Ottawa asks court to dismiss ruling directing it to repatriate 4 men detained in Syria
Is the Canadian government under a legal obligation to repatriate four men detained?
The federal government says the Federal Court of Appeal should dismiss a high-profile ruling ordering Canada to bring home four Canadian men detained in northeastern Syrian prisons for suspected ISIS members.
Government lawyers told a Toronto court that the Federal Court made errors in its ruling. They said the court misinterpreted the Charter of Rights and Freedoms when it directed officials to "take extraordinary measures" to secure the release of the men.
Federal lawyer Anne Turley argued during the one-day hearing that the lower court's judgment interpreted a citizen's right to enter Canada as a right to expect the government to rescue and return citizens if they're in trouble.
Turley called that interpretation a "wholesale expansion of the law with broad-ranging implications."
"Here we have a detention by a non-state entity. The next time, it might be somebody who was stranded because of a natural disaster," Turley told the court. "It could be somebody who is in trouble in other ways."
The men travelled to northeastern Syria against the travel advice of the Canadian government and have been held in prisons for those suspected of ISIS affiliation. The camps in northeastern Syria are run by the Kurdish forces that reclaimed the war-torn region from the extremist group.
At the centre of the appeal is Federal Court Justice Henry Brown's decision in January that ruled the four men detained in Kurdish prisons were entitled to have the federal government make a formal request for their release "as soon as reasonably possible."
Brown's decision also ruled the men are entitled to have at least one representative or delegate present to facilitate their handover, and to passports or emergency travel documents.
The appeal will determine whether the Canadian government is under a legal obligation to repatriate.
The International Civil Liberties Monitoring Group sent an open letter to Prime Minister Justin Trudeau on Monday calling on the government to "honour" the Federal Court ruling and repatriate the Canadians "arbitrarily detained."
The letter is signed by more than 100 members of the Canadian legal community, including former minister of justice Allan Rock and multiple human rights advocates, national security experts and lawyers, according to a press release.
One of the three judges on the Federal Court of Appeal asked if the Federal Court should even be dealing with this matter.
"Aren't we right at the bullseye of where courts have to defer on such matters and didn't the Federal Court err in ignoring that completely?" Justice David Stratas asked.
Stratas said no other court in the world has ruled that governments with citizens detained in Syria have a legal obligation to bring them home.
Lawrence Greenspon, the lawyer representing the four men detained abroad, said there aren't many countries that have a Charter of Rights and Freedoms like Canada's.
He argued the matter is within the court's purview and called it a "very unusual and unique situation."
"[The Autonomous Administration of North and East Syria (AANES)] has de facto control over the territory and the prisons and has repeatedly requested Canada and over 25 countries [to] please come and take their nationals," he said. "This is an unprecedented situation."
AANES has set three pre-conditions for the release of detainees: there must be a formal request from a national government for their release, emergency travel documents must be issued and a representative must be present for the handover. Greenspon said the government met these conditions on four occasions when it repatriated three women and four children.
"How are you able to do it there?" said Greenspon.
Stratas said there's evidence to show the male detainees are alleged to be ISIS-affiliated and aren't in "quite the same position" as the women and children.
Greenspon said two of the women repatriated last year were arrested. One of them is facing four criminal charges, including participating in a terrorist group. A terrorist peace bond is being sought for the other woman, said Greenspon.
He also said that the four men have been held "indeterminately for more than four years and have not been charged with any crime." The federal government also hasn't alleged any of the men engaged or assisted in terrorist activities, said Greenspon.
"There's no question this is the epitome of arbitrary detention," said Greenspon. "Canada's failure to act, refusal to act is the real cause for them not being able to be returned."
The one-day hearing comes after the federal government struck a last-minute deal in January to repatriate 19 women and children held at detention camps, which removed them from the Federal Court case a day before the ruling came out.
The women and children are set to arrive on Canadian soil any day now.
Canadians detained in China referenced during hearing
Justice Siobhan Monaghan asked what kind of exposure the government could face if it doesn't meet another country's conditions for repatriation.
"What if AANES said you have to pay a ransom, $50 million, in order for us to agree to release these four men," said Monaghan. "Canada can afford to pay $50 million. Where do we draw the limits?
"And doesn't that open Canada to exposure that any time a Canadian is kidnapped that they'll be a demand, that my mobility rights are being infringed because Canada is refusing to pay a ransom?"
Greenspon replied this has happened before and pointed to the case of China's arbitrary imprisonment of Canadians Michael Spavor and Michael Kovrig for more than 1,000 days. Their detention was widely viewed as a pressure tactic meant to get Canadian authorities to release telecommunications executive Meng Wanzhou, who was arrested on a U.S. warrant in Vancouver in 2018.
"China was saying, 'No we're not giving them back unless you do this, and this and this,'" said Greenspon. "What did Canada do? They took every possible step diplomatic or otherwise to have those men returned. Ultimately, they made the trade."
He said he can't see a court ordering Canada to pay a ransom, but could see a court ordering Canada to make an official request for repatriation or issue emergency travel documents.
Stratas said he thinks Greenspon is "overstating the simplicity of this" and added there is evidence to indicate that AANES requires that senior Canadian officials show up so detainees can be handed over for repatriation.
Greenspon had said a third-party country or representative could be present for a detainee's handover. A former U.S. diplomat helped free a 4-yr-old Canadian girl in 2021; she was repatriated to Canada.
Jack Letts one of the men detained
The four men at the centre of the court battle include Jack Letts. He's been imprisoned for more than four years in notheastern Syria.
Letts was a dual British-Canadian citizen until the U.K. government stripped him of his citizenship in 2019.
During a 2018 interview with U.K.-based ITV News, Letts said he joined ISIS in Syria and said "it was probably the stupidest thing I'd ever done." Letts said he hadn't killed or hurt anyone.
His family has said he gave the interview while under duress and was jailed three times for opposing ISIS. His family said Letts was captured by the Kurds while escaping them.
His mother, Sally Lane, recently published a book describing almost ten years spent trying to get her son to Canada. She sent a copy to Prime Minister Trudeau last month, according to Lane's social media.
Lane tweeted Monday that she felt the federal government would argue in court that Canada should be "allowed to perpetuate the physical and mental degradation and annihilation of my son."
"Why do they want to destroy another human being?" tweeted Lane. "Why is [Canada] allowing this cruel charade? Why does this [government] decide who is human and who is not?"
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