On January 20, 2023, after weeks of deliberation, Justice Henry Brown wrote an incredible ruling; a ruling that spread hope among many families of Canadians still detained in Northeast Syria. Justice Brown ordered the Canadian government to repatriate six women, 13 children and four men who are languishing in horrible conditions, detention camps and prisons Justice Brown described as “… very poor. In my view they are dire.”
The positive impact of this ruling didn’t last long as the federal government announced its intent to appeal. Then followed the shameful news regarding some other Canadian children, not included in this lawsuit (therefore not affected by the ruling), who have been vetted to be repatriated by the federal government without their non-Canadian mothers. One step forward ten steps backward.
Rights and freedoms of Canadian detainees
During the hearings to repatriate the Canadian detainees overseas, the Government cited the dangerous situation on the ground and its lack of resources (understood here as human resources) as barriers to repatriation. More so, the Government’s position is that those who went to Syria and got arrested have no constitutional rights and thus Canada has no binding legal obligations towards protecting their extra-territorial rights, per the Charters of Rights and Freedoms.
Clearly, those arguments didn’t impress or convince Federal Court Justice Brown who relied on previous Supreme Court decisions to emphasize the rights of citizens to leave and enter their country of citizenship. Justice Brown went even further, citing an example of the political philosopher Hannah Arendt who in the aftermath of World War II observed that a ‘right to have rights’ flows from citizenship and belonging to a distinct national community.
What is interesting and explicit in the ruling is the reference to this alleged ‘exile’ and ‘banishment’ that seems to be veiling the inaction of the Canadian government. Justice Brown wrote:
“To begin with, the Supreme Court of Canada established three decades ago that subsection 6(1) is aimed at prohibiting the banishment or exile of Canadian citizens by their government. It is aimed at preventing the Government of Canada and any and all of its emanations from severing or interfering with the right of Canadian citizens to leave and return to Canada.”
We thought that these past inhuman and cruel practices were gone with the emergence of the rule of law and the establishment of constitutionally-protected rights and international conventions. However, unfortunately these same laws and constitutions are used today by government lawyers to justify keeping their fellow citizens, in this case Canadian-Muslims, abroad, away from their families, and depriving their children from education and health care.
I was extremely relieved that Justice Brown reminded the Canadian government of its obligations and insisted on the ongoing injustice that these Canadians detainees were subjected to and urged their repatriation.
Unfortunately, this ruling was appealed by the federal government despite several human rights advocates pushing the government to accept the ruling and move forward with the repatriation.
Repatriation and the so-called ‘War on Terror’
It is not the first time Canada opts to appeal rulings urging it to correct its blatant human rights violations. In the case of Omar Khadr, the Canadian citizen detained in Guantanamo for over a decade, the Canadian government, in 2009, appealed to the Supreme Court (and later, bitterly lost) when it upheld a lower court ruling that required Ottawa to repatriate Khadr, the only Western citizen still being held by the United States at its Cuban military base.
Perhaps some would interpret this stubbornness and use of public funds to fight the repatriation of Canadians justified by the ‘fight against terrorism’ and as protecting the Canadian population from dangerous and suspicious individuals. Assuming that this is true, protecting national security should never be done at the expense of violating the rights of others. The rule of law should prevail and playing politics with the rights of some, who are already demonized in the media, isn’t morally acceptable and should have legal consequences.
Canadian children, non-Canadian mothers
Some mothers, living in the camps, were informed by Global Affairs Canada that their children will be repatriated to Canada without them. These women who married Canadian men don’t hold Canadian citizenship and will most likely never set foot in Canada, whereas their children would automatically be considered as Canadians given their fathers status. With their fathers dead or disappeared, the children have no other families than their mothers. But despite these tragic circumstances, the Government gave the mothers a deadline of a week and a half to decide whether they will send their children back to Canada alone. What should we call this other than a ‘barbaric practice’?
We thought the federal government’s systemic separation of Indigenous children from their mothers, their community elders, their culture and their customs was something of the past – that Canada apologized for and committed to end it with the Truth and Reconciliation Commission.
How did the mothers feel when they learned of this heart wrenching decision of separating them from their children to be safe in Canada or keeping them in horrible conditions, together. Is it really a choice?
Hope pending with ongoing legal battles
Some critics would say that these women might not be ‘good mothers’ or that simply can’t come to Canada since they’re not citizens.
As for the first argument, I think it is important to quote Justice Brown who said that he is not judging the Canadians who went to Syria. He reminded us that every Canadian is entitled to have a different opinion even if this opinion turns out to be unpopular by the majority: “Canadians are entitled to have political opinions, no matter how abhorrent they may be to other Canadians.”
As for the second argument that these women aren’t Canadian citizens, there is always a solution to keep children with their mothers. Other countries did it, so why not Canada?
Faraz Bawa, a Calgary-based lawyer representing one of the women, said he and other lawyers are now working on getting their clients temporary resident permits so they have permission to enter Canada with their children. Simple solutions exist but they need moral courage and political will to be implemented.
Exile, banishment and separation should never be part of any governmental solutions or policies. Justice Brown ruled on the unjust practices of the Canadian government to keep its citizens in Syrian camps. As for separating children from their non-Canadian mothers, we are still waiting for other legal decision.
It is sad and troubling how fundamental human rights are caught in the meanders of the geopolitics of wars or considered as a luxury. Strong legal decisions, like Justice Brown’s, are needed to anchor these rights into the centre of our democracies.
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