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.