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.

Combating Terrorism Act

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, Bill S-7 is the latest chapter in a long saga that began in the wake of September 11 and led to a number of legislative measures. Bill C-36, the Anti-terrorism Act passed in 2001, was the first salvo launched following the horrific events in New York which still strike fear in people today.

Obviously, the legislation was brought in not only to respond to this threat and to protect Canadians, but also to meet our international obligations, as dictated at high levels, to the UN.

Some of the provisions of the Anti-terrorism Act amended existing pieces of legislation such as the Criminal Code, the Access to Information Act and the Proceeds of Crime (Money Laundering) and Terrorism Financing Act.

Other more significant changes were brought in, notably unprecedented changes to Canadian law. Those who were serving in the House at the time of the 2001 attacks perhaps can attest to the fact that this legislation was passed hastily and without due consideration.

Facing the unknown and a climate of dread, Parliament responded in a strong-armed, reflexive manner. There is a reason therefore why these provisions, crafted in the urgency of the moment, were subject to sunset clauses.

These so-called sunset clauses ensured that the more controversial measures would simply be temporary. That was for the better. The provisions in question pertained to preventive arrest and investigative hearings.

Had the desire arose to extend the life of these provisions, had they been deemed useful or relevant or had it been acknowledged that they had prevented an otherwise inevitable catastrophe from occurring, there would have been an opportunity to maintain them and make them permanent.

To do so would have required a resolution by both Houses of Parliament. A resolution was in fact tabled and rejected. Parliamentarians in their wisdom found that there was no valid reason to extend the life of these provisions.

Both Houses did their homework as far as these measures were concerned. Each one examined the most sensitive provisions of the 2001 Anti-terrorism Act. In October 2006, the House of Commons Standing Committee on Public Safety and National Security reviewed the legislation, most notably the investigative hearings and recognizance with conditions provisions. The other place produced an aptly named report entitled “Fundamental Justice in Extraordinary Times”.

Despite this flurry of activity, these questionable, freedom-destroying and fortunately temporary provisions expired as originally scheduled in 2007.

Since then, several attempts have been made to resurrect this long-settled debate: Bill S-3 in 2008, Bill C-19 in 2009 and Bill C-17 in 2010.

Each time, the same conclusion has been reached: the state currently has all the tools it needs to combat terrorism.

There was no reason to bring in these measures, even in 2001, and there is no reason to re-introduce them today.

The measures being debated today are not harmless. Among other things, Bill S-7 would re-introduce into Canadian law the phenomenon of investigative hearings that allow a peace officer to apply to a provincial court judge for an order to compel individuals to appear before a judge if they are suspected of having information concerning future terrorist acts. The provision would compel the individual to attend hearings and to answer investigators’ questions.

Another important measure that is being brought hastily before the House is the recognizance with conditions provision which includes preventive detention. It would give a peace officer the authority to arrest an individual without a warrant if he believes such action is necessary to prevent a terrorist act. The individual in question is subsequently brought before a judge, as soon as feasible, according to the wording of the bill, and may be imposed certain conditions, or may even be committed to prison for a term not exceeding 12 months.

From a human rights standpoint, these provisions are very restrictive. One could also argue that they are cause for great concern and that careful consideration should be given to the balance that must be struck between the real advantage they provide in terms of public safety and the cost to citizens, which undeniably in this instance is restrictions on a person’s fundamental rights. Admittedly, at issue are the rights of the individuals primarily concerned, but ultimately the rights of all citizens are affected as well.

Dramatist Henry Becque wrote that freedom and health have much in common and that we only appreciate their value when they are lost to us.

I am greatly concerned about the timing of today’s debate, about the fact that the government has chosen to move it up in light of what has happened. As noted earlier, the 2001 Anti-terrorism Act was passed hastily and this is not how debates on national legislation should unfold.

Today it would seem that an attempt is being made to recreate the same climate of fear and panic in order to hastily push through a bill that has serious implications for people’s freedoms.

It goes without saying that the people in my riding, Longueuil—Pierre-Boucher, want to live in safety. However, they also believe very strongly in the rights that belong to every individual. Many of them are going to wonder whether this is the right time to be debating the measures in Bill S-7, when people are recovering from the horrific, cruel and gratuitous attacks that took place last week at the Boston marathon.

We do not need any added emotion for debating this bill. What we need is some distance, some reflection, and some calm and considered thought.

To me, there is nothing wise about the government precipitating this debate. I stress the word “wise”.

Is it really wise, the day after attacks like that, and with what we have in the news here in Canada, to be rewriting our laws and redefining our fundamental freedoms?

Perhaps it is the usual opportunism we see from this government, in its typical crudeness and poor taste.

We on this side firmly believe that this bill is contrary to the fundamental values of Canadians and the values on which our judicial system is built.

The unambiguous and unvarnished goal of these measures is to limit the civil liberties and fundamental rights of Canadians.

Those rights include basic elements of our judicial system that we take for granted: the right to remain silent, the right to a fair trial and the right to be considered innocent until proven guilty.

The principles of our law, whose origin lies in centuries-old customs and legal traditions, lay out individual rights that are unwavering.

While the draft we are presented with today includes a few sops that are supposed to reassure us, because they are in the form of additional protections, these proposals are very unconvincing overall.

We also oppose these measures simply on their track record: these methods are ineffective in principle.

Ultimately, we firmly believe the Criminal Code is an entirely satisfactory tool for investigating these suspicious people who engage in shady plans or whose goal is to threaten the public. Those are crimes and that is what the Criminal Code is intended for.

In fact, the provisions drawn up in 2001, which had a “sunset clause” that took effect in 2007, were never used. Those measures made people uncomfortable from the outset, in 2001, because they were inimical to liberty.

In 2010, a former director of the Canadian Security Intelligence Service, Reid Morden, said, on the question of the two measures I referred to earlier:

...I confess I never thought that they should have been introduced in the first place...

He raised the idea that these provisions had slipped into the act almost by mistake.

...and that they slipped in, in the kind of scrambling around that the government did after 9/11...It seemed to me that it turned our judicial system somewhat on its head.

He then stressed that law enforcement agencies already have the powers they need to do their job. They do not need additional powers. He concluded by saying:

I guess l'm sorry to hear that the government has decided to reintroduce them.

It appears that these measures caused misgivings among the forces of law and order, who wisely decided not to use these powers in their investigations.

Can someone really explain why these measures would be useful today, when they were not useful in the months following September 11, and that even the people who could have enforced them did not want to?

Finally, when some rights are under threat, all rights are under threat. Under the provisions of this bill, there is not much to ensure that citizens or anyone will not be falsely accused in the future for activities that have nothing to do with terrorism. Some activities may be considered subversive or dissident—slippery words that can be applied to peaceful activities in a democratic context.

Those who defend fundamental human rights are speaking up from all sides, telling us that these measures are unnecessary and that the price to be paid will be paid in civil rights, which is not a fair exchange for the proposed benefits. These measures are unwanted and unnecessary.

We saw this a few years ago when threats of spectacular terrorist attacks were foiled. We saw it again yesterday, when the admirable public safety professionals arrested two suspects who, it appears, wanted to disrupt the lives of ordinary people and do them unimaginable harm.

At this moment in time when terrorism has become part of current events, it is essential that we resist. We must resist terrorism in order to protect ourselves, prepare ourselves and defend ourselves. We must make our trains, airports, public spaces and gathering places safe and secure.

It is also essential that we, as a society, as communities and individuals, refuse to be terrorized by terrorism, and refuse to be manipulated or to change our behaviour and lifestyles. That is precisely what we should not do.

We must not be terrified by terrorism. To stand up to terrorism is to ensure that democracy and individual liberties for everyone in our country are never threatened by such people and their violence.

Since I have only a few seconds left, I just wish to express my astonishment at the Liberal Party's inconsistency. In 2001, the Liberals adopted the sunset clauses, but today they are not proposing any amendments of the sort. I cannot explain that.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, I am very pleased to stand today in the House to speak against Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act. The genealogy of Bill S-7 takes us back to Bill C-36, the Anti-terrorism Act, which was tabled by the Liberal government in 2001. The original intent of the Anti-terrorism Act was to provide the Canadian legislative response to the events of September 11, 2001, 9/11 as we now know it.

There is no question that day should not and indeed cannot be forgotten. The images of passenger planes flying into those iconic towers repeat themselves over and over again in news, television and film, and undoubtedly in the mind as the memories of the many who were personally impacted by that act of terror.

I note with sadness that my colleague from Esquimalt—Juan de Fuca and his partner have such memories to bear.

As these images repeat themselves, we witness the deaths of nearly 3,000 innocents, including 24 Canadians over and over again. That day we awoke to a new kind of threat and a new level of threat. Most importantly, we awoke to a new and profound sense of vulnerability, so we responded.

Several provisions of Bill C-36 became permanently enshrined in other legislation such as the Proceeds of Crime and Terrorist Financing Act, the Criminal Code and the Access to Information Act. However, several parts of the Anti-terrorism Act had sunset clauses expiring in February 2007. These provisions concerned investigative hearings and recognizance with conditions or preventive arrest provisions.

These measures were largely without precedence in Canadian law and for good reason. We believe that these provisions run contrary to fundamental principles, rights and liberties enshrined in Canadian law. The rights and liberties violated include the right to remain silent and the right not to be imprisoned without first having a fair trial. We believe that these are important restrictions on the authority of the state because in their absence there is not sufficient protection of an individual's freedom.

As per the terms of the Anti-terrorism Act, these provisions, in order to be extended, had to be adopted by way of resolution by both Houses of Parliament. However, the resolution was defeated soundly, 159:124 in this House, and these controversial provisions of the Anti-terrorism Act sunsetted.

We know that the efforts did not end there. Similar bills were proposed in 2008, 2009 and 2010 in the forms of Bill S-3, Bill C-19 and Bill C-17 respectively. It seems this is an annual, or almost annual rite. Now they are back.

Time has passed in the interim, a decade roughly since Bill C-36 was brought before the House, and time has been instructive. Since the passage of the Anti-terrorism Act, the recognizance with conditions or preventive arrest provision has never been used. The investigative hearing provision has been used once in the Air India case. Many consider that exercise to have had no positive effect, in fact quite the opposite.

Paul Copeland, a highly experienced and respected lawyer representing the Law Union of Ontario, speaking about this sole experience with the investigative hearing provision, said to the Standing Committee on Public Safety and National Security in 2010 that the Law Union characterized this episode “as a fiasco, and I think that's an appropriate description”. He went on to say about all the provisions examined:

The provisions you are looking at here, in my submission, change the Canadian legal landscape.... They should not be passed, and in my view they are not needed. There are other provisions of the code that allow for various ways of dealing with these people.

This seems to be the nub of the issue. Without such extreme provisions, without changing the legal landscape of Canada, without breaching the rights and civil liberties of Canadian citizens, we have successfully protected the safety and security of Canada and Canadians from terrorist attack. These provisions have proven over the course of time to constitute an unnecessary and ineffective infringement.

As the former NDP justice critic said in the House in 2010:

When facing a crisis, we as political leaders feel that we have to do something even when all the evidence shows that the structures we have, the strength of our society, the strength of our laws, are enough to deal with it. We passed legislation in early 2002 to deal with terrorism when we panicked. We have learned in the last eight years that there was no need for that legislation.

The only thing to add to that summation is that in the past decade we have learned that we did not need this act.

The proof, as they say, is in the pudding. As Denis Barrette, spokesperson for the International Civil Liberties Monitoring Group, noted before the standing committee on Bill C-17 in 2011:

Since 2007, police investigations have succeeded in dismantling terrorist conspiracies using neither one of the provisions we are talking about today.

He concluded:

We believe that Canadians will be better served and better protected under the usual provisions of the Criminal Code, rather than others that are completely unnecessary. Reliance on arbitrary powers and a lower standard of evidence can never replace good, effective police work. On the contrary, these powers open the door to a denial of justice and a greater probability that the reputation of innocent individuals...will be tarnished.

We have borne witness to that in this country.

While these provisions have proven to have no effect on the fight against terror, they have had a profound social impact on Canada and many Canadians. On the eve of 9/11 this year, I showed a film at my local review theatre, the Fox in the Beach. The film is called Change Your Name Ousama. It was produced and directed by local filmmaker Fuad Chowdhury and focuses on a community in my riding of Beaches—East York called Crescent Town. Crescent Town is a very densely populated and diverse community, which is largely made up of Bangladeshi Canadians, most of whom are Muslim.

The film is not a point of view film. It was made for television and screened at the Montreal film festival. It includes significant interview footage, for example, of the assistant director of CSIS. It also includes footage of our Prime Minister in a fairly recent CBC interview telling Canadians that the major threat to Canada is still Islamicism. The film also tells the story of what it feels like to be one of about a million Muslim Canadians living in a political climate where their religion has been held to be a threat to the security of their country.

It is noted in the film by a University of Toronto academic that governments, through their actions, have the power to create stigmas and to marginalize communities. Of this we need, in this place, to be very mindful and sensitive. This is where the film gets its title. It was the advice, amidst the political fallout of 9/11, of a Muslim leader of Crescent Town to members of his community, “Change your name Ousama. Shave your beard. Do not wear your kufi”. In essence, “change or disguise your identity”.

Motivated as they have been, bills such as that introduced in 2001 by the Liberals and its partial reprisal today in the form of Bill S-7 have had that impact. They have left so many across this country and in my riding feeling like they have something to apologize for, as if the onus rests on them to demonstrate somehow that they are not terrorists.

Herein lies a great tragedy. In Bill S-7, as with Bill C-36 before it, we have before us a bill that contradicts not just the legal heritage of this country but a fundamental social and political heritage that takes us back decades at least, a heritage of which we should be proud and protective. The heritage I speak of is the opportunity to maintain and exercise one's culture and religion in Canada freely and still be and feel fully Canadian. This social and political heritage is one that has made us a great place, a place where so many around the world long to come to live.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Mr. Speaker, there were several recommendations made by both the House of Commons and Senate committees in relation to this matter, recommendations that have been incorporated into the bill. Some of those recommendations by the House of Commons subcommittee include both provisions being extended for five years, that there be further parliamentary review before any further extension, and also that the bill clarify section 707 of the Criminal Code setting out the maximum period of detention for an arrested witness.

Moreover, the special Senate committee recommended from February 2007 that the annual reporting requirement also require the Attorney General of Canada to include a clear statement and explanation indicating whether the provisions remain warranted. That recommendation is included in the bill. An additional requirement would be that the Attorney General of Canada and the Minister of Public Safety must provide in their annual reports an opinion, supported by reasons, on whether these provisions should be extended. Other amendments made by the Senate to the former Bill S-3 have also been included.

Therefore, yes, we have taken those recommendations into account.

[Prof. Craig Forcese]

My comments on that issue relate to the recognizance with conditions provision, known colloquially as preventive detention. My assessment of this provision, which I think has been more or less confirmed through conversations with law enforcement, is that if this provision were used--that is, to detain someone pending the imposition of a peace bond--then the investigation would have come to an end. You have alerted the terrorist cell you're investigating that they've been discovered, all for the benefit of up to 72 hours of preventive detention and a peace bond, which doesn't amount to full-out incarceration.

It would be unpopular in relation to an ongoing investigation and perhaps very damaging to an ongoing investigation to use this provision. At best it would be used as a last-gasp measure. The law enforcement community, when it appeared in front of the Senate on Bill S-3, which is a prior iteration of this bill, indicated that it can't anticipate and foresee every eventuality and that it is possible that there would be circumstances in which this bill and the preventive detention provision might actually be useful. I can't exclude that possibility; it may well arise, but I think it would be a very unusual circumstance.

The other consideration, of course, is that once this matter comes to court, as it inevitably will, this is an open court process, so law enforcement would have to be prepared to disclose the evidence or information upon which it depends to justify the standard for the detention to begin with. That means it would be unwilling to use security intelligence or intelligence sources of any sort. We're talking about a range of circumstances in which law enforcement has given up on an investigation and is prepared to use potentially confidential information in an open forum. Because of that, for those two reasons, I think that this provision would be used very infrequently.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I am pleased to speak this morning to this important bill. I also am pleased to be back in the Chamber after a summer recess that was very successful in terms of democracy, of hearing from the public and of coming back here, as I think all parliamentarians have, with a joint sense that we must make this place work. We must make it more co-operative, more intelligent and more reasonable and open.

With that in mind, I am drawn to the comments of Andrew Cohen in this morning's Ottawa Citizen who said that backbench MPs and individual MPs have no power, have no independence, do not think, do not debate and pretty much are the stuff found under rocks. However, I beg to differ in a non-partisan moment.

In two days we will be voting on a backbencher's bill that has engaged all of the public one way or another in debate. Many current members in the House and those in past Parliaments have worked very hard and quietly on issues of importance to them and their constituents. Overall, with all due respect to question period and the reforms therein proposed and the highlights on the news every night from this Chamber during that time, it bears repeating that most of the serious work in Parliament is done in committee and in cross party, cross the aisle negotiations with respect to laws that hopefully make this country a better place and, as I bring it back to this debate, a safer place.

Bill C-17 is a perfect example of a bill that has been bandied about in various incarnations dealing with the security of the public, which is one issue that does not divide anybody in the House. We all want the public to be safe and we all want public security. We may differ, however, on the means to achieve public security.

The debate itself has been discussing two important tools. Whether we agree they are needed is the hub of the debate but it bears repeating as to what they are.

In response to threats of terrorism and in the period just after 9/11, there was much debate about what we would do if we were faced with future terrorist threats, attacks or rumours of attacks or threats to our country and to our people. It was not a unilateral decision but it was felt by this Parliament that two inclusions should be made to our over 100-year-old Criminal Code. For the people who wrote and enacted the Criminal Code in the 1890s, probably the nearest thing to a terrorist attack was the War of 1812 or the raid in St. Albans, Vermont in 1865. That was probably in the psyche of most of the people who wrote the code way back when.

Let us look back to 2001 to the communities like Gander, Newfoundland and Labrador, Moncton and Halifax that welcomed plane loads of people diverted by the terrorist attacks in New York, which we recently commemorated earlier this month. What was the mentality of the Canadian public and parliamentarians with respect to public security? Something needed to be done. As Canadians and parliamentarians, we felt under attack. We felt ill-equipped to handle the next perhaps imminent threat of terrorist activity. We as Canadians felt, because of concerns made known at the time, that our border was porous and that somehow we had something to do collectively in a remote guilt sense for the occurrences in New York and other places on that day.

Parliament, therefore, decided to inculcate the Criminal Code with two tools to be used if necessary, one being the investigative hearing. In the Criminal Code of Canada an investigative hearing would allow authorities to compel the testimony of an individual without the right to decline to answer questions on the basis of self-incrimination.

The intent would be to call in those on the periphery of an alleged plot who may have vital information, rather than the core suspects. These are the people on the periphery, who would have an overwhelming incentive to lie to protect themselves, the actual accused. It was an attempt, working in concert with CSIS and our investigative security-based individuals, to find out more information to prevent terrorist attacks and terrorist incidents. That was to be inserted into the Criminal Code of Canada, a very new provision.

The second new provision was the preventive arrest provision, allowing police to arrest and hold an individual, in some cases without warrant, provided they have reasonable grounds to believe that the arrest would prevent future terrorist activity. Those were introduced in 2004. In the context of 2001, the context seemed reasonable. The context was that we were protecting our community. We were protecting our nation.

There were many safeguards built in to those provisions, and I might add that it was a Liberal government that brought in these provisions, so I do not think it lies in anyone's mouth on any side to say that Liberals are not concerned with terrorism. This was Liberal legislation, and like all legislation that was new and that dealt with the collision between the need for public safety and the primacy of individual rights, it is the collective versus the individual. Like all of those debates and all those pieces of legislation, the collision always results in imperfection because no one goes home completely satisfied with the result.

The key part of the legislation was the so-called sunset clause. At the end of five years, the legislation would sunset and would be no more. The provision was put in place clearly because parliamentarians, particularly members of the Liberal caucus and members of the government, and committee reports and minutes are replete with speeches to this effect, realized that this collision between the public security goal and the private rights goal would result, potentially, into an intrusion into the latter, so they said, “Let us sunset it. Let us see if it is needed, if it is used wantonly, without regard for personal rights, if it is used at all, and if it can be interpreted by the courts or refined through practice”.

Many times we lob a ball into the air called legislation and really hope that the courts get a chance to interpret it, to get it right, one might say, but we do try to make legislation work. In this case, the sunset clause was allowed to sunset, despite attempts to bring the debate back to Parliament. At the very end of the time for the period to run out, a debate was held and the sunset clause was not removed, or the legislation was not permitted to continue, so we are without these tools. This is where we are today. This is the debate today, whether we should have these tools in our Criminal Code with respect to terrorism or suspected terrorism.

A bill which eventually worked its way through the Senate of Canada, with good recommendations from senators and Commons committees before that, a bill known as Bill S-3, correctly and accurately assessed the situation since the original enactment of these provisions. These provisions are found in the Criminal Code in sections 83.28, 83.29 and 83.3. These are the conditions for investigative hearings, which define at some length the modalities as well as recognizance with conditions and arrest warrants for the anti-terrorism legislation.

It is not just these three sections. It is a misnomer to think that we just put these three sections in. There are some 25 pages in section 83 dealing with terrorism. They deal with seizure of property and all sections that have not been challenged or rescinded. It is only these sections dealing with individual liberties that have been touched.

Bill S-3 made some improvements to the regime as it was. There was an increased emphasis on the need for the judge to be satisfied that law enforcement has taken all reasonable steps to obtain information by other legal means before resorting to this.

There was one key consideration: the ability for any person ordered to attend an investigative hearing to retain and instruct counsel. A person so apprehended should have the right to counsel of their choice. There were new reporting requirements for the Attorney General and the Minister of Public Safety who then must now both submit annual reports which not only list the uses of these provisions but also provide opinions supported by reasons as to whether the powers needed to be retained.

There should be flexibility to have any provincial court judge hear a case regarding a preventive arrest.

And, finally, the five-year end date, unless both Houses of Parliament resolve to extend the provisions further, would be put in; that is, another sunset clause.

These amendments made their way through Parliament and, at the risk of not having a completely happy audience, then the P word intervened and we were sent home to go through yet another election. That is sad. That is too bad. But that has been debated before. We know that we do not like prorogation, it interrupts our business, but we were on our way.

Remember now these provisions were put in and as I said, we often want to hear what the courts have to say about them.

Well, an important decision of the Supreme Court of Canada took place in 2003 and 2004. The hearing was December 2003 and the decision was in the middle of the year 2004. The court, made up of the current chief justice and almost all the existing judges now, with the exception of New Mr. Brunswick's Mr. Justice Bastarache, who has since retired, concluded that the provisions put in, particularly 83.28, investigative hearings, were constitutional, but there were a number of comments made in that decision which no one could take as a complete endorsement of the legislation.

While they upheld it, it is important, I think, to note that three justices of the Supreme Court, remember, one has left the court, dissented and found, for instance, using their language:

The Crown's resort to s. 83.28 [which was an investigative hearing] of the Criminal Code in this case was at least in part for an inappropriate purpose, namely, to bootstrap the prosecution's case in the Air India trial by subjecting an uncooperative witness, the Named Person, to a mid-trial examination for discovery before a judge other than the Air India trial judge.

They went on to say:

The Named Person was scheduled to testify for the prosecution in the Air India trial, but because the Crown proceeded by [a different method known as the] direct indictment, neither the prosecution nor the defence had a preliminary look at this witness [who was detained from the investigative hearing]. Section 83.28 was not designed to serve as a sort of half-way house between a preliminary hearing and a direct indictment.

What we have here are the players and the justice system ending up using a tool that was there for, quite frankly, maybe a different purpose. The players and the system had used a certain way of proceeding in a criminal case. They saw this tool lying on the shelf and they used it.

The court, in its majority, said, sure, we can do that because public security is the number one aim here. However, it did lead to the feeling that we, as parliamentarians, in sort of a renvoi or a send-back, have been told by the court that we did not draft perfect legislation when we drafted these pieces and it had been used somewhat indirectly for the purpose in question because of a prosecutor's choice to go a certain way, which I cannot second guess because the Air India trial was a very complicated matter, involving numerous informants of high publicity content throughout Canada. So, I cannot second guess the prosecutors, but they used it for a purpose that led three justices of the Supreme Court to say that is not what this was intended for.

The majority of the court, however, went on to say it is allowable, that section 83.28 does not violate section 7 of the charter and it does not violate section 11(b) with respect to counsel.

I find that a bit strange and I allow for the fact that because the person was not a person under arrest but a witness, by the clear letter of the law the individual would not have a right to counsel. I like the changes that have been submitted by the Senate, by members of the committee and the House that say yes, counsel of the choice of the detained person should be permitted.

We went further in the House and in the Senate than the majority of the Supreme Court that would have allowed such a use of section 83.28. In other words, we have improved, through the recommendations and now the bill being presented, what the Supreme Court thought was allowable with respect at least to the right to counsel.

The court said:

--a judicial investigative hearing remains procedural even though it may generate information pertaining to an offence...the presumption of immediate effect of s. 83.28 has not been rebutted.

It took the law of Canada to be serious. It took the tools in the tool box regarding anti-terrorism as serious and upheld the use of it, and we are down to numbers almost with respect to the Supreme Court, even when good, smart thinking, and now three members of the Supreme Court said it was misused, essentially.

Where are we, then, with the need for this legislation? There are opinions on either side, but let us remember the legislation originally introduced was to combat terrorism. Besides 9/11, which was traumatic for everyone in North America and the world, the prime instance of terrorism and trying to combat it resulted in or came out of the crash of Air India flight 182 and the following study of it by John Major, who was a former Supreme Court justice.

I know Liberals want to send it to committee and examine what was done with Bill S-3, the precursor acts. We want to put safeguards into any proposed legislation and keep the balance right between the need for public security and the primacy of individual rights. That is a given.

I told a little story about how we are interpreting laws based on the one instance of a prosecutor using a certain tool, which led the Supreme Court to say in a divided way, “Yes, it's okay, but you should be more careful than the committee improving the act”. The bigger picture that has been missing in the debate so far is what use is this if our security services do not talk to our police services and our police services are not in sync with the court officers who ultimately direct that this tool be used?

The report of John Major is very instructive in that regard because he says terrorism is both a serious security threat and a serious crime. Secret intelligence collected by Canadian and foreign intelligence agencies can warn the government about threats and help prevent terrorist attacks. Intelligence can also serve as evidence for prosecuting offences.

There is a delicate balance between openness and secrecy and that is what this debate is all about. We have to focus more on terrorism threats from the national security level than this tool, which the Supreme Court of Canada has already said is allowed.

Finally, I would close by saying that the member for Windsor—Tecumseh, on behalf of this party, said we do not need this because we have not used it. I have a sump pump in my basement and I may never use it, but if I have a flood I want to have that sump pump there. I want to be ready for something that may happen in the future.

For my dollar's worth, I think this should go to committee and we should look seriously at what the dissent in that Supreme Court judgment said, what the majority said and this time, with the benefit of its advice and the advice of John Major, we should get it right. We should have those tools on the shelf.

The members who say we do not need them should be happy that we do not need them because it means that we have not had a terrorist threat. However, if we have a terrorist threat, I want those tools to be on the shelf for prosecutors to use, if needed, to keep our country safe, which is the goal we are all here to pursue.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, I am pleased to take part in the second reading debate in relation to Bill C-17.

It is perhaps timely that this debate begins only days after the only man convicted in the Air India bombing, Inderjit Singh Reyat, was found guilty of committing perjury during the 2003 trial of Ajaib Singh Bagri and Ripudaman Singh Malik, who were ultimately acquitted of criminal charges arising from the Air India bombing. It is a sober reminder that terrorism has caused the death of hundreds of Canadians. Let us not forget the tragic total resulting from that mass murder, 329 passengers and crew, when Air India flight 182 was blown up in mid-flight, and two baggage handlers were killed at Tokyo's Narita Airport.

The hon. members of this House may recall that in November 2005, the Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness heard testimony from Maureen Basnicki, whose husband died at the World Trade Centre on 9/11, and from Mr. Bal Gupta, chair of the Air India Victims Families' Association. Their testimony was given as part of the parliamentary review of the Anti-terrorism Act. In his testimony, Mr. Gupta read into the record the following recommendations:

The Anti-terrorism Act should not be repealed or softened, and its provisions should be strengthened by closing loopholes...There will be more legal tools to compel witnesses to testify in terrorism-related cases.

At that time, the two powers that Bill C-17 proposes to reinstate, the investigative hearing and the recognizance with conditions, were part of the Anti-terrorism Act. They had yet to sunset. Later, according to newspaper reports, Mr. Gupta supported extending the life of these tools when Parliament was debating whether to extend them or to have them sunset in early 2007. As members know, they did sunset in 2007.

The Air India tragedy and the events of 9/11 remind us that when enacting anti-terrorism legislation for combating terrorism in a manner that has due regard for fundamental human rights, we must consider not only the rights and freedoms of those that may be accused of terrorism, but also the tragic human cost to terrorism itself, not only the deaths of or harm done to the victims, but also the harm done to their families.

I recently came across a study written by Professor Craig Forcese, which included the following quote from Mr. Justice Laws of the English Court of Appeal. It eloquently describes the difficult task facing legislators in this area. It is a long quote, but an important one, so I hope members will please bear with me. He wrote:

This grave and present threat [of terrorism] cannot be neutralised by the processes of investigation and trial pursuant to the general criminal law. The reach of those processes is marked by what can be proved beyond reasonable doubt...In these circumstances the state faces a dilemma. If it limits the means by which the citizens are protected against the threat of terrorist outrage to the ordinary measures of the criminal law, it leaves a yawning gap. It exposes its people to the possibility of indiscriminate murder committed by extremists who for want of evidence could not be brought to book in the criminal courts. But if it fills the gap by confining them without trial it affronts “the most fundamental and probably the oldest, most hardly won and the most universally recognised of human rights”: freedom from executive detention.

In light of these concerns, it is appropriate that any proposal to reinstate the powers of the investigative hearing and the recognizance with conditions should be subjected to rigorous review. It is right and proper that this bill should now be reviewed by this Parliament. In doing so, however, I would remind hon. members that this bill does not appear out of the blue. It is a culmination of efforts by previous Parliaments to seek to improve this legislation, including the parliamentary committees that reviewed the Anti-terrorism Act.

Bill C-17 was carefully drafted to respond to many of the recommendations made by both the Senate and the House of Commons committees that reviewed the Anti-terrorism Act. Not all recommendations were accepted but many were. In addition, a previous version of the Bill, Bill S-3, was reviewed by the Senate special committee on anti-terrorism, and as a result, further amendments were made. These are all incorporated into Bill C-17.

Further, I would add, there has also been a judicial review by the highest court of the land, the Supreme Court of Canada, of one of the two key tools found in this bill, the investigative hearing.

I wish to address much of the remainder of this speech to a number of criticisms made in the investigative hearing during that legal challenge and the court's response to them. Hopefully, this will give all hon. members a better understanding of the complex issues raised by this tool and how it was fashioned in a manner to protect fundamental human rights.

Perhaps the major argument against the investigative hearing was that it denied a person the right to silence and/or the right of self-incrimination. However, the court rejected this argument. After examining the robust protection against self-incrimination found in the then existing legislation, the court noted:

--the procedural protections available to the appellant in relation to the judicial investigative hearing are equal to and, in the case of derivative use immunity, greater than the protections afforded to witnesses compelled to testify in other proceedings, such as criminal trials, preliminary inquiries or commission hearings.

As well, in order to prevent possible future abuse, the court expanded the use and derivative use immunity protections beyond the scope of criminal proceedings to include deportation and extradition proceedings.

Another major argument was that the investigative hearing compromised the independence of the judiciary because it co-opted the judiciary into performing executive investigatory functions in place of its usual adjudicative role. However, the majority of the Supreme Court rejected this claim, arguing that:

The function of the judge in a judicial investigative hearing is not to act as “an agent of the state”, but rather, to protect the integrity of the investigation and, in particular, the interests of the named person vis-à-vis the state.

Another argument made was that the independence of Crown counsel was compromised because the Crown counsel's role became impermissibly intertwined with the police task of investigation. Again, the Supreme Court rejected this argument, pointing out that, in part:

--one may assume that by bringing Crown counsel into the judicial investigative hearing process, the legislature intended that the Crown would conduct itself according to its proper role as an officer of the court and its duty of impartiality in the public interest...The mere fact of their involvement in the investigation need not compromise Crown counsel’s objectivity, as the critical component is their own “necessary vigilance”--

Another argument was that the investigative hearing in the court challenge was that the judicial investigative hearing in the circumstances of this case served the improper purpose of obtaining pretrial discovery for the Air India trial. However, the majority of the Supreme Court of Canada rejected this argument, agreeing with the trial judge that its purpose had been predominantly investigative.

As well, in a companion case issued the same day, the Supreme Court held that the open court principle applies to an investigative hearing. It held that while the application for an investigative hearing should not be held in public, akin to the application for a search warrant where it comes to the investigative hearing itself, there should be a presumption of openness.

In reaching this conclusion, the court adapted the Dagenais/Mentuck test which had been developed in case law in relation to publication bans to the investigative hearing. The court acknowledged, however, that there could be circumstances where the presumption could be rebutted. It stated:

It may very well be that by necessity large parts of judicial investigative hearings will be held in secret. It may also very well be that the very existence of these hearings will at times have to be kept secret. It is too early to determine, in reality, how many hearings will be resorted to and what form they will take. This is an entirely novel procedure, and this is the first case — to our knowledge — in which it has been used.

To summarize, Bill C-17 builds upon the original provisions governing the investigative hearing. It builds upon them by adding additional safeguards, but the foundation remains the same. This foundation was examined by the Supreme Court of Canada in 2004 and was upheld to be constitutional. In our future deliberations about this bill, we should not forget that the investigative hearing has already passed the test of compliance with the Canadian Charter of Rights and Freedoms.

Let me now proceed to the recognizance with conditions provision. Unlike the investigative hearing provision, the recognizance with conditions power created in 2001 by the Anti-terrorism Act was never tested in the courts. However, it is based on the peace bond provisions found in other parts of the Criminal Code, albeit with modifications so that it can be used to disrupt nascent terrorist activity.

It is particularly with regard to the recognizance with conditions that the quotation from Lord Justice Laws that I used at the beginning of my speech is apt.

This is because it can be used in circumstances where the information obtained by the police gives rise to a reasonable belief that a terrorist activity will be committed, where there is insufficient information that could allow the police to arrest the person for involvement in a terrorism offence, but there are reasonable grounds to suspect that it is necessary to impose a recognizance with conditions on the person to prevent the carrying out of the terrorist activity.

Some have argued that this is too great an extension of the criminal law power. Let regular police powers apply, they argue, in which case they mean that the police already have the power to arrest someone who they believe on reasonable grounds is about to commit an indictable offence. However, the difficulty with this proposal is that it would severely restrict the ability of the state to prevent terrorism because it requires an “about to commit test” which reports the concept of imminent harm.

In contrast, the recognizance with conditions provisions found in Bill C-17 increases the ability of the state to take preventative measures to protect persons from terrorism, but it does so, in my mind, in a way that is consistent with the rule of law. Hence the need for a two-pronged test to be satisfied: a reasonable grounds to belief test, and a reasonable grounds to suspect test. Reasonable suspicion alone is not enough.

Moreover, I also point out that important accountability mechanisms are built into the provisions of this bill. Some of these are carried forward from the original legislation. First and foremost, the investigative hearing and the recognizance with conditions would be subject to a sunset clause which would result in their expiry after five years unless renewed by parliamentary resolution. As well, there would be annual reporting requirements by the federal government and the provinces on the use of these provisions. Although, in the case of the federal government, there would be an expanded reporting requirement.

In addition, these provisions would not be able to be used unless the consent of the appropriate attorney general is first obtained. This is true even in the case of a person who is arrested without warrant under the recognizance with conditions tool. While the peace officer in such a case would be able to arrest the person to bring the individual before a judge, he or she would still have to obtain the consent of the appropriate attorney general in order to lay any information before such a judge. This is a condition that must be satisfied before a hearing can take place to decide if a recognizance should be imposed.

Also provided for in the bill is a provision inserted by the Senate when it was reviewing a previous version of Bill S-3. Parliament must review these provisions prior to the date that they sunset. As part of this review process Parliament would be able to examine the degree to which these provisions had been used, successfully or unsuccessfully, and would be able to make a determination based on the available evidence as to whether or not these provisions would continue to be needed.

I believe all of us in this House believe that terrorism should be combated. For those who believe that the existing criminal law is sufficient to combat terrorism, I respectfully disagree. I believe events both outside and inside Canada, such as the recent convictions in the Toronto 18 case and the recent arrests in Toronto, show that the threat of terrorism is an ongoing concern and that there is a need for the tools of the investigative hearing and the recognizance with conditions.

However, I also recognize that in order to combat terrorism successfully these measures must be crafted so as to ensure adequate protection of fundamental rights. By examining the decisions of the Supreme Court of Canada in relation to the investigative hearing, I hope I have dispelled the concerns that it violates fundamental human rights and basic notions of fairness. Indeed, I would ask all hon. members to reflect on the fact that Bill C-17 improves upon the safeguards found in the original legislation. I urge all members to support the passage of this bill.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Madam Speaker, this is indeed an important matter on which to speak.

I expressed some of my frustration in the question, and perhaps I will come back to it for a moment. If we go back to 2007, when we were considering this whole matter, it was our party, along with other opposition parties, that said we needed to work collaboratively and as quickly as possible to find solutions to ensure that police had appropriate powers but that we struck the right balance.

At the time, the government was all over us saying that if action was not taken immediately, the end was nigh and this would open the doors to all kinds of threats. It attacked us for even daring to ask questions or suggest that the matter needed to be studied appropriately.

Immediately, after the hue and cry about the urgency of how important it was, it disappeared from the radar. Off it went for a long period of time until it suddenly became enormously urgent again when the government re-introduced it in March 2009, again with much fanfare, saying that this was incredibly urgent. Two years had passed and it had done nothing, but suddenly now it was deeply urgent and a matter of national security that we did something immediately and with next to no debate.

Then the government forgot about it again for a while. We debated it in June. We ended up having a prorogation, which killed that bill and many others, and off it languished yet again.

Here we are some three years later, dealing with this bill. Again the government tells us it is urgent, essential and must be dealt with immediately. It just does not wash. It would appear the government is using the timing of the bill more as a distraction than having any genuine interest in getting something done. The Standing Committee on Public Safety and National Security should have been looking at this issue years ago and having detailed indepth conversations, which we were told we did not have the time to have.

This is a fundamental problem I have with the government. It raises an issue that it says is of such urgency and no one can ask any questions. It wants to ram it through and does not want us to ask any questions. It even questions our patriotism if we ask questions as if somehow we are soft on terror because we want to strike the appropriate balance. Yet the government takes three years on the very same thing that it said was so urgent. All we asked for a few months to have expert witnesses in front of a committee to ensure we got it right.

Why is it important that we get it right? There is such an important balance between collective security on the one hand and individual freedom on the other. On the one hand, every one of us, down to every last single Canadian, wants to ensure that if there is something that puts the country in immediate peril, the police officers have every reasonable tool at their disposal to dispose of that threat safely, to ensure that public safety is maintained and that collective order is preserved.

Of course we want police officers to have those tools, but we want to ensure they are only used in the most extraordinary of circumstances with the most rigorous of oversight and that it is never abused.

This leads us to the second point. This whole process of standing in Parliament, of asking questions, of having committees is about a process of protecting those individual freedoms as well, ensuring we do not go so far in the name of collective security that we erase our right as individuals to have freedoms.

Is that not the thing terrorism looks to erase in the first place? Is it not the very fundamental thing it is looking to destroy?

If we accept provisions without caution and we end up going too far, then we have situations like we had with Maher Arar, or Mr. Nureddin, or Mr. Almalki or Mr. Abou-Elmaati, individuals who got caught up in a system that went too far, that cut too many corners when it came to intelligence and ended up destroying the lives of innocent citizens.

When we have this debate, let us have it rationally, let us have it carefully and ensure we get it right. I certainly hope it is going to finally come to committee and that this is not just another opportunity to obfuscate and distract.

In that regard, when the justice minister congratulates the House leader, I am decidedly less optimistic that the reason it is before us today is because the government is suddenly excited for renewed action. I think it has a lot more to do with a very bad summer.

It is important to talk about from where the bill and the provisions came.

After 9/11, the Liberal government passed the Anti-terrorism Act, the package of measures, including Criminal Code amendments, to combat terrorism and terrorist activity. The act attempted to balance those measures with respect for Canadian values, fairness and human rights. Two new powers in the act, investigative hearings and preventive arrests, were considered sufficiently intrusive and extraordinary that a specific five year sunset clause was applied to them alone. The sunset clause was a Liberal caucus priority.

In October 2006, a subcommittee of the Standing Committee on Public Safety and National Security recommended extending the sunset clause, while also amending the Criminal Code to restrict the scope and application of investigative hearings and preventive arrest. The sunset clause came due on March 1, 2007. The Conservative government then introduced a motion to extend the provisions for a further five years, but in February 2007, the Liberal opposition, as well as the Bloc and the NDP, voted to allow clauses on investigative hearings and preventive arrests contained in the original Anti-terrorism Act, brought forward in the immediate aftermath of September 11, to sunset.

At the time, Liberal opposition offered to work with the Conservative government to find reasonable and effective improvements to anti-terrorism laws that would strike an appropriate balance between safety and protection of rights. After the defeat of the clauses, the government introduced legislation in October 2007 that would have brought back the two clauses with additional safeguards. It required law enforcement officers to satisfy a judge that they had used every other method to get information that they needed. It also required the attorney general and minister of public safety and emergency preparedness to report to Parliament on a yearly basis, explaining their opinion as to whether these provisions should be further extended.

It is important to note that most of these additional items that came forward were as a result of the Senate, and particularly Liberal senators who sought to improve the protection of individual freedoms in this matter. Most of those recommendations were contained in Bill S-3.

I will run through some of the important highlights of the improvements that were suggested to get the right balance: first, an increased emphasis on the need for the judge to be satisfied, as a mentioned before, that law enforcement had taken all reasonable other steps; second, the ability for a person ordered to attend an investigative hearing to retain and instruct counsel, something that previously had not been in place; third, new reporting requirements for the attorney general and the minister of public safety, who must now submit annual reports which not only list the uses of these provisions, but also provide an option supported by reasons as to whether these powers need to be maintained; fourth, the flexibility to have any provincial court judge hear a case regarding a preventive arrest; and last, a five year end date, unless both Houses of Parliament resolved to extend the provisions further.

I do not accept the argument that is posited by some that because these provisions have not been used with great frequency, that they do not have purpose. We have to be cautious to dismiss this just for that reason. There has to be a lot more than that. Clearly, these clauses should only be used in extremely extraordinary situations and we would expect and hope that if they were used, it would be an extremely rare occurrence. That unto itself is not enough to not support the bill.

I am, however, concerned with a couple of items and I they are items that we will have to explore at committee. One is oversight. We have to look at whether or not once every five years is an appropriate length of time under which to review this. We also have to look at the provision that would only have one of the Houses of Parliament review the bill.

We saw in this case, after the sunset clauses came, that the Senate did great work and was able to be very instructive with a number of recommendations that are now a key part of the bill and a key part of the debate. I would suggest that a review, perhaps, by both Houses of Parliament would also be appropriate.

I am concerned as well about the broader issue of oversight and particularly with how intelligence oversight is left right now. It would be inappropriate to have this debate without mentioning the fact that the government has completely ignored most of the key recommendations that came from Justice O'Connor, which were supported by Justice Iacobucci and were repeated by the RCMP Public Complaints Commissioner before he was let go because he criticized and did a good job. That is what the Conservatives do with people who do a good job of criticizing. These recommendations were repeated over and over again, saying that our security and intelligence services did not have adequate oversight, that it had led to major mistakes and that there was an incredible need to reform them.

If we are going to proceed with giving additional powers on the one hand, how can we proceed without dealing with these problems of oversight? Just as an example, the RCMP public complaints commissioner, Paul Kennedy, and again, he was the public complaints commissioner, issued a great number of concerns about the fact that he could only investigate something if there was a complaint made to him. If he had concerns, he could not proactively investigate. If he wanted to get information, he could not compel that information. He could sort of ask, pretty please, for that information to be granted to him. If it moved outside of the RCMP, since most things involving intelligence are multi-agency and therefore involve many different departments, there was no ability for him to track that bouncing ball as it moved through different departments.

There were a number of recommendations I mentioned that said that we have to fix this. We have to make sure that when we have oversight, there are no dark corners we cannot look into. There has been a further recommendation that we need to make sure that we have a committee of parliamentarians that is empowered to look at documents and information to make sure that the law is being upheld and that individual freedoms are being respected. That, right now, unfortunately, has also been ignored by the government.

These recommendations, by the way, were not made last week. In some cases, they go back four years or slightly longer, which is almost since the inception of the present government. It is not that the government came forward and said that it disagreed with them and that these were bad ideas. No, in fact, the government came forward and said that it agreed and would implement them immediately. Apparently we have a different definition of immediately. Immediately for me would have been four years ago. For the government, it is apparently just a tactic to stall and to put off forever.

However, certainly at committee, and now, we have to demand that change in oversight. We cannot have agencies such as Citizenship and Immigration Canada or the Canada Border Services Agency, for example, that have absolutely no oversight whatsoever and continue to talk about granting new powers in the absence of fixing those problems.

The other issue I am concerned about that is important to mention is that the government will have to understand that the Canadian public and Parliament have a tough time trusting when it comes to matters of security and intelligence. Conservatives might have got away at the beginning, when they were a new government, as they called themselves, with people taking them at their word, “don't worry, we have things covered”. However, simply mentioning the words “terror” or “security” does not give them a free pass, not anymore, because we have caught them too many times when they have been less than direct with Parliament about what the facts are.

A specific example, as we know, is when Mr. Colvin came forward with concerns about the way detainees were treated in Afghanistan. Instead of turning and looking at those and having a proper investigation of what he raised as issues, the Conservatives attacked his personal credibility and attacked him personally. They then followed that up by trying to shut down Parliament's ability to take a look at the documents. It came to such a point that there was a crisis in the House, something that had to be determined by the Speaker. There was the whole Westminster system of parliamentary democracy he was looking at to rule on the fundamental right of Parliament to know the truth, to look at documents, and to demand information. Fortunately, the power of Parliament was upheld, but the very fact that the government would try to close down access to that information is deeply concerning.

When the government asks for more powers, to let it have more ability to do things without scrutiny and to just trust it, it will have to understand that there is a great deal of reticence to do so because of that history. There is a great deal of disbelief that it will fix the problem of oversight, because the pattern, as I mentioned earlier, and I am going to go through it specifically now, has not been to respond to thoughtful criticism with thoughtful answers or with review and reconsideration. It has been to go on the attack, to fire, to discredit, and to try to obliterate opponents as opposed to trying to actually respond to their concerns.

We saw Linda Keen, of the Nuclear Safety Commission, who came forward and expressed a number of concerns and disagreed with the way the government was proceeding. She found herself fired. I mentioned Paul Kennedy, someone who did his job with tenacity. I think anyone would have a tough time criticizing the work he did. He was critical of the government, because he kept pushing the Conservatives to make changes that he knew had to be made, reforms such those in the Brown report, which came out of the RCMP pension scandal, or the recommendations dealing with tasers that came from the disaster that happened with Mr. Dziekanski.

They were ignored. In fact, not only did they ignore him, but when he became more vocal and more concerned and more passionate in his plea to have something done, he was fired.

The victims ombudsman, who came forward and said that the government's approach to crime is unbalanced, will not work for victims, and is the wrong approach, found himself fired.

The military ombudsman spoke out on behalf of military men and women and criticized the government. The government often lauds what it supposedly does for the military, yet we had a military ombudsman criticizing it and saying that changes are needed, that there are things that are grossly unfair. People who are coming back from serving their country are not being treated fairly. The government responded by firing that individual. The public complaints commissioner for the military was also fired.

We know that Marty Cheliak, who was head of the Canadian firearms program, went across the country passionately speaking about how the gun registry saves lives, how it is an essential tool for police. He was pleading with the government not to destroy it, not on a partisan basis but on a basis of fact and truth. He was fired, gotten rid of.

Therefore, I am sure that the Conservatives can understand why opposition members and Canadians are reticent to just hand over new powers to them, carte blanche, and trust them. We do not, and those are some of the very many reasons why.

There is an issue, though, beyond trust and the way the government tries to hide things and fires people or discredits, attacks, and maligns those who would have the courage to speak truth to it. It is also a function of incompetence.

One can look at how it has handled other matters that dealt with security. Let us take the G8 and G20. Here was an opportunity for Canada to host the world. It was at a time when the meetings were going to be on austerity, on the need to rein in spending, on the need to find a way to deal with an international debt crisis. It certainly would have been a great opportunity to show leadership, to hold the meetings in a place that was easy to secure and to make sure that the meeting costs were toned down and that the focus was on policy and substance.

Instead, the government first tried to shove the entire thing into a cabinet minister's riding where it would not fit, and then it realized that it could not possibly manage it. The government then split it in half and tossed half to Toronto, basically telling Toronto, seconds before it was dumped on it, “You are going to be hosting world leaders in a downtown core in a security nightmare. Good luck to you”.

The government divided it up and completely mismanaged it. It showed no ownership of its mistakes. It did not come forward and say that we need a protocol going forward to make sure, for international meetings, that we have, basically, rules nailed down on who is going to lead and who is going to take responsibility. Instead, fingers pointed everywhere but at itself, and it said good luck to everyone.

Meanwhile, Toronto was left with just a complete disaster, something that unnecessarily portrayed the city in an incredibly negative light , something that could have very easily been avoided. Of course, we all know the price tag. It was well over $1 billion, probably more than even the $1.3 billion that is being reported right now, for what turned out to be nothing more than a photo op and a black eye for Toronto.

However, it does not end there.

I spent the summer touring across the country, and one of the things that really struck me was how deeply offended many of the communities across the country are by the comments of Mr. Fadden, comments that cast aspersions upon Canadians and upon their citizenship. He treated them like second-class citizens, with no proof and no explanation. The government so terribly mishandled the situation with Mr. Fadden. Now the Chinese community and others are left with a growing cloud of suspicion that hangs over them, no ability to clear it, and no promise that it will be.

How the government handled Mr. Fadden, how it handled the G8 and G20, how it is handling the gun registry, which I am going to talk about tomorrow, so I will not today, and how it has dealt with issues generally when it comes to security intelligence, tells us that it is incompetent and that to hide that incompetence, it tries to shut down any dissent or any other voices.

For that reason, we are going to have to be very careful with this on the committee, and very careful with the government as we go forward in this House.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

moved that Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

Madam Speaker, I am pleased to rise and speak at second reading to the combating terrorism act, Bill C-17.

In that regard, I have to thank the hon. government House leader for putting justice legislation first on the list. I know that is in accord with his own thoughts and priorities. I just want to tell him how much I appreciate that this is the first bill before Parliament in this session and thank him.

I am pleased to lead off the debate on a vital piece of the government's national security legislative agenda: Bill C-17. This bill, with which many members are familiar, seeks to reinstate, with additional safeguards, the investigative hearing and recognizance with conditions provisions that sunsetted in March 2007.

This government has put national security and, in particular, anti-terrorism at the forefront of its agenda.

In the March 3, 2010, Speech from the Throne, the government committed to taking steps to safeguard Canada's national security, maintaining Canada as a peaceful and prosperous country and one of the safest places in the world in which to live. This is our goal. The proposals in this bill represent one significant step in the right direction.

There is somewhat of a history in this place on these powers. These provisions were first introduced in the Anti-terrorism Act in December 2001 and were subject to a sunset clause. Members will recall that the ATA also contained a mandatory parliamentary review component, which led to two separate reviews: one by a Senate special committee and, in this place, by two subcommittees, the last being the Public Safety and National Security Subcommittee.

As the committees were winding down their review of the ATA, including the investigative hearing and the recognizance with conditions powers, the sunset date on these provisions was fast approaching. As a result, the government introduced a resolution in the House of Commons that proposed to extend these provisions for three years. Unfortunately, the powers were not extended by a vote of 159 to 124 and the provisions, therefore, expired on March 1, 2007.

It is important to recognize that the reports published by the parliamentary committees that reviewed the ATA were generally supportive of the powers contained in Bill C-17 and called for their extension.

Since that time, attempts have been made by this government to reinstate these important tools.

First, Bill S-3 was introduced in the Senate in the 39th Parliament and contained additional safeguards and technical changes to respond to the recommendations of the committees reviewing the ATA.

The Senate passed Bill S-3 on March 6, 2008, with a few amendments, but it died on the order paper when the election of 2008 was called.

More recently, in the last session of Parliament, this government again made efforts at bringing this important piece of legislation back to life, through Bill C-19. Bill C-19 contained the amendments made by the Senate to the former bill.

In summary, these were making mandatory a review of these provisions by a parliamentary committee within five years; deleting some words in the recognizance with conditions provisions to track charter jurisprudence; and making a technical amendment for consistency.

These changes are also now found in Bill C-17. I want to make that very clear. They are all there in this piece of legislation.

With that short history, let me turn to an explanation how the investigative hearing and the recognizance with conditions provisions of this bill would operate.

What will become very clear, as I described these proposals, is that they would achieve the appropriate balance between the respect for human rights without compromising effectiveness and utility.

First, with the investigative hearing provisions, the courts would be empowered to question, as witnesses, those persons who are reasonably believed to have information about a past or future terrorism offence.

The key here is that the person required to attend an investigative hearing is treated as a witness, not someone who is accused of a crime. It is important to note that witnesses could be questioned under this scheme without the commencement of any prosecution.

Earlier, I noted the balance between human rights and security. In this regard, the investigative hearing provision would be equipped with numerous safeguards for witnesses in accordance with the charter of rights and the Canadian Bill of Rights. I would like to set out a few of these safeguards so that all hon. members can get a sense of the careful attention which our government pays to issues of this type.

First, the attorney general must consent before the investigative hearing can be initiated.

Second, an independent judge must agree that an investigative hearing is warranted, finding in particular that it is believed on reasonable grounds that a terrorism offence has been, or will be committed, the information concerning the offence or the location of a suspect is likely to be obtained as a result of the order, and in all cases, reasonable attempts have been made to obtain the information by other means. Previously, this safeguard only applied to future terrorism offences and not past ones.

Third, section 707 of the Criminal Code, which sets out the maximum period of time in relation to which an arrested witnesses can be detained at a criminal trial, would apply to a person arrested to attend an investigative hearing. This is a new safeguard that is added to Bill C-17, something that was not in the original legislation.

Fourth, the person named in the investigative hearing would have the right to retain and instruct counsel at any stage of the proceeding.

Finally, there is a robust prohibition against the state using the information or evidence derived from the information against the person.

It is important for all members of this place to know that in 2004 the Supreme Court of Canada ruled that the investigative hearing was constitutional having regard to the safeguards that existed at that time in a case called “Re: Application under Criminal Code s. 83.28”.

Therefore, I think all members would agree that the safeguards set out in Bill C-17 in relation to the investigative hearing are robust, effective and reasonable.

Now let me return to the recognizance with conditions provisions of the bill. The recognizance with conditions proposal would permit the court to impose on a person such reasonable conditions as the court considers necessary to prevent terrorist activity. This would prove to be a vital tool in efforts at keeping Canadians safe. As I set out in the various components of the recognizance with conditions scheme, I would ask hon. members to take note of the numerous safeguards contained within the proposal.

Under the proposed bill, before a peace officer is able to make an application to a judge for a recognizance order, again the consent of the attorney general would have to be obtained. A peace officer could lay an information before a provincial court judge if the peace officer believed on reasonable grounds that a terrorist activity would be carried out and suspected on reasonable grounds that the imposition of a recognizance with conditions on a person or the arrest of the person would be necessary to prevent the carrying out of the terrorist activity. This would be the legal test to be met in order to obtain the judicial order to compel a person to attend before a judge.

Under this proposal judges would be able to compel a person to attend before them for a hearing to determine if a recognizance would be imposed. Now the bill proposes a very limited power to arrest without warrants, the purpose of which is to bring a person before a judge so that the judge can exercise his or her power of judicially supervised release.

This power can only be exercised in two situations as follows: first, is where a peace officer has the grounds for laying an information before a judge, but by reason of exigent circumstances it would be impractical to lay an information and the peace officer suspects on reasonable grounds that the detention of the person is necessary in order to prevent a terrorist activity.

The second is where and information has already been laid as a summons issued by a judge and the peace officer suspects on reasonable grounds that the detention of the purpose is necessary in order to prevent a terrorist activity.

For example, suppose that a peace officer has the requisite grounds to lay an information before a judge. However,he or she also learns that the terrorist suspects are planning an imminent terrorist attack and the person is about to deliver material that could be useful in making, for instance, an explosive device. In such an example, the peace officer could reasonably suspect that it is necessary to detain the person and bring him or her before the judge in order to prevent the delivery of the material and therefore the carrying out of the terrorist activity.

The bill sets out that in cases where the person has been arrested without a warrant under the recognizance with conditions provisions, that person cannot be detained for more than 72 hours. In the end, if in the opinion the recognizance is not warranted the person will of course be released.

It is important to note that if a person refuses to enter into a recognizance when ordered by the court, the judge can order the person's detention for up to 12 months. This is a significant power but I am sure one that is understandable in the circumstances given the seriousness of the harm that could be caused by the commission of a terrorist offence. Moreover, it is a power found in other peace bond provisions of the Criminal Code.

For both the investigative hearing and the recognizance with conditions powers, the bill would require annual reporting on the use of these provisions. While annual reporting requirements existed in the original legislation, this is an important change that is found in Bill C-17. In response to a recommendation from the Senate committee that reviewed the ATA, the bill proposes that both theAttorney General of Canada and the Minister of Public Safety provide their opinions, supported by reasons, as to whether the operations of these provisions should be extended. This is an open, transparent and sound reporting mechanism that is being proposed.

One of the benefits of having extensive reviews and debates already to have taken place on these provisions is that one is able to anticipate questions or concerns that may be expressed. I will not attempt to address some of those issues.

Some may take the position that these provisions are not necessary since they have been rarely used when they were in force if at all. However, this argument is premised on the view that since these powers were not used in the past that they will not be needed in the future. In the face of continuing terrorist attacks around the world, this logic is, to say the least, questionable. Neither I nor do I suspect the members of the House have the power to predict the future. Therefore it is imperative that we as a country have the mechanisms necessary to respond to a terrorist threat and that we give our law enforcement proper tools to do so. This is what Canadians rightfully expect.

It is certainly true that when these powers were previously in force for five years, to our knowledge the investigative hearing power was invoked only once and never in fact held. On that occasion, the Supreme Court of Canada considered the investigative hearing scheme and found it to be constitutional. To my knowledge, the recognizance provision was not used at all.

I suggest that this is clear proof, not that these powers are not needed, but rather that Canadian law enforcement is prepared to exercise restraints when it comes to using these powerful tools.

I would like to restate that the recognizance provisions cannot be imposed solely on the ground of reasonable suspicion. The bill would require that the police officer believes on reasonable grounds that a terrorist activity will be carried out and that he or she suspects on reasonable grounds that the imposition of a recognizance with conditions is necessary to prevent a terrorist activity. This is a significant threshold and not one based on mere suspicion.

Some have argued that the Criminal Code already contains similar provisions that could be used for terrorism related offences, such as Section 495(1)(a) and Section 810.01, and that accordingly these provisions are unnecessary. Section 495(1)(a) in part allows a police officer to arrest without a warrant a person reasonably believed to have committed an indictable offence or about to commit an indictable offence. What this argument fails to realize is that the arrest powers in that section apply to a much smaller class of persons than those who would be covered under this bill.

Similarly, the peace bond provisions that I talked about earlier target only potential perpetrators of offences themselves, the actual person doing it. Provided the criteria or the recognizance with conditions are met, this bill would apply more broadly to persons who could not be arrested for terrorism offences in order to disrupt the planning of terrorism. I think all members of the House would agree that this is a class of persons who must, in order to save lives, be subject to a form of judicially supervised release.

We all know that terrorism is not a new phenomenon. Since the attacks on the United States in September 2001, the world has witnessed numerous acts of terrorism but, more important, as the recent guilty pleas and convictions in terrorism cases in our country have shown us, Canada is not immune to the threat of terrorism.

We as a government and as parliamentarians have a responsibility to protect our citizens. In doing so, we must provide our law enforcement agencies with the necessary tools to achieve that objective. It is equally our responsibility to do so in a balanced way with due regard for human rights. That was our goal with this reform and I believe that we have achieved it.

The investigative hearing and the recognizance with conditions powers are necessary, effective and reasonable. I call upon all parties to work together to make Canada a safer place to live, work and thrive.

Criminal Code

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, it is my pleasure to speak to the bill. I have the objective to cover a number of topics that I think might give us the full picture.

Too often in the House, we talk about specific legislation. We call it “C-19” or C-whatever. We talk about clauses in bills. We talk about the black letter law and the fine lines. All too often, it must be lost on the Canadian citizenry, stakeholders such as law enforcement officials and attorneys general, et cetera, and all of us that there is a wider context and broader scope.

Today, we are essentially discussing aspects in the Criminal Code of Canada. I have said a number of times that a great way to get Conservatives on our side is to say that one of the best things they ever did as a party was to have a bright Maritimer, a former prime minister and minister of justice, Sir John Thompson. In 1892, when he was the minister of justice, he collated and wrote the Criminal Code of Canada, many years after we became a country. The hon. member from Scarborough has said it maybe it was one of the last goods things they did. That is probably unfair, but it history will judge.

The point is we live with the Criminal Code. The fact it was enacted it in 1892 and has never really had a wholesale revision of it means that we keep adding things to it. We keep adding layers to the Criminal Code. One of the layers we enacted in the wake of 9/11, the terrorist attacks on North America and our security and sovereignty as it was felt then, was section 83.1, a separate section on terrorism. It became law on January 17, 2002.

This was the context where we said that we would take 24 pages of the code and dedicate it to anti-terrorism tactics and legislation. It is a good place to start, because I have mostly been hearing a bit of a repetition from the Conservative side of the fine points about anti-terrorism legislation and how we have to shore this up because we kind of lost the boat in 2007. We have to clean this up and stop the leaks. It is only two subsections, which is a very small part of the 30 pages.

There has not been a wholesome discussion of what we did in 2002 in reaction to the terrorist attacks of 9/11. However, what I have heard all day from members of the opposition is the supposition that the Criminal Code takes care of all criminal activities and that there should not really be a special circumstance for acts of terrorism, that other parts of the code protect individual liberties. Criminals are people accused of crimes. They say that these should be good enough and that we should not have a special section on terrorism.

There is a lot written about how we reacted as a country and as Parliament to the acts of 9/11. There may be a thought after the passage of time that we overreacted with respect to the intrusion upon individual liberties and rights as defined in the charter. That will be a judgment of history. I do not think events are written into history in three, five or ten years. As they say, history is often written by the winners, but history is also often written when the winners and losers are long gone. The judgment of history will decide whether there were overreactions in North America or the western world with respect to 9/11.

However, when we look at the context of section 83.1, we can see that it is written fairly broadly and fairly comprehensively to take international situations into account. I do not think it can be said that the whole of section 83.1 was an overreaction that went too far. I have yet to hear the opposition parties say that the section 83.1 should be thrown out. I take it as an admission that the other opposition parties feel section 83.1 is worth keeping.

I think of my friends in the Bloc, particularly my friend from Hochelaga, who rail against certain sections of 83.1, in particular the recognizance preventive detention sections, which are the crux of the debate today. It is very curious that at the justice committee, he was the very member who brought forward the motion to suggest we should list organized crime organizations as outlawed associations and further our work in battling crime. It is a sure analogy because that is the very thing we did in section 83.1. By cabinet decision, by Governor-in-Council, there can be a scheduled list of terrorist groups, which then is made to apply to this part of the Criminal Code.

The member from the Bloc, who was extremely eloquent in defending his position, undercuts himself when he says that we should do this domestically in the Criminal Code, buttress section 467.1, which is the organized crime part of the code, with a legislated listing or organized crime associations, just like we did in 2002 with terrorist organizations.

I am a little concerned that opposition members are perhaps overreacting to legislation, the bulk of which heretofore they have not objected to.

I have a word on organized crimes. It is not an advertisement for the upcoming justice committee hearings, but it is worth noting that we spend 26 pages in the Criminal Code on terrorism and we spend 4 pages on organized crime. Currently we are trying to move organized crime into the terrorism section 83.1 by perhaps naming organizations and buttressing that section. If we are talking about organized crime, we can go to section 467.1 and say that this is what Parliament intended in dealing with this specific problem.

There is great recognition in the House that there is a specific problem when it comes to organized crime. Unlike what my friends in the other opposition parties are saying, it is not all found elsewhere in the Criminal Code. We are not talking about simple assault or murders. We are talking about murders, assaults and harm done by criminal organizations.

It is easier for us to understand that because we know about criminal organizations, drugs and crime. We see it every day. We see there are not enough prosecutions to keep up with the crimes. It is in front of us and it is in front of our constituents. It is open, it is notorious and it is there to see. Therefore, we see the need for that.

In the months after 9/11 we saw the need for section 83.01. As I say, I do not think there has been a backtracking on the need for a separate section on anti-terrorism legislation.

Like all reviews of legislation and like all needs for legislation, from time to time it is important to look back and see whether we overstepped. I am not saying that this would be part of the debate today, but an act of terrorism is defined in section 83.01, as many of those definitions are defined by universal declarations. I will not go through them all. They have been well pounded out by international organizations, declarations and conventions. They are all there. The definitions are clear. However, they are also for acts or omissions in or outside of Canada.

It was groundbreaking for this part of the code to take into account acts or omissions that took place offshore. It was very vital for us to treat terrorist offences differently in that way so we could have extraterritorial jurisdiction. However, it goes on to say that these acts are committed in whole or in part for political, religious or ideological purpose, objective or cause.

I know a number of lawyers who have been involved with some very high profile cases, including none other than the member for Mount Royal. They have suggested that the phrase, which precurses the debate of the sections we are getting into, may be a bit wide.

If we think about it, in organized crime we do not get into the ideological, political or religious reasons why organized criminal organizations open up chop shops or grow marijuana for the currency in the drug trade, corrupting our youth with respect to illicit drugs. We do not much care about that. We care about the fact that they are organized, they have targeted groups and they harm people by various crimes that would otherwise be in the code.

It is similar with respect to terrorism. We might say that ideological purpose drives a person to be a suicide bomber, and I understand that, but in this day and age, in our country of pluralistic values, the word religious hits a button, which I think is objectionable. The fact that it does not exist in the patriot act would tell us that the Americans bill of rights will not countenance it.

If we had to gauge reactions to 9/11, probably the American response was a little more reactive than ours. Again, history will judge that. I say that as a precursor because I know the influence for a lot of this legislation may be British in origin.

The British Parliament in its legislation, as it does not have a code, has been reactive to terrorism for a lot longer. It has some of the best crack units in anti-terrorism and some of the best intelligence gathering because of its longer experience with terrorist activities, which, in the main, were caused with the “problems” in Northern Ireland. Again that went back to the thought many years ago that this was only a religious problem. That is something at which we might want to looked.

Remember we are talking about the last three or four pages. With respect to the bill itself, the first 20 or so pages talk about the special powers that might be given to judges and prosecutors to amass evidence and property. As section 83.03 says, providing or making available property or services for terrorist purposes is an offence. There is the whole section of establishing the list.

There is the admission of foreign information obtained in confidence, which would not necessarily apply to a domestic crime. This is why section 83.1 is needed. There is the freezing of property, which again is a special element of the anti-terrorist campaign to get rid of parts of the Criminal Code. There is immunity from disclosure. There are audit powers that are necessary for the incursions into terrorist organizations. There are restraint and forfeiture of property applications that fill this part of the section. There are forfeiture provisions unaffected and participation in an activity and terrorist group, which are the collateral named or delineated offences.

There are a number of activities of harbouring and concealing terrorists, the instructing to carry out a terrorist activity if the individual is not the actual person involved, before we get to the debate about investigative hearings and the arrest warrant for detention in aid of that.

The Canadian public should know, and parliamentarians should keep reminding themselves, that we have no intention of getting rid of section 83.1, the whole terrorist part II.1. Not a speaker rose and said we should get rid of that.

The so-called sunset provision would maybe let the public feel or some people think that we have not had a lot of incidents, that maybe we do not need this heavy-handed tool, therefore the whole Anti-terrorist Act regime in this part of the code will go out. It is not part of the debate today.

We are talking about two provisions of the legislative agenda and whether they should be returned to the code and looked at on an annual basis, as the amended act says, and reviewed. Also it should be looked at within the view of terminating it within five years, another sunset provision.

The investigative hearings, in particular, have been tested by the Supreme Court of Canada. That is another thing I did not hear much about in the debate today. In the 2004 decision of the Supreme Court of Canada, Bagri, sections 7 and 11(d) of the charter were declared not to have been violated by these sections of the code.

This is now 2009. Five years ago, and two years after the enactment, those sections have been declared, without further challenge in five years, to have been compliant with the charter. We are now debating whether they should go back in. One reason is there have been improvements to the deleted or the sunsetted provisions by virtue of the work of the House and the other House.

Bill C-19, replaces, in the two section I want to talk about, the pith of the debate, sections 83.28 and 83.3 of the Criminal Code. These call for an investigative hearing to gather information for the purposes of an investigation of a terrorist offence and to provide for the imposition of a recognizance with conditions on a person to prevent him or her from carrying out a terrorist activity.

This act that has been brought in also provides that these sections cease to have effect for the possible extension of the operation.

All parties in this House take the protection of rights very seriously. On the other hand, there is a collective right in favour of protecting national security. There is the collective right of Canadians in every province and territory to feel that we have secured our boundaries, that we are going to act preventively, hopefully, and at least reactively, to measures that are undertaken by terrorist groups to destroy our country. I have to think that is a primordial national value shared by all parties.

Obviously the question in the debate today is the question of balance. How much infringement on individual rights will be tolerated for the protection of the collective right in favour of national security?

What is encouraging about this bill, as opposed to the last time we debated whether these two provisions should sunset or not, is that the government has incorporated safeguards proposed by the Senate and the special House committee that studied these matters in Bill C-19.

We feel that this bill deserves to be sent to committee to be studied in an overall wholesome and holistic way to determine whether those safeguards do indeed satisfy the right balance. Let us face it: none of us who spoke today are qualified to be witnesses on the topic. We are the elected members who express, as best we can and in the best fashion we can, what we think are the wishes of the Canadian people and in particular the people in our ridings.

At a hearing at committee, we would expect to hear experts in the field on this very important question of the balance between individual rights and the collective right of national security. The bill should be sent to committee because it has addressed previous concerns and it has incorporated proposed amendments set forth by the Senate members of the committee who studied it.

Again, this is not an advertisement. Let us be clear: the Senate committee studying this bill did a good job. They made a thorough review of the legislation and they proffered some suggestions that were followed by the Conservative government. It is about time that the government and all members in this place say that the Senate did a good job. There are some very capable people in the Senate, who brought forth some very important procedural protections and the tweaking of the two provisions to make it palatable, in my view, on the balance of rights.

The investigative hearings provisions in the Criminal Code allow authorities to compel the testimony of an individual without the right to decline to answer those questions. The intent would be to call in those who are on the periphery of the alleged plot, as it may be in terrorist circumstances, who may have vital information, rather than the core suspects. It is information gathering.

The second aspect of these two provisions is the preventive arrest provision, which in the Criminal Code allows the police to arrest and hold an individual, in some cases without warrant, provided they have reasonable grounds.

I think these amendments are very reasonable. They follow on Bill S-3.

In conclusion, I might add that the stakeholders in support include the Canadian Jewish Congress, which told the Senate committee that studied these provisions:

We believed in 2001, and continue to believe today, in the importance of granting expanded powers to the security services through recognizance with conditions and investigative hearings for the careful monitoring of individuals and groups that are suspect and the amassing of relevant information well in advance.

I want to speak briefly about the Harkat decision. I would like to discuss it in terms of the questioning that I may receive. The Harkat case is a jumble of the misapplication of the law as it is. It does not stand for the proposition that the law as it is or as it is about to be amended through this process is bad. It is throwing the baby out with the bathwater to use Harkat and the various decisions of Justice Noël for an argument that we should not enact proper legislation respecting the balance between individual liberties, the rights of individuals and the collective need for security.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I am very happy to address hon. members in the House on the importance of the powers contained in Bill C-19.

The bill seeks to re-enact the investigative hearing and recognizance with conditions provisions that were originally part of the Anti-terrorism Act, but ceased to be in effect as of March 1, 2007 when they were sunsetted.

The bill contains changes to the original provisions that are designed to respond to many of the recommendations that were made by two parliamentary committees that reviewed the Anti-terrorism Act. I would also like to note that I chaired the subcommittee of the Standing Committee on Public Safety and National Security which reviewed the Anti-terrorism Act. The subcommittee made a number of recommendations in the interim report that was tabled on October 23, 2006. The recommendations of the majority of the subcommittee included that both provisions be extended for five years to the end of the 15th sitting day of Parliament after December 31, 2011. It also recommended that there be further parliamentary review before there be any further extension, and that the investigative hearing provision be limited to occasions where a peace officer has reason to believe that there was imminent peril that a terrorist offence would be committed.

I want to speak to the investigative hearing and the recognizance with conditions provisions and also the things that the committee actually dealt with in the report of October 2006, as well as the Senate committee report that was tabled in February 2007. Additionally, the bill contains the amendments that were made last year by the Senate when it reviewed the predecessor to this bill, Bill S-3.

The result is that this bill would create enhanced human rights safeguards and would expand upon annual reporting requirements. Bill C-19 is the same as former Bill S-3 as amended by the Senate in March 2008, with one principal exception. That exception is the additional change made to subsection 83.28(12), which I will explain later. Bill S-3, subsequently died on the order paper due to the fall 2008 election. This bill picks up where Bill S-3 left off.

The investigative hearing and the recognizance with conditions provisions were designed to assist law enforcement agencies and strengthen their ability to prevent acts of terrorism. First I am going to talk about investigative hearings. It seems that I already spoke about this in the House when I spoke to Bill S-3 in the 39th Parliament, but these are very important tools for law enforcement agencies to ensure that we are protected against terrorist attacks.

The investigative hearing provision would allow the courts to compel a witness who may have information about a terrorism offence to testify and provide information about the offence. The process relating to this provision works as follows. With the prior consent of the attorney general, a peace officer investigating a terrorism offence that has been or will be committed, may apply to a judge for an order requiring a person who is believed to have information concerning the terrorism offence to appear before the judge to answer questions and/or produce something.

If the judge believes there are reasonable grounds that a terrorism offence will be committed in the future, if the person has direct and material information and reasonable attempts have been made by other means to obtain the information, the judge may make an order for the gathering of information. It is important to note that this investigative hearing provision and the process was found to be constitutional by the Supreme Court of Canada in 2004. The reason this provision was found to be constitutional lies in the safeguards that are intimately attached to the exercise of this power. I will note these safeguards.

First, only a judge of a provincial court or of a superior court of a criminal jurisdiction can issue the order to hold an investigative hearing.

Second, before an application for the investigative hearing order can be made, the Attorney General of Canada, or the attorney general or solicitor general of the province needs to consent to making the application for the order.

Third, the person ordered to attend at the investigative hearing has the right to retain and instruct counsel at any stage of the proceedings.

Fourth, any incriminating evidence given by the person at the investigative hearing cannot be used against him or her in a further criminal proceeding, except for prosecution for perjury and giving contradictory evidence. This prohibition also applies to derivative evidence, that is, evidence found or derived from the evidence initially gathered in the context of the investigative hearing.

Fifth, the Supreme Court of Canada has also ruled that through the use of this provision, there is a constitutional exemption against self-incrimination that precludes testimonial compulsion where the predominant purposes of the proposed hearing is to obtain evidence for the prosecution of the person. In other words, a person cannot be brought before a judge and be compelled to provide evidence if the predominant purpose is to gather evidence against that person to lay charges against him or her.

Sixth, the Attorney General of Canada and the attorney general of the provinces were and continue to be required to report annually on the use of the investigative hearing provisions.

Finally, it has been noted that the Supreme Court of Canada held that the protection against self-incrimination at investigative hearings, carried out in the context of criminal investigations, also extended to deportation and extradition matters.

There are a number of new things in Bill C-19. There are new human rights safeguards that are not found in the original legislation. For example, new to the provisions is the requirement that in all cases, a judge to whom an application for an information gathering order is made must be satisfied that reasonable attempts have been made to obtain the information by other means. The previous legislation required this when investigating possible future terrorism offences, but not past terrorism offences, and only in relation to reasonable attempts to obtain the information from the person subject to the investigative hearing, as opposed to third parties more generally.

Another change alluded to earlier which is proposed for the first time in this bill would be made to subsection 83.28(12). It would clarify that the judicial power to order things into custody on an investigative hearing is discretionary rather than mandatory. This change would align this provision with the Supreme Court decision and application under section 83.28 of the Criminal Code, which held that a judge at an investigative hearing has considerable discretionary power to the effect that the word “shall” in the provision would be changed to “may”.

Additionally, subsection 83.29(4), not found in the original legislation, would clarify that the witness detention provisions of section 707 of the Criminal Code apply to investigative hearings. As a result, witnesses at the investigative hearing would enjoy the same procedural safeguards with respect to detention that applied to witnesses in criminal prosecution.

I would also like to speak about the recognizance with conditions provision. This provision would give the court the power to issue an order requiring a person to enter into an undertaking whereby he or she accepts to respect certain conditions imposed upon him or her to prevent the carrying out of terrorist activity. The purpose of the provision is to create a mechanism that would allow the authorities to disrupt the preparatory phase of terrorist activity rather than after the fact.

The provision is not designed to detain a person, but rather to release the person under judicially authorized supervision. The process by which the recognizance with conditions operates is as follows:

With the prior consent of the Attorney General, a peace officer who reasonably believes that a terrorist activity will be carried out and who also reasonably suspects that the imposition of recognizance with conditions or the arrest of a person is necessary to prevent the carrying out of a terrorist activity may lay an information before a provincial court judge. That judge may then cause that person to appear before him or her or any other provincial court judge. In very limited circumstances, the peace officer may arrest that person without a warrant in order to bring him or her before the judge.

In any event, a person will be brought before a judge within 24 hours, or as soon as possible, if a judge is not available within this time period. If the person is detained to protect the public or to ensure his or her attendance at a subsequent hearing, the matter may be adjourned for a maximum of 48 hours. Thus, generally speaking, the person can only be detained for up to 72 hours.

If the judge determines that there is no need for the person to enter into a recognizance, the person will be released. If the court determines that the person should enter into a recognizance, the person will be bound to keep the peace and respect other specified reasonable conditions for a period not exceeding 12 months, and only if the person refuses to enter into such a recognizance can the judge order that he or she may be detained for up to 12 months.

As in the case of the investigative hearing, the recognizance with conditions is also subject to numerous safeguards. The consent of the Attorney General of Canada or the attorney general or solicitor general of the province, of course, is required. The peace officer could also lay information before a judge if he believes there is reasonable grounds that the activity could be carried out. The judge receiving the information would have a residual discretion not to issue process, for example, where information is unfounded.

Continuing on, these two provisions that were sunsetted back in 2007 were important tools that were used or can be used to help keep Canadians safe as we ensure that we do not suffer from terrorist attacks. These are things that Canadians do fear, and they do want to ensure that law enforcement has the tools required to ensure that Canadians remain safe.

There was the attack, of course, in the U.K. back on July 7, 2005.

There was the case just a few years ago here in Canada where there were some Canadians arrested on the threat of the potential for a terrorist attack.

So we must remain vigilant. Canadians expect that.

The committee I chaired back in the 39th Parliament that reviewed this act spent a great deal of time. I spoke a little earlier about what the committee brought forward in recommendations to the House that very much mirrored the recommendations that were brought forward in the Senate.

In 2007, after the committee released its interim report back in the fall of 2006, with just a few months to go before the sunsetted provisions were set to sunset, where the majority of the committee had brought this forward, it turned out that when we were running out of days in order to maintain these two sunsetted conditions, the Liberal Party withdrew their support, or at least the members of the committee who had supported the extension of these sunsetted provisions withdrew their support.

We brought back Bill S-3 in the 39th Parliament. We had the fall election in 2008, and that bill died on the order paper.

Bill C-19 seeks to deal with bringing back those two provisions that we know can be used in the arsenal to continue to keep Canadians safe, to fight against terrorism.

Part of this as well is that it would continue to be reviewed on an ongoing basis. That was one of the recommendations that came forward in the 39th Parliament out of the subcommittee, that we do in fact ensure that these provisions continue to be reviewed. They are quite strict. These are important tools. They do need to be reviewed, because we do not know the implications. These are extraordinary measures.

At this time I do not see any compelling reason we should not seek to reinstate these provisions and have them in the toolbox that we and law enforcement can to use to ensure that Canadians remain safe.

I urge all hon. members to support this legislation. Let us get it to committee and move it forward.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Mr. Speaker, I rise to speak today to Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

The Liberal Party of Canada supports this bill, in principle. I say that because this bill has a history linked with September 11, 2001.

Governments the world over were charged with establishing anti-terrorism legislation to protect their countries in the event of an attack on their security and safety.

The security and safety we took for granted no longer exist. In today's world, rapid travel, changes in values and attitudes and strained international relations have become an unavoidable fact.

Many members no doubt recall that Canada approved initial anti-terrorism legislation in December 2001, because of a sunset clause that entitled Parliament to review the legislation after five years. Members were concerned and rightly so at seeing fear make a mockery of Canadians' fundamental rights, especially those of cultural communities and, in particular, let it be said, of individuals identified as being from the middle east or the near east.

Even though Parliament improved the legislation, what remained was the criminalizing of peaceful activities and the possibility of unfair trials.

Today we have witnessed the ongoing challenges faced by Mohamed Harkat, a refugee from Algeria, released from jail in 2006 after spending three and a half years incarcerated without a trial. He is accused of having ties to terrorist organizations. Very recently, at the end of May, 16 officers carried out a search of his home in the south end of Ottawa, accompanied by three sniffer dogs trained to find weapons, explosives and money, all because they wanted to know if he was complying with the terms of his release.

Here is a man, and he is not the only one in Canada, detained without trial, whose human rights have been consistently violated in the name of safety and security. This is unfortunately not the only case of this kind in Canada.

Further, the Federal Court later ruled that Canadian border agents were “the most intrusive”. According to Justice Simon Noel, “fairness has to prevail”. He felt the agents had gone too far in seizing items such as family photos. The ruling also called into the question the performance of CSIS, the fact that its informant was not trustworthy. Therefore, the information that put Harkat behind bars could be false. It is information that the government, including the Conservative Minister of Citizenship and Immigration, has been using to deport this family man.

The question was raised by Justice Noel, who presided over the case and who is apparently known as one of Canada's most respected and experienced judges in terror cases, that CSIS also could have deliberately withheld information that could have cleared this man's name.

Are these the values on which Canada now stands, ones of unfairness and inequality, the inability to have the opportunity to be proven innocent by a jury of one's peers? Surely there is another way to do that. Let us tell individuals like Harkat and Adil Charkaoui, a schoolteacher from Montreal, that these are not the pillars, values and principles upon which Canada has built a strong democracy before the Conservative government came into power.

Allow me to recall the facts pertaining to Bill C-19. First, the provision of the Criminal Code pertaining to investigative hearings allows authorities to require an individual to testify without giving them the right to refuse to answer questions on the grounds that the responses might be self-incriminating. The aim of this provision is to compel those involved secondarily in a terrorist plot, who might have vital information, to testify instead of the prime suspects, who are prone to lie in order to protect themselves.

The second provision of the Criminal Code concerns preventive arrests. It allows the police to arrest and detain an individual, in some cases without a warrant, on the condition that they have reasonable grounds for believing that the arrest would prevent the commission of new terrorist acts.

A number of points must be remembered as regards the position of the Liberal Party of Canada. First, my party takes very seriously the safety of Canadians and the protection of their rights. Next, as in all cases of legislation concerning national security, we think a balance must be struck between public safety and individual freedoms. We obviously welcome the government's decision to include security safeguards, proposed by the special committees of the Senate and the House of Commons, which had studied the matter. That has already been mentioned by others before me. These precautions improve the bill and help calm the concerns over individual freedoms we raised when previous versions of this text were studied.

Bill C-19 hearkens back to another bill introduced previously in the other place as Bill S-3. That bill was discussed in a committee of the other place, and dealt with investigative hearings and preventive arrest. This text was introduced in 2007 and then reintroduced with some additional safeguards. Considerable work has already been done on this bill. The 2007 revision required police officers to prove to the judge that they had used all other methods to obtain the needed information.

It also required the Attorney General and the Minister of Public Safety and Emergency Preparedness to make an annual report to Parliament explaining their opinion on whether provisions should be extended. In October 2007, prorogation resulted in the bill, which had been referred to the other place, not getting back here to the House of Commons.

Bill S-3 included certain improvements worthy of mention. First, police officers must prove to the judge that all other reasonable and legal means have been used to obtain the information. Second, any person called to a investigative hearing has the right to retain counsel . Third, the Attorney General and the Minister of Public Safety and Emergency Preparedness are required to make an annual report to Parliament justifying extension of the provisions. Fourth, any provincial court judge may hear arguments relating to preventive arrest. Fifth, the special anti-terrorist provisions may not be extended for more than five years unless both House of Parliament agree to extension.

The bill we are examining here in the House, Bill C-19, is identical overall to the version of Bill S-3 amended by the Senate, whose key provisions I have just reviewed.

I realize there will be very emotional points of view on the bill. I had to take a long time before I decided the pros and cons of the bill because it is very important to the population and our way of life in Canada as well.

There are groups who have historically been targeted by those who would deliberately wish to carry out terrorism acts against them. Protection and safety are important. If it means reducing the human rights of others, then we have to accept that.

What is good about the bill is that clause 2 adds new subsections to section 83.31 of the Criminal Code, which calls for separate annual reports on sections 83.28, 83.29 and 83.3 by the Attorney General and the Minister of Public Safety and Emergency Preparedness. The reports would include opinions and reasons on whether these sections should be extended within the act.

What is important is that the bill be sent to committee so it can be thoroughly reviewed and discussed in detail. I want to remind everyone in the House, and people who will be reading this debate, that this is not the end of the debate. If the bill is accepted by the members of the chamber, it will then go to committee. The members of the committee will amend the bill. The groups that are either for or against the implementation of these hearings will go before the committee to provide input and suggestions.

When it is referred to committee for consideration it can be amended, and I hope that the amendments will provide a better balance between collective security, which we all care about, and another thing we all care about too, individual freedom in Canada.

[Shelly Glover, Conservative, Parliamentary Secretary for Official Languages]

Mr. Speaker, I want to note that I will be sharing my time with the member for Northumberland—Quinte West.

I am very pleased to rise in my place today to speak in support of Bill C-19. It seeks to re-enact the investigative hearing and recognizance with conditions provisions in the Criminal Code. The bill is almost identical to former Bill S-3, which died on the order paper at second reading before the House in a previous Parliament.

I will start by quickly explaining what investigative hearing and recognizance with conditions mean.

The investigative hearing provisions would empower a peace officer investigating a terrorism offence that has been or will be committed to apply to a judge for an order requiring a person who is believed to have information concerning the terrorism offence to appear before a judge or produce a thing. The peace officer would have to have the prior consent of the relevant attorney general before making such an application. What would be essential to deal with this is an information-gathering order that would apply in respect of a witness, not an accused.

Recognizance with conditions means that, with the prior consent of the Attorney General, a peace officer may lay an information before a provincial court judge if the peace officer believes on reasonable grounds that a terrorist activity will be carried out; and suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity. The judge could then compel that person to attend a hearing before him or any other judge.

As mentioned, a number of arguments have arisen in the past that have been critical especially of the recognizance with conditions provision. I will deal with them one by one.

I would like to address the contention that the recognizance with conditions provision is unnecessary because the Criminal Code already contains other provisions that could be used to prevent the carrying out of a terrorist activity, especially sections 495, 810 and 810.01 of the Criminal Code.

Section 495. (1)(a) states that a peace officer may arrest without warrant a person who, on reasonable grounds, he believes is about to commit a serious indictable offence. In addition, sections 810 and 810.01 apply when any person fears on reasonable grounds that another person will cause personal injury or commit a criminal organization offence or a terrorism offence. These sections empower the judge to order that the individual enter into a recognizance with conditions.

These provisions all focus on someone who it is reasonably believed is either about to or will commit a crime. They do not encompass any other person and so are very narrow in scope. On the other hand, the recognizance with conditions provision would apply to situations where there are reasonable grounds to believe that a terrorist activity will be committed and there are reasonable grounds to suspect that the imposition of a recognizance with conditions on a person is necessary to prevent the commission of a terrorist activity.

In other words, the police may have reasonable grounds to believe that a terrorist activity will be committed but would otherwise be unable to take action in relation to a person because the officer lacks, at the point of identifying the threat and the person, the grounds necessary to support the requirement of a belief on reasonable grounds in relation to that particular person. That officer may only have reasonable suspicion. Given the grave nature of the harm posed by terrorist activity, there is a sincere need to be able to act quickly to address the threat.

The provisions relating to recognizance would allow persons to be brought before a judge if there are reasonable grounds to suspect their involvement in terrorist activities. They would also allow a judicial review to prevent the commission of acts of terrorism. This is why the provisions relating to recognizance with conditions are necessary and judicious.

In relation to the investigative hearing, one complaint has been that it takes away a person's right to silence. We have heard the member of the NDP repeat that several times during his dissertation. However, let us not forget that the Supreme Court of Canada held otherwise. In application under section 83.28 of the Criminal Code in 2004, the Supreme Court concluded that the investigative hearing provision did not violate section 7 of the charter.

In fact, the Supreme Court found that a person testifying at an investigative hearing is better protected than any other witness in a criminal trial. This bill also clarifies that the maximum detention for a witness arrested to ensure appearance at an investigative hearing is limited to 90 days, as is the case for witnesses who are detained in relation to a criminal trial under section 707 of the Criminal Code.

The provision relating to recognizance with conditions is in large part based on the Criminal Code provisions on sureties to keep the peace. As I have said, the purpose of the modifications is to make it possible to prevent apprehended acts of terrorism. There are also guarantees, particularly the need to obtain the consent of the Attorney General concerned.

It has also been argued that imposing a recognizance with conditions on a person attaches to that person a stigma of being an alleged terrorist. However, as noted, there are other peace bond provisions in the Criminal Code—for example, where persons are required to enter into peace bonds because it is reasonably believed they will cause personal injury or commit a sexual offence against a young person. These exist today. In these cases, there is no requirement that a criminal charge be laid.

Should these provisions be eliminated on the basis of a stigma possibly attaching to persons even though they have committed no crime? I do not believe that is the case. The government considered the substantive recommendation in the House of Commons subcommittee's interim report to the effect that the investigative hearing power be limited to the investigation of “imminent”, and that word is important, terrorism offences, thereby excluding the possibility of holding an investigative hearing in respect of past terrorism offences. This recommendation was not accepted.

It did not take into account, for example, the possibility of a terrorist group planning a series of terrorist acts following on each other. An investigative hearing related to the first offence, held after the fact—that is, in relation to a terrorism offence that had already been committed—might bring to light certain important information that would make it possible to prevent the other offences from being committed.

I have attempted to address some of the arguments that were previously raised against these provisions. It is my view that these criticisms do not stand up to close scrutiny. The proposed provisions are minimally intrusive and do not present a threat to Canadian values but actually protect them. Therefore, I ask all hon. members in the House to support this bill.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I am cognizant that I have 20 minutes to speak but only 4 minutes to begin. I am going to lay the preparatory groundwork for my speech later on.

Not everybody in the House will agree with what I am about to say, but the fundamental issue presented by the piece of legislation before the House today is that due process in law cannot be supported by offending due process in law. Civil rights cannot be protected by violating civil rights. Freedom in this country cannot be supported by abridging the freedom of Canadians in this country. That cuts to the heart of this matter, and I will come back to that concept later on in my speech.

Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) was introduced in the House on March 12 of this year. It contains the provisions found in former Bill S-3, as amended by the Senate Special Committee on Anti-terrorism in March of last year.

The bill proposes amendments to the Criminal Code that would reinstate the anti-terrorism provisions that expired under a sunset clause in February 2007. It provides for the appearance of individuals who may have information about a terrorism offence, compells attendance before a judge for an investigative hearing, and it contains provisions also dealing with imprisonment of those people for up to 12 months without charge.

This legislation also contains a five-year sunset clause that requires the Attorney General of Canada and the Minister of Public Safety to issue separate annual reports that include their opinions as to whether these provisions should be extended.

The seriousness with which the bill attacks our civil liberties in this country is established by the fact that it has to contain sunset provisions to come back before the House. The government does not have the confidence to put these provisions into law for an extended period of time.

Bill C-19 essentially reintroduces the provisions relating to investigative hearings and recognizances that first came into force in December 2001. A sunset clause contained in that act stated that the provisions in question would cease to apply at the end of December 31, 2006 unless they were extended by a resolution passed by both Houses of Parliament.

As of February 2007, not one investigative hearing had been held, and there was no reported use of the provisions on recognizance with conditions at that time. I will come back to this theme later on.

Hon. colleagues on the other side of the House continue to maintain that this legislation is required, but it has never been used in the first five years of its existence.

Let me start with the first of these two offensive provisions, and that is investigative hearings.

Clause 1 of Bill C-19 would amend the Criminal Code, and it is similar to the original Anti-terrorism Act. Section 83 of the Criminal Code forces individuals who may have information about a terrorism offence to appear before a judge for an investigative hearing. The objective is to compel that person to speak, under penalty of imprisonment.

A peace officer, with the prior consent of the Attorney General, can apply to a superior court or a provincial court judge for an order for the gathering of information if there are reasonable grounds to believe that a terrorism offence has or will be committed.

If there are reasonable grounds to believe that information concerning the offence or whereabouts of a suspect is likely to be obtained as a result of the order, and if reasonable attempts have been made to obtain such information by other means, if granted, such a court order would compel that person to attend a hearing and answer questions on examination. No one attending such a hearing can refuse to answer a question or produce something in his or her possession on the grounds of self-incrimination.

Every Canadian school child is familiar with the edict in this country that an individual has the right to remain silent and not to testify if that testimony would present self-incrimination. It is considered a fundamental tenet of western and British legal tradition. It has been part of our country's Constitution and civil liberties for hundreds of years.

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, I am pleased to speak today to Bill C-19. The bill seeks to re-enact in the Criminal Code the investigative hearing and recognizance with conditions provisions. Many hon. members will be aware of this subject matter as it has been before Parliament on our agenda from time to time in recent years, most recently as Bill S-3 in the previous Parliament, which was passed by the Senate and debated at second reading in the House.

I am pleased the government has reintroduced this bill. It further demonstrates the unwaivering commitment of the government, and I should add, our Minister of Justice, to give law enforcement agencies the tools needed to safeguard our national security, while respecting human rights. It also offers Parliament the opportunity to re-enact those important provisions. I sincerely hope Parliament will seize this opportunity.

In the time available to me today, I would like to discuss the nature of the investigative hearing and recognizance with conditions. In addition, I would like to revisit very briefly previous parliamentary debates on these matters to emphasize that the provisions contained in the bill, while substantially similar to those that were debated in the sunset debates, are also somewhat different.

The bill responds to many parliamentary recommendations that have been made previously. The bill proposes to re-enact the investigative hearing provisions, which will allow the courts, on an application by a peace officer, to compel someone with information about a past or future terrorism offence to appear before a judge to answer questions and when requested bring anything in the person's possession or control to the judge. The investigative hearing would be an information gathering tool in respect of terrorism offences. Its purpose would not be to charge or convict an individual with an criminal offence. The focus would be on questioning witnesses, not on cross-examining accused persons.

The bill would also seek to re-enact the recognizance with conditions as a measure that would be intended to assist peace officers to prevent imminent terrorist attacks. If a peace officer would have reasonable grounds to believe that a terrorist activity would be carried out and would have reasonable grounds to suspect that the imposition of a recognizance on a particular person would be necessary to prevent such an activity from being carried out, then the peace officer could apply to a judge to have the person compelled to appear before a judge.

The judge would then consider whether it would be desirable to release the person or to impose reasonable conditions on the person. The government would bear the onus of showing why conditions should be imposed. The recognizance with conditions would be designed to aid the disruption of the preparatory phase of a terrorist activity. The recognizance with conditions has previously been referred to as preventative arrest, however, this is not a particularly apt characterization of the provision since it would only be used under exceptional circumstances that a person could be arrested without a warrant. However, even in this instance, the attorney general's consent would have to be obtained before the officer could lay the information before the judge.

The maximum period of detention when seeking a recognizance with conditions would generally be no more than 72 hours. If the judge were to determine that there would be no need for recognizance, the person would be released. However, if the court were to determine that a recognizance would be necessary but the person refused to enter into a recognizance, the person could be detained for up to 12 months.

I wish to touch briefly on the legislative history of these provisions and to remark upon them.

Members will no doubt be aware that the investigative hearing and recognizance with conditions were initially part of the Anti-terrorism Act. These provisions were to expire, absent an extension agreement by both Houses of Parliament, at the end of the 15th sitting day of Parliament following December 31, 2006, which was March 1, 2007. The Anti-terrorism Act anticipated that the mandatory reviews of the act would be completed well in advance of the parliamentary debate on the extension of these sunsetting provisions. As it turned out, this was not the case.

In October 2006, the House of Commons subcommittee tabled an interim report recommending that the investigative hearing power be limited to the investigation of imminent and not past terrorism offences. It also proposed some technical amendments to the provisions, but otherwise approved of these powers and recommended extending them for five years subject to further review.

The government, however, had yet to hear from the special Senate committee, which was conducting its own review of the legislation. Indeed, the Senate committee report was not issued until February 22, 2007, just days before the vote on the extension of the powers. The special Senate committee recommended a three year renewal period for both powers.

On February 27, 2007, when the time came to vote on the motion to extend the provisions, the final report of the House of Commons subcommittee on the Anti-terrorism Act was still unavailable. Consequently, it was not practically possible for the government to respond to recommended changes before the vote.

Since that time, there was an opportunity for reflection and the government was able to respond by introducing Bill S-3 on October 23, 2007. Bill S-3 sought to re-enact the investigative hearing and recognizance with conditions with additional safeguards and some technical changes that were responsive to many of the recommendations made by the two parliamentary committees that reviewed the Anti-terrorism Act.

Further, the Senate made three amendments to former Bill S-3, including making mandatory a parliamentary review of these provisions.

Bill C-19 reintroduces former Bill S-3, as amended by the Senate. In addition, one further proposed amendment has been included in the new bill. This new change would clarify that the judicial power to order things into police custody at an investigative hearing would be discretionary rather than mandatory. This change would align the provision with the decision of the Supreme Court of Canada in application under section 83.28 of the Criminal Code, where the Supreme Court concluded that the investigative hearing provision conferred upon the judge considerable flexibility and discretion.

Thus, the investigative hearing and recognizance with conditions proposals contained in this bill are not the same as those provisions that were debated during the sunset debate. While they are substantially similar, important changes have nevertheless been made to respond to parliamentary recommendations.

When the resolution to extend the life of these provisions was last debated, three arguments were made in support of sunsetting these provisions: one, that they had not yet been amended in accordance with the recommendations of the parliamentary committees; two, that the provisions were not necessary, given that they had rarely been used; and three, concerns were expressed regarding the protection of human rights. I would like to address these arguments.

In the time since the original provisions sunsetted, the amendments suggested by the parliamentary committees have been carefully considered. The large majority of these recommendations have been addressed in the bill, including with respect to a mandatory review, annual reporting requirements and various technical amendments.

Moreover, as I have indicated, the bill also includes the Senate amendments that were made during its consideration of former Bill S-3, as well as the additional amendment that I have highlighted.

The government has not taken up a particular recommendation made by the House subcommittee in its interim report. In that report it recommended that the investigative hearing not deal with information gathered in respect of past terrorism offences, but should be limited to the collection of information only in relation to imminent terrorist offences. In this regard, it should be noted that the special Senate committee did not take a similar position.

Perhaps when people speak of past terrorism offences, they may think in terms of years. For example, as we know, the tragedy of Air India happened in 1985. Bill C-19 recognizes the significant value of being able to acquire historical information as well as information that may prevent the commission of future terrorist acts. Accordingly it does not propose to limit the application of the information gathered in the investigative hearing to imminent terrorist offences.

As for the argument that the provisions are unnecessary, we need to be reminded of the increasing number of terrorist attacks all over the world and the gravity of the threat of terrorism. Unfortunately, it is folly to believe that Canada and Canadians are immune from the threat of terrorism. If we look at this issue realistically, we know that this is not the case.

Terrorism trials are taking place in our country as we speak. Clearly the threat of a terrorist attack, which these provisions are designed to prevent, continues. We need to be ready to respond to terrorist threats and it is important that our law enforcement authorities are properly equipped to do so.

Both the investigative hearing and the recognizance with conditions, as provided for in the bill, would be replete with human rights safeguards. With respect to the investigative hearing, these safeguards would include the following. There could be no investigative hearing without the consent of the relevant attorney general. Only a judge of the provincial court or of a superior court of criminal jurisdiction could hear a peace officer's application for an information gathering order and could preside over an information gathering proceeding.

There would have to be reasonable grounds to believe that a terrorism offence has been or will be committed. The judge would have to be satisfied that reasonable attempts had been made to obtain the information by other means. The judge could include any terms and conditions in the order that the judge considered to be desirable to protect the interests of the witness or third parties. The witness would have the right to retain and instruct counsel at any stage of the proceeding.

The bill also incorporates protections against self-incrimination, including in relation to the derivative use of the evidence in further criminal proceedings against the person testifying, except for perjury or giving contradictory evidence.

Members should also be reminded that the Supreme Court of Canada upheld the investigative hearing in 2004 in application under section 83.28 of the Criminal Code. I would note in this regard that the Supreme Court of Canada stated that the protection against self-incrimination found in the investigative hearing was greater than that afforded to witnesses compelled to testify in other proceedings, such as in a criminal trial.

Protecting Victims From Sex Offenders Act

[Andrew Kania, Liberal, Brampton West, ON]

Mr. Speaker, the hon. parliamentary secretary and I serve on committee together and when it comes to this particular issue, we have much in common. I firmly believe that amendments were needed in terms of this legislation. The problem is the method used and the exact substance of what has been put before Parliament.

I want to start with some history. This is the second attempt by the Conservatives to get this right. They attempted to fix the legislation by way of Bill S-3 which received royal assent on March 29, 2007 and was proclaimed on September 12, 2008. They have tried this before and they did not get it right or the legislation would not be back before Parliament in such a short period of time.

One would think that because they had to come before Parliament in such a short period of time, they would take all reasonable steps to ensure that the amendments would be proper and helpful. That would include a study by the relevant parliamentary committee, which is what took place. We studied this legislation for a number days over the last couple of months. We have a draft report and were in the process of reviewing it so that we could table it, probably within a couple of weeks, for the benefit of the minister before the providing of any legislation.

People can say whatever they want and call it disrespectful, contemptuous or use whatever phraseology, but the short of it is it is just not smart. The Conservatives have put forward legislation without the benefit of a study, the draft report of which was almost complete, without the benefit of expert testimony and all the information disclosure that came forward in that process. This just is not smart. They have done it for political points. I would like to go through what they have suggested. I would like to go through what is good about the legislation, because there are some good points, what is weak about it, and what I think needs to be improved.

The committee determined that the Ontario system is much better. There is an Ontario statute passed in 2000 which is called “Christopher's Law” and we know the history of that. In Ontario the registry is accessed over 400 times a day, where the federal regime was accessed 150 times per year. That comparison shows there is a huge difference. The federal system has truly failed in its use because of the ineffectual amendments that were put through by the Conservatives by way of Bill S-3 in 2008. And here we are again, which is fine. The legislation needs to be fixed and I support that, but let us do it in a smart manner, which is not what is occurring here.

We identified a number of problems which remained after the amendments the Conservatives passed in 2008. There was an issue in terms of mandatory inclusion. There was not an automatic inclusion in the registry of the various offenders after they were convicted. The Crown had to apply for this to take place. One of the problems with that is that a lot of Crowns, as part of a plea bargain, would negotiate to not include the name of an individual in the registry, or the Crowns would simply forget to make the request, or judges would not grant the request to include the offender in the registry. These are all problematic. I very strongly support the mandatory inclusion of these various offenders in the registry.

Let us look at what is really happening. The Conservatives like to say that the Conservative Party is the party of law and order, that the opposition parties and the Liberals do not support such an agenda.

Although the Conservatives have mandatory inclusion, they have put in all kinds of loopholes. One can seek to be exempted from the mandatory inclusion. One can appeal the mandatory inclusion. One can seek to be removed from the mandatory inclusion after a period of time. The mandatory inclusion expires automatically after various periods of time. All kinds of loopholes and exceptions are enumerated in this proposed legislation. In essence, they water down the mandatory inclusion.

That was probably the second most serious problem. Although the Conservatives will go out and eventually knock on doors and say they put mandatory inclusion into the legislation, they will not be able to legitimately say that because they put various exceptions into the legislation as well. Frankly, I do not understand why they did that. I think it is wrong.

I want to digress for a moment and talk about why this legislation needs to be a strong as possible while protecting the charter rights of people.

I did not know these statistics before the committee held its hearings, but I found them shocking and I think Canadians need to know them in order to know why we need to support a very strong system. This relates to the abduction of children. First, of all children abducted, 44% are dead within an hour of a kidnapping. Second, 74% of all children are dead within three hours of a kidnapping. Third, 91% of all children are dead within 24 hours of their being kidnapped. Those are horrible statistics.

We have a duty as parliamentarians, regardless of the party we belong to, to do everything possible to prevent those deaths. To me, that means there needs to be an effective system in place, whatever it may be, to ensure that when anybody is abducted, and in this example it is children, the police have whatever is necessary to find those children. This legislation, as proposed, does not do that.

What the Conservatives have done in terms of this legislation is address one of the glaring errors, and I think it was the number one error. The registry could only be used for the investigation of crimes that had been committed. It is a worthy goal and is absolutely necessary, but it is not good enough. The federal registry could not be used to help in crime prevention, which is what the Ontario system allows the police to do.

In terms of prevention, if somebody is kidnapped or there are any suspicious circumstances, in Ontario the registry can be used to investigate and attempt to prevent crimes. If there are stalkers or suspicious people around schools, if somebody has been abducted, the system can be used. That does not apply in the federal model. This particular change is very worthy, and we should support that 100%.

Other problems were identified. The first one was the mandatory inclusion. The second was prevention as opposed to just investigation. There are others. The automatic expiry of the orders was identified as a problem. If somebody has been convicted of a serious offence, I do not know why there would be an automatic expiry. These particular amendments continue that, and in fact provide additional ways in which someone could get out of the system. I think that is incorrect.

There are other problems. Unbelievably, the offenders are not required to provide information such as a car licence plate number. If somebody is abducted, the police do not have the ability under the federal model to ascertain the licence plate number of the car the offender is driving. This is unbelievable, but that problem was left in the system when the Conservatives put through the amendments in 2008. It has not been fixed. That is a serious error. There is nothing in this proposed legislation that changes that.

I find that shocking and that is one reason why the government should have waited for the report from the committee. That should have been in there. It needs to be changed and I believe my colleagues on the committee, regardless of the party they are from, would support that.

Another problem identified was foreign convictions and Canadians coming back to Canada. The government has sought to fix it, but not in a strong enough manner. I will go through that in a moment when I look at the various proposed changes in the legislation.

To summarize so far, the legislation is needed in a very strong manner. It needs to be amended to fix the problems left by the Conservatives in 2008. Those problems were identified in committee. The Conservative minister would have had the opportunity to read the report if he had only waited a couple of weeks. I find it shocking that Parliament and the committee, in particular, was disrespected.

Taxpayers need to know this. The committee spent a lot of time, called witnesses, paid for witnesses, asked them questions and none of that work was considered by the minister before the bill was introduced. Canadians have to understand that is wrong and it shows a tendency to dictate down and not respect the work of Parliament, which is dangerous.

In terms of this legislation, I have already indicated that prevention was a glaring omission, which is a very worthy change.

In terms of foreign criminals, there is a problem in that although they will be required to register, it specifically says that this only applies to persons who come to Canada after the legislation is passed. If serious sex offenders are already in Canada or they come here after the legislation passed, either way they are a risk to society and our obligation is to protect Canadians. Those people should be required to register and it truly has nothing to do with when they arrive in Canada.

In terms of automatic registration, when people are reviewing this statute and deciding whether it should be supported, they need to look at all the exceptions, and there are a number of them, which are all shocking. For example, in clause 9 there is termination order. There is an exemption order under clause 12. There are appeal provisions. There are many different loopholes. There is a litany of what offenders can do to get out of the system, which is not what the committee discovered we needed to do.

The committee found one of the problems was the automatic expiry of the registrations. Nothing has changed. If we look at paragraph 490.02904(3), we will see that all these automatic expiries are there. There could be exemption orders under the paragraph 490.02905(2). In essence, there is exception and loophole upon exception and loophole for these offenders to try to get out of the registration system. This is not what the committee would support in its report, which is almost done.

There is form 52, “Order to Comply with Sex Offender Information Registration Act”. Even in that form it says under section 7, “You have the right to apply to a court to terminate this order, and the right to appeal any decision of that court”. It advises people, as soon as they are told to register, that they can try to get out of it immediately. There are also mandatory provisions for the court.

Under 490.02905(2) the court “shall” make an exemption order. It is not even discretionary. It requires a court to take somebody out of the system based on those various criteria.

The Conservatives say that they have fixed this problem and now there is automatic inclusion, but that is just not true.

The first thing I did when I read Bill C-34 was look to see whether there were any licence plate requirements in it or that type of detailed information. I read it twice because I thought I could not have missed it, that it was sure to be in there somewhere. This was one of the most glaring errors identified by the committee.

This is such a serious error on the part of the minister that it has to be spoken of and we have to fix it. We cannot let this second round of amendments go through without changing this. There can be no exception to that. This must be changed. One of the key findings of why the Ontario system, Christopher's law, worked so well was because it had that ability.

Another large problem is funding. Perhaps I missed it, but I have not heard the minister say anything about the funding of this system. We can change whatever we want by way of legislation, but if we do not have the money to do it, what is the point?

The Ontario system funds its registry. It provides $4 million a year to ensure it is effective, which is why it gets so many daily hits. The federal system, which is operated by the RCMP, gets $400,000 to $600,000 per year for all of Canada. Think about that discrepancy: $4 million in Ontario, but $400,000 to $600,000 for the entire system. That needs to be changed and we need some commitment from the minister on how this will be adequately funded to ensure it works.

One of the other problems is faulty technology. The Ontario system has software that is highly developed. The information can be put in, such as the modus operandi of the offender, so the police can use the system very effectively and quickly for the best possible law enforcement mechanisms. There is nothing in this legislation about upgrading to better software or doing anything to fix the problem, which is one of the major concerns of the federal system.

In terms of warrants, there was evidence at the committee of what happened in Ontario if sex offenders failed to comply. If they do not register, if they do not advise of a change of address or licence plate, if they go on vacation or move and they do not provide the information, Ontario does something about it. I would like to see changes to the legislation to specifically authorize police officers to issue warrants if there is any breach of the information requirements, so we keep track of these offenders for the benefit and the protection of our citizens and for the investigation part of it as well.

There are two other problems.

First, there is no method under the current federal system of registration for people who are incarcerated or if they are deceased. In essence, this hurts the efforts of police officers because they simply do not know if somebody should be still questioned or if there is still somebody who could possibly be a suspect. This needs to be changed as well.

Finally, I have spoken a lot about what needs to be done to protect Canadians, but I also want to speak, on a final point, about what we need to do to protect the persons who have been convicted.

Hopefully most of these people will receive the proper rehabilitation. They will come back into society and hopefully lead good lives and do not repeat their mistakes. That is the goal of our criminal justice system. For those people, we have to offer protections to them as well. Section 17 of the current legislation provides penalties for the unauthorized use of this information. We need to strengthen those so anybody who uses this information for any improper purpose and not for the protection of Canadians is punished severely. That is my attempt to protect these people as well.

Extension of Sitting Hours

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, I would like at this time to move the standard motion that can be made only today. I move:

That, pursuant to Standing Order 27(1), commencing on Monday, June 9, 2008, and concluding on Thursday, June 19, 2008, the House shall continue to sit until 11:00 p.m.

Mr. Speaker, as I indicated last week in answer to the Thursday statement, this is we have work to do week. To kick off the week, we are introducing the customary motion to extend the daily sitting hours of the House for the final two weeks of the spring session. This is a motion which is so significant there is actually a specific Standing Order contemplating it, because it is the normal practice of this House, come this point in the parliamentary cycle, that we work additional hours and sit late to conduct business.

In fact, since 1982, when the House adopted a fixed calendar, such a motion has never been defeated. I underline that since a fixed calendar was adopted, such a motion has never been defeated. As a consequence, we know that today when we deal with this motion, we will discover whether the opposition parties are interested in doing the work that they have been sent here to do, or whether they are simply here to collect paycheques, take it easy and head off on a three month vacation.

On 11 of those occasions, sitting hours were extended using this motion. On six other occasions, the House used a different motion to extend the sitting hours in June. This includes the last three years of minority government.

This is not surprising. Canadians expect their members of Parliament to work hard to advance their priorities. They would not look kindly on any party that was too lazy to work a few extra hours to get as much done as possible before the three month summer break. There is a lot to get done.

In the October 2007 Speech from the Throne, we laid out our legislative agenda. It set out an agenda of clear goals focusing on five priorities to: rigorously defend Canada's sovereignty and place in the world; strengthen the federation and modernize our democratic institutions; provide effective, competitive economic leadership to maintain a competitive economy; tackle crime and strengthen the security of Canadians; and improve the environment and the health of Canadians. In the subsequent months, we made substantial progress on these priorities.

We passed the Speech from the Throne which laid out our legislative agenda including our environmental policy. Parliament passed Bill C-2, the Tackling Violent Crime Act, to make our streets and communities safer by tackling violent crime. Parliament passed Bill C-28, which implemented the 2007 economic statement. That bill reduced taxes for all Canadians, including reductions in personal income and business taxes, and the reduction of the GST to 5%.

I would like to point out that since coming into office, this government has reduced the overall tax burden for Canadians and businesses by about $190 billion, bringing taxes to their lowest level in 50 years.

We have moved forward on our food and consumer safety action plan by introducing a new Canada consumer product safety act and amendments to the Food and Drugs Act.

We have taken important steps to improve the living conditions of first nations. For example, first nations will hopefully soon have long overdue protection under the Canadian Human Rights Act, and Bill C-30 has been passed by the House to accelerate the resolution of specific land claims.

Parliament also passed the 2008 budget. This was a balanced, focused and prudent budget to strengthen Canada amid global economic uncertainty. Budget 2008 continues to reduce debt, focuses government spending and provides additional support for sectors of the economy that are struggling in this period of uncertainty.

As well, the House adopted a motion to endorse the extension of Canada's mission in Afghanistan, with a renewed focus on reconstruction and development to help the people of Afghanistan rebuild their country.

These are significant achievements and they illustrate a record of real results. All parliamentarians should be proud of the work we have accomplished so far in this session. However, there is a lot of work that still needs to be done.

As I have stated in previous weekly statements, our top priority is to secure passage of Bill C-50, the 2008 budget implementation bill.

This bill proposes a balanced budget, controlled spending, investments in priority areas and lower taxes, all without forcing Canadian families to pay a tax on carbon, gas and heating. Furthermore, the budget implementation bill proposes much-needed changes to the immigration system.

These measures will help keep our economy competitive.

Through the budget implementation bill, we are investing in the priorities of Canadians.

These priorities include: $500 million to help improve public transit, $400 million to help recruit front line police officers, nearly $250 million for carbon capture and storage projects in Saskatchewan and Nova Scotia, and $100 million for the Mental Health Commission of Canada to help Canadians facing mental health and homelessness challenges.

These investments, however, could be threatened if the bill does not pass before the summer. That is why I am hopeful that the bill will be passed by the House later today.

The budget bill is not our only priority. Today the House completed debate at report stage on Bill C-29, which would create a modern, transparent, accountable process for the reporting of political loans. We will vote on this bill tomorrow and debate at third reading will begin shortly thereafter.

We also wish to pass Bill C-55, which implements our free trade agreement with the European Free Trade Association.

This free trade agreement, the first in six years, reflects our desire to find new markets for Canadian products and services.

Given that the international trade committee endorsed the agreement earlier this year, I am optimistic that the House will be able to pass this bill before we adjourn.

On Friday we introduced Bill C-60, which responds to recent decisions relating to courts martial. That is an important bill that must be passed on a time line. Quick passage is necessary to ensure the effectiveness of our military justice system.

Last week the aboriginal affairs committee reported Bill C-34, which implements the Tsawwassen First Nation final agreement. This bill has all-party support in the House. Passage of the bill this week would complement our other achievements for first nations, including the apology on Wednesday to the survivors of residential schools.

These are important bills that we think should be given an opportunity to pass. That is why we need to continue to work hard, as our rules contemplate.

The government would also like to take advantage of extended hours to advance important crime and security measures. Important justice measures are still before the House, such as: Bill S-3, the anti-terrorism act; Bill C-53, the auto theft bill; Bill C-45 to modernize the military justice system; and Bill C-60, which responds to recent court martial decisions.

There are a number of other bills that we would like to see advanced in order to improve the management of the economy. There are other economic bills we would like to advance.

These include Bill C-7, to modernize our aeronautics sector, Bill C-5, dealing with nuclear liability, Bill C-43, to modernize our customs rules, Bill C-39, to modernize the Canada Grain Act for farmers, Bill C-46, to give farmers more choice in marketing grain, Bill C-57, to modernize the election process for the Canadian Wheat Board, Bill C-14, to allow enterprises choice for communicating with customers, and Bill C-32, to modernize our fisheries sector.

If time permits, there are numerous other bills that we would like to advance.

These include Bill C-51, to ensure that food and products available in Canada are safe for consumers, Bill C-54, to ensure safety and security with respect to pathogens and toxins, Bill C-56, to ensure public protection with respect to the transportation of dangerous goods, Bill C-19, to limit the terms of senators to 8 years from a current maximum of 45, and Bill C-22, to provide fairness in representation in the House of Commons.

It is clear a lot of work remains before the House. Unfortunately, a number of bills have been delayed by the opposition through hoist amendments. Given these delays, it is only fair that the House extend its sitting hours to complete the bills on the order paper. As I have indicated, we still have to deal with a lot of bills.

We have seen a pattern in this Parliament where the opposition parties have decided to tie up committees to prevent the work of the people being done. They have done delay and obstruction as they did most dramatically on our crime agenda. They do not bother to come and vote one-third of time in the House of Commons. Their voting records has shown that. All of this is part of a pattern of people who are reluctant to work hard.

The government is prepared to work hard and the rules contemplate that it work hard. In fact, on every occasion, when permission has been sought at this point in the parliamentary calendar to sit extended hours, the House has granted permission, including in minority Parliaments.

If that does not happen, it will be clear to Canadians that the opposition parties do not want to work hard and are not interested in debating the important policy issues facing our country. Is it any wonder that we have had a question period dominated not by public policy questions, but dominated entirely by trivia and issues that do not matter to ordinary Canadians.

The government has been working hard to advance its agenda, to advance the agenda that we talked about with Canadians in the last election, to work on the priorities that matter to ordinary Canadians, and we are seeking the consent of the House to do this.

Before concluding, I point out, once again, that extending the daily sitting hours for the last two weeks of June is a common practice. Marleau and Montpetit, at page 346, state this is:

—a long-standing practice whereby, prior to the prorogation of the Parliament or the start of the summer recess, the House would arrange for longer hours of sitting in order to complete or advance its business.

As I stated earlier, it was first formalized in the Standing Orders in 1982 when the House adopted a fixed calendar. Before then, the House often met on the weekend or continued its sittings into July to complete its work. Since 1982, the House has agreed on 11 occasions to extend the hours of sitting in the last two weeks of June.

Therefore, the motion is a routine motion designed to facilitate the business of the House and I expect it will be supported by all members. We are sent here to engage in very important business for the people of Canada. Frankly, the members in the House are paid very generously to do that work. Canadians expect them to do that work and expect them to put in the time that the rules contemplate.

All member of the House, if they seek that privilege from Canadian voters, should be prepared to do the work the rules contemplate. They should be prepared to come here to vote, to come here to debate the issues, to come here for the hours that the rules contemplate. If they are not prepared to do that work, they should step aside and turnover their obligations to people who are willing to do that work.

There is important work to be done on the commitments we made in the Speech from the Throne. I am therefore seeking the support of all members to extend our sitting hours, so we can complete work on our priorities before we adjourn for the summer. This will allow members to demonstrate results to Canadians when we return to our constituencies in two weeks.

Not very many Canadians have the privilege of the time that we have at home in our ridings, away from our work. People do not begrudge us those privileges. They think it is important for us to connect with them. However, what they expect in return is for us to work hard. They expect us to put in the hours. They expect us to carry on business in a professional fashion. The motion is all about that. It is about doing what the rules have contemplated, what has always been authorized by the House any time it has been asked, since the rule was instituted in 1982. That is why I would ask the House to support the motion to extend the hours.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, this week we have focused on the economy by debating and passing at report stage the budget implementation bill as part of our focused on the economy week.

The bill guarantees a balanced budget, controls spending and keeps taxes low without imposing a carbon and heating tax on Canadian families.

It also sets out much-needed changes to the immigration system in order to maintain our competitive economy.

It will also include the new tax-free savings account, TFSA, an innovative device for individuals and families to save money. That bill is now at third reading and we hope to wrap up debate tomorrow on the important budget implementation bill to maintain the health and competitiveness of our economy.

Next week will be we have work to do week. Since the Speech from the Throne we have introduced 59 bills in Parliament.

These bills focus on fighting crime, sustaining our prosperous and dynamic economy, improving Canadians' environment and their health, strengthening the federation, and securing Canada's place in the world.

To date, 20 of these bills have received royal assent, which leaves a lot of work to do on the 39 that have yet to receive royal assent. I know the Liberal House leader suggests perhaps we should work on only three, but we believe in working a bit harder than that.

To ensure that we have the time necessary to move forward on our remaining legislative priorities, I will seek the consent of the House on Monday to extend the sitting hours for the remaining two weeks of the spring sitting, as the rules contemplate. I am sure all members will welcome the opportunity to get to work to advance the priorities of Canadians and get things done.

I will seek in the future the consent of the opposition to have next Wednesday be a special sitting of the House of Commons. This is to accommodate the special event about which the Liberal House leader was speaking. The day would start at 3 p.m. with an apology from the Prime Minister regarding the residential schools experience. I will also be asking the House and its committees to adjourn that day until 5:30 p.m. to allow for solemn observance of the events surrounding the residential schools apology. Residential school survivors and the chief of the Assembly of First Nations will be offered a place of prominence in our gallery to observe these very important formal ceremonies in the House of Commons.

Tomorrow and continuing next week, we will get started on the other important work remaining by debating the budget implementation bill. After we finish the budget bill, we will debate Bill C-29, to modernize the Canada Elections Act with respect to loans made to political parties, associations and candidates to ensure that wealthy individuals are not able to exert undue influence in the political process, as we have seen even in the recent past.

We will also discuss Bill C-51, to ensure that food and products available in Canada are safe for consumers; Bill C-53, to get tough on criminals who steal cars and traffic in stolen property; Bill S-3, to combat terrorism; Bill C-7, to modernize our aeronautics sector; Bill C-5, dealing with nuclear liability; Bill C-54, to ensure safety and security with respect to pathogens and toxins; Bill C-56, to ensure public protection with respect to the transportation of dangerous goods; Bill C-19, to limit the terms of senators to eight years from the current maximum of 45; Bill C-43, to modernize our customs rules; Bill C-14, to allow enterprises choice for communicating with customers; Bill C-32, to modernize our fisheries sector; Bill C-45, regarding our military justice system; Bill C-46, to give farmers more choice in marketing grain; Bill C-39, to modernize the grain act for farmers; Bill C-57, to modernize the election process of the Canadian Wheat Board; and Bill C-22, to provide fairness in representation in the House of Commons.

I know all Canadians think these are important bills. We in the government think they are important and we hope and expect that all members of the House of Commons will roll up their sleeves to work hard in the next two weeks to see that these bills pass.

Official Languages Act

[Raymond Simard, Liberal, Saint Boniface, MB]

Mr. Speaker, it is a pleasure for me to join the debate today on Bill C-482. I must say at the outset that I have a great deal of respect for the member for Drummond, but I profoundly disagree with her on this bill. The bill is extremely dangerous from the point of view of a francophone from outside Quebec. It would give precedence to the French language in federal institutions in Quebec. I can only imagine the repercussions in the other provinces.

First, there is the whole issue that the federal government must respect the Constitution. I will not go into the details of that subject because my colleague from Ottawa—Vanier has very clearly spelled out the matter of constitutional principles. However, I do not understand how anyone could introduce a bill here, in this House, that goes against the Constitution of Canada. I want to look at practical reasons.

The Official Languages Act that was adopted in 1969 has protected and continues to protect our country’s two official languages. The act puts both official languages of our country on an equal footing. I will be the first to admit that there are many challenges to overcome. In a country as large and diverse as Canada, where there is a strong concentration of francophones in one province and where we encourage and celebrate multiculturalism—which is another factor that adds to the complications in an officially bilingual country—it has never been easy to find a balance in all of the issues related to official languages.

Nevertheless, we have made enormous progress. The Official Languages Act was essential to the growth of our minority francophone communities. The member for Drummond said that the use of French is declining in Quebec and everywhere in Canada.

However, we must talk about positive changes. In Manitoba, for example, there 45,000 people of francophone descent, but in principle, 110,000 people speak French. These people completed French immersion or second language courses. In British Columbia, parents, especially from immigrant communities, stand on the sidewalk all evening to register their children in immersion courses. This is really an interesting and significant phenomenon.

Significant changes are occurring in terms of respect for the two official languages. Let us take, for example, the group Canadian Parents for French, which last year or the year before celebrated its 25th anniversary in Manitoba. It is an exceedingly positive group for francophones right across the country.

In this age of globalization, people are realizing that knowing two or three languages is becoming the norm, not the exception. The hon. member will recall a study we did together on democratic reform. We visited England, Scotland and Germany, where she had an interpreter with her. In fact most of those we met spoke two, three or four languages and offered to speak French. That is today's reality.

I do not understand the strategy of turning inward and trying to stick to a single language. It makes no sense in today's world.

I do understand that we want to protect our language. We live in this great anglophone sea that is North America. However, today's youth must not be held back. The teaching of both official languages must be encouraged as must their use in the workplace. Our young people must be given every opportunity.

I have never understood why there has not been greater cooperation between Quebec and francophones outside Quebec. There are 6 million francophones in Quebec, but there are 2.6 million francophones in Canada's other provinces. Once again, in this great North American sea of 330 million people, it seems to me we would do well to work together—cooperatively—more closely and to join forces. But no, it is just not done to acknowledge that there are francophones living outside la Belle Province or that immersion programs are working extremely well. It would not be politically sound for a separatist party to admit that its distant cousins were managing quite well and that there were vibrant communities to be found in Saint-Boniface, Manitoba, Vancouver, Regina, New Brunswick and even Alberta.

What was really heartbreaking was the Bloc's vote against Bill S-3, a bill that was vital for minority francophone communities. I can say for a fact that not all the Bloc members supported the decision by the leader of the Bloc.

The Bloc Québécois members who sat on the Standing Committee on Official Languages were torn by this decision. They knew that Bill S-3 was essential to the survival and development of francophone communities outside Quebec. Despite this, it was decided that they should vote against Bill S-3. How can that be good for the Canadian francophone community?

The other day, one of the Bloc members said that Quebec is a francophone nation. That disappoints me. How does a statement like that make the anglophones in his riding feel? That member does not necessarily represent everyone. That bothers me greatly. Anglophones and allophones also have the right to a representative that takes their interests to heart.

Things are changing. For example, in Manitoba, Premier Doer just created the Agence nationale et internationale du Manitoba. It is a francophone Manitoba Trade. We understand the added value of francophones in our province. It is the exact opposite of what is happening in the world and in all of the other Canadian provinces. In Quebec, they want to withdraw into themselves. I do not understand this senseless ideology.

As I said earlier, Canadian Parents for French is the most vocal group in terms of early immersion in New Brunswick. This group is essential for francophone communities.

Instead of seeing this withdrawal, I would rather see the Bloc Québécois work with us to restore the court challenges program and to put into place a new official languages action plan. It would be constructive and would advance French throughout Canada, including in Quebec.

In my opinion, the bill introduced by the member for Drummond would have the opposite effect, and I cannot support a bill that could harm our language. We have all worked too hard to preserve it.

[Marie-Pierre Simard]

At the same time, Bill S-3 was voted on. It was on a Tuesday or a Wednesday. The following Monday, the federal government decided to streamline border services, customs. The only francophone district in the Atlantic provinces was merged and it became an anglophone district.

S-3 may be working, but some people are not talking. When it comes to respecting the partners, I sometimes get the impression it is mandatory compliance. I won't elaborate any further on that, so that you may make up your own mind on the issue. Moreover, I would not want to take up Mr. Gravel's time.

Criminal Code

[The Acting Speaker, Conservative, Royal Galipeau]

It being 1:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

When we return to the study of Bill S-3, the hon. member for Beauharnois—Salaberry will have 10 minutes left for questions and comments.

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.

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

Mr. Speaker, I am pleased to speak to this debate on Bill S-3. I will start by saying that the Bloc Québécois is opposed in principle to Bill S-3.

The Bloc Québécois has a responsible approach to analyzing such bills, because we believe that any anti-terrorism legislation must strike a balance between maintaining safety, which is very important, and respecting the other fundamental rights.

With this in mind, the Bloc Québécois became very involved in the review process of the Anti-terrorism Act and its application, a review which is provided for in the act itself. From December 2004 to March 2007, the Bloc Québécois listened to witnesses, read submissions and interviewed specialists, members of civil society and law enforcement officials. As usual, the Bloc Québécois was passionate, professional and thorough in its work.

During the specific review of the two provisions in Bill S-3 by the Subcommittee on the Review of the Anti-terrorism Act, the Bloc Québécois clearly stated its position on the investigative hearings and on recognizance with conditions. The Bloc Québécois thought better guidelines for the investigative process were needed.

It is clear to us 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.

The Bloc Québécois also firmly opposed section 83.3 dealing with preventive arrest and recognizance with conditions. Not only does this mechanism appear to us to be of little, if any, use in the fight against terrorism, but also, we believe that there is a very real danger of this provision being used against honest citizens.

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

As a result, we recommended the abolition of this mechanism and we won on February 27, 2007. Today, as always, the Bloc is consistent, and our position on the issue has not changed.

I would add that the investigation process should not be reinstated unless major changes are made to it, which Bill S-3 does not do. Moreover, preventive arrests have no place in Canada's justice system because of the potential consequences and the fact that other, equally effective, provisions are already in place.

As we all know, Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), was read for the first time in the Senate on October 23, 2007. The purpose of the bill is to reinstate two provisions of the Anti-terrorism Act that were abolished when the sunset clause was allowed to expire. The vote on the sunset clause was held on February 27, and parliamentarians did not extend the provisions. That was the will of the House as voted.

I am surprised that the government is bringing back in this bill two clauses that have already been debated and defeated in a vote right here in the House of Commons.

Perhaps we could look at what section 83.28 of the Criminal Code, on investigative hearings, was all about. Under this provision, a peace officer could, with the prior consent of the Attorney General, apply to a provincial court or superior court judge for an order for the gathering of information. The order, if made, required the named person to appear before a judge for examination and to bring any thing in his or her possession.

The person named in the order had the right to counsel and was required to answer questions, but could refuse to do so in order to avoid disclosing information protected by any law relating to privilege or disclosure. The presiding judge was to rule on any refusal. The person was not excused from answering a question or producing a thing on the ground that that could incriminate him or her. In fact, the person simply lost the right to remain silent. However, no information or testimony obtained during an investigative hearing could subsequently be used directly or indirectly in other proceedings, other than a prosecution for perjury or contradictory evidence.

In our opinion, investigative hearings were not useful. Moreover, they were never used. In the normal course of an investigation, the police can already question witnesses and conduct searches to obtain documents. This is possible under the current law, which means that, in a way, Bill S-3 is seeking to reintroduce almost exactly the same provisions we refused to extend.

If we look more carefully at recognizances, arrests and preventive detentions, section 83.3 of the Criminal Code dealt with recognizance with conditions. A peace officer who believed that a terrorist activity was going to be carried out and who suspected that the imposition of a recognizance with conditions or the arrest of a person was necessary to prevent the terrorist activity could, with the prior consent of the Attorney General, lay an information before a provincial court judge. That judge could order that the person appear before him or her. A peace officer could arrest the person named in the information without a warrant if the arrest was necessary in order to prevent a terrorist activity from being committed.

The person detained in custody had to be taken before a provincial court judge within 24 hours or as soon as feasible. A hearing known as a show-cause hearing was then to be held to determine whether the person should be released or held longer. This hearing could not be adjourned for more than 48 hours.

If the judge determined that there was no need for the person to enter into a recognizance, the person had to be released. If the judge determined that the person should enter into a recognizance, the person was bound to keep the peace and respect other conditions for up to 12 months. If the person refused to enter into such a recognizance, the judge could order that person to be imprisoned for up to 12 months.

I will repeat, this provision had never been invoked before it was abolished. That is not surprising because police officers could, and still do, use the other provisions of the Criminal Code to arrest someone about to commit an 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;

The person arrested must then be brought before a judge who can impose the same conditions as those in the Anti-terrorism Act. The judge can even refuse bail if he believes that the person's release would endanger public safety.

If the police believe that an individual is about to commit a terrorist act, it is because they are aware of a plot. They probably know, based on wiretap or other surveillance information, that a criminal act 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.

They will eventually go to trial, at which time that person will have the opportunity to present 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 apprehended terrorist activity would have been disrupted just as easily as if section 83.3 had been used. However, it is this provision that is most likely to give rise to abuse and this concerns the Bloc Québécois greatly.

It may be used to brand someone a terrorist on grounds of proof that are not sufficient to actually accuse 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 entering many other countries. It is very likely that he will lose his job and be unable to find another. These are serious consequences for the person affected by this provision.

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, temporary provision of the Criminal Code had been used, a judicial decision could have imposed 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. A parallel fight against these injustices is often conducted by those who want to correct them through democratic means. Such people have made a positive contribution to the transformation of the societies in which we live today. They have often been the source of many of the rights that we enjoy.

It is inevitable that political activity will bring terrorists and non terrorists together. Very often, the latter will not even be aware that the former are involved in terrorism. The planning of terrorist activity is by its nature secret, of course. In order to determine whether a person is part of a terrorist network, as we saw in the Arar case, security organizations will monitor a person's contacts. For a judge to be able to order incarceration and, subsequently, the imposition of bail conditions, it is sufficient that the judge be convinced, and I quote, “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 in these two sections, there is a very big difference in the consequences of applying these two sections.

Section 810 states that a person can be summoned, not arrested, before a judge, who can order that person to be of good behaviour.

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

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 decided not to support the extension of this measure. For one thing, it is of little, if any, use in the fight against terrorism, and second, there is a very real danger of its being used against honest citizens. In addition, a terrorist activity deemed dangerous can be disrupted just as effectively, and in fact more effectively, by the regular application of the Criminal Code.

As we mentioned on several occasions, Bill S-3 is virtually identical to the two measures that were abolished, namely the investigative hearing, under sections 83.28 and 83.29 of the Criminal Code, and the recognizance with conditions, under section 83.3 of the Criminal Code. Except for a number of technical amendments, such as the rewriting of some parts to make minor clarifications, there are only three substantive changes.

Let us take the change made to the investigative procedure. As regards the standardization of that procedure, the “old” investigative process made a distinction based on whether the terrorism offence had already been committed, or was going to be committed.

In a case where the terrorism offence had not yet been committed, the judge had to be convinced—in addition to meeting other criteria—that “reasonable attempts have been made to obtain the information”—

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

Mr. Speaker, I congratulate my colleague from across the way on her speech. She defends her arguments and her party's position passionately and with conviction. Further, she knows very well that the Bloc Québécois and the NDP will vote against Bill S-3

This makes me think about how each time I see a woman rise in this House, I am reminded of how few of us there are. I would like to take this opportunity to urge the parties to recruit more women so they can speak out in this House. Perhaps then the debates would be more informed and they would be different. I think members know what I mean. We would like more women in this House, and I urge the parties to recruit more for the next election, so we can have equal representation by men and women.

That said, I would like to ask my colleague what bothers her the most about this bill. What bothers her and affects her the most? What does she think is hiding behind this bill? I would like to know.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I am very pleased to have the opportunity to speak to Bill S-3 again, because I have spoken previously on it.

I would like to spend a few minutes retracing where this bill came from. I was a member of Parliament when this bill came forward in its first incarnation. It was Bill C-36, the anti-terrorism legislation. It came forward after the attack on the World Trade Center towers on September 11, 2001. It went through the House very quickly.

I remember at that time getting up to speak to the legislation. In fact, the NDP caucus opposed the legislation. We believed that the path being taken by the then Liberal government in this massive new venture of anti-terrorism legislation was not warranted.

We had grave concerns at that time about the impact it would have on life and civil liberties, particularly on Canadians who were originally from the Middle East, who were part of the Canadian Arab or Muslim communities, because after September 11, there was a shift in what was taking place in our society. Many things changed, one of which was the legislation that came forward.

The debate was not that long. In fact, one of the concerns the NDP had back in 2001 was how quickly the legislation was being pushed through Parliament. This was very serious legislation that made very significant departures from the process of law that we understand in this country. We said that the two clauses we are dealing with today, seven years later, were particularly offensive.

Because there was so much debate about those two clauses, which happened to deal with investigative hearings and preventive detention, it was agreed by the government, finally, that those clauses could be sunsetted. They would come under a review so that Parliament would have to examine the legislation and those specific clauses again.

The Anti-terrorism Act passed very quickly. The Bloc at that time may have opposed it as well, I am not sure, but it was basically the NDP and maybe the Bloc who voted against it. The Conservatives and the Liberals voted for it. We knew it would come back for debate and of course that happened. We had that debate a short while ago, because we knew those two clauses would become null and void unless they were somehow continued or reintroduced by March 1, 2007.

On February 27, 2007 there was a vote on those two clauses and, interestingly, they were defeated. It was a very important moment in the House of Commons to see that after a full debate in the House by all political parties, the NDP, the Bloc and some members of the Liberal Party defeated those amendments.

The government has reintroduced, with virtually no changes or very small changes, the same two amendments dealing with investigative hearings and preventive detention. The NDP is standing for the third time to speak out against this legislation.

These clauses have actually never been used. They are an affront to a democratic society. They create a path and a process that we do not want in this country.

Whenever I have spoken at community meetings or public hearings about security issues, more often than not, people voice their very significant concerns about the kind of legislative initiatives that are being undertaken as a result of September 11, and about how much has changed in our society in terms of security. Many people have been targeted, particularly visible minorities.

I want to pay tribute and respect to the organizations that have never given up in speaking against this kind of legislation, and this legislation in particular, whether it is at parliamentary hearings or at hearings that have been organized in the community. There are people in this country who have remained vigilant even in the face of sometimes a public appetite to have greater security measures. There have always been organizations like the B.C. Civil Liberties Association, the Canadian Bar Association, the Canadian Arab Federation, the Muslim Association of Canada and many others who have always come forward to warn and alert parliamentarians about the dangers of this legislation.

It is very important that we remember that. Sometimes in the furor and frenzy of when things happen, people feel threatened and insecure, and it is very easy for governments to play a very opportunistic role, to play on those fears and to bring in the kind of draconian legislation that we have seen with the Anti-terrorism Act.

We have come to see over the passage of a number of years now that that legislation was not needed. Therefore, it is somewhat concerning and surprising that yet again we are debating this bill, that we are debating these two particular clauses. The Conservative government, with the support of the Liberals, is prepared to re-enact these amendments that have already been voted down by the Canadian Parliament.

When I speak to my constituents, they are very concerned about what is taking place in this country. For example, this weekend is the fourth annual summit of the security and prosperity partnership. It is taking place in New Orleans. Our trade critic, the member for Burnaby—New Westminster, is one of the members who will be participating in a very broad people's summit, as opposed to the leaders' summit in New Orleans that is going to be discussing what is called the SPP.

The Council of Canadians, the Communications, Energy and Paperworkers Union of Canada, CEP, the United Steelworkers, and many other organizations will be heading to New Orleans, probably today, to participate in the SPP people's summit. Just as we saw at Montebello at the leaders' summit, where the Prime Minister of Canada, the President of the U.S. and the President of Mexico met behind closed doors to discuss security and trade issues, that will take place in New Orleans.

I am very glad that those members of civil society, and there are 30 organizations that are hosting the people's summit in New Orleans, will be there to push for and demand accountability from these leaders, who are trying to further this incredible agenda, the economic, political, cultural and security agenda between our three countries, and the integration of Canadian society politically, economically and culturally into the United States.

Many people are hugely concerned about this. I wanted to raise this today as we are debating this bill because I think that they are very much related. We have seen so many different processes that we are not even barely aware of. Sometimes we get leaked information. Sometimes we find out about what is going on, but all of these processes are taking place behind closed doors.

There are some people who have access. Business elites have access to this process. In fact they have their own forum for raising these issues and bringing them to government. In terms of the Canadian Parliament, people generally, or organizations or the labour movements, civil society, have no access to this process. A lot of this process, in terms of the security and prosperity partnership has to do with security measures in developing a common front of security measures, a merging of the American system with the Canadian system.

We know that anytime we cross the border. There are many of my constituents who, for no apparent reason, have experienced terrible interrogation and investigation at the border, and sometimes have been refused, all under the guise of security.

It really comes back to the broadness of the bill and what it represents. Although the bill has very specific measures in it, to me, former Bill C-36 and Bill S-3, the one we are debating today, exemplify this environment of heightened security, of control by the state, of the clampdown on civil society, the clampdown on individual rights and liberties. This is something that we should really stand up against.

I am very proud that in the NDP we have done that historically. Whether it is the War Measures Act in Quebec, whether it is the internment of Japanese Canadians during the second world war, there are these moments in our community's history where we have to make a decision as to whether or not what is being laid down has a basis and merit, or whether it is actually, in the long run, undermining the fundamental principles of a democratic society. We in the NDP believe that the anti-terrorism legislation did just that. It fundamentally changed Canadian society.

There was a feeling at the time that this really would not affect many people. It was somehow those people; it created an environment of them and us. It is a very dangerous situation when we identify a group of people as being a threat. That is precisely what this legislation does. We have to take the attitude that when civil liberties of any minority, whether it be religious, ethnic, sexual orientation, gender or whatever it might be, any discrimination, any singling out is not only a threat to that group, but it is a threat to all people.

Even if we do not feel immediately threatened or if we do not feel that we are the ones who are being targeted, we have a responsibility to speak out in defence of civil rights and civil liberties for all people. In my community there are people who feel very strongly about that. They are very concerned about the direction that we have taken in the last seven years.

It was actually because of the anti-terrorism legislation that a few years ago I introduced a bill to eliminate racial profiling in Canada. It was a very interesting experience to introduce that bill. When I introduced it, I held a number of hearings across the country, and I was quite taken aback by the response I got in different cities from people who came forward with personal experiences about having been targeted. It has always taken place.

Racial minorities in this country have always been targeted, but it escalated and went off the charts after September 11. I heard from people that it was both random and systemic. The chances of being held up at the border, particularly at airports but also at ground crossings, greatly increased if one looked like a member of a certain community, if one was Muslim, or wore the hijab, or was a member of a minority from the Middle East. That became very clear in talking with people and hearing about people's experiences.

The bill that we introduced to eliminate racial profiling is very important. I am very pleased that the bill has been reintroduced by my colleague from Burnaby—Douglas and it is now Bill C-493. We hope it will come forward for debate in the House one day because I think there is very strong support for that bill.

We also know the experience of Maher Arar and the horrendous situation that that one individual faced in terms of a complete denial of his basic human rights. He was sent to the U.S. with Canadian complicity and then to Syria, where he remained in jail for so long. He was tortured. It was only because of the work of his wife, Monia Mazigh, his family, his community and broader civil society that the issue finally came forward and there was a public hearing.

It is again one of those moments in Canadian history where people feel that a grave injustice was done, although it is good to know that because of the public pressure, there was a public hearing and finally an apology made.

However, what that family went through is something that probably none of us will understand or be able to relate to because it was so deep, so grievous and so harmful. We must learn from that experience.

In light of all of those things that have happened, here we are in 2008 debating whether or not two clauses in the bill should continue. We have already voted once that they should be defeated, that they should be left null and void as a result of the date the sunset clauses came into effect.

I would hope that we in the House could abide by that. We have had a vote. It was taken in February 2007. The clauses were defeated by 159 to 124 members. I am hoping that might happen again this time. The Conservative government has reintroduced these clauses and is hoping they will go through.

I am hoping very much that there is enough expression, will and solidarity in the House from the NDP, the Bloc and maybe some members of the official opposition that we can again defeat these amendments as unnecessary.

We look at our global community and Canada's part in that, and read about what is taking place in the world today. People do not want to see this kind of legislation. This legislation will not do anything to stop food riots, to improve food security, whether in Canada or around the globe. It will not do anything to improve the health of developing nations, eliminate starvation or help the millions of children and families who are suffering needlessly because of the incredible inequities in resource development and wealth distribution on our planet.

This legislation does not address those issues at all. In fact, it exacerbates a global system that is based on U.S. domination in terms of foreign policy and the war in Iraq, and certainly Canada's involvement in the war in Afghanistan. All of these things are connected.

Yet, if we talk to people and ask them what they are worried about and what they want to see us, as parliamentarians, focus on, people will tell us that they want to look at legislation, programs and policies that actually improve equality and social justice in our world. They want to see us focus on those priorities and to deal with those terrible inequities that exist.

I am coming to the conclusion of my comments today and I am glad that I was able to speak to the bill, as I have before. I will speak whenever it is necessary, as will my colleagues in the NDP, because we believe that we play a very important role in the House of standing up.

We take our role very seriously. We come here to vote. We do not sit on our hands. We challenge the government's agenda and we speak for a majority of Canadians who, if they had a direct vote in this, would not be supporting this legislation, Bill S-3, today.

I hope that when we get to the vote, there will be enough members of the House to defeat this, as we did before, and to recognize that these amendments are not necessary. They have not been used. They are not needed. We should focus our attention and our priorities on the issues Canadians really want us to in terms of building healthy, safe communities, respecting our environment, and promoting social justice in our world.

[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 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.

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.

[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.

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

Mr. Speaker, I am pleased to have this opportunity to speak to Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions). This bill raises some very important issues and fundamental questions about our justice system and our respect for civil liberties and human rights. I believe that this legislation compromises key principles of our justice system.

I want to begin with a quotation cited by Yusra Siddiquee, a representative of the Canadian Muslim Lawyers Association, when he appeared before the Senate committee studying this bill. He quoted Justice Binnie of the Supreme Court of Canada, who said:

The danger in the “war on terrorism” lies not only in the actual damage the terrorists can do to us but what we can do to our own legal and political institutions by way of shock, anger, anticipation, opportunism or overreaction.

It is important to keep this in mind. We have to remember that these provisions and ones similar to them in many other countries grew out of the period immediately following the September 11, 2001 attacks on New York and Washington, a period when all of us were concerned for our security and anxious and fearful.

There are two major provisions in the bill before us, one for investigative hearings and the other for preventive detention. These were part of the Anti-terrorism Act that was passed in the period immediately following September 11, 2001. In that original legislation, these particular provisions sunsetted after five years.

Under the terms of the sunset clause, the provisions of the Anti-terrorism Act relating to investigative hearings and recognizance with conditions were set to expire on March 1, 2007 unless extended by a resolution passed by both Houses of Parliament. A government motion to extend the measures without amendment for three years was defeated in the House of Commons on February 27, 2007 by a vote of 159 to 124, and the provisions ceased to have any force or effect.

That was the right decision. I am glad that the House took that decision. Now the government has reintroduced these provisions in this new legislation and that is the wrong decision. Both of these measures fundamentally compromise key principles of our justice system.

Let us consider first the provisions for investigative hearings. These provisions force someone to testify before a judge if he or she is suspected of having information about terrorist activity that has already occurred or that might occur. This provision directly compromises the right to remain silent, one of those fundamental principles of our justice system.

The refusal to testify at an investigative hearing can lead to one year of jail time. This can also reduce the right to silence for persons who are questioned by the RCMP or CSIS, in that if they are uncooperative with a police investigation, the possibility of having to go to an investigative hearing can be used to compel cooperation and compromise their right to remain silent.

Not everyone who chooses to remain silent is guilty. People may have very legitimate fears and concerns, such as fears and concerns about their own personal safety, for instance. Given the broad definition of terrorism in the Anti-terrorism Act, this provision is a problem, and the definition has come in for criticism over the years as well.

Many members who support this bill have said in debate that these are extraordinary measures that will be used in only the most serious of circumstances. I appreciate what RCMP Assistant Commissioner Mike McDonell said before the Senate committee. He stated:

First, and most importantly, the RCMP recognizes that these provisions were intended for extraordinary situations and, as such, we approach them with restraint.

My preference would be to not go down that road until it is proven clearly that the measures already at our disposal are not effective in dealing with the challenges of terrorism faced in our country. Those good intentions are noble, and I believe the commitment made by the assistant commissioner is sincere, but as the expression goes, the road to hell is paved with good intentions.

These provisions represent a very serious departure and in reality could be used against people who are legitimately protesting or are viewed as dissidents by our society. They could be used to harass or even imprison such people.

This provision also puts a judge in the position of having to oversee an investigation. This is not the practice of our justice system and is not something that most judges have any experience with. This is a major departure, since investigations in our system are undertaken by police authorities.

Jason Gratl, the president of the B.C. Civil Liberties Association, put the concern this way:

The primary difficulty with investigative hearings is that they distort the functions of the judiciary and the Crown. In essence, the course of order-making power of the judiciary is brought to bear on an investigation. That power places prosecutors in the role of investigators, which is unlike their usual role. It also places the judiciary in the position of presiding over a criminal investigation.

The other provision, preventive detention or recognizance with conditions, is the other key part of this bill. Again, this compromises a key principle of our justice system: that one should be charged, convicted and sentenced in order to be jailed.

This provision would allow the arrest and detention of people without ever proving any allegation against them. It could make people subject to conditions on release, with severe limitations on their personal freedom, and again, even if they have never been convicted of any crime.

Jailing people because we think they might do something criminal is very problematic, to say the very least, and it is easily apparent how such a measure can be easily abused. It is very similar to the provisions of the security certificate legislation in our Immigration and Refugee Protection Act. Under that legislation, five men remain either in jail or subject to incredibly strict release conditions, house arrest conditions, even though they have never been convicted of any crime in Canada.

Hassan Almrei remains in jail at the Kingston Immigration Holding Centre, a double maximum security prison. He has been there for almost seven years now, ever since just immediately after September 11, even though he has never been charged with, let alone convicted of, any crime.

Adil Charkaoui, Mohamed Harkat, Mahmoud Jaballah and Mohammad Mahjoub are prisoners in their own homes, guarded by their spouses and others. These situations are very unjust. It is wrong for this to be included in the immigration legislation. It is wrong to include this same kind of measure in our anti-terrorism legislation.

These measures open very serious files on individuals, files alleging that they have some connection to terrorism. These files are opened on people who have never been convicted of any crime. They can be based on allegations that have never been proven. How do they defend themselves in such circumstances?

In this corner of the House, we believe that the Criminal Code is the best way to deal with issues of terrorism. The NDP justice critic, the member for Windsor—Tecumseh, in his minority report on the Anti-terrorism Act review, said the following:

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 premeditated, 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 terrorist motive as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high and that deterrence and denunciation are grounds for stiffer sentencing. This is what they have always done in the past and there is no reason to think they will do differently in the future.

I can think of no offence related to terrorism that is not already included in the Criminal Code. I can think of no circumstance of a crime committed as part of an act of terrorism that would not be dealt with in the strictest, toughest way by our courts.

For instance, counselling to commit murder is already an offence under the Criminal Code. Being party to an offence is also a crime.

The crime of conspiracy is well established under the Criminal Code and deals with the planning of criminal activity. Let us be clear. In the conspiracy category, no crime actually has to be committed for someone to be found guilty of conspiracy under the Criminal Code.

We also have hate crime legislation that outlaws the promotion of hatred against a particular group.

It should also be noted that peace bond provisions already exist in the Criminal Code and can be exercised when there are reasonable grounds to believe that a person's life or well-being is threatened by another person. This provision has similar power to preventive detention, but more significant safeguards are built into the Criminal Code provision. No one has demonstrated to my satisfaction that this existing provision will not meet the needs of dealing with terrorist activity.

As Denis Barrette, spokesperson for the International Civil Liberties Monitoring Group and la Ligue des droits et libertes has said:

—Canadians would be better served and better protected if the authorities rely on the standard provisions of the Criminal Code. The use of arbitrary powers and the lowering of the standard of proof are no substitute for police work carried out in compliance with the rules. Indeed, these powers open the door to miscarriage of justice and the significant likelihood of damaging the reputation of individual citizens...

If our police and intelligence authorities do not have the resources they need to investigate potential terrorist acts and to charge those responsible, then we should review their needs immediately.

We cannot consider the bill without considering the question of racial and religious profiling. Racial and religious profiling is a problem in terrorism related investigations and prosecutions. It is a reality for many Canadians, especially those in the Arab and Muslim communities, but also to other people in other racial minority groups.

The provisions of Bill S-3 do nothing to reduce such concerns or to protect Canadian citizens from such profiling. We have to struggle with the experience of Arab and Muslim communities in Canada in the post-September 11 period.

Imam Zijad Delic, the national executive director of the Canadian Islamic Congress, and formerly the Iman of the mosque in my community, brought some of the concerns of Canadian Muslims before the Senate committee. He noted their position that the Criminal Code could deal fully with terrorism-related crimes and that it best balanced security with human rights. He also noted that ensuring all Canadians participated fully in our society without having to be regarded with suspicion was very important. He said:

Education, engagement, participation and institutional integration through inclusion are far better alternatives....moving forward with good faith will create the atmosphere of trust, cooperation and engagement we need to make progress.

He also made a very direct plea at the committee when he said:

On policies and practices, profiling Canadian Muslims is an issue on which the Government of Canada and Canadian Muslims differ significantly. Muslims cannot accept that we are profiled as a security threat to our own country. If government policy is not engaged in profiling, its actual operational practices speak differently, as evidenced by many cases in Canada. Please do not give our law-and-order people more power without appropriate accountability....Canada does not need laws that will prevent its citizens from feeling accepted, embraced, safe and secure. Canada needs to rethink its approach toward this bill and to focus on bridge-building between government and the many communities and groups that make us the unique mosaic we are.

There is an important message in his statement. We must pay clear attention to the effect that legislation like Bill S-3 and its extraordinary provisions have in our communities, the effect that it will have on some law-abiding, honourable Canadians. If the legislation increases their insecurity, if it does not promote their safety, how can we believe that somehow it adds to the overall protection of Canadian society?

J.S. Woodsworth, the first leader of the CCF, once said, “What we desire for ourselves we wish for all”. We would be well advised to struggle with the meaning of that in the context of developing anti-terrorism and security measures that are experienced positively by all those Canadians who seek peace and justice, respect the law, promote values of equality and oppose terrorism.

I should point out that the NDP has a proposal to address racial and religious profiling in Canada in Bill C-493, which I tabled in the House. The original version of this bill was tabled by the member for Vancouver East and after consultations with members of the Arab, Muslim, black, aboriginal and South Asian communities, it was revised and re-tabled as Bill C-493.

That bill states that enforcement officers from the RCMP, Canada Customs, Canada Revenue Agency, the immigration department, Canada Border Security Agency, those operating under the Aeronautics Act or CSIS must not engage in racial or religious profiling. Those agencies must collect data to ensure this practice is not engaged and must put in place explicit policies and procedures to prevent it and to respond to complaints. They must also undertake an analysis of racism and how it functions in the context of the particular agency.

Racial and religious profiling is hugely detrimental to the stability and success of Canadian society. It must not be tolerated in any form. We must be explicit in our condemnation of it and ensure it is prohibited in law.

Denis Barrette also stated at the Senate hearings on Bill S-3:

These laws are used in emergencies, where fear and panic are at the forefront—somewhat like what happened at the time of September 11, 2001.

Fear is never a good adviser. It is rather in moments of peace and quiet that the importance of preserving rights and freedoms should be rationally assessed. It is obviously important to defend them in difficult times, but we must plan for how to protect them in difficult times.

It is easy to protect rights and freedoms in peaceful times. We must provide for the unpredictable and ensure that, in a moment of panic, legislation does not result in innocent victims because it was poorly conceived or because it was dangerous or useless.

I say clearly that I am opposed to Bill S-3 and the revisions it makes to the Anti-Terrorism Act, to reintroduce investigative hearings and preventive detention. We should instead let the Criminal Code of Canada do the job, a job it is fully capable of doing. We must also ensure that our police and intelligence authorities have the resources they need to carry out their investigations effectively and with respect for all Canadian citizens for human rights and for civil liberties.

The House resumed from April 17 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.

[The Acting Speaker, Conservative, Royal Galipeau]

It being 5:30 p.m. the House will now proceed to the consideration of private members' business as listed on today's order paper.

When we return to the study of Bill S-3, there will be four minutes left for debate for the hon. member for Etobicoke North and 10 minutes of questions and comments.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I am pleased to participate in this debate on Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) or, as I prefer to call it, the investigative hearings and preventive arrest.

This bill is a follow-up to Bill C-36, which went through the House of Commons and through the Senate in time for the provisions of investigative hearing and preventive arrest to be continued because they were sunsetted and were about to end in February 2007.

At that time there were some discussions and agreement that perhaps some enhancements could be made. The Senate has considered some enhancements to what was Bill C-36. At least the bill was passed in time for these provisions not to lapse. Now we have before us an improved former Bill C-36 in the form of Bill S-3.

I will comment in a moment on the enhanced provisions, but I would like to set the stage for a moment. It is my own view, and I think largely the view of this side of the House and our caucus, that this bill is needed for a few reasons.

First, the threat of terrorism is still with us. The threat of terrorism has not subsided. We saw not too long ago in the newspapers and other media a case in the United Kingdom where a cell of alleged terrorists had been plotting to blow up aircraft that were destined for Canada and the United States. Admittedly, they will be facing those charges in court, but there have been terrorist events preceding that.

I think we need to be ever vigilant. In fact, in Canada we should be somewhat proud that we have had a regime in place that perhaps has been successful in thwarting any attempts to compromise our national security. Having said that, we need to be ever vigilant because the terrorists do not sit idly by. It is known that al-Qaeda has Canada on its list of targets. It is no secret that our troops are in Afghanistan and that causes some consternation among certain parties. I believe this anti-terrorism regime and these provisions are still needed because terrorism is still around us and still a threat.

I also believe these provisions are needed because I do not subscribe to the argument that because we have not had a terrorist event in Canada since the original Anti-Terrorism Act was enacted that we do not need these provisions any more. To me, it is sort of tantamount to saying that if one's house has not burned down one does not need fire insurance. I think that is folly for an argument and we need to have these provisions in place to ensure we do not have a fire in our home.

Third, I think the concerns of some, when these original provisions were enacted, that they would be used in a less than judicious way by the law enforcement agencies, has proven to be wrong. The fact is that they have never been used but that should not mean that we do not need them because we do. We need to have this tool in the toolkit of our law enforcement people in Canada so that if the day comes, and hopefully it will not, they can resort to it.

There is no greater responsibility of a government than to protect and safeguard its citizens. This always needs to be carefully balanced with the civil rights of its citizens. It is a very delicate balance. I do not think anyone would be as naive or as vain to think that we always have the balance right. It is never an easy task but we need e to deal with it and that is why this bill is before this Parliament. As parliamentarians, we need to wrestle with these issues and deal with them.

We have a group in Toronto that was rounded up a couple of years ago, the Toronto 15. There is some confusion I think among Canadians about how these people were charged and rounded up. The fact is that provisions of the Criminal Code were used to arrest these people.

One could argue that if we used the provisions of the Criminal Code there, why could we not always use provisions of the Criminal Code? It is a good point but it is not a compelling argument because in this particular case the police had informants. They had information and certain evidence.

At the end of the day, of course, these people are being tried and dealt with by the prosecutors, the courts and the police. Some of them have already been released. If they were completely innocent, it is unfortunate that they had to be incarcerated for a period of time. I am not sure if some of them got out on bail but it is always an unfortunate event if people are arrested and then not subsequently charged. However, in this particular case, the police had sufficient evidence and arrested them under the provisions of the Criminal Code.

This type of situation does not always exist. We know that terrorists communicate, sometimes in encoded ways, sometimes electronically, sometimes in various shapes and forms, and our investigative forces, law enforcement and other security forces in Canada, have ways of tracking this type of communication traffic. There will be a time, and perhaps there has been already one that we are not aware of, when the law enforcement agencies will pick up something that indicates that perhaps a terrorist event is about to be committed but they do not have sufficient evidence to lay a charge or to have these people arrested.

I had the good fortune and honour to serve on the subcommittee of the Standing Committee on Public Safety and National Security. We investigated, exhaustively, the anti-terrorism legislation in Canada when it was up for review after five years. I will never forget the testimony of a gentleman who came from the United Kingdom. I forget his exact title but he was responsible for overseeing the anti-terrorism provisions in the United Kingdom.

The analogy he used was that if the police pick up information that a bank is about to be robbed, what they can do in a case like that, and they often do, is stake out that particular site. If the crime is perpetrated, then the police are there, they arrest the criminals and that is it. However, we cannot do this with a terrorist attack.

People move, and we see it all the time in various shapes and forms, different guises, perhaps with munitions strapped to them and it is often impossible to stake out. We could stake it out but then the terrorist event could happen and innocent people could lose their lives. Therefore, it is not really susceptible to that same type of action by law enforcement agencies.

I want to talk briefly about what the Senate has done to improve these provisions of preventive arrests and investigative hearings.

First, the Senate amendment calls on law enforcement to convince a judge that all reasonable attempts for the collection of information about potential or prior terrorist activity has been done before an investigative hearing is ordered.

An investigative hearing would be when the police bring together a group of people to seek out information about a possible terrorist activity. In my own judgment, I am more interested in the proactive view of how these provisions would be applied. I am not that interested in how they could be applied retroactively because I think the whole idea of the anti-terrorism legislation is to prevent a terrorist event, not go back in time, but, nonetheless, I know there are others in this House who feel differently about it. However, we need to at least have the provisions that would look forward to any proposed or possible terrorist event in the future.

What these amendments do is say that law enforcement must have to convince a judge that all other reasonable efforts have been made to deal with this, without having an investigative hearing. At an investigative hearing people are rounded up and asked to come before a judge and there are questions, and it is somewhat of an infringement on civil rights.

Nonetheless, a judge is involved within 24 hours. In other words, a hearing has to be conducted in a very swift fashion, and the same applies to preventative arrests. In fact, the people under the provisions of our law have to be released within 24 hours, and as others in this House have pointed out, these provisions are actually less onerous than those in countries like United States, United Kingdom and Australia. These amendments in the Senate call for that.

Also, another important change is that the bill now has narrower wording stipulating the grounds on which an individual may be detained. It is useful and responsible for legislators to be precise and to not leave it open to misuse. This bill and the amendments that are placed in it allow for that.

There are other provisions that call for the review of this legislation, in fact, making it mandatory to review these provisions. Rather than as an elective, Parliament is required to review these provisions at the appropriate time and interval.

These enhancements improve these measures. We never like to infringe on the civil liberties of our citizens, but at the same time we have to have measures in place that adequately safeguard our citizens. We are blessed in this country that, although I know some would argue the other way, our law enforcement people act responsibly and we have to have continuous oversight.

The RCMP has been under the public microscope lately and I am sure it has some improvements to make. This is not a police state, and we want to make sure it never even comes close to that, but our law enforcement people generally will use these tools only when they have to.

I recall at the subcommittee we had a panel. We looked at the provisions of the former Bill C-36, and this was particularly in the context of the security certificates. Even though security certificates are outside the scope of the anti-terrorism legislation, the subcommittee was tasked with looking at the provisions of the security certificates.

There was an official who came from the Department of Public Safety and National Security with a brief and a dossier on an individual who was an alleged Iranian assassin and who was being detained under a security certificate. Of course, some of the material in the dossier had to be whited out to protect allies who had provided various information and sources of information, on the grounds that it would compromise our national security. The dossier was nonetheless a very thick dossier and the official took the subcommittee through this file, indicating why this person was being detained under a security certificate.

On that same panel, there was a representative from the B.C. Civil Liberties Association. I remember turning to him at that point in time and asking whether, after hearing the profile of this particular gentleman who is being detained under a security certificate, would he like to have this person as a next door neighbour. It was kind of a risky question, but I thought it was a reasonable question to ask. In response, he said that he would not. If anyone heard this dossier, they would say that no reasonable person would want this person as a next door neighbour.

He was opposed to these kinds of provisions. I asked what the problem was and he replied that it was the process. We agreed that the process needed improvement and that is why, with respect to security certificates, that was enhanced.

We need to understand that citizens of this country want their government to have a balanced set of measures that would keep their families and themselves safe and secure in their neighbourhoods, and would have the optimal balance between those requirements while protecting the civil liberties of Canadians, which is equally important. Balance is something that we must continue to strive for in the House.

Bill S-3 provides a very good balance between those two competing elements and I certainly will be supporting it.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I am pleased to speak to Bill S-3, an act to amend the Criminal Code (investigative hearing and recognizance with conditions).

Today I will focus my remarks regarding Bill S-3 on these provisions and how they compare with the provisions found in the anti-terrorism legislation of other major democratic countries. I will do so in order to show that the provisions in this bill are either similar to or in some cases narrower than those of other countries.

Let us first turn to the proposed investigative hearing procedure. Other democratic countries have similar procedures.

The United States has a grand jury procedure. A federal grand jury can compel the cooperation of persons who may have information relevant to the matters it is investigating. It can subpoena any person to testify under oath. If the individual fails to appear or refuses to answer, or fails to produce evidence or documents in his or her possession, he or she may be held in contempt absent a valid claim of privilege. If a witness or the custodian of a document asserts a valid privilege, he or she may be provided with use and derivative use immunity and then be required to comply with the subpoena to testify or produce evidence.

Investigative hearing provisions roughly equivalent to those proposed in this bill are also found in Australia and South Africa. The United Kingdom goes even further.

In 2001, the U.K. amended its Terrorism Act 2000 to create a crime of withholding information relating to a terrorism act. Specifically, a person commits a crime who fails to disclose information to the police which he or she knows or believes might be of material assistance in preventing an act of terrorism or in securing the apprehension, prosecution or conviction of someone for an offence involving the commission, preparation or instigation of a terrorist act. Punishment for this crime is up to five years' imprisonment.

Also, the U.K., through the Terrorism Act 2006, applied to terrorism investigations the disclosure notice procedure that was created by the Serious Organised Crime and Police Act 2005. Under that legislation, an investigating authority such as the director of public prosecutions, can have a disclosure notice issued to a person. The notice could require the person to answer questions relevant to the investigation, provide information or produce documents.

Let me now turn to the recognizance with conditions provision. First, the arrest without warrant power found in this provision would be, as before, very limited in scope, for example, where pressing exigent circumstances make it impractical for a peace officer to go before a judge and have the judge compel a person to attend before him or her. Where the person is arrested without warrant, the peace officer would have to bring that person before a judge within 24 hours or, if not feasible, as soon as possible thereafter.

If the judge decided to adjourn the hearing and detain the person until then, the adjournment would be for no more than 48 hours. Thus, under the recognizance with conditions power, the maximum period of time for which a person could be detained until the hearing takes place would generally be for no more than 72 hours.

However, the United Kingdom has a much broader arrest without warrant and detention power. Under section 41 of the Terrorism Act 2000, the police may arrest without warrant a person whom he or she reasonably suspects is a terrorist. The maximum period of time that a person can be held in detention without charge under this power was extended from seven days in 2000 to 14 days in 2003 and was increased again to 28 days in 2006. In January 2008, the United Kingdom government introduced a new counterterrorism bill which, if passed, would extend this period of detention, in extraordinary cases, for up to 42 days.

The U.K.'s Terrorism Act 2000 also contains other police powers not found in our Criminal Code, such as the power of a senior police officer to designate a cordoned area where considered “expedient for the purposes of a terrorist investigation”. This allows the police to, for example, order a person to leave the area or not enter the area, and failure to obey the order is an offence. The police may also be authorized to search premises in the area.

There is another power that allows a senior police officer to authorize a uniformed constable to stop and search a vehicle or pedestrian in an area set out in the authorization where the officer “considers it expedient for the prevention of acts of terrorism”.

As well, in 2005, the U.K. put in place a system of control orders which may be imposed on a person, citizen or non-citizen alike, to prevent terrorist attacks. There are two kinds of control orders that may be imposed, those that do not derogate from the European Convention on Human Rights and those which do derogate from the convention. The latter would, arguably, apply in cases of house arrest.

Some of those non-derogating control orders that had imposed lengthy, daily curfew periods were successfully challenged in the lower courts and these decisions were appealed to the House of Lords.

In the fall of 2007, the House of Lords ruled that a number of control orders that had imposed an 18 hour curfew violated the right to liberty under the European Convention on Human Rights, rendering these orders null. However, it upheld control orders that imposed 12 or 14 hour curfews.

Australia has also enacted legislation that creates a system of control orders and preventive arrests of terrorist suspects. The Australian federal police may apply for an order for preventive detention for up to 48 hours of a terrorist suspect where there has been a terrorist act or where a terrorist act is imminent. Additionally, Australian states and territories have enacted legislation allowing preventive detention for up to 14 days.

To summarize, Bill S-3 proposes a maximum period of detention of generally 72 hours in relation to the recognizance with conditions power. In contrast, a suspected terrorist in the United Kingdom may currently be detained without charge for up to 28 days. In Australia, states and territories allow for preventive detention for up to 14 days.

It is obvious that in contrast to the United Kingdom and Australia, the power to detain persons in Canada to prevent terrorist activity is far more narrow in scope. The investigative hearing and the recognizance with conditions were drafted with due regard for the Canadian Charter of Rights and Freedoms. They help to protect Canadians from the scourge of terrorism in a manner consistent with human rights. As the comparison with other democratic countries show, they have been crafted with restraint.

We must also not forget that these powers can serve to respond to our international obligations to prevent and suppress terrorism. In this regard, it should be noted that United Nations Security Council resolution 1373 states in part that state parties are to “take the necessary steps to prevent the commission of terrorist acts”.

These provisions are necessary to prevent the commission of terrorist acts and therefore they respond to the international obligation set out in resolution 1373.

For these reasons, I will be supporting this bill and I urge all hon. members in the chamber to do likewise.

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.

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, I am pleased to join today in the second reading debate of Bill S-3. I would like to focus my comments more specifically on the amendments themselves as made by the Senate to the bill. I want to assure this House, though, that the people of Cambridge and North Dumfries in my riding wish me to support this bill, so I am happy to speak in favour of it.

I would like to mention, too, that I will be splitting my time with my colleague from Selkirk—Interlake.

Some people may think that my riding of Cambridge is one of those communities that is not on the terrorist list and would wonder why I would be up in the House speaking to this issue, but my riding has one of the busiest highways in all of Canada, the 401, going right through it. We have an urban area of about 110,000 to 113,000 people, divided into nice little communities that we used to call Hespeler, Preston and Galt.

Within 45 minutes of Cambridge, there are three airports and the riding itself is actually very diversified. One of the largest veal producers in North America is in my riding. Eighty per cent of the satellites that circle this world have parts from COM DEV in my riding. A statistic that shocked me is that there are 150 million people living within an eight hour drive of my riding, so I think it is exceptionally important for the folks in my riding that we concern ourselves with the threat of terrorism.

I am very pleased to have the opportunity to debate, at second reading, Bill S-3. I will limit my comments to the amendments made to the bill by the Senate.

When the Minister of Justice appeared before the Senate special committee on December 3, 2007, the committee questioned the constitutionality of the wording that was used in section 83.3, which deals with the recognizance with conditions provision.

The concern raised flowed from the 2002 judgment by the Supreme Court of Canada in a case called R. v. Hall. In the Hall case, the Supreme Court considered the constitutionality of the specific wording in the bail provisions, wording which was replicated in actual fact in Bill S-3.

Specifically, the Supreme Court found that paragraph 515(10)(c), the third ground for denial of bail, was unconstitutional under sections 7 and 11(e) of the charter, in particular because of its use of the words “any other just cause and, without limiting the generality of the foregoing, that...”.

As I said, as introduced, Bill S-3 had also proposed the use of the same wording in the recognizance with conditions provision.

The government obviously agreed that this needed to be corrected. The amended version of paragraph 83.3(7)(b)(C) now begins with the words “the detention is necessary to maintain confidence in the administration of justice”, and it goes on from there. I refer my colleagues to lines 28 to 30 of page 6 where they will find that the wording has been corrected and is now quite constitutional.

The second amendment addressed inconsistencies in the wording that appeared in clause 1 of the bill. Subsection 83.28(4) contains two paragraphs. The first one focuses on past terrorism offences. The second one focuses on future terrorism offences.

As introduced, however, there was an inconsistency in the use of the terminology between the two paragraphs. The former referred to “a terrorism offence”, whereas the latter referred only to “the offence”. The French version suffered the same defect.

The special Senate committee therefore amended subparagraph 83.28(4)(b)(ii) to ensure consistency in the wording in both provisions and of course in both official languages.

Finally, the third amendment made by the Senate to Bill S-3 was to subsection 83.32(1.1). This subsection originally proposed that a review of these two powers proposed by Bill S-3 be made at the discretion of Parliament. The Senate amended this particular provision to make the parliamentary review of these powers mandatory.

As we can see from the summary of the Senate amendments, these were slightly technical although very important amendments and they did not alter the essence of Bill S-3.

The proposals in Bill S-3 provide law enforcement agencies with the proper tools. I will point out that the committee met with a number of law enforcement agencies that deemed these tools to be necessary to help them do their jobs in addressing the ever present threat of terrorist attacks. They also include safeguards required to help preserve the safety and security of all Canadians, as well as to protect their fundamental rights, the right of hard-working Canadian families to play, to feel safe at night and to live their lives in peace.

I am asking all hon. members in this House to hear the facts of this bill and understand the need for such important legislation. I ask them to join me and support it.

I urge all members of this House to support Bill S-3.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, there is little doubt that the bill we are debating today, Bill S-3, remains a very divisive topic for Canadians and parliamentarians.

We are dealing with a bill which proposes amendments to the Criminal Code that would reinstate anti-terrorism provisions that expired under a sunset clause in February 2007.

These provisions would essentially bring individuals who may have information about a terrorist offence before a judge for an investigative hearing. It would deal with recognizance with conditions and preventive arrest to avert a potential terrorist attack.

These provisions have gained the interest of the general population and many groups have voiced their opinions on these extraordinary measures.

The first measure deals with the provisions to bring a person before a judge by subpoena or by arrest who, perhaps, on reasonable grounds, has knowledge of the whereabouts of someone who may be suspected of being involved in terrorism activity.

The second portion is equally extraordinary because it deals with the detention and recognizance of someone who is suspected of having something to do with a terrorist activity. As we know, to arrest somebody we need reasonable grounds under our current system.

When we look at that provision, which is the most litigated part of the Criminal Code, we see there is a great difference between suspicion and belief. There is a significant line there and this is why this legislation has raised such interest and concern for Canadians.

Since the terrible attack on the U.S. on September 11, 2001, which was a crime against humanity, states throughout the world have changed their domestic laws in order to respond to the new realities of terrorism. Canada of course is no exception.

In the United States, the patriot act was passed with wide margins in both houses of Congress, and has since then been criticized by civil liberties groups as fundamentally weakening human rights. Canada also enacted a legislative response to the events of September 11, 2001, through the Anti-terrorism Act.

Both statutes were speedily enacted and intended to address the threat posed by the attack and designed to give government agencies additional tools and powers to prevent and combat terrorism. However, there are key differences between the Canadian and the American legislative approaches.

Prior to the coming into force of the Anti-terrorism Act, the Canadian Criminal Code did not contain a definition of terrorist activity. To date, the Supreme Court has made several important rulings on the need to balance human rights and national security. One important one that comes to mind is the decision in the case of Cherkaoui and security certificates.

Another very important one is Suresh v. Canada. The Supreme Court of Canada discussed this balancing approach in relation to a decision to deport a suspected terrorist from Canada on assurances that he would not be tortured if returned to Sri Lanka.

The court noted that the balance to be struck in this situation was between Canada's interest in combating terrorism and the deportee's interest in not being deported to torture, taking into account the circumstances or conditions of the potential deportee, the danger that the deportee presents to Canadians or to the country's security and the threat of terrorism to Canada.

The Supreme Court concluded that this balance will usually come down against expelling a person to face torture elsewhere with the result that deportation should generally be declined where on the evidence there is a substantial risk to torture.

As Suresh v. Canada illustrates, the balancing process involved, where removal is contested on human rights grounds, is tested further in the context of state responses to terrorism.

It is important to note that after September 11, the United Nations has, on numerous occasions, called upon states to bring to justice to those involved in terrorist activities through the process of extradition or prosecution while, at the same time, reminding states that any anti-terrorism measures must comply with international human rights law.

If we go back to 2001, the sunset clause, originally introduced in the Anti-terrorism Act, states that these provisions would cease to apply at the end of the 15th sitting day of Parliament after December 31, 2006, unless they were extended by a resolution. As of February 2007, no investigative hearings have been held and no reported use of the provisions on recognizance with conditions.

It is important to note that while the provisions introduced today are similar to those that expired in February 2007, they are not identical. Some of the key changes in the bill include: placing an emphasis on exhausting all reasonable attempts for the collection of information about potential or prior terrorist activity before the ordering of an investigative hearing; and requiring the Attorney General and the Minister of Public Safety and Emergency Preparedness to issue separate annual reports with their opinions as to where these provisions should be extended.

If we look back to the month of February 2007, the government put forward a motion to extend the measures without amendments for three years. This was eventually defeated in the House by a vote of 159 to 124. Even with ominous threats from the Prime Minister to trigger an election if amendments were made to the bill, the Liberals still pushed to have additional safeguards to these provisions. As such, I am pleased to find that these safeguards, which were also recommended by both the House and Senate committees, have been added to the bill.

These provisions include: an increased emphasis on the need to have made reasonable attempts to obtain information with respect to both future potential terrorist activity and such activity in the past; the ability for any person ordered to attend an investigative hearing to retain and instruct counsel; the flexibility to have any provincial court judge hear a case regarding a preventive arrest; and a five year end date unless both Houses of Parliament review and resolve to extend the provisions further.

However, the fact is the Prime Minister still refuses to listen to the democratic majority and, instead, dictates to the House that no amendment should be made to this bill or, once again, it might trigger an election.

Even the Supreme Court of Canada suggests that the bill be amended on a number of issues. I will not go into all the recommendations made by the court, but I must point out that the government has once again chosen to ignore its important recommendations.

As I have already mentioned, these provisions have attracted the interests of academics and the general population alike. This has been evident in both the House of Commons and the Senate committees that have studied this issue. In fact, these committees heard from a broad spectrum of witnesses, who have voiced opinions on these extraordinary measures.

On the one side, some feel that these provisions do not violate rights, that, in fact, they reduce potential threats and address them in a practical manner. Some would also argue, such as Gary Bass, deputy commissioner for the RCMP, that these “renewed provisions will assist with those who might otherwise be reluctant to testify”.

Mr. Bass maintains that with these provisions, witnesses would no longer have any choice but to testify truthfully. On the other side, people have argued against this view and expressed the opinion that such provisions could be counterproductive and detrimental to witnesses.

In fact, Yvon Dandurand, a criminologist at University College of the Fraser Valley, British Columbia, argues that compelled witnesses are still exposed to potential retaliation from those who expect them to lie if compelled to testify.

Also, some have felt that the Anti-terrorism Act represents a substantial departure from Canadian legal traditions and fear that use of these provisions might eventually extend beyond terrorism offences to other more generic Criminal Code offences. Such provisions also make it clear that those who volunteer information to the authorities could find themselves subject to an investigative hearing, preventive arrest or a charge for a terrorism offence.

Canada historically has been a leader in maintaining balance between human rights and public safety. I believe all of us want Canada to remain a safe and secure country. I also believe Bill S-3 could potentially cross an important thin line and violate the rights of Canadians and compromise civil liberties.

I am reminded of the famous words that were uttered, after September 11, by Cardinal Theodore McCarrick, the archbishop of Washington, in a mass on September 12, 2001, for the victims in the immediate aftermath of the terrorist attack on the U.S. He reminded us all that:

We must seek the guilty and not strike out against the innocent, or we become like them who are without moral guidance or direction.

Although Bill S-3 has had attached to it new safeguards in comparison to the original provisions, I feel it must be sent to the House committee again to be thoroughly studied and debated so Parliamentarians can make the right and educated decision on this controversial matter.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I am very happy to address hon. members in this House on the importance of the powers contained in Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

The investigative hearing and the recognizance with conditions provisions are tools that were designed to assist law enforcement agencies and strengthen their ability to prevent acts of terrorism.

I would also like to note that I chaired the subcommittee of the Standing Committee on Public Safety and National Security which reviewed the anti-terror bill. At this time I propose to describe in some detail what these two provisions achieve. I will then address how this bill responds to the interim report of the House subcommittee that tabled that report in October 2006, and the Senate's special committee report that was tabled in February 2007.

First, I will talk about the investigative hearing.

The investigative hearing provision would allow the courts to compel a witness who may have information about a terrorism offence to testify and provide information about the offence. The process relating to this provision works as follows.

With the prior consent of the Attorney General, a peace officer investigating a terrorism offence that has been or will be committed may apply to a judge for an order requiring a person who is believed to have information concerning the terrorism offence to appear before the judge to answer questions and/or produce something.

If a judge believes there are reasonable grounds that a terrorism offence will be committed in the future, that the person has direct and material information and that reasonable attempts have been made by other means to obtain the information, the judge may make an order for the gathering of information.

It is important to note that this investigative hearing provision and the process were found to be constitutional by the Supreme Court of Canada in 2004. The reason this provision was found to be constitutional lies in the safeguards that are intimately attached to the exercise of this power. I will note those safeguards.

First, only a judge of a provincial court or of a superior court of criminal jurisdiction can issue the order to hold an investigative hearing.

Second, before an application for the investigative hearing order can be made, the Attorney General of Canada, or the Attorney General or Solicitor General of the province, needs to consent to making the application for the order.

Third, the person ordered to attend at the investigative hearing has the right to retain and instruct counsel at any stage of the proceeding.

Fourth, any incriminating evidence given by the person at the investigative hearing cannot be used against him or her in a further criminal proceeding except for prosecutions for perjury and giving contradictory evidence. This prohibition also applies to derivative evidence, that is, evidence that is found or derived from the evidence initially gathered in the context of the investigative hearing.

Fifth, the Supreme Court of Canada has also ruled that through the use of this provision there is a constitutional exemption against self-incrimination that precludes testimonial compulsion where the predominant purpose of the proposed hearing is to obtain evidence for the prosecution of the person. In other words, a person cannot be brought before a judge and be compelled to provide evidence if the predominate purpose is to gather evidence against that person to lay charges against him or her.

Sixth, the Attorney General of Canada and the Attorney General of the provinces were and continue to be required to report annually on the use of the investigative hearing provisions.

Finally, it is to be noted that the Supreme Court of Canada held that the protection against self-incrimination in investigative hearings carried out in the context of criminal investigations also extended to deportation and extradiction matters.

At this time I would like to move on and talk about the recognizance with conditions provision.

This provision would give the court the power to issue an order requiring a person to enter into an undertaking whereby he or she accepts to respect certain conditions imposed upon him or her to prevent the carrying out of a terrorist activity. The purpose of the provision is to create a mechanism that would allow the authorities to disrupt the preparatory phase of terrorist activity rather than act after the fact.

The provision is not designed to detain a person, but rather to release the person under judicially authorized supervision. The process by which the recognizance with conditions operates is as follows:

With the prior consent of the Attorney General, a peace officer who reasonably believes that a terrorist activity will be carried out and who also reasonably suspects that the imposition of a recognizance with conditions or the arrest of a person is necessary to prevent the carrying out of a terrorist activity, may lay an information before a provincial court judge. That judge may then cause that person to appear before him or her or any other provincial court judge. In very limited circumstances the peace officer may arrest that person without a warrant in order to bring him or her before the judge.

In any event, a person will be brought before a judge within 24 hours, or as soon as possible, if a judge is not available within this time period. If the person is detained to protect the public or to ensure his or her attendance at a subsequent hearing, the matter may be adjourned for a maximum of 48 hours. Thus, generally speaking, the person can only be detained for up to 72 hours.

If the judge determines that there is no need for the person to enter into a recognizance, the person will be released.

If the court determines that the person should enter into a recognizance, the person will be bound to keep the peace and respect other specified reasonable conditions for a period not exceeding 12 months.

Only if the person refuses to enter into such a recognizance can the judge order that he or she may be detained for up to 12 months.

As in the case of the investigative hearing, the recognizance with conditions is also subject to numerous safeguards. These are:

The consent of the Attorney General of Canada or the attorney general or solicitor general of the province is required.

The peace officer could also only lay an information before a judge if he or she believes on reasonable grounds that a terrorist activity will be carried out and suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of a terrorist activity.

The judge receiving the information would have a residual discretion not to issue process, for example, where an information is unfounded.

A warrantless arrest of a person could only be made in very limited circumstances, for example, where the grounds to lay an information exist, but by reason of exigent circumstances, it would be impractical to lay the information, and the peace officer suspects on reasonable grounds that the detention of a person is necessary in order to prevent a terrorist activity.

If a person is arrested without warrant, the officer must either lay an information before the judge, generally within 24 hours, or release the person. Before laying the information, the peace officer must obtain the consent of the relevant attorney general.

A person detained in custody must be brought before a provincial court judge without unreasonable delay and in any event, within 24 hours of arrest, unless a judge is not available within that period, in which case the person must be taken before a judge as soon as feasible and the hearing must be held within 48 hours.

A judge must be satisfied on the evidence adduced that the peace officer has a reasonable suspicion that it is necessary to have the person enter into a recognizance with conditions before ordering that the person enter into a recognizance to keep the peace and be of good behaviour, and to comply with any other reasonable conditions for a period of 12 months.

Only if the person refuses or fails to enter into the recognizance can he or she be jailed for up to 12 months.

The person entering into a recognizance has the right to apply to vary the conditions under the recognizance order.

Federal and provincial attorneys general would continue to be required to report annually as appropriate the use of this power, while the Minister of Public Safety and the minister responsible for policing in each province would continue to be required to report annually on the arrest without warrant power.

I have focused my remarks on two well-designed tools that are meant to aid law enforcement agencies in their efforts to prevent the commission of a terrorist activity, tools that are also dressed with robust safeguards. One of the provisions has already been declared constitutional by the Supreme Court of Canada.

How much better can it get? One would think that there is no need to make changes to the wording of the original provisions considering the above, but as always, this government continues to strive to make our laws better and to do so in cooperation with all members of the House and the Senate. For that very reason, our government has responded favourably to a good number of the recommendations of the House subcommittee and the special Senate committee that reviewed the Anti-terrorism Act. Both of these committees made a number of recommendations in relation to these two powers.

Here are the amendments to the original provisions that the government either proposed or accepted, and that are now found in Bill S-3:

Subparagraph 83.28(4)(a)(iii) was modified by adding a safeguard to the section dealing with past terrorism offences. Under the proposed legislation, an order for an investigative hearing may be issued only if the judge to whom the application is made is satisfied that “reasonable attempts have been made to obtain information” by other means. In this context, “reasonable” means that, where possible, police will have tried other sources for obtaining the information they seek before resorting to the use of investigative hearing.

Previously, a similar but narrower provision had applied only to future terrorism offences, not past ones. This new wording also applies to future terrorism offences, as can be seen in subparagraph 83.28(4)(b)(iii).

The bill also caps the maximum detention time for a witness brought in under an investigative hearing order by specifying in subsection 83.29(4) that section 707 of the Criminal Code, which sets out the maximum period of detention for an arrested witness, applies to investigative hearings.This is meant to address the concerns that were expressed by the House subcommittee that it was unclear to what extent release mechanisms elsewhere in the code applied to the investigative hearing process. Technical wording changes were also made to address various recommendations made by the House subcommittee.

Finally, proposed subsection 83.31(1.1) would enhance the reporting requirements by the Attorney General of Canada with respect to the investigative hearing provisions. The Attorney General of Canada would be required to provide his or her opinion, supported by reasons, as to whether these provisions continue to be necessary. This change implements part of recommendation 17 made by the special Senate committee.

As can be noted in regard to the investigative hearing provision, Bill S-3 effectively incorporates many of the recommendations made by the House of Commons and the Senate. The one substantive proposal that the bill did not incorporate was the recommendation of the House of Commons subcommittee that the investigative hearing power be limited to the investigation of imminent terrorism offences and not past terrorism offences.

The government could not respond favourably to this recommendation and there are many reasons why this is so. To begin with, this proposed limitation would forestall entirely the possibility that the investigative hearing could be used in relation to the ongoing Air-India investigation.

This recommendation would also prevent the use of an investigative hearing to gain information about a terrorism offence after the offence has already occurred, even in the very recent past. For example, if a terrorist attack were to occur in Canada similar to the attacks in the U.K. on July 7, 2005, the police, on the day after the attack, would not be able to use this power, since the attack would have already taken place and despite the fact that it may be a prelude to a further terrorist attack.

This recommendation implies that terrorists will only ever commit one terrorist offence. The better view is that after a terrorist group has committed an offence, whether it is participating in a training camp, fundraising, or an act of violence, the justification for the use of the investigative hearing is even more compelling. This is because, aside from the need to bring the perpetrators to justice, there is a requirement to prevent the group from continuing with its activities.

To adopt this recommendation would have the effect of preventing the use of an investigative hearing to gain information about a terrorism offence after the offence has already occurred, even an offence that has occurred in the very recent past.

This government believes that a terrorist activity, be it past or future, unquestionably merits the same tools as they both respond to a specific need expressed by our law enforcement agencies in their fight against terrorism. To do otherwise would be unacceptable.

Moving on with the other amendments that this government agreed to make in response to the committee's recommendations, though largely unchanged from its previous incarnation, the recognizance with conditions provision in Bill S-3 brings about an additional annual reporting requirement that was recommended by the special Senate committee on the Anti-terrorism Act.

As for other changes brought to the original legislation, the House of Commons Subcommittee on the Review of the Anti-terrorism Act recommended that both provisions be extended for five years, while the special Senate committee recommended that they be extended for three years subject, in both instances, to the possibility of a further extension following resolutions passed by both houses of Parliament.

What Bill S-3 proposes is to allow Parliament to extend the existence of one or both provisions for a period of five years. While the original legislation made it clear that a resolution could be tabled to extend both provisions, it was not clear from the wording whether a resolution that would extend only one of the powers could be tabled. The new wording would explicitly permit the extension of either or both of these provisions.

Other changes made by the Senate will be referred to by other hon. members who will also speak.

As has been made clear in my remarks today, there is no question that the government has given proper consideration to the various recommendations made by the House of Commons and the Senate and that, in doing so, we have improved both the investigative hearing and the recognizance with conditions provisions. Given this, I invite all members of the House to support this bill and reinstate these two important tools.

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.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I have a question for my colleague relating to Bill S-3.

We are watching the erosion of civil liberties. She has really articulated the connection of the individual impact but also how it will relate to their employment and their family, which has greater consequences for us. Living on the border, I deal with that on a regular basis. Even with mistaken identity, where people are often assumed to be someone else, that has affected their clean record to get across the border.

We have been clear on our strategy about this. Why does the member believe the Liberal Party is backing away or splitting on this issue when it really has significant consequences? A lot of time and money has been wasted in the House with regard to failed bills in the past and this one seems to be setting itself up to be a failure.

I would like to hear her comments on that.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, forgive my eagerness to speak to the many flaws in the bill.

As I say, this bill supposedly has a provision for the arrest of a person involved in an imminent terrorist threat, thereby disrupting the terrorist activity. We support the idea that we should disrupt an activity like that, but if someone is planning a terrorist act, the Criminal Code already allows for him or her to be arrested and held for up to 72 hours.

The bill also says that persons will have a peace bond for something that they may not even have done. We have never seen this before with peace bonds. Why do we need this? Under the Criminal Code mechanism, if no evidence is found leading to charges against the person, he or she must be released. That is what the Criminal Code says.

However, Bill S-3 goes one step further, and that is the problem. These individuals are released under conditions. There could be a variety of conditions. They may be perfectly reasonable for somebody who is convicted of being involved in terrorism, but not when there is no evidence of doing anything wrong.

It is extremely unjust. As Craig Forcese said, “One would imagine that a peace bond is likely to be ineffectual in relation to a suicide bomber”.

The last point I would make about this, and civil liberty groups have sharply criticized this as well, is that if a person is detained, a file is opened on that person. If a file is opened, it stays with that person and impairs his or her freedom to travel and apply for a job. It is a negative stigma that stays around the individual.

Let us keep in mind that we are talking about people who may have done absolutely nothing wrong. New Democrats will not and cannot support a bill that will punish people who are not guilty of any criminal activity.

As I mentioned earlier, many members of other parties in this House are also opposed to this legislation. I am speaking now specifically for my Liberal colleagues, as many of them took a very principled stand and voted against this legislation when it came to the House earlier in the session. They did the right thing. They stood up, but what will they do now?

I expect that they may do what they have done all along since the member for Saint-Laurent—Cartierville won the leadership of the party. They may sit on their hands. I find it particularly egregious that Liberals would support the bill when I know many members of their caucus share the same concerns I have voiced here today.

Voting for Bill S-3 is not like voting for the budget as a strategy to avoid an election. Standing shoulder to shoulder with the Conservatives and voting for Bill S-3 is giving approval to major changes and it strikes at the heart of Canadian values. I am calling on my Liberal colleagues today to do the right thing and vote with the NDP against the legislation.

I understand that members of the Bloc Québécois are on the same side of the issue as we are expressing, so a Conservative-Liberal alliance will be what it will take to pass Bill S-3. I hope Liberals have the courage to take a stand. As I have already said, ensuring public safety is about protecting quality of life. A good quality of life depends on a balance between freedom and security.

The investigative hearings are flawed. They do not accommodate the guidance of the Supreme Court of Canada. This is vulnerable to misuse. The recognizance with conditions provision is fundamentally opposed to a core value in our justice system: that a person must be guilty of doing or plotting something in order to be punished.

Therefore, both provisions of Bill S-3 are flawed beyond repair, but the NDP's main reason for opposing the legislation is that in point of fact it is unnecessary. The Criminal Code can be used to attain the goals that I have spoken of today.

Many groups have spoken to the standing committee. I think we will be hearing from other speakers later in the day who have talked to Muslim and Arab groups, who know there are particular people who may be more vulnerable to these kinds of conditions under Bill S-3, just as they were under Bill C-3.

It is simply unacceptable to take something that has been a core value of this country for so long, which is that one must be guilty of something for us to punish that individual, and throw that away and say no, we just have to think that someone might think about doing something. It is unacceptable to say that we do not actually know that someone will do something, but we are still going to find that someone guilty and punish him or her by placing conditions upon that person.

It is simply unacceptable. It hits at our core values. As Canadians and as parliamentarians, we should absolutely reject any kinds of changes that go down what is a very slippery slope toward taking away the freedoms of Canadians.

The House resumed from April 16 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.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, my apologies. I thought we were resuming debate on Bill S-3.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, we are debating Bill C-13. I believe the member is speaking to Bill S-3.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, in last fall's throne speech, our government presented five clear truths to Canadians.

We said we would get tough on crime, maintain our prosperous and vibrant economy, improve the environment and health of Canadians, strengthen our federation and restore Canada's place in the world. Over the past few months we have made significant progress in all of these areas with lowering taxes and debt, extending the military mission in Afghanistan, and passing the Tackling Violent Crime Act to get tough on crime.

This week is indeed stronger justice system week. We have been successful so far in moving forward on our plan to tackle violent crime with Bill C-31, a bill to amend the Judges Act which has been sent to the Senate, and Bill C-26, our anti-drug law which passed second reading.

However, we will not rest on our laurels. Today and tomorrow we will wrap up our stronger justice system week by hopefully returning our bill on criminal procedure, Bill C-13, to the Senate. We also hope to debate our bill to reinstate modified provisions of the Anti-terrorism Act, Bill S-3, as well as Bill C-45, dealing with our military justice system.

Next week's theme is “putting voters first” because MPs will be returning to their ridings to consult Canadians in their communities.

The following week, we will be examining another priority: “improving the environment and health of Canadians”.

As members already know, our environmental plan announced in the throne speech was adopted by the House last fall.

There is, however, more to be done. We will start by debating Bill C-33. This bill requires that by 2010, 5% of gasoline, and by 2012, 2% of diesel and home heating oil be comprised of renewable fuels. This bill will help reduce greenhouse gases and represents an important part of our legislative plan to reduce greenhouse gas emissions by 20% by 2020.

In addition, we will begin debate on two very important bills concerning food safety and consumer and health products in Canada, namely Bill C-51 to modernize the Food and Drugs Act and Bill C-52to establish An Act respecting the safety of consumer products.

Taking together, these two bills represent an extraordinarily tough and thoroughly new approach to consumer safety. I hope that the opposition will work with the government to ensure these pass through the legislative process in a quick and timely fashion.

Criminal Code

[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--

[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.

[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.

[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.

Judges Act

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, with respect to the member opposite, I believe all the parties in the House, except the Liberal Party, are done. Speaking to this, I understand there was an agreement that one speaker would be put up by the opposition. In fact, one of the members of the Liberal Party attempted to put forward a motion that this bill now pass in the House. However, members of the Liberal Party objected to that motion by their own member.

I wonder if we could have a clear answer on why the Liberals are filibustering this issue. Is it because Bill S-3 is coming up later on in the House and there is an attempt to delay debate on that?

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, I am pleased that the House of Commons has just now voted to approve the budget implementation bill at second reading. The bill will now proceed to the Standing Committee on Finance where it will be studied by members of that committee.

I know that the Liberal Party originally said that it adamantly opposed the bill, so we welcome its change of heart yesterday with its help to defeat the NDP motion, which would have effectively killed the bill, and its kind cooperation today to make sure it passed at second reading.

As I am sure the Liberal House leader is aware, the passage of the bill is important to the stability of the Canadian economy during a time of global economic uncertainty and to reduce the immigration application backlog that is causing Canada to lose much needed talent from potential immigrants. We hope it will be dealt with quickly at committee so that we can have it back to the House for third reading, where I am sure it will once again receive the same warm greeting.

Today and tomorrow, we will continue to debate Bill C-23, which amends the Canada Marine Act; Bill C-33, which will regulate a renewable content of 5% in gasoline by 2010, and 2% in diesel fuel and heating oil by 2012; and Bill C-5, which has to do with responsibility in the event of a nuclear incident, as part of Improving the Health and Safety of Canadians Week.

Next week will be a stronger justice system week. We will start by debating, at report stage and third reading, Bill C-31, which amends the Judges Act to allow the application of additional resources to our judicial system.

We will also consider Senate amendments to Bill C-13, which is our bill to amend the Criminal Code in relation to criminal procedure, language of the accused, and other matters.

We will then continue by debating Bill S-3, our bill to reinstate modified versions of the anti-terrorism provisions--the investigative hearings and the recognizance with conditions provisions--in the Criminal Code. This important piece of legislation, which has already passed the Senate, will safeguard national security while at the same time protecting the rights and freedoms of all Canadians. I hope all members of the House will work with the government to ensure its quick and timely passage.

We will debate Bill C-26, which imposes mandatory prison sentences for producers and traffickers of illegal drugs, particularly for those who sell drugs to children.

Lastly, time permitting, we will start debating Bill C-45, which has to do with our military justice system.

With regard to the bill dealing with aboriginal human rights, we understand, sadly, that the opposition parties gutted the relevant provisions and protections in it. Therefore, I am surprised by the enthusiasm of the opposition House leader for it. Perhaps if the members are, as they were on Bill C-50, prepared to reverse their position and support the restoration of those meaningful principles, we would be happy to bring it forward again.

Criminal Code

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

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

(Motion agreed to and bill read the first time)

[Steve Wills]

A little, okay.

As I was saying, the program I was referring to is composed of the guidelines, policies, and assessment standards of the Canadian Council on Animal Care. The CCAC policy statement, entitled “Ethics of Animal Investigation”, provides for the use of animals in research, teaching, and testing only if it promises to contribute to the understanding of fundamental biological principles or to the development of knowledge that can reasonably be expected to benefit humans or animals. Researchers must use the most humane methods on the smallest number of appropriate animals required to obtain valid information.

CCAC standards are adhered to by every Canadian university that is engaged in animal-based research. Indeed, compliance with these standards is an absolute requirement of the Natural Sciences and Engineering Research Council of Canada and the Canadian Institutes of Health Research which support the great majority of federally funded research involving animals undertaken in our universities. AUCC member universities have themselves extended that requirement to include all of their animal-based research regardless of the source of funding. The CCAC standard is held in such high esteem in Canada and internationally that federal research departments and private sector companies and laboratories involved in animal-based research and testing have determined that it is in their interests to participate voluntarily in the assessment program, and on the international scene, other countries have emulated the program.

My colleague Dr. Tasker is very well placed to respond to questions about both the use of animals in medical research and the Canadian system of oversight that governs university researchers. As a former chair and member of the executive of CCAC, he is very familiar with its policies and guidelines. In addition, he has been a federally funded medical researcher for over 20 years.

As one example of his work, he and colleagues at the University of Prince Edward Island conducted research involving the use of laboratory rats that led to the creation of a unique animal model that helps scientists understand the progressive changes in brain development and function that lead to epileptic seizures and other forms of human brain dysfunction.

AUCC supports the intent of amendments to the Criminal Code to ensure that animals are properly protected from negligence or intentional cruelty. We note, however, that past efforts at amending this area of the Code have been the subject of considerable controversy.

In particular, AUCC has been concerned about the inclusion in some previous bills of vague and undefined terminology that was open to subjective interpretation. We were also concerned about the uncertain impact of previous proposals to move the cruelty to animal offences from part 11 of the code, “Wilful and Forbidden Acts in Respect of Certain Property”, to a newly created part 5.1 of the code, “Cruelty to Animals”.

If implemented, such changes could have led to unfounded allegations of misconduct against universities and university researchers, and frivolous and unwarranted private prosecutions under the Criminal Code by individuals and organizations for whom no use of animals in research is acceptable. These prosecutions could result in significant financial costs and serious damage to the reputation of universities and to individual faculty members who are conducting important animal-based teaching and research in a highly ethical and responsible manner.

Bill S-203 is sensitive to the concerns we have expressed. The bill represents a carefully tailored and reasoned solution that achieves the important goal of better protecting animals from negligence and abuse through the enactment of significant and appropriate increases in the penalties applicable to such offences while avoiding possible unintended consequences for university research.

AUCC endorses the considered approach of this bill, and we respectfully urge the committee members to support its passage.

Thank you again, Mr. Chairman, for providing us with the opportunity to convey the views of AUCC and its members on this important matter. Dr. Tasker and I would be pleased to respond to your questions and to those of the members of the committee.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you very much, Mr. Chair.

Commissioner, it is always a pleasure to have you here with us. Welcome to you and to the members of your team.

In your report, you make frequent reference to the new provisions of part VII of the Official Languages Act. Among other things, you said that:

Most federal institutions are still unclear on how to give form to these obligations in their respective areas of operation.

This is a change that occurred two years ago, but two years have elapsed since Bill S-3 was adopted.

How do you explain this delay?