Combating Terrorism Act

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

This bill was last introduced in the 40th Parliament, 3rd Session, which ended in March 2011.

Sponsor

Rob Nicholson  Conservative

Status

Report stage (House), as of March 2, 2011
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

  • Sept. 22, 2010 Passed That the Bill be now read a second time and referred to the Standing Committee on Public Safety and National Security.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 10:10 a.m.
See context

Liberal

Brian Murphy 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.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 10:30 a.m.
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NDP

Don Davies Vancouver Kingsway, BC

Mr. Speaker, I listened quite carefully to my hon. friend's remarks and I must say that I found it difficult at times to figure out what exactly his position or the position of the Liberal Party is with respect to this particular act.

I know the Liberal Party brought in the Anti-terrorism Act in what I think was a knee-jerk reaction after 9/11. That act contained many serious violations of traditional civil liberties and rights that Canadians enjoyed in this country. I know that members of his party voted against the provisions of that act in 2007 when the sunset clause expired and here they are today seeming to talk about supporting this act going to second reading.

I heard my hon. colleague talk about the importance of civil liberties, for instance, the right not to incriminate oneself, which is a right that can be traced back in this country hundreds of years and has developed as a pivotal, key civil right in this country. Yet, this act would allow the state to force someone to testify without the right of self-incrimination.

I am wondering if my friend can clearly state for Canadians whether he supports or opposes the ability of legislation to violate Canadians' right not to self-incriminate.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 10:30 a.m.
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Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

In the legislative history of the bill, there were improvements made along the way. With respect to his preliminary concerns about where the party is, the party generally accepted the Senate's view in its Bill S-3 improvements.

We have to examine what the minister means with respect to the right to instruct and retain counsel, which I think is key to the member's point on self-incrimination.

I challenge the member to show me where the right against self-incrimination, which is from the section 10 and section 11 rights of individuals in the legal process, is not at all times in collision with, say, section 1 of the Charter, which is the override provision, or with the general sense of the need for national security.

I said in my remarks that there is always a collision between these. They cannot be compatible. There has to be a collision between the rights. No one right is alone, sacrosanct, and overpowering.

For the member to say that to the public belies his training, I think, as a lawyer and also as a public official.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 10:30 a.m.
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Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Mr. Speaker, I was here in the chamber when the minister gave his speech. I looked at the provisions in the law. He put his reasons forward. My understanding is that it is not much different from the legislation that existed, which the Conservatives at the time, the member will recall, in 2007, wanted to renew without any changes.

It even, in fact, picks up some of the recommendations in Bill S-3. The two major provisions are still in the same order.

In fact, if I read the minister's speech, he appears, subject to the test at committee, to be adopting some of the improvements that were suggested, ultimately, by the Senate when it passed the bill before we were prorogued into another election.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 10:35 a.m.
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Bloc

Serge Ménard Marc-Aurèle-Fortin, QC

Mr. Speaker, this is a bill that the legislators at the time, when they passed it, thought was dangerous. Our legislation respects individual freedoms and the fact that individuals must never be punished unless we are certain that they are guilty of a crime, and it ensures that the individual's fundamental rights are not intruded upon.

The legislators at the time thought that such an intrusion was possible. That is why they inserted a sunset clause so that the legislation would be reviewed in five years to see whether it was still warranted. To determine whether this was the case, the attorney general was asked to report on whether the legislation was justified, and why. In all of the reports that he submitted, the attorney general noted that the fact that these provisions were not used by the RCMP or federal prosecutors in the first five years and two months of their existence illustrates that officials were proceeding cautiously in using these powers. They did not use them. Not once did the RCMP or other federal prosecutors make use of this legislation.

Nevertheless, the attorney general added:

The Government of Canada continues to believe that the investigative hearing and recognizance provisions are necessary preventive measures that should be part of the Criminal Code.

Why is it necessary to maintain a tool that has never been used? I think that when this came back for review—in February 2007, if my memory serves me correctly—we made it clear that there was a risk that these laws could be used by a malevolent government to stigmatize political opponents. The leader of the Liberal Party at the time said that one of his reasons for not supporting the renewal, that is, for not allowing the provisions to stand, was that there was a risk of unfairly stigmatizing someone. And that stigma could seriously damage the person's life because he would be subject to a court ruling related to terrorism followed by a recognizance.

Do not forget that this recognizance and the proceedings require reasonable grounds, plausible suspicions, but suspicions of a serious offence. Consequently, if it is suspected that someone has potentially committed or may commit a serious offence, that person is then subject to a court ruling. How will this person's life be affected by having a court impose terrorism-related conditions? If these suspicions were unjustified, which could very easily happen since they are only suspicions, how can this person prove that the suspicions are unjustified and then overcome the stigma? I remember that that was the case with Maher Arar, who was flagged not in court, but in reports that were sent to another security service, that of the United States. How can this person be taken off the no-fly list? I am sure that someone who has been subject to a recognizance would be on this list. And since it is public, if his employer hears that he was subject to a recognizance, will he keep his job? Will another employer give him a job in the future?

In today's society, do people realize the serious harm that befalls someone who is labelled a terrorist, even based only on suspicions?

The proposed legislation before us today contains no provisions to ensure that someone falsely suspected can somehow get rid of that stigma. The absence of such a procedure would be enough in itself to justify not renewing the clause.

It is important to understand why this measure is more or less useless. When an individual suspected of being involved in a terrorist act is brought before a judge, the only thing the judge can do is impose conditions; the judge cannot incarcerate that individual. And if the individual agrees to sign the recognizance, the judge must release him.

For heaven's sake, in today's reality, how does a person become the object of such suspicions, which do not allow authorities to lay formal charges against that person? Suspicions probably arise when authorities learn about some of the person's relationships or as a result of electronic surveillance conducted in people's homes. But if those things clearly established the existence of a terrorist plot and that person's involvement, there would be evidence of a conspiracy. Conspiracy is a criminal offence, even if the objective of the conspiracy is never achieved. So that person could be charged with conspiracy and brought before a judge. The judge determines whether it is in the public's interest to incarcerate the individual, considering the evidence of conspiracy that is presented. That judge can incarcerate the individual, unlike a judge whose only recourse is to impose release conditions. The judge can even detain the individual.

Then what happens? The proceedings continue and either the charges are dropped and the person is acquitted, or the person is found guilty. If he is found guilty, then so much the better.

Nonetheless, we have to consider that not everyone who is acquitted owes that outcome to a savvy lawyer or insufficient evidence presented to the judge. In our society, I like to think that people are acquitted because they are not guilty. When a person is acquitted of a charge he can go on with his life. However, when a person is ordered by a judge to sign a recognizance on suspicion of terrorism, he is stigmatized for life.

Is this the kind of weapon we want to leave behind for a potentially dishonest government, particularly when it is the attorney general who authorizes the use of this procedure? I am not comforted by that thought.

Even if the government is not that dishonest, there are circumstances in which it is very difficult to respect the principles of the democratic state we have the privilege of living in. I experienced one such circumstance. As a young lawyer during the October crisis, I saw a government that I respected—despite the many accords it signed—invoke legislation that had been left on the books, namely the War Measures Act. And look what happened and how the War Measures Act was used.

Does anyone remember what kind of people were thrown in jail, kept there, and accused? A popular singer, Pauline Julien, and several poets—including Gaston Miron, I believe— were arrested, but most importantly, nearly all of the candidates in the Montreal municipal election were incarcerated under the War Measures Act.

Should another terrorist threat surface, I believe that future authorities could panic and use this law to, at the very least, stigmatize their rivals. A future government could even be dishonest. Our governments are reasonably honest, certainly more honest than most other governments in the world, and existing laws give them an incentive to remain so.

This is a violation of the legal principles that guide us. Let us not forget that these principles are what make our kind of government so much better than the kind of government or regime that terrorists typically seek to establish. We cannot stoop to their level and keep laws on our books that could be misused.

There are two main reasons why this legislation should not proceed. First, the measures it provides for are useless. It has never been used because it is useless. Second, it is dangerous. A government could easily be tempted to use it, not for its intended purpose but to stigmatize political rivals, which is often the case. For example, those who want stricter and stricter laws are happy to denounce those who stand for fundamental legal principles and a different attitude toward crime. They are portrayed as being pro-crime. I have heard that many times from those in government now. I can certainly imagine them using these provisions under certain circumstances to taint the reputations of their adversaries by accusing them of involvement in terrorist activities.

I should also point out that, in its annual reports, the government was supposed to justify the usefulness of this law to date, but has never been able to. Does that record suggest that this law is useful? All the Attorney General had to say was this:

The Government of Canada continues to believe that the investigative hearing and recognizance provisions are necessary preventive measures that should be part of the Criminal Code.

I would like to know why he still thinks that this bill is useful and should be renewed.

I will point out to MPs not belonging to the Conservative Party that they agreed in 2007 not to extend these provisions.

There are still a number of reasons why this legislation should not be renewed. Not enough changes have been made, according to those who believe they are necessary. In particular, no effort has been made to add provisions to the legislation enabling an innocent person who has been subjected to wrongful suspicion and stigmatized by a recognizance required by judicial decision to re-establish his reputation, live an ordinary life and travel as freely as he did before the conditions were imposed.

Canada's international reputation is at stake. I repeat, in today's world, if we need to prevent a terrorist attack, we will be able to do so because of electronic eavesdropping, meetings or because we are informed that there is a conspiracy.

In that case, we can charge the person. Those who drafted this bill believe that signing a recognizance is less serious than having charges laid. It may be less serious in the short term, but I hope they understand that, in the long term, it is much more serious. A person who is wrongly accused will be acquitted and the stigma removed; however, a person who comes under suspicion unjustly has no way to remove the stigma that remains in the security agencies' reports.

Why has the legislator, the attorney general, who was presented with these arguments in 2007, not found a solution? Because he has made no effort to do so. That is laziness in addition to recklessness. He is accepting a law that, when initially passed, could be dangerous for individual rights. It is the type of law that terrorist organizations would like to see adopted across the globe. We are playing their game by drafting laws that grant such discretionary power. Therefore, this bill is useless and dangerous.

I will acknowledge that there are two amendments that would improve the legislation. First, there is the fact that police must show that other investigative methods have failed, and second, there is the right to have a lawyer of the person's choice present, as the member who spoke before me mentioned. But we still have the same fundamental problem: this law can destroy the reputation of someone who perhaps does not deserve it. There are only suspicions against a person, and no way of repairing the damage that has been done.

As was the case with the War Measures Act, there could be situations that we have not foreseen. When the War Measures Act was passed, a government could have been tempted, or even gone as far as to use this legislation simply to destroy the reputation of political adversaries and to place them in a difficult position.

I am referring to the election that was held the year after the War Measures Act was used and almost all those who ran against Mayor Drapeau were incarcerated. Obviously, Mayor Drapeau won this election by a landslide, by getting all of the councillors from his party elected. He made a historic statement to the effect that this was his kind of victory. There were many other reasons to vote for Jean Drapeau rather than his opponents at the time.

Thus, a law that goes against our general principles, and goes so far as to incarcerate political opponents, has already been used once in our history. What is to say that one day, this legislation will not be used to stigmatize and destroy the reputation of political opponents? Not to mention the fact that errors can be made in good faith. Someone can be wrongly—but in good faith—suspected of being a terrorist and be subject to these provisions, but if the suspicions turn out to be untrue, no one is able to correct that injustice.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 10:50 a.m.
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NDP

Don Davies Vancouver Kingsway, BC

Mr. Speaker, I thank my hon. colleague for his astute and always well-informed comments. I noted that the previous Liberal speaker talked about rights being in collision and rights being conditional. I note that it was a Liberal government during World War II that violated the rights of Japanese Canadians and interned them. I note as well that it was a Liberal government in 1970 that violated the rights of Canadians and Quebeckers under the War Measures Act. It was also a Liberal government that passed the Anti-terrorism Act after 9/11 that had outrageous violations of the civil liberties of Canadians.

I am wondering if my hon. colleague would comment on the fact that Liberal governments seem to take an approach that civil liberties can be violated when times are difficult, the very time when civil liberties are most important. I am wondering if he could share his thoughts on whether civil liberties ought to be respected in times of peace but not in times that are challenging, or whether he thinks civil liberties are a core fundamental Canadian value that must be respected at all times.

Combating Terrorism Act
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September 21st, 2010 / 10:55 a.m.
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Bloc

Serge Ménard Marc-Aurèle-Fortin, QC

Mr. Speaker, I believe that this question contains an important principle. Fundamental rights are always important but especially so in cases where governments could be tempted to put them in jeopardy. The law is a living thing that changes and adapts to new situations.

He is right to say that it is easy to be generous in extending rights when social peace does not seem to be in danger. But when we feel we are in danger, there is a strong temptation to be less generous.

In this case, however, since the RCMP and security agents have not used this tool and have never publicly expressed to the government the need for such a tool, it seems clear to me that we should not have it, because experience has shown that, while a government can seem very respectful of fundamental rights at the outset, the pressure of certain events can tempt it to be much less respectful.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 10:55 a.m.
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NDP

Bill Siksay Burnaby—Douglas, BC

Mr. Speaker, during the hearings into the former bill, Bill S-3 at the Senate, the previous incarnation of this legislation, some folks raised issues about investigative hearings saying that it was a change in how our judicial system worked, that it put judges in the position of having to lead an investigation which was not their usual role and that that was problematic in our system of justice.

I wonder if the member could comment on that change in the role of judges should this legislation pass.

Combating Terrorism Act
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September 21st, 2010 / 10:55 a.m.
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Bloc

Serge Ménard Marc-Aurèle-Fortin, QC

Mr. Speaker, I believe that the member who just asked me the question realizes that I did not talk about this aspect.

The fact that people can be forced to testify under oath about what they know seems to be a less serious infringement of fundamental rights, especially since we have given them, albeit in very convoluted language, the right not to self-incriminate. That is why I focused my arguments on the other provision, which can lead to the unfair stigmatization of an innocent person.

I would remind members that Mr. Justice Hugessen, I believe, spoke about the first part more eloquently than I ever could. Judges do not like to be investigators. I would like to add that currently in Quebec there is one person in particular who is finding it difficult to be an investigator, even though he is one of the best legal minds in Canada. I am talking about Mr. Justice Bastarache, of course.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 11 a.m.
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Bloc

Ève-Mary Thaï Thi Lac Saint-Hyacinthe—Bagot, QC

Mr. Speaker, I would like to thank the hon. member for Marc-Aurèle-Fortin for his speech. I have a question for him. He was a prominent attorney in his first career. He was one of Quebec's best-known attorneys, and he is still an attorney.

I would like to know whether the Act to amend the Criminal Code (investigative hearing and recognizance with conditions) violates the right of the accused to consult with an impartial lawyer of his or her choice. Under the current Canadian system, lawyers must respect solicitor-client privilege.

Does this law not violate one of the fundamental rights of the accused, solicitor-client privilege?

Combating Terrorism Act
Government Orders

September 21st, 2010 / 11 a.m.
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Bloc

Serge Ménard Marc-Aurèle-Fortin, QC

Mr. Speaker, to be honest, I do not think that this law violates that right. The purpose of my remarks was to show that a grave injustice could be perpetrated upon some individuals. Maher Arar was subjected to exactly that kind of injustice and continues to be subjected to it.

In this case, the proposed amendments would give the accused person access to a lawyer of his or her choice. It goes without saying that the lawyer must respect solicitor-client privilege.

Combating Terrorism Act
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September 21st, 2010 / 11 a.m.
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NDP

Don Davies Vancouver Kingsway, BC

Mr. Speaker, I am proud to stand on behalf of the New Democratic Party of Canada and speak loudly and clearly against this misinformed legislation.

The fundamental issue presented by Bill C-17 before the House today engages some very alarming and critical matters.

Fundamentally the bill engages these concepts, and that is due process in law cannot be respected by offending due process in law. Civil rights cannot be protected in our country by violating civil rights. Freedom in Canada cannot be supported by abridging the freedom of every Canadian in the country.

These comments cut to the heart of this matter and I will come back to these concepts later on in my speech.

Bill C-17, an act to amend the Criminal Code, was introduced twice in the House before. It contains provisions found in former Bill S-3, which was as amended by the Senate Special Committee on Anti-terrorism last year.

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

Investigative hearings whereby individuals who may have information about a terrorism offence, past or future, can be compelled to attend a hearing and answer questions. Under the legislation, no one attending a hearing can refuse to answer a question on the grounds of self-incrimination. While information gathered at such hearings cannot be used directly in criminal proceedings against that individual, derivative evidence can and could be used against that individual in further criminal proceedings against that person.

Second, the bill provides for a form of preventative arrest whereby individuals may be arrested without evidence in order to prevent the carrying out of a terrorist act. In other words, the bill provides for detention based on what someone might do, not what he or she has done. The arrested individual must be brought before a judge within 24 hours or as soon as feasible after that.

In that case, a judge would determine whether that individual is to be released unconditionally or released under certain conditions, in other words, recognizance with conditions for up to 12 months without charge. If the conditions are refused, the individual may be imprisoned for up to 12 months without charge.

Bill C-17 contains a five year sunset clause, which requires a resolution of both the House and the Senate for it to be renewed.

The seriousness with which the bill attacks our civil liberties in our country is established by the fact that it has to contain a sunset clause to come back before the House. This shows that the government does not have the confidence to put these provisions into law for a permanent period of time, and that should be alarming to every member of the House.

Clause 1 C-17 would amend the Criminal Code and is similar to the original Anti-terrorism Act, section 83 of the Criminal Code, which forces individuals who may have information about a terrorism offence to appear before a judge for an investigative hearing. Again, the objective of this is to compel that person to speak under penalty of imprisonment. I want to deal with that matter first.

Every student in the country knows about the right to remain silent and the right not to give evidence that may be used to incriminate one in a future proceeding. Such a right is a cornerstone of a free and democratic society. Yet this legislation would violate that historic right that can be traced back centuries into British parliamentary democratic tradition.

I want to pause and say that civil liberties are something that every Canadian holds sacrosanct and civil liberties are something that ought to be protected vigilantly in all circumstances.

The erosion of civil liberties does not happen in profound or drastic fashion. History has proven that the erosion of civil liberties happens incrementally and that every society that has descended into dictatorship or authoritarianism has begun with a gradual erosion of civil liberties. People do not wake up one day and find that their Constitution is eviscerated or that their civil liberties are evaporated. What history has told us is that, little by little, governments intervene and they start taking away people's civil liberties. That is why, as members of Parliament in the House, as the representatives of the people and the guardians of civil liberties in our country, every member of the House has an obligation to oppose any legislation that would derogate from Canadian civil liberties, our Charter of Rights and Freedoms, or any other constitutional right that we have.

I also want to talk about the right to appear at a hearing and the right to remain silent.

This summer the Conservative government moved to end the long form census because it felt that the state had no right to ask people incriminating questions such as how many bedrooms existed in the house. It has said repeatedly that Canadians have to be protected against a government that would ask them questions for the purposes of gathering research, questions that help determine social policy in our country. The government said it was offensive and was a violation of the rights of Canadians. Yet the first act the government has put forward in the House after the summer recess would force Canadians to come before a judge and compels them to answer questions, in violation of their historic constitutional right to remain silent and not incriminate themselves.

Am I the only Canadian who finds that to be the most hypocritical contradiction that probably has existed this year? What kind of government cannot see the contradiction between purporting to stand up for the rights of Canadians not to be asked offensive questions, but then hauling them before a judge and forcing them to answer questions, violating their constitutional rights in the bargain?

There are not constitutional rights engaged when Canadians are asked questions on a census. The government said that we could not ask Canadians questions in the long form census that might result in Canadians being imprisoned for refusing to answer. This legislation would imprison people for refusing to answer. I would like to hear a member from the government explain that contradiction to Canadians.

The legislation would also does something else that is extremely offensive and something that all parliamentarians ought to protect and oppose vigilantly, and that is the concept of preventive arrest. That is the concept of arresting people not based on what they have done, not based on evidence, but based on mere suspicion about what they might do.

Could such a power be exercised by a government? Canadians might ask if any government would exercise such a power irresponsibly. We have an example where it did exactly that recently.

This summer in Toronto, at the G20 hearings, authorities of the state arrested 1,100 Canadians for simply walking in the street and expressing their views. Why did it do that? It did that for preventive reasons. We know that because for 900 of those 1,100 Canadians, when they appeared in court several months later and the state was forced to actually back up those arrests, the state withdrew the charges. What happened this summer? Eleven hundred Canadians had their civil rights violated, their right to assemble publicly and peacefully and to express themselves under multiple sections of the Charter of Rights and Freedoms. The government and the state took away those rights because of preventive reasons. It took away the rights of those Canadians to express peacefully to world leaders gathering in our country how they felt about issues affecting the world and the government and organs of the state violated the rights of Canadians in that regard.

We do not have to talk hypothetically or talk about fictional examples. I think every Canadian watched with disgust and horror when police rounded up Canadians, penning them in and holding them for days on end so their expressions would not be heard by world leaders. Then after the event was over, they were let out and the charges were dropped. That is what preventive arrest looks like, and the bill wants to enshrine in law a concept of preventive arrest.

I want to talk a bit about the Liberals, because the Liberals have a long history of talking about civil liberties and then acting against them. I have already mentioned that in World War II it was a Liberal government that rounded up Japanese Canadians and interned them based on nothing but their ancestry and violated their civil liberties. It was a Liberal government in 1970 that rounded up Quebeckers without charge and detained them and violated their civil liberties. After 9/11, it was a Liberal government, in a rush to look tough, brought in the Anti-terrorism Act that had a number of serious incursions into Canadian civil liberties.

For the Liberal Party of Canada, civil liberties are not something that we protect only when it is easy to protect them. Civil liberties ought to be protected when they are needed most to be protected, and that is in a time of difficulty. Anybody can stand up for civil liberties in a time of easiness and peace, but what really separates those who believe in civil liberties from those who do not is how they act when times are challenging.

I also want to talk about the government's portrayal of the provisions of the bill as being critical. This is the third time the government has moved to introduce this legislation in the House, and twice before, this legislation has died because the government let it die: once when it caused an unnecessary election that by the way violated its promise of fixed election dates; and second, when it prorogued the House.

If these powers are so critical, the government has to explain why these powers have never been exercised. It is almost nine years later and I cannot find a single example where anybody was put before a judge and where these powers were actually enforced. However, I can tell the House that under our present Criminal Code, which has provisions for conspiracy and provisions that give our police officers the powers they need to investigate any kind of terrorist act, there have been successful prosecutions. We can have a vigilant country that investigates and works to prevent terrorism and respects civil liberties at the same time. We do not have to sacrifice civil liberties in the name of security.

This brings me to my next point. What Canadians want in our country is our way of life protected. What Canadians want is to be free from any kind of terrorist activity that would violate our freedom and our civil liberties. We cannot sacrifice our civil liberties in the name of protecting them.

Ensuring public safety is essentially about protecting the quality of life of Canadians. We hear the government say that all the time. Quality of life can be defined in many ways. If we talk to our family members, neighbours in our community, I would dare say they would define quality of life in a variety of ways. However, I think every Canadian would agree that we would define quality of life by the right to live in peace, the right to pursue liberty and happiness and the right to be protected against offensive incursion into our liberties by our state.

While Canadians are in favour of protecting Canada against terrorism and of having a country that is secure, we are also in favour of freedom and civil rights. Security means feeling safe. It means feeling that our country and communities are safe and that we can safely go out into our streets. However, it also means that we need to feel that our federal government, our provincial government and the courts in our country are protecting us, and this means protecting our civil liberties and our civil rights.

This legislation also engages another fundamental right, which is the right to be presumed innocent. It is not for a Canadian to be compelled to go before a court and be compelled to answer questions under threat of imprisonment. The right to be presumed innocent is the right to sit back in silence and enjoy the fact that the state has to prove a case against an individual. The minute we start making incursions into that right, we are going down a slippery slope, the end of which we know not. That is why it is so important to be vigilant in protecting our civil liberties.

As I said before, we lose these rights incrementally, just a little bit here and a little bit there. Before we know it, there is moderate infringement of our civil liberties. Then we go a bit further, and pretty soon there is substantial infringement of our civil liberties.We go a little further, and before we know it, there is profound violation of our civil liberties. I would ask all my colleagues in the House to join with New Democrats in saying that we will not go down that path. We want to live in a country where we have concrete rights.

My hon. colleague in the Liberal Party talked about rights being in collision and about balancing rights. He said that if people go home unhappy, that suggests that we have the appropriate balance. With the greatest respect, I could not disagree more.

When it comes to fundamental civil liberties, there is no balancing. When it comes to civil liberties, there is no collision. When it comes to civil liberties, there is no keeping everybody unhappy. When it comes to civil liberties, we either have them or we do not. We either live in a country where we have the right to be presumed innocent, or we do not. We either live in a country where we have the right to remain silent and not give evidence that may be used against us, or we do not. We either live in a country where there is no such thing as preventative arrest and where the state must justify putting a Canadian in prison based on what he or she has done or might be doing, or we do not. I do not see any collision there. I do not see any balancing there. The minute we start talking about balancing civil liberties, we are on the path to erosion.

I say that for a number of reasons, but primarily I say that because we cannot protect civil liberties by offending them. We cannot advance freedom by abridging it. We cannot improve human rights by derogating them. We must stand up for these civil liberties. This bill would do only a couple of things, but they are significant things.

I also want to talk briefly about some comments made recently with respect to torture, because I think they are tied to civil liberties.

Recently, the head of CSIS, Richard Fadden, said that the state might rely on information that may have been derived from torture if it is felt that it might be helpful in preventing some sort of episode in Canada. Canada either opposes torture or it does not. We cannot say that we oppose torture except when the information might be helpful. By the way, all information derived from torture is inherently unreliable. One can never say that information that is a product of someone inflicted with physical torture is ever the truth. The only way to stand up against torture is by taking a firm stand against it.

Why do I bring that up in the context of this debate? It is because it is just a slight opening. We might say that we are against torture, except in this one circumstance. No. This is 2010 not 1610. We do not consider it acceptable in this world or in this country to subject someone to physical torture as a means of getting information. The way to say so is to say that we will never rely on it. It is unequivocally wrong.

It is the same thing with the provisions in this bill. It is wrong, and I urge all members of the House to join with the New Democrats in opposing this flawed and extremely dangerous piece of legislation.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 11:20 a.m.
See context

Conservative

John Weston West Vancouver—Sunshine Coast—Sea to Sky Country, BC

Mr. Speaker, I applaud the member for Vancouver Kingsway's commitment to civil liberties, a commitment that is shared by most members of the House. Certainly, as the founder of the Canadian Constitution Foundation, I am one of those who shares such a commitment.

Members listened while he used the words “freedom” and “liberty” over 30 times in the course of his remarks. We sat nodding our heads, saying that we all agree with freedom, but as Viktor Frankl , the famous writer who was imprisoned in Auschwitz, said, to every freedom there must be a responsibility. Without responsibility, freedoms are dangerous.

Some of the most powerful advocates for civil liberties the world has ever known, such as John Stuart Mill, have said, contrary to what the member across the way said, that there is a balancing of rights. There has to be.

The world is increasingly dangerous. We have seen terrorist threats inside Canada for the first time. What does the member have to say about responsibility along with freedom when preventing terrorism from occurring in our country?

Combating Terrorism Act
Government Orders

September 21st, 2010 / 11:20 a.m.
See context

NDP

Don Davies Vancouver Kingsway, BC

Mr. Speaker, that is a fascinating comment, coming from a member of the government.

I would, in turn, ask him a question. The government is talking about the freedom of Canadians to own guns but opposes the responsibility of even registering a gun. In that case, I guess there is no corresponding responsibility. A Canadian, according to the government, has the freedom to own and walk around with a gun, but there is no corresponding responsibility to do something even as minor as registering that weapon. In that case, it is a question of pure freedom. I would be interested in hearing my friend's comments to help me understand that.

Of course there are corresponding responsibilities, but core civil liberties are core civil liberties. The right to remain silent and not incriminate oneself is not conditional. It is either a right or it is not a right. The right not to be arrested when one has not done anything, when the state has no evidence that a person has done something or might do something, has no corresponding responsibility. Canadians are either free to walk our streets and not have their liberties restricted by the state in the absence of evidence or they are not.

I agree with Mr. Frankl's comments about responsibility and freedom, but we are not talking about those kinds of liberties. We are talking about core constitutional liberties, which I believe have no conditions attached. They are core, fundamental values and rights that every Canadian enjoys, and we have to support and protect those rights vigilantly.

Combating Terrorism Act
Government Orders

September 21st, 2010 / 11:20 a.m.
See context

Liberal

Derek Lee Scarborough—Rouge River, ON

Mr. Speaker, I do not want to be seen as negative on the issues raised by the hon. member for Vancouver Kingsway. This, of course, is the one place in the country where we should always be supportive of advocacy in favour of our freedoms.

The member may have failed to connect the dots for me. First, he referred to the right to remain silent. That is not a right in Canada. There is a right against self-incrimination. The member may have been watching a few too many American television shows.

The Canada Evidence Act is very clear that when a question is put in a judicial proceeding, the answer must be given. The answer cannot subsequently be used in a criminal proceeding against a person, other than for perjury. However, there is no actual right of self-incrimination. I would like him to address that, because he referred to this right but did not give an example of how this legislation would breach that right.

Second, on the issue of investigative hearings, we have always had in this country, for over a century, the grand jury procedure. It requires citizens to appear before a grand jury, where they are forced to answer questions on criminal matters. That evidence is not usable against them in subsequent criminal proceedings if charges are laid. That is an example of how our legal system has already done that. I would like him to comment on that.

Third, preventive detention is virtually analogous to the conspiracy offence whereby someone is charged with conspiring to commit a criminal act that has not happened yet. These concepts are not new to us. We are just refining them a little for Canadian purposes in compliance with the Charter. Would he comment on that, please?