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.