Exceptional application asks SCC to reconsider case of Canadians in Northeast Syria*

The prohibition on arbitrary arrest and detention is cornerstone to the rule of law, protected by such safeguards as the obligation to charge anyone who is deprived of their liberty with a recognized offence, provide them with a means to lawfully challenge their imprisonment and guarantee that they will face a prompt, fair trial at which they will be able to defend themselves.

It is the very essence of liberty, which is at the core of the sense of human dignity that underpins the very notion of what it means to have human rights in the first place.

Canada surely stands for those fundamental values, which are enshrined in the Charter of Rights and in numerous binding international human rights treaties we have ratified over the decades. More recently, rightly outraged by the blatantly unlawful arrest and detention of Canadian citizens Michael Kovrig and Michael Spavor in China in 2018, a crass move by the Chinese government to exert political pressure on Canadian officials in connection with an entirely unrelated extradition case, Canada spearheaded the Declaration Against Arbitrary Detention in State-to-State Relations, now supported by 75 countries around the world.

Our opposition to arbitrary detention is therefore unambiguous. Or is it?

It turns out that our opposition is selective.

Last August I joined three eminent and accomplished Canadians – Independent Senator for Ontario Kim Pate, retired ambassador and diplomat Scott Heatherington, and human rights and immigration lawyer Hadayt Nazami – in a humanitarian mission to Northeast Syria. While there, we were able to meet with two Canadian men, one Canadian woman and thirteen Canadian children who have been arbitrary and illegally locked up in prisons and detention camps in the region for up to seven years, with no means of challenging their detention and no prospect of being charged and brought to trial.  We believe there are least seven other Canadian men who are being held in similar conditions.

All it would take to protect their rights is for Canadian officials to signal to the local authorities, a Syrian Kurdish administration that is backed by the United States and other western governments, that Canada is prepared to repatriate them, and this human rights travesty would end.  But Canada refuses to take that step.

Our delegation was deeply troubled by the accounts we heard from these illegally imprisoned Canadians, doubly so given the extent to which they have been disgracefully abandoned by their own government.

The explanations for Canada’s inaction stem from unspecified allegations that these Canadians pose security threats because they are accused of fighting with, supporting or being sympathetic to ISIS, which had brutally controlled Northeast Syria for several years before being defeated by Syrian Kurdish forces in 2018.  Even the children?  The prisoners we interviewed all unambiguously said they are more than prepared to answer any such allegations in court, as long as it is a fair process.  The prospect of a fair trial has not been on offer in Northeast Syria, but Canadian courts could certainly deliver justice in any cases where the allegations are substantiated with credible evidence.

When governments abdicate their responsibility to respect justice and protect rights, we often look to and count on the courts to step in and right the wrongs.  Families of some of the imprisoned Canadians, who as a group call themselves BOLOH (Bring Our Loved Ones Home), launched a Federal Court challenge against the Minister of Foreign Affairs in 2021. 

In January 2023 in a lengthy ruling, Federal Court Justice Henry Brown ruled in the families’ favour, concluding that section 6 of the Charter, which guarantees the right of citizens to enter Canada, required the government to take steps to arrange for the repatriation of the four men who were the subject of the case. Justice Brown concluded that the status quo was equivalent to banishing these citizens from their country, a punishment that does not exist in Canadian law.

That ruling was overturned by the Federal Court of Appeal in May 2023, with Justice David Stratas concluding that the Charter only required the Canadian government to refrain from blocking citizens from entering Canada and did not carry any responsibility to proactively assist with that entry by facilitating return. Effectively, banishment was back on the table.

All eyes then turned to the Supreme Court of Canada. To many legal commentators it was precisely the sort of case that merited being granted leave to appeal.  There had been two contradictory lower court rulings in the case. It is an area of law – the notion of proactive responsibility to protect rights – that is evolving and unsettled, in Canada and in other jurisdictions.  And clearly the implications for the four men directly, but for other Canadians who find themselves in perilous situations abroad, are extremely consequential.

Yet to everyone’s surprise, on November 16, 2023, the Supreme Court denied leave to appeal. As is the way with such decisions, no reasons were given.

But that simply cannot be the end of this story.  The Canadian government has not budged and continues to refuse to provide any assistance to these citizens.  Thirteen children continue to languish in harrowing, dangerous conditions in a detention camp. And the security situation in the region has begun to deteriorate rapidly, with increased cross border attacks by the Turkish military, renewed activity by ISIS militants and, now, growing indications that the US may be preparing to withdraw its forces, the only guarantor of a minimal degree of regional security.

As such, counsel to these four men’s families have taken the extraordinary step of returning to the Supreme Court and making an unusual application requesting that the previous decision to deny leave to appeal be reconsidered. The request was filed with the Court on March 15 and lays out a compelling argument as to why the present circumstances merit that exceptional step.

These unending years of lawless contempt for the fundamental tenets of the rule of law cannot go on indefinitely. The reconsideration application offers an opening for the Supreme Court to tackle this injustice and play its role as a guarantor of rights and justice.  It is regrettable that the government is not doing so of its own accord. But it is not too late to end this unconscionable disregard for human rights. The government could and should take that step, today.

Published as an opinion piece in Law360 Canada on April 3, 2024.