On August 9, Prime Minister Stephen Harper made a campaign pledge to make it a criminal offence for Canadians to travel to “banned foreign travel zones” where “listed terrorist entities such as ISIS are engaged in hostile activities, and are recruiting and training followers”.

I’m quoting Harper, because soon a straw man was erected. A straw man which ended up having very little to do with what Harper has proposed. A straw man many in the media and on social media have had fun arguing against.

Harper was suggesting a declared area offence similar to Australia’s 2014 changes to its Criminal Code Act which prohibit travel to the Mosul area in Iraq’s Ninewa province and the Al-Raqqa district in Syria, both of which are areas controlled by ISIS. It is difficult to imagine travel to Mosul or Al-Raqqa for tourism or to visit family. However online recruiting of foreign fighters is not uncommon.

In 2014 the public safety committee of the House of Commons heard from the Director of CSIS that 80 Canadians have travelled abroad “for a variety of suspected terrorism-related purposes” and then returned to Canada. At least 130 Canadians are currently abroad engaging in alleged terrorist activities.

Quickly however the banned travel zones proposal became a proposal to prevent Canadians from travelling abroad.

Or that terrorism has happened in Paris, so of course travel to Paris would soon be banned.

Or at least travel to Pakistan.

Or that Michael Zehaf-Bibeau was prevented from traveling abroad so therefore the banned travel zones wouldn’t have prevented his shooting spree.

The problem with these strawman arguments is that Harper has used the Australian legislation as an example, where:

(a) a declaration cannot cover an entire country;

(b) there is a mens rea component (that is, someone must intentionally enter the declared area);

(c) it is a defence to go solely for legitimate purposes; and

(d) there is no pre-approval process.

Section 119.2 of Australia’s Criminal Code Act sets out the legitimate purposes: providing humanitarian aid, making a genuine visit to a family member, working in a professional capacity as a journalist, performing official government or United Nations duties, appearing before a court or tribunal, and any other purpose prescribed by the regulations.

Michael Den Tandt of the Ottawa Citizen criticizes the proposal because the details regarding criteria and enforcement are not yet known. Who is going to decide what is a declared area? The idea of a pre-approval process or registration system for travelers strikes Den Tandt as begging for another Maher Arar affair. Who, he asks, could “believe federal bureaucrats and security officials can be trusted to fairly dispense justice in this way, likely behind closed doors due to ‘national security’ concerns?”

He could be right, if only this is what was being proposed. If Harper is explicitly holding up the Australian example as a model, there is no registration of travelers, no pre-approval, no secretive process. For the Australians, it’s a criminal code offence. If someone was alleged to have travelled into a declared area, the Crown would have to prove beyond a reasonable doubt that the accused had the intent to travel to the declared area knowing it was a declared area. An accused would have a defence if they travelled to see family or some other legitimate purpose.

The most important point missed by the critics of this proposal isn’t just to prevent people from going to these areas (and even though Zehaf-Bibeau may have been stopped, currently at least 130 Canadians are abroad allegedly fighting with terrorist organizations), it’s also about making sure law enforcement has to the tools to do something when a person goes to Mosul or Al-Raqqa and then comes back to Canada.

Case in point is the Montreal Gazette’s story from August 6 about eight youths who travelled to allegedly fight with ISIS and returned to Montreal. Under the proposed law, with sufficient evidence that these individuals entered or remained in a declared area, RCMP could well press charges against these individuals, rather than spend millions monitoring them day and night.

One of the few non-straw man arguments is whether the proposal is constitutional, argued by lawyer Raj Sharma.

Presumably the argument is such a law would infringe ss. 7 or 11 of the Canadian Charter of Rights and Freedoms. Section 7 says:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Which means that laws cannot be arbitrary or vague. They cannot be overly broad, and criminal offences involving prison must have a mens rea element (which means it requires intent). Section 11(d) says that we have the right to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal.

But these two sections of the Charter are exactly the reasons why Harper’s proposal likely will look like the Australian model he quotes, and why the straw men built by the critics are ridiculous.

The Australian model doesn’t allow for the government to prohibit travel to an entire country. Intention to travel to the declared zone knowing it was a declared zone is required. “Legitimate” travel is a defence. Those are not broad, vague or arbitrary provisions.

If declared areas are seen to reverse the onus of the burden of proof (and therefore infringe the presumption of innocence), the government would have to show that this law meets s. 1 of the Charter, which requires:

(a) a pressing and substantial objective; and

(b) that the means must be proportional (that is, the declared areas law would have to be rationally connected to the objective of maintaining security, must minimally impair our rights, and must be proportional).

The Australian model likely meets this test, which means the proposal for declared areas would not be unconstitutional. That means travel for Paris isn’t the question. Nor to Pakistan. And no imagined security agency vetting our travel or journalists having to pre-register or obtain pre-approval.

That however takes the fun out of this federal election. There’s a reason why the straw man argument in the United Kingdom is called an “Aunt Sally”, named after the English pub game of the same name where players throw sticks at a ball on a metal spike (formerly a model of a woman’s head). Surely it is more fun to throw polemical sticks at an imagined argument Harper is making, rather than consider what is actually being proposed.

Photo by photoswebpm, licensed under CC BY-NC-ND 2.0.

Tyler Shandro is a lawyer practicing in Calgary. His practice focuses on administrative and municipal law. He is a former member of several tribunals including the National Parole Board and Alberta's Municipal Government Board.

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