Thu. Nov 24th, 2022

It would be “unprecedented and unprincipled” to help Canadian ISIS suspects held in Syria, the federal government has argued in a court filing.

Responding to a lawsuit filed by the families of Canadians captured during the fight against ISIS, the government detailed its legal position for the first time.

The families want the Federal Court to order Ottawa to return the prisoners to Canada from prisons and camps run by US-backed Kurdish fighters.

But federal lawyers argued the case should be thrown out, as accepting the family’s request would improperly extend the Bill of Rights beyond Canada’s borders.

“The applicants are being held outside of Canada by foreign entities. These entities operate completely independently of Canadian jurisdiction or control,” they wrote.

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“The Charter clearly does not apply to the actions of those entities, including the detention of the applicant.”

On October 26, the government took two women and two children from a camp for ISIS members and their families in northeastern Syria. Women left Canada and married ISIS fighters.

Both were arrested upon arrival in Montreal. Oumaima Chouay, 27, is charged with four counts of terrorism. Kimberly Polman has not been charged but is facing a peace bond for terrorism in BC

Three others had previously returned: an orphan named Amira, and a mother and her daughter who were given travel documents in Iraq, although Canada was not involved in their release from Syria.

Lawrence Greenspon, an Ottawa lawyer who represents many of the families, declined to comment. The case goes to trial on December 5.

Click to play video: 'Montreal woman who married ISIS fighter explains why she went to Syria'

A Montreal woman who married an ISIS fighter explains why she went to Syria

About a dozen Canadian adults and their children, taken into custody during the ISIS collapse, are still being held in Syria, including self-confessed ISIS members such as Muhammad Ali.

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But in its defense against their families’ legal action in Federal Court, the government said they were being held because of alleged links to a terrorist organization and that Canada had no obligation to help them.

“There is no legal obligation, under charter, statute or international law, for Canada to provide consular assistance, including the repatriation of its nationals,” government lawyers wrote.

They claimed that the government did provide some assistance, such as checking on the whereabouts and well-being of Canadian detainees, and seeking medical attention for them.

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Canada also expressed its “expectations that Canadians be treated humanely, in accordance with applicable principles of international humanitarian law and international human rights law.”

Government officials similarly requested phone interviews with detainees, asked about a potential system for families to transfer funds to them and inquired about mental health resources, it said.

But federal lawyers persisted in their argument that the government was under no obligation to repatriate Canadians detained abroad and had not violated their rights by failing to do so.

The Charter applies abroad only when Canadian officials have engaged in activities contrary to Canada’s international obligations and human rights standards, they wrote.

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“The current case is a case of non-intervention. Canadian officials did nothing to contribute to the applicant’s detention,” according to the government’s defense.

“Consequently, the applicants have not identified any actions by Canadian officials to which the charter might apply.

Image of Canadian Mohammed Khalifa, left, taken from ISIS execution video.

“Canadian officials were not involved in initiating any of these detentions and did nothing to support or encourage the foreign entities in their continued detention.”

Extending the application of the Charter to ISIS cases would involve courts in “delicate, complex and/or dynamic situations occurring entirely within the sovereign territory of foreign states.”

Government lawyers argued that this would be an “unprincipled and far-reaching extension of the extraterritorial application of the Charter” and “should be rejected”.

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Under the policy adopted in 2021, the government will only provide “extraordinary assistance” to Canadians detained in ISIS camps if they are unaccompanied minors or if their “situation has changed significantly.”

Even then, they will only be returned if the RCMP and Canadian Security Intelligence Service believe they do not pose a threat to public or national security.

Police and intelligence agencies assess “factors such as: the nature and extent of an individual’s involvement in extremism and extremist groups; their ability and intent to commit acts of terrorism while in transit or in Canada; their commitment to extremism and affiliation with extremist networks; and other personal factors.”

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