Bill C-17 (Historical)

Combating Terrorism Act

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

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

Combating Terrorism Act

[Serge Ménard, Bloc, 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.

[Don Davies, NDP, 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.

[Serge Ménard, Bloc, 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.

[Bill Siksay, NDP, 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.

[Serge Ménard, Bloc, 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.

[Ève-Mary Thaï Thi Lac, Bloc, 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?

[Serge Ménard, Bloc, 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.

[Don Davies, NDP, 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.

[John Weston, Conservative, 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?

[Don Davies, NDP, 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.

[Derek Lee, Liberal, 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?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, the first question I would ask the hon. member is why his party voted against these provisions in 2007.

I have, of course, come to expect that the Liberal Party will run one way one day and another way the next day. Canadians are left wondering exactly where they stand on any issue at any given time. His party did not like these provisions three years ago. It seems to like them now. I am not exactly sure why.

I am a lawyer by training, as well, and with respect, I will differ with my friend. Canadians do, in fact, have the right to remain silent and not give evidence that might incriminate them. That is exactly what this act violates. It forces people to testify without the historic legal protection that the testimony cannot be used against them in subsequent criminal actions through derivative evidence. In that respect, although the evidence cannot be used directly against a person in a subsequent criminal proceeding, derivative evidence can be. In effect, the act violates Canadians' right not to give evidence against themselves.

If my friend wants to say that Canadians do not have that right, I will respectfully disagree with him.

[Maria Mourani, Bloc, Ahuntsic, QC]

Mr. Speaker, in 2007, as my colleague was saying, all of us—including the Liberal Party—voted against extending these provisions. Now all of a sudden the Liberal Party has changed its mind even though Bill C-17 does not introduce any fundamental changes. These provisions are still useless, because other provisions already exist in the Criminal Code to allow agencies and police officers to take action, whether with regard to investigative hearings or preventive arrest.

Does my colleague understand the Liberals' change of heart? I am still trying to figure out whether it is just one-upmanship in a world where everyone tries to come across as protecting public safety by fuelling the fear of terrorism and the fear of crime. It is nothing more than grandstanding. I do not know who is better at it, the Liberals or the Conservatives.

That is how I interpret all of this, but perhaps my colleague has another way of looking at it.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, the short answer to the question is no, I cannot offer an explanation as to why the Liberals are flip-flopping on this position.

We can all understand why, after 9/11, this legislation may have been passed because of high emotion and nervousness. I think it was wrong at that time, but we understood it.

However, I cannot understand why any parliamentarian would stand in this House today and violate precepts of democracy and Canadian civil rights when there has not been one example, in the last eight years, of anybody successfully brought before a judge who would have made this legislation necessary.

In calm, rational, sober thought, in a moment when we can actually address our minds to what this legislation would really do, I respectfully submit that no parliamentarian ought to stand in this House and knowingly violate Canadians' rights. States have always justified incursions into civil liberties by appealing to some fear. They have always tried to truncate people's freedoms with the justification that there is some bogeyman of some type.

The legislation ought to be rejected. I hope that the Liberal Party of Canada finds those principles and that its members find it in themselves to do as they did correctly in 2007 and join with the Bloc and the New Democrats in opposing this kind of very misinformed, dangerous legislation.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am pleased to speak today to Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), a type of anti-terrorism legislation. I am also pleased to explain to you, Mr. Speaker, and to all those watching us, the balanced position that the Bloc Québécois has always defended.

The hon. member for Marc-Aurèle-Fortin has championed this issue with support from our member for Ahuntsic. Those two hon. members have some experience in this. Let us not forget that the hon. member for Marc-Aurèle-Fortin is a well known criminal lawyer. He was Quebec's attorney general at one time. He was the one who launched Quebec's Opération Printemps 2001, a large-scale operation to break up organized crime and criminal biker gangs in particular. Our colleague from Ahuntsic is a criminologist by training and we refer to her for information on fighting street gangs. She even played a role in the arrest of marijuana grow operators. We get our advice from people who fight crime for a living. Those are the people the leader of the Bloc Québécois chose to champion this issue and try, in a responsible manner, to fight terrorism. That has always been the Bloc Québécois' approach.

Our party has been involved since the very beginning of the process to review the Anti-terrorism Act. Between 2004 and 2007, the Bloc Québécois heard witnesses, read briefings, and interviewed specialists, civil society representatives and law enforcement agencies. During the Subcommittee on the Review of the Anti-terrorism Act's specific study of the two provisions in Bill C-17, the Bloc Québécois made its position on investigative hearings and recognizance with conditions clear.

Our party felt that the investigative process needed to be better defined. It was clear that this exceptional measure should be used only in specific cases in which it is necessary to prohibit activities where there is imminent peril of serious damage, and not in the case of misdeeds already committed.

We were also firmly opposed to section 83.3, dealing with preventive arrest and recognizance with conditions. Not only do we feel that this measure is of little, if any, use in the fight against terrorism but, more importantly, there is a very real danger of its being used against honest citizens. This is important, because it is part of a responsible approach. Some members here say they want to amend the Criminal Code, but really, the goal should be to actually improve the situation. But that is not the case here, as we can see in the position taken by the Bloc Québécois as a result of the analysis done by our esteemed colleagues, as I explained, the hon. members for Marc-Aurèle-Fortin and Ahuntsic.

I would like to quote the text, because it is very important. Amendments to the Criminal Code are often very complicated and contain many references. In a dissenting report, my colleague from Marc-Aurèle-Fortin very clearly explained his position and his viewpoint regarding these legislative amendments. It is worth reading, to ensure that all members and the people watching us at home understand better.

Again, I am quoting my colleague's text.

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.

This part of the text signed by my colleague from Marc-Aurèle-Fortin is important. It explains that we already have a criminal code, that there are laws in place and that judges have already convicted people who have committed such serious crimes as murder and have already established a way to set sentences and judge these people.

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.

Continuing with the logic of my colleague from Marc-Aurèle-Fortin, I would say that it is important to understand that terrorists' perceptions and actions are different than those of ordinary citizens. I would add that we should not believe that they will be deterred by legislation. Therefore, we have to bear in mind the fact that their motivation is different than that of ordinary citizens.

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 Quebeckers] and for the entire world community.

Section 83.3, which provides for preventive arrests and the imposition of conditions, was advanced as such a measure when it was adopted.

Now, this provision has gone unused.

That is not surprising, given that police officers can use existing Criminal Code provisions to arrest someone who is about to commit an indictable offence.

Section 495 of the Criminal Code states that:

“(1) A peace officer may arrest without warrant

(a) a person […] who, on reasonable grounds, he believes […] is about to commit an indictable offence”

As my colleague's text mentions, clause 83.3, which would be added by Bill C-17, does not change anything, because the Criminal Code already contains section 495, which allows for preventive arrests.

The arrested person [when he is arrested under section 495] must then be brought before a judge, who may impose the same conditions as those imposable under the [Act]. The judge may even refuse bail if he believes that the person’s release might jeopardize public safety.

If police officers believe that a person is about to commit an act of terrorism, then they have knowledge of a plot. They probably know, based on wiretap or surveillance information, that an indictable offence is about to be committed. Therefore, they have proof of a plot or attempt and need only lay a charge in order to arrest the person in question.

Therefore, it is very important to understand that section 495 of the Criminal Code already does what Bill C-17 would do, but with evidence that makes it possible for a judge to render a decision.

There will eventually be a trial, at which time the arrested person will have the opportunity to a full answer and defence. The person will be acquitted if the suspicions are not justified or if there is insufficient proof to support a conviction.

It seems obvious to us that the terrorist act thus apprehended would have been disrupted just as easily as it would have been had section 83.3 been used.

In keeping with what my colleague from Marc-Aurèle-Fortin was saying, section 495 of the Criminal Code already exists, allowing for preventive arrest, provided there is sufficient evidence.

And concerning section 83.3, my colleague added:

However, it is this provision that is most likely to give rise to abuses.

Section 495 does not give rise to abuse if there is evidence, but section 83.3, as set out in Bill C-17, is vulnerable to abuse.

My colleague went on to say:

It may be used to brand someone a terrorist on grounds of proof that are not sufficient to condemn him but against which he will never be able to fully defend himself. This will prevent him from travelling by plane, crossing the border into the United States and probably from entering many other countries. It is very likely that he will lose his job and be unable to find another.

This is a predictable situation that could create injustice. And that is what my colleague from Marc-Aurèle-Fortin was arguing against.

He continued on, saying:

Terrorist movements often spring from and are nourished by profound feelings of injustice among a segment of the population. The fight against these injustices is often conducted in parallel by those who want to correct the injustices through democratic means and those who believe it is necessary to use terrorism.

The former made a positive contribution to the transformation of the societies in which we live today. They are often the source of many of the rights that we enjoy.

It is inevitable that political activity will bring the first and second groups together. Very often, the former will not even be aware that the latter are involved in terrorism. The planning of terrorist activity is by its nature secret.

The point is that we have to be careful. If we were to pass the proposed section 83.3, when we already have section 495 of the Criminal Code providing for arrest in cases with sufficient evidence, that would open the door to abuse.

We cannot give certain members of society cause to protest by taking away some of their rights. That is how terrorists operate. They try to convince segments of society that the only thing the current government and politicians want is to take away people's rights. That gives them an opportunity to say that the rights of individuals are not being respected and that society is unjust and unfair. That is one way to stoke terrorism. That is what the Bloc Québécois is warning against. We must always act responsibly.

In seeking to convict an individual, we must always have enough evidence of the kind that will hold up in our justice system, which was created by our predecessors and has worked well to this day. Section 495 of the Criminal Code currently provides for preventive arrest when the police can lay sufficient evidence before the court. We can do the work.

So why try to improve this kind of legislation for political and partisan reasons? That is pretty much how the Conservatives do business. They get people worked up by saying that they will come up with a bill to prevent something from happening—terrorism, in this case. But they are just adding fuel to the fire. It is perfectly clear that abuse can happen. Provisions like section 83.3 can be passed to enable the government to violate people's rights and show that our society is becoming less just, less tolerant. That would arouse hostility against our society. That is what the Bloc Québécois wants to prevent. We always try to deal with situations responsibly.

The Bloc Québécois has always stood up in this House to defend the interests of Quebeckers and to help the members of other political parties from outside Quebec understand what it means to be a Quebecker. That is what the hon. members for Marc-Aurèle-Fortin and Ahuntsic tried to do. That is what they do every day here in the House, drawing on their personal experiences.

As I said at the beginning, we are trying to make people see that Quebec has been very successful in certain areas, and one example is the fight against crime. The statistics speak for themselves. The Conservatives can try to change Statistics Canada's long-form census all they like and do whatever it takes to prevent us from getting the real statistics, in an attempt to impose their philosophy and ideology on all situations. But the reality is this: Quebec has a much lower crime rate than the other Canadian provinces and the United States.

Our society has made a conscious decision to try to understand and invest in the fight against poverty and rehabilitate criminals instead of trying every possible way to prove that crime exists, that more and more prisons need to be built and that tougher sentences are needed. This is what the Conservatives are doing by allowing everyone to have weapons without a firearms registry. They want to put more weapons on our streets, while believing there will be fewer criminals. I do not think that is the solution.

The Bloc Québécois has taken a balanced position regarding Bill C-17. We believe that the Criminal Code has all the tools needed to combat terrorism, as long as we are able to conduct analyses and investigations.

This is a society governed by the rule of law. It must be proven that a person has committed an offence before he is charged. That is the way things are done, but the Bloc Québécois has never had any qualms about reversing the burden of proof when necessary. And it has done so. The Bloc Québécois introduced the first ever reverse onus legislation in this House regarding profits made from the proceeds of crime. As a result—and thanks to the Bloc Québécois—criminals now have to prove that they came by their money honestly, otherwise it automatically becomes evidence of their guilt. That is a choice. These battles have to be fought, and they will be won—as my colleague said in his speech—when more power is placed in the hands of the police. But they already have these powers under section 495 of the Criminal Code, which enables them to carry out preventive arrests based on sufficient evidence.

Section 83.3 gives us an impression that preventive arrests could be made in the absence of sufficient evidence. We saw what happened with the Arar affair. I will not recount all the instances of Canadian police officers being hauled before the courts and being told that they have not done their job properly. Compensation has had to be paid out, among other consequences.

They are trying to change the laws in an attempt to gloss over a whole new approach to fighting crime, which includes making arrests without all the necessary evidence. This is a line that the Conservative Party dares to cross blithely and gleefully. We in the Bloc Québécois, however, are seeking out other approaches before we simply trample on people’s rights. I will not read out the list again, but if a person is accused of terrorism, it is no secret that they risk losing many rights, including those I referred to earlier. Now, should evidence turn out to be lacking—and if it were determined that an individual was not guilty and that there was insufficient evidence—the government would have no choice but to pay substantial amounts in compensation.

We would prefer that the Criminal Code remain unchanged, since it already has provisions for preventive arrest. We feel that Bill C-17 goes too far.

That is our colleagues' dissenting opinion on this issue. And I would again like to commend my colleagues, the members for Marc-Aurèle-Fortin and for Ahuntsic, for enlightening us all. All members of this House would do well to lend them an ear and learn about the responsible and intelligent approaches favoured by Quebec when it comes to fighting crime.