Public Safety Committee on Nov. 19th, 2012

[The Chair, Conservative, Kevin Sorenson]

I call the meeting to order.

Good afternoon everyone. This is meeting number 59 of the Standing Committee on Public Safety and National Security, on Monday, November 19, 2012.

Today our committee is commencing our study of Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.

Our first witness is the Hon. Rob Nicholson, Minister of Justice. He is accompanied by Mr. Donald Piragoff, senior assistant deputy minister of the policy sector at the Department of Justice. I see Mr. Glenn Gilmour of the criminal law policy section will also be with us.

We want to thank the minister for coming to the public safety and national security committee. It's an honour. We are frequented by the Minister of Public Safety here, but a special welcome to you today, sir. We thank you for assisting us with our study of this bill and providing us with the appropriate officials from your department to help us understand it better.

I also understand you will be with us for one hour. You have an introductory statement on Bill S-7 and then you will take some questions.

Welcome. We look forward to your comments.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chair.

You're right: I'm not often before this committee. In fact, I don't remember ever appearing before this committee, but the honour is certainly mine to do so.

Thank you very much for the opportunity to talk about the Combating Terrorism Act, Bill S-7. It proposes to amend the Criminal Code to ensure that Canada has the tools it needs to combat terrorism and to protect its citizens.

The legislation proposes to re-enact the investigative hearing and the recognizance with conditions clauses. In addition, it will create a new offence of leaving or attempting to leave Canada for the purpose of committing certain terrorism offences.

These tools were first created as part of the Anti-terrorism Act. The investigative hearing was intended to help in the investigation of past or future terrorism offences, while recognizance with conditions was intended to disrupt those who were in the planning stages of an attack.

The proposed investigative hearing provision would allow the courts to compel a person who has information regarding a past or future terrorism offence to appear in court and to provide the information under questioning.

The proposed recognizance with conditions provisions would require a person to enter into an agreement, before a judge, to abide by reasonable conditions imposed by the judge in order to prevent the carrying out of a terrorist activity.

The investigative hearing and recognizance with conditions, when enacted, would contain new safeguards in addition to the numerous safeguards originally enacted in 2001. Let me list some of them.

First, for the investigative hearing, the consent of the relevant attorney general would be required. Second, the person compelled to appear in court would have the ability to retain and instruct counsel at any stage of the proceedings.

In all cases, reasonable attempts would first need to be made to obtain the information by other means. The information provided by the person or anything derived from that information would be generally inadmissible against him or her in any criminal proceeding.

If a person were arrested with a warrant to attend the investigative hearing, there would be clear limits, set out in the bill, as to how long the period of detention could be.

The federal and provincial attorneys general would be required to report annually on any use of the investigative hearing provision, and the annual reports of the Attorney General of Canada would include an additional requirement that he or she provide an opinion, supported by reasons, on whether the provision should remain in force.

Now I'll go to recognizance with conditions. Again the consent of the relevant attorney general would be required.

A warrantless arrest of a person could only be made in very limited circumstances, such as where the laying of information before a judge has been rendered impractical by reason of exigent circumstances and the peace officer suspects, on reasonable grounds, that the detention of the person is necessary to prevent a terrorist activity.

If the person were arrested without warrant, the officer would either have to lay information before the judge, generally within 24 hours, or release the person, and before laying the information, the peace officer would have to obtain the consent of the attorney general.

A person detained in custody would have to be brought before a provincial court judge without unreasonable delay, and in any event within 24 hours of arrest, unless a judge was not available within that period of time, in which case a person would have to be taken before a judge as soon as was feasible. The hearing would then have to be held within 48 hours.

The Minister of Public Safety and the minister responsible for policing in each province would be required to report annually on the arrest without warrant power, while federal and provincial attorneys general would be required to report annually on any use of the other elements of this regime.

The annual reports of the Attorney General of Canada and the Minister of Public Safety would include an additional requirement that they provide an opinion, supported by reasons, on whether the provisions should remain in force.

As well, Bill S-7 proposes the creation of new offences for leaving or attempting to leave Canada, or going or attempting to go on board a conveyance with the intent to leave Canada for the purpose of knowingly participating in or contributing to any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to commit a terrorist activity, knowingly facilitating a terrorist activity, committing an indictable offence on behalf of a terrorist group, or committing an indictable offence that constitutes a terrorist activity.

These new offences are intended to strengthen the ability of law enforcement to arrest, and the crown to prosecute, a person who has left Canada or is attempting to leave Canada for the purpose of committing these terrorism offences.

Finally, Bill S-7 also responds to the parliamentary review of the Anti-terrorism Act that was conducted by committees of the House of Commons and the Senate from 2004 to 2007 and proposes some changes to section 38 of the Canada Evidence Act to ensure that it accords with recent jurisprudence in that area.

I would like to address some of the criticisms made regarding investigative hearings and recognizance with conditions.

One criticism has been that the tools are unnecessary because to date the current criminal law provisions designed to combat terrorism have proven to be sufficient.

If we were to approach life based on the assumption that because no harm has actually befallen us there would be no need to prepare for the possibility that harm might arise, ours would be a far different world. That is not the case. That is not the world in which we live. We know that we have to take steps to reduce the possibility of harm that can suddenly arise, and it's only prudent to take steps to try to prevent such a risk from arising. The fact that no harm has yet arisen or that the proposed amendments have not been utilized is insufficient reason to conclude that these measures are not needed.

Some have claimed that investigative hearing offends the right to remain silent. This argument was expressly made in the 2004 constitutional challenge to the investigative hearing and was rejected by the Supreme Court of Canada. The court noted that certain elements of the protections against self-incrimination in the investigative hearing legislation even go—and I quote—“beyond the requirements in the jurisprudence, and provide...absolute derivative use of immunity, such that evidence derived from the evidence provided at the judicial investigative hearing may not be presented against the witness in another prosecution.”

Let me address another criticism made of Bill S-7. The bill proposes to create four new terrorism offences of leaving and attempting to leave Canada for the purpose of committing terrorism offences outside the country. There are those who have expressed the concern that the creation of these offences could violate Canada's international obligations in the event that someone who is charged with any of these crimes is a young person—that is, someone who is under 18 years of age—but, as you know, there is a specific piece of legislation that applies to young persons charged with crimes, and that is, of course, the Youth Criminal Justice Act. Bill S-7 does not change that in any way. In fact, the Youth Criminal Justice Act specifically states that despite any other act of Parliament, other than the Contraventions Act and National Defence Act, it has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a young person.

The Youth Criminal Justice Act recognizes that the youth justice system must be separate from the adult system and be based on the principle of diminished moral blameworthiness of youth. It emphasizes rehabilitation and reintegration, just and proportionate responses to offending, and enhanced procedural protections for youth. It contains a number of significant legal safeguards to ensure that young people are treated fairly and their rights are protected. It also sets out specific youth sentencing principles and options.

Thank you very much. I look forward to any questions you may have.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Minister.

We'll move into the first round with Ms. Bergen for seven minutes.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Thank you very much, Mr. Chair.

I also want to thank you, Minister Nicholson, as well as your officials, for being here.

As our chair said, it's the first time we've had you at our committee, and we welcome you. We're very pleased that we can look at this important bill that our government obviously supports and believes to be an important tool in fighting terrorism.

Minister, I want to ask you specifically about the two provisions you spoke about, which will be reinstated with this bill. My understanding is that they ceased to exist in 2007 and that our Prime Minister and our government, ever since then, have been working to reinstate them. Can you explain in layman's terms what “recognizance with conditions” is and is not, in terms of the rights that individuals would still have as opposed to the rights of someone who was actually placed under arrest? Can you explain what it is and why it's an important tool for law enforcement to have in fighting terrorism?

[Rob Nicholson, Conservative, Niagara Falls, ON]

The “recognizance with conditions” provisions require an individual to enter into an agreement before a judge to abide by reasonable conditions imposed by the judge in order to prevent the carrying out of a terrorist activity.

This, along with the investigative hearings and the new provisions with respect to intercepting someone leaving the country for the purpose of participating or assisting in terrorist activities, is part of the preventative measures. These are measures put in place to stop the kind of activity that can terrorize a community or a country. They are put in place to prevent other very serious crime from happening.

I think they're important. That's why they were placed in there, in the original legislation, approximately 10 years ago now. They were there so that the police would have the tools to break up the kind of activity that we have witnessed in the world. I think they're important measures. I know those in the law enforcement community are very interested in making sure they have this measure. People involved with fighting terrorism are supportive of it.

As you quite correctly pointed out, they did lapse in 2007. The legislation provided that unless Parliament renewed them or extended them.... I was justice minister at the time, and my understanding was that we were going to be able to at that time, but that wasn't the case.

We continue to believe in the importance of them, Mr. Chair, so I'm pleased that they've now been passed by the Senate. Certainly it's my hope that we will continue, that they'll be passed completely by Parliament, and that they'll be part of the tools that law enforcement agents will have to break up terrorist activity.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Just to be clear, if law enforcement suspects that an individual is engaged in activity that would be contributing to terrorism in some way, or compromising the safety of Canadians in terms of terrorist activity, law enforcement could go to a judge and ask that conditions be imposed on that individual so that those actions cease to happen, and then, together with the investigative hearing, be able to determine if there are other actions that need to end.

Is there a responsibility on those investigators and the judge to make sure that all other avenues of investigation have already occurred?

[Rob Nicholson, Conservative, Niagara Falls, ON]

There is. That is one of the issues that will be before the courts: to see whether in fact this was reasonable and other tools were investigated and other attempts looked at.

It's a question not just of the investigative officer but also, as I indicated, with the consent of either the provincial or the federal attorney general. As I pointed out in my opening remarks, a number of safeguards have been put in place in addition to the ones that were there 10 years ago, when this was brought before Parliament.

I think these are reasonable measures, because ultimately we all have a stake in trying to prevent and break up possible terrorist activity. That's the world in which we live. We understand that. The tools have to be there. However, as you've pointed out, there's a requirement to look at these acts in a reasonable manner; that will be overseen by the court. It will need the consent of the Attorney General.

As I pointed out as well, these won't be operating in a complete vacuum, in the sense that there will be no oversight. No: the attorneys general will make annual reports and assessments; Parliament can, on a regular basis, have a look; and the public will know when and if these measures have been used, and their usefulness.

Again, I think these are important tools to have.

[The Chair, Conservative, Kevin Sorenson]

You have a minute and a half left.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

In regard to the safeguards that are in place, can you expand a little further on those, Minister, including the rights that an individual would have and the role that obviously not just law enforcement but the judge will play in making sure those safeguards are upheld while at the same time protecting the safety of Canadians?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it's important, and I think it's important to note that the individual has the right to counsel throughout this process. I think that's an important component.

As I indicated as well, the statements made by the individual won't be used against him or her in subsequent criminal proceedings. I think that's important. The two exceptions are, of course, if there was perjury or if the individual was contradicting the facts they'd already given. Those are some exceptions, but this will not be used against them in criminal proceedings. That's the general rule. They have legal counsel that they're entitled to.

I think both of those points are important.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Thank you very much.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Bergen.

We'll move to Mr. Garrison, please, for seven minutes.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair.

Thank you to the minister and the officials for appearing today.

Obviously, on all sides of the House we share the concern about preventing terrorism, but what we've seen with the introduction of this piece of legislation and several others causes concern because it appears the government is relying on further legislative measures, some of which clearly have impacts at least on basic rights, while at the same time cutting budget spending in the front-end areas of law enforcement and the Canada Border Services Agency, which might have the biggest impact in actually preventing terrorism. That's the context in which I am approaching my questions: this question of balance between the measures we're taking in order to prevent terrorism and basic rights in Canada.

You started off by talking about why we need investigative hearings and recognizance with conditions, since they were never used when they were in place. What consultations have taken place at this point that would lead you to believe these measures should be reintroduced? In other words, where is the demand? Has this come from law enforcement, has it come from community agencies, has it come from CSIS? Why are you bringing these back at this point in Parliament when they had never been used before?

[Rob Nicholson, Conservative, Niagara Falls, ON]

These measures were enacted to meet the challenges that the world faced in the early part of the 2000s. As you know, these were looked at and a number of people came forward in 2007. You might want to have a look at this. It was proposed by the government at the time that we would continue. We had a look at them ourselves and we had discussions, as I do when I go across this country. I always meet with law enforcement agencies, I meet with attorneys general, I meet with people who are concerned about terrorism or crime in this country.

What we have done is strike that balance that you mentioned in your question to me. You'll see the safeguards are there throughout. There are more safeguards with respect to this provision than there are to ordinary criminal law provisions, quite frankly. You can be charged under the Criminal Code, and the consent of the federal attorney general or the provincial attorney general or the agents of the attorney general isn't needed. Here you need that consent, so this is an added protection over and above what might normally be considered.

So have we struck the right balance? Yes, I believe we have, and I think your investigation will confirm that. I've pointed out half a dozen of them to you, and when you have a look at the legislation, I think you'll come to the same conclusion that I and my colleagues have, which is that this is very reasonable and these tools are good to have.

The fact that they're not necessary does not dissuade me that these are important tools. If we were the subject of a terrorist attack that could have been prevented had tools like these been there, we would be subject to criticism, as you can imagine, and the horror of the Canadian public, saying that every step has to be taken to prevent such things.

I'm very interested in changes to our laws that help prevent tragedy and crime. You perhaps had a look at the provisions with respect to protecting children. The two new offences we put in there were designed to break up any kind of activity before the child gets molested, in terms of two adults conspiring with each other or if the individual gives sexually explicit material to a child. Again, people ask, “Why is this necessary?” Well, we want to stop the activity before the child is actually abused. This is in that same line. We want to have the tools in place to break up and investigate possible terrorist activity before it actually happens.

Again, I think these measures are very reasonable. They were reasonable 10 years ago when the then government introduced them, and this is our fourth attempt, as you may know, Mr. Chair, to introduce them. I think these are important tools to have, and with respect to the balance you indicated, I outlined half a dozen in my initial comments to you. I think your analysis and study of this will confirm that.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

My understanding, then, is that this is the consultation in these hearings. We will be looking forward to hearing what witnesses have to say here.

In 2006 the House of Commons Subcommittee on the Review of the Anti-terrorism Act, with regard to investigative hearings, suggested that these hearings should only be used when there is imminent peril that a terrorist offence will be committed. I think that was recommendation 4 in 2006. Yet this legislation still casts the retrospective light, and you are talking about preventing future terrorism attacks. Why not go with that recommendation from the committee to limit investigative hearings only to future acts?

[Rob Nicholson, Conservative, Niagara Falls, ON]

As Mr. Piragoff pointed out to me, to have the tools to be able to have some retrospective investigation into past activity is important to preventing future activity. I don't buy into the theory or possibility that somebody, just because they have been involved with prior terrorist activity, won't do anything in the future. I don't subscribe to that. Yes, you can be called before an investigative hearing regarding what you have done in the past in terms of facilitating or participating in terrorist activity. It seems to me that's a part of what we're trying to do: break up any possible future terrorist activity. I think this is only reasonable.

[The Chair, Conservative, Kevin Sorenson]

You have 30 seconds.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Maybe I'll ask just a very quick and more specific question.

You said that as a protection against self-incrimination, any information derived in an investigative hearing can't be used in criminal proceedings.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's a general rule.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Are you then confirming that it could be used in immigration proceedings, citizenship proceedings, or any legal proceedings other than criminal proceedings?

[Rob Nicholson, Conservative, Niagara Falls, ON]

The Supreme Court of Canada has already interpreted that the protection against self-incrimination applies to immigration or extradition matters. I hope that answers your question.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

We will move back to Ms. Findlay, please.

Welcome to the committee.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you.

Hello to you, Minister, and to your officials. Thank you for being here today to talk with us about this important legislation.

I noticed in some news coverage of the Prime Minister today that he made some remarks at a public forum. He was speaking about the border between the United States and Canada. He said we share security needs and security threats. This is the world we live in today.

I am mindful of your statement that this is added protection and a balanced approach. I know we have in fact increased front-line border services officers by 26%. This is just one aspect of what we're trying to do to keep Canadians safe.

I'm a British Columbia member of Parliament, and of course there has been a lot of attention on the Air India case. In June 2004, there was a reference made with respect to that prosecution to the Supreme Court of Canada. At that time, the court upheld the constitutionality of investigative hearings. Does it give you a certain comfort with regard to this legislation that the Supreme Court of Canada has already found investigative hearings to be constitutional?

[Rob Nicholson, Conservative, Niagara Falls, ON]

You have raised a couple of matters, Ms. Findlay. Certainly, with respect to border security—and, as you know, I come from a border community that has four separate bridges along the Niagara River—I am keenly aware, as I have been all my life, of the issues that exist between our countries and the need for cooperation between Canada and the United States.

It does give me some comfort to know that in 2004 the Supreme Court of Canada upheld the investigative hearings provisions of the legislation that existed at that time. I am satisfied that all of the provisions are constitutional. That is a decision we make whenever we table legislation. For those who may argue that somehow these tools to prevent or control terrorist activity are somehow unreasonable—you are quite correct—I take some comfort in knowing, at least with respect to investigative hearings, that the top court in the country has had a look at them and has judged them to be constitutional. Again, this is consistent with the message we have consistently given with respect to these provisions—that they are necessary, that they are important to have, and that they are added tools in the fight against terrorism in this country, which affects not just Canada but the world. It's important that we have them. Yes, I do believe they will pass constitutional muster. As I say, one important component of these provisions has already met that test, in 2004.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

There was also a companion case back in 2004, referred to as “Re Vancouver Sun”, that also went to the Supreme Court of Canada. In that case, they held that there was a presumption that investigative hearings should be held in open court. That is, of course, consistent with most of our court proceedings.

However, I believe there is within this bill the ability, within judicial discretion, to order that such a hearing might be heard in private—for instance, if the safety of the person being brought forward to give testimony might be at risk or whatever. Is it correct that the presumption is a public hearing, but there can be flexibility for the judge?