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

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.

Mr. 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.

It 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.

Beyond 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.