Criminal Law

No free pass for suspected ISIS fighters returning to Canada: Rosen

By Jennifer Pritchett, Associate Editor

The recent debate in Parliament between Prime Minister Justin Trudeau and Andrew Scheer, the Conservative leader, about what to do with Canadian citizens who return home after going overseas to join terrorist organizations is no doubt baffling to the uninformed reader, says Toronto criminal lawyer John Rosen.

On the one hand, Trudeau seems to emphasize reintegration and rehabilitation; on the other hand, Scheer says the way to proceed is with prosecution and jail time, says Rosen, founder of Rosen & Company Barristers.

"Their positions are both right and wrong," he tells

Rosen comments on the issue after the Official Opposition raised concerns in recent weeks that the Liberal government isn't tough enough on suspected ISIS terrorists returning to Canada.

In a fiery debate in the House of Commons at the end of November, Scheer asked the prime minister why his government “is focused on reintegration and not putting these people in jail,” reports CTV News.

Trudeau responded that Ottawa has a range of methods to keep Canadians safe, including “enforcement, surveillance and national security tools.”

“But we also have methods of de-emphasizing or de-programming people who want to harm our society,” Trudeau said.

The debate was the latest criticism levelled by the Conservatives against the Liberal government’s approach to suspected terrorists and its plan to rehabilitate ISIS fighters who return to Canada, says the broadcaster. Earlier this year, Ottawa set up a counter-radicalization centre, the Canada Centre for Community Engagement and Prevention of Violence, in a move to deal with extremism, says the article.

Rosen says Scheer is correct in saying that people who violate Canada’s anti-terrorism laws should be prosecuted.

“Section 83 of the Criminal Code covers terrorism offences,” he says. “The law says you cannot facilitate, instruct or harbour terrorism anywhere, and you can’t leave Canada to participate in terrorist activities. Penalties for violations are significant and range from 10 years to life imprisonment.”

Rosen says the whole purpose of that section of the Code is to deter people from leaving Canada for the purpose of participating in terrorism abroad and being trained to become terrorists. It’s also designed to punish people who’ve left Canada and committed horrible offences abroad before returning home to hide here, he adds.

“If you return to Canada, you can be prosecuted for any of those offences,” he says. “Canada doesn’t want to be a haven for terrorists. Nor does it want to have trained terrorists in its midst waiting for the time to strike. That’s the law and it’s designed to help protect the public from people who go abroad to be trained as a terrorist and return with that training or experience.

"It's ludicrous to ignore the fact that an individual was abroad fighting for a terrorist organization and then comes home to be a model citizen. Experience has taught us that there is a serious risk that such persons will either commit domestic terrorist acts or encourage and assist others to do that. When we have this legislation on the books, people ought not to be given a pass because we want to rehabilitate and reintegrate them into society.”

On the other hand, as with every other person suspected of criminal acts, the conduct and circumstances of those believed to have left Canada to participate in terrorist activities must be investigated so that the person’s unique circumstances are put into proper context, Rosen says.

This will allow prosecutors to advise the attorney general as to how to proceed with these cases, he adds.

“Canada’s laws must be applied on a case-by-case basis after a thorough investigation of the circumstances of each case, as well as an independent and impartial assessment by a prosecutor as to whether the case should be prosecuted, or the offender diverted away from the justice system — just like we do for every other criminal charge,” Rosen says.

For example, a young person may travel overseas to join a terrorist organization but change their mind, he says. Such a person may not actually participate in the activities of the organization or commit any acts of terrorism, he adds.

“The motivation of the person may be the result of some underlying mental, emotional or personal issues,” Rosen says. “These factors ought to differentiate such a person from other individuals who willingly leave to join in the activities of a terrorist organization or commit heinous terrorist acts such as murder and rape.

“Consistent with the prime minister’s position, we must recognize that there are degrees of participation and unique circumstances that militate against prosecution. A blanket pass in the name of rehabilitation and reintegration for all returnees is inconsistent with Canadian values, but compassion where compassion is due is consistent with those values.”

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