鈥淏ring them back!鈥 activists yell at lawyers as they walk into the Federal Court in Ottawa, where Justice Henry Brown will decide whether or not to order the Canadian government to repatriate more than 40 Canadians imprisoned in northeast Syria.
Lawyers representing the detainees argue that the constitutional rights of dozens of Canadians with alleged ISIS ties are being violated as they languish in prison camps in territory that Kurdish forces reclaimed from the Islamic State.
The majority of the Canadian detainees are young children. They are the offspring of presumed wives and widows of alleged extremists.
At least five of the detainees are men who are suspected of travelling to Syria and joining the Islamic State during the country鈥檚 civil war, which began in 2011 and ended in 2019.
In court, Ottawa lawyer Lawrence Greenspon, who represents more than half of the Canadian detainees, argued the women and children 鈥渁re held without cause and the men are held without charge.鈥
According to court filings, the women and their children are being held in open-air camps in Al-Hol and Al-Roj, while the men are confined in cells at the Al-Cherken prison. The detention centres are controlled by Kurdish forces.
The federal government has already repatriated 3 women and four children, among them Kimberly Polman, who is under a peace bond, and a Montreal woman who has been charged with four terrorism-related offences.
Greenspon wonders why the same can鈥檛 be done with the remaining detainees. He is representing 23 Canadians, including four men, six women and 13 children.
In court, Greenspon said the detainees have had their charter right to 鈥渓ife, liberty and security of person violated.鈥 He also argued that the Canadians are subject to cruel and unusual punishment because their detention continues without an end date. Greenspon also pointed out that the male detainees have lost their right to equal protection under the law because Global Affairs Canada (GAC) has excluded them from an apparent 鈥11th hour鈥 repatriation policy.
Ten days before the hearing started, on Nov. 24, the federal government sent letters to the female repatriation applicants, notifying them that they and their children were now eligible to be assessed for extraordinary assistance based on 鈥渄eteriorating conditions鈥 in the camps. There were no letters sent to the imprisoned Canadian men.
In the letters, GAC acknowledged 鈥渓imited access to medical care, inadequate food and water [鈥 which can be attributed to the rise in violence鈥 at Al-Hol camp. At the Al-Roj camp, GAC notes that circumstances have grown more dangerous because of the transfer of certain individuals and that there is a possible cholera outbreak.
Despite their concerns outlined in the letter, GAC did not provide a timeframe for extricating the Canadians.
鈥淭he change comes so late in the game, and it鈥檚 still tied to danger on the ground [鈥 because there鈥檚 no timeframe set out. What is this abrupt change of face in policy worth?鈥 asked Greenspon.
Greenspon says the letters are another example of a delay tactic and what is needed is concrete action. He argues the Federal Court needs to order the government to repatriate the Canadians and issue travel documents, then appoint a representative to be present for the handover of detainees.
Meanwhile, federal lawyer Anne Turley told the court that there is no obligation under domestic or international law to repatriate the individuals. Turley argued that the Charter doesn鈥檛 apply because Canadian officials are not actively participating in the detention, and didn鈥檛 ask the Kurdish forces to take the Canadians into custody 鈥 that the 鈥渇oreign entities are operating independently of Canada鈥檚 jurisdiction or control.鈥
Turley points out that Canada closed its embassy in Syria in 2012. She says that any repatriation efforts must strike a balance between the safety and security of Canadian officials and the detainees, along with national security considerations.
In court, Turley stated that protecting Canada from threats posed by people who travelled abroad to participate in armed combat, fundraising, recruiting or producing media or propaganda for extremist organizations could be terrorism offences.
The training these people received overseas could make them a threat to national security and public safety if they were to return to Canada, Turley argued.
Outside court, Greenspon said that Canada has laws and resources to prosecute these individuals when they are repatriated.
鈥淚f you鈥檝e got some indication that these people have committed crimes, bring them home and give them a fair trial. You can鈥檛 let them rot in prison without charge or in detention camps without reason.鈥
Sally Lane has filed affidavits related to her son, Jack Letts, a British-Canadian man who has been imprisoned in a Kurdish prison since 2017. She is represented by lawyer Barbara Jackman. Her son is the only imprisoned Canadian man identified in court documents. Lane believes her son has been tortured. Lane says her son converted to Islam as a teenager and travelled to Syria in 2014 to help fellow Muslims. She says he is not a terrorist. Lane has not heard from her son in three years.
鈥淗e told us not to give up hope. He said very little. His early letters were feisty and quite spirited but all that is gone,鈥 said Lane. The British government stripped Letts of his citizenship in 2019, and this legal hearing in Canada could be Lane鈥檚 last chance at forcing the government to find out what happened to her son. She wants proof of life and her son returned to Canada.
But Lane鈥檚 legal fight was delayed again. The matter was adjourned after two days before all the evidence was heard. The Federal Court is scrambling to find another court date as the lives of Canadians are put at risk in camps half a world away.
This story has been updated to say the children are the offspring of presumed wives and widows of alleged extremists, rather than the offspring of wives and widows of ISIS fighters.
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