Travel Ban: Why Mr.Harper is wrong in saying "there is no right in this country..."

Despite being accused of “fear-mongering”, Mr. Harper’s recent announcement made it clear that another four years of Conservative government means at least one more controversial legislation that will criminalize traveling to places that are considered terrorist hotspots due to lack of governance and widespread violence. Though Mr. Harper indicated that people who have legitimate reason to travel would be exempted, he did make it clear that there are “very few legitimate reasons to go to places like this”.  

Mr. Harper did not clarify as to what he thinks legitimate reasons are, nor did he explain how the legislative framework would look like. However, it is evident that there will be a blanket prohibition for Canadians to travel to those “declared areas”. Though opposition leaders, Justin Trudeau and Thomas Mulcair criticized his statement on policy grounds, none seems to discuss the constitutionality and legitimacy of his planned legislation. They seem to have been persuaded by his misleading statement “there is absolutely no right in this country to travel to an area under the governance of terrorists; that is not a human right”.

Nevertheless, there are there obvious reasons why such legislation would be unconstitutional and unreasonable. Firstly, Harper’s statement made it clear that although there will be exceptions for legitimate reasons, the burden will be on those seeking to travel or already traveled to those “declared areas” to demonstrate that they have travelled for legitimate reasons as he said “I don’t think people have legitimate reason will have difficulty showing those”. This approach will reverse the onus from the Crown (to prove the guilt) to a defendant (to prove innocence). Consequently, it will violate one of the fundamental principles of criminal law which requires our criminal justice system to treat everyone accused of a crime as innocent until they are factually proven guilty. This is not only a principle of our criminal justice system but also a constitutionally protect right as s.11 (d) of the Charter specifically protects a person charged with an offence the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. The Supreme Court of Canada in many prominent cases such as R v Oakes, R v Stones, R. v Whyte, repeatedly held that reversing onus violates the principle of “presumption of innocent” and cannot be justified in a free and democratic society under s.1.

The second major constitutional issue engaged with his planned legislation is mobility rights, protected under s.6 of the Charter. It reads as: “every citizen of Canada has the right to enter, remain in and leave Canada”. While a plain reading of this provision may give an impression that it may not be engaged with respect to criminalization of traveling to certain areas, the practical implications of this provision suggest that it would most certainly be engaged. It is also possible to argue that the use of the word "leave" in the Charter protects an individual's right to leave Canada at anytime and preventing her from traveling to "diclared areas" limits her ability to leave Canada. 

One of the defining characteristics of criminal law is that it comes with a penalty. Mr. Harper also vowed “those who go without such legitimate reasons, will face the full force of the law”. He did not mention what “the full force of the law” would include, however, if the penalty includes a denial of re-entry to Canada, undoubtedly, the mobility rights of an individual protectd by s.6(1) will be violated as the Charter gives “every citizen of Canada” “the right to enter, remain and leave Canada”. Moreover, s.7 of the Charter, which guarantees everyone right to “life, liberty and security” will also be violated since a prohibition on re-entry will significantly limit individuals’ freedom to decide where to live, force them to go back to a place where their life will be under threat and they will be exposed to eminent physical and psychological harm.  

Thirdly, if, on the other hand, the penalty includes imprisonment, it will evidently deprive an individual from her s.7 rights. The Supreme Court of Canada has been very clear that any law that imposes a penalty of imprisonment, irrespective of whether it is discretionary or mandatory, is by the virtue of the penalty a deprivation of liberty protected under s.7 unless it conforms with the principle of fundamental justice and could be demonstratively justified in a free and democratic society. The Court also rejected that a law, which infringes on an individual’s right to life liberty and security without conforming to principle of fundamental justice could be demonstratively justified in a free and democratic society unless there exist an exceptional circumstance such as natural disaster or war.

Nevertheless, it will be very difficult to justify any law that will not only prohibit a Canadian citizen to travel to a black listed area but also make her subject to the full force of criminal law. Individuals may have to travel completely for some innocent purposes, such visiting sick parents or attending a wedding (assuming that aid workers will be exempted). However, criminally penalizing them for their actions that have nothing to do with terrorism cannot be justified in a free and democratic society. It should not be forgotten that our criminal justice system is not designed to punish individuals whose actions are not morally blameworthy. Many sophisticated concepts and requirements such as mens rea, actus rea and specific intent have been developed to protect those innocent civilians whose actions may fall within the scope of the law but they are not to be condemned.

Though Mr. Harper strongly claims that there is no law in this country that protects the right of a Canadian to travel to terrorist controlled areas, I still do not think that he and his party members are naïve enough to think that they can get away with such an intrusive law without having to face constitutional challenges. I don’t think their main goal behind overemphasizing on security has anything to do with protecting Canadians.  Rather, they are trying to win another election by creating fear and confusion among ordinary Canadians who are politically inactive and unaware of the reality of the nature of threats we are facing. 

About the Author:

Washim Ahmed received a Bachelor degree in Law, specialization in Policy and Governance from Carleton University and a LLB degree from America Bangladesh University. He completed law society's licensing requirements through JD courses from University of Toronto Faculty of Law and Osgoode Hall Law School. He is currently pursuing a professional Masters in Law (LLM) at Osgoode Hall Law School and a licensing candidate under the Law Soceity of Upper Canada.  

He is interested in the areas of legal theories, constitutional law, administrative law, human rights and civil liberties, politics and religions. He has published articles in academic journals and databases and authored a book (which is in the process of publication) on the issues of polygamy and equality.

Washim could be contacted at md.ahmed@osgoode.yorku.ca 

 

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