Canadians should chalk it up to chance that extremist travelers have not yet committed terrorist attacks upon returning to Canada. Unfortunately, the same is not true for foreign fighters who returned to France, Belgium, and Britain. Before our luck runs out, Ottawa should reform Canada’s travel-related terrorism laws by prohibiting travel to declared conflict zones without a legitimate purpose.

Imposing stricter criminal sanctions would deter Canadians from becoming foreign fighters and prevent them from returning without consequences to Canada – with all the risks they could pose.

In 2019, it was reported that at least 250 Canadians left the country to become foreign fighters in places such as Syria, Iraq and Afghanistan. A year later, the Canadian Security Intelligence Service (CSIS) estimated that at least 61 suspected foreign fighters had returned to Canada. These numbers are significant.

A 2013 study published by Dr. Thomas Hegghammer found that roughly one in nine foreign fighters who return from wars overseas will commit a terrorist attack at home. Whether foreign fighters remain radicalized or not, the Canadian government should not be indifferent toward the militarized conduct of its citizens and permanent residents in conflicts abroad – especially against our own soldiers, those of our allies and partners, or civilians overseas.

Multiple sections of the Criminal Code already deal with travel-related terrorism offences.

In R. v. Khalid, Justice Bruce Durno of the Ontario Superior Court of Justice described terrorist offences as the “most vile form of criminal conduct” that “attack the very fabric of Canada’s democratic ideals” and “strike fear and terror into the citizens in a way not seen in other criminal offences.” In a 2018 report, the prosecution of Canadians involved in terrorism was laid out as one of the Trudeau government’s priorities. However, as of 2021, only 14 of at least 61 suspected foreign fighters who returned to Canada have so far been convicted of travel-related terrorism offences.

Prosecuting travel-related terrorism offences is complicated. Canadian courts have high standards when it comes to converting intelligence obtained overseas into evidence. For example, in France v Diab, the Ontario Court of Appeal determined that intelligence gathered by foreign agencies is often unreliable because it is “unknown, unsourced and uncircumstanced.” While intelligence is inadmissible if obtained under duress, it may also be admissible but unusable because Canadian intelligence agencies have a duty to protect classified information, intelligence operatives and human sources of information in war zones abroad.

By contrast, prosecuting travel-related terrorism offences is more straightforward if the evidence was obtained in Canada. For example, in R v Hersi, the Ontario Superior Court of Justice found the defendant guilty of attempting to travel to Somalia to participate in the terrorist activities of – and for advising an undercover agent to join – al-Shabab. Here, the conviction was secured with evidence obtained domestically by the Communications Security Establishment (CSE).

In R. v. Khawaja, the Supreme Court of Canada established that the guiding principles for prosecuting and sentencing criminals convicted of terrorist offences were denunciation, general deterrence and public protection. Evidently, these principles carry punitive rather than rehabilitative connotations. While there is a pressing need to focus on de-radicalization and reintegration programs, the Supreme Court is clear: Canada must take a punishment-based approach to address the foreign fighter phenomenon.

The fact that would-be foreign fighters continue returning to Canada without facing prosecution suggests more can be done.

To make prosecuting travel-related terrorism offences more effective, Canada could look to Australia as a model. In 2014, Canberra instituted Division 119 of its Criminal Code Act to deal with the foreign fighter phenomenon. The measure includes a travel-related terrorism offence titled “entering or remaining in a declared area.” Put simply, Australians who travel to a declared conflict zone without a legitimate purpose are presumed to have committed an offence – period.

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Such a measure in Canada would reduce the burden of gathering foreign-sourced evidence. It goes without saying that critics would argue it flies in the face of the Canadian Charter of Rights and Freedoms, specifically sections pertaining to mobility rights and the presumption of innocence.

To address similar issues, the Law Council of Australia issued three recommendations.

First, it recommended establishing an exception to allow travel to declared conflict zones for legitimate purposes. This exception would include travelling for business or academic reasons, to provide humanitarian aid or to visit family members. In the Canadian context, such a recommendation could also include an exception titled “conduct for the national interest of Canada.” Such an exception could be interpreted to apply to Canadians who join the Kurdish-led Syrian Democratic Forces or who travel to defend Ukraine against Russia’s invasion, for example.

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Second, the Law Council of Australia recommended instituting a ministerial preauthorization regime. Like a visa, this would enable individuals to apply for and seek the minister of public safety’s permission to enter and remain in a declared conflict zone for a legitimate purpose. Applying a similar measure here, the federal government could also prescribe declared conflict zones through an order in council if an area is deemed high risk due to the increased presence of terrorist organizations.

Third, it recommended inserting “without limiting this subsection to” into the law. This would give judges discretion in determining who may have traveled to a declared conflict zone for a legitimate purpose. In this way, individual circumstances may be addressed by the courts, if warranted.

In addition to these recommendations, such a legislative amendment could also include an exhaustive list of non-legitimate purposes as part of the offence. Put together, this would provide the accused with an additional defence at trial and raise the prosecutorial burden of the Crown. 

In Australia, simply being in a declared conflict zone for a non-legitimate purpose leads to a presumption of absolute liability. While that presumption would be avoided if Canada applies the aforementioned recommendations, the reform would still face legal challenges under Section 6 (mobility rights) and Section 11(d) (presumption of innocence) of the Charter. Nevertheless, it is worth pursuing given the threat posed by travel-related terrorism.

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GM
George Monastiriakos is a lawyer licensing candidate cited as a foreign affairs expert in more than half a dozen countries. You can read his published works on his website. Twitter @monastiriakos

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