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

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, the member for Hochelaga is absolutely correct. Those of us who are concerned about civil liberties and human rights in Canada are very concerned about the legislation, and it causes significant worries for us. We have to be very clear.

The House did something proper, at the time the provisions were about to be sunsetted, in voting down an extension of these provisions. It is very clear that there has been no demonstrated need for them in Canada. We have good Criminal Code legislation that makes it very clear. Any of kinds of criminal activity associated with terrorism are of the most serious kinds of crime and they have some of the harshest penalties associated with them. The Criminal Code provides for processes of long-standing that balance the need to protect individual freedoms and the security and the needs of the state. There have been many years, centuries even, of jurisprudence to get us to that point in Canada, where we have a system that balances those concerns. It is very important we show respect for that system.

I am not convinced extraordinary measures have been necessary. In fact, they have never been used when they existed in that five-year period. It does not seem they have been part of what has been necessary to protect us in the circumstances that exist in the world today. We have to be vigilant about these kinds of provisions that would take us to a different place, that would suspend some of the basic rights that we have.

I think if we told many Canadians that we currently had someone in jail in Canada for seven years who had never been charged or convicted of a crime, they would find it unbelievable and shocking and would want to know how that was possible in Canadian society. However, we already have this with the security certificate legislation and with the situation of Mr. Almrei, who is in the Kingston Immigration Holding Centre. This is a very draconian legislation and is currently being used in Canada.

Despite assurances that extraordinary measures are not to be used or are only to be used in very extreme or difficult circumstances, here we have someone who has been detained for that period of time without any possibility of being released. It looks very bleak in that sense right now, given the extension of the legislation.

We have to be very vigilant about our commitment to human rights and civil liberties, to the principles of the charter and to ensure we judge this legislation in that light before it comes to a vote in the House of Commons.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, it seems to me the speaker is raising unnecessary concerns that these provisions will somehow be abused. In fact, there are many safeguards with respect to the recognizance conditions.

First, I should point out that the consent of the Attorney General of Canada or the attorney general or solicitor general for the province has to be obtained.

Second, it is only if the person refuses to enter into the recognizance that her or she can be incarcerated, and that is an important point. Also, the person who enters that recognizance has the right to apply to change or to vary the conditions under the recognizance order.

It seems to me that many of the concerns he has raised are unnecessarily raising fear among Canadians that this will somehow be abuse.

Would he respond to those comments?

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, why would we put someone in jail who has never been convicted of a crime in Canada, which is what this provision would do? Why would we put extreme limitations on people's personal freedoms when it has never been proven that they have committed a crime or posed any threat to Canadian society?

The problem with the legislation is that it takes those kinds of cases out of our usual justice system and makes an exception. It basically says that allegations have been made against a person, even though nothing has been proven in a court of law that the person has actually done anything, and we need to restrict the person's freedom in order to protect society.

We already have the possibility of doing that under the Criminal Code. Conspiracy is a crime under the Criminal Code, as is plotting a criminal activity. We should use those provisions and subject the person to the rigours of the Criminal Code, and the state to the rigours of the Criminal Code in those instances as well.

I see no excuse for short-circuiting that process. No one has been able to show that this has been necessary in the five years since September 11. We have charged people with offences related to alleged terrorist activity but we did not use these kinds of provisions to do that.

I think it is very dangerous to have this kind of extraordinary sweeping provision on the books when we already have legislation in the Criminal Code that can deal effectively with any situation that might arise and also balances the need for security and respect for human rights and civil liberties in Canada.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, before I begin my speech, I would like to mention that yesterday marked the departure of the head of parliamentary interpretation, Monique Perrin D'Arloz, who worked at the House of Commons for 35 years. On behalf of all parliamentarians, I want to thank her for being our voice. I attended the reception in honour of her departure. I thank her for being so dedicated to all the members of this House.

It is rather troubling to talk about Bill S-3. To understand this bill, you have to start with the 2001 terrorist attacks, which showed us that there was a connection between civil societies and terrorism. There were many expressions of solidarity from Canada. In his memoirs, former Prime Minister Jean Chrétien talks at great length about the close historical relationship between Canada and the United States. President Kennedy once told John Diefenbaker, “Geography made us neighbours. History made us friends.” We have a special relationship with the United States that sometimes has advantages and sometimes disadvantages.

All Quebeckers and Canadians were shocked and saddened to see the twin towers collapse, because they felt for the people involved.

Nevertheless, a few months later, Anne McLellan, who would become the Minister of Public Safety and Emergency Preparedness, but was then the Minister of Justice and the Attorney General of Canada, acted with some haste. Certainly, those were troubling times. No one in this House wants to minimize the events of September 2001.

But now we have had time to look back on things. The Anti-terrorism Act that was introduced was studied, clause by clause, by a special legislative committee. If I remember correctly, our colleague from Argenteuil—Papineau—Mirabel and the current defence critic, the member for Saint-Jean, represented the Bloc Québécois on that committee.

There was a certain collective anxiety and very strong pressure from the Americans, who had passed the Patriot Act. I do not want to talk about that American legislation, which goes much further than the Canadian legislation, but there was a sort of collective psychosis that may have led us to ignore human rights and major civil liberties a little too easily.

That does not mean the Bloc Québécois is minimizing the risk terrorism presents to society. The Bloc Québécois has long been interested in the entire issue of organized crime. An entire generation representing this House followed the work of CIOC. I was eight when the work of CIOC began, but others will remember quite clearly the tainted meat scandal. Many Quebeckers followed the CIOC proceedings. This was an opportunity to see that organized crime was not just a theory, but that it had taken root in the community.

Then there was a period of calm. In the 1990s, unfortunately, organized crime began to run rampant again, especially in large cities like Montreal. There was a fierce battle over the drug market. In my riding of Hochelaga—Maisonneuve, this battle resulted in the car bomb attack that took the life of young Daniel Desrochers on August 9, 1995. This led us, and all parliamentarians in this House, to wonder how effective the measures in the Criminal Code were for dismantling major organized crime networks.

Today we are going a little further: we have to deal with terrorism.

Terrorism, in its contemporary form, attacks civil society through what are called undifferentiated attacks. It can be bombs in a subway, where groups, not individuals, are the target. When public buildings are attacked, no one in particular is targeted. Civil society is under threat. It is more serious and more difficult for law enforcement agencies to foil, investigate and dismantle terrorist networks that have a much broader scope than organized crime ever did.

I recently read a piece by Charles-Philippe David, the brother of the leader of Québec solidaire. He wrote that the driving force behind terrorism in the 21st century has largely, but not exclusively, been based on religious considerations. No country is safe from terrorism, but some countries are targeted more than others. In political science and history classes, we learned that the United States was the world's police officer. Their interventionist international policy obviously makes them a bigger target.

I do not want to leave out an important component of the historical background. Shortly after 2001, the Liberals introduced a bill that the Bloc Québécois did not support. There was a lot of pressure at that point in time. The Bloc Québécois did not support the bill because we questioned how effective it would be. We did not want to downplay the potential for a terrorist attack. We knew that it was a real possibility, and we wanted emergency measures and plans to be in place. I know that the civil protection people were working on this. However, we did not believe that the measures proposed at that time were the right ones.

For example, there was the possibility that people might be arrested without charges. And that goes against a fundamental principle of our justice system. When we want to bring people before the courts, we have a constitutional obligation to present evidence in order to charge them. If it is a serious matter, we proceed by way of indictment so that we can bring the entire justice system into play, with a defence lawyer and a crown prosecutor. We present the evidence. If it is a very serious matter, we proceed with a jury, and a trial will follow.

Former minister McLellan's bill twisted the administration of justice in two ways. When Anne McLellan's bill was introduced in the House, it contained a sunset clause. At the time, we were told that the provisions of the act would expire after a certain period of time, following which a parliamentary committee would study them and we, as parliamentarians, would decide whether it was appropriate to extend them. I would point out that the House did not consider it appropriate to extend provisions in the Criminal Code concerning sections 83.28, 83.29 and 83.3. Accordingly, we voted against it, and most members of the House decided to allow the provisions to expire. The feeling was unanimous among members of the Bloc Québécois and the NDP. If I remember correctly, the Liberals were divided and the government was unanimous.

What are we concerned about? First, we are concerned about the so-called investigative hearings. This is all based on allegations. No charges have been laid, nobody has been convicted; nobody has even been put on trial. The government is getting ahead of the justice system and once again, it wants us to support sections 83.28 and 83.29 of the Criminal Code. These are what they call investigative hearings.

Let me explain because this is somewhat technical and I would like our fellow citizens to understand what it is all about. A peace officer—a police officer to put it simply—may make an application to a provincial court judge—in Quebec, warrants are issued by provincial court judges—or a superior court judge with the prior consent of the Attorney General. It is correct to say, as our friend did earlier, that the consent of the Attorney General is required for an order for the gathering of information to be issued.

A peace officer or his agent may go before a superior court judge or a provincial court judge and explain that he would like to gather more information on a given individual because he has reasonable grounds to believe that the individual in question may have terrorist connections.

I remind the hon. members that we are talking about information in a context where no charges have been laid and no trial held, and that such an approach is totally arbitrary. The individual is required to appear before a judge. Hopefully, he or she will be notified in writing. The individual would be ordered, for example, to report to the Montreal courthouse next Tuesday, at 10 a.m., for an examination and to face justice. We are talking about an examination before a judge, where the individual will be required to answer questions. He or she may not refuse to answer.

In addition, the general principle whereby one has the right not to incriminate oneself does not apply under sections 83.28 and 83.29. The only exception, of course, is a person who has privileged information, for instance someone working for Criminal Intelligence Service Canada. These people are never required to disclose privileged information, the same way that police officers are never required to divulge their sources.

So, the examination is held before a judge, and the individual is required to answer the questions. Naturally, one might want to trivialize this. I heard earlier a government member say that the Attorney General was certainly necessary and that the person has the right to counsel. But do members not realize that we are talking about a situation where no charges have been laid against the person, yet he or she had to undergo questioning before any formal judicial process has been initiated? That is worrisome.

I must remind the House that this is similar to what happened with security certificates. That is another issue, but it follows the same logic. The Minister of Citizenship and Immigration along with the Minister of Justice and the Attorney General of Canada can sign a certificate ordering that an individual be arrested, tried and convicted, without having any access to the evidence that led to his or her arrest.

At the time, it was my colleague, Michel Bellehumeur, member for Berthier—Montcalm, who is now a member of the judiciary, given his talent and experience, who had raised this issue. When we of the Bloc Québécois said this was somehow detrimental to justice and showed a lack of respect for fundamental freedoms, at the time, the Liberals refused to accept our arguments. The case went before the Supreme Court of Canada and, in January 2006 or 2007, the whole thing was of course declared unconstitutional. The government had to go back to the drawing board and introduce another bill. But we are not satisfied with that bill, because it designates a kind of amicus curiae, a friend of the court, who would have access to the evidence. Yet that friend of the court, who would be defending the accused, cannot share the evidence with his or her client.

Thus, we see some logic that is completely twisted and completely inexcusable with regard to some major constitutional guarantees. I would be willing to bet on this, even though I am generally quite cautious. I am not a man of great wealth, which is why I tend to be cautious. But I would be willing to bet that these provisions will find their way to the Supreme Court of Canada and that the government will lose again regarding the drafting of this bill.

It would be even more surprising given that sections 83.28 and 83.29 of the Criminal Code have never been invoked. Law enforcement organizations never used these sections once over a six or seven year period, that is from the time they were passed until the day of the failed vote to extend the sunset clause.

Why? Because there are other provisions already in the Criminal Code. As we learned in our law courses, pursuant to section 495 of the Criminal Code, a peace officer may arrest an individual and bring him before a justice of the peace if there are reasonable grounds to do so. Naturally, there must be some basis for this action. In fact, anyone can do this. For example, if I have reason to believe that my neighbour will rob a bank, I can go before a judge and lay the information. This person may be summoned to appear and may have to enter into a peace bond.

Naturally, these provisions apply to the issue of terrorist networks. We could not understand why we needed a new law when such provisions were already in place.

As for investigative hearings, they provide a means of obtaining information about individuals who have not even been charged. They may be brought before a judge and undergo an actual examination, even though they may have legal representation, without ever having been charged.

The second clause of Bill S-3, which seeks to bring back the two clauses which expired after the vote in the House, pertains to section 83.3 of the Criminal Code, which deals with recognizance and preventive arrest and detention.

The scenario is as follows. Again with the consent of the Attorney General, who is generally the Minister of Justice, a peace officer who believes that a terrorist act will be committed can require that a person sign a recognizance with conditions or ask that the person be arrested, if necessary, to prevent a terrorist act from being committed. This peace officer will lay an information before a provincial court judge. The judge will order the person to appear if the judge is convinced that this is necessary. According to the bill, the person will have 24 hours after the information is laid to appear. A show-cause hearing will then be held to determine whether or not the person should be arrested or whether conditions should be imposed on the person. Generally, these conditions pertain to the person's movements and contacts with certain people.

In short, the difference is that this person can be formally arrested.

It is true that the Criminal Code already contains section 810, which, if memory serves, was adopted when we studied the first anti-gang bill. The Bloc Québécois won that battle, which resulted in an anti-gang law. I clearly remember that at the time, senior officials wanted to bring down organized crime using the conspiracy provisions. They had a hard time understanding that we were facing a new situation where people were very well organized into networks and formed a veritable industry that terrorized big cities like Montreal, Vancouver and Toronto.

Consequently, there are already provisions whereby individuals can be required, preventively, to keep the peace or not have contact with certain people. For example, in cases of sexual assault, the person must not be allowed to have contact with victims. Here, though, we have a situation where people can be arrested preventively, without being charged or tried.

Clearly, this bill is rather disturbing. I do not believe that the Bloc Québécois can support this bill, and we invite all members to reject it.

I will close by saying, once again, that the Criminal Code contains everything needed to intervene; we do not need these provisions.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I thank the member from the Bloc for his intervention.

The concerns that we have had on this side have been about due process. We have heard from the government and others regarding due process, suggesting that all is well and that the Conservatives have the right balance somehow. They have taken a piece of legislation, which they believe was riddled with problems, but nonetheless, enough was done to repair the concerns.

I am particularly concerned about due process, the provision of evidence and what happens when someone does give a statement and what happens to that.

I would like the hon. member's take on the concerns he might have as a member of Parliament, as a legislator. Does he believe that the balance is right? We have certainly heard from his speech the concerns he has, but could he elaborate on that, particularly concerning evidence and due process?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, we do not believe this bill is balanced. First, as we have said, there are at least two constitutionally recognized rights being ignored in this bill, namely the right to remain silent and the right not to self-incriminate. When we start talking about preventive arrests, there is little room for those rights to be respected.

We also do not understand why these provisions are needed when sections 495 and 810 of the Criminal Code already include everything we need to lay charges when necessary.

This is not a balanced bill. It only addresses the allegation stage. There is no room for proof beyond a shadow of a doubt, which is generally the threshold in criminal law. There is reason to be worried about the potential adoption of these provisions.

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, I listened carefully to my colleague and I am very proud that he is taking an interest and trying to uphold the rights we have acquired over the years.

I know that my colleague is very young, so he likely does not remember that an entire society, Quebec's francophone society, was put on trial in October 1970. I was 20 years old, six and a half months pregnant, and I was a victim of and witness to the war measures unjustifiably instituted simply because a few people had misstepped and committed crimes. But an entire society was put on trial and things went too far. Hundreds of people were unjustly accused, without even being told what they were accused of.

This experience traumatized me for a long time. Now, when I hear about provisions that could infringe on rights and muzzle me, I have to question whether they are appropriate or legitimate. I wonder if my colleague thinks the government wants to include these provisions in the bill so that it can move forward with its right-wing agenda, its right-wing ideology.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I would like to thank my colleague for her question. It is true that I was eight years old in 1970. I vaguely remember it. We can remember certain things, even from when we were eight. My parents also told me about the tanks on the streets of Montreal at that time. And they certainly remember the artists, the people who were targeted for arrest.

Imagine that in 1970 we suspended habeas corpus, a provision of the law whereby people cannot be arrested without a warrant. The Charter did not exist then; there was only the Canadian Bill of Rights. As for all of the abuses described by my colleague, which were traumatic for both individuals and society, we were not protected because there were not enough legal rights.

Even though there are charters in Quebec City and Ottawa, they still want to regress in terms of ensuring human rights. My colleague is right in making this comparison, and yes, we should be worried.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

Mr. Speaker, I would like to applaud my colleague's eloquence. As a new member elected in 2006, I have looked to him as a model. I am inspired by his very clear way of explaining the issues surrounding such an important bill—a bill the Bloc Québécois will not support.

I am not an expert in legal matters, but what I would like to understand is, does this bill include a section or a clause that explains what happens to the individual, the man or woman, who is under suspicion, is taken in for questioning and who is thereafter stigmatized and labelled and suffers the consequences because the community knows about it, even though the suspicions or allegations against that person turn out to be unfounded? What does this bill say about that? I would like my colleague to explain that. What is there in this bill for an individual who was under suspicion and turned out not to be guilty?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I thank my colleague for her question.

In the case of preventive arrest, during the judge's questioning, an individual can find out on the basis of which allegations he or she has been brought before the judge. The member is right: this bill, combined with what we know about the security certificate process, means that individuals will not have access to the evidence or to the normal process that is supposed to be followed for a trial. The only way for an individual to find out what he or she is accused of is through questioning, through interaction with the judge who questions him or her.

The House resumed consideration of the motion 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.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am very pleased to speak on behalf of the Bloc Québécois about Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

People listening to us need to understand that the Bloc Québécois opposes the principle underlying Bill S-3. The Bloc Québécois has taken a responsible approach to analyzing this issue. All legislative measures concerning terrorism must strike a balance between safety and respect for other basic rights.

That was the principle guiding the Bloc Québécois in its involvement in the review of the Anti-terrorism Act and its application, a review called for in the act itself. Between December 2004 and March 2007, the Bloc Québécois heard witnesses, read briefings, and interviewed specialists, civil society representatives and law enforcement agencies.

During the Subcommittee on the Review of the Anti-terrorism Act's specific study of the two provisions in Bill S-3, the Bloc Québécois made its position on investigative hearings and recognizance with conditions clear. The Bloc Québécois felt that the investigative process needed to be better defined.

In our opinion, it is clear that “this exceptional measure should be used only in specific cases in which it is necessary to prohibit activities where there is imminent peril of serious damage, and not in the case of misdeeds already committed”.

We were also firmly opposed to section 83.3, dealing with preventive arrest and recognizance with conditions. Not only do we feel that this measure is of little, if any, use in the fight against terrorism but, more importantly, there is a very real danger of its being used against honest citizens.

The Bloc Québécois finds that a terrorist activity deemed dangerous can be disrupted just as effectively, and in fact more effectively, by the regular application of the Criminal Code, without the harmful consequences that a preventive arrest can trigger.

Therefore, we recommended abolishing this approach, and we won our point on February 27, 2007. Today, our position has not changed.

The investigative process should only be reinstated if major changes are made to it, which Bill S-3 does not do. Moreover, preventive arrests have no place in the Canadian justice system, given their possible consequences and the fact that other provisions which are already in place are just as effective.

Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) was introduced and read for the first time on October 23, 2007. This bill seeks to reinstate two provisions of the Anti-terrorism Act that were abolished when their sunset clause was allowed to expire. The vote on the sunset clause took place on February 27, 2007.

I was a member of the Standing Committee on Transport, Infrastructure and Communities in 2001, when we passed the Anti-Terrorism Act, which provided for a five-year review. It is during that five-year review that the vote on the sunset clause was held, again on February 27, 2007, and that is when Parliament decided not to extend that clause.

Sections 83.28 and 83.29 of the Criminal Code, which were abolished following the vote on the sunset clause, dealt with investigative hearings. Under these provisions, a peace officer could, after obtaining the attorney general's prior consent, ask a provincial court judge, or a superior court judge, to make an order for the gathering of information.

If granted, the order required the person named therein to appear before a judge, to be questioned and to produce everything in his or her possession. The person named in the order had the right to retain a lawyer, and was supposed to answer questions put to him or her, but could refuse if answering a question would disclose information protected by any law relating to non-disclosure of information or to privilege. The presiding judge was to rule on any refusal to answer. The person was not to be excused from answering questions or producing things on the ground that it might incriminate him or her. Essentially, individuals were to be deprived of their right to remain silent.

However, no information or statement obtained during an investigative hearing could subsequently be used directly or indirectly in any other criminal proceedings, other than a prosecution for perjury or giving contrary evidence. Investigative hearings were not useful. They were never even used, thus proving that section 83.28 was not necessary.

Moreover, as part of a regular investigation, the police can already question witnesses and carry out search warrants to obtain documents.

Bill S-3 seeks to reintroduce this mechanism, section 83.28, which was abolished by the vote against the sunset clause, in a nearly identical form.

With respect to recognizance, arrest and detention, section 83.3 of the Criminal Code addressed recognizance with conditions, with the prior consent of the Attorney General. A peace officer who believed that a terrorist activity was about to be carried out and who suspected that the imposition of a recognizance with conditions on a person, or the arrest of a person, was necessary to prevent the carrying out of the terrorist activity, could lay an information before a provincial court judge. The judge could order the person to appear before him or her. A peace officer could arrest the person without a warrant if the arrest was deemed necessary to prevent the terrorist activity from being carried out.

The person detained was to appear before a provincial court judge within 24 hours or as soon as possible thereafter. Then a show-cause hearing was to take place to determine whether the person should be released or further detained. The hearing could not be delayed longer than 48 hours.

If the judge determined that it was not necessary to have the person sign a recognizance, the person was to be released. If, however, the judge determined that the person did have to sign a recognizance, then the person was required to keep the peace and comply with the other conditions that had been imposed for up to 12 months. If the person refused to sign the recognizance, the judge could order that the person be incarcerated for up to 12 months.

This provision was never used. Section 83.3 was added to the Criminal Code but, five years later, when it was abolished, it had never been used.

That is not surprising, because police officers could and still can use other Criminal Code provisions to arrest someone about to commit an indictable offence.

Section 495 of the Criminal Code states:

(1) A peace officer may arrest without warrant

(a) a person...who, on reasonable grounds, he believes...is about to commit an indictable offence;

Section 495 already existed. There is a good reason why the police never made use of the new provisions in section 83.3, which is why it was allowed to expire in 2007.

The dissenting opinion in the report of the Standing Committee on Public Safety and National Security gives the following explanation with regard to section 495 of the Criminal Code:

The arrested person must then be brought before a judge, who may impose the same conditions as those imposable under the Anti-terrorism Act. The judge may even refuse bail if he believes that the person’s release might jeopardize public safety.

Section 495 already enables the police to make preventive arrests. There was therefore no need for section 83.3.

The dissenting opinion goes on about section 495 of the current Criminal Code:

If police officers believe that a person is about to commit an act of terrorism, then they have knowledge of a plot. They probably know, based on wiretap or surveillance information, that an indictable offence is about to be committed. Therefore, they have proof of a plot or attempt and need only lay a charge in order to arrest the person in question. There will eventually be a trial, at which time the arrested person will have the opportunity to a full answer and defence. The person will be acquitted if the suspicions are not justified or if there is insufficient proof to support a conviction. It seems obvious to us that the terrorist act thus apprehended would have been disrupted just as easily as it would have been had section 83.3 been used. However, it is this provision that is most likely to give rise to abuses. It may be used to brand someone a terrorist on grounds of proof that are not sufficient to condemn him but against which he will never be able to fully defend himself. This will prevent him from travelling by plane, crossing the border into the United States and probably from entering many other countries. It is very likely that he will lose his job and be unable to find another. One could compare this situation to that of Maher Arar upon his return from Syria before he was exonerated by Justice O’Connor...If this new and temporary provision of the Criminal Code were used, it would be a judicial decision to impose conditions because of apprehended terrorist activity. The general public would see that person as almost certainly, if not definitely, a terrorist. Terrorist movements often spring from and are nourished by profound feelings of injustice...The fight against these injustices is often conducted in parallel by those who want to correct the injustices through democratic means— The former made a positive contribution to the transformation of the societies in which we live today. They are often the source of many of the rights that we enjoy.

It is inevitable that political activity will bring the first and second groups together. Very often, the former will not even be aware that the latter are involved in terrorism. The planning of terrorist activity is by its nature secret.

...

In order to determine whether a person is part of a terrorist network, security officers make use of electronic surveillance, but, as we saw in the Arar case, they also monitor the contacts of someone—

Now, to be able to order incarceration and, subsequently, the imposition of conditions of release, it is sufficient that the judge be convinced “that the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the peace officer’s grounds...and the gravity of any terrorist activity that may be carried out.”

In other words, the apprehension of serious terrorist activity and grounds that appear founded will suffice—

It should also be noted that the person arrested need not be the one that is thought likely to commit a terrorist act, but only and simply a person whose arrest “is necessary to prevent the carrying out of the terrorist activity.”

There is an important nuance there that is both astonishing and disturbing. It can include innocent people who are unaware of the reasons for which terrorists are soliciting their aid in a planned activity while concealing the real reasons they are asking for aid.

Some see in the reference to section 810 of the Criminal Code an indication that our criminal law already uses a procedure similar to that set out in section 83.3. While there is a similarity in the procedure followed, there is a very big difference in the consequences of applying these two sections.

Under the current section 810, a person can be summoned before a judge, but not arrested. The judge can order that person to enter into a recognizance to keep the peace.

The judge cannot commit that person to a prison term unless the person refuses to sign the recognizance, after listening to all the parties and being satisfied by the evidence adduced that there are reasonable grounds for the fears.

If the person signs the recognizance and respects the conditions, he or she remains at liberty, will not be sentenced and will thus have no criminal record.

...

This provision and section 83.3 that we [rejected] are very different in nature and have radically different consequences.

There is also no comparison between the impact that the use of section 83.3 and section 810 would have on someone’s reputation.

When the decision is made to depart from the fundamental principles underlying our system of criminal law, there is always a risk that these measures will later be applied in a manner totally different from those foreseen. That was the case with the imposition of the war measures act in 1970, which saw the incarceration, among others, of a great poet, a pop singer, numerous relatives of people charged with terrorist activities and almost all the candidates of a municipal political party.

In light of this analysis, we have decided not to support the extension of these provisions. First, it is of little, if any, use. These two sections went unused during the five years they were in effect. Second, there is a very real danger that this provision might be used against honest citizens.

A terrorist activity deemed dangerous can be disrupted just as effectively, and in fact more effectively, by the regular application of the Criminal Code.

That is why I have taken the time to explain sections 83.28 and 83.3 of the Criminal Code: Bill S-3 is practically identical to the two measures that were eliminated, namely investigative hearing—sections 83.28 and 83.29 of the Criminal Code—and recognizance with conditions, which is similar to section 83.3 which was eliminated. If we count technical amendments, such as minor clarifications, there are still only three substantial amendments.

They amended the investigative procedure in order to standardize it. The previous investigative procedure depended on whether or not the terrorism offence had already been or would be committed. If the terrorism offence had not yet been committed, the judge had to be convinced—along with other criteria—“that reasonable attempts have been made to obtain the information” outside of the investigative procedure. This was not required for offences that had already been committed.

Bill S-3 standardizes the procedure and requires “that reasonable attempts have been made to obtain the information by other means” through investigative hearings in both cases.

The second minor amendment concerns the limit on detention. Bill S-3 adds a limit on detention when someone who is under investigation is being detained because there is a risk that they will evade service of the order or because they did not attend the examination.

An examination of the review in committee led to the following. Aside from the fact that the Attorney General of Canada and, in the case of section 83.3, the Minister of Public Safety and Emergency Preparedness, must include in their annual report on the use of the two provisions their opinion on whether the provisions should be extended, the most important amendment is to ensure that the provisions will be subject to a comprehensive review, before the sunset clause expires, either by a Senate committee, a House committee or a joint committee that Parliament or one of its houses will have designated or created for this purpose. Within one year after the committee starts the review, it must submit its report to Parliament, along with recommendations on whether the provisions should be extended.

In short, not only were the comments of the Bloc Québécois not taken into account, but neither were the numerous recommendations by the two committees, both House and the Senate, who seriously examined the issue. The Conservative government prefers to do whatever it likes, forgetting that in a democratic and free society, there must be a real balance between ensuring safety and respecting other fundamental rights.

The Bloc Québécois has been acting in this responsible manner since 2001. I was on the Standing Committee on Transport when the Anti-terrorism Act was passed and we were the ones who presented the famous sunset clause to ensure that there would be a five-year review. In 2007, Parliament decided to abolish these provisions because they were never used. Again, the Conservatives do not care about the different committees and recommendations from all the experts and they decide to restore measures that had been abolished by this Parliament in 2007.

Perhaps I should read from the Bloc Québécois dissenting opinion.

The Anti-terrorism Act, a measure adopted rather quickly following the events of September 11, 2001, required its provisions to be reviewed three years after the bill became law.

The Subcommittee on the Review of the Anti-terrorism Act was responsible for reviewing the legislation, as a five-year review was required. In October 2006, the subcommittee of the Standing Committee on Public Safety and National Security tabled an interim report specifically on the two measures contained in Bill S-3. Although the Bloc Québécois agreed with some of the subcommittee's findings, it felt that the two provisions should not be kept as they were worded then.

The Bloc Québécois explained its reasoning by signing a dissenting opinion, which I will now read.

From the outset, it must be understood that this is a preliminary report that addresses only two sets of provisions in the Anti-terrorism Act; namely, those pertaining to investigations and preventive arrests as provided for in sections 83.28, 83.29 and 83.3 of the Criminal Code, as amended by section 4 of the Anti-Terrorist Act.

We concur with the description of the specific historical context that led to the adoption of the Anti-terrorism Act.

We also agree with most of the recommendations made in the majority report of the Committee, which aim to provide better guidelines for the investigation process. This exceptional measure should be used only in specific cases in which it is necessary to prohibit activities where there is imminent peril of serious damage, and not in the case of misdeeds already committed.

We, like other members of the Committee are also of the opinion that another review of the provisions ten years after their coming into force is needed and would make it possible to better assess whether the provisions should be extended or allowed to expire.

We would have preferred a three-year period; however, we are willing to support the opinion of the majority...

However, we do not agree with the Committee members’ opinion regarding the preventive arrests provided for in section 83.3 of the Criminal Code, as introduced in the Anti-terrorism Act. Our reasons are as follows.

Terrorism cannot be fought with legislation; it must be fought through the efforts of intelligence services combined with appropriate police action.

There is no act of terrorism that is not already a criminal offence punishable by the most stringent penalties under the Criminal Code. This is obviously the case for pre-meditated, cold-blooded murders; however, it is also true of the destruction of major infrastructures.

Moreover, when judges exercise their discretion during sentencing, they will consider the terrorists’ motive as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high... This is what they have always done in the past and there is no reason to think they will do differently in the future.

Thus, given this representation by our members on the sub-committee, it is important that Parliament understand that the Bloc Québécois will vote against Bill S-3, which seeks to reintroduce measures abolished by the House in 2007. The Bloc Québécois continues to have an advantage over the other parties in this House. We are always responsible and true to ourselves.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I do not disagree with the closing remark of my colleague from Argenteuil—Papineau—Mirabel. He always comes to the House well prepared. He made a very informative and well-researched speech on the concerns he has with Bill S-3. We have many of the same apprehensions about the bill. I was particularly interested in two points my colleague raised on which I would like him to comment.

One is the lack of respect shown to the will of Parliament and to the voice of committees. In fact Parliament and the standing committee at the five year review rejected the implementation of these terms and conditions and wanted them to cease. We believe that the voice of Parliament should have primacy. The government of the day should have listened, taken note and acted accordingly, not to reintroduce these same measures through an unelected chamber like the Senate.

There is a second thing on which I would like the member to comment. I believe that one of the basic fundamental tenets of our judicial system is the right to remain silent when accused, or in a hearing, or in a courtroom setting. We only suspend the right to remain silent with very robust corresponding measures, such as, in the case of a parliamentary committee, there is no right to remain silent, but the information gleaned at that committee cannot be used against the person in any subsequent proceeding.

That does not seem to be the case in Bill S-3. There is no right to remain silent and the information given cannot be used directly against the person, but it may be used as derivative testimony, or derivative evidence in some further proceeding.

Would my colleague agree this has to be addressed? The right to remain silent cannot be compromised unless there are corresponding protections introduced.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I thank my colleague for his two questions.

With respect to the first question, the Conservatives are obviously acting in bad faith. The Anti-terrorism Act adopted at the time provided for a review of the act. Why? And why were we such staunch supporters of this issue? It was because we did not want there to be abuses. At the time, it was pointed out that the Criminal Code contained provisions that could do the job. Five years later, the clause had never been invoked. That fact was so clearly presented that Parliament decided, on February 27, 2007, to allow these clauses to expire. The two provisions were simply abolished.

Now the Conservative party has decided to reintroduce these provisions by way of the Senate. Once again, the Conservative way of governing is quite simply disrespectful. They say, “We are right; everyone else is wrong.” That is very harmful to a society. This brings me to the member's second question, the right to remain silent.

The measures in the Criminal Code were adopted by those who came before us and who gave us the opportunity, today, to take our place in this House. It is a model of society recognized throughout the world and one that Quebec would choose if it were a country. Thus, we are able to guarantee to all individuals that they will not be found guilty for acts they have not committed and that they have the right to remain silent if they deem that the questions asked would be incriminating.

Yet decisions are being taken to change this way of doing things on which our society is founded because, once again, the Conservatives have decided that there have been terrorist threats. Five years, six years or seven years later, these clauses have never been invoked. Therefore, the Bloc Québécois does not understand why, today, these provisions are being reintroduced after already being abolished by Parliament because they were never used.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I am pleased to have the opportunity to ask my colleague some questions following his heartfelt presentation. I was under the impression that he too was a member of the parliamentary committee in 2002, along with our defence colleague, if memory serves.

Clearly, the Bloc Québécois has been concerned about this bill since 2002, when Anne McLellan was the minister of public safety and emergency preparedness. First of all, the bill violated certain constitutional guarantees.

I have three questions for my colleague. Can he please refresh our memories regarding what constitutional guarantees are violated? He already mentioned the right to remain silent, but does he not think the presumption of innocence and the right not to self-incriminate are also jeopardized by this bill?

Second, can he please describe for us the Criminal Code provisions that already exist on this matter? Of course, I am referring to section 810 in particular. Can he please confirm that the existing legislation already contains every preventive measure necessary to counter terrorist threats?

Furthermore, can he please explain how the Conservatives have shown a lack of respect in this House? I cannot imagine that all ministers could have supported such a denial of democracy by failing to respect the House's vote. Does my colleague think there is one minister in particular who is less democratic than the others?