Ruling ordering Ottawa to bring Canadian ISIL suspects home sparks security debate

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It’s been hailed as a global precedent on the rights of citizens imprisoned overseas in “dire” conditions without trial.

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But debate has already begun over the legal and safety implications of a Federal Court decision that ordered the government to repatriate from northern Syria four men suspected of having been members of the Islamic State of Iraq and the Levant.

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Critics worry that any of the four who might have committed crimes in the Middle East – including former British national Jack Letts — will “walk free” and possibly become security risks.

The lawyer who won the landmark ruling counters that the government is well-equipped to prosecute his clients if they feel they’ve done wrong – while the alternative would be leaving them in squalid, rights-abusing conditions in a Kurdish prison.

A Quebec woman who returned previously has already been charged with four terrorism-related offences, while another returnee has had a “terrorism peace bond” imposed on her, Greenspon noted.

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“As far as a security risk, I don’t think there is anything we can’t handle in our Canadian judicial system,” he said. “As opposed to letting these men, women and children rot in prisons and detention camps over there.”

But Phil Gurski, a retired Canadian Security Intelligence Service officer and terrorism expert, said the Canadians in Syria were not on a “Sunwing vacation gone wrong”; rather, they travelled to Syria and allegedly joined a terrorist group – against the advice of the federal government.

Once back in Canada, it will be all but impossible to mount an effective prosecution against any of them, given the evidence and witnesses exist in a restive corner of the Middle East, he predicted.

“What really has irked me is the fact the supporters of these men and women have portrayed them as victims that need to be rescued,” said Gurski. “I think Canadians are appalled that a court would order the Canadian government to bring back some of our citizens who thought that joining ISIS was a good idea.”

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Global Affairs Canada is reviewing the decision and will have more to say “in due course,” said spokesman Grantly Franklin.

“The safety and security of Canadians is our government’s top priority,” he added. “We remain committed to taking a robust approach to this issue.”

The Canadians are being held in semi-autonomous northeast Syria by Kurdish forces who captured them as possible members of ISIL, though their captors have urged governments worldwide to take back such four nationals. Many, including the U.S., have already done so.

Among the citizens of this country is Letts, who grew up in the English university town of Oxford, converted to Islam as a teenager, then travelled to the Middle East, winding up in Raqqa, the de-facto ISIL capital before the group’s 2019 defeat. A joint citizen with a Canadian father, the British government revoked his U.K. nationality.

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Family members here launched court action in 2021 demanding the government help repatriate their relatives. Their lawyers struck an agreement last Thursday that would see Ottawa retrieve six women and 13 children, but not the men, none of whom are named except Letts.

Then on Friday, Justice Henry Brown ruled that the four male prisoners must also be repatriated, citing the mobility rights section of the Charter of Rights and Freedoms, which says every citizen “has the right to enter, remain in and leave Canada.”

Letta Tayler, counterterrorism lead at Human Rights Watch in New York, called it a landmark decision, “marking the first ruling in the world that I know of compelling a government to repatriate any of the men unlawfully detained in the region.”

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But what of the men and women returning to Canada? Were any members of ISIL. If so can they be charged? And do they pose a danger?

Brown in his ruling notes they’re in custody because the Kurds suspect they were part of ISIL. But he says government lawyers did not allege in court that “any of the (Canadians) engaged in or assisted in terrorist activities.”

“Canadians are entitled to have political opinions, no matter how abhorrent they may be to other Canadians,” wrote the judge, but said the line is crossed when they actually commit crimes. “There is no evidence to that effect before this Court.

Letts once said in a media interview that he formerly saw his native U.K. as an enemy and might have been willing to take part in a suicide bombing, but became deeply disenchanted with ISIL and eventually escaped Raqqa. His parents say he was in grave danger from the terrorist group because of his opposition to it.

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Gurski said he’s skeptical, citing examples of individuals who claimed to have abandoned their extremist ways, only to then commit terrorist acts.

Under Canadian law, simply leaving the country to join a terrorist organization is an offence, and that’s one of the charges facing Quebec returnee Oumaima Chouay.

Gurski said he doubts that Canada can summon the solid evidence needed to obtain convictions in courts here for those they believe did do wrong. And any that are convicted would likely have sentences drastically reduced because of their prison time in Syria, he said.

But Greenspon said the federal Justice Department in fact has a division dedicated to investigating overseas terrorist acts and could well launch prosecutions, if any are necessary.

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There is precedent for such criminal cases, with suspects in the Rwandan massacre tried in Canada, noted Matthew Behrens, who is speaking for Letts’ parents John Letts and Sally Lane.

But he questioned the assumption that any of the Canadians to be repatriated have committed crimes, pointing to reports that the Kurdish prison inmates include members of the Yazidi minority – victims of ISIL – and others clearly not involved in terrorism.

“Why do you assume that they must be prosecuted? It’s guilt by association, by geography, by religion,” said Behrens. “You put those things together and what you see is ongoing racial and religious profiling.”