Why do terrorism laws exist? It may sound like a stupid and insensitive question given all that has transpired after the terrorist attacks in Southern Israel, but there is merit to this question. The reason it is a valid question has nothing to do with the seriousness of terrorism and everything to do with the equal application of terrorism laws when individuals break those very same laws–especially here in Canada.
“An equal application of law to every condition of man is fundamental.”
The idea of having equality before the law and equal application of the law served as the seed that sprouted into the idea of democracy. It serves as the constitutional bedrock for all the world’s leading democracies, and. most of the world’s nations recognize this foundational idea in some form. In Canada, it is on display in Section 15 of the Canadian Charter of Rights and Freedoms: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.”. The U.S. has their own version, written by 33-year-old pre-U.S. President Thomas Jefferson and dating back to 1776. Historians attribute similar thinking to Guan Zhong, a Chinese philosopher and politician around 700 BC, and Article 7 of the United Nations Declaration of Human Rights also touches on this idea. It is fair to say that without this fundamental idea, the world’s most thriving societies would not be what they are, and the world would look like a much different place.
So, if there seems to be a connecting thread of consensus, both nationally and globally, about the importance of having equality before the law and equal application of the law, then what is the issue? Well, that issue might be best illustrated by referencing a quote by Stanislaw Jerzy Lec, a famous Polish aphorist and Holocaust survivor, who said “We are all equal before the law, but not before those appointed to apply it.”
Canada’s regrettable position demonstrates that double standard.
A double standard of “equality before the law” and the failure to apply terrorism laws or do something to prevent deluded individuals from joining a warzone was on display in 2022. During that time, many Western media outlets that chose to highlight regular citizens who decided to become foreign fighters and fight for Ukraine, including some in Canada. These stories mentioned how some individuals quit their jobs, dropped out of university, and left their families to go to Ukraine, despite not having any prior military training. But the bigger issue was that those elected to government, both provincial and federal, who are supposed to represent the best of what Canada has to offer, all seemed to take a passive stance on Canadians who decided to go down the path of becoming foreign fighters.
The questions that arise from this stance include “Why did leaders across the country choose not to promote the idea of joining the Canadian Armed Forces, instead of the silent approval for foreign fighters?”, and “What made leaders across the country think it was good judgement to allow individuals who had no prior military training to travel abroad for the sole purpose of taking up arms and to enter a warzone?” Because the entire decade of the 2010s was full of media stories of youth arrested for attempting to join Islamic terrorist groups or upon returning to Canada after taking part in warzones. Yes, there is a difference between the two situations, but these are nuances when compared to the broad strokes of having deluded individuals radicalized and thinking warzones were their calling. Whether it is by applying terrorism laws or doing whatever else is necessary, Canadians with no military training should not be permitted to travel abroad for the sole purpose of taking up arms and entering a warzone.
Given the precedent that was set, what happens if a similar number of individuals in Canada who have been radicalized—perhaps deluded into believing that they want to go fight despite having no military training—decide they want to travel to Israel or the Gaza Strip, or to other places a future war breaks out, regardless of which side they want to fight for? The whitewashing of the act to take up arms and enter a warzone for some causes, while blackwashing the act for other causes, creates a conundrum of complications and carries significant societal implications.
When it comes down to it, there should be no dilemma about allowing Canadians with no military training to travel abroad to take part in wars such as those in Ukraine, or anywhere else for that matter. By allowing Canadians to travel to warzones as foreign fighters, it has further muddied our unclear terrorism laws and what constitutes as being a terrorism-related offence, and it guarantees to complicate the matter for judges who have to adjudicate terrorism cases in the future.
The problem with Canada’s terrorism laws.
The origin story behind Canada’s terrorism laws goes as far back as 1937, when the then-government passed the Foreign Enlistment Act that prohibited Canadians from joining the military or navy of a foreign state at war with a “friendly state”. The term “friendly state” refers to a country that is not at war with Canada, but there is a section in the Act that allows for modifications with how it is applied, meaning that the enforcement of this Act was discretionary.
Moving on to more modern laws and how the Criminal Code views terrorism-related offences, it may come as a surprise, but terrorism charges ultimately come down to whether the Government of Canada designates a group or government to a terrorist list. Additionally, the Criminal Code defines terrorism as an act carried out “for a political, religious or ideological purpose, objective or cause” intended to intimidate the public by causing death or serious bodily harm, endangering health, and safety, or interfering with an essential service. The most commonly cited challenge to this law, however, is that it does not go far enough in covering individualistic actions such as those carried out by lone wolves, which is precisely the type of attacks that are on the rise.
What the Foreign Enlistment Act and the Criminal Code’s section on terrorism-related offences have in common is that they allow for the application of discretion on whether something is a violation. The problem with that, however, is that the decision an individual makes to become a foreign fighter and to travel abroad to enter warzones should not need for anyone to apply discretion. More importantly, to what extent did allowing Canadians to become foreign fighters and enter the warzone in Ukraine damage our ability to prosecute future instances of terrorism-related offences, when the foreign fighting involves “unfriendly states” or causes that Canada is less sympathetic toward? What happens if a radicalized and deluded individual is charged for terrorism-related offences, but, in their defence, they mention how they watched other Canadian “foreign fighters” be celebrated in the media and their actions championed by members of provincial and federal government? These are very real questions that are likely to arise in our courts at some point, and it demonstrates how, for all our knowledge and reasoning capabilities, our groupthink ability still shows traces from days of our past that we had believed outgrown.
Now, every time there is a war somewhere, the precedent-setting nature of the response to foreign fighting in Ukraine is likely to get referenced by hate preachers to push radicalized individuals to join other warzones or even to carry out domestic terrorist attacks. Had we upheld our commitment to having equality before the law and equal application of the law, then we would not be needing to ask all these “what if” questions. Perhaps worst of all is that there is no reason to not be able to live up to the Charter of Rights and Freedoms, and it becomes an issue of either believing in it or not. And if reasonable doubt slowly starts to creep in and questions the very words that make up the Charter, identified by most Canadians as the most important national symbol, the unwinding of progress becomes unavoidable.
Forget strategic consistency, let’s get back to being morally consistent.
What countries might get mentioned if you asked a group of people which country did the best job at tapping into the potential of their citizens by ensuring opportunities for all where hard work resulted in prosperity and where safety, security, and dignity were afforded to all their citizens? Or, simplifying this question to its simplest form, asking what country might a person say would be the world’s most benign and least self-interested country, one where ordinary people could go on to do extraordinary things and where the thought that a better tomorrow is as certain as the sun rising?
I suspect that Canada would come out on top, thanks to its moral consistency over the past century, and it is why countries including New Zealand and South Africa have looked at Canada’s Charter of Rights and Freedoms for guidance when creating their own Bill of Rights. But there is something fundamentally wrong about applying discretion toward what should be viewed as acceptable foreign fighting and what might constitute as being a terrorism-related offence. Being known as a country that contributes foreign fighters or radicalized and deluded individuals who believe the warzone is their calling, whether their act gets classified as terrorism or not, tramples over any country’s moral credibility and being able to call itself a defender of universal human rights.
If we take man as he really is, we make him worse. But if we overestimate him, we promote him to what he really can be.”
Perhaps it is time to realize that the conditions around radicalization and terrorism are what need addressing, such as the desperation and vulnerability that so often lead down the chaotic path towards radicalization and terrorism. Perhaps the solution involves revisiting Viktor Frankl’s unconditional truth, pushing the idea of logotherapy and the thinking around it, that the measure of the person is not in the circumstances that dictate who they are and what they do, but in what they do in those circumstances and how they do it, meaning orientation matters. Certainly, one way to get a better grasp of this thought-provoking idea is by revisiting a lecture on logotherapy given by the late Rabbi, Reuven Bulka, who was also known as “Canada’s Rabbi” and champion of kindness, and was the spiritual leader of a synagogue in Ottawa. Certainly, what makes Rabbi Bulka the right person to speak on the topic is that both his M.A. and Ph. D. degrees from the University of Ottawa concentrated on Viktor Frankl’s logotherapy, and Rabbi Bulka would also go on to become friends with Frankl and get to know him quite well.
While the failure to live our Charter of Rights and Freedoms, ensuring equality before the law and equal application of the law, might not be fatal, or even crippling, it is serious enough to prevent us from being seen as having the necessary moral authority and credibility required to respond when the world’s nations and people call out for leadership and help with building a better world, one of shared destinies and interconnectedness. Never again.