OTTAWA - Following the Supreme Court of Canada’s mid-November refusal to hear the appeal of four Canadian men arbitrarily detained for up to 7 years under dire conditions in Northeast Syria, their families and legal team are taking the rare step of seeking a reconsideration and full hearing before the country’s highest court.
“These men face ongoing cruelty and indefinite detention under the threat of death. Canada’s refusal to repatriate them gives rise to legal issues of public importance,” reads the appeal brief filed on March 15, 2024. “The circumstances in which these men find themselves are of a rare severity, yet the Court of Appeal’s ruling [rejecting repatriation] leaves them with no assurance of any effort on the part of their government to assist them, even though it is the only actor that can help them. The hopelessness of their situation is itself a trigger of deep psychological pain.”
The timing of the appeal dovetails with significant international developments. On March 15 the governments of France, Germany, the United Kingdom and the United States released a joint statement (https://www.state.gov/joint-statement-on-the-occasion-of-the-13th-anniversary-of-the-syrian-uprising/) calling on "the international community to rally around the remaining tasks to ensure durable solutions” for the detainees held in prisons and detention camps in Northeast Syria. The U.S. has repeatedly called on its partners to engage in repatriation, with President Joe Biden offering resources to assist in the return of foreign nationals detained in Northeast Syria.
On March 19, the Independent International Commission of Inquiry on the Syrian Arab Republic published a damning indictment of the failure to repatriate children, Punishing the Innocent: Ending Violations against Children in Northeast Syrian Arab Republic (https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/coisyria/policypapersieges29aywar/2024-03-18-punishing-innocent.pdf), which found "The failure to provide even basic medical care, water or food to interned women and children also constitutes a violation of the prohibition of cruel, inhuman or degrading treatment, which may amount to a war crime,” adding, "Releasing, repatriating and reintegrating children into their home communities, with their mothers, is long overdue.”
There are currently 9 Canadian men, 4 women and 13 children who are still detained in Northeast Syria; 26 have been returned in seven separate instances. Three of the women are non-Canadian mothers of Canadian children who have applied for temporary resident permits.
Sally Lane, mother of the longest held Canadian detainee, Jack Letts, declared that, “Right now, we have an immoral stalemate. The Federal Court of Appeal says this is a government matter, while the government refuses to act unless ordered to do so by the courts. While both sides argue over who bears responsibility, the detainees are slowly dying. Does Canada really expect family members to shrug their shoulders and just accept the fact our loved ones are going to die in a foreign prison? It’s shocking the government has been allowed to get away with this inhuman outrage for so long.”
According to Matthew Behrens of Stop Canadian Involvement in Torture, which leads a public campaign for repatriation, “there’s over a year’s worth of compelling new evidence that was not before the court when this matter was first heard in late 2022. The Supreme Court’s refusal to hear their appeal abandoned the detainees to exile even as Canada is implicated in the mistreatment of these Canadians. Ottawa has refused to repatriate them when asked to do so by their jailers, which is a violation of the Geneva Convention and its protocols.”
Much of that new evidence is contained in a detailed affidavit by Alex Neve, a Senior Fellow at the University of Ottawa’s Graduate School of Public and International Affairs and former Secretary General of Amnesty International Canada. Neve was part of a civil society delegation led by Senator Kim Pate that traveled to the region last August, meeting with Kurdish officials and several of the men, in addition to visiting women and children detained in the Al Roj prison camp. The appeal clearly points out that the delegation could have received the men from their Kurdish detainers if the Canadian government had authorized them to do so, but it had refused.
“Canada’s refusal to let the civil society delegation represent it for the prisoner handover is part of its pattern of declining to take up feasible solutions for protecting the Applicants and enabling them to return to their country of citizenship,” the brief points out. “Canada had maintained before the Federal Court that repatriation could only occur if a Canadian government official attended in northeast Syria. This is not so.”
As indicated in the January 2023 ruling by Federal Court Justice Brown that ordered repatriation, no evidence has ever been presented publicly that would implicate the men in any illegal or violent activities.
The reconsideration brief reminds the Supreme Court of this, noting “Canada has presented no evidence of the particular political, religious or ideological views of these men that would make them a threat to Canada. The evidence indicates that Canada has exercised its discretion to repatriate women and children in the same circumstances, leaving the only distinction between these Applicants and those repatriated to be age and gender.”
Neve’s affidavit outlines the significant health concerns of those detained, the ongoing lack of Canadian consular access (and lack of access to legal counsel and family contact), unending FBI interrogations of the men (for whom their families did not even have proof of life when the court proceedings were initiated), the complete lack of any legal process in NE Syria that the men could access to challenge their arbitrary detention, the detainees’ willingness to face any allegations that might exist against them in a fair and transparent Canadian court proceeding, and the rapidly deteriorating security environment in the region as the US plans a military withdrawal from NE Syria by year’s end.
“Our delegation’s concerns about ongoing human rights violations experienced by Canadian prisoners held in NE Syria are heightened by the fact that the Canadian government continues to maintain the position that it is not prepared to arrange their repatriation to Canada,” Neve writes. “Our delegation’s assessment, on the basis of the information we gathered during our mission to NE Syria in late August, is that unless the Canadian government takes steps to facilitate the repatriation of Canadian male prisoners held in NE Syria to Canada, where they can be tried if evidence supports bringing charges, these men face the prospect of an indeterminate and indefinite period of continuing arbitrary and unlawful detention without access to medical care, and without charge or trial, in contravention of international human rights standards that are binding on Canada and are also reflected in the provisions of the Charter of Rights and Freedoms.”
Also included in the application is a year’s worth of public statements made by Prime Minister Trudeau, Global Affairs Minister Melanie Joly and other officials that provide the impression that the government believes it has a responsibility to help its citizens in perilous situations abroad. Its refusal to do so for the Northeast Syria cases is, according to Neve, “either disingenuous, represents a conscious decision to select only some Canadians as deserving of its assistance, or reflects a developing expansive, but inconsistently applied understanding of its obligations towards its citizens” under the Charter of Rights and Freedoms.
Indeed, in an October 30, 2023 speech, Global Affairs Canada Minister Melanie Joly stated: “400 Canadians are trapped in Gaza, they are living in fear and despair. As a government, we have a duty to bring them to safety.”
While such a recognition of Canada’s obligation is an important step, advocates point out, they question why that same obligation does not extend to the Canadians in northeast Syria, who similar live in fear and despair.
“Ultimately, Canada only acts when the courts or threat of court action requires it to do so,” explains Behrens. “In almost every incidence of prior repatriations, it was the threat of going to court that made a difference to bring home 26 women and children. We need the Supreme Court to responsibly exercise its role here and uphold the human rights of these long-suffering arbitrary detainees.”
As the Supreme Court examines the reconsideration brief, other nations dealing with the issue of repatriation will no doubt be paying close attention as well. As the brief points out, “This Court is at the apex of the Canadian judicial system. Its refusal to hear the Applicants’ appeal constitutes a failure of its guardianship role. This is compounded in the international context where the issue of a state’s responsibility to assist a severely distressed and vulnerable citizen is recognized as an evolving area of international human rights law. Other states and international agencies are grappling with the question of whether a state has a positive obligation to repatriate its citizens where this is possible and where not to do so leaves them subject to cruel treatment. The failure of this Court to hear the appeal constitutes a failure of the Court to fulfill the important role it plays in the development of human rights internationally.”
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