Debates of Sept. 20th, 2010

Questions Passed as Orders for Returns

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, I ask that the remaining questions be allowed to stand.

[The Speaker, Liberal, Peter Milliken]

Is that agreed?

[Some hon. members]

Agreed.

Long Form Census

[The Speaker, Liberal, Peter Milliken]

I have received a request for an emergency debate from the hon. leader of the New Democratic Party and I will hear from the hon. member for Toronto—Danforth now on this.

[Jack Layton, NDP, Toronto—Danforth, ON]

Mr. Speaker, today I rise to request an emergency debate on the government's decision to scrap the mandatory long form census. The importance and urgency of this matter really cannot be overstated.

More than 350 organizations and expert panels have decried the consequences of the government's decision to get rid of the mandatory long-form census.

Academics, business leaders, statisticians, municipalities, health care providers, social agencies and non-profit sectors have all decried the proposed changes because they count on this information to do their work.

Last week even the Governor of the Bank of Canada, Mark Carney, said that scrapping the long form census could hurt the bank's data on important issues affecting the economy, like productivity, labour data and household economies, all of which are vital markers for assessing the strength of our economy.

This House cannot fulfill its mandate without the data collected on the long-form census, without knowing who our citizens are, where they live and what types of situations they are in.

Government departments, from Health Canada to Veterans Affairs, rely on census data, and without the long-form census they will not be able to deliver on their responsibilities to Canadians or answer the questions that Canadians or members of Parliament have about the important issues facing us.

The government made its decision to scrap the long-form census without any discussion with parliamentarians, the public, or even experts at the National Statistics Council, which it appoints precisely to provide this sort of evidence.

I have spoken with our members about the practical implications of this matter, and I will give one example. The member for Acadie—Bathurst told me that it was not a question of going in and finding out what goes on in people's bedrooms. Rather, it is a question of finding out how many bedrooms there are compared with how many children there are. We know that there is an overcrowding problem resulting from the crisis of affordable housing in this country. Members who question whether this is true should visit any remote first nations community, where three or four families, 15 or 16 people, sometimes live in houses built by the federal government for only one family. These members will then see what I mean.

Maybe the government does not want to know about rising inequality in our society and its impacts; maybe it prefers not to have the information. But that does not make it right. In fact, this is very shortsighted policy.

If we do not act immediately, and I have to speak to the timeliness of this issue, there will be irreversible damage to Canada's vital statistical resources, because the information collected in this census will not be comparable with information from past census processes.

The deadline for printing the 2011 census is fast approaching. It is not too late, but time is of the essence.

Every day that goes by is a missed opportunity to restore and protect the continuity and comparability of our national data. Other countries are looking at us: they work with us in the assembly of data internationally, and they are worried about the quality of Canadian data that will result from this change.

We cannot afford such missed opportunities. There is virtually no more time left. Parliament has to debate it immediately. The implications are serious and significant, and therefore meet the test for entering into an emergency debate.

Only an emergency debate will give this important matter the attention it deserves.

That is why New Democrats hope that you will favourably consider this request, Mr. Speaker.

[The Speaker, Liberal, Peter Milliken]

I thank the hon. member for Toronto—Danforth for raising this matter. His letter on this subject came in, as I recall, on August 16. While I might have had considerable sympathy at that time, had the House been sitting, given the length of time we have had without the House in session, I feel that some of the urgency has gone out of this issue, at least with respect to the need for an emergency debate in the House.

I note that there will be an opposition day within the next 10 days. When that happens, if members feel it is an urgent priority, it could be moved as a subject matter for debate on that day or on a subsequent opposition day. That might be a more suitable forum for discussion on a topic that has been around for quite some time.

I do not underestimate the importance of the matter. I simply say that at this stage it is not something that meets the exigencies of the standing order relating to emergency debates. Accordingly I deny the request at this time.

The House resumed consideration of the motion that Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

Combating Terrorism Act

[The Speaker, Liberal, Peter Milliken]

When the matter was last before the House, the hon. member for Windsor—Tecumseh had the floor for questions and comments consequent upon his speech. He was asked a question, and therefore I call upon the hon. member for Windsor—Tecumseh, if he wishes to respond to the comment that was made earlier, and to continue with questions and comments.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, the question was whether our opposition to Bill C-17 and some of the arguments I made against it were timely, in light of some of the historical abuses of human rights and civil liberties that we have seen in this country. That is an interesting question. What have we learned from our mistakes in the past? The suggestion is that mistakes made in the past will not be repeated.

When we look at the number of times we have made the same mistake in the past, usually in a crisis, we see that sometimes governments panic and attack certain members of their society by undermining fundamental rights. That is what this bill would do.

One of the other parts of the question, to be a bit more timely, was whether we can we rely on our courts to protect our fundamental rights. In this country, we have a division of authority, and courts certainly have a role to play in protecting our rights by interpreting the Constitution and the Charter of Rights. However, they also have, as I think our Conservative colleagues rarely will acknowledge, a deep respect for the role that we as parliamentarians play in passing laws.

We have a responsibility as parliamentarians to protect fundamental rights. We are not doing that by this legislation. Nor is there any reason to believe that our courts will find, as they have for part of this legislation, that it is within the Charter of Rights. That is not the end of it. We still have a responsibility to deal with this as parliamentarians. They have a responsibility not to interfere other than in the most exigent circumstances.

I have at times been critical of our judiciary. When we look at the process of security certifications that has been gone through in the last seven or eight years, we see that any number of times we have had interpretations, particularly from the federal court, in which they did not at the time protect fundamental rights. They have begun to do so. They began in 2006 or 2007. There were several years in which those certificates were used improperly, and our courts finally got around to realizing that. So we cannot rely exclusively on our courts to protect fundamental rights. We have to assume our responsibility, and supporting this legislation would not do that. This should be opposed. We should be striking this bill off our agenda.

[Shelly Glover, Conservative, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development]

Mr. Speaker, I am pleased to contribute to the debate on Bill C-17. This key piece of anti-terrorism legislation seeks to re-enact, but with more safeguards, the provisions having to do with investigative hearing and recognizance with conditions, which we lost because of a sunset clause in March 2007.

The powers set out in the bill attempt to fill a gap in our national security law. Effectively they focus much of their attention on the prevention of a terrorist offence.

I think all members of the House can agree that unlike some other forms of criminality a terrorist who is able to carry out an offence is attempting to injure and kill large numbers of people, making prevention an even more crucial policy goal.

This point, that there is a qualitative difference between terrorism offences and other regular forms of criminal activity, has been made by a number of terrorism experts. In this regard the members of the House may wish to recall the testimony of Lord Carlile of Berriew, the United Kingdom's independent reviewer of its anti-terrorism legislation, before the House of Commons subcommittee that reviewed the anti-terrorism act in November 2005. Lord Carlile was asked whether there was really any difference between investigating terrorism and investigating organized crime. She replied:

If I can I'll just characterize one important difference between terrorist crime and normal organized crime, or what police in Northern Ireland call ODCs, or ordinary decent criminals, in a distinction that they make. With organized crime, it is often possible for the police investigating that crime to leave arrest until very late. Indeed, for example, there was a huge robbery at London Heathrow Airport a couple of years ago—I was involved in the case for a time professionally—in which they allowed the robbery to take place, and they arrested the robbers whilst they were committing the robbery, with the result that in the end most of them pleaded guilty. You can't run that risk with terrorism.

To summarize this relatively short bill, the proposed investigative hearing provisions would create a mechanism for questioning persons before a judge about a past or future terrorist offence. The proposed provision for recognizance with conditions would allow a judge to impose reasonable conditions on a person in order to prevent the commission of a terrorist activity.

Surprisingly, some have maintained that the provisions are not necessary. Various reasons have been advanced in this regard. I would like to use my time to address some of these arguments, as I think it is important to have an informed debate on these matters.

Some say that since the provisions have never been used they must not be a truly necessary law enforcement tool. I cannot disagree more.

This view is based exclusively on hindsight and not on foresight. In the policing world, which I know very well as a member of the Winnipeg Police Service on a leave of absence, foresight is crucial, as is pro-activity. One could just as logically claim that because to date one's house has not burned down or one has never before become seriously ill that there is no need ever to buy fire or life insurance. Given the existence of an ongoing terrorist threat, reliance on past experience alone is an insufficient guarantor of the future security of Canadians.

Another view advanced has been that the recognizance-with-conditions provision is unnecessary because other Criminal Code provisions could be used instead. This view fails to appreciate the purpose of the recognizance-with-conditions provision. This tool is designed to disrupt the planning of terrorist activity at a very early stage. I will give an example. Suppose the police receive intelligence that a foreign head of state visiting Canada will be the target of a terrorist attack. They may therefore have reasonable grounds to believe that a terrorist act will be committed, but they may not have reasonable grounds to believe that a particular person will be the one to carry out the attack, which is the standard required under our existing arrest laws.

As a result, the person could not be arrested for conspiracy or under subsection 495.(1) of the Criminal Code. Similarly paragraph 810.01(1) would not apply, because it is targeted, in part, at those who it is reasonably feared will engage in a terrorist activity.

Bill C-17 seeks to fill this gap by authorizing a peace officer to lay an information before a judge if he or she believes on reasonable grounds that a terrorist activity will be carried out and suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, with the arrest of the person, is necessary to prevent the carrying out of a terrorist act.

Some have also put forward the position that Bill C-17 infringes upon human rights. In rebutting this view, let me begin with the investigative hearing provisions.

In the debates on this bill's predecessor, former Bill C-19, the argument was made that this hearing was an infringement on the right to silence. The answer to this argument was authoritatively given by the Supreme Court of Canada in 2004 in a case called “Application under s. 83.28 of the Criminal Code”, which arose in the context of the Air India prosecution.

The majority of the court rejected the appellant's argument that the investigative hearing violated an individual's absolute right to silence and the right against self-incrimination, noting in part the specific and robust protections governing use and derivative use immunity found in the original legislation. Indeed, the court noted:

Derivative use immunity is provided for in s. 83.28(10)(b). Indeed, the protection in para. (b) goes beyond the requirements in the jurisprudence, and provides absolute derivative use immunity, such that evidence derived from the evidence provided at the judicial investigative hearing may not be presented in evidence against the witness in another prosecution even if the Crown is able to establish, on a balance of probabilities, that it would have inevitably discovered the same evidence through alternative means.

We all need to keep in mind when thinking about possible adverse ramifications of the recognizance with conditions that they have a built-in legal filter. They can only be imposed when two criteria are met: A peace officer must believe on reasonable grounds that a terrorist activity will be committed, and must suspect on reasonable grounds that the imposition of the recognizance is necessary to prevent the carrying out of the terrorist activity.

Moreover, the second criterion is not one of mere suspicion, it is one of reasonable grounds to suspect. In other words, this is a higher bar. This means more than a mere hunch. In this regard, I would note that the concept of reasonable suspicion is not unknown in Canadian criminal law.

By analogy, I note that the Supreme Court approved the standard of reasonable suspicion in the context of the common law police power of investigative detention, the police power to briefly detain a person where the officer has reasonable grounds to suspect the person has committed a crime. In this regard, I refer hon. members who are interested to the case of Regina v. Mann.

Therefore, I think it is fair to say that this will not be applied to a broad range of people in this country. With regard to the view that these powers can unfairly label a person a terrorist without the opportunity to clear oneself, I would call attention to the well-established and often-used peace bonds or recognizance powers in the Criminal Code. In particular, a peace bond could be imposed to prevent a person from inflicting injury on or committing a sexual offence against a young person. These, too, have implications for the defendants who are subject to them, but no one would argue that because of this these provisions should not exist.

Like these existing provisions, the proposed recognizance with conditions is carefully tailored to achieve an overarching critical objective, namely the prevention of a terrorist activity, an objective that I know all members support.

Another criticism of this bill, in its previous incarnation as Bill C-19, was made by the hon. NDP member for St. John's East. It went as far as, in effect, something like this:

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 disagree, and I am going to prove that point immediately. I would point out that this accusation of fundamental unfairness cannot only be made of the recognizance with conditions provision found in this bill, it can also be equally made of all the peace bond provisions of the Criminal Code.

Please allow me to set out for consideration and reflection by the hon. members the following peace bond provisions that contain this very same power to order up to 12 months' imprisonment where a person refuses to enter into recognizance.

The first is a recognizance where a person fears on reasonable grounds that another person will cause serious injury to him or her or to his or her spouse or common-law partner or child, or will damage his or her property, under paragraph 810(3)(b) of the Code. Other examples are a recognizance where a person feels on reasonable grounds that another person will commit a terrorism offence or a criminal organization offence, under subsection 810.01(4); a recognizance where a person feels on reasonable grounds that another person will commit one of various sexual offences in respect of a person under 16 years of age, found under subsection 810.1(3.1); or a recognizance where a person feels on reasonable grounds that another person will commit a serious personal injury offence, which is found under subsection 810.2(4).

In all these instances, if a person refuses to enter into a recognizance, the power to order up to 12 months imprisonment exists. My point is that the punishment provision for refusing to enter into a recognizance is not unique to the recognizance with conditions provision found in Bill C-17. It is standard for all peace bond provisions in the Code. It is therefore a good reason to ensure that there is a means whereby a person's refusal to enter into a peace bond has consequences.

Indeed, I would point out that the recognizance with conditions provision found in Bill C-17 is, in one important respect, more limited in scope than some other peace bond provision found in the Code.

Hon. members may recall that where there is a reasonable fear that another person may commit a sexual offence against a person under 16 years of age or that another person may commit a serious personal injury offence, the recognizance can actually be extended from 12 months to two years if the person has been previously convicted of a similar offence. In contrast, in Bill C-17 the maximum period of time that a recognizance can be enforced is in fact 12 months.

Changing gears a little bit, I want to discuss briefly some of the policy decisions that went into the development of the bill. Members may recall that the House of Commons subcommittee interim report on the Anti-terrorism Act, the legislation that originally contained both of these schemes, recommended limiting the investigative hearing power to the investigation of imminent terrorism offences.

The government has, for good reason, decided not to go this route. If this limit were imposed, it would exclude the possibility of holding an investigative hearing in respect of past terrorism offences. For example, if this recommendation were to be accepted and if a terrorist group committed an offence and planned a subsequent offence, or offences, in the investigative hearing no questions could be asked about the offence already committed, even though such questioning could yield information that would be essential to the prevention of the planned subsequent offences. It is clear that this decision makes good policy sense and serves to better protect Canadians.

Another criticism that may be raised is that the bill does not totally reflect the judgments of the Supreme Court of Canada with regard to the investigative hearing provisions. As hon. members may recall, the Supreme Court of Canada in 2004 rendered two decisions with regard to the investigative hearing. In one case, the Supreme Court held that the investigative hearing should presumptively be an open hearing, albeit this is a presumption that could be rebutted, depending on the facts of the case; and in the other, which I have already referred to, the Supreme Court upheld the constitutionality of the investigative hearing.

However, as part of its latter judgment, the Supreme Court extended the protection of use and derivative use immunity beyond the criminal proceeding context to cover extradition and deportation hearings.

In my view, it is unnecessary for Bill C-17 to explicitly propose an amendment to extend the use of derivative use provision to extradition and deportation hearings or to include a provision about the presumption of openness in such cases. It is obvious to me that, if enacted, Bill C-17 will be interpreted in light of the Supreme Court's conclusion on these issues.

I have attempted to address some of the objections to the bill that have been raised in previous discussions. I hope that some of the reasons I have articulated will have resonated with my colleagues in this place and that they begin to view these provisions as minimally intrusive and ones that do not present a threat to the Canadian values but actually protect them.

I want to reiterate that we have heard from police officers as well on this issue. I myself was a police officer when the sunset clause took away these powers, and I am here to say that I represent many police officers across this country who believe this is essential to prevent any kind of terrorism attacks in the future.

I would urge all hon. members in the House to please support Bill C-17 and in doing so contribute once again to the safety and security of all Canadians.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Madam Speaker, I thank my colleague for her comments, especially as they come from a former member of our national police force.

When this legislation was introduced, it was created in an obviously different context from where we are right now. Soon after 9/11, many countries tried to shore up certain aspects of their security laws. This was Canada's effort. The government of the day included a sunset clause because it was understood at the time that in such a heated environment sometimes governments will make decisions and changes to laws that they do not necessarily want to have in permanent effect. It is a temporary measure for extreme circumstances. We are now at the sunset clause of this legislation again where it is up for renewal or dismissal, depending on whether it has been useful or not.

This government and the one before have prosecuted cases around homegrown terrorism without using any of these requirements. We actually heard from witnesses at the committee on the provisions in this bill. We understand that the provisions border on the draconian at times, forcing a witness to testify against his or her own interests. This is one of the foundations of our justice system and it is removed through this bill. Holding people without charge is also against the very foundations of what parliaments have stood for, for many years. So know that the measures are serious, and I think the hon. member appreciates that.

These are not light uses in this legislation, but we have never had to use them, even in prosecuting criminal charges of homegrown terrorism. So in the balance that we try to establish here in Parliament as legislators, between the rights of individuals and the protection of society, suspending a person's ability to testify against themselves, suspending the rights of people who are then held without charge, for a piece of legislation that does not get used even when we prosecute in criminal cases involving terrorism, does it not seem to the hon. member that we should allow the sunset to finally take place on this legislation? It was drawn up in a different context, and it has not been applied. Even in moments when we have needed to apply the force of the law and all our security details to terrorism, we have not used this. Is it worth the continued sacrifice to have, on the books in our Parliament and our land, laws that so override basic fundamental human rights, for a law that we simply have not used?

[Shelly Glover, Conservative, Saint Boniface, MB]

Madam Speaker, I welcome the opposition member back to the House after the break.

I am glad that the hon. member has asked that question. There are a couple of elements in the question that I would like to explain so that he really understands how imperative this is to law enforcement and to this country as a whole.

First and foremost, the hon. member mentioned that it has not been used. Yes, I agree that it has not been used, but that does not mean that we will not need to use it in the future. We have seen an escalation of arrests in terrorists activities or suspected terrorist activities. As a police officer who is on a leave of absence and I have every intention to return to my position as a police officer when I am done helping to create some new laws here in the House, I know this is a tool that will be used when appropriate. When the hon. member mentions that it has not been used yet, that clearly indicates to me that it is used only when it is absolutely necessary. The officers I have spoken with indicate that they believe this is a tool they will unfortunately have to use in the future, and I would like to give them every tool open to them.

I too am concerned always about the safety and security of Canadians. That is why I think this bill must be adopted, because without this bill, we cannot proactively deal with terrorism. This bill also allows us not only to deal with future terrorists acts, but past terrorists acts, and that is crucial during investigation.

So I would urge the member to consider that this bill is the answer to both protecting Canadians securely and providing for their rights. This is only going to be used in very serious cases, and I would urge the member to consider that and vote with us to ensure the safety and protection of Canadians.

[Daniel Petit, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, I have a question for my colleague, who did a great job introducing the terrorism bill. I want to point out to the House that the Air India crash killed 325 people. Our population is 33 million, and the United States' is 300 million. The attack killed 3,000 people. That is about the same, proportionally speaking. Before 9/11, the Air India bombing was the deadliest terrorist attack in North America.

I have a question for my colleague, who was also with the police before coming to the House to help us introduce our bills. Can she tell us if any other countries have laws more or less the same as the one we are going to introduce, a law that is not harsh, but that seeks to protect our people?

[Shelly Glover, Conservative, Saint Boniface, MB]

Madam Speaker, I would like to thank my colleague and welcome all members back to the House of Commons. I am glad to see them all here.

Other countries do indeed have similar laws to prevent terrorist acts. The United States has a “grand jury” system.

The United Kingdom has a more severe regime, namely an offence of failure to disclose information that would be of material assistance in a terrorism investigation to a constable. It is very much the same. A person must divulge information.

Australia and South Africa have also created investigative hearing procedures and this reflects the ongoing concern not only here in our country but across the world that terrorism acts will do harm to all of the people of this world.

I urge, once again, members of the House to consider this very carefully. We do not have to wait for a tragedy to happen to act. We need to put forward preventive measures so that we can stop tragedies like Air India as mentioned by my colleague. We must do this in order to ensure the safety and security of Canadians in the world.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Madam Speaker, I am trying to follow my colleague's logic in that the utility of this bill is to protect Canadians and keep them safe, but it has not been applied. There has been testimony from many who work around this specific type of law, which is very particular, that already in the legal definitions in Canada there is the power to do things to prevent terrorism.

In the draconian measures that we are talking about, anecdotal officers talking to me does not cut it. We need legal experts to come forward and say the law is deficient to protect Canadians.

In the terrorism cases we have prosecuted in this country, if this law were so important, it certainly would have been applied. If this were the critical piece of legislation that was missing prior to 9/11 and the government came up with this and said this is what we need to keep Canadians safe, it would have been used in cases of homegrown terrorism, clearly.

The draconian nature of this is that in Bill C-17 somebody can be held without charge for up to a year, no charges whatsoever. Never does the evidence come before the person who is being held in custody. This should concern all of us. I cast no aspersions on the government, but this law enables this or any future government to simply hold any Canadian for up to a year without presenting a single charge.

We must, as legislators, contemplate the future. We must contemplate bad government always, misinformed government, racist government, governments under some sort of pressure. Why do we need a law that has not been applied now with such draconian measures in it that hurts the rights of all Canadians across the board?

[Shelly Glover, Conservative, Saint Boniface, MB]

Madam Speaker, once again I want to answer my colleague simply. We are thinking about the welfare and safety of Canadians in the future, as well as providing a tool so that we can look to the past and use the information so that subsequent offences cannot be committed.

In saying that, the member speaks about putting people in a custody situation and how wrong that seems. I will tell the member what is wrong. What is wrong is when terrorists come into countries and commit acts of violence against people that end up breaking the rules of law, and the hearts and hopes of the people of those countries. That is what is wrong. If we do not have measures like this in place, we cannot prevent those acts from occurring. We cannot prevent those situations from breaking the laws that exist.

When people testify, for example, in a hearing, the member says that they should not have to testify against themselves. That is why we have put in the derivative use immunity. That is why we say that no information that comes from these hearings will be allowed to be used in other judicial proceedings.

I have the utmost confidence in the judiciary and police officers who will be using this tool, so I urge all members to please vote with us on this bill.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Madam Speaker, thank you for giving me the floor.

I am pleased to be participating in this debate on Bill C-17, especially because I was a member of the Liberal government on 9/11. I was a member of the committee that studied the bill introduced in the House of Commons by the Liberal government at the time, a bill that specifically included these two clauses, the two provisions that the Conservative government would like to re-introduce.

I would say to all those listening at present that most members at the time were very concerned by the drastic measures affecting people's basic rights. It was not partisanship. In fact it was a concern for many members of the government as well as some Bloc and NDP members.

In response to these concerns, the government of the day brought forward what is known as a sunset clause to ensure that the House would retain responsibility and monitor the government bill to prevent any abuse.

Under this provision, a review was to be conducted after five years and the two provisions were to expire.

That sunset clause came into effect under the current government. The Senate actually carried out a major study in 2007.

I listened with quite a bit of care to the member of the Conservative Party who spoke just previous to me where she talked about how the government is very concerned with ensuring the safety and protection of Canadians and why it is so essential that these two provision be brought back to life. I find it interesting that these provisions died several years ago under the current government. The government has brought the legislation to bring them back to life three times, has moved first reading in the House, and then has let the bill sit on the order paper for months and months.

In one case, the bill finally died on the order paper because the Prime Minister, in 2008, in violation of his own fixed election act, went to the Governor General and asked the Governor General to table the election writ and in so doing knew full well that this bill, that was going to revive these two provisions that this hon. colleague of the Conservatives who just spoke talked about how it is so essential, so important, was going to die on the order paper, knew as well that it had been sitting on the order paper waiting for the government to move second reading so that debate could actually begin. The government did not move second reading.

Then, after the 2008 election, what happened? The government came back with the identical bill, moved first reading, it went on to the order paper, and then it just sat there.

Then, on the eve of December 2009 and January 2010, the Prime Minister, knowing full well that this bill, its previous incarnation which was now this second incarnation under a Conservative government, was sitting on the order paper, waiting for him to give the order to one of his ministers to move second reading so that debate, like the debate we are having today, could begin, because it was in the government's hands under the rules. Canadians have to understand that. It is up to the government to move second reading of its own bills. No other party can do that. No other member of Parliament can do that. Only the government can move second reading of its own bills and allow the debate to begin.

The Prime Minister, said this is so important, to use the words of the member from Manitoba, that we absolutely need these two provisions to be brought back to life. Law enforcement, anecdotally from what I hear from the member from Manitoba because she did not cite any studies, have said that, “Some members of law enforcement have told me that we are going to need these provisions at some time in the future. Even though we have not used them in the last nine years, at some time in the future we will need them and so, it is urgent that we revive these two provisions, bring them back to life and it has to be done now”.

The Prime Minister prorogued the House. He put a padlock on Parliament. He shut it down. And he did it knowing full well that he killed every single one of his government's bills, the bills, especially the law and order ones, that the current government for the last four years has been beating its chest that the Conservatives are the only ones who care about the protection of Canadians, they are the only ones who care about victims of crime and victims of terrorism, and yet, the Prime Minister and his government killed the bill.

Then when we came back from prorogation, all of the parties agreed, including the official opposition, the Liberal Party of Canada, with the government that we would forgo certain time off that had been built into the parliamentary schedule, that we would work those weeks instead, in hopes that the government was going to put forward the bills that it found to be a priority.

The government did not move second reading of this bill. It took the government three months, and there is not a word in this bill that is different from what was in its predecessor and in the predecessor before that. All the government had to do was tell legislative services to reprint the bill. A new number would have been assigned to it. The minister would have given notice to the order people and would have risen during the segment of the day the procedures allow for and moved first reading of the bill.

I am not putting into doubt that member's good faith, but I find it a bit rich to listen to her talk about how her government is concerned about victims of terrorism, that the government is concerned about victims of crime here in Canada, and that the government is the only government that is really for law and order and for ensuring that the proper laws are in place. That is a government, going on to its fifth year now, that has played games with Canadian lives. It has used the issue of law and order to try to gain some kind of partisanship advantage.

The report of the Senate, which is dated February 2007, has a series of recommendations. The Conservative government has not implemented any of the ones I am going to read out. The chair was the hon. David P. Smith. The deputy chair was the hon. Pierre Claude Nolin, a Conservative senator. This report of the Special Senate Committee on the Anti-terrorism Act is not a partisan report. Let me just give two recommendations.

Recommendation number 4 talks about racial profiling. It recommends:

That, in addition to implementing clear policies against racial profiling, all government departments and agencies involved in matters of national security and anti-terrorism engage in sufficient monitoring, enforcement and training to ensure that racial profiling does not occur, the cultural practices of Canada’s diverse communities are understood, and relations with communities are improved generally.

That is a recommendation from February 2007, almost three years ago, and the Conservative government has done nothing about it. Yet it says that it is interested in Canadians' protection.

Let us look at recommendation number 2, which states: “That the government legislate a single definition of terrorism for federal purposes”. It has been two and a half years since the Special Senate Committee on the Anti-terrorism Act made that recommendation, yet the Conservative government and the present Prime Minister have not acted on it.

I find it very rich to hear the Conservatives now arguing that it is a pressing need to have these two anti-terrorism provisions on investigative hearings and preventative detention revived, that the bill has to be re-enacted, and that it is essential, because one day in the future we might need it. They have produced no empirical evidence. They have produced no studies.

A colleague from the NDP, I believe, made the point that the provisions of the Criminal Code used for every single individual charged with terrorism in Canada, homegrown terrorism, as some people refer to it, were not the provisions under the Anti-terrorism Act.

The Criminal Code and the regular provisions we had, even before 9/11, were sufficient to allow our law enforcement and our prosecutorial people to prosecute successfully. All I am asking is: would the government please do its job? If the government sincerely believes that these two provisions are needed, would it please make the case, based not on anecdotal reports but on actual studies that have been done, on empirical studies, on evidence-based studies, and on actual fact?

Any one of us sitting here can come up with anecdotes. That is not governing. That is not a competent government. A competent government bases its policies—and policy legislation is government policy—on fact, on empirical evidence, and on scientific evidence, not on anecdote. It does not do it by saying, “It is my opinion, and therefore that goes, and that is good enough, because it is my opinion,” or ”It is my opinion, on which I have done absolutely no research and have nothing to base it on except gut feeling and perhaps emotion”. That is supposedly a basis from which to govern and enact new legislation and policy. It is not. No responsible government does that. A responsible government actually gathers the facts, goes and talks to people who have made it their life's work to know all the ins and outs of the issue and have the expertise to provide solid, sound advice that is based on fact.

The government today, from the debate I have heard, has not done that. I am asking the government to go and do its job, the job it was elected to do, which is to be a responsible government, a competent government. When the government comes with legislation, come with the facts, come with the reports, the empirical data, the scientific evidence, and the actual facts to back it up. Do not base it on some whim or on gaining partisan advantage and maybe destroying one politician and getting a gain for another politician and gaining a few more ridings and a few more seats. None of it is based on fact. None of it is based on competency. It is based on whipping up a motion.

This legislation is not important to the government. If it were important, the government would have acted on it four years ago. The government sat on its hands. The only reason the government is bringing this legislation forward now is because it is hoping to change the channel. It has had a disastrous 2010 to date.

The Prime Minister padlocked Parliament and raised the ire of hundreds of thousands of Canadians, some of whom actually signed petitions, some of whom participated in rallies to denounce the government. It then decided that it should build a fake lake in Toronto and waste $1 billion on photo ops for the Minister of Industry and for the Prime Minister. Then this summer, it decided that it was going to do away with the long-form census on the basis that state repression can never be justified and that it will use a voluntary survey, which will provide data that is just as good. The experts, including business experts, have said first, that this is not true. Second, if that argument has a solid basis, why is the government allowing the short-form census to remain mandatory? How is that not state repression under the government's thinking but the long-form is?

The government did not consult anyone. It went behind the scenes, in secret, and did exactly the same thing the Prime Minister did with prorogation. He did it when he thought no one was listening and no one was paying attention.

I am going to come back to the issue of Bill C-17.

I ask the government to please make its case that reviving these two provisions is needed. Make the case based on fact, based on actual studies that have been done, not based on rhetoric, not based on ideology, but on actual fact. Be a competent government and show that you have done your homework, because to date that has not been done. I have not heard any Conservative show that he or she has at least done the homework the government has not done. I have not heard one Conservative speaking on the bill provide any facts, any scientific facts, any studies that have been done, or any empirical data. None. All I have heard is anecdote. That will not suffice. A party cannot govern on anecdote. At least it cannot govern competently, because sooner or later that incompetence will catch up with it. We saw that with Brian Mulroney.

I beg the government to do its job, give the House of Commons and Canadians the respect they are due, and provide the actual evidence showing why these two provisions found in Bill C-17 should be enacted. I would like the government also to explain why it has waited four years. Why has the government allowed the bill to die several times on the order paper because the government did not bother to move it to second reading. Why?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, I had the privilege this past week of participating with one of my colleagues in a seminar sponsored by King's University College in Edmonton on fear-based government policy. The hon. member is making a very valid point. We need to make sure, as elected members of Parliament in a democratic nation, that we are making decisions on critical law and policy based on evidence and not on fear.

We have the responsibility, as elected officials, to make sure that we govern in a cogent, informed way. I would ask the member how members of her party can bring themselves to consider supporting the bill? It languished for four years. The government with its fighting-hard-against-crime agenda has simply not given prominence to the bill. There have been a number of actions brought against alleged terrorists in this country, and at no time was this law utilized. Where is the evidence? Where is the sound rationale for bringing this law forward?

I am concerned that surely, in a country that is run by the rule of law and democratic foundations, would the elected officials ever support a law that would take away the fundamental right to remain silent, the right to not self-incriminate, the right to know the charges, and the right not to be interrogated or imprisoned without knowing the charges.

I recognize that the previous Liberal government supported this law. It was at a time of fear of what was going on in the world. How then, given the member's very cogent argument, can she bring herself or her party to support this law?

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Madam Speaker, I would like to point out that the legislation and these provisions were actually enacted, as I stated quite openly and freely, by a Liberal government back in 2001. I was one of the members of Parliament at the time who sat on the committee reviewing the Anti-terrorism Act and therefore had a certain amount of impact.

I take note of the point that the member made, which I as well attempted to make, and that is a responsible and competent government does not govern or enact policies out of fear. I believe she would understand that there was a great deal of fear back in 2001, but calm heads did prevail and made the point that these were draconian measures, that we were not satisfied that the case had been made that they would ultimately be required, that our existing Criminal Code and laws would not be sufficient.

As a result of that, the Liberal government listened. It listened to the experts, to the members of the House of Commons, who had these concerns and preoccupations, and agreed to put a sunset clause in the bill. The sunset clause was over five years later. If the government did not re-enact it, the provisions automatically died, and they died under the Conservative government. That government said that it was important to revive these provisions, knowing full well they had never been used. However, it has never provided, as my colleague said, any cogent evidence to support its claim that these provisions are absolutely needed.

The member asks how my party can support this. My party is a responsible party. We have heard experts in the past, some who have said the provisions may be needed, others who have said they may not be needed. We would like the debate to continue on this. The only way for it to continue and to hear from all stakeholders, including individuals who may have been targeted by the existing and still active provisions of the anti-terrorism bill, is to come before the House of Commons to speak of their experiences and give us the evidence either in favour of or opposed to so each individual elected to the House can make a cogent choice.

I have no shame in saying that my party has decided it will allow this to go to committee. It does not mean that we are in support of the provisions being re-enacted. We want to hear what the stakeholders and experts have to say because the government certainly has not made a case for it yet.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, my question was really for the member for Saint Boniface who spoke previously.

There is some concern that the provisions of the bill could be used to target individuals engaged in protest or dissent. I think back to the days of the Vietnam War demonstrations and the Amchitka blast when the Americans exploded a nuclear bomb on the islands off Alaska. I was involved in that back in 1971.

If there are issues like that, how do we know the provisions of the bill will not impact on those situations? Could the member could respond to that question.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Madam Speaker, no, I cannot and that is another good reason why the bill should be sent to committee so the experts who have that information and knowledge, who can properly respond to his questions and do so on the basis of scientific evidence and empirical data.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Madam Speaker, I appreciate having the opportunity to ask my hon. colleague a question.

My colleague in her very eloquent dissertation spoke about how the bill had been before the House, that it had been four years in the making, that it was a Liberal bill that had been changed over time and that the legislation had been allowed to lapse then reintroduced and kept for the last four years.

I was interested to hear her talk about how the provisions of Bill C-17 had not really been fully and factually accounted for and that we were waiting for those facts.

Does the hon. member think that it is complete incompetence by the government in not bringing forward the bill in the last four years and not giving those facts, or what would be the rationale for not having brought forward this information at an earlier point so we could have a good and open discussion and send it to committee so we could hear from stakeholders?

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Madam Speaker, all I can say is it has become a recurring pattern, the modus operandi of the current government.

I have seen the government in action for the past four years, now going into five years. It is a government that seems to be governing based on gut feeling, based on hyper-partisanship, based on whether or not it can actually divide a people and in so doing go get a few votes here, or get some financial support and donation there. It does not appear to be a government that governs based on actual fact and scientific studies.

One only has to look at its decision with regard to the census. One only has to look at how it is now muzzling our scientists on the environment and climate change. One only has to look at how it is a government that has either fired or not renewed any independent officer of the government or of Parliament who it disagrees with, that it does not like what it hears.

It is unfortunate, and why? It is unfortunate for Canadians because Canadians deserve better. Canadians deserve a government that is competent, a government that actually governs and develops policies based on the best advice and the best knowledge of facts, science and evidence at the time, not based on hyper-partisanship, or on rhetoric or on ideology.

[The Acting Speaker, NDP, Denise Savoie]

Before resuming debate, it is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Acadie—Bathurst, Official Languages; the hon. member for Dartmouth—Cole Harbour, Poverty; the hon. member for London—Fanshawe, Status of Women.

Resuming debate. The hon. Parliamentary Secretary to the Minister of Justice.

[Daniel Petit, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, I rise to take part in today's debate on Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions). I am pleased to take part in the debate at second reading of Bill C-17, which would restore the Criminal Code provisions pertaining to investigative hearings and recognizance with conditions that were created by the Anti-terrorism Act of 2001.

Unfortunately, these important anti-terrorism tools ceased to be in effect in March 2007 under a sunset clause. The investigative hearing provisions gave judges the power, on application by a peace officer and with prior authorization of the Attorney General, to compel an individual to appear before the court to answer questions about past or future terrorism offences.

The provision on recognizance with conditions gave judges the power to impose reasonable conditions to prevent terrorist acts from being carried out if certain criteria were met.

In the aftermath of September 11, Canada was certainly not the only democratic country in the world to have legislated new powers in order to prevent terrorist acts.

In creating the Anti-terrorism Act in 2001, Parliament duly took into account the Canadian Charter of Rights and Freedoms. That is why, compared to those of other democratic countries, our provisions on investigative hearings and recognizance with conditions stand out by guaranteeing the protection of basic human rights. Those same guarantees can also be found in the provisions presented here today, and still others have been added.

In comparing the measures taken in Canada and those taken by other parliamentary democracies, it is quite clear that Canada took a moderate approach and fully considered basic rights and freedoms, values that are at the very core of our Canadian identity.

First, regarding the investigative hearing provisions set out in the bill, let us begin by looking at what some other countries, specifically the United Kingdom, the United States and Australia, have done in that regard.

In the United Kingdom, the closest thing to the investigative power may be the Terrorism Act 2006. That act is based on previous legislation on organized crime and enables an investigative authority, such as the director of public prosecutions, to require a person to provide documents, answer questions and provide information relevant to the investigation of a terrorism offence. Generally speaking, no judicial authorization is necessary, which is what makes that legislation very different from Bill C-17.

The United Kingdom has other legislation that goes further than investigation before a judge. The Terrorism Act 2000 was amended in 2001 to create the offence of refusal by a person to disclose to police, as soon as reasonably possible, information they know or believe to know that could be used to help prevent the perpetration of a terrorist act by another person. It applies if the person knows or if they have reasonable grounds to suspect that the police are investigating a case involving terrorism or are planning to do so. The proposed sentence is a maximum of five years in prison.

Bill C-17 does not include a similar power. I repeat; it does not include a similar power. According to a recent article, in Great Britain—we are familiar with the events—27 charges were laid for that offence between 2001 and 2007.

Under the United States' long-standing grand jury procedure, a federal grand jury can subpoena any person to testify under oath, subject to claims of privilege. Anyone who obstructs a grand jury risks being held in contempt.

Australia has specific procedures similar to the Canadian investigative hearing. The Australian equivalent is covered in the Australian Security Intelligence Organisation Act.

This legislation allows the ASIO, after being authorized by the Attorney General, to ask an independent authority—a federal magistrate—to issue a warrant to question individuals for the purposes of a terrorism investigation. A warrant may also be issued in some cases to authorize the detention of a person for the purpose of questioning. A person may be detained for the purpose of questioning for up to a maximum of 168 hours. The questioning carried out under a questioning warrant or a questioning and detention warrant must be done in the presence of a prescribed authority, generally a retired judge, according to the terms set out by that authority.

The Australian law prevents the individual from contacting a lawyer of his choice in some cases, for example, when the prescribed authority is satisfied, on the basis of circumstances relating to that lawyer, that if the individual is permitted to contact the lawyer, a person involved in a terrorism offence may be alerted that the offence is being investigated.

Furthermore, if the person specified in the warrant, or his lawyer, directly or indirectly discloses operational information as a result of the issue of a warrant or the doing of anything authorized by the warrant, while a warrant is in force, or in the two years following the expiry of a warrant, this constitutes an offence punishable by a maximum of five years imprisonment. In such a case, strict liability applies to this offence.

As we can see, by proposing the investigative measures provided for in Bill C-17, Canada is not an odd man out among other democracies, a number of which are among our closest allies. However, it is important to note that by creating the legal obligation to disclose information that could help a terrorism investigation and making the failure to do so a criminal offence, the United Kingdom goes much further than Bill C-17.

Let us look at how the parts of the bill that deal with recognizance with conditions compare to the legislation passed by other countries, starting with the United Kingdom.

Pursuant to subsection 41(1) of the Terrorism Act 2000, a constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist. All that is needed is reasonable suspicion. The maximum period of pre-charge detention is 28 days. The British government has tried unsuccessfully to increase this to 42 days.

Furthermore, in 2005, the United Kingdom created a system of control orders that apply to citizens and non-citizens alike. There are two kinds of control orders: derogating and non-derogating control orders. The first are those that derogate from the European Convention on Human Rights, and the second are those that contain obligations that respect the convention.

Basically, the home secretary—I am still talking about the UK—can apply to a court to impose obligations on an individual where there is a reasonable suspicion that the individual is or has been involved in terrorism-related activities and this measure is considered necessary in order to protect the public from terrorism.

The duration of the orders varies depending on the kind of control orders imposed by the court. Non-derogating control orders are enforced for a maximum of 12 months while derogating control orders are enforced for up to 6 months. They can be renewed under certain conditions. As of September 10, 2010—so just recently—there were nine control orders in effect, all concerning British citizens. None of the orders derogated from the convention.

This system of control orders has been very controversial. The House of Lords ruled that imposing a curfew of 18 hours a day violated the right to liberty guaranteed by the European Convention on Human Rights.

Another House of Lords later concluded that a person subject to a control order must be provided with sufficient information about the allegations against them to be able to give meaningful instructions to the special advocate concerning these allegations.

Although critics have questioned the validity of the control order system, Lord Carlile of Berriew, the independent reviewer of Britain's anti-terrorism legislation, concluded that this system is still valid. In his February 2010 report on control orders in the United Kingdom, Lord Carlile concluded that abandoning the control orders system would have a damaging effect on national security and that there is no better means of dealing with the serious and continuing risk posed by some individuals.

However, I would like to inform my hon. colleagues that the new coalition government—that is, the coalition government in England—is currently studying anti-terrorism measures. The study will focus on control orders as well as pre-charge detention of suspected terrorists, including reducing the maximum detention period of 28 days. The study findings are to be reported to Parliament this fall.

In addition, I would like to mention that the Counter-Terrorism Act 2008 contains a provision whereby someone convicted of a terrorism-related offence can be required, once out of prison, to periodically provide police with certain information such as their name, home address and any changes to this information. The person subject to this requirement can also be subject to a foreign travel restriction order, which limits their movements outside the United Kingdom in order to participate in another terrorist act.

I would like to add that Australia has also adopted a control order system. Upon request, a court can place obligations upon a person if, on the balance of probabilities, it is satisfied that the control order would substantially assist in preventing a terrorist attack, or that the subject provided training to or received training from a terrorist organization In general, a control order is valid for up to 12 months. We know that two control orders have been issued since the system was put in place. These orders are no longer valid.

Furthermore, the governments of Australia and its states authorize the preventive arrest of terrorist suspects. Under that system, the Australian federal police, in the case of an actual or imminent act of terrorism, may ask the judge to order the preventive arrest of a suspect for a maximum period of 48 hours. In Australia, states and territories allow for preventive detention for up to 14 days.

Therefore, how do these international measures compare with the proposals outlined in Bill C-17, the bill currently before the House? The provision for recognizance with conditions requires that there be reasonable grounds to believe or suspect. In addition, the intent of this provision is not to arrest people but to detain suspects in order to prevent a potential terrorist attack.

Similarly, although the provision provides for arrest without a warrant, it is very narrow in scope, as in an emergency.

In summary, it is fair to say that the measures of other countries are similar to and sometimes go further than those proposed by this bill. For example, an overview of the differences between Canada, the United Kingdom and Australia indicates that Canada, unlike the United Kingdom, does not have a maximum detention of 28 days prior to charges being laid. Unlike the United Kingdom and Australia, Canada does not have a system of restrictive measures. However, in contrast to the United Kingdom, Canada does not criminalize the failure to provide a peace officer with information pertinent to a terrorist offence.

Unlike Australia, we do not restrict the selection of lawyers for the investigation and unlike the United Kingdom, Canada does not impose the requirement to report or travel restrictions on persons found guilty of terrorist acts, as we saw previously.

I have attempted to prove that, like other democratic nations, Canada has recognized the need to provide for additional powers in order to investigate or prevent terrorism. It is a very unique crime that requires unprecedented solutions.

The honourable members should be reassured by the fact that the provisions of the bill include abundant guarantees and are narrow in scope when compared to measures adopted by other parliamentary democracies, such as the United Kingdom.

By re-establishing the powers provided for by Bill C-17, Canada can prove that it can play a leadership role and is taking steps to fight terrorism, all the while respecting human rights.

Consequently, I am asking for the speedy passage of this very useful bill to combat terrorism.