House of Commons Hansard #71 of the 40th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was provisions.

Topics

(Return tabled)

Questions Passed as Orders for Returns
Routine Proceedings

12:45 p.m.

Conservative

Tom Lukiwski Regina—Lumsden—Lake Centre, SK

Madam Speaker, I ask that all remaining questions be allowed to stand.

Questions Passed as Orders for Returns
Routine Proceedings

12:45 p.m.

NDP

The Acting Speaker Denise Savoie

Is that agreed?

Questions Passed as Orders for Returns
Routine Proceedings

12:45 p.m.

Some hon. members

Agreed.

The House resumed from June 8 consideration of the motion that Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

Criminal Code
Government Orders

12:45 p.m.

NDP

The Acting Speaker Denise Savoie

The hon. Parliamentary Secretary to the Minister of Justice has about nine minutes left for his comments.

Criminal Code
Government Orders

12:45 p.m.

Fundy Royal
New Brunswick

Conservative

Rob Moore Parliamentary Secretary to the Minister of Justice

Madam Speaker, it is a privilege to rise to speak further to Bill C-19, which deals with provisions that had sunsetted under the Anti-terrorism Act.

These important provisions are known as the investigative hearing and recognizance with conditions provisions. They would allow our police officers to take steps that have been considered and steps that have the appropriate safeguards in place to ensure the rights of all concerned, but steps which may be necessary from time to time to prevent or to investigate a serious or imminent attack on Canada and Canadians

When I was last speaking, I was talking about the human rights concerns that had been raised over the course of debate on these provisions. I did want a chance to reflect on those concerns and address them, and assure the House that appropriate safeguards are in place.

Both the investigative hearing and the recognizance with conditions provisions as provided for in this legislation are replete with human rights safeguards.

With respect to the investigative hearing, these safeguards would include the following.

First, there could be no investigative hearing without the consent of the relevant attorney general.

Second, only a judge of the provincial court or of a superior court of criminal jurisdiction could hear a peace officer's application for an information gathering order and could preside over an information gathering proceeding.

Third, there would have to be reasonable grounds to believe that a terrorism offence has been, or will be, committed.

Fourth, the judge would have to be satisfied that reasonable attempts had been made to obtain the information by other means for both future and past terrorism offences. Further, the judge could include any terms and conditions in the order that the judge considered to be desirable to protect the interests of the witness or third parties. The witness would have the right to retain and instruct counsel at any stage of the proceeding.

Finally, the bill would incorporate protections against self-incrimination, including in relation to the derivative use of the evidence in further criminal proceedings against the person testifying, except for perjury or giving contradictory evidence.

Members should also be reminded that the Supreme Court of Canada upheld the investigative hearing in 2004 in application under section 83.28 of the Criminal Code. I would note in this regard that the Supreme Court of Canada stated that the protection against self-incrimination found in the investigative hearing was greater than that afforded to witnesses compelled to testify in other proceedings, such as in a criminal trial.

As to the recognizance with conditions, it too would have many human rights safeguards, such as the following.

First, the consent of the relevant attorney general or solicitor general would be required before a peace officer could lay an information to bring a person before a provincial court judge.

Second, only a provincial court judge could receive an information, and would have the discretion as to whether to cause the person to appear before him or her.

Third, the presiding judge would have to be satisfied by evidence that the suspicion was reasonably based. The judge would have to come to his or her own conclusion about the likelihood that the imposition of a recognizance on the person would be necessary to prevent a terrorist activity.

Finally, the person entering a recognizance would have the right to apply to vary the conditions under the recognizance order.

Experience has also shown that when these tools were part of our law, the investigative hearing was invoked only once, in connection with the Air India inquiry, and the recognizance was never used. This demonstrates the restraint that the law enforcement officials have exercised and would continue to exercise in deciding whether to use these powers.

The government is proposing that both the investigative hearing and the recognizance with conditions provisions be re-enacted for a period of five years.

At the end of five years, the bill would allow for further extension of one or both of these provisions. The task of deciding whether further extension is necessary would be informed, in part, by the mandatory review of the provisions found in the bill.

As well, the mandatory annual reports of the Attorney General of Canada and the Minister of Public Safety would detail the use of the provisions by federal officials and provide the minister's reasons regarding the usefulness of the provisions.

I believe that the investigative hearing and recognizance with conditions powers are necessary, effective, and reasonable. I urge all hon. members to support the bill.

Criminal Code
Government Orders

12:55 p.m.

Liberal

Larry Bagnell Yukon, YT

Madam Speaker, I would like to thank the member for a very comprehensive explanation of the bill, and of course we are very supportive of the concepts of the bill. He gave a good explanation of one of the elements that the committee had recommended, which the government did not follow up on, in regard to the historical claims.

I wonder if there are any other recommendations from either the House or the Senate committee that were not followed up on and could the member explain the rationale for that?

Criminal Code
Government Orders

12:55 p.m.

Conservative

Rob Moore Fundy Royal, NB

Madam Speaker, in fact, many of the recommendations that were made both by the parliamentary committee, which studied these provisions, as well as the Senate committee, which studied these provisions, have been adopted. I can mention one of them specifically, which is that the change that would clarify the judicial power to order things into police custody at the investigative hearing would be discretionary rather than mandatory.

As we know and the hon. member is well aware, the investigative hearing provisions had in fact been considered by the Supreme Court in a case and held to be constitutional. This proposed amendment would bring the bill and the provisions further in line with the ruling of the Supreme Court in that regard.

Criminal Code
Government Orders

12:55 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Madam Speaker, I think that all Canadians have seen what happens when there is a substantial departure from Canadian legal tradition. In the recent case of Mohamed Harkat, we saw what happens when trials are held in secret, cross-examination is truncated, and evidence is presented to people without the presence of the accused and their lawyer.

This bill proposes amendments to the Criminal Code that deepen these problems. They relate to putting in place investigative hearings where people can be compelled to attend a hearing and to answer questions. In other words, the historic right to remain silent is abridged by this government bill, and preventative arrest, where individuals are detained not because they have committed any act but because they might, which goes against the historic presumption of innocence in this country.

I wonder if my hon. colleague could comment on why the government wants to abridge these two important rights, and I would point out that because something may be constitutional, it does not make it right.

Criminal Code
Government Orders

12:55 p.m.

Conservative

Rob Moore Fundy Royal, NB

Madam Speaker, honestly, I am actually a little shocked at the question. Who among us in this chamber would not rather prevent an imminent terrorist act than have to deal with the tragic consequences of that act?

These provisions not only have not been abused but they have not been used except in one case, so obviously law enforcement are using extreme discretion on the use of these provisions. Yes, these provisions are new. They came in, under a previous government, under the Anti-terrorism Act, and they are designed to act in a constitutional manner to prevent some of the most serious terrorist acts that could take place right here on Canadian soil.

I will mention, for the hon. member's benefit, the safeguards to which I referred earlier. There can be no investigative hearing without the consent of the Attorney General. Only a judge of a provincial court or of a superior court can hear a peace officer's application. There would have to be reasonable grounds to believe that a terrorism offence has been or will be committed.

I will not enumerate the rest of the safeguards that I had in my speech, but as the member should be aware from having listened to my speech, there are numerous safeguards in place. The investigative hearings have been considered by the Supreme Court of Canada and held to be constitutional. When we have to weigh bringing in legislation like this against protecting Canadians from an imminent terrorist act, we have to take steps to protect Canadians.

Criminal Code
Government Orders

12:55 p.m.

Liberal

Mark Holland Ajax—Pickering, ON

Madam Speaker, going forward we must ensure there is proper oversight. Would the government consider the possibility of both houses reviewing the bill instead of one house reviewing the bill, as is currently worded in the legislation?

The last time this bill was undertaken, the member said in his speech, quite rightly, that there were important changes and amendments made by the Senate. How would the member feel about further reviews involving both houses to ensure a more rigorous review process and the possibility of a review within three years rather than five years to ensure there is vigilant oversight?

Criminal Code
Government Orders

1 p.m.

Conservative

Rob Moore Fundy Royal, NB

Madam Speaker, a review of the provisions is part and parcel of the bill. When these provisions were originally included in the Anti-terrorism Act, there were sunset provisions. There was lengthy debate in the House on those provisions. Many good points were raised and responded to.

These provisions have been considered by a Senate committee as well as the House of Commons. Recommendations that flowed from the Senate and recommendations that flowed from the House have been incorporated into this bill. There is a five-year review, whereupon these provisions would have to be reconsidered. There is also mandatory reporting. It is from that mandatory reporting that we know the investigative hearing provisions have only been used once and the provisions on recognizance have not been used.

The provisions themselves are working quite well. In fact, even if this bill passes and these provisions are back in place, we hope that they are never used, but that they are there so that in a case of extreme threat to our country and Canadians, they can be used.

Criminal Code
Government Orders

1 p.m.

NDP

Jack Harris St. John's East, NL

Madam Speaker, I think Canadians' sense of justice is affected by this bill. In fact, I think it is recognized in the bill itself that the bill comes from a previous bill that had a sunset clause. The provisions were deemed, even by the Parliament that passed them years ago, to be of a type that should die unless there was reason brought forward to continue or renew them.

These provisions died a natural death in 2007. As a result, they have not been in force. There has not been any reported problem associated with this. No one in the media or the press has mentioned that this tool was sadly lacking in a particular case. We think that this provision is not necessary. When a bill allows for imprisonment for up to 12 months or strict recognizance conditions on individuals who have not been charged with any crime, it is contrary to the core values of our justice system.

I do not see why the government is bringing this back in. Can the Conservatives give any justification at all for bringing this back in when the bill died without being renewed, as it was intended to?

Criminal Code
Government Orders

1 p.m.

Conservative

Rob Moore Fundy Royal, NB

Madam Speaker, I can give justification as to why we bring them in. We want police to be able to prevent an imminent terrorist attack. Is it that hard to understand? These provisions allow for cases where the police have reason to believe that a terrorist attack on Canadian soil is imminent. That means it has not taken place yet, but it is about to take place. Under the provisions of this bill, there has to be reason to believe that a terrorist attack is imminent. As I mentioned before, our goal should be to prevent that attack. Without these tools in place, the police do not have the appropriate tools to prevent that attack. These provisions allow for the mechanism to prevent an imminent terrorist attack.

I have enumerated the safeguards in the bill a couple of times. The safeguards are numerous. The provisions have been considered by the Supreme Court of Canada and have been found to be constitutional. We have to act to protect Canadians.