Bill C-17 (Historical)
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.
Rob Nicholson Conservative
Committee Report Presented
(This bill did not become law.)
- 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
April 23rd, 2013 / 12:25 p.m.
Pierre Nantel 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.
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.
Combating Terrorism Act
April 22nd, 2013 / 4:20 p.m.
Alex Atamanenko British Columbia Southern Interior, BC
Mr. Speaker, this is an interesting debate. I have been listening to a lot of the arguments that have been flowing around this place.
As a preamble to what I am going to say, it seems to me that we have another bill before us that we probably do not really need. The impression I am getting, via the events of today and the events that have happened in the past few years, is that we have sufficient means and sufficient legislation to work for the safety of our country.
The intent of the original Anti-terrorism Act was to update Canadian law to meet international standards, such as meeting the requirements of the United Nations, and as legislative reaction to 9/11. All the provisions of this act, except for the investigative hearings and the recognizance with conditions, remain law today.
The sunset clause was attached to the original bill because serious concern was expressed during the 2001 law-making process that these measures were largely unprecedented in Canadian law and could easily be used inappropriately.
What I find interesting is that, upon review of this legislation that was passed as a reaction to a specific event and in a state of panic, we have learned that there was in fact no need for that legislation.
As of the day of their sunset, a number of investigative hearings have been held. There were no instances when recognizance with conditions was required.
It is unfortunate that the mandated parliamentary reviews of legislation made a number of recommendations that were not incorporated into Bill S-7. It is my understanding that the NDP proposed 18 amendments. It is not unlike what happened to us on the food safety bill. We came and said we would work with the government to improve the bill that was before us—necessary at that time—and it then rejected all of our amendments.
As our colleagues are probably already aware, we have proposed amendments that would improve transparency and strengthen reporting requirements, to minimize the negative impact of the bill on Canadians’ civil liberties. This is an important point. These amendments are based on evidence we heard, so we did not just make them up. As I understand it, we drafted amendments on the basis of evidence heard in committee that reflect the values that we believe are dear to Canadians.
Among the issues dealt with in these amendments, there is first the addition of a SIRC review of a possible co-operation protocol between the agencies, to ensure its effectiveness and its respect for rights protected by legislation before the offences relating to leaving the country come into effect.
Second, we want to ensure that the evidence gathered during investigative hearings cannot be used against an individual during extradition or deportation proceedings, and not just during criminal proceedings.
Third, we want to ascertain the right to legal aid provided by the federal government if the individual is to appear at investigative hearings.
Fourth, we want to ensure that annual reports include detailed information about all changes to the legislation, to policies or to practices in terms of exit information or exit inspections.
Fifth, we want the comprehensive reviews to cover the implementation of the four new offences relating to leaving the country and for the issue to be dealt with by elected members of Parliament, not just by the Senate.
Other amendments have also been proposed, but they were all rejected by the Conservatives. This is the key point.
As this House has already heard, this bill has been in the works for months. It came from the Senate and all of a sudden the Conservatives decided to bring it forward today.
We have received the answer to our question; we know why we are discussing this bill today. I do not need to belabour this point.
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.
My colleague, the hon. member for Windsor—Tecumseh, is a lawyer. He spent many years in the field. He was our justice critic. He is always the person to whom many of us look, to this day, for his judgment when it comes to the various laws here, and he has basically said that we do have sufficient legislation to combat what we need to combat in regard to terrorism.
I mentioned the actions of today, and I would like to congratulate and thank all those law enforcement officers and those men and women who have put together the roundup today, that they were able to penetrate a terrorist cell. I am not sure of the details, but as a citizen I would like to thank them for that effort. We have professional people on the ground who collaborate, not only with other law enforcement agencies in our country but with other countries, and that goes on. What we need to do is give them more resources, not fewer resources as is happening now. We need more resources to beef up our borders, to ensure we do not have illicit guns coming across the border, and to have people on the ground to penetrate terrorist cells and to work with their counterparts in other countries, so that we in this country can continue to feel safe.
Something that disturbed me, and this is a result of one of the committee hearings, is that Reid Morden, former director of the Canadian Security Intelligence Service, stated in 2010:
Speaking strictly on those two particular provisions, I confess I never thought that they should have been introduced in the first place 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. I guess I'm sorry to hear that the government has decided to reintroduce them.
Police and security services have “perfectly sufficient powers to do their jobs” and “they don't need any more powers”.This is the former director of CSIS, saying this in 2010. As I flipped through my notes and tried to prepare my speech, that disturbed me.
I will sum up by saying that I believe, as do members of my party, that we have the legislation in place. If we are going to improve, we need to improve the resources on the ground so we can equip those men and women to combat the potential terrorism threats to our country, which I feel confident they are capable of doing.
November 28th, 2012 / 5:10 p.m.
Kerry-Lynne Findlay Delta—Richmond East, BC
Far be it from me to tell the Supreme Court of Canada that they don't mean what they say.
Ms. Cheung, you testified on Bill C-17—a similar bill—on February 10 of 2011. You said, and I'm quoting:As it is currently drafted...the investigative hearing provision...leaves open room for potential misapplication of the law.
This is a new iteration of it, and when Minister Nicholson, our Minister of Justice, testified before this committee on November 19 of this year, he noted several and numerous safeguards, including: (i) that the prior consent of the Attorney General of Canada, or the attorney general or solicitor general of the province, would be needed before a peace officer could apply for an investigative hearing order; (ii) there would have to be reasonable grounds to believe that a terrorism offence has been or will be committed; (iii) the judge would have to be satisfied that reasonable attempts have been made to obtain the information by other means for both future and past terrorism offences; (iv) the bill clarifies that section 707 of the Criminal Code, which sets out the maximum period of detention for an arrested witness, applies to a person arrested with warrant and detained in order to ensure his or appearance at the investigative hearing; (v) the witness would have the right to retain and instruct counsel at any stage of the proceeding; (vi) a person could refuse to answer a question or produce anything that is protected by Canadian law relating to the non-disclosure of information or privilege; (vii) federal and provincial attorneys general would be required to report annually on any use of investigative hearings; (viii) this annual report would include an additional requirement that the Attorney General of Canada and the Minister of Public Safety provide their opinion, supported by reasons, on whether these provisions should remain in force.
In other words, there is evidence not only before the Canadian public on a continuing basis but also before Parliament on the use of this.
Do you think such safeguards are important, these ones I've listed?
Combating Terrorism Act
October 22nd, 2012 / 3:20 p.m.
Matthew Kellway 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.
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.
Combating Terrorism Act
October 19th, 2012 / 10:05 a.m.
Jean Crowder Nanaimo—Cowichan, BC
Mr. Speaker, I am rising today to speak to Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act. I want to state at the outset that New Democrats will be opposing the bill.
Since 2001, we have had an opportunity to revise the bill, which was adopted in reaction to a particular event that sent people into a state of panic. We have learned that there is actually no evidence to support such legislation. When these provisions expired in 2007, we found that there had been no investigative hearing and no situation that required a recognizance with conditions. Since 2007, the investigative hearing has only been used once as part of the Air India inquiry, but that led to no conclusive results. I am going to talk more about that later.
Bill S-7 has four objectives. The first is to amend the Criminal Code to authorize investigative hearings and authorize the imposition of the recognizance with conditions or preventative arrest. Second is to amend the Canada Evidence Act to allow judges to order the public disclosure of potentially sensitive information on a trial or an accused, once the appeal period has ended. The third is to amend the Criminal Code to create new offences for those who have left the country or tried to leave the country to commit a terrorist act, and finally, to amend the security of information to increase maximum sentences incurred for harbouring a person who committed or intended to commit a terrorist act.
I am going to focus on the investigative hearings and recognizance with conditions. I want to give some context here. New Democrats oppose the bill because it is an ineffective way of combatting terrorism and because it is an unnecessary and inappropriate infringement on Canadians' civil liberties. New Democrats believe that Bill S-7 violates the most basic civil liberties and human rights, specifically the right to remain silent and the right not to be imprisoned without first having a fair trial.
According to these principles, the power of the state should never be used against an individual to force a person to testify against himself or herself. However, the Supreme Court recognized the constitutionality of hearings. We believe that the Criminal Code already contains the necessary provisions for investigating those who are involved in criminal activity and for detaining anyone who may present an immediate threat to Canadians.
We believe that terrorism should not be fought with legislative measures, but rather with intelligence efforts and appropriate police action. In that context one must ensure that the intelligence services and the police forces have the appropriate resources to do their jobs.
I want to quote from Denis Barrette, a spokesperson from the International Civil Liberties Monitoring Group, at the review by the Standing Committee on Public Safety and National Security on former Bill C-17, which was an earlier version of Bill S-7. Mr. Barrette said:
—the provisions dealing with investigative hearings and preventative arrests, which are intended to impose recognizances with conditions, are both dangerous and misleading. Debate in Parliament on these issues must draw on a rational and enlightened review of the anti-terrorism law. As we know, that legislation was rushed through Parliament after 9/11 in a climate of fear and under very considerable pressure from the United States....
At this point in time, what is the real objective need for these two provisions? From the time of their introduction in 2001 until their repeal in 2007, the only time they were used was in relation to the Air India case which, as you all know turned out, sadly, to be a total fiasco.
Since 2007, police investigations have succeeded in dismantling terrorist conspiracies using neither one of the provisions we are talking about today. Furthermore, since 2001—in other words, in the last 10 years—none of the investigations that resulted in charges or convictions required the use of these extraordinary powers, whether we're talking about the Khawaja affair, the Toronto 18 or, more recently, the four individuals in the Toronto region....
We know as well that these provisions could, as we see it, be abused. I am thinking here of the Air India case. 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.
There are a number of concerns that have been raised with particular aspects of the legislation. It is important to note that sometimes it also gives Canadians a false sense of security. Again, what we need is appropriate resources to ensure that these activities are monitored and prosecuted where appropriate.
The Canadian Civil Liberties Association has a quote from the Supreme Court of Canada on national security from 2002.
The Supreme Court stated:
On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to...meet this challenge.
It goes on to say, however:
On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.
Again, I think it is important that we balance the safety of Canadians and the need for Canada to play its role in combatting terrorism, domestically and internationally, with those civil liberty rights.
In an op-ed referring to Canada and 9/11, which was originally published on September 6, 2011, the Canadian Civil Liberties Association stated:
Prior to the attacks, we demonstrated a high level of commitment to certain core values -- rule of law, due process, equality, habeas corpus, presumption of innocence, and the absolute prohibition against torture. These values lay at the heart of our Constitutional and international law obligations.
We knew, from contemporary history, that the absence of such legal protections resulted in societies where exceptional measures became the norm. Such societies could devolve into accepting presumptions of guilt, secret trials, secret evidence, extrajudicial execution, arbitrary detention, torture, even ethnic cleansing and massacres. To prevent such devolution, Canadians knew that any incursion into civil liberties must be legally and demonstrably justified in a free and democratic society; unjustifiable incursions must be remedied.
It goes on to do an analysis about whether or not we, in Canada, can make that same claim today, and I will only read the sections that are actually applicable to this act. It states:
Our national security actions since 9/11 require our attention:
It talks about a number of things, including Afghan detainees and using immigrant and administrative processes and counter-terror initiatives.
However, the piece that I want to highlight is:
Canada seeks to re-introduce post 9/11 amendments to our Criminal Code that will enable interrogation and preventive detention without criminal charge. Civil liberties concerns include the undermining of due process, fair trial, and lower evidentiary thresholds to trigger proceedings.
These concerns are being raised on a number of fronts about the lack of due process.
Later on in its article, it acknowledges that:
...Canada has not taken the extreme legislative or administrative measures seen in other countries, including the United States, following 9/11.
However, it goes on to state:
But we have not always got it right. And when we fail to take timely action to provide accountability, transparency, and redress, we risk morphing from a state anchored on the rule of law and democratic guarantees, to a state that condones illegal actions and disregards human dignity.
Terrorists have little regard for human dignity, human life, human rights, or the rule of law. We cannot effectively fight terrorism and protect our national security if we operate from a paradigm that also disregards these objectives. If, as Canadians, we no longer shrink from the injustices of wrongful conviction; torture, cruel, inhuman and degrading treatment; racial profiling; arbitrary detention; impunity; then what exactly are we protecting?
I think that is a very good question, one that we need to ask ourselves as parliamentarians and as Canadians. I think that most Canadians would want to continue saying that we in Canada do protect those civil liberties, that right to due process.
I want to put into context where the Conservative government has missed an opportunity because the review of the Anti-terrorism Act was conducted over a number of years. Someone who did the analysis on it pointed out that the review that was supposed to happen at three years became the three-year review.
In 2007, the subcommittee on the review of the Anti-terrorism Act submitted a report. I want to quote from the minority report that was put forward by the member for Windsor—Tecumseh. I do not have time to read the whole report but many Canadians probably have not read that report and I just want to highlight a couple of the points that come back to the challenges we are facing with this bill before us.
In that report, the members noted:
Terrorism cannot be fought with legislation; it must be fought through the efforts of intelligence services combined with appropriate police action.
There is no act of terrorism that is not already a criminal offence punishable by the most stringent penalties under the Criminal Code. This is obviously the case for pre-meditated, cold-blooded murders; however, it is also true of the destruction of major infrastructures.
Moreover, when judges exercise their discretion during sentencing, they will consider the terrorists’ motive as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high and that deterrence and denunciation are grounds for stiffer sentencing. This is what they have always done in the past and there is no reason to think they will do differently in the future.
We must also consider that, when it comes to terrorism, deterrence has limitations. First, it will have very little impact on someone considering a suicide bombing. Second, those who decide to join a terrorist group generally believe that they are taking part in an historic movement that will have a triumphant outcome in the near future and that will see them emerge as heroes.
Therefore, one cannot expect that new legislation will provide the tools needed to effectively fight terrorism.
Legislation can, however, be amended if police do not seem to have the legal means needed to deal with the new threat of terrorism.
Consequently we must ensure that the proposed measure does not unduly disturb the balance that must exist between respect for the values of fairness, justice and respect for human rights, which are characteristic of our societies, while also ensuring better protection for Canadians and for the entire world community.
This is an important point. We have had the Supreme Court point this out and we have had civil liberties organizations point this out. It is the continuing need to balance the right to protect Canadians in terms of due process with our role domestically and on the world stage.
This dissenting report goes on to say that the Criminal Code already contains this solid arsenal of provisions for combatting terrorism. The Anti-terrorism Act has simply added two more that no police force has yet seen the need to use. Further in the report, it states:
But the ATA is also dangerous, because it is a frontal attack on a number of fundamental principles that underpin our system of law, the system that distinguishes us most sharply from the ideology motivating the terrorists who confront us.
The report continues:
The Civil Liberties Union and the Canadian Association of University Teachers drew up a long list of such principles, including: the presumption of innocence; the right to privacy and to be secure against searches and any kind of invasion of privacy; the right not to be stopped, questioned, arrested or detained based on mere suspicion or on racial, religious or ethnic profiling; the right of every individual to a public, just and fair trial, and the right to appeal; the right to make full answer and defence; the right to be secure against arbitrary imprisonment and torture; the right to bail while awaiting trial, and to have the validity of detention reviewed by way of habeas corpus; the right of asylum; the right to information and to freedom of the press.
We must also learn from our overreactions in the past when faced with danger. As the danger recedes, we feel obligated to compensate the innocent victims of useless measures taken out of fright.
Not only did these measures do nothing to increase our security, but we devoted a great deal of energy to them that could have been better employed in fighting the real danger more effectively.
Sadly, Canada does have a history of reacting to something that ended up not being a threat to Canadians' security at all. The report cites:
One example is the way we treated Canadians of Japanese origin during the Second World War. In 1942, 22,000 people of Japanese origin were arrested and detained, and their property confiscated. 75% of them had been born in Canada. And yet, government documents finally made public in 1970 revealed that both the Department of National Defence and the Royal Canadian Mounted Police were convinced that Japanese-Canadians in no way threatened the country’s security.
I want to repeat that. It states, “...in no way threatened the country's security”. As a result of that, of course, the federal government eventually made an official apology and some financial restitution and put some money toward creating educational, social and cultural programs and activities.
However, it is an example of a response to a frightening world situation that unjustly penalized many Canadians.
During the First World War, some 5,000 Ukrainians were interned and 80,000 others were required to report regularly to the police. A number were forced to endure harsh living and working conditions and more than a hundred died during their internment.
There are other examples of how Canada has behaved in a way that many of us would argue did not respect due process and the liberties that many men and women in this country have fought so hard for.
Later in the report, it states:
Respect for our values is an important element in the war against terrorism. At the plenary closing session of the International Summit on Democracy, Terrorism and Security in Madrid on March 10, 2005, United Nations Secretary General Kofi Annan declared once again, “[T]errorism is a threat to all states, to all peoples.” He added,
[Terrorism] is a direct attack on the core values the United Nations stands for: the rule of law; the protection of civilians; mutual respect between people of different faiths and cultures; and peaceful resolution of conflicts.
But he then went on to say,
[T]errorism is in itself a direct attack on human rights and the rule of law. If we sacrifice them in our response, we will be handing victory to the terrorists… I regret to say that international human rights experts, including those of the UN system, are unanimous in finding that many measures which States are currently adopting to counter terrorism infringe on human rights and fundamental freedoms… Upholding human rights is not merely compatible with successful counter-terrorism strategy. It is an essential element.
In the conclusion of the report, one of the things that was recommended was a parliamentary oversight committee. This report was back in 2007. It states:
Canada is unique among western nations in its lack of a Security oversight committee. Over the course of the review we heard testimony from individuals and organizations who stressed the importance of creating a mechanism for overseeing disparate national security activities. In 2004 an Interim Committee of Parliamentarians on National Security was set up to make recommendations to the government of the day, it presented a report to Parliament in April of 2005 and on November 24, 2005, the government tabled a bill (C-81) to establish a National Security Committee of Parliamentarians.
This dissenting report goes on to say:
We would support recommendation 58 in the majority report. We would, however, further strengthen the recommendation to ensure that any Committee has authority to oversee all security agencies. In the examination of the Air India tragedy and the events surrounding the deportation and torture of Maher Arar, to cite but two examples, we have seen and heard of too many problems created when information is improperly shared or withheld from one agency to another.
The National Security Committee must in addition to providing a review function, be empowered to oversee current polices and conduct to ensure their adequacies. We have throughout the course of the review heard that vast amounts of information are deemed of national security interest and therefore inaccessible to the public or judiciary. Therefore, the proposed National Security Committee must be able to examine this information and where appropriate provide a graduated scale for the release of previously classified information.
Of course, over the years we have increasingly seen a government that withholds information. This is not part of this bill, but we recently we saw a very public feud between the government and the Parliamentary Budget Officer because of the government's refusal to release information and there were threats of court action in order to get information that the Parliamentary Budget Officer needs to do his job.
The same can be said to be true of many of the government departments. One almost needs a full battery of people working on access to information and analysis of the different ways this information is presented because when information is available, it is not presented in such a way that it is easily understandable and many times there are huge difficulties even accessing information which should rightfully be available to parliamentarians in order for them to do due diligence in doing their jobs.
This minority report went on to make a couple of recommendations. I will not read them all, but it states in part:
While the purpose of the ATA review was to examine the existing legislation and, while we cannot write an entirely new law, we would recommend that the existing ATA be terminated. However, if a new law were to be drafted, the following considerations should guide the process:
That new legislation seek to provide the utmost protection to, and not oppression of, our citizens;
That the new legislation be guided by the spirit and principles of the Charter;
That new legislation would prohibit “evidence” garnered from torture domestic or international, in our courts or tribunal;
That there be an absolute ban on sending people back to their country of origin or any other country where there is a reasonable risk of torture or death.
The reason I raised that report from 2007 in the context of the legislation that is now before us, Bill S-7, is that we can see that Bill S-7 largely disregards some of the recommendations that were made, principally around due process. We have a re-introduction of the clauses that were sunsetted around preventative detention and investigative hearings.
It is on those grounds that the New Democrats will be opposing the legislation.
Combating Terrorism Act
October 15th, 2012 / 1:50 p.m.
Christine Moore Abitibi—Témiscamingue, QC
Mr. Speaker, I am pleased to talk about Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.
This bill is one of a series of anti-terrorism acts that started in 2001 following the September 11 attacks in the United States.
Bill S-7, the Combating Terrorism Act, aims to reintroduce anti-terrorism measures into our legal system. Those measures have been controversial since they were introduced in 2001.
In my opinion, those measures were introduced in 2001 because everyone was panicking. Everyone considers September 11, 2001, to be a turning point. We are all aware that everyone panicked and that we did not really know how to react to the attacks.
If I asked, every member of the House would be able to tell me where they were and what they were doing when the attacks took place.
For my part, on September 11, 2001, I was 17 years old and starting my college-level nursing studies; I was in my psychology class, and the professor entered the room to announce that there had been attacks in the United States and that a plane had flown into the twin towers.
One of my colleagues, somewhat in a panic, said, “My mother is in New York right now.” Everyone panicked. We all remember that day; we can all say what we were doing when we heard the news.
When all this happened, I was in my first year as a student in Sherbrooke, which is closer to the U.S. border further south, and my father, quite a sensible, brave man—I am really proud of him—called me to say that if I could return to Abitibi if I wanted. He understood that I might feel safer further north. A man like my father, whom I fully respect and who is really brave, was concerned and even in a bit of a panic knowing that I was far away. Everyone panicked.
Nobody knew what was going on, and laws were passed quickly because something had to be done. Elected representatives panicked, and so did the people. Something had to be done immediately. The main anti-terrorism acts passed after September 11, 2001, stem from that.
The text of the bill before us would amend the Criminal Code. It adds to and amends the list of terrorist activities, increases the penalties provided, particularly for harbouring a person who has committed a terrorism-related offence, and amends the Canada Evidence Act and the Security of Information Act.
It is true that terrorism in many forms is a threat to our society, and we must address it. However, it is always a good idea, when discussing crime bills, to consider what constitutes the hard line and what is the intelligent and effective line because the two may be synonymous at times and not at others. Consequently, we must take the time to consider exactly what we want, and I believe we must always aim for the intelligent and effective line.
These days, the opponents of a democratic regime are less and less likely the conventional forces they previously were; they are much more frequently rebel groups or terrorists, who obey no rules or international conventions, no treaties or rules for parties at war.
However, if our opponents do not abide by those rules, is it not appropriate for us to ask ourselves whether we are prepared to abandon those rules in order to guarantee public safety? Sometimes we have to take the time to think and ask ourselves whether we are not selling our soul to the devil by accepting things that go too far for the sake of public safety.
So we must be very cautious when we talk about these things. For example, should we endanger the human rights and individual freedoms that are truly dear to our country, to our democracy, and for which people have fought, for which Canadian forces have fought several wars? Should we set aside the progress we have made? The answer is no.
Why? The Combating Terrorism Act raises this question: are we discharging our public safety obligations? Anti-terrorism measures have previously been taken, and all those provisions remain in effect today, with the exception of those respecting investigative hearings and recognizance with conditions. A sunset clause, which expired in 2007, was put in place with respect to those provisions because they were viewed as a short-term solution to an emergency and because concerns had been expressed at the time. So it is somewhat as I was saying earlier: following the events of September 11, 2001, panic set in. We took measures, without knowing whether they should be maintained, in response, as it were, to the climate of panic that had set in.
Before they were eliminated, these measures were never useful. Before 2007 they were never necessary. They were used only one time, and it was not a success. But now the government wants to reinstate these same measures, which were never used in a situation that was considered to be an emergency situation at the time.
In more recent cases, it was not necessary to use these specific measures. The existing provisions in the Criminal Code were more than sufficient. We are in the process of bringing these individuals to justice, under the provisions and conditions that already exist in our Criminal Code. In 2007, when these measures came to an end, the House rejected the resolution to extend these provisions.
Our desire to be seen as doing something about law and order is making us lose sight of the notion of justice. Our system must not become focused on law and order instead of justice.
If we look at the application of our laws, we can see that the current provisions are already sufficient. Furthermore, the committees responsible for examining this issue heard the testimony of a number of stakeholders who said that existing Canadian laws were enough. For example, during the 2011 study by the Standing Committee on Public Safety and National Security on the old Bill C-17—which was the earlier version of Bill S-7—Denis Barrette, the spokesperson for the International Civil Liberties Monitoring Group; Ihsaan Gardee, the executive director of the Canadian Council on American-Islamic Relations; Ziyaad Mia, the chair of the Advocacy and Research Committee of the Canadian Muslim Lawyers Association; and James Kafieh, the legal counsel for the Canadian Islamic Congress, spoke out against this bill. They said it was unnecessary and violated a number of civil liberties and human rights.
Mr. Speaker, I will share more of what these people said when we continue our study of Bill S-7 and you give me 10 more minutes.
October 25th, 2011 / 9:10 a.m.
Public Safety and National Security
Committees of the House
March 2nd, 2011 / 3:15 p.m.
Kevin Sorenson Crowfoot, AB
Mr. Speaker, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Public Safety and National Security in relation to Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).
The committee has studied the bill and has decided to report the bill back to the House with amendments.
March 1st, 2011 / 9 a.m.
Don Davies Vancouver Kingsway, BC
Mr. Chairman, Mr. MacKenzie used the term “ludicrous” to describe an amendment that would cap violations of Canadians' historic civil liberties at two years and require Parliament to come back after two years to justify those incursions into civil liberties. Mr. MacKenzie calls that “ludicrous”.
I don't call that ludicrous. When I'm speaking of civil liberties, I don't find anything ludicrous about the concept whatsoever. As a matter of fact, there is already a sunset clause in this bill. There was a sunset clause of five years in the original bill when it was passed in 2001. The bill before us proposes a sunset clause of five years. There is nothing unusual about the concept. Parliament is recognizing that when we talk about seriously changing the Canadian civil liberties landscape, which this bill does, Parliament should have to come back to justify that in a certain recurring time period.
The only question is whether five years or two years is appropriate. In the New Democrats' point of view, civil liberties of Canadians are so important that if we're going to try to violate civil liberties Canadians have historically enjoyed, then it's up to Parliament to come back to justify that.
Mr. Chairman, we also heard from witnesses. Several witnesses before this committee testified that they didn't want this bill to pass, but that if it were to pass, they want a very short sunset clause. There were no witnesses--none--that I heard before this committee who testified that a five-year sunset clause is appropriate. In terms of the substance behind this New Democrat amendment, it is actually informed by the evidence this committee heard.
This bill, in its original form, sunset and expired in 2006. We also heard evidence that from 2001 to 2006, when this bill was in force, it was used precisely once--one time in five years. Since that time, in the five years hence, there has been no evidence we have heard before this committee that any of these extraordinary powers are necessary. On the contrary, we heard evidence that successful prosecutions under the existing Criminal Code provisions have been conducted.
I have heard no compelling evidence before this committee--and I listened very intently to all the witnesses--that would lay an evidentiary basis for our justifying taking extraordinary steps, such as enshrining in law the concept of preventative arrest whereby individuals may be arrested without a warrant based on what a police officer suspects they might do. Mr. Chairman, that is an historic alteration of Canadians' rights to be presumed innocent and to not be deprived of their liberty except if the state has reasonable and probable grounds to do so.
I'm going to conclude my remarks by saying two final things. One is that I must say I'm saddened to see the present-day Conservative Party so cavalierly dispensing with Canadian civil liberties. They have been championing one of their historic prime ministers, John Diefenbaker, and talking about naming--I think--an icebreaker after him. Mr. Diefenbaker had a proud record in this country of supporting civil liberties; in fact, he brought in the first Canadian bill of rights. The ease with which this current government is allowing an incursion into Canadians' civil liberties and rights without any evidence is sad, in my opinion.
I also want to comment briefly on the Liberals, who brought in this legislation in 2001. In 2007, when this bill was brought back before Parliament, they opposed it and voted it down in Parliament. Here we are in committee watching the Liberal Party of Canada sit back and let Bill C-17 pass through committee.
I've heard Mr. Holland say that he's going to wait to see what the amendments are. Well, the only amendments I think we're going to see in this committee have to do with the sunset clause, unless I'm wrong.
I don't see any amendments by the Liberal Party or anybody--any that I've been served with--that would alter the fundamental deleterious and disturbing parts of this bill, which, as we've all pointed out, allow people to be arrested based on suspicion, enshrine the concept of preventative arrest, compel people to give evidence against their will, and allow the state to lock up people without charge for any period of time.
Now, I've heard the members opposite on the government side say, “Well, it's only locking someone up without charge for 24, or 48, or 72 hours”. As we all know, it could be a matter of days, depending on when a person is arrested. If a person is arrested on a Friday night at six o'clock, they're going to be deprived of their liberty for at least 72 hours without any charge at all.
The concept of having people locked up if they refuse to give evidence is also something that I think is of fundamental concern to the New Democrats in this country. I want to mention that we've heard about the effect this kind of legislation can have on communities, particularly the Muslim community of Canada. We've heard evidence that they're concerned they may be threatened...when police officers come into the community and threaten someone to be compelled to come and give evidence. If they don't give evidence, they're worried that they may be subjected to all sorts of negative consequences.
Mr. Chairman, everybody is concerned about terrorism. Everybody wants to preserve the western cherished ideals of rights. We all want to protect ourselves against those who would make incursions against those rights. In fact, that's the very purpose, I think, behind all of our motivations: nobody wants to have terrorism. People who would use violence disturb the deepest cherished ideals that we in the west enjoy, which include freedom and civil liberties.
Where the New Democrats draw the line, though, is in violating civil liberties in the name of protecting civil liberties. That is fundamentally disturbing. Even that can be justified, I would argue, in some circumstances; in times of insurrection and in times of war, I think Canadians can accept that their civil liberties may have to be truncated in some fashion, but I think Canadians expect that this happens only when we are satisfied that there's a factual basis for this.
Really, I just have to repeat that in the hearings before this committee the facts are that there has been no evidence laid, other than just rhetorical flourishes about some nascent terrorism in the world. We have not had any evidence whatsoever that this legislation is required or needed or that the current Criminal Code is anything but sufficient to deal with any kind of criminal activity that may threaten our country or our security. That being the case, Mr. Chairman, we should not give up Canadian civil liberties in the absence of that demonstrated case.
March 1st, 2011 / 8:50 a.m.
Don Davies Vancouver Kingsway, BC
Yes, briefly, Mr. Chairman. Thank you.
As you know, the New Democrats are wholly opposed to Bill C-17 for all the reasons we spoke about when we were studying this bill and hearing from the witnesses. The New Democrats believe that no foundation has been laid by the government for this bill.
There are some serious concerns about the civil liberties impact that this bill would have, including giving police powers to arrest on a mere suspicion and the power to compel evidence and force witnesses to testify, and indeed, allowing courts to lock people up for up to a year without charge. We find this bill is a serious incursion against Canadian civil liberties, so we're wholly opposed to this bill, and we'll vote against it.
But we did hear from some witnesses, Mr. Chairman, about the sunset clause, which is currently set at five years in this bill. If this ill-advised bill were to pass, in the witnesses' views they wanted a very short sunset clause of two years so that Parliament could keep a very tight leash on, have a very close look at, and a very tight rein on what we all realize are serious derogations of Canadian civil liberties, justified in the name of fighting terror.
I think it behooves all of us as parliamentarians to protect Canadian civil liberties. We can do that by making sure that this bill, if it passes, which I hope it doesn't...but if it does, we can look at the impact of this bill in two years' time instead of five years' time.
Thank you, Mr. Chairman.