Federal government must respect Federal Court ruling and repatriate all Canadians detained in northeast Syria, says Canada’s legal community

Today, an unprecedented open letter was sent to Canadian Prime Minister Justin Trudeau by more than 110 members of Canada’s legal community, calling on his government to honor the recent Federal Court ruling ordering the repatriation of Canadians arbitrarily detained in northeast Syria and work to urgently bring them back to Canada, consistent with the country’s domestic and international law obligations.

The full letter is below, and available as PDF here.

On January 20, 2023, the Federal Court of Canada ordered four of the detained Canadian men returned under section 6(1) of the Charter of Rights and Freedoms, which guarantees Canadian citizens the right to enter Canada. Instead of honoring this decision, though, the federal government is appealing it, and, in doing so, making the troubling argument that by upholding basic rights, the courts are somehow interfering in government affairs. 

The letter is being released as the Federal Court of Appeals hears arguments today in the government’s appeal of the initial ruling. The letter is in support of an op-ed published today in the Globe and Mail.

• Former Minister of Justice and Attorney General of Canada Allan Rock
• Human rights advocates Alex Neve, Sharry Aiken, Faisal Kutty, Yavar Hameed, Azeezah Kanji, Paul Champ, Carmen Cheung Ka-Man and Nicole Filion
• International law experts François Crépeau, Obiora Okafor, Michael Byers and John Packer
• Experts in national security and criminal law Kent Roach and Faisal Bhabha
• Natasha Bakht, Jasminka Kalajdzic, Robert Currie, Ardi Imseis and numerous other law professors from across the country
• Representatives of the Canadian Civil Liberties Association, the Canadian Muslim Lawyers Association, the Arab Canadian Lawyers Association, the National Association of Women and the Law, the Canadian Council of Muslim Women, the BC Civil Liberties Association and the David Asper Centre for Constitutional Rights, among many others.

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“The only course of action to address these grave human rights concerns and show that Canada takes its human rights obligations seriously is to repatriate these men as soon as possible. At a time when universal principles such as the right to a fair trial and prohibitions on arbitrary detention, torture and ill treatment are increasingly undermined around the world, this is an opportunity for Canada to lead by example.”

– Allan Rock, former Minister of Justice and Attorney General of Canada

“The courts have recognized that the right of Canadian citizens to return to Canada is fundamental and foundational. Rights without effective remedies are less than useless. Further delay may make effective remedies impossible and the government should respect the court’s findings and repatriate these Canadian citizens.”

– Kent Roach, Professor of Law, University of Toronto Faculty of Law

“Repatriating Canadians held in life-threatening, indefinite detention in northeast Syria is an important step in addressing systemic Islamophobia. The federal government has claimed an interest in rectifying this problem. They must now act.”

– Natasha Bakht, Professor, Shirley Greenberg Chair for Women and the Legal Profession, University of Ottawa

“Over fifteen years ago, the Arar and Iacobucci Inquiries confirmed that Canadian agencies had failed Maher Arar, Ahmad Elmaati, Abdullah Almalki and Muayyed Nureddin. Canada violated its own policies and legal duties and thus contributed to the torture of these four Canadian citizens by Syrian officials. The current government’s refusal to repatriate other Muslim Canadian men is a continuation of a policy under which some individuals’ citizenship counts for less than others’. Canada must repatriate the men, as other countries have done with their own citizens, and show that it has learned from the grievous mistakes made in the so-called war on terror.”

– Jasminka Kalajdzic, Associate Professor at Windsor Law, and counsel at the Iacobucci Inquiry

“‘A Canadian is a Canadian is a Canadian.’ Justin Trudeau said that, in July 2015. We’re just asking for consistency.”

– Michael Byers, Canada Research Chair in Global Politics and International Law, University of British Columbia

“As Justice Henry Brown stated in his decision, every day the Canadian government delays, it puts the lives of these Canadians in danger. The federal government’s refusal to respect the decision of the courts and to leave these Canadians under indefinite detention in overcrowded prisons and brutal detention camps is not just unacceptable and inhumane, it is a violation of the Canadian Charter of Rights and Freedoms.”

– Tim McSorley, national coordinator of the ICLMG

FULL LETTER:

March 27, 2023

The Right Honourable Justin Trudeau, P.C., M.P.
Prime Minister of Canada

Office of the Prime Minister
80 Wellington Street
Ottawa, ON
K1A 0A2

via email

RE: Urgent repatriation of Canadians detained in northeast Syria

Prime Minister:

As members of the legal community, we write to express our serious concern regarding the Canadian government’s continuing refusal to repatriate all Canadians detained in camps and prisons in northeast Syria^[1] – urgent repatriation being “the only international law-compliant response,” in the assessment of the UN Special Rapporteur on counter-terrorism and human rights.^[2]

Indeed, on January 20, the Federal Court of Canada ordered several of the detained Canadian men returned under section 6(1) of the Charter of Rights and Freedoms, which guarantees Canadian citizens the right to enter Canada: a protection for all Canadians against banishment and the concomitant expulsion from the “right to have rights.”^[3] Yet instead of honouring this decision that gives meaningful life to Charter provisions, the federal government is appealing it. In doing so, it is not only prolonging the dire and life-threatening conditions of the detainees, but also putting forward the troubling legal argument that the Court, in performing its essential function of upholding basic rights, is impermissibly “interfering in the exercise of Crown prerogative over matters of foreign affairs.”

This is particularly disturbing given the scale of rights violations involved. As described by the Federal Court and documented by UN experts and international human rights organizations, the deplorable conditions and abuses experienced by Canadian and other detainees in northeast Syria include: long-term, extrajudicial, indefinite, and in many cases incommunicado detention without the possibility of trial;^[4] torture and ill-treatment;^[5] life-threatening denial of food, water, sanitation, shelter, and medical treatment;^[6] failure to provide education;^[7] sexual violence and exploitation, particularly against women and children;^[8] extreme physical danger for children, at least 371 of whom died in just one of the camps (al-Hol) in 2019 alone, including from malnutrition, dehydration, tent fires, shooting, stabbing, and drowning in open sewage pits;^[9] and child separation,^[10] including the mass “culling, separation and warehousing of adolescent boys from their mothers” in “detention facilities [where they] endure untreated war injuries, missing limbs, and severe trauma.”^[11] Such treatment violates international and Canadian constitutional provisions protecting the rights to life, liberty, security of the person, fair trials, equality, and of children; and prohibiting secret and arbitrary detention, enforced disappearances, collective punishment, and torture and ill-treatment.^[12]

Thirty-five countries have done what the Federal Court has asked the Federal government to do: repatriate its citizens.^[13] States that have repatriated their citizens to date include Australia, Belgium, France, Germany, and the United States.^[14] More than 6,000 detainees across 35 countries have been repatriated.^[15] Commending Kyrgyzstan’s decision to repatriate 59 detainees from the camps this February, the US Department of State emphasized: “Repatriation is the only durable solution to this urgent humanitarian and security situation […] We urge all governments to follow Kyrgyzstan’s example and repatriate their nationals.”^[16]

Calls for repatriation have now been issued by US President Joe Biden, the International Committee of the Red Cross, 22 United Nations experts, the Canadian House of Commons Standing Committee on Foreign Affairs and International Development, and the Kurdish authorities administering the camps and prisons.^[17] The conditions for release outlined by Kurdish authorities could not be expressed more simply: that Canada write a letter requesting the detainees’ release, that Canada ensure travel documents are ready for issue, and that a Canadian representative appear in northeast Syria for a handover signing. The United States military has pledged to provide the security and resources necessary to fly detainees home.

The Canadian government’s highly restrictive approach to repatriation is incompatible with international and constitutional legal norms. For example, Global Affairs Canada’s “Policy Framework [for repatriation] appears drafted to exclude the Canadian men [… in which] case the Policy Framework as presently advised could not withstand subsection 6(1) Charter scrutiny,” as the Federal Court concluded.^[18] Moreover, the refusal to admit detained non-Canadian mothers with their Canadian children effectively mandates forcible child-parental separation, in contravention of the Convention on the Rights of the Child.^[19]

Canada’s failure to repatriate perpetuates a pattern of Canadian governmental complicity with the overseas torture, arbitrary detention, and forced exile of Muslim Canadians, as recorded in the two official inquiries on the cases of Maher Arar, Ahmad Abou El-Maati, Abdullah Almalki, and Muayyed Nureddin,^[20] and multiple legal complaints.^[21]

Instead of advancing legal interpretations that would vitiate fundamental rights protections, we call on the Canadian government to honour the Federal Court’s repatriation order; to work to urgently bring back all Canadian detainees and, with respect to detained children, any non-Canadian caregiving parents as well; and to finally address the underlying deficiencies in Canadian policies – many of them identified in unimplemented recommendations from the 2006 Arar Inquiry^[22] – that have led to this deplorable situation, to prevent any future recurrence.

We urge this course of action both to address the grave human rights concerns in these pressing cases, and to convey a strong and much-needed message that Canada does indeed take its human rights obligations seriously in a world and at a time when those universal principles are increasingly undermined.

 

Signed by:

1. Allan Rock, former Minister of Justice and Attorney General of Canada, former Ambassador to the United Nations and President Emeritus of the University of Ottawa
2. Sharry Aiken, Faculty of Law, Queen’s University
3. Paul Champ, constitutional lawyer
4. Kent Roach, Professor of Law, University of Toronto Faculty of Law
5. Carmen Cheung Ka-man, Senior Fellow, Munk School of Global Affairs and Public Policy, University of Toronto
6. Alex Neve, Adjunct Professor, International Human Rights Law, University of Ottawa
7. Natasha Bakht, Professor, Shirley Greenberg Chair for Women and the Legal Profession, University of Ottawa
8. Noa Mendelsohn Aviv, Executive Director & General Counsel, Canadian Civil Liberties Association
9. Husein Panju, Chair of Canadian Muslim Lawyers Association
10. Michael Byers, Canada Research Chair in Global Politics and International Law, University of British Columbia
11. Michael Lynk, Former United Nations Human Rights Special Rapporteur
12. John Packer, Director of the Human Rights Research and Education Centre, University of Ottawa
13. Obiora Okafor, Professor of International Law, Johns Hopkins University, Washington DC
14. Aviva Basman, President, Canadian Association of Refugee Lawyers
15. Tiffany Butler, Executive Director, National Association of Women and the Law
16. Tim McSorley, national coordinator, International Civil Liberties Monitoring Group
17. Yavar Hameed, human rights lawyer
18. Azeezah Kanji, legal academic and journalist
19. Nicholas Pope, lawyer, Hameed Law
20. Irina Ceric, Assistant Professor, University of Windsor Faculty of Law
21. Jasminka Kalajdzic, Associate Professor
22. Sarah Beamish, lawyer
23. Dr. Ardi Imseis, Faculty of Law, Queen’s University
24. Constance MacIntosh, Professor of Law, Schulich School Of Law, Dalhousie University
25. Faisal Bhabha, Associate Professor, Osgoode Hall Law School
26. Dania Majid, Arab Canadian Lawyers Association
27. André Capretti, lawyer
28. Dr. Ashwini Vasanthakumar, Associate Professor, Queen’s Law School
29. Faisal Kutty, Associate Professor of Laws at Southwestern Law School and Affiliate Faculty at Rutger University’s Center for Security, Race and Rights
30. Robert J. Currie, Professor of Law, Schulich School of Law, Dalhousie University
31. Michael Bossin, lawyer, sessional professor, Queen’s University, University of Ottawa
32. François Crépeau, Professor of International Law, McGill University
33. Matthew Behrens, Legal Researcher, Stop Canadian Involvement in Torture
34. Suzanne Larose, Paralegal / Community Legal Caseworker at CLSO
35. Laïla Demirdache, Staff Lawyer, Community Legal Services of Ottawa & Sessional Professor, University of Ottawa
36. Catherine Morris, lawyer (non-practicing)
37. Christelle Azzi, lawyer
38. Charis Kamphuis, Associate Professor, Faculty of Law, Thompson Rivers University
39. Xan Dagenais, Research Coordinator, International Civil Liberties Monitoring Group
40. Dr. Kjell Anderson, Director, Master of Human Rights program University of Manitoba
41. Aditya Rao, lawyer
42. Laura MacLean, Staff Lawyer, Community Legal Services of Ottawa
43. Esther Dionne Desbiens, lawyer
44. Fatma Alobeid, JD Candidate, University of Ottawa
45. Professor Martha Jackman, Faculty of Law, University of Ottawa
46. Raphael Vagliano, international human rights lawyer
47. Fawad Siddiqui, lawyer
48. Aadil Nathani, lawyer
49. Élaine Simon, staff lawyer at Community Legal Services of Ottawa
50. Mahmoud Khodr, financial controller
51. Justin Safayeni, lawyer
52. Mudasir Marfatia, General Counsel and Vice President, Legal at First Ontario
53. Del Atwood, retired judge
54. Imran Abdool, Lecturer, University of Western Ontario
55. Lex Gill, Lawyer and Course Lecturer, Faculty of Law, McGill University
56. Sujith Xavier, Associate Professor University of Windsor Faculty of Law
57. Pearl Eliadis, human rights lawyer and associate professor (professional), McGill University
58. Nicole Filion, lawyer, former coordinator, Ligue des droits et libertés
59. Mohamed El Rashidy, lawyer
60. Christopher Campbell-Duruflé, Assistant Professor, Lincoln Alexander School of Law, Toronto Metropolitan University
61. Hilary Evans Cameron, Assistant Professor, Lincoln Alexander School of Law
62. Kareem Ibrahim, lawyer
63. Naseer (Irfan) Syed, lawyer
64. Alastair Clarke, immigration lawyer based in Winnipeg
65. Basmah Osman, Canadian Muslim Lawyers Association
66. Mary Boyce, lawyer
67. Karina Thompson, lawyer
68. Amina Younas, corporate lawyer, Vancouver
69. Rebeka Lauks, lawyer
70. Mustafa Khan, lawyer
71. Omair Jafrani, lawyer, McCarthy Tetrault
72. Aziza Hirsi, Canadian Association of Somali Lawyers
73. Denis Barrette, lawyer and activist, Ligue des droits et libertés
74. Aaqib Raza, Canadian Muslim Lawyers Association
75. Rabiat Akande, Osgoode Hall Law School
76. Adrian A. Smith, Associate Professor, Osgoode Hall Law School
77. Mahvish Mian, Canadian Muslim Lawyers Association
78. Andrew Brouwer, lawyer
79. Kristin Marshall, lawyer and educator
80. Daniel Sheppard, lawyer
81. Sonia Lawrence, Associate Professor, Osgoode Hall Law School
82. Adriel Weaver, lawyer
83. Nuzhat Jafri, Canadian Council of Muslim Women
84. Julia Sande, lawyer
85. Roxana Parsa, lawyer
86. Aleem Bharmal, KC, human rights lawyer
87. Jacqueline Bonisteel, immigration lawyer
88. Meagan Johnston, lawyer
89. Susan B. Boyd, Professor Emerita, Allard School of Law, University of British Columbia
90. Mohammad Fadel, Professor of Law, University of Toronto Faculty of Law
91. Cheryl Milne, Executive Director, David Asper Centre for Constitutional Rights
92. Asad Kiyani, Assistant Professor, Faculty of Law, University of Victoria
93. Suzanne Zaccour, lawyer and researcher
94. Margaret Keys, lawyer
95. Emma Wilson, lawyer
96. Eileen Myrdahl, lawyer
97. Kyong-ae Kim, retired lawyer
98. Safiyya Ahmad, Articling Student, BC Civil Liberties Association
99. Kat Owens, lawyer
100. Ga Grant, human rights lawyer
101. Meghan McDermott, Policy Director, BC Civil Liberties Association
102. Mehreen Mulla, lawyer
103. Coral Lyster, lawyer
104. Dan Shoom, lawyer
105. Brenda McPhail, Director, Privacy Technology & Surveillance Program, Canadian Civil Liberties Association
106. Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association
107. Makaela Peters, lawyer
108. Sherry MacLeod, lawyer
109. Karen Coulter, retired lawyer
110. Kristina Cooke, lawyer
111. Omar Chu, Community Legal Worker
112. Ellen Campbell, lawyer
113. Asiya Hirji, lawyer
114. Ibrahim Danial, Director, Downtown Muslim Professional Network

[1] https://globaljustice.queenslaw.ca/news/human-rights-and-citizenship-abandoned-in-ne-syria-a-special-issue-of-the-global-justice-journal.

[2] https://www.ohchr.org/en/special-procedures/sr-terrorism/return-and-repatriation-foreign-fighters-and-their-families.

[3] https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522819/index.do?; https://link.springer.com/chapter/10.1007/978-3-319-92719-0_31.

[4] https://www.hrw.org/report/2020/06/29/bring-me-back-canada/plight-canadians-held-northeast-syria-alleged-isis-links; https://www.justsecurity.org/85049/repatriating-alleged-isis-linked-men-from-northeast-syria-the-start-of-judicial-responses-to-the-political-stalemate/.

[5] https://www.hrw.org/report/2020/06/29/bring-me-back-canada/plight-canadians-held-northeast-syria-alleged-isis-links; https://stj-sy.org/en/detainees-tortured-and-maltreated/.

[6] https://www.doctorswithoutborders.org/sites/default/files/documents/MSB141137%28High%29.pdf.

[7] https://www.savethechildren.net/news/children-abandoned-their-governments-are-%E2%80%98wasting-away%E2%80%99-syrian-camps-%E2%80%93-save-children.

[8] https://www.rightsandsecurity.org/assets/downloads/Europes-guantanamo-THE_REPORT.pdf, https://www.doctorswithoutborders.org/sites/default/files/documents/MSB141137%28High%29.pdf, https://reliefweb.int/report/syrian-arab-republic/assistant-secretary-general-humanitarian-affairs-and-deputy-emergency-relief-coordinator-ms-joyce-msuya-briefing-security-council-humanitarian-situation-syria-29-august-2022, https://reliefweb.int/report/syrian-arab-republic/syria-un-human-rights-chief-condemns-brutal-killing-two-girls-alarmed-sharp-rise-violence-al-hol-camp, https://syria.unfpa.org/en/news/without-rights-without-options-birthing-without-skilled-birth-attendant-al-hol-camp.

[9] https://www.hrw.org/news/2023/01/27/revictimizing-victims-children-unlawfully-detained-northeast-syria.

[10] https://www.ohchr.org/en/press-releases/2023/02/syria-un-experts-alarmed-reports-boys-taken-camp-roj-de-facto-authorities.

[11] https://www.ohchr.org/sites/default/files/Documents/Issues/Terrorism/SR/UNSRCT_Position_human-rights-of-boys-adolescents-2021_final.pdf.

[12] Charter of Rights and Freedoms, sections 7, 9, 12, and 15; International Covenant on Civil and Political Rights, articles 2, 6, 7, 9, 10, 14, 24; International Covenant on Economic, Social, and Cultural Rights, articles 11, 13; International Convention for the Protection of All Persons from Enforced Disappearance; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CAT%2FC%2F75%2FD%2F922%2F2019&Lang=en (decision by the UN Committee Against Torture finding France in violation of the Convention for failing to take effective measures to protect its nationals in the camps); Convention on the Rights of the Child; Rome Statute of the International Criminal Court, article 7; https://casebook.icrc.org/a_to_z/glossary/collective-punishments; https://www.hrw.org/news/2023/01/27/revictimizing-victims-children-unlawfully-detained-northeast-syria; https://www.justsecurity.org/85049/repatriating-alleged-isis-linked-men-from-northeast-syria-the-start-of-judicial-responses-to-the-political-stalemate/.

[13] https://www.hrw.org/news/2023/01/27/revictimizing-victims-children-unlawfully-detained-northeast-syria.

[14] https://www.rightsandsecurity.org/action/resources/global-repatriations-tracker.

[15] https://www.hrw.org/news/2023/01/27/revictimizing-victims-children-unlawfully-detained-northeast-syria.

[16] https://www.state.gov/u-s-welcomes-kyrgyzstans-repatriation-of-nationals-from-northeast-syria/.

[17] https://www.thetimes.co.uk/article/joe-biden-urges-western-allies-to-bring-back-isis-families-held-in-syria-sng77cngg; https://www.icrc.org/en/document/remarks-fabrizio-carboni-icrc-near-and-middle-east-regional-director-record; https://www.ohchr.org/en/press-releases/2021/02/syria-un-experts-urge-57-states-repatriate-women-and-children-squalid-camps; https://www.ohchr.org/en/press-releases/2023/02/syria-un-experts-alarmed-reports-boys-taken-camp-roj-de-facto-authorities; https://www.ourcommons.ca/DocumentViewer/en/43-2/FAAE/report-7/;

[18] https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522819/index.do?, para 190.

[19] Article 9, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child.

[20] https://publications.gc.ca/site/eng/295791/publication.html; https://secretlaw.omeka.net/items/show/74.

[21] For example, relating to the cases of Abousfian Abdelrazik (https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56734/index.do), Omar Khadr (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/4638/index.do), and Mohamedou Slahi (https://files.constantcontact.com/3ffcf3a6301/2c1019a8-43eb-487e-b54d-6e5f7be42aab.pdf).

[22] https://publications.gc.ca/site/eng/295791/publication.html.

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