Jack Letts, known as “Jihadi Jack,” is alleged to have supported the Islamic State in Syria and currently sits in a Kurdish jail in northern Syria. The United Kingdom recently revoked his British citizenship, leaving him with Canadian citizenship, which he presumably acquired since his father is a Canadian citizen.

Whether Letts has committed terrorism, treason or espionage is something that should be decided by the courts. The question of whether Letts should be allowed into Canada is another thing altogether.

Much discussion has focused on whether Canada should allow an alleged terrorist or criminal into the country. Prime Minister Justin Trudeau recently refused to comment on whether Letts is welcome. The reason for the government’s lack of response might be because, legally speaking, Canada doesn’t have much choice.

If Letts is a Canadian citizen, he has a right to return to Canada. His parents, who have been convicted of an offence related to funding terrorism in the UK, can also return once they have completed their sentence of 15 months, suspended for one year, because they are also Canadian citizens.

The right to return is stated in section 6(1) of the Canadian Charter of Rights and Freedoms: “Every citizen of Canada has the right to enter, remain in and leave Canada.” The Constitution could not be clearer. But the difficulty is in obtaining the means to travel and, most importantly, Canadian passports.

Canada has tried in the past to prevent its citizens accused of terrorism from returning. A widely publicized case is that of Canadian Omar Khadr, who in 2002, at the age of 15, was detained by the United States at Guantanamo Bay, where he was tortured. After a series of complicated legal proceedings in military tribunals and US courts, Khadr pleaded guilty to the murder of a US Army sergeant, among other war crimes under US military law. Khadr sought to return to Canada, but the Canadian government refused to respond to transfer requests to allow him to serve his sentence in Canada, denying Khadr a new passport on the grounds that he was a threat to national security. Khadr challenged these governmental decisions in Canada using the Charter. He returned to Canada in September 2012 to serve the rest of his sentence. In March 2019, a court concluded Khadr had completed his sentence.

Another case involved Canadian Abousfian Abdelrazik, who travelled to Sudan in 2003 to visit his ailing mother. While in Sudan, he was arrested, detained and tortured by Sudanese authorities, and his Canadian passport expired. Over a number of years, Abdelrazik made multiple requests to obtain a new passport, but Canada refused. Abdelrazik was told he was on the United Nations list of terrorists. He challenged Canada’s decision using the Charter, and the government was ordered to issue him a passport. Abdelrazik returned to Canada in 2009, and his name was eventually removed from the UN list.

These cases demonstrate the futility of preventing Canadian citizens who are alleged to have committed terrorism or other serious crimes from returning to Canada, and they highlight the problems of how to manage them.

In the Letts case, there are two things to consider. First, if Canada followed the UK’s example, Letts would become stateless. As a signatory to the Convention on the Reduction of Statelessness, Canada cannot deprive persons of citizenship if it would render them stateless. This is not a legal choice Canada can make in the Letts case, having been pre-empted by the United Kingdom.

Second, citizenship revocation or the denial of return is a form of punishment that harks back to the ancient practice of exiling and banishment. The identification of “homegrown” (those born and primarily resident in a country) terrorists and enemies has led to increasing use of civicide—the stripping of citizenship. At a basic level, it is cruel punishment to be banned from one’s home, to be left in limbo or sent to a place where one has no connections or no ability to survive. We need only look at the deportation of persons to places they’ve never known to realize the harsh consequences of this action.

Allowing banishment-type state actions in even the least sympathetic of cases should ring alarm bells for the ordinary citizen. It means that for all of us who carry the Canadian passport, our citizenship is much less stable; it means that the government can arbitrarily withdraw its responsibility toward you if it deems it appropriate, no matter how long you have lived in Canada.

At a policy level, terrorism and other serious crimes should be dealt with by the criminal justice system. Canada and other developed states have sophisticated systems to investigate, prosecute and punish persons for various crimes associated with terrorism. These criminal justice systems and the Charter also provide safeguards such as the right to a lawyer and other guarantees for a fair trial.

Western states should also think about their responsibilities to their citizens. Banishment and revocation appear to dump a problem elsewhere instead of dealing with it head on. In revoking his citizenship, the UK ignored the fact that Letts grew up in that country, and the UK’s move effectively makes him a problem for another country. States should take more responsibility for their homegrown problems. If states are really concerned about preventing terrorism, this is not a viable and practical way of managing it, nor a productive way to engage cooperatively with one’s allies.

In the end, whether Letts can come to Canada is not the question we should focus on. The important question is this: When he comes, what should we do next?

Canada has a National Strategy on Countering Radicalization to Violence, launched by the Canada Centre for Community Engagement and Prevention of Violence, and it has criminal rehabilitation programs that include deradicalization plans. Persons convicted of terrorism-related offences in Canada have already been subject to such deradicalization programs. The question is whether the measures in place can sufficiently deal with the predicament that the Letts case is putting us in today.

Photo: In this April 5, 2018 file photo, destroyed buildings line a street damaged during fighting between US-backed Syrian Democratic Forces fighters and Islamic State militants, in Raqqa, Syria. (AP Photo/Hussein Malla, File)

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Jamie Chai Yun Liew is an immigration lawyer and an associate professor at the University of Ottawa’s Faculty of Law and Centre for Health Law, Policy and Ethics.

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