Federal Court of Appeal: Canada not constitutionally obligated to bring home suspected ISIS fighters

The Government of Canada has won its appeal and will not be legally forced to repatriate four Canadian men from prisons in Northeast Syria.

A Federal Court of Appeal decision has ruled 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 federal government suspects the men left Canada to join the Islamic State group during the Syrian civil war.  

The men have been detained for years in Kurdish prisons, following the collapse of the ISIS. But none of them have been charged nor has evidence of terrorist activities been presented in court.

Canada, along with other countries has also faced pressure from the United Nations and human rights group to bring their nationals home.

At the crux of the case known as Canada v. BOLOH (Bring Our Loved Ones Home) was a debate over Section 6 of the Charter which states "every citizen of Canada, has the right to enter, remain and leave Canada."

NO CHARTER GUARANTEE OF RIGHT TO RETURN

Lawyers representing the detainees argued that a "right to enter" means a "right to return" - but the panel of three appellate judges disagreed. In its analysis of past legal decisions, the appeal court wrote that the Charter protects against exile and banishment but "offers no encouragement for the idea that Subsection 6(1) includes a right to be returned to Canada."

The appeal panel acknowledged that starting in 2011, the government had repeatedly warned Canadians not to enter Syria due to a brutal civil war. Canada had also closed its embassy in Damascus in 2012 and warned citizens that it could not provide assistance in the country.

The ruling also found that exposing officials to "personal danger" to bring back a person detained in a territory controlled by a non-state entity falls "outside the outer edges" of the charter. The Canadians are held in prisons operated by the Autonomous Administration of North and East Syria.

The decision from the Federal Court of Appeal overturns an earlier decision by Federal Court Justice Henry Brown in January of this year.

Lawrence Greenspon, who represents three of the four detainees, said that he will review the decision and weigh appealing to the Supreme Court.

"We felt the decision of by Federal Court Justice Brown was one we thought was on good legal ground... and we're considering whether or not to send an application for leave to the Supreme Court of Canada," said Greenspon in an interview with CTV National News.

PERPETUATING “ARBITRARY DETENTION AND TORTURE”

Sally Lane, whose son Jack Letts is the only detainee identified in the court documents said in a text message that she was "too downhearted" after finding out about the decision on Wednesday afternoon.

In previous interviews, Lane says her son converted to Islam as a teenager and travelled to Syria in 2014 to help fellow Muslims. She says Letts is not a terrorist and she has not heard from her son since 2019.

Lane did express her emotions on social media, saying the Federal Court of Appeal has made a "clear choice to perpetuate the arbitrary detention and torture of my son and the other Canadians."

"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," Lane's statement posted on Twitter goes on to say.

detainees,” said @CampaignforJack, whose son Jack Letts is the longest held detainee in Kurdish custody. “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 🇨🇦 pic.twitter.com/XNw2kkatC9

— Matthew Behrens (@MatthewBehren11) May 31, 2023

CANADIAN WOMEN AND CHILDREN STILL STRANDED IN CAMPS

This appellate decision does not impact the fate of Canadian women and children that the government has agreed to repatriate. In April, 14 women and children were brought back from Al-Roj detention camp, but five people with Edmonton roots were left behind.

Greenspon said that Global Affairs Canada is committed to bringing them home. A Quebec woman and her six children are also waiting to be brought back after delays in processing the mother's security assessment.

Another group of mothers are currently suing the federal government for repatriation. Canada has agreed to bring home their children, who are the offspring of Canadian fathers who may have died or disappeared in Syria, but not their foreign mothers.

Several women the government suspected of marrying ISIS fighters face terrorism related charges or have been put on a terrorism peace bond. Since their return these Canadians have been placed under strict conditions and placed in de-radicalization programs.