Monday, August 17, 2015

By Noreen Ahmed-Ullah

As part of his re-election campaign, Prime Minister Stephen Harper has said his government would make it a criminal offence for Canadians to travel to regions declared terrorist hot beds.

Documents outlining the proposed law, which would ban travel to what were described as “places that are ground zero for terrorist activity” did not specify which areas would be declared off-limits. However,a background paper provided to media suggested parts of Syria and Iraq would likely qualify.

Professor Kent Roach of the University of Toronto Faculty of Law is the Prichard-Wilson Chair of Law and Public Policy. He worked with the commissions into the bombing of Air India Flight 182 and the rendition of Maher Arar, and the Ipperwash Inquiry into the killing of Dudley George. 

Earlier this year, with University of Ottawa law professor Craig Forcese, Roach led a widely acclaimed inquiry into the federal government's proposed Anti-Terrorism Bill C-51 which became law in June.

Roach spoke with U of T News writer Noreen Ahmed-Ullah about Harper’s policy proposal and what it would mean for the rights and security of Canadians.

What do you think about the new policy? Why is Harper proposing it at this time? 
I am surprised that this proposal was not included in C-51. The government's proposal is based on an Australian law enacted at the end of 2014 so it is difficult to think that it was not considered by the government when drafting Bill C-51 which was an omnibus bill. 

A distinction could be drawn between a law prohibiting visits to certain places and an anti-terrorism law, but that distinction breaks down if exemptions are made like allowing travel to Syria or Iraq to fight for the Kurds. So it’s difficult to understand why such a law is being proposed at this time just after the government-enacted Bill C-51, other than as an attempt to gain electoral advantage.

As this policy develops, what will you keep an eye on?
No legislative language has been proposed. Attempts to select sides are tricky in criminal law because the essence of the rule of law is that it should apply to all, and not pick sides or enemies. It is fine to pick enemies when you are fighting a war, but law is meant to be a more impartial instrument.

The law would violate Canadian citizens' right to leave Canada under Section 6 of the Charter (of Rights and Freedoms) and thus would have to be justified under Section 1 as a reasonable and proportionate limit. This right to leave Canada could be limited by CSIS's new powers under Bill C-51. Craig Forcese and I have finished a book called False Security: The Radicalization of Canada's Terror Laws, which will be published in September and criticizes these new CSIS powers and argues that multi-disciplinary outreach of the type used in Europe and even Australia and the United States is desperately needed in Canada. One problem is that many areas such as education and health care are within provincial jurisdiction. Another problem is that the federal government dismisses anything like this as soft and based on "sociology."

In determining whether the government has justified limits on the right to leave Canada, courts will pay attention to the four offences enacted in 2013 to prohibit foreign terrorist fighting. Not sure what this policy adds except perhaps not having to prove a terrorist purpose. 

But this brings us to another Charter problem. The prime minister has indicated that the traveller will have to prove that they fall within one of the exemptions. In a criminal offence this violates the presumption of innocence and again would have to be justified under Section 1. 

So this proposal violates at least two Charter rights, and it is unclear that it can be justified as a reasonable limit given the existing alternatives that limit rights less.

What are the chances  of this making its way into legislation and being passed?
It depends on whether there is a majority. Bill C-51 was passed with minimal amendments. Other parts of the government's response to the October 2014 terrorist attacks were enacted quickly and without any amendments. Professor Forcese and I argue that many of these amendments are misguided and ignore recommendations made by both the Air India and Arar commissions.

Along with Bill C-51, if this gets passed how will it affect Canada's global reputation and our national identity and rights?
Like Bill C-51, this proposal invites a Charter challenge. It is also not evidence-based in the sense that the government has not studied why it is difficult to prosecute foreign terrorist fighters under existing laws. The Air India Commission had a plan to facilitate terrorism prosecutions that was based on better co-operation between CSIS and the RCMP, requiring CSIS to share intelligence about terrorism offences, better oversight and streamlined terrorism prosecutions. Bill C-51 does none of this. That is why we called our book False Security. The government has enacted terrorism laws without attention to the evidence or the Charter. This threatens both rights and security.

Which countries could potentially make it on to the list?
Syria and Iraq at present could be put on the list, but likely only parts of these countries. The situation on the ground is very fluid and hard to see how the lines will be drawn and revised without relying on regulations. This also raises fairness concerns because people will have trouble knowing exactly what travel is prohibited.