Stephen Harper’s proposed ban on terror travel: subversive, unconstitutional, and unlikely to work, but clever

Posted on August 10, 2015, 12:10 am
9 mins

PHOTOS: Nineteenth Century Mormon men, criminalized by U.S. polygamy laws. Below: Prime Minister Stephen Harper, Senator Mike Duffy, former MP Dean Del Mastro.

The Conservative Party’s terror-travel ban proposal is vintage Stephen Harper – subversive, unconstitutional and likely to have unintended consequences, but clever and highly motivating to the conservative base.

As added bonuses from the Conservative Party’s media-management perspective, it will make balanced journalism from the world’s worst hotspots – wherever they may be now and in the future – even more difficult for those brave or foolish enough to try, and it will of course distract from the Duffypalooza bound to erupt in the media this week.

HARPER_RIFLE-JPGMr. Harper promised yesterday that if he is re-elected he will make it a criminal offence for Canadians to travel to parts of the world “that are ground zero for terrorist activity.” Mr. Harper and his government, presumably, will get to decide who is a terrorist and who isn’t, not to mention what constitutes a hotspot.

This is clever because it will motivate his base and possibly sway undecided voters who are legitimately fearful of the potential for terrorism in Canada – and, in some cases, of where their children might go and what they might do when they get there.

In addition, the Conservative Outrage Machine can, and will, call any politician foolish enough to point out the drawbacks of this idea a terrorist sympathizer, or possibly a terrorist himself or herself – you know, like the late “Taliban Jack” Layton.

It is subversive because, like many of Mr. Harper’s initiatives, it is designed to subvert the Canadian Constitution, which the prime minister clearly dislikes, and in particular the Canadian Charter of Rights and Freedoms, which it is fair to say Mr. Harper despises.

DuffyIt is unconstitutional on its face because of Section 6 of the Charter, which states, “Every citizen of Canada has the right to enter, remain in and leave Canada.” And if media reports are correct that the presumption of innocence will not apply to Mr. Harper’s planned new criminal law, then that is a Charter violation too.

This, however, is likely subject to the “reasonable limits” weasel phrase in Section 1 of the Charter, so unlike some recent Conservative legislation, it is far from a certainty the courts would throw it out the first chance they get. Probably any legislation would have to be more carefully worded than Mr. Harper would like to pass judicial muster, but that does not reduce its impact as an effective campaign tool for a moment.

Such a law would likely produce unintended consequences because criminalizing travel to an unpopular location will not prevent people from going there – it will only discourage them from changing their minds and coming back.

This can have the positive effect of preventing potential terrorists from returning home, but it also denies the state access to intelligence about what the proscribed groups are up to, and offers no out for people who may change their minds at the last moment while the getting out is still good.

Though it is now largely forgotten, there is an excellent example of this in our own continent’s history – the 19th Century U.S. legal proscription of multiple marriage designed in part to discourage Americans from joining the Mormon Church that had the effect of criminalizing many people who followed the Mormon Trail west to the Salt Lake Valley.

When things didn’t turn out to be quite as advertised in Brigham Young’s western redoubt, facing jail at home, his criminalized followers had no choice but to remain and work for a success of the enterprise.

DelMastro___GalleryBeyond that, there are many ways the legislation could have additional unintended consequences – it’s just that there’s no legislation at the moment to critique, and we are bound to be told not to worry our pretty little heads by the Conservatives because they’d never, never misuse a law like this. I leave it to readers to decide if they are likely to be comforted by such assurances from the likes of Stephen Harper.

But, clearly, there is plenty of potential for definition creep in a number of areas, depending on how the legislation is drafted.

Mr. Harper assured us he is “talking about the most dangerous places on earth, where governance is nonexistent and violence is widespread and brutal.” (West Texas? Detroit? Bay Street?) But there’s a lot of scope, even in a definition like that, to keep people from going to places with governments Mr. Harper disapproves of.

Moscow? Beijing? The Vatican? Greece, in the event there’s another outbreak of democracy there?

It raises interesting, though less fundamental, questions about those Canadians – apparently tacitly encouraged by the Harper Government and aided by the mainstream media – who travel to “the most dangerous places on earth, where governance is nonexistent and violence is widespread and brutal” to fight on the side the Harper Government approves of.

The prime minister has promised us that there may be exceptions – including journalists. But all that means is the government finally has the means to determine who is a journalist (the loyal stenographers at the National Post) and who is not (the volunteers of Rabble.ca, perhaps), not just in Ottawa, but anywhere in the world.

I guess you can trust him or not on this one.

Finally, I see no mention of retroactivity in the coverage of the PM’s proposal, but I would watch for this in the future. If Mr. Harper has his druthers, you can count on it the law will contain provisions allowing the government to make it a criminal offence for Canadians to have visited places the Conservatives decide later are hotbeds of terror.

This legislative proposal purports to address a problem that is undeniably real. In fact, it is likely to do more harm than good – and any candidate who foolishly speaks the obvious truth about it is bound to be excoriated by Mr. Harper’s caucus of trained seals as a supporter of terror.

It certainly poses a far more serious threat to our liberty than the gun-control laws Mr. Harper is so busy trying to dismantle in advance of the Oct. 19 election – in the face of opposition from the RCMP. It also does much less to ensure our safety than did the gun restrictions the PM wants to dump.

But then, this prime minister is only a law ’n’ order guy when it suits his agenda.

Opposition politicians confronting this issue on the stump will want to stay in their message boxes and ask the Conservatives about how Senator Mike Duffy’s doing, and whether they plan to pardon Dean del Mastro. Good to go?

This post also appears on Rabble.ca.

12 Comments to: Stephen Harper’s proposed ban on terror travel: subversive, unconstitutional, and unlikely to work, but clever

  1. Keith

    August 10th, 2015

    “(West Texas? Detroit? Bay Street?) …Moscow? Beijing? The Vatican? Greece”

    Steve is probably thinking about Ukraine and Occupied Palestine.

    In addition to journalists, there are (very brave) international aid organisations working in these and other “hotspots”. The legislation would need to establish a bureaucracy to issue permits to journalists and aid workers.

    I guess he will reserve himself the power to forcibly return refugee claimants to “hotspots”.

    Reply
  2. Alvin Finkel

    August 10th, 2015

    Harper is a control freak of the worst kind. He’ll tell Canadians where they can’t visit and he’ll tell them (especially scientists in government employ) what they can and cannot say. As the article below demonstrates, he’ll even shut up his suckiest supporters, only allowing the Tory spin machine to speak for the major party of big corporations.

    http://ipolitics.ca/2015/08/08/participants-at-conservative-events-must-agree-to-gag-order/

    Reply
  3. TC

    August 10th, 2015

    There is a country that currently bans travels to that area of the world, albeit for a different reason. In 2007, a group of South Korean Christian missionaries went to Afghanistan. They were kidnapped, and the Korean government allegedly paid a ransom for their release. Since then, the South Korean government, a democratically elected government, bans its citizens from travelling to unstable countries like Afghanistan, Iraq, and Syria. So the Koreans have a law that Stephen Harper is proposing. I support the decision of the Korean government, as the government shouldn’t have to waste its resources on people knowingly going to a war zone.

    I agree with Harper’s intention, but I agree with the author of this article that it’s unworkable. The Government of Canada can’t stop its citizens from travelling to these areas via a third country. This is like Americans going to Cuba via Canada or Mexico.

    Reply
    • Keith

      August 10th, 2015

      Another difficulty is that we have allied ourselves with regimes that claim to be in control their territory. We are not going to ban all travel to these countries and it would be diplomatically awkward to publish maps of insurgent controlled areas. But if there are no maps, the government will have to prove beyond reasonable doubt which parts of Iraq, Afghanistan, etc. are dangerous “hotspots” (that it didn’t warn travellers about).

      Reply
  4. bloozguy

    August 10th, 2015

    He also has a hate on for places like Cuba and Venezuela. Personally I would include Washington D.C., but that’s just me.

    Reply
  5. Bill Doyle

    August 10th, 2015

    I presume Stephen will require everybody leaving Canada must wear a tracking device. It is possible to identify a destination then make plans outside Canada. The tracking device will allow Stephen that those leaving do no go to the places he does not one to go.

    Reply
    • Alex C Polkovsky

      August 10th, 2015

      That explains why there are now applications to erase you browsing data and replace it with innocuous sites.

      We are all now Iranians, browsing the Internet through proxy servers and fearing the police.

      Reply
  6. Jeffry House

    August 10th, 2015

    The Federal Court recently ruled that the Federal Government cannot designate “safe” countries for the purpose of refugee hearings because, among other reasons, it stigmatizes the person concerned. http://t.thestar.com/#/article/news/immigration/2015/07/23/court-strikes-down-ottawas-safe-country-list-for-refugees.html

    So do they actually imagine that labelling countries as “terrorist” would be acceptable? Would people returning from, say, Iraq be stigmatized by being arrested and labelled a terrorist?

    Their proposal is obviously, demonstrably, and evidently unconstitutional.

    http://t.thestar.com/#/article/news/immigration/2015/07/23/court-strikes-down-ottawas-safe-country-list-for-refugees.html

    Reply
  7. anonymous

    August 10th, 2015

    The Lord knows that the Alberta special education class has had more than enough time to reshape Canadian society in their own image. It’s time to let it go and give somebody else a chance.

    http://www.youtube.com/watch?v=YAhEB2PXSHc

    Reply
  8. ANONYMOUS

    August 10th, 2015

    Does this mean that it would be made illegal to visit North Korea? Too bad, it’s actually a fascinating place and the people there are genuinely welcoming.

    Reply
  9. Sam Gunsch

    August 10th, 2015

    excerpt: The majority of countries that have implemented travel bans are not democracies.

    http://ipolitics.ca/2015/08/10/harper-in-lockstep-with-authoritarian-regimes-on-travel-ban-says-expert/
    ===============

    excerpt: “If you want to know which states put restrictions on movement of citizens, it’s authoritarian states,” said John Packer, director of the University of Ottawa’s Human Rights Research and Education Centre.
    ====================
    Harper authoritarianism makes Canada more like Saudi Arabia, Egypt, Morocco, etc.

    Reply

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