THE FOREIGN FIGHTER CRISIS: A RENEWED CANADIAN APPROACH.

• Author: Carlson, Brett

I INTRODUCTION 109 II MODERN HISTORY OF FOREIGN FIGHTING AND UNIQUE THREATS 111 III INTERNATIONAL RESPONSES: SOFT AND HARD APPROACHES 113 A. Soft Approaches 114 B. Hard Approaches 115 C. The Australian Approach 116 D. Criticisms of the Australian Approach 118 IV THE CANADIAN APPROACH: EVIDENTIARY CHALLENGES 120 A. Section 83: Participating, Facilitating, Instructing, and Harbouring 121 B. Intelligence to Evidence: The Problem with Foreign-Obtained Evidence 121 V TOWARDS A NEW CANADIAN APPROACH: PROMISES AND CHALLENGES 123 A. The Need for an Integrated Approach 123 B. Proposed Reform to Canadian Approach 125 VI CANADIAN CHARTER OF RIGHTS AND FREEDOMS CONSIDERATIONS 128 A. Section 6: Mobility Rights 128 B. Section 7: Principles of Fundamental Justice 130 C. Section 11(d): Presumption of Innocence and Evidentiary Burdens 132 VII CONCLUSION 136 I INTRODUCTION

In January 2013, an unsuspecting 23-year-old student from the University of Ottawa named John Maguire booked a one-way flight to Syria. John appeared in a YouTube video a year later clutching a Kalashnikov rifle and urging followers to join the Caliphate and commit terrorist attacks on Canadian soil. (1)

John Maguire is not unique. He exemplifies the broader foreign fighter phenomenon that has emerged since the Syrian Civil War and the rise of the Islamic State ("ISIS"). This phenomenon involves radicalized Western citizens travelling overseas to join terrorist organizations and engage in local conflicts. The International Centre for the Study of Radicalization and Political Violence estimates that conflicts in Syria and Iraq alone have attracted over 20,000 of these fighters. (2) The Canadian Security Intelligence Service ("CSIS") estimates that 190 of these extremist travelers have a nexus to Canada, of which approximately 60 have returned home. (3)

The foreign fighter phenomenon presents two distinct problems for Canada. The first is the obvious problem of radicalized Canadian citizens joining armed insurgencies overseas. Canada simply should not tolerate its citizens joining and fighting alongside terrorist organizations such as ISIS. The second problem is that many of these citizens are now returning to Canada as ISIS faces imminent defeat. (4) There are legitimate concerns that some returnees-particularly those who have committed heinous crimes oversees, are well-trained, and remain radicalized-pose a national security threat to Canada. Even for returnees that pose little to no security risks, there is a compelling policy rationale for imposing criminal sanctions on returnees for the dual purposes of deterrence and denunciation.

Adequate solutions to this problem have eluded policy makers in Canada. Of the 60 Canadians who have returned, only three have been convicted of terrorism travel offences. (5) This issue has garnered increasing attention in Canadian public discourse and has led to contentious debate amongst policy makers. (6) The lack of effective prosecution is arguably due to the complexity of Canada's terrorism offences and the inherent challenges of extracting reliable evidence from foreign war zones. (7) As a result, Canada's approach currently focuses on tracking individuals and providing "disengagement and reintegration support" (8) through the National Strategy on Countering Radicalization to Violence program. (9) While reintegration and de-radicalization policies are indispensable tools, exclusive reliance on this approach neglects the important deterrent and denunciatory effects of criminal sanctions, particularly for high-risk individuals who remain hostile and ideologically engaged.

This paper will argue that Canada's inability to prosecute returning citizens effectively elucidates a significant and serious legal vacuum in our approach to the foreign fighter phenomenon. To address this legal vacuum, this paper proposes the creation of two separate Criminal Code offences. The first offence would criminalize all non-legitimate travel to a declared conflict zone. The second offence would criminalize any engagement, or intention to engage, in "hostile activities" while in a foreign country. These offences would effectively criminalize any non-bona fide travel to conflict zones with increased penalties for engaging in any form of unauthorized hostile activity. The proposed approach is designed to prevent and more effectively prosecute travel to foreign war zones and participation in foreign conflicts by easing the prosecutorial burden that currently exists under Canada' anti-terrorism regime.

Part II of this paper provides a brief modern history of foreign fighting and the unique threats posed by its recent resurgence. Part III examines various "soft" and "hard" approaches deployed by the international community to address these challenges, with particular focus on the Australian criminal model. Part IV discusses the deficiencies of Canada's current approach and argues that prosecutorial ineffectiveness provides a strong impetus for criminal law reform. Lastly, Part V proposes criminal law reform based on the Australian criminal model that is both constitutionally compliant and bolsters Canada's current approach to foreign fighters.

II MODERN HISTORY OF FOREIGN FIGHTING AND UNIQUE THREATS

The foreign fighter phenomenon is not new. As the Spanish Civil War drew to a close in 1939, up to 50,000 foreign fighters had joined the conflict against General Francisco Franco. (10) Nearly a decade later, some 4,500 oversees volunteers fought alongside Israeli forces in the 1948 Israeli-Arab War. (11) Traditionally, foreign fighters were defined as individuals who "(1) originally join a localized insurgency, (2) tend to perpetrate... attacks within the confines of the insurgency, and (3) do not primarily target non-combatants." (12) The most generalizable characteristic of foreign fighting appears to be that of non-citizens participating in localized civil conflicts, who are driven by shared identities, "whether religious, ideological, or nationalist, [which] provide the social structures that enable dissemination of recruitment messages and permit the mobilization of foreign fighters." (13)

In many ways, this traditional definition of foreign fighting resonates with our understanding of modern-day foreign fighting as it exists in Syria, Iraq, and Northern Africa, particularly with regard to the nexus between ideology and fighter mobilization. However, there are distinct elements inherent to modern-day foreign fighting that warrant special consideration. Firstly, as noted by University of Ottawa Faculty of Law Professor Craig Forcese, "all but two of the large, global and private foreign fighter mobilizations in the twentieth century were in the Muslim World." (14) Secondly, many of these conflicts have been fueled by an "extreme pan-Islamic social movement" that contemplates armed struggle against Western countries. (15) While traditional foreign fighters were predominantly confined to local insurrections, ISIS-inspired foreign fighting possesses a distinctly international component, whereby participants move from local engagement to international projection of terrorism. This has led to what is known as the "life-cycle" of foreign fighters. This cycle involves (1) radicalization and the contemplation of fighting in a foreign country, (2) participating in and obtaining skills in a conflict, and (3) returning home. (16)

The third phase represents the most a serious and pressing policy conundrum. There is particular concern that returning foreign fighters "equipped with new knowledge of fighting, training, recruitment, media and technical skills in building bombs, take their skills elsewhere-potentially facilitating the initiation or escalation of terrorism in their home country or in other arenas, and enhance the power of insurgencies and terrorist groups." (17) Skills developed abroad may be used to recruit or inspire more individuals in Canada to join extremist organizations, or worse, to actively plan and participate in terrorist activity. (18) This belief stems from concerns that returnees are desensitized towards armed-conflict and violent extremism, and often remain influenced by the organizations they joined while abroad. (19)

While there is no way to effectively predict whether or not these concerns will materialize, Stanford University Professor Thomas Hegghammer estimates that for every nine foreign fighters who return, one will seek to perpetrate attacks. (20) It is perhaps an overgeneralization to ascribe such motives to all returnees and it is important to note the various the risk profiles for returnees. Colin P Clarke, a senior Political Scientist at RAND and Senior Fellow at the Foreign Policy Research, and Wilfrid Laurier Professor Amarnath Amarasingam posit that returning foreign fighters are either (1) disillusioned and traumatized, (2) disengaged but still ideologically committed, or (3) engaged and ideologically committed. (21) Consequently, each risk profile warrants a different response. Policy-makers across the world apply a combination of hard and soft approaches tailored to these risk profiles. In order to understand and contextualize Canada's current approach to returning foreign fighters, it is a worthwhile exercise to briefly examine various international approaches.

III INTERNATIONAL RESPONSES: SOFT AND HARD APPROACHES

The emergence of ISIS-inspired foreign fighters has spurred a proliferation of policy responses. States tend to employ both soft and hard approaches. Soft approaches focus on preventing individuals from becoming foreign fighters and rehabilitating those who return from active participation in conflict areas. Hard approaches are aimed at deterring foreign fighting through criminal law and other punitive administrative regimes. However, as will be discussed, the efficacy of hard approaches is often compromised by evidentiary challenges which hamstring prosecutions, leaving most countries to...