hopefully the men as well as non-Canadian mothers of Canadian kids) it is
critical that “ISIS-linked” not be employed as a
one-brush-tars-all title or headline. 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.
An Appeal Built on Lies
Future law students will be astounded to read the poorly argued and unsubstantiated submissions government lawyers put together for an appeal that relies on one very big unspoken elephant in the room: the detainees are Muslims and, like other Canadian Muslims whose overseas detention and torture we have contributed to, we never want them to come home. Rather than strip them of citizenship, Ottawa’s approach is now to prevent them from exercising their rights of citizenship, a foundation of which is the right to enter Canada.
It’s concerning that a stay was granted by a Federal Court of Appeal cognizant of the dangerous, life-threatening conditions faced by the Muslim detainees, a conclusion that may not have resulted had the detainees been born with names like, say, Michael. It’s also concerning that they did so based on a record replete with government lies, unfounded speculation, and Islamophobic assumptions.
For example, government officials claim they will be unable to conduct normal assessments of returning Canadians before issuing travel documents, even though Brown wrote in his decision: “Simply put at the appropriate time the Applicants must be provided necessary travel documents and I will so declare…. it will not be ordered to proceed on a timeline that may in fact be counterproductive or otherwise unreasonable.”
One immigration official claims that if its foreign partners found out that travel documents had been issued to the detainees it could “damage Canada’s international reputation and our relationship with foreign partners.” Yet the issuance of documents in seven other cases of women and kids repatriated to Canada has not appeared to harm Canada’s relationships.
Government lawyers also kick irony to the curb by arguing that giving travel documents would “expose the applicant (detainees) to greater risk or worsening the applicant’s situation.” But it is unclear how after six years of enduring conditions akin to torture, a one-way ticket home could worsen a detainee’s life.
Similarly, Global Affairs maintains, without an ounce of evidence, that “the order to request repatriation is likely to affect Canada’s foreign policy interests in ways that cannot be predicted.” It’s a manifestly strange and untested long-shot theory, given that dozens of countries have repatriated their own citizens without upsetting the international order of state-to-state relations. In addition, such concerns were never raised when Canada went on a diplomatic offensive to repatriate the Two Michaels. Regardless, stay motions by law cannot be based on such spurious speculation unless, of course, the subject of the stay motion is a Muslim detainee, in which case, as scholar Sherene Razak points out in a recent book, “Nothing Has to Make Sense.”
Despite the presence of 50,000 social workers in Canada, the government also argues that the repatriation order for four – count ’em, four – men would risk “drawing on specially trained staff from fields like social work and clinical health…proceeding with a rushed repatriation without sufficient staff, resources and preparation in place may significantly exacerbate the threat arising from some of these cases of return to Canada.”
Yet even if one buys the unsubstantiated claim that any of these four men have some ideological rigidity clinging in their minds after years of torture, Canada’s own Public Safety agencies and so-called “counter-radicalization” networks have prepared for this eventuality for over a decade. Dr. Michael King of the Public Safety Canada-funded Organization for the Prevention of Violence told the Toronto Star that plans have been in place for five years in expectation of eventual repatriation. “We all have some experience with people returning from overseas, so that’s a good thing,” says King. “It’s no one’s first rodeo, but it’s going to be everyone’s biggest rodeo.” King notes the detainees are likely to hold a variety of experiences, beliefs and needs. “Some of these people will have disavowed the ideology a few hours after arriving in ISIS-controlled territory all those years ago and probably said, ‘This is the biggest error of my life,’ but it was unsafe to leave,” King said.
Dr. Ghayda Hassan coordinates a network that 5 years ago developed a “repatriation and reintegration” plan for returnees, “along with key partners such as youth protection and family services across the country. This plan was put into practice for the first time last fall upon the return of two Canadian citizens and two young children. The teams were present at the airport of arrival of these returnees to offer support for the returnee children, extended family members, as well as for the returned adults before and after their investigation and interrogation by security services. The teams are continuing to provide services to these returnee adults, children and extended family. The implementation has been deemed as a success by all involved partners.”
Dr. Hassan shared her concern that returnees may face with respect to stigma. “They will come back to face a society here that stigmatizes them because they’re still being considered by many people — sometimes quite wrongfully, actually — as terrorists,” Hassan said. “Many of them have been kind of drawn into this and mostly been victims, actually. Some may have been perpetrators, of course. I’m not denying that.”
Meanwhile, Global Affairs Canada incorrectly claimed in a sworn affidavit that previous Turkish military actions in the region have “stalled repatriation operations from the region.” However, according to the Rights and Security International (“RSI”) Global Repatriation Tracker and other open source material, 2023 is set to become a record breaking year for repatriations (during the first two months of 2023, repatriations have already outpaced the total for all of 2022, with a total of almost 800 so far.) An analysis of prior repatriation numbers dating back to 2019 reveals no significant impacts on repatriation, even during periods of heightened Turkish military violence in Northeast Syria.
Ultimately, the government relies on tired stereotypes, especially about the male detainees, An affidavit from Public Safety’s Sébastien Aubertin-Giguère paints the men as “Canadian Extremist Travelers” and despite the lack of any individualized evidence, declares “in general, CETs suspected of traveling to north-eastern Syria are believed to have had, at a minimum, direct experience with Daesh/ISIS, a listed terrorist organization, and direct experience with violent extremist ideology. They are highly likely to have acquired combat, weapons and terrorist training, and operational combat experiences while in Syria and Iraq, and are likely to have established international connections with likeminded individuals.”
While the only thing missing from Mr. Aubertin-Giguère’s affidavit is the eerie orientalist music that accompanies the slow-motion, gun-toting, stalking Muslim extremist featured on your neighbourhood movie screens and streaming platforms, it was also disingenuously sworn three weeks after Justice Brown noted that Canada raised no security concerns with respect to any of the men at the original hearing that took place the previous month.
It’s on such thin grounds that the Government of Canada will crow about protecting national security before the appeal court judges next Monday. As loved ones of the detainees wait with bated breath for the outcome of the Federal Court of Appeal hearing on March 27 and the non-Canadian mothers of Canadian kids pray that their temporary resident permit applications will be approved, it is clear that the Islamophobia that has underwritten Canada’s mistreatment of these Canadian men, women and children remains deeply stitched into the national discourse. We need radical surgery to remove it from the national consciousness as one step toward preventing further harm to those Canadians who, because of their faith, continue to be demonized, exiled, and tortured abroad.
During the month of Ramadan, a chain fast in support of repatriation is taking place, and individual fasters can sign up on free dates here: http://homesnotbombs.blogspot.com/2023/03/ramadan-repatriation-chain-fast-to-free.html
The compelling memoir of Sally Lane’s 9-year struggle to bring her son Jack Letts home is also now available at https://www.dundurn.com/books_/t22117/a9781459750944-reasonable-cause-to-suspect
Those wishing to attend the virtual Court of Appeal Hearing on March 27 should write to information@fca-caf.ca and ask to register for the BOLOH hearing on March 27, ref. # A-32-23
