The Islamic State of Iraq and the Levant (ISIL) is responsible for a long list of crimes against humanity, including genocide, slavery, child abduction, human trafficking, drug dealing and, of course, terrorism.
Up to 10,000 battle-hardened ISIL militants are imprisoned by the U.S.-backed Syrian Democratic Forces (SDF) in the Kurdish-controlled Autonomous Administration of North and East Syria alone. Yet this number pales in comparison to the 54,000 ISIL-associated women and children detained in refugee camps such as Al-Hawl. These include several dozen men, women and children of Canadian origin.
In January, the Federal Court of Canada ruled on the repatriation of some of these individuals in the case of Canada v. BOLOH (Bring Our Loved Ones Home). To say that the decision was badly researched, poorly drafted and marred by legal irregularities is an understatement.
One of the four men at the core of the Bring Our Loved Ones Home litigation was Jack Letts. Also known as Jihadi Jack, Letts is a Canadian citizen with known links to ISIL. His parents were found guilty of providing support to a terrorist group by a British court for sending Letts money while he was in Syria. Formerly a dual national, he cannot return to the United Kingdom because the British government revoked his citizenship.
Judge Henry S. Brown ruled that Ottawa should seek the repatriation of the four men detained by the SDF “as soon as reasonably possible,” and that the conditions they are being held under “may constitute violations of international treaties entered into by Canada.” This was complemented by a request to provide the alleged terrorists with consular assistance and emergency travel documents so that they could return to Canada.
In May, Judge David Stratas, writing for the Federal Court of Appeal in a unanimous decision, overturned Brown’s ruling. His reasoning was pragmatic.
The case revolved around the freedom of movement enshrined in Section 6 of the Canadian Charter of Rights and Freedoms. Yet even with a broad interpretation, mobility rights do not include the privilege to be rescued by the Canadian government. Nor do they impose a mandatory obligation on Canada to rescue Canadians who travel to war zones against the advice of their government.
Canada issued multiple advisories against travelling to Syria. It also reiterated that it could not assist its citizens or permanent residents stranded abroad. Ultimately, Stratas concluded that the Canadians held by the SDF chose their fate despite warnings from Canada.
Repatriating potentially dangerous citizens such as Jack Letts to Canada poses significant security risks and legal challenges. Evidence obtained on battlefields abroad is unlikely to meet the burden of proof required to secure convictions against individuals like Letts in the Canadian legal system. Once repatriated, these suspected terrorists would likely be acquitted due to lack of evidence or released on peace bonds.
Consider the women of ISIL who returned to Canada. At least nine are back in the country. Only one, Montreal resident Oumaima Chouay, has been charged with a crime. Not a single Canadian woman who travelled to Syria to join ISIL has yet been convicted. Nevertheless, seven of the nine women who returned to Canada were arrested on peace bonds and released on bail.
A peace bond is an order whereby a court imposes restrictions on a defendant, who must adhere to them or risk spending up to four years in prison. This has been Canada’s main response to ISIL-associated women returning from Syria.
Unfortunately, peace bonds are not effective tools for maintaining public safety or for deterring terrorist attacks. In the case of the ISIL-associated women returning to Canada, most of the peace bonds expired after a year and were not renewed. While this is inadequate, there are even worse cases.
Consider Aaron Driver, an ISIL supporter who was arrested on a peace bond and released on bail in 2015. Instead of being rehabilitated, Driver built a home-made bomb and detonated it when police attempted to apprehend him while leaving his home in Strathroy, Ont., to conduct a terrorist attack.
This much is certain: Canada does not take the repatriation of ISIL members seriously. Portraying individuals like Letts as victims is dishonest. Whatever their intentions, he and other Canadians like him ignored repeated warnings from the Canadian government advising against travel to Syria.
Instead of listening, they went to a war zone and were eventually captured by the SDF while ISIL made its last stand at Baghuz. Allowing them to return to the country without being prosecuted is a risk the Canadian government should not take.
George Monastiriakos is a fellow at the Geneva Centre for Security Policy. You can read his published works on his website.
Comment Nation: Let ISIL fighters come back to Canada. Then arrest them
John Ivison: Canada shirking its responsibility to prosecute its citizens who fought for ISIL