Christian Leuprecht is a professor of political science at the Royal Military College of Canada and Queen's University, and senior fellow at the Macdonald-Laurier Institute.
The phenomenon of Canadians travelling abroad to join bellicose causes in which the Canadian government would rather not have them involved is not new: Some Japanese- and German-Canadians left to fight with their respective countries during the Second World War; some members of Canada's Sikh diaspora left to support Babbar Khalsa in India in the 1980s; likewise, some members of Canada's Tamil community were drawn to the LTTE in Sri Lanka. Nor is the phenomenon of the Canadian government putting forward legislation to stop them new. Canadians going off to fight in the Spanish Civil War prompted the government of the day to pass the Foreign Enlistment Act (1937). Never having been rescinded, the act is, incidentally, still on the books. So why not just resort to it instead of drafting new legislation? Well, certain penalties prescribed by the act are unlikely to pass muster – with Canadians and the Charter of Rights – such as the option of hard labour.
There is a school of thought that would leave people to be free to choose their fate and meet their destiny. This non-interventionist stance is problematic for a number of reasons. Canadian society protects people from themselves on any number of fronts: If you stunt drive, we'll impound your car and give you a hefty fine, for instance. And, as a society, we have a particular obligation to protect youth from themselves: We make it illegal for them to buy cigarettes or alcohol, for instance. They smoke and drink anyway, but arguably fewer do than might otherwise be the case because they're more aware of the harmful effects of such activity.
That is, any number of laws in our society are meant, in the first instance, not necessarily to facilitate prosecution but to clarify the boundaries of the type of activity we do (or do not) condone as in Canadians' and society's interest.
On the surface, the high probability of death or serious harm when travelling to join a bellicose cause seems to me to meet that standard.
Moreover, among the current wave of "Foreign Terrorist Fighters," as the United Nations calls them, a Norwegian study has shown that about a third have already returned. Ninety per cent return with serious mental-health issues (whether that is an effect or a cause of their travels is unclear) and thus impose considerable costs on our health and social system, while 10 per cent return as hardened ideologues. The Canadian Security Intelligence Service and the RCMP have confirmed as much in testimony before a parliamentary committee when citing the number of returnees under surveillance. However, they also point out that not every returnee has necessarily committed atrocities. There are recruiters, organizers, financiers – all of these are activities with which they could become active in Canada, let alone using their know-how and network to orchestrate or carry out an actual attack here in Canada.
Much legislative effort has been invested in what is known as "criminal pre-emption": activity that legislation has likened to terrorism. This approach is onerous and expensive, the burden of proof is high and it has its limits in curtailing terrorist-related activity. As a result, the realms of "administrative" and "investigative" pre-emptions – as University of Ottawa legal scholar Craig Forcese refers to them – are proving increasingly important complements. Passport revocation, for example, is a measure of administrative pre-emption. And travel bans to regions contested by terrorists, such as the one floated this week by the Conservatives, falls into the same category. Whether Australia will secure successful prosecution under its precedent-setting legislation, which is similar to the Canadian proposal, remains to be seen. To the best of my knowledge, no one has ever been successfully convicted under the U.K.'s version of the Foreign Enlistment Act (1870). That, however, does not diminish the deterrent effect of such legislation.
Given the ease of communication and travel in the 21st century, the phenomenon of ideologically inspired travellers looking to join violent extremist causes is not about to go away. In fact, the ubiquity of social, economic and political conditions, especially throughout the Middle East, that fuel ideological extremism will likely mean extremist travellers will become even more prevalent.
Over the past decade, the United Nations Security Council has passed several resolutions, binding on all member countries – including Canada – to stem the flow of Foreign Terrorist Fighters, including Resolution 2178 in 2014. Political stripes notwithstanding, the next federal government is bound to find itself under continued pressure to innovate measures to counter and prevent terrorist-related activity. In this light, Canadians stand to benefit from a more informed debate on issues of national security. No better time, then, to raise legislative proposals than during an election campaign and afford Canadians the opportunity to cast their lot on the issue at the urn.