Jihadi Jack has a constitutional right to come to Canada. But getting in may not be so easy

Jack Letts has every right as a Canadian citizen to come to Canada, legal analysts say, but the man dubbed ‘Jihadi Jack’ by the media and accused of being an ISIS fighter may not have an easy time getting into the country.

“Citizenship doesn’t actually give you the means to get into Canada,” said Sharry Aiken, an associate law professor at Queen’s University in Kingston, Ont.

Letts, who held dual citizenship with Britain and Canada, is currently being detained by Kurdish authorities in a prison in northern Syria near the Turkish border. But the possibility that he could eventually settle in Canada recently became an issue when it was revealed that Britain had revoked his citizenship.

Letts himself, in an exclusive interview with the British-based ITV News on Monday, said he would like to come to Canada.

But Public Safety Minister Ralph Goodale has said the government has no intention of helping him, saying Ottawa has “no obligation to facilitate his travel from his present circumstances, and we have no intention of facilitating that travel.”

It’s true that the the government isn’t obliged “to fish people out of detention or jail,”abroad, said Audrey Macklin, a law professor and chair in human rights at the University of Toronto. And Canada is certainly not obligated to provide Letts with a plane ticket if he is released from Kurdish detention.

However,  the Charter of Rights and Freedoms, under the section of mobility rights, states that every Canadian citizen has the right to enter and remain in Canada.

“If Mr. Letts could somehow extricate himself out of Kurdish detention and, if he had a valid Canadian passport and somebody bought him an airline ticket and he pitched up at a Canadian border … then would the Canadian government have a legal obligation to admit him? Yes,” Macklin said.

As well, there is also the issue of how Letts is being treated while in Kurdish custody. Canada does have a duty, as do all countries, in protecting the human rights of its nationals, Macklin said.

If those rights are being violated and the remedy is to seek his return to Canada, “then there is an argument to be made that, in fact, at least the Canadian Charter imposes, and maybe international human rights law imposes, that responsibility on Canada,” she said.

But the government could stonewall his return is by refusing to issue a passport. Goodale, as minister of public safety, does have the authority to refuse Letts a passport, if he doesn’t have one or it’s no longer valid, on national security grounds.

The government could take the position that because Letts went off to join ISIS to fight against Syria is reason enough.

“But it all depends on all the facts of his case, the evidence before them, et cetera,” said Arghavan Gerami, an Ottawa-based immigration lawyer. “It’s hard to speculate not having all the details.”

That is, “until and unless a court tells the government that withholding the document is unreasonable,” she said.

Courts have found that mobility rights are breached if the Canadian government refuses to facilitate return by, for example, not issuing emergency travel documents, Sean Rehaag, an associate law professor at York University’s Osgoode Hall Law School, said in an email.

For example, the Federal Court of Canada in 2009 ordered the then-Conservative government to allow Montrealer Abousfian Abdelrazik, who had been stranded in Sudan for six years as an al-Qaeda suspect, to return home.

The government had refused to issue him travel documents because his name was on a UN Security Council list banning travel for terrorist suspects. (He had denied any links to terrorism and is currently suing the federal government.

The case against Letts is unclear. He became a Muslim convert and travelled to Syria in 2014 to join fighters with the Islamic State in Iraq and Syria. He was captured by the Kurdish YPG militia after escaping the extremist group’s de facto capital, Raqqa, before it fell. Letts told ITV News this week that going to Syria “was probably the stupidest thing I’ve ever done.”

But, he added, he’s not a murderer or torturer. “I never killed anyone,” he said.

Still, if he came to Canada, he could be charged with a number of terrorist-related offences, said Leah West, a lecturer in national security law and counterterrorism at the Norman Paterson School of International Affairs at Carleton University in Ottawa.

I don’t think anyone has a good sense other than people potentially in that intelligence or security community and what he actually did there,” West said.

“But these offences are still on the table.”

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