Yes, the State does have a right to take away your right to travel

A couple of months ago I attended a meeting of TSAS, an assembly of Canadian academics who look at terrorism and national security issues (TSAS stands for ‘Terrorism, Security and Society).  I have a number of friends at TSAS and am in fact an affiliate, although I am not myself an academic.

At that meeting there were a number of presentations of varying quality (in my opinion): some results of longstanding research, some exploratory talks, some student work – one of the primary goals of TSAS is, after all, is to promote young and upcoming researchers.   Someone of those young people have gone on to become solid academics, a testament to the work TSAS does.

One presentation did get a rise out of me however.  A woman – I don’t remember her name – spoke of the absolute right to travel and how that right could not be taken away,  She cited some work by the English philosopher John Locke to make her point,  No sooner had she finished than I challenged her saying I thought her position was too strong (actually, I stated that I found her talk one of the worst I had ever heard, which was perhaps a little strong on my part).  Judged by the reaction I got to my intervention – academics excoriated me, fellow practitioners thanked me – I once again witnessed the gap that sometimes still exists between the two camps,

The point I was trying to make was a simple one.  The ‘right’ to travel may indeed be important, but like all rights it is not an absolute one,  Rights are protected only where they do not infringe upon the rights of someone else,  Like the right to life.  Allow me to explain.

An Ottawa court recently ruled that a man named Abdulmuti Elmi could have his passport taken away based on the very strong belief that he intends to leave Canada to engage in terrorist activities (this is what the RCMP is maintaining).  For the record it is illegal under Canadian law to joint a terrorist group, here or anywhere else.

I suppose that academic would see that decision as a violation of Mr Elmi’s rights as defined by Locke.  I beg to differ.  Mr Elmi has every right to travel unless he intends to use that right to go and kill people in a market or a school or a cafe.  The right of  others to enjoy their lives trumps his, does it not?

Some would say that because the court has not convicted Mr Elmi of any crime it acted in an onerous fashion.  Maybe.  But given the track record of Canadians who have left our fine land to blow themselves up (and others) there is a case to be made that intelligence suggesting this is a very real possibility should not be ignored.  I acknowledge that this is a very delicate area of jurisprudence and state action but failing to prevent acts of terrorism is nonetheless a state prerogative.

The tricky part comes when a decision has to be made to lift such a travel ban.  Does that happen when a person has been released?  Served a sentence?  Is no longer deemed a threat (whatever that means)?  All very good questions.

The state has inordinate power and can act in a heavy handed fashion: history and current events certainly tell us that.  Those powers have to be kept in check and there have to be mechanisms to challenge those powers.  Otherwise we are living in dictatorships.

And yet, to the surprise of no one, I support this court’s ruling.  If we as Canada cannot stop our citizens from killing innocents abroad then what are we as a nation ?  Yes it is true that intelligence is not perfect but should we not act on it when the stakes are so high?

It was my experience while at CSIS that those who found themselves in these situations usually had a very long track record of extremist activity (surprise surprise they were not the fine upstanding citizens defence counsel liked to present to the court and to other Canadians!). In fact, they had made their intent to act in violent ways clear.

Should our intent to stop them from achieving their goals be equally as  clear?


By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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