OTTAWA — "Foreign fighters pose a direct threat to Canada, both through their terrorist actions overseas and especially if they seek to travel to Canada to carry out attacks here at home. The creation of a category of banned foreign travel zones will provide Canadian law enforcement with further tools to better protect Canadians from individuals who have travelled to these dangerous areas and who intend to return to Canada to commit terrorist acts." — Prime Minister Stephen Harper, Aug. 9, 2015.
In making his campaign promise earlier this week, Harper said declared zones would be designated regions within foreign countries where listed terrorist entities such as the Islamic State of Iraq and the Levant are engaged in hostile activities, and are recruiting and training followers.
"What we're talking about, the declared areas policy, is very similar to what Australia has done," he said.
"This is limited to only those areas that are clearly under the control of terrorist organizations. We're talking about very small number of areas in the world, obviously parts of Iraq and Syria would be the kinds of areas that we're talking about."
The Conservatives say there would be exceptions for travellers who have legitimate reason to be in such zones. They could include humanitarian workers, diplomats, journalists, people visiting family and those fighting against terrorist forces, presumably including those Canadians who have headed abroad to combat ISIL.
The onus would be on Canadian authorities to prove beyond a reasonable doubt that individuals were present in those areas after a region had been designated a "declared area."
However, when authorities had sufficient evidence to charge individuals with the offence of travelling to a declared area, the onus would be on the individual to demonstrate they were there for a legitimate purpose, as prescribed by regulation.
How accurate are the prime minister's claims that such a measure would better protect Canadians?
Spoiler Alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of "no baloney" to "full of baloney" (complete methodology below).
This one earns a rating of "some baloney." Here's why:
There is widespread concern in Canada about young people who travel to take part in foreign conflicts or receive terrorist training, and the implications for Canadian security should they return with the intent to carry out attacks.
Last year the Canadian Security Intelligence Service said some 145 Canadians had travelled abroad to engage in terrorist activities, with about one-third of them in Iraq and Syria, where militants have carried out numerous atrocities. The spy service said in April the numbers were rising.
The federal government already has an arsenal of criminal legislation aimed at extremists, including anti-terrorism laws ushered in after the 9-11 attacks on the United States and recently enacted legislation that gives Canada's spy agency significant new powers and outlaws promotion of terrorist acts.
It is already a crime to leave Canada to receive terrorist training, take part in extremism, or facilitate terrorism. In addition, Canadian authorities have begun using other means — from persuasion to denial of a passport — to prevent people from travelling for terrorist purposes.
The Conservatives underscore the fact dozens of individuals have travelled overseas to conflict zones and then returned to Canada, suggesting there's a legislative gap to be filled.
The government would rely on Canadian security and intelligence agencies for information about travel by Canadians to and from declared areas, said Conservative spokesman Stephen Lecce.
"Canadians who have travelled to declared areas who then attempt to re-enter Canada or travel to countries with which Canada has extradition treaties will be investigated," he said.
"If individuals cannot prove they were travelling in declared areas for legitimate purposes, they can be charged with a criminal offence."
WHAT THE EXPERTS SAY:
The Australian law, passed last fall, carries a penalty of up to 10 years in prison for entering a declared area — with exceptions covering legitimate reasons to be there.
An Australian doctor who allegedly travelled to Syria to work for ISIL has been charged with being in a declared area as well as joining and recruiting for a terrorist organization.
Still, Andrew Lynch, a law professor at the University of New South Wales, says the Australian law "has not been effective — certainly in terms of stopping people heading overseas to fight in conflict zones or in leading to any prosecutions."
Whether Australia will secure successful prosecution under its "precedent-setting legislation" remains to be seen, says a recent newspaper opinion piece by Christian Leuprecht, a political science professor at the Royal Military College of Canada and Queen's University in Kingston, Ont.
The idea of designated no-go zones has potential value, particularly in the context of providing both an additional legal deterrent in the fight against the foreign-fighter problem and updating antiquated laws regarding mercenaries joining foreign wars, said Wesley Wark, a historian and intelligence expert who teaches at the University of Ottawa.
But Wark adds there is "little merit" in trying to debate the proposal without actual legislation, "and in particular without knowing what the actual no-go zones would be, what safeguards would be built into the law to prevent innocents being caught in its net, what redress mechanisms would be available to those accused, and what kind of accountability protections would be constructed around such a measure."
Finally, Wark wonders whether the measure would be constitutional.
University of Ottawa law professor Craig Forcese, who has written extensively on Canadian security law, also believes the idea has some merit and that it would be possible to craft a law that is compliant with the charter right for citizens to "enter, remain in and leave Canada."
However, Forcese says the "whole logic of the scheme collapses" due to the planned exclusion of those heading to declared zones to fight "bad guys" — in the present example, ISIL.
It introduces the complexity and headache of trying to prove who the accused actually fought for, meaning Canada would not be "much further ahead" than under current law.
He argues 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."
The Conservatives and security-law experts agree that the proposed law closely resembles the provision passed last year in Australia. However, details of the Canadian legislation have yet to be spelled out. At the same time, the Australian provision is relatively new and untested.
There is some enthusiasm among experts for the general concept of declared areas, but there are many questions about the provision's workability beyond general deterrence value, which is difficult — if not impossible — to measure.
In addition, the proposal is muddied further by the clear indication from the Conservatives that Canadians who travel to a declared area to fight for the "good guys' would be exempt from prosecution.
For these reasons, Harper's claim that the planned provision would give authorities a new tool to keep Canadians safe contains "some baloney" — the statement is partly accurate, but important details are missing.
The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:
— the statement is completely accurate
A little baloney
— the statement is mostly accurate but more information is required
— the statement is partly accurate but important details are missing
A lot of baloney
— the statement is mostly inaccurate but contains elements of truth
Full of baloney
— the statement is completely inaccurate
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