The Fog of Law

The Prime Minister has announced that, should his government return to power after the election, it will seek to enact legislation criminalizing the travel to some parts of the world, considered to be hotbeds of terrorism. Both the list of areas in question and the details of the legislation are sketchy at this point, so it is hard to say anything definitive about this proposal. Craig Forcese considers both the merits of this proposal and its constitutionality, on the basis of what little is known about it, and concludes that while some version of a travel ban would be both a good idea and constitutional, Mr. Harper’s proposal, which would apparently include exceptions ― subject to a reversed burden of proof ― for journalists, humanitarian workers and, maybe, for people go to the prohibited zones to fight terrorists as well, might be neither.

Unlike prof. Forcese, I’m not qualified to speak to the merits of Mr. Harper’s idea. However, I want to venture some thoughts about its constitutionality. Overall, my views are similar to prof. Forcese’s. I think that some form of travel ban may well be constitutional, though the exceptions make defending the proposal put forth by Mr. Harper more difficult to defend. In this post, I will consider four Charter rights potentially implicated by the proposal, as well as the arguments that might justify limiting these rights under s. 1 of the Charter.

The most obvious place to start in assessing the constitutionality of a travel restriction is surely section 6(1) of the Charter, which states that “[e]very citizen of Canada has the right to enter, remain in and leave Canada.” Prof. Forcese says that “it is not clear … that the s.6 right to enter and leave Canada includes ‘the right to leave Canada and go to a war zone of your choosing’.” I would put the same thing even more strongly: the constitutional text speaks of a “right to … leave Canada” ― not a right to go anywhere in particular. I suspect that what inspired its entrenchment (and, earlier, the enshrinement of international mobility rights in the International Covenant for Civil and Political Rights) was the practice of totalitarian (especially Communist) regimes to prevent their citizens from leaving the country whether permanently or even temporarily ― or, having allowed a person to leave, of stripping him of citizenship and thus preventing his return. A targeted travel ban is very far from that sort of thing. It is arguable, I suppose, that the longer the list of prohibited destinations, the more illusory the right to leave the country becomes. But for now that is a theoretical concern. In my view, the government would have a very strong argument on this point. That said s. 6(1) has not received much attention from the Supreme Court, except in the context of extradition and the transfer of Canadians imprisoned abroad back to Canada. Its contours in other circumstances remain to be drawn.

A related argument involving a constitutional right that has received even less attention from the Supreme Court is that based on the freedom of the press protected by section 2(b) of the Charter. Prof. Forcese suggests that “the reverse onus ― requiring a journalist to prove they are journalist to avoid going to jail for travelling to a designated zone ― could also raise novel new s. 2(b) freedom of the press issues.” Indeed, while there is little if any jurisprudence to rely on for such a claim, it would be a plausible one if, as Benjamin Oliphant has proposed in a fascinating article, the freedom of the press were interpreted as protecting newsgathering activity. A journalist travelling to a designated area to collect information in order to inform the Canadian public of the goings-on there would, quite clearly, be engaged in newsgathering, and thus in a constitutionally protected activity. (Mr. Oliphant suggests excluding “inherently harmful activity” from the scope of this protection, however; I suspect that travel, even to a terrorist-infested warzone, wouldn’t qualify as “inherently harmful,” but it’s not entirely clear to me how that might pay out.)

It is worth noting the negative implications of this argument, however. “Freedom of the press” is explicitly protected by the Charter. “Humanitarian work,” “fighting terrorists,” or whatever other activity people might want to engage in in the areas subject to the travel ban are not ― even in Canada, never mind abroad. To me, this seems to strengthen the case against reading s. 6 so as to include the right to travel to some specific foreign destination for these purposes. Nor would this right be protected by the liberty guarantee of s. 7 of the Charter. While the Supreme Court has interpreted this guarantee to encompass “fundamental personal choices,” it seems very unlikely that it would treat an occupational choice, even a humanitarian one, as fundamental enough. That said, Mr. Harper’s travel ban proposal would still implicate s. 7 if penalties for breach include imprisonment. I will come back to that point shortly.

First though, I want to discuss the presumption of innocence, entrenched in section 11(d) of the Charter, and the possibility of justifying an infringement under s. 1. Prof. Forcese points out that “while the jurisprudence under [s. 11(d)] and its application to defences is less than a paragon of clarity, it is still a meaningful hurdle for the government.” Indeed, it seems to me that a finding that requiring people to prove the reasons for their presence in a prohibited area, instead of asking the prosecution to prove that their purpose in being there was not among the authorized exceptions, infringes the presumption of innocence is likely enough.

Can the reverse onus (and, possibly, the burden it puts on the freedom of the press) be justified under s. 1 of the Charter? Here I part ways with prof. Forcese, who says that he doesn’t “think [he] could ever concoct a s.11(d) or s.2 justification that would satisfy s.1.” I think that the way for the government to at least try justifying the reverse onus aspect of its travel ban would be to point to the difficulty for the prosecution of gathering evidence in prohibited areas, and perhaps the comparative ease with which the persons who actually travel there might be able to collect evidence of their activities. Prof. Forcese says that “evidence necessary to prove the many complicated elements of a terrorism offence [is] often unavailable when it comes to proving actual conduct in a war zone,” which might explain the paucity of prosecutions under these offences in Canada and elsewhere. Arguably, the same logic can be applied to the travel ban, and invoked to justify requiring the accused, rather than the prosecution, prove the reasons for their travel, and indeed make the reverse onus the least restrictive means of attaining the objectives of the travel ban.

Just what would such an argument, if it is accepted (and I don’t feel confident prognosticating whether it would be, though I think that that’s at least a real possibility) prove? A couple of Supreme Court decisions are interesting here. One is R. v. Keegstra, [1990] 3 S.C.R. 697, the hate speech case. It is better known for what it said about freedom of expression, but there was also a s. 11(d) argument involved, because the Criminal Code provided a defence of truth to a hate speech charge ― but one that the accused had to prove. The majority said that while a violation of s. 11(d), the reverse onus was justified under s. 1, in part because proving the falsity of a statement beyond reasonable doubt is too difficult, and because the harm caused by hate speech occurs even if what is said is true, so that it is important not to let the accused off the hook too easily.

The other relevant case is R. v. Laba, [1994] 3 S.C.R. 965, which considered the constitutionality of a requirement that a person accused of selling ore or other minerals containing precious metals prove his or her legal entitlement to do so. This was, concededly, a violation of s. 11(d), but the Supreme Court concluded that some infringement of the presumption of innocence was justified because it was important to prevent trade in stolen ore, and the technology that would allow the Crown to prove the provenance of an ore sample and thus establish that it had been stolen was not yet good enough. However, the Court also said that instead of having the accused prove their entitlement to be selling the ore on a balance of probabilities, the requirement that the infringement be minimally impairing of the s. 11(d) right meant that it should be enough for them to present evidence that raises a reasonable doubt as to their guilt.

We don’t know, of course, what form the reverse onus aspect of the travel ban would take. And even if it is a full requirement to prove one’s reason for going to a prohibited zone on a balance of probabilities, it is not clear to me whether the courts would see the case as being more like Keegstra or Laba. In R. v. Keegstra, [1996] 1 S.C.R. 458, the Court said that the two cases were distinguishable, but did not actually explain why. I suppose the difference is this idea that hate speech is harmful even if within the scope of the defence. What about travel to prohibited zones? If I read prof. Forcese correctly, he suggests that it might be, but perhaps the very existence of the defence should be taken to reflect a governmental judgment that this is not so.

I come back now to the s. 7 issue I had set aside before. It might be something like a trump card against the s. 1 argument I have just described. The possibility of imprisonment for breaching the travel ban would have to be in accordance with the principles of fundamental justice. The relevant principle here is that first identified in Chief Justice Dickson’s judgment in R. v. Morgentaler, [1988] 1 S.C.R. 30 (and later recalled ― although not found to be applicable ― by the majority in R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187): “when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.” The issue here is was whether the difficulty of obtaining evidence in a prohibited area would mean that not only the prosecution, but also the defence would it it impossible to do so. (By contrast, in Laba, the Court was of the view that an innocent person would not find it difficult to introduce the evidence required at least to raise a reasonable doubt.) As I suggested above, it seems to me that the accused should be in a better position than the prosecution, but I don’t know enough to really tell.

All that to say, it is by no means impossible that a travel ban, even in the form mooted by the Prime Minister, would be constitutional, but also by no means certain. The matter is quite complicated, not least because many of the constitutional issues that the proposal raises have not been much explored. Uncertainty isn’t only a characteristic of war zones. It is also, sometimes at least, a prominent feature of constitutional law.

UPDATE: Kent Roach takes on the travel ban proposal an interview with UofT News. He thinks that the ban would infringe ss. 6(1) and 11(d) of the Charter, and also seems more skeptical of its merits than prof. Forcese. Also, have a look at CM’s comments below. My own views haven’t changed, however.

FURTHER UPDATE: Michael Plaxton Tyler Shandro comments over at the Policy Options blog (apologies for my confusion about the authorship of the post!). He seems pretty confident that Mr. Harper’s proposal, in its current form, already takes the Charter issues into account and is constitutional. Still, I am not persuaded that the objections I discuss above can be so easily dismissed.

Don’t Come Back!

Yesterday, the Supreme Court of Canada delivered a judgment considering the constitutionality of the provisions of the International Transfer of Offenders Act (ITOA) which allow the Canadian government to refuse the application of a Canadian imprisoned abroad to serve his sentence in Canada, despite the agreement of the state where he is currently imprisoned to hand him over to the Canadian authorities. In Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, the Court held these provisions are constitutional. Justice Abella, writing for a six-judge majority, found that they do not infringe the right of “[e]very citizen of Canada … to enter … Canada,” protected by s. 6(1) of the Canadian Charter of Rights and Freedoms. Justices Lebel and Fish, for a three-judge concurrence, would have found an infringement of s. 6(1), but held that it was justified under s. 1 of the Charter.

Mr. Divito, the appellant, was serving a lengthy sentence in the United States for drug trafficking. He applied to serve it in Canada, and his application was accepted by the U.S. authorities. The Canadian government, however, did not want him back in the country, considering that he was too dangerous. Mr. Divito challenged both the reasonableness of that decision and the constitutionality of the legislative scheme which made it possible. On appeal, however, only the constitutional question remained. Mr. Divito argued that the government’s discretionary power not to allow him to serve his sentence in Canada breached his Charter right to enter Canada. In his view, once the government which imprisoned him consented to his transfer to Canada, Canada had a duty to let him serve his sentence there.

Justice Abella considers that Mr. Divito’s “submission would result in a positive obligation on Canada to administer the sentences imposed upon Canadian citizens by foreign jurisdictions.  This … misconstrues what s. 6(1) protects” (par. 39). Canada couldn’t force a foreign state to hand over an imprisoned Canadian; the possibility of returning to Canada to serve the rest of an imprisonment sentence imposed by a foreign state is entirely a creature of statute, and “s. 6(1) [of the Charter] does not confer a right on Canadian citizens to serve their foreign sentences in Canada” (par. 45). Furthermore, extradition ― that is, a forced hand-over of a Canadian to foreign authorities to stand trial abroad ― has been held to concern only “the outer edges” of the s. 6(1) right to remain in Canada. An alleged right to re-enter Canada to serve a foreign criminal sentence “falls off the edge” (par. 47).  The ITOA creates the very possibility for a Canadian imprisoned abroad to serve part of his or her sentence in Canada; it cannot possibly create a constitutional right to do so, or be taken to impose on the government a duty to make it possible for any Canadian to serve a foreign sentence in Canada. “The mobility rights in s. 6(1) should be construed generously, not literally, and, absent a literal interpretation, I am unable to see how s. 6(1) is breached in the circumstances of this case” (par. 48). Ministerial discretion, of course, must be exercised in conformity with the Charter, and must take s. 6(1) into account, but its existence is not, in itself, unconstitutional.

For Justices Lebel and Fish, however, “when the Minister’s refusal of consent constitutes the sole impediment to a Canadian citizen’s entry into Canada, this refusal limits the citizen’s right to enter Canada” (par. 54). If extradition engages a citizen’s right to remain in Canada, then international transfer must, logically, be taken to engage his or her right to (re-)enter the country. “The only reason extradition lies” at the “outer edge” of the s. 6(1) right  “is the prospect of returning to Canada by means of, inter alia, an international prison transfer” (par. 58; emphasis in the original). Giving effect to s. 6(1) rights to enter and leave Canada “require[s] the state’s active cooperation” (par. 60) ― for example, issuing a passport to a Canadian citizen stranded abroad. Making it possible for a citizen to serve a foreign prison sentence in Canada is just another consequence of that principle. Of course, in the absence of the ITOA, Canadian citizens could not return to serve their sentences in Canada; nor can they require the government’s more active assistance (such as asking that the government pay them plane tickets to return home). But insofar as it is the power given the government to deny a request for a transfer that prevents a Canadian from getting back into the country, the existence of that power infringes s. 6(1) of the Charter.

However, this infringement is justified under s. 1 of the Charter. The power to refuse a Canadian the right to serve his sentence in Canada serves to protect the safety of Canada and Canadians from the mischief that person might do or be the cause of while imprisoned (what he or she might do afterwards, when he or she would have an absolute right to return to Canada, is an irrelevant consideration). Sometimes, refusing a transfer will be the only way to prevent that mischief, and the positive effects of accomplishing that will outweigh the infringement of the s. 6(1) right.

The two opinions thus end up in the same place. Furthermore, given the rather unique context of prisoner transfer, it may well be that the differences between them will have no real impact in any other cases. Still, I think that, analytically at least, the concurrent opinion of Justices Lebel and Fish is the better one. Justice Abella is right of course that it is legislation that creates the possibility of a Canadian returning to serve a foreign prison sentence in Canada. But like any other benefit or privilege, though the state has no obligation to grant it, once it chooses to do so, it is not entitled to violate Charter rights in the process. The ITOA is what makes it possible for foreign states to consent to transfer the Canadians they imprison to Canada. But once this consent has been given, it is the decision of the Canadian government that becomes the obstacle to that Canadian’s re-entry into the country. And Justice Abella’s comment that Charter rights are meant to be read “generously, not literally” is simply disingenuous. Appeals to generosity justify expansive readings of rights, those that go beyond the letter of the constitutional text. It is perverse to invoke them to justify a construction narrower than that text. Be that as it may, the bottom line is clear: the government can constitutionally keep Canadians out of the country until they have completed their prison terms abroad.