Bill S-3 (Historical)

An Act to amend the Criminal Code (investigative hearing and recognizance with conditions)

This enactment replaces sections 83.28 to 83.3 of the Criminal Code to provide for an investigative hearing to gather information for the purposes of an investigation of a terrorism offence and to provide for the imposition of a recognizance with conditions on a person to prevent them from carrying out a terrorist activity. It also provides for those sections to cease to have effect or for the possible extension of their operation.

Criminal Code

[Maurice Vellacott, Conservative, Saskatoon—Wanuskewin, SK]

moved for leave to introduce Bill C-537, An Act to amend the Criminal Code (protection of conscience rights in the health care profession).

Mr. Speaker, this conscience clause private member's bill would prohibit coercion in medical procedures that offend a person's religion or belief that human life is inviolable. The bill seeks to ensure that health care providers will never be forced to participate against their will in procedures such as abortions or acts of euthanasia.

Canada has a long history of recognizing the rights of freedom of religion and conscience in our country, yet health care workers and those seeking to be educated for the health care system have often been denied those rights in medical facilities and educational institutions. Some have even been wrongfully dismissed.

The bill would make those conscience rights explicit in law and would safeguard the fundamental human rights of health care workers.

(Motions deemed adopted, bill read the first time and printed)

[David Emerson, Conservative, Vancouver Kingsway, BC]

moved that Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am honoured to rise today to participate in the second reading debate of Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

Bill S-3 was first introduced last October. The Special Committee on the Anti-terrorism Act reviewed the bill and made three amendments. The bill was passed by the Senate on March 6, 2008.

In order to ensure that all due consideration be given to this bill, it is important that we fully consider the bill, its background and the importance of this bill to Canada's law enforcement agencies. This is what I will be focusing my remarks on.

First, I will provide an overview of the bill. This bill seeks to reinstate two important powers that were created by the Anti-terrorism Act but which sunsetted on March 1, 2007. These powers are known as the investigative hearing and recognizance with conditions.

Briefly and simply put, the investigative hearing is a tool that provides the opportunity to have a peace officer bring a person before a judge to be questioned in relation to a terrorism offence, past or future. Its purpose is to enable law enforcement to investigate terrorism offences that have either been committed or that will be committed. Thus, one of its main purposes, although not its sole purpose, is to prevent the commission of a terrorism offence. All of us in the House recognize that is an extremely important objective.

The recognizance with conditions is a tool that allows a peace officer to bring a person before a judge who, after being presented with the proper evidence, may order the person to enter into a recognizance with certain conditions to prevent the commission of a terrorist activity.

Let me provide the background information that led to these provisions sunsetting in 2007.

As everyone in the House is well aware, the Anti-terrorism Act, or Bill C-36, received royal assent on December 18, 2001. Before the Anti-terrorism Act became law, Parliament heard from many witnesses on a number of issues. One of these issues had to do with the two powers that are now contained in this bill.

Witnesses voiced concern over the creation of these new powers which were previously unknown in Canadian criminal law and which appeared to constitute a threat to individual rights and liberties protected by the Canadian Charter of Rights and Freedoms. In view of those concerns, Parliament agreed to subject these powers to annual reporting requirements and a sunset clause.

In addition, section 145 of the act required that a committee or committees of Parliament begin a comprehensive review of the provisions and operations of the act within three years from the date that the Anti-terrorism Act received royal assent. Consequently, on December 9, 2004, a motion was adopted by the House of Commons authorizing the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to begin a review of the Anti-terrorism Act. Its Subcommittee on Public Safety and National Security began its review in February 2005. The Senate adopted a similar motion on December 13, 2004 establishing a special committee to undertake a separate review.

In late 2005, Parliament was dissolved and an election was called. The work of the committees was put on hold. When Parliament resumed in early 2006, the special Senate committee was authorized to continue its review. In the House of Commons, a new Subcommittee on the Review of the Anti-terrorism Act of the House of Commons Standing Committee on Public Safety and National Security began its review of the Anti-terrorism Act.

Both committees sought and received extensions to table their final reports on the review of the Anti-terrorism Act. However, in October 2006, the House of Commons subcommittee released an interim report that addressed exclusively the use of the provisions that we are discussing today. It recommended a five year extension of these provisions, subject to a further review. However, it also recommended that the investigative hearing provision be limited to the investigation of imminent terrorist offences, not past ones. In addition, some technical amendments were also proposed.

Although this report was released in October 2006, the work of the special committee in the Senate was still ongoing. The statutory provision allowing for the renewal of these provisions by passage of a resolution through Parliament did not allow for amendments to be made to the provisions. In effect, time was running out.

In the fall of 2006 and the spring of 2007, the government thus moved toward presenting a resolution to have Parliament extend both provisions for a period of three years. On February 27, 2007 the House of Commons voted 159 to 124 against the resolution that was introduced in the House, and as a result, both provisions expired on March 1, 2007.

It is interesting to note that while this was happening, on February 22, 2007, the special Senate committee released its main report on its review of the Anti-terrorism Act. Two of its recommendations related to these provisions.

First, as was the case for the House of Commons subcommittee, it recommended these provisions be extended for a period of three years, subject to the possibility of a further extension, following resolutions passed by both houses of Parliament. Second, it recommended that the annual reporting requirements also require the Attorney General of Canada to include a clear statement, an explanation, indicating whether or not the provisions remain warranted.

One may wonder why the House voted against the renewal of these provisions when both committees reviewing the Anti-terrorism Act had recommended their extension. There were essentially three reasons given during the House debates.

One, the proposed resolution did not take into consideration the recommendations that had been made by the House of Commons subcommittee, nor the ones made by the Senate special committee.

Two, there were suggestions that these provisions were not necessary, given other powers that existed and the fact that they were rarely used.

Three, the government did not respond in a comprehensive manner to all the recommendations made by both committees that reviewed the Anti-terrorism Act.

As I mentioned, these were the three reasons or excuses why members did not vote in favour of this issue.

The issue of human rights safeguards was also raised. With regard to the first question, as I indicated earlier, in the spring of 2007 there was no time for the government to address the recommendations made by the committees reviewing the Anti-terrorism Act, as the deadline for the renewal of the provisions was too close to allow for a modified version of these powers.

Since that time the government has had time to give full consideration to the particular recommendations in relation to the investigative hearing and recognizance with conditions that were made by the committees, and has had time to implement a large number of them in this legislation.

As for the second argument, allow me, Mr. Speaker, to illustrate why it is important that these provisions be brought back through this piece of legislation.

The current absence of the investigative hearing and recognizance powers has created a serious gap in our law. I wish I could say it were not so, but unfortunately, Canada continues to be exposed to the threat of terrorism and there are no signs that this is about to stop. All of us, being honest with ourselves, know that is indeed the case.

As we all know, since the introduction of the Anti-terrorism Act in 2001, there have been horrific attacks on innocent civilians in Colombia, India, Indonesia, Iraq, Israel, Pakistan, Peru, the Philippines, the Russian Federation, Saudi Arabia, Spain, Tunisia, Turkey and the United Kingdom.

Canada and Canadians have been largely identified by leaders of al-Qaeda as targets for future terrorist attacks. Recently, a criminal trial has begun in the United Kingdom, where several persons have been charged with plotting to blow up planes crossing the Atlantic, including some Air Canada flights.

In its 2006-07 public report, CSIS confirms that terrorism remains a threat to Canada and to Canadians and indicates that the threat of terrorism from extremists posed the most immediate danger to Canada and Canadians in 2006 and 2007.

Given this obvious threat, there is no question that police and prosecutors need the powers to investigate terrorism and to disrupt terrorist activity. Representatives of our law enforcement agencies appeared before the committees reviewing the Anti-terrorism Act and indicated clearly that they needed these tools.

For all these reasons, the government believes that it is necessary to reinstate these provisions.

We must not forget that these tools are unique. There are no other powers in the Criminal Code that do what the investigative hearing and recognizance with conditions do.

Today the efforts of terrorist groups are not abating. Terrorists are displaying increasing sophistication and the ability to use diverse technologies to further their deadly activities.

To combat terrorism, law enforcement must be able to investigate effectively individuals and groups who may pose a threat to the safety and security of Canadians.

For these reasons, I ask all members to give serious consideration to the following notorious facts.

One, terrorism is a very serious and very present threat in Canada. Two, and I think this is something we can all agree on, it is best to prevent terrorist activity and not wait to sift through its aftermath. I am going to repeat that one. It is best to prevent terrorist activity rather than sift through its aftermath. Three, the nature of terrorist activity is such that it must be disrupted at the preparatory stage rather than reacting in its aftermath. Important tools that allow disruption at this stage include the tools we are proposing to reinstate through Bill S-3.

The government is convinced of the necessity to reinstate the provisions that are contained in this bill. Our law enforcement agencies need these tools and we have the responsibility to provide them so that they may be properly equipped to adequately respond to any potential terrorist threat.

Let me also respond to the third argument that has been raised to justify voting down the renewal of these provisions, the fact that the government did not respond in a comprehensive manner to all the recommendations made by both committees that reviewed the Anti-terrorism Act.

First, it was impossible at the time for the government to respond comprehensively to the reports of both committees, since when these provisions expired, the Senate committee had released its main report just a few days before and the House committee had not yet released its final report on its review of the Anti-terrorism Act.

Second, since the expiry of these original powers, the government has been engaged in efforts to respond comprehensively to the reports of both committees that reviewed the Anti-terrorism Act.

Earlier this year Parliament responded to the Supreme Court decision in Charkaoui by enacting Bill C-3, which creates a special advocate regime in the context of security certificates. The government also published last summer its response to the House of Commons subcommittee's final report on its review of the Anti-terrorism Act.

In short, this bill is part and parcel of an ongoing comprehensive approach to review the Anti-terrorism Act, an approach, I might add, that warrants full support by all members.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, I think the chronology presented by my friend opposite appears to be an appropriate chronology. I may quibble with the details of the rationale that he was addressing, but the chronology is correct.

I think one of the reasons that this House voted overwhelmingly against these provisions was that in fact some of the concerns, that the committees had expressed in the reports that had been provided up to that point, were not taken into account in the simple renewal for three years, the resolution that was presented by the government.

I am pleased that the government now has taken into account several of the recommendations and has made improvements to this legislation. Therefore, although no one takes comfort in necessarily wanting to have these kinds of provisions as law, the fact is that in the kinds of times we are living in, sometimes we have to take difficult decisions to maintain peace in the country.

I believe that these provisions are appropriate, they are required, and they are now improved by the amendments that have been made in the way the legislation has been presented.

We take the issue of safety of Canadians very seriously. We also take the issue of liberty of Canadians very seriously. I believe that this improved legislation attempts to present that balance between those two sometimes competing and contending requirements and needs of any society like Canada.

Before I get into those changes, the member opposite on the government bench did actually provide a reasonable summary of the legislation. I believe that the legislation has been improved, and I will come to some of those changes.

First, any time an individual is to be detained by peace officers on the suspicion, on reasonable grounds, that he or she may be planning a terrorist activity, in order to prevent that, the individual obviously may be apprehended and presented to a judge.

I think one of the improvements that has been made in this legislation is that when we present that individual for detainment or at least released on bail with conditions possibly, the basis on which the detention is to be now ruled upon has been narrowed.

The scope of the grounds for detention by the Senate amendments has been narrowed and, therefore, the general clause on reasonable and just grounds that a judge may be able to detain the individual has been eliminated and the specific grounds that are only reasonable in the circumstances have been retained in this particular legislation.

I believe that improves this legislation and takes a certain degree of arbitrariness out of the hands of the presiding judge.

The second particular improvement that has been made by the amendments or the improvements that have been presented by the government is that in the previous legislation it was implicit and clear that the same judge who may have first heard the matter with respect to possible detention or bail would have to hear the matter.

Now in fact, as the legislation is presented, it makes room for any other judge of the provincial court to be able to hear the matter so that the matter can be dealt with expeditiously, and I believe that is very important.

One of the other amendments that has been made is the ability of any person ordered to attend the investigative hearing to deal with past terrorist activity or future potential terrorist activity. That person may retain counsel prior to the hearing, prior to the commencement of the hearing, or at any stage in the course of the hearing. That right to counsel, one of the fundamental rights that has been guaranteed all Canadians by common law and by charter, is now clearly mentioned and provided to those who may face investigative hearings, or of course the issue of detention.

These are unique and extraordinary remedies. When a person is picked up and asked to attend before a judge for an investigative hearing, it is only reasonable that the police officers involved should have made all reasonable efforts and attempts to actually get at the information they require through other regular means.

That requirement is now clearly placed in this legislation so that when police officers take a particular individual with the crown before a judge for an investigative hearing, either for past activity or potential future activity, one has to satisfy the judge that all of the reasonable efforts that could have been made to obtain that information without the use of this extraordinary remedy have been made.

I believe that actually provides some guarantee to individuals who may be asked to attend investigative hearings that the crown and the police have to make all reasonable efforts to get the evidence otherwise.

The new reporting provisions that are now in this legislation are that every year both the public safety minister and the attorney general, the minister of justice of Canada, have to provide annual reports to Parliament, and therefore to Canadians, indicating whether or not there is a continuing need to retain these provisions in the Criminal Code.

I believe that guarantees a certain degree of transparency and due diligence on the part of the government for Canadians, because Canadians need to know that these are extraordinary remedies and they are not being left on the books unnecessarily, that there is a continuing need. I think that is a very important change.

I believe that before the end of five years, before the sunset clause takes effect, there is now a mandatory provision for a review of both of the clauses in the Criminal Code with respect to bail and investigative hearings by both Houses of Parliament.

Either committee of either House, I believe, can complete that review. That is very important because this indicates that before we come to a situation as we did in the spring of last year where these decisions were made, where the government made no effort to change anything or take into account any of the recommendations that had been made by that date, that situation would not reoccur.

There is an obligation on the part of the House and the Senate, both or singularly, to actually engage in a mandatory review of these clauses and provide that report to Canadians and to the government.

Based on the four or five annual reports that would have been provided by both of the ministers and the last review before the end of five years, the government then can take those into account and determine whether or not these clauses ought to be renewed in the Criminal Code, and if they ought to be reviewed. Then the government would have all of the ammunition, so to speak, in its hands to be able to persuade the House and persuade Canadians that this is appropriate.

I believe there are several other changes that have been made that are very appropriate. One of the things that was heartening for me was to read the results of the reference that went to the Supreme Court of Canada with respect to one of the clauses that is under discussion, and that is the investigative hearing clause.

I believe the Supreme Court in 2004 in that reference held that the clauses as they were, and they have now been further improved, did not infringe anyone's charter rights and did not violate the charter. They were within the four corners of the charter and they complied with the charter.

That is important for me because the charter is paramount. It is important. It defines and enshrines in our Constitution the rights of all Canadians, ordinary or not. It is important that we are always cognizant and mindful of the importance of the charter. Therefore, I am heartened to be able to read that decision from 2004 and see that all of those provisions, which are now being improved upon, are compliant with the charter.

Another thing I think is worth pointing out is that when the government brought these provisions in, in the first place, after 9/11, the government could have gone the route of invoking the Emergencies Act or the notwithstanding clause of the charter. The government did not do that.

The government wanted to ensure that these provisions were compliant with the charter and they were placed in ordinary legislation in the Criminal Code. I think that is a very important distinction.

That is why my reference to the Supreme Court review of 2004 is all the more important. It is important because when we try and seek extraordinary remedies to ensure the public safety and security of all Canadians, we try and do it within the four corners of the charter and be compliant with the charter.

I believe this bill commends itself to all members of the House. It is important. These are difficult decisions. For someone like me who comes from the background of civil liberties and human rights, it is very difficult sometimes to look at clauses like this and determine whether or not we need them.

I looked at the debates in the House that went on around the time of the original legislation, the presentations that were made to the committees, both for and against the continuance of these provisions, and in fact the current bill that is before us. Having looked at all of that and deliberated very conscientiously, I have come to the conclusion that these are important provisions, unique though they are, extraordinary as they are, nonetheless, they are absolutely, fundamentally important to maintain the safety and security of Canadians in extraordinary times that we are living in.

Other countries, Australia, U.K., and others, have similar remedies in their legislation. Their remedies are much more stringent and perhaps one might say that to some of us they may not be acceptable because they are so stringent.

Our remedies are stringent, but they are not too stringent and they are compliant with the charter. They are in conformity with our traditions, with the traditions of our charter, and the traditions of those who framed the charter and the common law traditions of liberty, freedom and justice of a country. It is important that we keep all of that in mind when we vote on it.

Having said that, I want to commend the work of the Senate in shepherding this legislation through in a way that was cooperative and collaborative on its part. The Senate ought to be credited with having made some of the changes that makes this bill much better than when it was first introduced in the Senate.

Therefore, I commend this bill to all members of Parliament. I stand in support of it.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, ensuring balance in the legislation is one of the issues of concern to all of us in the House. Given the work that was done at the Senate, it meets a lot of our benchmarks.

Does my colleague have any concerns about the possible misuse of this legislation? We have not had to use it, thank goodness, and I hope we never need to. Is my colleague confident that there is a balance in the legislation that would protect people from having their constitutional rights abused? I would appreciate it if the hon. member could address that.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, when we are dealing with tough laws, like the Criminal Code, there is absolutely no question that the system is not perfect and that there is always a danger of somebody somewhere doing something erroneous that one should not do.

However, I am comforted by the fact that in the five years that this law has been on the books in the Criminal Code, it has never been used, which means that all of the other tools were sufficient enough to deal with some of the issues that may have arisen. However, that does not mean that we will never have situations that will require the use of these extraordinary remedies, but I hope we never do. I am comfortable with all of the changes that have been made.

I believe there are enough checks and balances in the legislation so that when a judge is asked for an investigative hearing and the person is presented before a provincial court judge, the judge has no right to refuse any questions the individual might want to ask.

Initially, for an investigative hearing an individual could make an application ex parte, which is without notice, but the attorney general of the province had to give consent for that ex parte application. If no consent was forthcoming, the application had to be made with notice. Once there was notice, the individual could retain counsel.

It is similar for police officers who pick someone up without a warrant or with a warrant and take them before a provincial court judge and have him or her detained or released on certain conditions. The judge would have wide discretion under the new legislation to actually impose conditions upon release, which tells me that there may be fewer cases where there will be a need to detain an individual. We could actually be releasing individuals on bail with a wide variety of conditions.

The kind of discretion and the kinds of checks and balances that are clearly laid out in the legislation provide very little room for abuse. So far these provisions have not been used, which comforts me because that tells me that police officers and law enforcers are wise enough not to use these remedies in an ordinary fashion.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I would like to ask the hon. member a question.

Could he give me just one example of a situation where a person should be brought before a judge to sign a recognizance in order to prevent a terrorist act from being committed? Such a thing could be handled better through regular application of the Criminal Code, especially the provisions authorizing a peace officer to arrest without warrant anyone he or she believes is about to commit an indictable offence.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, when we deal with hypotheticals and abstract issues, it becomes rather difficult. Under the ordinary Criminal Code provisions, I believe that the threshold is very high for someone to be arrested. These provisions have, implicit in them, serious terrorist activity, which is not like a regular criminal activity. Sometimes these are conspiracies that may be in the initial stages and we want to, if I might say, nip them in the bud. I believe these powers are extraordinary and that they will be useful under those circumstances.

I think it would be foolish of me to conjure up particular situations where it might or might not be used, but I can guarantee my colleague, who was the attorney general of Quebec when I was the attorney general of British Columbia, so we go back a long way together in these areas, that these are unique and extraordinary powers that may be useful. One never knows what will happen. So far, Canada has been generally blessed with peace. We have had our share of problems but we know Canada is on the hit list of terrorist organizations. I do not want our police officers and our law enforcement agencies to be without the use of these tools.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, the bill that is before us now is very similar to the one that the House of Commons rejected some time ago. In fact, the changes are technical, and I believe there are three of them. As a result, our arguments for opposing Bill S-3 are essentially the same as those we made for excluding these provisions from the Anti-terrorism Act.

We are here because these provisions were part of a sunset clause, which said that these provisions would disappear if these powers were not renewed within five years. Since the House refused to renew them, the government wants to reintroduce them, this time through the Senate. The bill reproduces almost entirely the provisions that the House refused to renew.

What is more, the House's arguments against the provisions are simple, and we must stand firm. These provisions are completely useless in the fight against terrorism, particularly when we want to arrest someone, bring them before a judge and make them sign a recognizance. But these provisions could be used by a government that would like to discredit political opponents.

They also put the people who are meant to sign the recognizance in a terrible situation. They are arrested or receive a summons and are brought before a judge based on mere suspicions that they might be involved in a terrorist activity. If the judge believes that the suspicions are reasonable, that is, that there is reason to believe that a serious crime would be committed, the judge can force a person to sign a recognizance. He can imprison the individual only if that person refuses to sign the recognizance, which is valid for one year.

I imagine that this would not help with the arrest of a very dangerous terrorist, since he would immediately be released. However, for the danger we want to prevent with these other provisions, the Criminal Code states that a police officer can arrest a person without a warrant if he has reasonable grounds to believe that the individual is about to commit an indictable offence. He can therefore interrupt the crime. The individual is arrested and brought before a judge. The judge can refuse bail if he believes there is a real danger and that this person could commit a serious crime if he were released. In this case, the judge cannot do that. The judge can only ask the individual to sign a recognizance.

However, the person who was arrested, as an accused, can eventually defend himself and say that the police officer did not have reasonable grounds and that the individual had no intention of committing a crime. This person can present a full defence and be acquitted, or perhaps have the charges withdrawn, because the Crown would realize that the person had not committed a crime. This person could continue to participate in society, as he was doing before.

Let us put ourselves in the shoes of someone in this situation. It is difficult for us because, as parliamentarians, we have reached a certain standing in society. Before, we also had careers that likely put us above these types of suspicions. But let us put ourselves in the shoes of an ordinary citizen, a young union activist who speaks out against injustices. But other people also speak out against these same injustices, but would rather use violence to change society.

The police could think that since this young man keeps company with people who have terrorist objectives, he could be involved in terrorist activities. Accordingly, they could make him appear before a judge and ask him to sign a similar recognizance. This young man could deny everything and swear that his actions are purely democratic, even though he knows those other people. If the judge finds that reasonable, under the law, relative to the severity of the terrorist act that could be committed, the judge can force him to sign a recognizance.

First of all, this individual will of course not go to prison. He will choose to sign the recognizance and be released. However, how will he be able to prove later on that those suspicions were completely unjustified? He will have no way to do so.

Let us consider the consequences of such a decision on that individual for the rest of his life. Does anyone believe he will be allowed entry into the United States if he tries to cross the border, having been the subject of a legal ruling forcing him to sign a recognizance in a context where there were concerns about possible terrorist activity? I am sure that individual would be denied entry. And what if his employer learns that he had to go to court to sign such a recognizance? In any case, these proceedings would likely be public. He would probably lose his job and have a hard time finding another one. Furthermore, I am convinced that he would appear on the no fly list, not only in the United States, but here too. He would have a hard time travelling to any other country.

This person would be stigmatized because a court ordered him to sign a recognizance to swear he will not carry out an act of terrorism. No one here has ever signed such a recognizance. The fact that someone is judicially forced to sign such a recognizance places a stigma on him that he will have to carry his whole life.

If anyone believes that these fears are unjustified, let us consider our past.

We had our own terrorists in the 1970s. They were not as dangerous as those we fear today, but they nevertheless caused the death of one person. Naturally, the killing of a minister horrified the population and also created tremendous fear. More than 500 suspects were jailed in one fell swoop. Five or six years later we had to compensate all of them. They included a popular singer, Pauline Julien, and her husband, Gérald Godin, who later became the minister of immigration and cultural communities and one of the best ever in Quebec. He was also a poet.

With the exception of one or two, all candidates in upcoming municipal elections who were members of FRAP were arrested. The parents, brothers and sisters of these people were detained.

There are times when we lose our reflex to defend a free society by respecting the freedoms of all and we feel obligated to restrict the rights of certain individuals.

I completely understand that the current international terrorist crisis and its consequences are worrisome. Yet I have not heard anyone reconcile the stigma that would be attached to the persons who have to sign these recognizance orders and the effectiveness of the fight against terrorism.

What do we think makes the secret service suspect that an individual is about to commit a terrorist act or will be involved in one? Judge O'Connor gave us a good example in the Maher Arar affair. It was believed that Maher Arar was involved in terrorist movements because he was seen walking in the rain, umbrella in hand, with someone who was also a suspect.

Apparently it is more difficult, even impossible, to record conversations when people are walking around under an umbrella. It has never occurred to me to criticize secret agents for operating on suspicion. Foiling terrorist plots is their job. Since these are secret organizations, these agents try to remain inconspicuous and analyze suspicions. It is normal for them to have suspicions.

However, they do not do surveillance on everyone. They target people of interest. A person of interest can be an individual who lends his car to a suspected terrorist, or people who take part in democratic organizations to denounce such injustices.

I am not criticizing these agents for having suspicions, but those suspicions must not have legal consequences. Those consequences happen because of suspicions; that is the criterion.

I want to say a few words about what the member before me said. He compared the degree of certainty we must have to arrest someone who is about to commit an indictable offence with the degree of certainty of our suspicions—can suspicions really be certain?—or rather the degree of knowledge or fear that pushes someone to make an individual appear before a judge to sign such a recognizance. In order to arrest someone without warrant because he is about to commit an crime, one must have reasonable grounds. It is true that this requires a little more than reasonable suspicion.

How do the police come up with their suspicions? By watching the people the individual spends time with. It is inevitable that some of the people who spend time with a person under police surveillance have nothing to do with terrorism. Therefore, it is also inevitable that people who have nothing to do with terrorism will be under suspicion.

I understand that surveillance of those people will continue. I understand, for example, that there may have been a good reason to keep Maher Arar under surveillance. The mistake made in the Maher Arar case is that he was clearly designated as a person of interest. A person of interest is not someone believed to be involved in the terrorist movement, but a person who has been observed among the entourage of those who are suspected, to be more precise, of being part of terrorist movements. That is the difference.

Now, instead of reasonable grounds, reasonable suspicion is enough. It is true that it is a small detail. However, I hope everyone grasps the potential stigma that could result from such a ruling by a court that orders someone, under the threat of imprisonment, to promise to comply with a number of conditions, including to stop participating in terrorist plots, of course.

When the police suspect someone is about to take action, to the point that they would make that person sign the recognizance, it is usually after wiretapping or something more substantial than just a suspicion. That being the case, the police probably have proof of a plot or the beginnings of a plot. And the plot, as well as its preparations, are considered criminal offences.

If it is important to intervene to prevent these plots from being carried out or ensure that the preparations are not completed, to the point that the individual is arrested and taken before a judge, it must mean that we have enough evidence to lay charges.

Yet laying charges allows the individual to go through the legal system and be acquitted, if that person is innocent. In the current situation, that person will carry the stigma of having been closely linked to terrorism and for the rest of his life will face all the major problems this could entail, given international travel these days.

I wanted to talk about something, but I have forgotten what it was. I will probably talk about it another time. I have been getting ready to give this speech since Monday, but it has been postponed repeatedly. About 15 minutes ago, I was told that I would be speaking now, but I do not have my notes.

Another thing that strikes me is how reluctant the rest of Canada is to look at what we are doing in Quebec. I am saying this to many nationalists whom I respect and who are not yet sovereignists. I was not born a sovereignist, I became one, as many others have done. I still understand that many Quebec nationalists in this House often look on Canada as an ideal. With two different cultures—we have two different languages and therefore different backgrounds—two sources of inspiration, two sources of reasoning, we could have a wonderful society built on the two languages that have played such an important role in the civilization we enjoy today. I understand those people. But I would have thought that both parties would benefit as a result. One party, inspired by the successes of the other, could take a page from the other's book, and the other party could learn from mistakes that were made and avoid repeating those mistakes. However, for many years now, it seems that successful initiatives in Quebec that could serve as a model for federal legislation have been systematically and completely ignored.

A good example of this was given here when a bill was introduced to amend the Young Offenders Act. The youth crime rate in Canada was 50% higher than in Quebec. Quebec had taken very seriously the old law, which was concerned with rehabilitating young offenders. In fact, the chief justice of the youth court in Quebec had summarized in a few choice words the Quebec courts' approach to young offenders: the right measure at the right time. Today, when he talks to me about the new law, he says that we used to judge a young person who had committed an offence; today, we judge an offence that was committed by a young person.

I know that in the west, for all sorts of reasons, people were terribly afraid of young offenders. People said that all they get is a slap on the wrist. The government decided to make a change and create a completely objective system that, in my opinion, does not produce the results Quebec had gotten.

Here, we have yet another example. We experienced terrorism and the reaction it elicits from those in power. Once again, we are unable to learn from those who lived through it.

I was a young lawyer at the time. In the 1970s—you can imagine that I was much younger than today—we had legal assistance. The difference between legal assistance and legal aid is that we were not paid. The young members of the Bar defended people. I defended many people accused of terrorism.

I learned a thing or two and I am realizing that these provisions could very well be used when the government panics. It has not done so in the past five years and that is a good thing. However, when such provisions are put into the Criminal Code, someone will find a way of using them eventually. In turbulent times, it could become a weapon used by a government to discredit its adversaries.

I believe that I have proven that not only is this bill futile, it is also dangerous. The risks of this bill outweigh by far its supposed advantages.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, I want to say for the member across the way that I was 23 years old in 1970 and had yet to become a member of the New Democratic Party. In 1970 the New Democratic Party stood up against the War Measures Act because it was invasive of the rights of Quebeckers and those of the rest of Canadians. In my opinion, it was an affront to democracy as we know it.

I want to speak a little more about what the member was saying with regard to what I would refer to as natural law: the fact that people have a right to know what they are accused of and the right to know the evidence against them. We have seen the move by the government to prevent that. It was drawn to mind with what occurred yesterday with the so-called Toronto 18 when a number of them had the charges against them stayed. That is just an example of a system that took some time but did work.

However, in my opinion, these provisions are terrible and take away that sense of natural justice in Canada. Would you agree with that?

[The Acting Speaker, Conservative, Andrew Scheer]

I remind the hon. member for Hamilton East—Stoney Creek to address his questions through the Chair.

The hon. member for Marc-Aurèle-Fortin.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I am very pleased to speak to this issue. I do not think I used the words “natural law”. Indeed, what I had in mind was the natural tendencies of humans, who need limits.

There is a minority in Canada that clearly understood. We are very similar to the NDP, except for our views on the sovereignty of Quebec and, generally speaking, the usefulness of the current Constitution. Otherwise, we are very similar. One must have lived through that time, however, to have felt the strength of the popular movements that called for punishment and were ready to dispense with all the principles of law to which we were accustomed.

It is to the credit of the member who asked the question, and to those around him, to be aware of that and have the courage to stand firm before an opinion, which I feel sometimes verges on hysteria.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I am rising today to speak against Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions). I think I will be making some of the points that have been made by my colleague who spoke just before me.

I am proud that the NDP is once again taking a stand against the Conservative government for going too far. It is not being proud to take a stand against the government, but I will take a stand against a government that I think has gone too far in pursuing its national security agenda. We all believe it is important, but it is being done at the expense of civil liberties.

Ensuring public safety is essentially about protecting Canadians' quality of life. Quality of life can be defined in many ways. If we talk to our family members or next door neighbours, they would define quality of life in a variety of ways, perhaps by where they live, where they work, by their environment, whatever that might be.

In deeper conversation, though, I think two things would come out. There is the importance of finding a balance between security and freedom.

Security means feeling safe, feeling that our country and our communities are safe, feeling that we can safely go out on the street, and feeling that the federal government, our country, is protecting us. As well, Canadians want to see that security balanced with freedoms, because freedoms are something that Canadians hold dear as a principle of being Canadian.

There are the freedoms to which we are entitled, the freedoms which people have fought for and the freedoms which we enjoy on a daily basis and often do not even take the time to perhaps think about or make a list of or talk to people about. Although if we turn on the television most evenings, we would certainly be able to see countries in which many or most of those freedoms are not available to people.

For some reason, the Conservative government is either unwilling or unable to find that balance, as it has proven by introducing Bill S-3 and by the security certificate legislation that we debated in this House in January, which has some similarity to this legislation.

With both of these pieces of legislation, the Conservatives are taking the wrong approach, or an unbalanced approach, to fighting terrorism in Canada. Do we need to fight terrorism in Canada? Of course we do, but there are many tools at our disposal currently in the Criminal Code that could be used as opposed to introducing yet another set or piece of legislation.

Our country already has many appropriate mechanisms in place for charging people, for trying people and for punishing those suspected of participating in terrorist activities. These mechanisms are contained in the Criminal Code of Canada, a very significant piece of legislation which ensures that our country is protected, as I said earlier, from those who seek to do harm to others while ensuring fundamental rights are protected.

The NDP always has opposed and always will oppose any attempt to undermine those fundamental rights and freedoms upon which our judicial system was founded. Our system was founded on responsibility and freedom, which go hand in hand.

That is why we oppose the security certificate legislation. That is why we are opposed to Bill S-3. I do not think we are alone in this at all.

Many Liberals, and even some Conservatives, may privately admit that Bill S-3 is a seriously flawed piece of legislation. Certainly we saw many Liberals saying that over Bill C-3. However, knowing that this bill is fundamentally flawed and fundamentally wrong-headed did not stop the Conservatives from introducing Bill S-3 through the other door in the Senate, so to speak, the back door in the Senate, and it will not stop the Liberals, I expect, from allowing the legislation to pass.

Once again, the NDP--and I believe the Bloc, as I have just heard some of the comments--is left as the voice of reason, fighting to protect Canadian values that some other parties only pay lip service to.

Let us look at one key component of Bill S-3: the establishment of investigative hearings. These hearings would force an individual we suspect--we do not know anything, we just suspect--might have information about terrorist activity that has happened, or may happen, to testify before a judge. It forces individuals against whom we have no charge to testify before a judge.

This marks a major shift in Canadian law, which is based on a right to remain silent.

If the individual refuses to speak, he or she will be arrested and sent to prison for as long as a year, on no charge except that he or she might, we think, based on something somebody else said, know something. I am not sure whether most Canadians would consider that to be a balance between freedom and security.

As I say, the individual might go to prison for as long as a year. To some people this may not seem unreasonable at first glance. Certainly the NDP believes that anyone with knowledge of terrorist activity should be investigated and questioned. We would not deny that at all. However, we already have provisions in place under the Criminal Code of Canada for questioning those involved in criminal activity. Otherwise, we would have nobody brought before a judge and nobody arrested.

We do have the means within the Criminal Code to question people involved in criminal activity. If people think someone is involved in a terrorist activity or that something might happen or they might know that something is criminal activity, I would suggest that we have within our system a way to deal with that.

We do not need a special provision for interrogating witnesses that has a one year prison sentence as a consequence for appearing uncooperative. An individual goes before a judge. He or she may not have any information whatsoever or may wish to remain silent. Let us say that somebody says the individual appears to be or is uncooperative. We then have the right to send him or her to jail for up to a year.

That is outrageous. That is not acceptable. It is indeed acceptable to question under the Criminal Code people suspected of terrorist activity. It is not acceptable for people to be placed in jail for a year with no charge whatsoever because they appear to be uncooperative.

This undermines our current judicial system, which ensures that those who have knowledge of crimes but refuse to divulge that information face criminal charges themselves. That is what our criminal system says. Those who have knowledge of crimes and refuse to divulge it will face criminal charges.

Investigative hearings would grant new powers outside of what is normally allowed under the Criminal Code. It is an extraordinary tool that is subject to dangerous misuse. We can all stand in this House and say that it would never be misused. I do not know how often we have stood in this House or in other places of government or in our communities and said, “That is not how we meant it to be used”. It is there and there is the possibility for misuse.

Denis Barrette of the International Civil Liberties Monitoring Group appeared before the Senate committee examining Bill S-3 and spoke of the possible dangers involved in investigative hearings. He pointed out that investigative hearings allow for the compelled testimony of individuals involved in protest or dissidence entirely unrelated to our everyday understanding of terrorism. It may not be the intention, but it allows for that.

Mr. Barrette is right. Bill S-3 exposes many law-abiding Canadians to frivolous harassment and possibly even incarceration. It is a very slippery slope and one which the NDP will not condone.

This is not the only problem with investigative hearings. When the Supreme Court of Canada studied investigative hearings in 2004, it was clear that testimony gathered during the proceedings must not be used against the witness. I need to repeat this. Testimony gathered during the proceedings must not be used against the witness.

Bill S-3 does not follow the Supreme Court's direction. The legislation currently before us states that information gathered in an investigative hearing cannot be used in a criminal hearing, but the Supreme Court was clear that information gathered through an investigative hearing cannot be used against the individual in any kind of proceeding, criminal, extradition, or otherwise.

It is unclear, given this obvious disregard for what the Supreme Court of Canada has said on this matter, whether Bill S-3 would survive a challenge, as we have said about Bill C-3, but whether or not Bill S-3 is constitutional is not the issue being debated today. I call on my colleagues in this House to join with the NDP and defeat this legislation so that a Supreme Court challenge is never required. That is part one of Bill S-3.

The second part is recognizance with conditions. This is a very controversial part of Bill S-3, recognizance with conditions, or what is called preventive detention.

I am extremely disappointed to see preventive detention included in this legislation because it violates a basic tenet of our justice system, as I said earlier, that a person must be proven to be guilty of doing something or plotting something in order to be detained. That is not the case in Bill S-3.

Recognizance with conditions would allow law enforcement officials to arrest and hold people with no evidence against them. Furthermore, upon release, these individuals would be subject to conditions similar to a peace bond, but unlike a peace bond, the individuals released with conditions may have done nothing wrong. The purpose of this provision, we are told, is to allow law enforcement--

[The Acting Speaker, Conservative, Andrew Scheer]

Order. I hate to have to interrupt the hon. member, but she will have about four minutes left when this bill comes back before the House.

The House resumed from April 15 consideration of the motion, and of the amendment.