House of Commons Hansard #118 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was provisions.

Topics

Anti-terrorism Act
Orders of the Day

5:25 p.m.

Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, had the scurrilous allegations against the member for Mississauga—Brampton South been simply left as a Vancouver Sun article, it would have just simply meant absolutely nothing to anybody here; I mean, Vancouver Sun, really.

What happened is that the Prime Minister brought it up. The Prime Minister brings it up and he incorporates the article by reference onto the floor of the House. It would not have meant anything had The Vancouver Sun just simply been The Vancouver Sun, and who pays much attention, but no, the Prime Minister of Canada brought it forward and gave it the full force of the authority that he has here.

It strikes one as extraordinary that he incorporates by reference an article he has not investigated, which I presume is true, and he therefore does not know whether the basic facts are true. He uses that in a partisan way to achieve an end and, in the process, raises the whole question of the validity of the Air-India inquiry. He jeopardizes the entire inquiry for partisan advantage. What could he possibly have been thinking when he did that? I just do not understand. What seems to me to be the truth is that the Prime Minister just does not understand the dignity of his office and the responsibility of his office.

As to whether it was pre-orchestrated on this side, not one of us anticipated that the Prime Minister would raise this in a question period.

Anti-terrorism Act
Orders of the Day

5:25 p.m.

Liberal

Tom Wappel Scarborough Southwest, ON

Mr. Speaker, I have a comment and then a question for my hon. colleague.

My comment pertains to something my hon. colleague mentioned. In looking at the act with respect to recognizance with conditions, section 83.3, otherwise known as preventative arrest, that section deals with “reasonable grounds” to believe “that a terrorist activity will be carried out” or “to prevent the carrying out of the terrorist activity”. So indeed, that is in fact forward looking.

On the other hand, for investigative hearings the act states, “A judge to whom an application is made under subsection (2) may make an order for the gathering of information” if he or she believes “there are reasonable grounds to believe that...a terrorism offence has been committed”. That is the past. Then it goes on to also talk about future terrorist offences.

It is clearly within the purview of the investigative hearing that it can be used for the prospective, for the future, and this is one of the reasons that the subcommittee in its report, which it presented to the main committee and which the main committee adopted, recommended that the investigative hearing provision be amended so that it may deal only with the future. Because clearly it can deal with the past, and the committees were of the view that once an offence has been committed there are sufficient investigative tools in the arsenal of the police that they do not need investigative hearings.

My question for the hon. member pertains to his historical recollection. The hon. member and I are in neighbouring ridings. I recall very specifically his passionate concern about these two sections. In fact, I remember us having public hearings in Scarborough with affected communities, where we talked about these very issues and about the perception that certain communities were being targeted. In his speech, the hon. member said there was a lot of worry that these sections might be used in such a way as to abuse citizens' rights. I want to know if that is in fact the main reason he recalls that--

Anti-terrorism Act
Orders of the Day

5:25 p.m.

Conservative

The Acting Speaker Andrew Scheer

The hon. member for Scarborough—Guildwood.

Anti-terrorism Act
Orders of the Day

5:25 p.m.

Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, I appreciate the hon. member identifying the distinction between prospective and retrospective. I am glad to see that the committee report picked up on that very point.

Certainly in the environment of the time we did not talk about retrospective application of investigative hearings. Possibly we should have, but we did not. I do not recollect any debate either in the House or in committee about that very point.

I also agree with my colleague with respect to those communities that felt they might be affected and aggrieved by these particular sections. I have no concrete evidence that this in fact has happened. Nevertheless, it is a significant and worrisome intrusion on people's civil liberties and there is some justification in some communities to feel that they are targets of this particular legislation. I wish that were not so, but I am afraid it is.

Anti-terrorism Act
Orders of the Day

5:30 p.m.

Conservative

Ken Epp Edmonton—Sherwood Park, AB

Mr. Speaker, I have great respect for the member. I appreciate his good, calm way of presenting his arguments today. I contrast that sharply with a member who spoke previously and who made all sorts of scurrilous and untrue accusations against me and my colleagues.

I wonder, when the member talks about this attack on one of their members, presumably by our Prime Minister, whether perhaps he would be ready to admit that there is some evidence, and there have been some occasions, where the Liberal government at the time did in fact use its position in order to protect some of its own, and perhaps that was the reason.

We on this side I think are very puzzled at the flip-flop of the Liberal Party on this particular issue. In a way, I regret that it has become so highly emotional and so politicized. I really wish that we would be able to pass the legislation to prevent the sunsetting at this time and that we could carry on with the finest tradition of protecting our citizens.

Those are my comments. Perhaps the member has a response.

Anti-terrorism Act
Orders of the Day

5:30 p.m.

Liberal

John McKay Scarborough—Guildwood, ON

Mr. Speaker, scurrilous seems to be the word of the day and hopefully the hon. member will help us with the definition.

I agree with him that it has become emotional and politicized. I regret that very much. These are very serious issues and I regret very much that the Prime Minister chose to take that route. I regret that he chose to attack the hon. member and therefore put into play the validity of the investigative section of Bill C-36 and to raise the very fears that my hon. colleague from Scarborough Southwest and I were talking about just a moment ago, that these kinds of hearings can be used, frankly, as fishing expeditions and in the process, people's reputations and lives are compromised.

I find that very regrettable on the part of the Prime Minister.

Anti-terrorism Act
Orders of the Day

February 26th, 2007 / 5:30 p.m.

Liberal

Tom Wappel Scarborough Southwest, ON

Mr. Speaker, I will be splitting my time with the hon. member for Mount Royal.

In the brief 10 minutes that I have to speak on this very important topic, I want to say what my interest in the subject matter is.

In December 2004 I was appointed as one of three representatives of the Liberal Party to review the Anti-terrorism Act. We worked long and hard from December 2004 until approximately October 2005. When we were about to begin drafting our report, it became obvious that an election was looming and we were unable to complete that report.

In the new Parliament, the subcommittee was reconstituted under the aegis of the public safety and national security committee. I was again appointed by my party as one of the Liberal representatives on the subcommittee, the other one being the hon. member for Etobicoke North. We worked from the time the subcommittee was constituted literally until last Tuesday to complete our final report which was then sent to the public safety and national security committee for its full review. That committee will review it and report no later than March 27. A tremendous amount of work has gone on in that time.

I want to point out to people who might be watching what we are debating today. We are debating a statutory order and it is very specific. It is very specific because it is proscribed by the language of section 83.32 of the Criminal Code. There is no wiggle room. We either extend these sections or we do not. That is what the section says and that is what the statutory order has to follow. Unfortunately, that is a major problem.

Both Houses of Parliament have been studying this legislation and have heard from a tremendous number of witnesses as to what is or is not good or bad about it and what should or should not be tweaked. Unfortunately, the Senate only reported last Thursday and as I said, the House of Commons Standing Committee on Public Safety and National Security will not even be able to report until more or less the end of this month, long past the time these sections will sunset unless they are extended.

These sections talk of two things. The first is investigative hearings. Under this provision, a peace officer, with the prior consent of the attorney general, can apply to a superior court or a provincial court judge for an order for the gathering of information. If it is granted, the order compels a person to attend a hearing before a judge, answer questions, and bring along anything in his or her possession.

The second deals with recognizance with conditions which is otherwise known as preventive arrest. With the prior consent of the attorney general, a peace officer, believing that a terrorist act will be carried out and suspecting that the imposition of a recognizance with conditions or the arrest of a person is required to prevent it, may lay an information before a provincial court judge. That judge may order that person to appear before him or her. A peace officer may arrest, without warrant, the person who is the object of the information, if such apprehension is necessary to prevent the commission of a terrorist activity.

This is what we are talking about. Both of these provisions are known to Canadian law. There are equivalents to investigative hearings which are investigatory and not intended to determine criminal liability within the context of the law related to public inquiries, competition, income tax, and mutual legal assistance in criminal law matters.

As well, there are provisions similar to recognizance with conditions that do not necessarily adversely affect rights and freedoms within the criminal law related to peace bonds issued to deal with anticipated violent offences, sexual offences, and criminal organization offences.

Both legislative measures are consistent with and grow out of provisions well known to Canadian law. Both provisions have sufficient protections to ensure that rights and freedoms are protected.

In relation to both investigative hearings and recognizance with conditions, there has to be prior consent of the attorney general. Judicial authorization is required, and a judge presides over the proceedings themselves among other protections set out in the Criminal Code.

The mere fact that a legislative measure has not been used, and these have not been used, does not mean that it is no longer required.

The committee which reported to this House believes they should be retained within the arsenal of tools that should continue to be available to counter terrorist activities. It also believes, however, that legislative amendments are required to this part of the code to restrict and clarify some elements of this part of the anti-terrorist law adopted by Parliament. The committee advised Parliament of six or seven specific amendments that it suggests.

This is Liberal legislation. I voted for it. On March 22, 2005, Anne McLellan, the then minister of public safety and emergency preparedness, appeared before our subcommittee. On March 23, 2005 the then minister of justice appeared before our subcommittee. In both cases they indicated that there was nothing wrong with these provisions and they urged the committee to recommend that they be continued.

In the new Parliament on November 16, 2005, the then minister of justice and the then minister of public safety Anne McLellan, appeared and advised us again that we should extend these provisions. On June 21, 2006 the minister of justice and the minister of public safety of the current Conservative government appeared and said the same thing. In fact, one would have thought they were reading the same speech prepared by the same bureaucrats notwithstanding that they were different governments.

This is the evidence that we heard. Given that, we have four arguments, as I see it, not to extend. Some would argue that these provisions are contrary to the charter. I simply dismiss that argument. It is simply not a valid argument. The provisions have been found to be constitutional. In fact that is what the ministers of justice told us. We have been told that they are not used. If these are sunsetted, then they are gone.

My recollection of history is that the sunsetting clauses were put in because there was great fear that these sections might be abused. Not only have they not been abused, they have not even been used, but that does not mean that they might not be used in the future. As one of my colleagues said in caucus last week, just because he has not had an accident and deployed his airbags does not mean that he is going to take the airbags out of his car. I could not agree with him more.

Some would say that the provisions are not needed any more. I would ask on what basis does someone make that statement? All of the people who have access to top secret information in this country, law enforcement officers, the ministers of the Crown of both the Liberal and Conservative governments, top bureaucrats dealing with CSIS and CSE and all of those organizations, urged us not to sunset these clauses. They are the people with the knowledge that we do not have. They are the people who have top secret clearance and get to see things that we do not.

I ask those who say that these provisions are no longer needed, what is the evidence upon which they base that argument, especially in the face of our committee specifically hearing time and again from people with the highest clearance possible that in order to protect this country, these clauses should not be allowed to sunset.

I do not say they are perfect and that is why our committee issued an interim report urging the government to consider certain amendments. These sections are going to sunset. If they sunset, they cannot be fixed. Yes, we can bring back legislation later on; to try to bring them back in a fixed form is entirely possible, but it is very difficult for me to comprehend why we would be told by those who have information to which we can only possibly guess that these sections should not sunsetted. It is difficult for me to understand why we would allow them to sunset.

It is a very difficult area. Someone else in my caucus said that this is an issue where reasonable people can reasonably disagree on an issue. I agree with that, but I have to look at the people who have the knowledge. They are the people who have top secret information and they have told us that these sections are required to protect our country.

What else can I say in contributing to the debate other than those observations.

Anti-terrorism Act
Orders of the Day

5:40 p.m.

Bloc

Serge Ménard Marc-Aurèle-Fortin, QC

Mr. Speaker, first of all, I would like to point out that I sat on the same committee as the hon. member for Scarborough Southwest. He has worked exceptionally hard, which must be recognized. The other committee members also recognize his hard work. At long last, there was a committee that managed to work beyond party politics, and that tried to find the best possible balance between respecting rights and the effectiveness of measures taken.

However, that is precisely one area on which we could not agree. I will nevertheless ask my hon. colleague the following.

Is it not surprising that, not only were these measures not used, but that no one could give us an example of a case in which they could have been used? No one was able to explain to us how these measures could have prevented terrorist acts that have already been committed.

In my opinion, when new legislation is proposed, as this was in 2005, the burden of proof lies with those who are proposing new measures that go against the Charter, for example, or at least against current judicial rules. It is up to them to demonstrate that those measures can in fact be useful.

As I was saying earlier, this legislation is so poorly written and so complicated that no one has the knowledge or the time to study it and pass judgment. In fact, the debate is precisely on a matter of trust, as the hon. member for Scarborough Southwest pointed out.

Do we trust those who are saying they need it or do we trust those who are defending individual rights, such as the university professors who have studied this and who are saying it is dangerous? Again, I believe the onus should be on those who are proposing to maintain an exceptional measure in our law.

Anti-terrorism Act
Orders of the Day

5:45 p.m.

Liberal

Tom Wappel Scarborough Southwest, ON

Mr. Speaker, the hon. member, who was a member of the original committee in December 2004, has been on the committee throughout that time. In my opinion, he has contributed invaluable work, not only for the positive suggestions that he has made but for asking questions just as he did. If we do not have questions like that, then we do not advance the debate, dig deeper or burrow down and find out the answers.

Contrary to what he says, one of the examples that was given of the potential use of investigative hearings was in the context of the Air-India debate. I am not talking about what has transpired in the last couple of weeks. I am talking about long ago when the RCMP was still investigating. We were told that it was contemplated but that for a variety of reasons it was decided it would not be used. That would be a example of the kind of technique that would have been put in place at that time and a concrete example of what it could have been used for.

However, the answer we have been given is along the lines of what my colleague from Scarborough—Guildwood was talking about, and that is to try to prevent something from occurring as opposed to doing something about something that has occurred. The whole idea is to have a range of tools that the police can use in a situation where there are reasonable grounds to believe that something has happened but not enough perhaps to get a warrant or enough to pull someone off the street.

One of the arguments that was advanced by the previous Liberal minister of public safety was that just because it has not been used, who is to say that it has not been effective. Perhaps simply because it is on the books it has been effective.

Anti-terrorism Act
Orders of the Day

5:45 p.m.

Liberal

Irwin Cotler Mount Royal, QC

Mr. Speaker, on October 15, 2001, in the immediate aftermath of 9/11, the Liberal government at the time introduced Bill C-36. The then minister of justice and attorney general, Anne McLellan spoke in support of that legislation, including the two provisions that were not then but are now the subject of sunsetting clauses.

I rose in the House at the time and expressed the view that I had 10 civil libertarian areas of concern with the proposed legislation and which included the two provisions at issue, on which I elaborated subsequently in speeches and in an article thereafter in the 14 National Journal of Constitutional Law entitled, “Terrorism, Security and Rights: the Dilemma of Democracy”.

In discussions with the minister and government at the time, I made certain recommendations regarding these areas of concern. While I remain still concerned about certain provisions of the bill, such as the definition of terrorism itself, an aspect of which was recently invalidated by the courts, citing, as it happens, my article at the time, I ended up supporting the bill because the government amended the proposed legislation in many of these area of concern, though I still maintained certain reservations about it as set forth in the article.

Among the amendments I proposed and which the government accepted was that these two provisions at issue be sunsetted after three years, which has now stretched into five, and pending parliamentary review of these provisions.

I am of the view today that these provisions do have provision for executive oversight, as in the requirement for consent of the attorney general, for parliamentary oversight, as in the requirement for annual reports from both the federal and provincial ministers concerned at Parliament and the provincial legislatures, and a judicial oversight to judicial review. The Supreme Court, as has been mentioned before in the House in the matter of investigative hearings, has held these provisions to be constitutional.

Indeed, the sunset provisions may be said to comply with the charter and are not otherwise unknown in Canadian law. For example, preventive arrest is effectively the invocation of a peace bond process set forth in section 810 of the Criminal Code, which has been used to protect against criminal violence, such as domestic violence, sexual violence and organized crime, and extends it now to suspected terrorist activities.

Similarly, the investigative hearings are not unknown in Canadian law. We can find it under the Coroners Act, the Inquiries Act, in section 545 of the Criminal Code and I can go on. All that is also set forth at length in my article respecting those two provisions at the time.

It is not surprising then that five years later reasonable people can and do reasonably agree on the import and impact of these provisions. We can take the view to agree or disagree. We can take the view, as many in my party do, that since the provisions were not used, they are therefore not needed. Or, we can take the position, as I have, that since they have not been used this demonstrates that they have not been abused and that they in fact may be needed.

That is why, while I initially proposed that these clauses be sunsetted subject to parliamentary review, following the experience of the last five years, as I have just summarized, and my own experience as minister of justice and attorney general, I now favour their extension. However, as I have said, this is a position on which reasonable people can and do reasonably disagree.

I regret, therefore, that the government is proposing the extension without taking the views of these parliamentary committees into account in the House and the Senate. I regret that reference was made to a prospective investigative hearing impugning thereby the reputation of a member of the House and undermining thereby the integrity and the independence of that very inquiry itself, and seeking to link it to a debate on the sunsetting of these provisions.

Indeed, even if we support the extension of these provisions, as I do with certain safeguards and after parliamentary review, this prejudicial invocation was inappropriate, irrelevant to this debate and wrong. I regret the references made by ministers of the crown that our party is “soft on terrorism”. That is to politicize the debate, which should be addressed on the merits, and convert a debate on which reasonable people can and do reasonably disagree into one of bumper sticker slogans and smears.

Accordingly, for those reasons I cannot support the government's motion. It has been proposed without the benefit of parliamentary review on appropriate safeguards and it has been advanced in a politicized and prejudicial fashion.

At the same time, I would support the extension of these provisions with appropriate safeguards after parliamentary review at the appropriate time. My position for now and for those who will now follow is that of a principled abstention.

Since the court's decisions regarding the definition of the Anti-terrorism Act need to be revisited; since the Security of Information Act has also had provisions quashed; since the Supreme Court of Canada has now unanimously invalidated the provisions of the Immigration and Refugee Protection Act that deny the named person on a security certificate the right to due process, the right to a fair hearing, the right to know the information against him or her and be able to answer and rebut the charges; since the Supreme Court has suspended the impugned provisions for a year; since the question of deportation to a country where there is a substantial risk of torture is otherwise before the court; since, elsewhere and during the period that I was minister of justice, the whole question of the security certificate regime puts us in a Hobson's choice of having to either deport to a country where there is a substantial risk of torture on the one hand, which I said as minister that I would never support, or prolong detention on the other, aspects of which have now been invalidated by the court; and since the security certificate regime scheme needs to be revisited because of this Hobson's choice; therefore, given the need for a comprehensive look at the entirety of our anti-terrorism law and policy, which includes not only Bill C-36 but the Security of Information Act, the Immigration and Refugee Protection Act, the provisions in the Canada Evidence Act and a whole holistic approach to anti-terrorism law and policy review, I cannot support the government's motion at this time.

However, I trust that we can have a principled discussion and debate with respect to the whole question of anti-terrorism law and policy that does not end up being a politicized and prejudicial debate, but one in which we can arrive at an all party agreement, both as a matter of principle and as a matter of policy.

Anti-terrorism Act
Orders of the Day

5:55 p.m.

Conservative

Ken Epp Edmonton—Sherwood Park, AB

Mr. Speaker, I have a very short question for the member.

He used the word principled on a number of occasions. I think that we all agree in this place that when one acts on principle, one acts unselfishly and to the best of his or her ability for the benefit of others in our society, especially those of us who are working in this place.

The member, earlier in his speech, said that he believed these provisions should be retained. Now he is saying that on principle he will be abstaining. To me, that is sort of an internal contradiction. I would like him to explain that, please.

Anti-terrorism Act
Orders of the Day

5:55 p.m.

Liberal

Irwin Cotler Mount Royal, QC

Mr. Speaker, as I said, I initially proposed that these provisions be sunsetted and subject to parliamentary review. I will quote from that article, which I did not wish to do in my opening remarks. It states:

It would appear, therefore, that an important oversight mechanism to determine both a justification for, and efficacy of, this novel procedure--

--i.e. preventive arrests and investigative hearings--

--is to subject it to a full sunset clause, thereby allowing for reassessment—and re-enactment where it has proven itself—after some three years time; as well, the federal Attorney General...and their provincial counterparts—are required to report annually on these enforcement mechanisms. The Committee on Justice and Human Rights should exercise its oversight capacity respecting these annual reports and make appropriate recommendations where necessary.

I wrote that close to five years ago. I still maintain that exact same position. The only change is that with the experience of the last five years, I am now prepared to support an extension, pending parliamentary review and pending the safeguards. I am exactly where I was initially. I proposed that they be sunsetted subject to parliamentary review and appropriate safeguards. I say now that I would support them pursuant to parliamentary review and appropriate safeguards.

My position remains the same as it was then. I believe it is a principled expression as set forth in the article and as I have tried to demonstrate today.

Anti-terrorism Act
Orders of the Day

5:55 p.m.

Bloc

Serge Ménard Marc-Aurèle-Fortin, QC

Mr. Speaker, we know about the previous speaker's past. The hon. member for Mount Royal and I were very idealistic in our youth. We associated with people who fought against injustice. Some of the people I associated with may have chosen to embrace not a peaceful solution, but a violent solution. When it comes to obtaining security information, relationships between people can be reasonable grounds to think that we may have been their accomplices once, when nothing could be further from the truth. This could happen to our children.

If one of children were suspected of this and was compelled to testify before a judge, he would probably agree to sign the recognizance in question. What would happen to his travel opportunities, now that he is labelled by a legal ruling for signing a recognizance under antiterrorist legislation? Could he travel by plane to the United States? Could he cross many borders? Will this help or hinder him when he looks for a job? Perhaps his talents would allow him, as was the case for the previous speaker and me, to succeed in private practice. You can see how dangerous this can be. Compared to the real risk that a government would abuse this, let us look at the benefits of these measures. No one can say—

Anti-terrorism Act
Orders of the Day

6 p.m.

Conservative

The Acting Speaker Andrew Scheer

The hon. member for Mount Royal has the floor.

Anti-terrorism Act
Orders of the Day

6 p.m.

Liberal

Irwin Cotler Mount Royal, QC

Mr. Speaker, as the member said, we were all working towards a common goal, which I would define as the pursuit of justice.

Regarding the relationship between protecting security and protecting human rights, I think the relationship must be based on the principle of protecting human security. There are two approaches to this. The first is to see terrorist attacks—particularly those committed by international terrorists—as attacks on the security of our democracy and on our individual and collective rights to life, security and protection of freedom. However, the application of the Anti-terrorism Act and of anti-terrorism policy must still work with the rule of law, with the Canadian Charter of Rights and Freedoms, and with the principles of human rights.