OTTAWA, November 2, 2024 – In a late afternoon announcement on Friday, November 1, the Supreme Court of Canada announced it would not hear the request for reconsideration of an earlier decision not to hear an appeal in a case dealing with the repatriation of four Canadian men arbitrarily detained for up to 7.5 years under dire conditions in Northeast Syria. It came almost a full year after the Court refused last November to hear the original appeal, and bookended a dramatic week in which it was revealed that a Canadian mother of six previously denied repatriation from Northeast Syria had died under suspicious circumstances in a Turkish deportation facility.
“This leaves my son Jack and the other detainees under an indefinite state of exile with a Canadian judicial stamp of approval,” said Sally Lane, who has fought to bring her son home for almost a decade. “What does it say about our country’s highest court when they see the clear injustice taking place here yet fail to even consider the case? The evidence before them showed it is very easy to repatriate these men, yet the government of Canada refuses to assist, even though the Federal Court judge who heard the original case concluded that ‘Canadians are dying or at risk of dying every day this matter is adjourned.’”
Another mother of one of the Canadian detainees shared Lane’s sense of devastation. “I am greatly disappointed that the Supreme Court of Canada has decided not to give any reconsideration of this verdict,” she said. “Especially, because the previous verdict itself was overturned – meaning that there was no judicial consensus on the responsibilities of Global Affairs to Canadian citizens who are detained abroad without charges and while facing no trials. How can any Canadian ever be confident that if – God forbid – they are detained abroad like this, that their government will even attempt to assist them, when our federal courts won’t compel them to perform this minimum duty?”
Given the length of the litigation, the deteriorating conditions faced by the detainees, and the dogged refusal of the Canadian government to assist in their return, last March, the detainees’ families and legal team took the rare step of seeking a reconsideration of the November 16, 2023 decision not to hear an appeal in the case and full hearing before the country’s highest court.
The Court did not give reasons for its decision to refuse the reconsideration request, stating only that it did not feel that this life-and-death appeal met the test of “exceedingly rare circumstances.”
“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,” read the reconsideration brief filed on March 15, 2024. “The circumstances in which these men find themselves are of a rare severity, yet the [Federal] 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 devastating Supreme Court decision came exactly one month after US Secretary of State Anthony Blinken called repatriation the “only durable solution to the humanitarian and security crisis in northeast Syria. We have to urgently accelerate our work to repatriate, reintegrate, and – where appropriate – prosecute detained and displaced persons from northeast Syria. The United States stands ready to provide support – logistically, diplomatically – to advance this effort.” Inexplicably, the Canadian government continues to ignore this clear offer of assistance from our closest ally.
There are currently 9 Canadian men, 7 Canadian children, and 4 non-Canadian mothers and siblings of those Canadian children who are still detained in Northeast Syria; 32 have been returned in eight separate instances. The non-Canadian mothers of Canadian children have applied for temporary resident permits.
“The Supreme Court’s refusal to hear this critical case leaves us with an immoral stalemate,” Lane continued. “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, like we saw this week in the case of the Canadian mother FJ? It is 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 had been 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 last year, and last Friday’s decision, have combined to abandon the detainees to banishment 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 Canada’s binding international obligations.”
Much of that new evidence had been 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 a professor of international human rights law. Neve was part of a civil society delegation led by Senator Kim Pate that traveled to the region in August 2023, meeting with Kurdish officials and two of the detained men, in addition to visiting women and children detained in the Al Roj prison camp. The appeal clearly pointed 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 reconsideration brief had pointed 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 (overturned at the Federal Court of Appeal and denied leave and reconsideration by the Supreme Court), no evidence has ever been presented publicly that implicates the men in any illegal or violent activities.
The reconsideration brief reminded 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 outlined 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 wrote. “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 was a year’s worth of public statements made by Prime Minister Trudeau, Foreign 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, Minister 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 question why that same obligation does not extend to the Canadians in northeast Syria, who similarly 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 bringing home 32 women and children. The Supreme Court failed to responsibly exercise its role here and uphold the human rights of these long-suffering arbitrary detainees.”
Repatriation advocates point to the dangerous precedent that yesterday’s decision poses for other nations whose nationals are detained in northeast Syria. As the reconsideration brief pointed 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.”
Officials have resisted the return of Canadian citizens, however, despite clear declarations from Kurdish officials that all Ottawa must do is request their return by letter, provide travel documents, and send an envoy or delegate to the region for a sign over, after which the US military would fly the detainees home (as it has frequently done for American and also previously for Canadian detainees).
The detainees’ loved ones continue to press the federal government to follow those three easy steps, noting their loved ones have expressed a willingness to face any credible allegations against them in a fair, transparent judicial proceeding on Canadian soil.
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