Canada should use the notwithstanding clause to prosecute returning ISIS fighters

The fundamental individual protections we hold dear as Canadians is just not fit for these exceptional circumstances. We must use the notwithstanding clause to modify certain judicial procedures.

We have the political will; public opinion demands the effective solutions that have proven to be elusive

Over and over again, we see the same results: no criminal charges due to lack of usable evidence or failure to state an offence. (Reuters)

The quote: "Insanity is doing the same thing over and over again and expecting different results" is one that is widely, and as it turns out incorrectly, attributed to Albert Einstein. Whatever the true source of the quote, it is certainly a wise observation.

Canada and many like-minded liberal democracies have been trying the same thing over and over again by resorting to the standard, existing domestic criminal justice system in the attempt to "prosecute" ISIS fighters and supporters when they return home.

And over and over again, we see the same results: no criminal charges due to lack of usable evidence or failure to state an offence, ineffective criminal prosecution for the same reasons, or efforts to resist repatriation in the first place. We need to end the insanity and employ a new approach.

A new approach requires a solid understanding of why standard approaches are ineffective. In short, we are relying on a domestic law enforcement process — complete with the fundamental individual protections we hold dear as Canadians — that is not fit for purpose.

Judicial guarantees

Take a moment to reflect on some of the most imperative judicial guarantees that form the basis of our identity as Canadians: the right to personally confront witnesses against you, the right to inspect every shred of evidence against you, and the requirement for the Crown to prove each element of all offences to a standard of beyond a reasonable doubt.

With that short list of fundamental protections in mind, take another moment to reflect on why these are so essential to our concept of the rule of law. One simple word sums it up: trust. Fundamental judicial guarantees are "fundamental" because they operate as a check on the monopoly of power the sovereign exercises over we the governed. 

The reason we are not able to find solutions to the problem of prosecuting returning ISIS fighters and supporters is that our starting point is "prosecution" — that is, employing the existing domestic law enforcement structure — to adjudicate alleged offences committed abroad.

Neither Canada nor any other government exercised a monopoly on the use of force on the battlefield while fighting ISIS. The international coalition fighting ISIS operated as belligerents, pursuant to the law of armed conflict, while employing military force against ISIS.

Domestic judicial procedural processes are designed to protect individual freedoms from being abused at home where the government alone is permitted to use powers of force and coercion to settle disputes and maintain the peace, and this monopoly on the use of force is — by definition — not possible on the battlefield as it is at home.

An ISIS fighter, regardless of citizenship, did not have the right to examine evidence against him or her before the coalition targeted the fighter on the battlefield. We have now simply moved further along on the spectrum of conflict from active hostilities to adjudicating alleged offences against detained ISIS fighters and supporters.

On this spectrum, our government is still acting in its role as belligerent against opposing fighters that are now detained.  Why, then, are we still trying to resort to the standard domestic legal system to "prosecute" fighters that operated in a theatre where the government did not exercise a monopoly on the use of force and was not acting as a sovereign during active hostilities?


Searching for solutions

We continue to do the same thing over and over and yet we keep expecting different results. Prime Minister Justin Trudeau recently said he has every confidence in the RCMP to find solutions. Minister of Public Safety Ralph Goodale has been talking about the problem for years. Months ago, Parliament passed a motion demanding effective solutions.

Solutions are in short supply because we keep blindly applying the same framework without understanding why we do and why it isn't meant for that purpose.

Canada has the tools to solve this problem. The "notwithstanding clause" of the Charter of Rights and Freedoms permits Parliament to modify judicial processes in certain circumstances for up to five years. The Crimes Against Humanity and War Crimes Act permits Canada to "prosecute" offences against customary international law, and sources from the Nuremberg tribunals to the UN Charter to present-day UN Security Council resolutions confirm that ISIS's military campaign represented a threat to international peace and security and is therefore a violation of customary international law. We have the political will – public opinion demands the effective solutions that have proven to be so elusive.

Canada is in a position to set an example for other governments to follow. In the process of adjudicating offences against returning ISIS fighters and material supporters, the "notwithstanding clause" should be implemented to modify certain judicial procedures such as the method for the defendant to confront evidence and the standard of proof the Crown is required to achieve for a conviction.

Modifying relevant judicial procedures in this way will account for the circumstances on the battlefield where the offences against international law took place, and where the Government of Canada was involved as a belligerent fighting against ISIS, rather than as a sovereign exercising a monopoly on the use of force to maintain peace and security at home.

To get there, our government must take a new approach — and the Canadian public must demand it. Until we commit to stop employing the same ineffective methods over and over again, the insanity will continue.

This column is part of CBC's Opinion section. For more information about this section, please read our FAQ.


Brian Cox is currently a visiting scholar at Queen’s Law. He is a retired U.S. military lawyer and Army Ranger and a former Special Assistant U.S. Attorney. His combat tours include Iraq as a combat camera operator in 2003-4 and Afghanistan as an international law adviser from 2013-4.


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