Following four days of hearings, including top-secret testimony on the final day of proceedings, a federal court judge will now decide if Canada has violated the rights of dozens of its citizens imprisoned in northeast Syria.
Proceedings have been public except for Friday鈥檚 hearing, where classified evidence was presented to Justice Henry Brown as he weighs whether to order the government to bring the Canadian detainees home within a set timeline.
More than 40 Canadians have been languishing in camps and prisons run by Kurdish authorities since the fall of the Islamic State in 2019. The majority of the remaining detainees are women and children.
Barbara Jackman represents Jack Letts, a Canadian Muslim convert, one of five men held in Kurdish-run prisons. She says the lawyers representing the detainees will only get a short summary of what happened during Friday鈥檚 top-secret hearing.
One of four classified documents entered into evidence ahead of the in-camera hearing was a heavily redacted affidavit from Maj.-Gen. Paul Prevost of the Canadian Armed Forces. Prevost鈥檚 testimony centres around travel in northern Syria. He has overseen the planning and execution of all military air operations in the Middle East and Afghanistan since 2018. Court documents indicate that Prevost has information about how an orphaned girl, publicly known as 鈥淎mira,鈥 was taken out of the Al-Hol camp in October 2020 and returned to Canada.
愛污传媒 asked Global Affairs Canada on Friday if work was being done behind the scenes to bring detainees home outside the court hearings, but the department did not respond in time before the publication deadline.
Lawyers for the federal government previously argued that it has no obligation under domestic or international law to provide consular services, including repatriation, in a country where it has no diplomatic presence, and removing Canadians in a volatile region would put the safety of its staff at risk.
Other countries, such as Iraq, Germany, the Netherlands and France have successfully repatriated hundreds of detainees.
Government lawyers also say that the return of individuals, which it suspects of having ISIS ties, could pose a threat to national security. But none of the detainees have been charged overseas.
The hearings began in December with lawyers for the applicants arguing that the federal government鈥檚 reluctance to repatriate their citizens deprived them of their rights to 鈥渓ife, liberty and security of person鈥 under Section 7 of the Charter.
According to the most recent , conditions for more than 42,000 foreigners in the prison camps, most of them children, are rapidly deteriorating. Hundreds of detainees have been killed in violence instigated by ISIS extremists and died of illness due to a shortage of medicine. Children have drowned in sewage pits, and have died in tent fires. The area is also under bombardment by Turkish air and artillery strikes.
Days before the federal court hearing was set to begin, Global Affairs Canada sent letters to the women detainees outlining that due to increasing threat levels, they now qualified for repatriation. No such letters were sent to the men.
Jackman says her client, Jack Letts, has been tortured and that his mental health has suffered from long periods of solitary confinement. Jackman says Canadian officials haven鈥檛 provided information to his family about his condition for more than three years.
鈥淭he government just doesn鈥檛 want any kind of obligation to do something,鈥 said Jackman. She points out that Kurdish authorities have pleaded with foreign governments to repatriate their citizens.
She says the Canadians should be brought back to face charges if there is evidence they have committed crimes instead of facing 鈥渋ndefinite detention,鈥 in Syria.
鈥淚t鈥檚 not possible to try them there. You have to have a judge that can operate without fear. You have to have prosecutors and an independent judiciary and an ability to present a case in a safe space for people. You can鈥檛 get witnesses to come forward in that type of setting,鈥 said Jackman.
Since Amira was returned home, six other Canadians have been brought back to Canada. Among the group, returned to Calgary in November 2021. Four months ago, Kimberly Polman was returned to B.C., while Oumaima Chouay and her daughter were flown back to Quebec in October 2022.
Chouay is out on bail in Montreal, while she awaits a trial on terrorism related charges. Meanwhile Polman is living in Chilliwack B.C. under strict conditions, while waiting for a terrorism peace bond hearing.
Jackman says the previous return of the women and children shows that the government can take action to repatriate the Canadians without being forced to do so by the courts.
Brown has called this case an 鈥渦rgent matter鈥 but it鈥檚 unclear when he will render a decision. In the meantime, federal lawyers have argued that even if Brown finds the government in breach of the Charter, he should not set a deadline for their repatriation, instead let the government determine the timeline given the complexity of each case.
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