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 Canadian representative present to facilitate their handover, and to passports or emergency travel documents.
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.”
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.
Lawrence Greenspon, the lawyer representing the four men detained abroad, 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.”
ANNES 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 government 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 one reason given to the court is that 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.
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.
WATCH/ Dozens of Canadians to be repatriated from Syrian detention camps
The federal government has agreed to repatriate 19 Canadian women and children held in Syrian detention camps for suspected ISIS members and their families.
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.
Mother calls appeal a ‘cruel charade’
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?”
Human Rights Watch estimates roughly four dozen Canadian men, women and children — most of them under the age of six — are in detention camps in Syria, but say exact numbers are difficult to obtain.
