Last week, a two-day court hearing took place at the federal court in Ottawa to bring back Canadians detained in Northeast Syria. A group of families representing some of those detainees filed a Canadian Charter of Rights and Freedoms challenge for the inaction of the Canadian government to repatriate their loved ones home.
I watched some of these hearings online and I was terribly disappointed if not shocked by the attitude and the arguments presented by the Canadian government lawyers.
Before going any further, I feel that this matter is merely a political case and shouldn’t have been brought in front of a judge. The legal arguments for repatriation are pretty obvious and compared to them the counter arguments advanced by the government looked so out of place if not ludicrous.
However, if it wasn’t for the unwillingness of the government to act, perhaps wishing the matter to magically disappear on its own, the legal challenge wouldn’t have existed. But the matter didn’t go away, and it is coming to haunt Canada, and it will continue to do so, as long as these Canadians citizens are not repatriated back.
Watching some excerpts of this legal challenge brought me back 20 years ago to my own family ordeal when my husband, Maher Arar, a Canadian citizen, was kept in Syria in a dungeon tortured by his Syrians interrogators. Many times, during his imprisonment, I repeatedly pleaded with the Canadian officials working at the Ministry of Foreign Affairs to bring my husband home. They kept telling me that once in Syria, his Syrian nationality prevailed and that Canada couldn’t do much. That argument, despite its weakness, would assume of course that my husband had arrived in Syria of his own will, which is wiping out the fact that he was rendered to Syria by the American authorities (even worse, later we would learn about the complicity of Canadian officials). Even when the Canadian government didn’t tell me explicitly that they didn’t want to repatriate my husband, behind the scenes some part of the government acted in a way to prevent his repatriation. This double-talk by the Canadian government made my husband stay in horrible conditions for over a year, until the political decision by then Prime Minister Jean Chretien, came and delivered him from his torturers and his subsequent return in October 2003.
After months of campaigning and advocacy by activists, some by politicians and human rights organizations, the Canadian government ordered, reluctantly, a commission of inquiry into the actions of Canadian officials in relation to Maher Arar. That was in March 2002. In 2007, a fact finding report was released by Justice Dennis O’Connor, head of the commission, as well as a list of recommendations for the government so the ordeal wouldn’t happen again.
Few weeks ago, I was invited to testify at the Senatorial committee on human rights regarding Islamophobia in Canada and I was asked by Senator Ratna Omidvar if anything had changed since the repatriation of my husband and the reports submitted by Justice O’Connor. A part of me wanted to simply reply “No” but I quickly changed my mind and gave a more nuanced and elaborate answer pointing to some minor changes that occurred since.
Nevertheless, watching these two days of hearings, I am more and more convinced that a more accurate answer to the senator would have been “nothing really changed”.
The picture is bleak and frozen in time: a number of Canadians, mostly children, arbitrarily detained in awful conditions documented by Human Rights Watch. Their families are being kept in the dark, not knowing whether their loved ones are alive or not, and their government is fighting in front of a judge and stubbornly arguing that these Canadians can’t claim their Charter Rights so thus do not need to be “fetched” by their own government.
Almost exactly the same cold attitude, the same circular arguments and the same stubborn inaction that I was facing two decades ago and that is still making Canada look so bad internationally and even at home.
At the hearing, the government lawyer kept bringing legal cases that have nothing in common with the current cases, except perhaps that they are happening to other Canadian citizens. The same government lawyer tried by all means to argue that these 23 children, 19 women and eight men have basically no Charter Rights and Canada has no responsibility in repatriating them. Worse, the lawyer argued that Canada was not responsible in detaining them and did not request their detention. According to her, they were detained by Kurdish forces – “we are not part of the causal chain” and should not be compelled to intervene to repatriate.
No wonder why it is the same government who had to apologize to Maher Arar when they implicitly applied the same faulty reasoning to his case and told me that his Syrian citizenship superseded his Canadian citizenship while in detention in Syria and thus Canadian laws couldn’t “reach” him. This sort of legal gymnastics didn’t convince Justice O’Connor when he wrote his report criticizing the in-action of the Canadian government and its complicity in keeping one of its own in detention.
When the legal counsel Barbara Jackman, representing Jack Letts one of these Canadian men detained in Syria, opened her statement in front of judge Russel Brown, she rightly reminded him and the audience about her participation not only in the Arar Commission but also in the Iacobucci judicial inquiry that was ordered to determine what happened to four other Canadians who were also arrested and tortured in Syria and Egypt and as expected the Canadian government refused to bring them back to Canada until years later. By invoking that history, Barbara Jackman implicitly reminded the government lawyers of the flaws in their previous legal judgements and their ongoing mistakes in assessing the current situation.
Why is Canada is becoming serially stubborn and complicit in the torture and the neglect of its citizens, specially Muslim citizens?
What is Prime Minister Justin Trudeau afraid of by ordering the repatriation of all the Canadians detained in Northeastern Syria?
As a flagrant evidence of the incompetence of the government is, and its dismissal of basic human rights of its own citizens became the policy Global Affairs Canada (GAC), adopted in November 2021. In this policy, shared with the families of the detainees and their lawyers, the government cited a list of six conditions that the detainees should meet so they can become eligible for repatriation. They were called “threshold criteria.” Needleless to mention that none of the detainees met these criteria except Kimberley Polman, a woman from British Columbia who was since successfully repatriated and is under a peace bond. All the other detainees didn’t meet these criteria.
In November of 2022, GAC would contradict its own written policy by informing some of the detainees (some women and some children) that they are eligible for repatriation. What looks like good news, is clear evidence of the weakness and arbitrariness of this policy.
First writing it to prevent their return and suddenly overturning it a few weeks before the court hearing in an attempt, in my opinion, to prove to the judge that they are working behind the scenes. This looked so amateurish, and I don’t believe that the judge would be impressed by these last-minute moves.
At the end of the two days in federal court, Justice Brown stated that the hearings would need to continue at a date to be determined. It was a big disappointment for all the families who were hoping for some quick decisions that would deliver their loved ones from their ordeals and unfortunately more delays means for the prisoners the continuation of their limbo; they will not be able to leave any time soon. However, one ray of hope appeared in this ocean of darkness and abject manoeuvres to “deny” some citizens their basic rights to security, education, and justice.
According to a tweet by CBC journalist Ashley Burke, Justice Brown stated “he was disappointed because Canadians are at risk of dying every day the matter is adjourned.” This simple statement restores my faith in humanity and in the justice system, after being so disappointed and shocked by what Canada has been doing upfront to deny some of its citizens their fundamental rights.
This article was initially published at rabble.ca