On the election trail yesterday, Stephen Harper proposed a criminal law ban on travel to designated zones he described as "ground zero" for terrorism.
Paring away the hyperbole and the more mischievous comments I have seen tweeted about ("no more travel to Paris, where the Charlie Hebdo plotters plotted!"), this idea seems drawn from the Australian system, the legal details of which are here. Basically, it prohibits travel to parts of Iraq and Syria associated with ISIS, subject to enumerated exceptions (eg for journalists and humanitarian workers).
Now, we need to be very cautious about evaluating the merits of election trial balloons, but the (initial) Harper idea is one that in principle I generally accept, subject to the usual provisos that the government is not going to prosecute and jail its way out of this issue and needs to up its game on counter violent extremism programs. I would also add that the government has a track record of taking reasonable ideas and legislating them in a manner provoking unnecessary constitutional doubts. The details matter, and it is often on the details that the government has proven surprisingly short-sighted. See my conclusion on this latest idea below.
If you want the full 40 page version of why I think foreign fighting is a novel issue requiring new legal tools (including Australian-style neutrality law measures, of which the current proposal is a variant), see this article that I wrote with Ani Mamikon (posted before C-51, but I shall get around to posting an updated version sooner or later. C-51 only really changes the conclusions on no-fly).
The Australian system is part of a more general "incursions" crime in Australian criminal law, that in turn replaces an older version of Australia's neutrality law. Neutrality law is, for its part, an ancient part of the law of many states, but one that has fallen away in terms of practical usefulness because it hasn't kept pace with modern conflicts.
As we argue in the article, we think updating neutrality law is a good idea as a means of dealing with the modern foreign fighter issue. I won't rehearse the full article here.
Virtues of Dealing with Foreign Fighters as Foreign Fighters
But to summarize key points:
Foreign fighting is a serious issue for a host of reasons. There is the “bleed out” risk — fighters returning with redoubled radicalization now coupled with new martial skills. On this point, I am inclined to the Australian view. There, the Australian Independent National Security Legislation Monitor reported in 2014 “repeated apprehensions expressed by those seeking to implement the [antiterrorism] [l]aws . . . that the return of trained and desensitized (perhaps radicalized) Australians from foreign conflicts such as Syria was a plain terrorist threat regardless what side, party, faction or group the returning Australian had fought with.”
As a policy matter, I personally do not think that Canada should be indifferent to the miltarized conduct of its citizens in civil conflicts -- indeed, I spent the better part of my early career arguing that it should not be indifferent to the militarization its resource companies may induce in their overseas operations.
In a similar vein, I think it is close to irresponsible for a state to turn a blind eye to the violence its citizens may do in foreign conflicts. There is, of course, the impact of foreign fighting on international security more generally -- Syria and Iraq are clearly being destabilized by it.
On top of that, Canadian freelance fighters complicates Canada’s foreign policy, regardless of what faction they fight for. It would not be useful to find that Canadians are enlisted in the ranks of an insurgency that a Canadian ally considers a terrorist group.
And foreign fighting even for "good guys" may also imperil Canadian Armed Forces lives — for instance where a Canadian foreign fighter fighting ISIS is captured, raising questions about a rescue attempt. And absent such a rescue, the capture could amount to a massive propaganda victory for ISIS.
And unlike in Australia, our officials cannot say "it is illegal to fight in Syria period". Our people need to add caveats. And in the article, we suggest that those caveats make discouraging foreign fighting and building a robust counter violent extremism narrative more difficult.
All of this is to say that, it is astonishing that the government does not regulate when and how its citizens can become freebooters in any civil conflict, regardless of the terrorism angle.
But to date, we have relied exclusively on anti-terror law. This is a mistake, in my view. Conventional anti-terror criminal law attempts to squeeze a round peg of foreign fighting into a square hole of terrorism. Foreign fighting can and does overlap with terrorism, but not always, and as I suggest foreign fighting raises its own discrete issues. And so approaching it through our anti-terror criminal law can contort our approaches.
Compounding this problem is the question of evidence necessary to prove the many complicated elements of a terrorism offence, often unavailable when it comes to proving actual conduct in a war zone. This question of evidence has confounded foreign terrorist fighter prosecutions in Europe and I believe it to be one central reason why we have yet to have an actual prosecution under existing terrorist travel crimes legislated in 2013. And we have only had one overall prosecution for foreign fighting, involving someone who was trying to leave (not return). (The Hersi case).
Other tools to combat terrorism-linked foreign fighting — passport revocation, no-fly — are important, but they are also not a silver bullet. See our table in the article linked above.
And so that suggests we need to grapple with foreign fighting as a foreign fighting issue per se, and restore an older legal tradition: neutrality law. And that is what the Australians have done. Basically, you make life simple by barring all foreign fighting period (subject to carveouts in some cases), and Australia has made it even easier by barring even a citizen's presence in ISIS controlled Syria and Iraq, subject to limited exceptions for non-combatants like journalists and humanitarian workers.
I think there is value is Canada controlling what its citizens do in a war zone in this manner -- including in restricting their presence. But the word of caution is an important one: we cannot simply focus on coercive supply side tools (that is, stopping and penalizing people who wish to be or have been foreign fighters). We need also serious work on the demand side — that is, persuading those drawn to the siren call of foreign fighting to abandon that course. We need also to be acutely conscious of where hardnosed coercive solutions induce the very peril they are supposed to foil.
And so I still wait for a serious conversation in Canada’s political circles about the sociology of anti-terrorism, and until we have that conversation, all the talk about meaningful security and the ISIS peril is showboating.
Kent Roach and I explore the myopia of a current Canadian approach to accumulating hardnosed tactics without an overarching strategy in our book False Security, due out from Irwin Law in September.
The Charter Issue
But what about s. 6 of the Charter: "Every citizen of Canada has the right to enter, remain in and leave Canada."
I think it is possible to craft a Charter compliant designated area travel ban. First, it is not clear to me that the s.6 right to enter and leave Canada includes “the right to leave Canada and go to a war zone of your choosing”. Section 6 is broad, but not absolute, as the Supreme Court recently held in relation to prison transfers.
But even if it did reach this far (which is entirely possible) there could be a reasonable s.1 justification. And if outright passport revocation can pass s.1 muster (as it did here) a carefully tailored war zone travel ban seems plausible, especially if it includes reasonable carve outs for journalists, humanitarian workers, perhaps bona fide academic research etc. (Although, you cannot follow the Australians and impose the burden of proving these exceptions apply on the accused because of our Charter criminal procedure rights).
It is also worth noting that our Quarantine Act could limit mobility rights, in that case because of the fear of a biological contagion (see s.58). And it is also worth noting that the clearest international version of mobility rights doesn’t really suggest that the right is “to go to any war zone of your pleasing”. And note also the exceptions:
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
(Art 13, Int Covenant on Civil and Political Rights):
All of this is to say a) the devil is in the drafting details and b) it is hard to predict constitutionality on a novel issue that has yet to be reduced to concrete legal language. But there is a way to craft this in a way in a manner that gives it a more than fighting constitutional chance.
And then the political "whoopsie" moment
So why have I suggested in the title that this is only "almost" a good idea? Because under obvious political pressure, the Harper Conservatives today is suggesting the new rules would not apply to Canadians fighting ISIS in the designated no-go regions. So now, the whole logic of the scheme collapses.
The purpose of a designated zone is to declare some regions in the midst of a conflict (in the Iraq/Syria context controlled by an unpalatable insurgency that also happens to a terrorist group) "no go" zones. In that matter, you do not need to prove "citizen was fighting for 'bad guys' or citizen was doing 'war crimes' or citizen was doing 'terrorist activity'". All you need to prove is "travel" (and also prove nonapplicability of enumerated exceptions for journalists, humanitarians etc). And more than that -- you don't need to decide who the bad guys are. And in Syria, that is a very difficult question. Who exactly is fighting ISIS and in what circumstances and when and where is not always clear. It's a mess. And how about Assad's army -- are they good guys fighting ISIS?
But now, if you say, it is ok to fight for "good guys", with good guys being groups fighting ISIS, that simplicity falls away. So too does your ability to address all the geopolitical reasons noted above pointing to why foreign fighting is a bad thing. So too does your willingness to consider the Australian view that any foreign fighting is potentially a domestic security risk. And now also you need to decide who are the "good guys", and keep a weather eye on whether they are drifting into becoming "bad guys".
And of course, you now fail also to consider the reality that Canadians fighting for the “good guys” may do bad things, or they may wake up and find that their unit has just committed a war crime. And so you may have exonerated them through a designated area ban exemption, but you may need to prosecute them for a war crime.
And, sigh, to make this whole cockamamie system work, you now need to prove more than just "travel". You need to prove who the accused fought for (bad guys). So we are not much further ahead than under current law, where fighting for ISIS is already a crime.
Put another way, if you start to exempt friendlies, your designated area system starts to look like Jack Nicholson's sandwich order from Five Easy Pieces. Recall, he was trying to order toast, and was told he couldn't. So he asked for this: "a chicken salad sandwich on wheat toast, no mayonnaise, no butter, no lettuce. Now all you have to do is hold the chicken, bring me the toast, give me a check for the chicken salad sandwich".
In the same way, a designated area rule that starts exempting "good guy" insurgencies will just be reduced to Jack Nicholson's toast: that is, it will boil down to already listed terrorist groups like ISIS. And as already noted, it is a crime many times over to fight for ISIS and other terrorist groups.
So the Conservative promise basically boils down to "We will make it really, really, really criminal to fight for ISIS". And because you need to prove the Canadian was fighting for the non-exempted group and not an exempted group, you haven't solved the evidentiary problem that already makes the existing law difficult to apply. So you're added girth to the Criminal Code, but no substance.
To repeat: my view is that if you are going to regulate foreign fighting, regulate foreign fighting. Don’t try to pick good freebooters out from the mess that is a conflict like Syria.
Anything else is just political theatre, and much less interesting in a sunny August than watching the river go by.
Today's reporting is now suggesting that the Tories' designated areas proposal will not apply to "to prosecute individuals who can prove they have been working with groups fighting against” ISIS. Put another way, in the speaking lines at least, the Tories are proposing that the burden of proof lies on the accused to prove the full defence (in what I can only assume will be an indictable offence). And so, never one to shirk an obvious Charter defect, the Tories now wish to put in play real questions as to whether their plan would violate s. 11(d) of the Charter: the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". This right is something of a golden oldie that can be traced, at least in principle, to the Magna Carta. And while the jurisprudence under it and its application to defences is less than a paragon of clarity, it is still a meaningful hurdle for the government.
And I suppose that accused would also need to prove other defences that have been suggested, such as that they are aid workers and journalists. And so the reverse onus -- requiring a journalist to prove they are journalist to avoid going to jail for travelling to a designated zone -- could also raise novel new s. 2(b) freedom of the press issues.
So to summarize: in order to make it essentially a default crime to be within spitting distance of ISIS (and so ease evidentiary constraints that govern conventional anti-terror crimes), the Tories raise new constitutional issues on which there is a real chance they will lose. And then they would need to justify their new law under s. 1 for violating the presumption of innocence and freedom of the press.
I support the idea of designated zones. I don't think I could ever concoct a s.11(d) or s.2 justification that would satisfy s.1.
And so this is a political party that births fantastic new constitutional caselaw, allowing us to better understand the limits of state power in a constitutional democracy.