Canada's Foreign Enlistment Act And Related Terrorism Provisions In The Canadian Criminal Code

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...