OTTAWA, May 31, 2023 – In a decision that could have been written by the right-wing US Supreme Court majority, Canada’s Federal Court of Appeal today overturned a repatriation order for 4 Canadian men who have been arbitrarily detained without charges for as long as 6 years under conditions akin to torture in Northeast Syria.
In addition to today's reactionary decision, it was revealed in an Orwellian statement that Canada is refusing to take any further steps towards repatriation because – without providing any evidence for this proposition – Ottawa has determined that "to request the voluntary repatriation of the [detainees] would be detrimental to them."
Mere weeks after Canada deployed military personnel to assist in the airlift of Canadian citizens caught in the fighting in Sudan (when Global Affairs Minister Melanie Joly boasted that “we will make sure that every Canadian is coming back and is safe”), the appeal court sided with Joly’s argument that there is no obligation to assist the four men, even though the detainees’ captors have long begged Canada to come and repatriate them from a region that is far safer than the streets of Khartoum.
"The Federal Court of Appeal made a clear choice to perpetuate the arbitrary detention and torture of my son and the other Canadian detainees,” said Sally Lane, whose son Jack Letts is the longest held detainee in Kurdish custody (over six years).
“The decision is nothing but victim blaming and narrow legalese that stands in utter contempt of human rights law and fails to rise to the challenge of the moment. The Canadian government was able to deploy massive resources to repatriate hundreds of citizens from the middle of the street fighting in Sudan. It makes no sense whatsoever that they cannot bring home four Canadian men who are detained in Northeast Syria a short ten minute walk from the very safe handover location that they have visited repeatedly in prior repatriations of Canadians. From the very start, Canada has held the key to their release, and it refuses to unlock the prison doors that the Kurds are willing to hold open for them."
In a bizarre postscript to the decision, “Justice” Dave Stratas noted that “In a number of other cases, the Government of Canada has surmounted the practical and legal obstacles and has successfully repatriated Canadian citizens from camps in northeastern Syria. As mentioned, these reasons stand for the proposition that the Government of Canada is not constitutionally obligated or otherwise obligated at law to repatriate the respondents. However, these reasons should not be taken to discourage the Government of Canada from making efforts on its own to bring about that result.”
The problem with Stratas’ “reasoning” is that it actually will discourage a government that has already fought tooth and nail against repatriation of Canadians detained under appalling conditions. Ottawa has only brought women and children home because of legal action undertaken by families and advocates.
Sounding for all the world like a backwoods 1950s Alabama judge about to sentence Rosa Parks for sitting in the whites-only section of the segregated bus, Stratas – the apotheosis of today’s angry white man in a robe – seeks to undermine the value of international treaty bodies and United Nations special rapporteurs, and bemoans what he believes was an allegedly sorry state of the law in which judges were apparently too liberal in upholding the Charter rights of Canadian citizens.
Indeed, much of the decision involves Stratas’s fire and brimstone disapproval of what he calls the Supreme Court of Canada’s reference to “sometimes new unwritten constitutional rights,” which he claims are based on “some vague feel, spirit or vibe,” almost but not exactly accusing judges at the higher court of being “woke.”
Yet as former Chief Justice Beverley McLachlin noted in a considered and thoughtful 2005 discussion from which Stratas obviously failed to benefit, “a judge, if he or she is to take seriously the duties of the office, must apply his or her judicial conscience and reason, and that this may at times mean making decisions that are difficult or unpopular….let me say again that the principles that guide these difficult decisions are not those of individual judges, but those implicit in the very system that gives the judges their authority. Ignoring one’s judicial conscience is not about staying within one’s role, but instead about abdicating one’s responsibility to the law. There do indeed exist unwritten principles without which the law would become contradictory and self-defeating, and it is the duty of judges not only to discover them, but also to apply them. To forsake them, in Robert Bolt’s phrase, is indeed to take the short route to chaos.”
Instead, Stratas chose the short route to the chaos of perpetuating arbitrary detention and torture based on incorrect interpretation of the factual reality and the preponderance of international humanitarian law.
Stratas repeatedly blames the detained individuals detained for their plight, even though many of those held in NE Syria are trafficked women, and in the case of Jack Letts, he traveled there as a humanitarian volunteer wanting to assist the people of Syria who were (then, as now) under the barrel bombs and industrial scale torture of the Assad regime.
Despite his crusading role as a stickler for legal discipline, Stratas plays fast and loose with the facts, noting “On its own accord, the Government of Canada has successfully repatriated some of its citizens from camps.” This completely disregards the record before the court, which shows that in all instances, repatriations have occurred despite Canadian actions, not because of them, and only when compelled to do so by legal action.
Stratas also pulls his own Forrest Gump moment, claiming “International law is not a box of chocolates from which one can take what one wants, leaving the rest in the box. Instead, international law is a specialized field calling for discipline, intellectual rigour and careful judgment when applying it to domestic issues.” Yet that is exactly what his decision engages in, refusing to recognize the positive obligations on governments not to be involved, directly or indirectly, in arbitrary detention and torture.
Indeed, as UN Special Rapporteur Fionnuala Ní Aoláin noted one year ago in a special report on the ongoing detention of Jack Letts, “the urgent, voluntary and human rights compliant repatriation of all the [Canadian] citizens…is the only international law-compliant response to the complex and precarious human rights, humanitarian, and security situation” of the detainees.
While Stratas claims Canada “did not cause or continue their plight” and “is not responsible for the respondents’ inability to enter Canada,” this ignores the fact that Canada still holds the key to resolving this crisis. As the Rapporteur noted, “it appears that none of the conditions to prevent arbitrary detention – a right so fundamental that it remains applicable even in the most extreme situations – are respected, and that no steps towards terminating or reviewing the legality of the detention have been taken, despite Mr. Letts having been detained for five years, which in practice amounts to the possibility of indefinite detention.”
In addressing the unending detention of Jack Letts, the Rapporteurs wrote that, as with the no-exceptions ban on torture, the prohibition on arbitrary detention is a peremptory norm of international treaty and customary law from which no one is ever allowed to derogate. Indeed, “arbitrary deprivation of liberty can never be a necessary or proportionate measure,” and no country can ever claim that “illegal, unjust or unpredictable deprivation of liberty is necessary for the protection of a vital security or other interest proportionate to that end.”
From the very start of these legal proceedings, the case has been clear and simple, far from the “complexity” claimed by Ottawa. The Kurds who hold the Canadians have asked for them to be repatriated with three conditions: that a formal request be made to them; that travel documents be issued; and that a Canadian official or someone delegated by the Canadian government be present for an official signing and handover.
In the absence of positive government action, a citizen’s initiative has sprung up with plans for a delegation of “parliamentarians, former diplomats, human rights experts and lawyers” to travel directly to NE Syria to seek a negotiated release of the men. In one more instance of its refusal to abide by domestic and international law, Global Affairs Canada has informed the delegation that it will not appoint them to receive the Canadian detainees.
As Canada seeks a seat on the United Nations Human Rights Council, today’s judgment – and Canada’s ongoing refusal in these cases to uncouple itself from complicity in arbitrary detention and torture – speaks volumes.
Stop Canadian Involvement in Torture will continue its efforts to seek repatriations of all Canadians illegally detained in NE Syria as well as non-Canadian mothers of Canadian children.
