OTTAWA – In a hugely disappointing decision, the Supreme Court of Canada has refused to hear the critical case of four men who have been arbitrarily detained without charge under conditions akin to torture – one for almost seven years – in northeast Syria. Canada’s refusal to assist them has perpetuated their exile.
The mother of one of those men, expressed her profound frustration.
“Global Affairs won’t meet with me,” says Sally Lane, whose son Jack Letts turned 28 on Tuesday. “My own MP won’t listen to me. And now the Supreme Court has told me and the other families that we don’t have the same rights as everyone else. It is supremely contemptuous of me, the other families of loved ones held there, and the basic rights and freedoms Canada is supposedly committed to, that in refusing to hear this case, the Court has essentially said it is acceptable for Canada to engage in the illegal practices of exile, indefinite arbitrary detention, and torture.
“We’re not giving up, but today it is difficult to maintain hope when my son, the other men, and the additional women and children who remain detained have been told their lives do not matter.”
The case raises critical questions about the government’s responsibilities towards Canadians abroad facing egregious violations of fundamental rights, especially when Canada can take positive action to end those violations. In this instance, the Autonomous Administration of Northeast Syria (AANES) has repeatedly requested that all countries repatriate foreign nationals held in their prisons and camps, but Canada has refused to assist any of the Canadian men. It has only repatriated some two dozen women and children when it was under threat of legal action, and has tried to forcefully separate 10 detained Canadian children from non-Canadian mothers.
“We see a disturbing trend of two-tiered citizenship in which your alleged political or religious beliefs determine whether the Canadian government will assist you in times of trouble,” explains Matthew Behrens of Stop Canadian Involvement in Torture, which has led a campaign for repatriation of those detained in northeast Syria. “Canada can and has assisted Canadians in trouble abroad over the past year, from Sudan to Israel and the occupied Palestinian territories to Northeast Syria itself, where these men are illegally held. If Canada can bring home women and kids at the request of their northeast Syrian captors, why not the men?”
Notably, almost 1,000 Iraqis were repatriated from Syria this past week, in part due to the assistance of a Global Affairs Canada $2.9 million grant to facilitate the return of Iraqi detainees. “Canada is funding the release of Iraqis, a good thing, but spending equal amounts of money to prevent the return of Canadians,” Behrens points out.
A landmark January, 2023 Federal Court decision regarding repatriation of the Canadians 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.”
The day before that decision, Ottawa acknowledged its legal obligation to repatriate by agreeing to bring back 19 women and children listed in the court case, but specifically and purposefully excluded the men. Ottawa then appealed the ruling, producing a dreadful Federal Court of Appeal decision that callously dismissed Canada’s domestic and international human rights and international law commitments while firing a vicious broadside at the Supreme Court.
In their joint application to the Supreme Court, lawyers for the four arbitrarily detained men – Barbara Jackman, Zoe Chong, Paul Champ, Hannah Drennan, and Lawrence Greenspon – argued that “all Canadians share an interest in the resolution of the issues in this case because international travel is common in an increasingly globalized world. When Canadian citizens travel abroad, are there any circumstances in which Canada may have a special duty to assist beyond consular inquiries and helping Canadians find a lawyer? What if the citizen is facing the death penalty or, as here, subjected to torture? Sad to say, it is an issue which has arisen in the past and will inevitably arise again.”
They also pointed out that while Ottawa concedes the detainees’ jailers will release them if Canada makes the request for and facilitates their repatriation (as it has repeatedly done for others), in this case, “Canada is picking and choosing which Canadians to help out of a hellish situation, when it knows that the cruel conditions will continue indefinitely for anyone left behind.”
In the January Federal Court decision, Judge Brown noted: “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].”
Brown also declared that “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,” 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.
“The primacy of the right to return to Canada is reinforced in Canadian law,” Brown wrote. “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.
Ironically, the Federal Court of Appeal decision was issued 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”). While engaging in rhetoric more familiar to the right-wing judges of the U.S. Supreme Court, the appeal court sided with Joly’s argument that there is no obligation to assist the four men in Syria, even though the detainees’ captors have long begged Canada to come and repatriate them.
Last year, then UN Special Rapporteur Fionnuala Ní Aoláin noted 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.
For more information contact Stop Canadian Involvement in Torture at tasc@web.ca or (613) 300-9536
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