The author has a 14-years' experience in the Canadian Army with operational experience in Afghanistan. He maintains a secret security clearance. He has previously written on the subject of Canada's Foreign Enlistment Act in Canadian Military History. A longer version of this article first appeared in the spring edition of Criminal Law Quarterly in 2016. The complete published text is available below for download.
With recent events in France, Belgium and the United States, numerous businesses are taking a closer look at their insurance policies in the event of terrorist attacks which can result in property damage, loss of income and reputational damage among many consequences. In this optic, it becomes relevant to analyze Canada's efforts in fighting terrorism on its territory and on foreign territory.
Canada, like any other country bound by the UN Security Council Resolution 2178, has an obligation to prevent the departure of Canadians wishing to fight on another country's soil and is required to have laws to prevent "Foreign Terrorist Fighters" from departing its territory and to prosecute them if they return.
Canadians have a long history of travelling abroad to join foreign militaries and armed non-state actors. The result was the Foreign Enlistment Act (FEA)1, a Canadian version of the British statute by the same name that was put in place during the Spanish Civil War in 1937, which forbids Canadians from fighting in foreign militaries during times of war and in civil wars when so dictated by an Order in Council. The law remains in effect today.
The FEA and the terrorism provisions of the Criminal Code were both designed to combat the issue of Canadians fighting in foreign conflicts, but under very different circumstances. The FEA was written well before the Charter,2 in a time when neutrality was a primary policy objective and the greatest threat to Canadian, and British Imperial, security came from nation states. The terrorism provisions in the Criminal Code, however, were born in the post-Charter, post- 9/11 world where the threat posed by terrorist groups weighed more heavily on the minds of legislators. They arose from their specific circumstances, and there is little coherence when the two are taken together. In fact, some startling holes appear.
The Foreign Enlistment Act
The prohibitions we are concerned with here are those against enlisting in foreign militaries, leaving Canada to enlist in foreign militaries, and recruiting for foreign militaries. The FEA does not prohibit Canadians from serving in foreign militaries in all circumstances. The laws of Canada do not create any express provisions against foreign military service, although the FEA does create a prohibition in a specific set of circumstances.
Inducing someone to serve in "the armed forces of any foreign state or other armed forces operating in that state" is an offence at all times.3 This prohibition can be broken into two elements: who is prohibited from the act of recruiting, and what organizations cannot be recruited for.
The recruiting prohibition applies to anyone within Canada. The only exception is recruiting conducted through consular or diplomatic officers or agents. The Act also makes it an offence to induce someone to enlist, or to leave Canada for reasons of enlistment, through misrepresentations.4
As for what organizations someone cannot recruit for in Canada, there is slightly more ambiguity. Even though the terms "armed forces of any state" and "other armed forces operating in that state" are defined, there are still some uncertainty around them. Moreover, an additional complication arises when looking at the statute's use of the term foreign state. This can be problematic as invoking the FEA would be tacit recognition of an entity as a state.
The FEA contains another mechanism by which its prohibitions can be applied outside traditional states of war, and to armed non-state actors.5 Under s. 19, the Governor in Council may make orders or regulations that modify the statute such that it applies "to any case in which there is a state of armed conflict, civil or otherwise, whether within a foreign country or between foreign countries."6 The FEA forbids Canadian nationals from enlisting in foreign military forces in certain circumstances, or leaving Canada in order to enlist.
The FEA, written in 1937, must be modified to be adapted to today's reality. Canadian nationals, no longer a defined term, cannot enlist in foreign militaries under specific conditions that no longer exist. Much of this could be eliminated with simple amendments. The term Canadian national could be changed to Canadian citizen, and state of war could be changed to state of armed conflict, as was done with the Geneva Conventions in 1949.
Terrorism Provisions in the Criminal Code
The Anti-Terrorism Act of 2001 added a series of provisions to the Criminal Code that codified Canada's prohibitions on terrorist activity. Most relevant to the discussion at hand is how these provisions dealt with recruiting and membership in a terrorist group. These organizations are designated by regulation, in the same way the FEA is applied to specific civil wars.
Belonging to a terrorist group is not, on its own, an offence under the Criminal Code. However, the definition of terrorist groups, and the breadth of terrorism offences -- which include participation in terrorist activities7 as well as actions undertaken to facilitate terrorist activities -- ensure that only the loosest of associations could be considered membership without running afoul at least one other provision.
A Canadian citizen and a foreign citizen are subject to the same prohibitions. Terrorism offences have been deemed to be so heinous that country of origin is irrelevant. The act of recruiting for a terrorist group is prohibited under s. 83.18 of the Criminal Code which creates an offence of participation in a terrorist group.
In short, the prohibitions against recruiting are deliberately broad and conflate the acts of recruiting for, committing, and facilitating terrorism offences. Section 83.181 of the Criminal Code as amended by the Combating Terrorism Act of 2013 extended the reach of the term "participation" by making it an offence to leave or attempt to leave Canada, or to even board a conveyance with the intention of leaving Canada with the intent of committing "an act or omission outside Canada that, if committed in Canada," would constitute the offence of participation in a terrorist group.8
This indicates, not surprisingly, that the laws of Canada treat terrorism as a morally reprehensible act that must be stifled wherever possible, whereas foreign military service and acts that facilitate it are only prohibited insofar as they implicate Canada.
Gaps in these Provisions
When the terrorism offences of the Criminal Code and the FEA are taken together, significant gaps become apparent. For exemple, there is no standing prohibition against a Canadian fighting as a member of an armed non-state actor. Terrorist and insurgent groups are both examples of armed non-state actors.
Canadians may join foreign militaries or armed non-state actors that are employing force against their internal populations, but not foreign militaries that are employing force against external populations.
Constitutionality of the Provisions
Ernest Lapointe, the Minister of Justice, stated during the second reading of what was to become the FEA, "Certainly to some extent the bill, from the first line to the last, is an invasion of liberty; but it is for the good of the country."9 The FEA, then as now, places a limitation on the rights of Canadian nationals to travel abroad and engage in otherwise permitted activities.
While the terrorism provisions are, through a Charter analysis, saved by Section 1, the majority of the restrictions under the FEA are not.
Canadian citizens have been able to hold citizenship in another country since 1979. Where these countries have obligatory military service, a Canadian citizen may find themselves in circumstances where they are pressed into service while living in or visiting the other country where they hold citizenship. Is this distinct from an individual joining a foreign military force because they identify with its cause or because they seek employment or adventure? There is no legal answer to this question, but it is an important consideration in crafting future legislation.
The current schema for preventing the recruiting of Canadians and their travel abroad to join foreign militaries and terrorist groups is rife with problems. With the proposed re-examination of 2015's Bill C-51, there is ample opportunity to address these issues, two issues are especially pressing.10
First, the "gap" between enlisting in terrorist organizations and other armed non-state actors committing hostiles acts must be closed. A Canadian cannot join a foreign military force under certain circumstances, and they cannot participate in a terrorist organization under any circumstances. But they can join an armed non-state actor, unless it is characterized as a terrorist group, even if the threats to Canadian neutrality or international peace and stability are exactly the same.
Second, the FEA must be updated; it contains outdated circumstances and terminology. If citizens are permitted to serve in foreign militaries under normal circumstances, and there is no evidence to suggest that doing so during times of conflict endangers the state, then the prohibition is no longer relevant. If unique and sufficiently dire circumstances arise, an armed conflict where individual Canadian participation could potentially implicate the state as a whole, the Government of Canada retains the ability to enact emergency legislation. Such emergency circumstances would likely provide sufficient justification for the infringement of Charter rights that the violation would be saved by s. 1.
1. R.S.C., 1985, c. F-28 (FEA).
2. The Canadian Charter of Rights and Freedoms (Charter).
3. Ibid., s.11(1).
4. Ibid., s.5.
5. At the beginning of the Spanish Civil War, there was considerable debate as to whether or not the British FEA of 1870 applied in the case of civil wars, at least until the insurgents took on the character of a foreign state. In spite of this legal problem, the British Foreign Office made the conscious decision of stating through a press release that the statute did apply to the Spanish Civil War and that British subjects could not enlist in the military forces of either the Republicans or the Nationalists. The decision was made with the understanding that difficulties in enforcement would be offset by the deterrent value of the statement. See S.P. Mackenzie, "The Foreign Enlistment Act and the Spanish Civil War, 1936-1939," Twentieth Century British History (Vol. 10, No. 1, 1999), p. 59. In Canada, it was widely held that the British FEA did not apply in Spain, a concern that was among the reasons for creating a Canadian statute and including a provision to ensure that the statute could be applied to the Spanish Civil War.
6. FEA, s.19(a)
7. CCC, s.83.01(1).
8. Criminal Code s.83.181
9. Hansard Debates- Canada, (March 19, 1937), p. 1958.
10. Ian McLeod, "Liberals Planning swift overhaul of controversial Anti-Terrorism Act, or Bill C-51," http://news.nationalpost.com/news/canada/canadian-politics/liberals-planning-swift-overhaul-of-controversial-anti-ter
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