Bill C-19 (Historical)

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

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

Criminal Code

[Shelly Glover, Conservative, Saint Boniface, MB]

Mr. Speaker, I want to thank my colleague for his question.

Our government realizes that everything that is done is not always perfect. Everyone in the world knows that it is impossible to be perfect at all times. There will always be exceptions. We are not saying here that we are perfect or that our police officers, lawyers and all those involved in the legal process are perfect. It is impossible for everything to be perfect. We know some mistakes will be made.

I was a police officer for nearly 19 years. I made mistakes. Sometimes I also suspected something else. Nevertheless, there has to be some prevention of terrorist acts. These are very serious acts, and I hope my colleague will take that into consideration when he votes.

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

Mr. Speaker, I want to thank the member for her contribution to the debate and for her service to the community as a police officer for 18 years.

In that regard, I would like to ask the member if she could tell us what crimes related to terrorism would not be covered by the current Criminal Code. It is my understanding that any crime that we could possibly think of related to terrorism is already a serious crime under the provisions of our Criminal Code and one that is dealt with very seriously should it ever go to prosecution in our criminal justice system.

For instance, the crime of conspiracy already exists under the Criminal Code, so anyone planning that kind of terrorist attack is already committing a crime. They do not actually have to commit the crime before they could be found guilty of a criminal activity. We also have hate crimes legislation, so if the crime that is being planned targets a particular group, that is already covered by our Criminal Code.

Could the member tell us exactly why these special measures are needed when the Criminal Code already deals very seriously with all the issues related to terrorism?

[Shelly Glover, Conservative, Saint Boniface, MB]

Mr. Speaker, I want to thank the member opposite for his question and for his comments about my service with the police.

I just want to mention that my colleague's question relates to crimes. What this bill is trying to do is prevent acts from occurring. They are not crimes that necessarily have been committed. We are trying to provide tools to investigate the potential that acts of terrorism are going to occur.

Our police officers at this point do not have the powers that we are attempting to provide to them through this bill. They do not have the ability to question people under what we are now calling the recognizance with conditions and those types of things. We want to provide them those tools so that we can safeguard national security.

It is not about charging people and referring to charges that are already in existence in the Criminal Code. It is about prevention. It is about using tools so that we can ensure the national security that we all care tremendously about.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, I come here today to discuss Bill C-19, the investigative hearing and the recognizance with conditions that the bill seeks to re-enact, which expired in March 2007.

The investigative hearing provisions permitted a judge to question persons having information about a past or future terrorism offence. The recognizance with conditions provision permitted imposing conditions on a person, where necessary, to prevent the carrying out of a terrorist activity. These provisions were not, and certainly would not be, unique to Canada. Other democratic countries have similar tools, or ones that tend to go much further than those proposed in this bill.

I believe that by comparing these proposals with foreign counterparts, it will become clear that the proposed investigative hearing and recognizance with conditions that are found in the bill would be seen to be reasonable measures and not at all excessive.

Let me first address the issue of investigative hearing. In 2001 the United Kingdom created a specific crime of withholding information relating to a terrorist act. A person who could have assisted police in preventing an act of terrorism, or in arresting, apprehending or prosecuting someone involved with terrorist activities but failed to do so, could be imprisoned for up to five years.

Also, the U.K. terrorism act of 2006 enables an investigative authority, such as the director of public prosecutions, to issue a disclosure notice requiring a person to provide information or documents relevant to the investigation of a terrorism offence.

Under the United States longstanding grand jury procedure, a federal grand jury can subpoena any person to testify under oath, subject to claims of privilege. Anyone who obstructs a grand jury risks being held in contempt.

Australia and South Africa have specific procedures similar to the proposed Canadian investigative hearing.

The Canadian approach certainly does not go further than other democratic nations in creating an investigative hearing procedure. Other countries have done as much, or even more, in ensuring that they have the tools to investigate terrorism offences.

The Australian counterpart of the recognizance with conditions is a system of control orders and preventive detention of terrorist suspects. The Australian federal police may apply to a judge for an order allowing up to 48 hours of preventive detention of a terrorist suspect where there has been a terrorist act or where a terrorist act is imminent.

Australian states and territories, under their legislation, allow for preventive detention for up to 14 days. Disclosing during the detention period that a person is detained is punishable by a maximum five years in jail. The Australian federal police annual report of 2006 to June 30, 2007 shows that one interim control order was made but that there were no preventive detention orders. One interim control order expired in December of last year.

Similarly, the United Kingdom has much broader powers for the detention of suspected terrorists, compared to Canada's recognizance with conditions power. In the United Kingdom, under the amended terrorism act 2000, a person can be arrested without warrant and held in detention without charge for up to 28 days if the police reasonably suspect the person of being a terrorist.

As many know, the U.K. government wanted to extend this period even further in its proposed counterterrorism bill to a maximum of 42 days. However, this initiative proved to be very controversial and was defeated by the House of Lords in October 2008. As a result, the U.K. government allowed the bill to continue its journey through the British Parliament without the 42-day measure, but it also published a bill containing the power to detain for 42 days, which will be held in reserve and which will be introduced in the British Parliament if and when the need arises.

The U.K. also has a system of control orders which has been in place since the passage of the prevention of terrorism act 2005. This generally allows for the home secretary to apply to a court to impose obligations on an individual, where there is a reasonable suspicion that the individual is or has been involved in terrorism-related activity, and it is considered necessary in order to protect the public from terrorism to impose obligations on the individual.

Control orders can be imposed on citizens or non-citizens alike. There are two kinds of control orders: derogating and non-derogating control orders.

The derogating control order is one that derogates from the European Convention on Human Rights. This type of order could potentially apply in the case of house arrests. A non-derogating control order is one that does not derogate from the convention. Some cases involving non-derogating control orders have now been decided by the House of Lords. It ruled, for example, that a condition requiring a person to stay confined at home for 18 hours each day contravened the right to liberty under the European Convention on Human Rights, but that a 12 hour and possibly a 16 hour curfew was acceptable.

Non-derogating control orders are enforced for 12 months, but they can be renewed. The quarterly statement on the use of control orders covering the period September 11, 2008 to December 10, 2008 said that in total 15 control orders are currently in force, four of which are in respect to British citizens.

Additionally, U.K. police officers have other powers given to them by the terrorism act 2000 that do not exist in Canada. For example, police can designate a certain area, or order anyone to leave it, or not to enter it at the risk of committing an offence. A senior police officer may also authorize a uniformed constable to search a vehicle or a person in a designated area when to do so would be expedient for the prevention of a terrorist act. As we can see, the U.K. powers by far outstrip in scope what Canada provides for its law enforcement purposes.

Finally, I would add that the need to fulfill our international obligations should also prompt a re-enactment of the powers. The United Nations Security Council resolution 1373, to which Canada is a party, obliges the party states to “Take the necessary steps to prevent the commission of terrorist acts--”. The provisions proposed in this bill are intended to do just that.

I have talked at length about the measures that are present in other democratic countries facing terrorism threats and whose legal systems are similar to ours. As I have endeavoured to make clear, the tools we are now seeking to re-enact do not constitute an assault on human rights. On the contrary, they are minimally intrusive and are more restrained than our foreign counterparts. They do not present a threat to Canadian values but actually protect them. Accordingly, I would ask that all hon. members support this bill.

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

Mr. Speaker, I want to congratulate the previous speaker on the seriousness of the arguments he advanced.

I just want him to understand that the reason why I think the anti-terrorism provisions should not be maintained is that they are insignificant, for all intents and purposes. In those cases, though, where innocent people are unjustly suspected, their lives will be badly affected and they will find it very difficult to travel or to find and keep a job. I do not think the injustice is worth it. I am convinced that these provisions will never be used against real terrorists. What will be used are the provisions of the Criminal Code, and conspiracy charges will be laid, as has already happened.

I would like to know his opinion as a police officer on the investigation he did not talk about very much. He must have conducted some police interrogations in his career. Does he think they would be at all effective with someone who did not want to reply from the beginning, did not want to cooperate, and was accompanied by his lawyer before a judge?

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, the hon. member and I, since my tenure here, have sat on the public safety committee, and now I am on the justice committee. We share a responsibility that I know we both take very seriously.

With regard to innocent people, any innocent people, when they are arrested by the police on reasonable probable grounds that they have committed an offence, all of that is done in good faith. There is, of course, some stigma attached to a person who is eventually found innocent of a crime. That is very traumatic to the person involved, and traumatic to any decent, caring person.

The saving grace in our criminal justice system is that as long as all parties participating in that, the police, the prosecution, the defence and the individual who is charged, are all acting in good faith, the Criminal Code basically says that the right thing is done.

The bottom line here is if a fear that we might do something wrong, or that someone might be ill done by, prevents us from doing what the international community under the United Nations obligations, that we are a party to, expects us to do, we have to do something. We need to work toward this new threat of terrorism, and give the tools that are necessary to the police and the Crown to get that job done.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, the previous speaker, the member for Saint Boniface, admitted that mistakes are made by police officers in the course of duty. It is not perfect legislation. The question I would have, and the member from British Columbia asked the question before, in this member's opinion what crimes related to terrorism are not already covered by the current Criminal Code? He, himself, has mentioned that conspiracy would already exist and would be covered under the Criminal Code as it stands right now.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, again, I go back to the statement of the former member who admitted that police officers make mistakes. I believe everyone in this world, other than one man, makes mistakes. Everybody makes mistakes. I think the successes in this country with regard to criminal investigation, criminal prosecutions, far outstrip any mistakes.

Again I say, if the fear of something going wrong prevents us from doing the right thing, then why are we even here? Terrorism is a new threat. This country has not had to deal with the kind of terrorism that we see around the world today. We have not had to deal with that in our past.

We have to bring in the tools necessary to fight that threat. In committee we are passing some new laws and enhancing things like the DNA data bank because there are new tools that allow us to do our job. This part of our anti-terrorism legislation will do just that. It will give us the tools to allow us to do the job and that is to protect Canadians from the threat of terrorism.

[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.

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

Mr. Speaker, I would like to ask the member who spoke before me whether she really thinks a recognizance signed by a terrorist is a good guarantee and protects us against whatever terrorist plan that person might be hatching.

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

Mr. Speaker, when it comes to terrorism there are no guarantees. If there were guarantees, we would not have gone through what we have both in Canada, the United States and England and elsewhere in other countries, including France. There are no guarantees.

What we can and must do, and this is our responsibility as parliamentarians, is try to put the most effective possible obstacles in the path of people who might organize a crime like terrorism.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I am trying to sort out where the Liberal Party is on this bill. In 2001 the Liberal majority government of the day passed the Anti-terrorism Act . It was set to expire under a sunset clause in February 2007. A five-year sunset clause sounds very reasonable to me.

In February 2007, after the act expired, a resolution was introduced in the House to extend the provisions by three more years. That resolution was defeated on February 27, 2007, by the NDP, the Bloc and the Liberals. The Liberals were against extending it.

Now we move to our current situation today, where the Conservatives have introduced a new bill. It sounds to me, after listening to the member, that now the Liberals are in favour of the bill.

Could the member confirm that I have this chronology in the proper order and that it is accurate?

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

Mr. Speaker, the reason why I laid out the chronology since 2007 was precisely to try to show what we have been through in the Liberal Party and to illustrate the relationship between Bill C-3, Bill S-3, which came from the other chamber, and Bill C-19. That is the jargon we parliamentarians use.

In other words, we had a bill in the other chamber, Bill S-3, which introduced some provisions that were extremely important, I would even say fundamental. Unfortunately, for all sorts of parliamentary reasons, Bill S-3 could not be brought forward in this chamber and so the government decided to reintroduce Bill S-3 in the form of what we are now calling Bill C-19.

If Bill C-19 reiterates the elements of Bill S-3, as I really have the impression it does, those being safeguards and protections for individual freedom, then I will have no problem supporting Bill C-19.

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

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

She herself acknowledges that we cannot get guarantees from terrorists. This provision leads to only one thing: the person must sign a recognizance to comply with certain conditions. So it cannot guarantee anything. Why, then, would we keep it, when we consider how it could be used against political adversaries or innocent people who would be stigmatized as terrorists? They would be only too happy to sign the recognizance because they are not involved in any terrorist plans.

This measure offers nothing and that is why it has not been used. What has been used is arrests for conspiracy. We also have to remember that the Criminal Code provides that a police officer may arrest without warrant a person who is about to commit an indictable offence. That is the answer, not this meaningless signature on a recognizance for the future, meaningless and yet capable of being used against adversaries to stigmatize them.

That is what the former leader of the Liberal Party understood when he spoke—

[The Acting Speaker, Conservative, Barry Devolin]

The hon. member for Laval—Les Îles.