In a recent column for CBC News Opinion, retired U.S. military lawyer Brian Cox argued that the government should invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms in order to more easily prosecute returning ISIS fighters. The move would essentially allow Canada to lower its own burden of proof in order to more easily ensure convictions, which have largely eluded us when it comes to holding ISIS fighters accountable for their actions overseas.

Cox argued that the rule of law need not be upheld to traditional standards in this situation because (1) these fighters engaged with the Canadian state in an arena in which the Canadian state was not the sole user of coercive force, and (2) because of the prosecution of these individuals constitutes a continuation of the attempt of the Canadian state to destroy these fighters.

Yet this is not the case.

It is the purpose of the Canadian Forces to engage enemies on the battlefield and the Crown prosecutor's office to prosecute suspects accused of crimes. We do not send Crown prosecutors and judges into battle and we do not expect corporals and lieutenants to prosecute common (non-military) criminals.

When the shooting stops, the battlefield ends, and the role of the Canadian state changes. Prosecution and warfare are not part of the same spectrum as Cox claims, and were it a spectrum, the Canadian justice system would quickly become the Canadian prosecution system, whose interest is simply to punish and jail perceived enemies of the Canadian state.

Maintaining highest standards

Employing the notwithstanding clause to more easily prosecute alleged ISIS fighters is to reduce the Canadian justice system to a kangaroo court that respects the rights of the accused only when conviction is assured and when it is convenient to maintaining its veneer of legitimacy. But we should expect nothing but the highest standards from our justice system and should always strive for something greater than mere appearances of justice. To employ the notwithstanding clause in this way is to demonstrate to future generations, ourselves, and the world at large that justice is not actually the primary concern of Canada's justice system.

If the courts are so committed to demonstrating that ISIS fighters are in fact guilty of some crime — be it a war crime, a crime against humanity or some other transgression — it is on our honour and reputation as a country committed to justice and fairness to demonstrate this guilt to the standard which it has already set itself. Certainly it is difficult to prosecute crimes that occurred on a battlefield some 8,000-plus kilometres from the courtroom, but that should not be a reason to relax our standards for demonstrating guilt.

Cox also cited another apparent reason for which we should seek to prosecute alleged ISIS fighters in this way: because we want to.

Cox claimed that "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," which is true, but only partially so. Those protections are designed also to protect one from the mob instituting its own form of justice through the courts, and from politicians who would use the courts as a weapon to crush their enemies and opponents. That there is a political or public will to see these individuals punished should never factor into the guilt or innocence of the accused.

It is not for the ISIS fighters that I make this defence of the existing judicial standards which Canadians enjoy. Rather, it is for the innocent, those who have not fought for ISIS and who will be spared a prison sentence, and a criminal record. To allow one innocent man or woman to be labelled a terrorist and convicted of crimes which he or she did not commit is too great a price to pay for relaxing our standards of justice.

Suggestions that the rule of law must be relaxed to assure the rule of law's continued existence is an easy answer to a difficult problem. The Canadian government should accept the challenge of prosecuting and convicting war criminals at the standard which it has already set itself, and not to take the easy, and indeed, cowardly, way out.

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