OTTAWA - Four Canadian men detained in Syria are asking the Supreme Court of Canada to reconsider pleas for a hearing that could open the door to their freedom.
In November, the top court declined to hear the men's challenge of a Federal Court of Appeal ruling that said Ottawa is not obligated under the law to repatriate them.
Following its usual custom, the court gave no reasons at the time for refusing to examine the matter.
In a fresh notice filed with the top court, lawyers for the men say exceedingly rare circumstances warrant another look at the application for leave to appeal.
The detained Canadians are among the many foreign nationals in ramshackle detention centres run by Kurdish forces that reclaimed the war-ravaged region from militant group Islamic State of Iraq and the Levant.
Jack Letts, one of the Canadian men, became a devoted Muslim as a teenager, went on holiday to Jordan, then studied in Kuwait before winding up in Syria.
The identities of the other three are not publicly known.
In the original application to the top court, lawyers for the men said their clients had been arbitrarily detained for several years without charge or trial.
"They are imprisoned in severely overcrowded and unsanitary conditions, with at least one Canadian being held with 30 other men in a cell built for six. They lack adequate food and medical attention and one of the applicants reported to Canadian government officials that he had been tortured."
The lawyers said the men's foreign jailers would release them if Canada made the request and facilitated their repatriation, as it had done for some Canadian women and children.
In the newly filed notice, counsel say there is a "constitutional imperative" for the top court to agree to hear a case when the evidence reveals issues of public importance grounded in serious breaches of basic human rights.
Recent evidence indicates Canada will not repatriate the men, the notice says. As a result, they are consigned to "indefinite and arbitrary detention in cruel and life-threatening conditions, in a region which is increasingly dangerous and unstable."
The Supreme Court is at the "apex of the Canadian judicial system," and its initial refusal to hear the appeal "constitutes a failure of its guardianship role," the notice says.
"This is compounded in the international context where the issue of a state's responsibility to assist a severely distressed and vulnerable citizen is recognized as an evolving area of international human-rights law."
In an affidavit filed with the notice, former Amnesty International Canada secretary general Alex Neve says the case raises novel, unsettled human-rights issues that affect all Canadians and could influence practices in other countries.
Neve, who was part of a civil society delegation that visited Syrian prison camps last summer, says it has "proven frustrating" for advocates seeking clarity from Global Affairs Canada about its position on assistance to the remaining detainees.
The four men won a battle in their protracted fight in January 2023 when Federal Court Justice Henry Brown directed Ottawa to request their repatriation from the squalid conditions as soon as reasonably possible and to supply passports or emergency travel documents.
Brown said the men were also entitled to have a representative of the federal government travel to Syria to help their release take place once the captors agreed to hand them over.
The Canadian government argued that Brown mistakenly conflated the recognized Charter right of citizens to enter Canada with a right to return — effectively creating a new right for citizens to be brought home by the government.
The Federal Court of Appeal agreed, saying the judge's interpretation "requires the government of Canada to take positive, even risky action, including action abroad,'' to facilitate the men's right to enter Canada.
The appeal judges said while the government is not constitutionally or otherwise legally obligated to repatriate the men, their ruling "should not be taken to discourage the government of Canada from making efforts on its own to bring about that result.''
This report by Ïã¸ÛÁùºÏ²Ê¹ÒÅÆ×ÊÁÏ was first published March 26, 2024.
