Ontario PC bill to permanently remove benefits from convicted ISIS fighters 'unconstitutional', say experts
The Ontario Progressive Conservative government’s proposed plan to permanently strip convicted terrorists of benefits like access to healthcare coverage could be unconstitutional and exceeds the powers of a provincial government, say legal experts.
The private member’s bill sponsored by PC MPP Dave Smith, formerly called the Terrorist Activity Sanctions Act, would permanently remove those convicted of a terrorist offence from obtaining privileges like an Ontario driver’s licence, accessing provincial health coverage, housing assistance, or even a fishing and hunting licence.
Carissima Mathen, a professor of constitutional law at the University of Ottawa, said the bill could violate section 7 of the Charter of Rights and Freedoms, which protects a person’s right to life.
“Even people in prison are entitled to medical treatment. So the idea that once someone, if paroled you can just kick them off health care, is not going fly,” Mathen told Global News.
She said the proposed legislation is also outside the mandate of the Ontario government as violations of the Canadian criminal code are a federal responsibility.
“Permanently stripping someone of healthcare is so extreme. This does not read as serious public policy,” Mathen said.
The bill announced over the weekend amends several acts to add additional punishments for individuals convicted under anything in sections 83.18 to 83.221 of the Criminal Code, which cover acts like participating in terror activities or leaving Canada to commit acts of terrorism.
“No person is entitled to continue to be an insured person if the person has been convicted of an offence under any of sections 83.18 to 83.221 of the Criminal Code (Canada) on or after the day this subsection comes into force,” says part of Terrorist Activity Sanctions Act.
In addition to removing access to certain social programs, the children of those convicted would also be considered “in need of protection” as defined by the Child, Youth and Family Services Act, which allows the government to remove the child from the parents’ care, either permanently or temporarily.
Premier Doug Ford and other PC MPPs have said the bill was created to address the issue of returning members of the so-called Islamic State and perceived inaction from Prime Minister Justin Trudeau.
“I am disgusted that the federal government is not dealing with this,” Smith told reporters Monday. “What we’re doing is we are taking away privileges from criminals. … We are making sure that no terrorist has more privileges than someone else in the province.”
Smith defended the bill, saying that a person who spends too long living outside of Canada can lose their provincial health insurance. However, Smith did not mention that a person can apply to have benefits reinstated after returning to Canada.
“I am not going to let Justin Trudeau do something that compromises the safety of Ontario,” Smith said.
Michael Nesbitt, an assistant professor of law at the University of Calgary, said despite the rhetoric from Conservatives at the provincial and federal levels, there are already laws to prosecute individuals who commit terrorism.
“We absolutely have a number of criminal laws on the book that would deal with these individuals. This legislation would seem to piggyback on that,” Nesbitt told Global News. “You are duplicating what is already happening at the federal level.”
He added that these measures could also be counterproductive in terms of rehabilitation of former extremists.
“What has generally been the case in Canada is you have a dispossessed young male who is angry, and your solution is to do things that upon release is going to make them more angry? It’s not good public policy.”
“It might make you feel good but it’s not going to protect anyone,” he said.
Both Nesbitt and Mathen said the Ford government is exceeding its authority, as provinces can only prosecute a person for violating a provincial law. Terrorism is a federal responsibility.
“The province can only prosecute you for violating its own laws. Here they are trying to punish someone for violating a federal law and they can’t do that,” Mathen said.
The proposed act would amount to “de facto banishment,” according to Mathen, and a person who has been released after serving a prison sentence should not continue to be punished for the rest of their lives.
“We do that with murderers, people who have committed violent sexual assaults,” she said. “We reintegrate them. If they are reintegrated, they have the same social rights as everyone else.”
The proposal follows renewed debate around the issue of Canadian ISIS fighters who want to return to Canada. The Trudeau government has come under increased pressure following a series of Global News reports about Canadians captured in Syria over allegations they had been involved in ISIS.
One of them, Muhammad Ali, said in an interview he had served in an ISIS sniper unit. Global News has confirmed that U.S.-backed Kurdish forces are holding at least three Canadians accused of being ISIS fighters, three Canadian wives of ISIS foreign fighters and seven children.
Asked how removing someone’s driver’s license or OHIP card might fight terrorism, PC House Leader Todd Smith said it sends a “strong signal” to the federal government and has the full support of the Ontario PC caucus.
“We don’t believe terrorists should be coming,” Smith said, who confirmed the bill was tabled Monday afternoon. “It’s not going to fight terrorism, but what it’s going to do is tell terrorists that they are not welcome here in Ontario.”
In Ottawa Monday, the federal Conservatives tabled a motion in the House of Commons calling on the Trudeau to put forward a plan within 45 days for bringing to justice those who fought with the Islamic State.
The Liberals said they would support the motion, despite disagreeing with certain portions of it.