Legal questions abound for Canadians volunteering to fight in Ukraine

CTV QP: Singh on increasing military spending NDP Leader Jagmeet Singh says Canada needs to increase its military spending but does not believe NATO's 2 per cent target is 'appropriate.'

Experts in military law suggest there are plenty of unanswered questions when it comes to Canadians volunteering to fight in Ukraine, particularly among former military members.

The federal government has been largely ambiguous about the legalities of Canadians going to Ukraine, indicating that such a move is up to the individual. Defence Minister Anita Anand said earlier this month that the legalities of going to Ukraine to volunteer in the fight against Russia are “indeterminate at this point.”

"I will say that is an individual decision that Canadians are making for themselves, and our job as a government is to provide information about the severity of the situation on the ground in Ukraine," Defence Minister Anita Anand said earlier this month.

It’s unclear how many Canadians have joined the fight, though a spokesperson for the International Legion previously told CTV News that Canada was among the largest contingent of volunteers.

There are some restrictions in place to prevent Canadians from fighting for another nation. The Foreign Enlistment Act of 1937 restricts when people can fight in war that does not directly involve Canada and bans Canadians from fighting a country it considers to be friendly.

“It prevents a Canadian from serving in the military of a state that's at war with a country with which Canada is friendly,” author and historian Tyler Wentzell, who has studied the Foreign Enlistment Act, told CTVNews.ca in a phone interview. “That's a bit of a mouthful, I know, but it basically means that you can't join a military and fight against a country that Canada is friendly with.”

Wentzell said fighting with Ukraine would likely not be in violation of the law, but it would be another story if they joined the Russian forces, as they would be considered unfriendly.

“Canada is not at war with Russia,” he said. “However, we have very clearly taken policies that are unfriendly towards Russia. They are not a friendly state. We are providing lethal aid, applying sanctions, all those things, you're not friendly with them.”

Gordon Campbell, a military and criminal lawyer at Aubry Campbell MacLean, told CTVNews.ca that the Foreign Enlistment Act only applies to Canadians who formally enlist with a foreign military, and is not convinced it applies at all in this situation. He says it is not clear whether Russia is considered “friendly” or not to Canada in this situation, in the legal sense.

“I know others have speculated that Russia might not fall into that category,” he said in a phone interview. “I certainly would not be that certain on the point… We're not at war with Russia, but the word ‘friendly,’ is never defined in the act, so who knows.”

Campbell said those volunteering in Ukraine have to understand that they could be charged in Canada under Canada’s Criminal Code or under the Ukrainian legal system, depending on the circumstances.

“If you're a Canadian and you've travelled abroad and you engage in certain acts, then you can -- in theory -- be prosecuted inside Canada for those acts,” he said.

“Just because you're in the middle of a conflict doesn't exempt you from Canada's criminal laws.”

Additionally, Canadian volunteers should be aware that in rare circumstances they could face repercussions in the International Criminal Court.

“Your readers have probably been hearing about calls for war crimes investigations into Russia's activities, that doesn't mean that the others are somehow immune there either,” he said.

Rory Fowler, a former member of the Canadian Armed Forces and current military lawyer at the Law Office of Rory G. Fowler, has several concerns surrounding former military members who may be interested in fighting.

“I certainly feel the sense of solidarity with Ukraine, but there are a lot of unanswered questions with respect to what might happen to Canadian citizens who head off and join the International Legion,” he told CTVNews.ca in a recent phone interview.

“Isn't it a little bit irresponsible of the government to focus on a narrow aspect of legislation and not comment on all of these other concerns that that a Canadian might wish to be aware of if they were to head off and join the International Legion?”

On Wednesday, Vice-chief of the defence staff Lt.-Gen. Frances Allen told the House of Commons defence committee that both full-time service members and part-time reservists have been banned from joining the foreigners fighting in Ukraine, with the sole exception of those specifically approved to be there.

“So for current CAF members, they are not permitted to be in the area, even if they were to be on leave,” Allen told the committee.

Fowler is also concerned that any captured Canadian who spent time with the Canadian forces would be treated as a mercenary and thus would be treated worse than some of their Ukrainian counterparts.

“If a Canadian goes off and joins the International Legion and they're captured by the Russians, the Russians -- very likely, I'm almost certain -- will not afford them the same protections that would be given to a member of the armed forces of the opposing party,” he said.

Fowler raised additional concerns about what kind of consular services would be available to Canadians in Ukraine and whether those who volunteer to fight will be able to leave when they want to.

Canada’s travel advisory for Ukraine states that consular services in the country are “severely limited” and is urging Canadians to avoid all travel to the country.

In a statement, a spokesperson for the Canadian military said that there “are no CAF members who have taken leave to go to Ukraine, nor are they authorized to do so.” In a follow up email, the spokesperson said that any CAF member who receive a voluntary release become “private citizens and are no longer part of the defence team.”

With files from The Canadian Press