Bill C-36 (Historical)

Anti-terrorism Act

An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities in order to combat terrorism

Combating Terrorism Act

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I was listening to the debate yesterday and today and one speech in particular caught my ear, and that was the debate brought forward by my colleague, the member for York South—Weston. He had a really good story in his speech and I want to pick up on that.

My colleague for York South—Weston was talking a lot about the recognizance with conditions, or preventative arrest powers. This provision is really problematic. We know now that it is even more problematic than we thought because of some things that happened at committee when this section was being explored.

On recognizance with conditions, or preventative arrest, we have section 83.3 of the Criminal Code. However, Bill S-7 tries to prevent terrorist acts, which is a laudable goal, but the question is: Would that section of the act actually meet that goal?

The bill would allow for someone to be arrested because the police believe the arrest necessary to prevent a terrorist attack, which makes good sense to me. However, we had some problems with the way this section was worded because it could be read to mean that someone could be arrested who is not actually a suspect. Perhaps we do not believe that the person is going to carry out the terrorist attack but might know someone who is going to carry out the terrorist attack. It is written in an overly broad way.

The NDP raised this at committee only to hear from the government side that in fact that was the intention. It is not just there to sort of scoop up the person who is actually the suspect but it is to scoop up other people as well, which is way too broad. It is far too broad and that should not be the intention of any anti-terrorist legislation. I do not think it strikes a balance when we look at what our fundamental rights are.

However, the reason I liked the speech of my colleague for York South—Weston is that he used an example of someone in our community, and I will do something similar.

My home town is Kirkland Lake, Ontario and I represent the riding of Halifax. If there was someone in Halifax, originally from Kirkland Lake, whom the authorities suspect may commit a terrorist act, the authorities could go to Kirkland Lake and arrest the suspect's mom. They could say, “This is your kid and we want to interrogate you”. People can actually be interrogated under this bill. Therefore, mom could be arrested in Kirkland Lake, Ontario. She may or may not know anything about what is going on down in Halifax with her daughter, for example.

Furthermore, arrest is serious. My colleague for Winnipeg North was talking about wiretapping, which is also a serious breach of rights. However, that is different than arrest. It is different than arresting someone, putting them in jail, and hauling them before a judge.

So mom is arrested, interrogated, and asked what is going on. She appears before a judge, and the judge can set conditions, which is the recognizance with conditions. The judge can set conditions on her release, and the conditions might be that she cannot have a firearm.

Where I grew up, there were a lot of firearms in my house. We are a family that hunts and that was how we made ends meet when I was growing up. We could not tell my mom or step-dad that they could not do that. We very truly relied on that meat, especially in the winter months.

If mom says no, she is not willing to give up her firearms, she could be put in jail, which is beyond the pale. Surely to goodness that is not the intent here. For example, we are not looking to put my mom in Kirkland Lake, Ontario, in jail for something that she may or may not even have any knowledge of. Therefore, the idea of preventative detention really does go beyond the pale. I do not think it is something we should be supporting.

It does not strike that balance in combatting terrorism along with supporting our fundamental rights, freedoms, and liberties. I do not think it can be supported by saying that we might need this, that exceptional times call for exceptional measures. If we look back, this provision has never been used.

I want to talk a little about that, and about this idea of the sunset clause. When this bill was first introduced in its very first form to make the changes to the Criminal Code, the Anti-terrorism Act of 2001, it was Bill C-36. I will never forget that number. I was a first-year law student. September 2001, when I started law school, is when we saw the terrorist attacks in New York. I watched them happen from the student lounge on my way to property law.

This bill was introduced as a response to that, to make sure of lots of things, including to make sure we were up to international standards when it came to anti-terrorism law. As a first-year law student, I did not have very much experience doing legal analysis. A lot of what was happening around Bill C-36 was beyond me, but I was really concerned with it.

My fellow students were as well. We talked about it in the criminal law class. We talked about it ad nauseam with our professor. We had guest speakers come in and discuss it. I was a member of SALSA, the Social Activist Law Student Association. We organized a panel discussion, sort of breaking down Bill C-36, what it could mean, what might violate the charter and what might not, and how this worked within the greater context of what we are trying to achieve here, that balance of our rights and our safety.

There was a lot of unease around a number of provisions. Different experts were coming forward and saying that they were not sure if it struck a balance and that they could not really predict what was going to happen in the future. This was an attack that we were unprepared for, and we did not know how to respond. It was hard to know if these measures went too far or not.

It felt like the measures went too far, but the saving grace, I remember, was the fact that there were these sunset clauses. If a jurist, an expert, a law professor, whoever was there, had a level of discomfort about these provisions, he or she said, “at least there is a sunset provision”.

The sunset clause sort of lays out when a provision in legislation or a contract will expire, and usually the terms by which it will expire. It is kind of like an expiry date. After three years or five years we actually have to revisit this piece and decide whether or not it is working, whether or not it has struck that balance. Sunset clauses are often used for controversial subjects, where we need to think about how the world is changing, and how legislation is changing to adapt to that changing world. They can be really useful.

On the question of balance, maybe Bill C-36 was a bit of a cop-out. Maybe people were too afraid to say no to some of these provisions. I do not know. I was not there. I was not particularly skilled at legal analysis at that point. However, that sunset provision existed for a reason.

We go back to looking at why we are here today, and we are here because of those sunset provisions. We have to look at these clauses again and again. We have to make that assessment about whether or not we should continue them, whether or not they have outlived their purpose, whether or not they have in fact crossed the line and gone too far.

I would argue that they have crossed the line and gone too far in something like the section on recognizance conditions. Why? Because it violates our rights, our fundamental rights, our liberties, and it has never been used. I could maybe see if we had the big success case of why this has been so important, why it has worked, or if the Conservatives could demonstrate to us that this is a violation of our fundamental freedoms but it is in some way balanced out because it has worked in some way. It has not.

These provisions have not even been used. What we are doing is we are opening that door. We are wedging it open, and we are allowing more infringement of the state on our lives, heading down towards that police state where the police have these incredible powers of saying, “Okay, mom, in Kirkland Lake, Ontario, we are going to put you in jail. We are going to put you before a judge, and you have to hand over all your firearms.”

That balance has not been struck here and we do need to vote against this legislation without making these changes.

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, Bill S-7 is the latest chapter in a long saga that began in the wake of September 11 and led to a number of legislative measures. Bill C-36, the Anti-terrorism Act passed in 2001, was the first salvo launched following the horrific events in New York which still strike fear in people today.

Obviously, the legislation was brought in not only to respond to this threat and to protect Canadians, but also to meet our international obligations, as dictated at high levels, to the UN.

Some of the provisions of the Anti-terrorism Act amended existing pieces of legislation such as the Criminal Code, the Access to Information Act and the Proceeds of Crime (Money Laundering) and Terrorism Financing Act.

Other more significant changes were brought in, notably unprecedented changes to Canadian law. Those who were serving in the House at the time of the 2001 attacks perhaps can attest to the fact that this legislation was passed hastily and without due consideration.

Facing the unknown and a climate of dread, Parliament responded in a strong-armed, reflexive manner. There is a reason therefore why these provisions, crafted in the urgency of the moment, were subject to sunset clauses.

These so-called sunset clauses ensured that the more controversial measures would simply be temporary. That was for the better. The provisions in question pertained to preventive arrest and investigative hearings.

Had the desire arose to extend the life of these provisions, had they been deemed useful or relevant or had it been acknowledged that they had prevented an otherwise inevitable catastrophe from occurring, there would have been an opportunity to maintain them and make them permanent.

To do so would have required a resolution by both Houses of Parliament. A resolution was in fact tabled and rejected. Parliamentarians in their wisdom found that there was no valid reason to extend the life of these provisions.

Both Houses did their homework as far as these measures were concerned. Each one examined the most sensitive provisions of the 2001 Anti-terrorism Act. In October 2006, the House of Commons Standing Committee on Public Safety and National Security reviewed the legislation, most notably the investigative hearings and recognizance with conditions provisions. The other place produced an aptly named report entitled “Fundamental Justice in Extraordinary Times”.

Despite this flurry of activity, these questionable, freedom-destroying and fortunately temporary provisions expired as originally scheduled in 2007.

Since then, several attempts have been made to resurrect this long-settled debate: Bill S-3 in 2008, Bill C-19 in 2009 and Bill C-17 in 2010.

Each time, the same conclusion has been reached: the state currently has all the tools it needs to combat terrorism.

There was no reason to bring in these measures, even in 2001, and there is no reason to re-introduce them today.

The measures being debated today are not harmless. Among other things, Bill S-7 would re-introduce into Canadian law the phenomenon of investigative hearings that allow a peace officer to apply to a provincial court judge for an order to compel individuals to appear before a judge if they are suspected of having information concerning future terrorist acts. The provision would compel the individual to attend hearings and to answer investigators’ questions.

Another important measure that is being brought hastily before the House is the recognizance with conditions provision which includes preventive detention. It would give a peace officer the authority to arrest an individual without a warrant if he believes such action is necessary to prevent a terrorist act. The individual in question is subsequently brought before a judge, as soon as feasible, according to the wording of the bill, and may be imposed certain conditions, or may even be committed to prison for a term not exceeding 12 months.

From a human rights standpoint, these provisions are very restrictive. One could also argue that they are cause for great concern and that careful consideration should be given to the balance that must be struck between the real advantage they provide in terms of public safety and the cost to citizens, which undeniably in this instance is restrictions on a person’s fundamental rights. Admittedly, at issue are the rights of the individuals primarily concerned, but ultimately the rights of all citizens are affected as well.

Dramatist Henry Becque wrote that freedom and health have much in common and that we only appreciate their value when they are lost to us.

I am greatly concerned about the timing of today’s debate, about the fact that the government has chosen to move it up in light of what has happened. As noted earlier, the 2001 Anti-terrorism Act was passed hastily and this is not how debates on national legislation should unfold.

Today it would seem that an attempt is being made to recreate the same climate of fear and panic in order to hastily push through a bill that has serious implications for people’s freedoms.

It goes without saying that the people in my riding, Longueuil—Pierre-Boucher, want to live in safety. However, they also believe very strongly in the rights that belong to every individual. Many of them are going to wonder whether this is the right time to be debating the measures in Bill S-7, when people are recovering from the horrific, cruel and gratuitous attacks that took place last week at the Boston Marathon.

We do not need any added emotion for debating this bill. What we need is some distance, some reflection, and some calm and considered thought.

To me, there is nothing wise about the government precipitating this debate. I stress the word “wise”.

Is it really wise, the day after attacks like that, and with what we have in the news here in Canada, to be rewriting our laws and redefining our fundamental freedoms?

Perhaps it is the usual opportunism we see from this government, in its typical crudeness and poor taste.

We on this side firmly believe that this bill is contrary to the fundamental values of Canadians and the values on which our judicial system is built.

The unambiguous and unvarnished goal of these measures is to limit the civil liberties and fundamental rights of Canadians.

Those rights include basic elements of our judicial system that we take for granted: the right to remain silent, the right to a fair trial and the right to be considered innocent until proven guilty.

The principles of our law, whose origin lies in centuries-old customs and legal traditions, lay out individual rights that are unwavering.

While the draft we are presented with today includes a few sops that are supposed to reassure us, because they are in the form of additional protections, these proposals are very unconvincing overall.

We also oppose these measures simply on their track record: these methods are ineffective in principle.

Ultimately, we firmly believe the Criminal Code is an entirely satisfactory tool for investigating these suspicious people who engage in shady plans or whose goal is to threaten the public. Those are crimes and that is what the Criminal Code is intended for.

In fact, the provisions drawn up in 2001, which had a “sunset clause” that took effect in 2007, were never used. Those measures made people uncomfortable from the outset, in 2001, because they were inimical to liberty.

In 2010, a former director of the Canadian Security Intelligence Service, Reid Morden, said, on the question of the two measures I referred to earlier:

...I confess I never thought that they should have been introduced in the first place...

He raised the idea that these provisions had slipped into the act almost by mistake.

...and that they slipped in, in the kind of scrambling around that the government did after 9/11...It seemed to me that it turned our judicial system somewhat on its head.

He then stressed that law enforcement agencies already have the powers they need to do their job. They do not need additional powers. He concluded by saying:

I guess l'm sorry to hear that the government has decided to reintroduce them.

It appears that these measures caused misgivings among the forces of law and order, who wisely decided not to use these powers in their investigations.

Can someone really explain why these measures would be useful today, when they were not useful in the months following September 11, and that even the people who could have enforced them did not want to?

Finally, when some rights are under threat, all rights are under threat. Under the provisions of this bill, there is not much to ensure that citizens or anyone will not be falsely accused in the future for activities that have nothing to do with terrorism. Some activities may be considered subversive or dissident—slippery words that can be applied to peaceful activities in a democratic context.

Those who defend fundamental human rights are speaking up from all sides, telling us that these measures are unnecessary and that the price to be paid will be paid in civil rights, which is not a fair exchange for the proposed benefits. These measures are unwanted and unnecessary.

We saw this a few years ago when threats of spectacular terrorist attacks were foiled. We saw it again yesterday, when the admirable public safety professionals arrested two suspects who, it appears, wanted to disrupt the lives of ordinary people and do them unimaginable harm.

At this moment in time when terrorism has become part of current events, it is essential that we resist. We must resist terrorism in order to protect ourselves, prepare ourselves and defend ourselves. We must make our trains, airports, public spaces and gathering places safe and secure.

It is also essential that we, as a society, as communities and individuals, refuse to be terrorized by terrorism, and refuse to be manipulated or to change our behaviour and lifestyles. That is precisely what we should not do.

We must not be terrified by terrorism. To stand up to terrorism is to ensure that democracy and individual liberties for everyone in our country are never threatened by such people and their violence.

Since I have only a few seconds left, I just wish to express my astonishment at the Liberal Party's inconsistency. In 2001, the Liberals adopted the sunset clauses, but today they are not proposing any amendments of the sort. I cannot explain that.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

Mr. Speaker, I would like to start by saying that we were all outraged and shocked by the events that happened in Boston, and we offer our heartfelt sympathy to the families.

In our democratic societies, we cannot tolerate the use of violence for political ends, whatever they may be, and we strongly condemn it.

After the attack on the World Trade Center on September 11, 2001, the American and Canadian governments panicked and decided to put a set of measures in place quickly to enhance the fight against terrorism. One of those measures was Bill C-36, the Anti-terrorism Act. Some clauses in that act were enacted temporarily—they were applied for an initial five-year period to see whether they were necessary and effective. Today we are seeing an attempt, in Bill S-7, to incorporate those clauses into the act on a permanent basis.

When I read the brief on Bill S-7 by Denis Barrette of the International Civil Liberties Monitoring Group, I was struck by his comments on preventive detention. That term brings back painful memories of the October crisis of 1970. In Quebec, we have experienced terrorism. I remember the military barracks that were blown up. I remember the death of a sergeant, the bomb at the Montreal Stock Exchange and bombs in mailboxes. The governments of the day decided to suspend civil liberties and, rightly or wrongly, to invoke the War Measures Act. I was young at the time. I was 14 years old and going to high school.

In my neighbourhood of bungalows, we watched as 40 soldiers, armed to the teeth, got out of their vehicles. They went around to the houses knocking on doors to talk to us about things we knew nothing about. They asked us whether we knew people connected with the Front de libération du Québec. They had composite drawings. At that time, we did not have the photographs and all the digital equipment we have today. The soldiers showed us composite drawings of bearded men with long hair who might have looked like our neighbours. They asked us whether we knew those people or had seen them. They went to the home of my neighbour, who had a beard and long hair, and they took him away. He looked like the person in the composite drawing. Did he have connections with the FLQ? No one knew. The people in my neighbourhood knew the guy because he worked in a café. Young people went there and I imagine they may have smoked some substances that were illegal at the time, but to our knowledge he was not a terrorist, and it turns out that in fact he was not one.

When the War Measures Act was declared, the authorities carried out 36,000 searches without warrant and arrested 457 people. They called that "preventive arrest". That is just what we find in the bill before us now. When a government panics, it makes preventive arrests. When I read in the notes that preventive arrests would be possible, I decided that we must maintain our current laws, because the police have enough laws at their disposal. Yesterday we saw the arrest of two suspected terrorists, Jaser and Esseghaier. There was no need to make preventive arrests, take people into police custody and interrogate them, wait for their responses and put them in prison if they did not live up to police expectations. We went through such a period of preventive arrests in Quebec and where did it get us?

How many of the 457 people who were “preventively” arrested were charged with belonging to a terrorist movement? One may well ask. The Keable commission investigated. There were some answers. There was the MacDonald commission, which was blocked by the Supreme Court of Canada, because provincial commissions are not entitled to investigate the activities of the RCMP.

Some day, perhaps, when all the documents have been made public, we will know all the facts about this dark period in Canadian history and Quebec history. For now, we know that the suppression of civil liberties during that time was unjustified and produced nothing. Many people still claim even today that when the War Measures Act was declared, the police already knew where the kidnappers of James Cross and Pierre Laporte were. That is our basis for holding on to the laws that make it impossible for someone to be arrested without knowing why, that ensure that anyone arrested has the right to remain silent and be represented by counsel, and that ensure that the force of the state should never be used to compel individuals to testify against themselves.

In conclusion, I will read from the statement made by Mr. Barrette when he appeared at the committee I mentioned earlier. I will read it completely, for the people watching us and for those who still believe it is necessary to maintain civil liberties despite increasing terrorism. In fact, terrorism sometimes makes us forget our fundamental principles that make us want to live in a free and democratic society. Terrorism has achieved its goal when it succeeds in limiting our civil liberties, because that is its goal.

The International Civil Liberties Monitoring Group and the Ligue des droits et libertés believe the provisions relating to investigative hearings and recognizance with conditions to be both dangerous and misleading.

Parliamentary debate of this matter ought to be based on a rational and informed review of the Anti-terrorism Act, a piece of legislation that was rushed through Parliament after the events of September 11, 2001 in a climate of fear and in response to considerable pressure from the United States.

Today, what is the real, objective need for these two provisions? From the time they were adopted in 2001 until they were terminated in 2007, the only time they were used was in connection with the Air India affair, which as we know, resulted in an unfortunate fiasco. In 2007 and now, police have been able to investigate and block terrorist plots without using the provisions being discussed. That is clear. It is possible to prevent terrorist attacks using the legal tools we already have. There is no need to further limit individual and collective rights.

Moreover, since 2001, 10 years ago, of all the investigations leading to charges or convictions, none has required the use of these extraordinary powers, including the case of the Toronto 18, a more recent case involving four people from the Toronto area, and even yesterday, the case involving the two people who planned to derail a VIA Rail train. We know that these provisions could be used in a way we consider abusive. I am thinking of the Air India case. We believe that Canadians will be better served and protected if the ordinary provisions of the Criminal Code are used, rather than these unnecessary provisions.

Reliance on arbitrary powers and a lower standard of evidence can never replace good, effective police work. That goes without saying.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I am pleased to rise on the matter of Bill S-7, legislation that proposes a number of amendments to Canada's anti-terrorism regime, including provisions respecting the re-enactment of preventive arrests and investigative hearings. As members will know, these provisions expired in 2007 and have, on numerous occasions, been the subject of my remarks in the House and in writings of mine over the years, dating back to the tabling of the original Anti-terrorism Act, Bill C-36 in 2001.

It perhaps goes without saying that this debate began in the period following the horrific events of 9/11, which was characterized at the time as a period when the whole world was changed. Back then the Liberal government of the day introduced provisions for preventive arrests and investigative hearings as components of the larger Anti-terrorism Act. Soon after Bill C-36 in the House in its original form was tabled, I rose in the House and expressed some 10 civil libertarian concerns with respect to that projected draft of the Anti-terrorism Act, including the provisions relating to preventive detention and investigative hearings. I elaborated on these matters in a series of articles and recommended that the provisions be sunsetted after three years, later extended to five years, pending comprehensive parliamentary review, and the government agreed. With that as well as the majority of my other concerns being addressed, some eight out of the ten, I ended up supporting the legislation.

Regrettably, by 2007, when the provisions were scheduled to sunset pending a parliamentary motion to extend them, the House and special Senate committees had not yet completed their studies of the Anti-terrorism Act due to repeated delays including the dissolution of Parliament in 2004 and 2006. Nevertheless, the Conservative government went ahead with proposing the extension of the provisions without taking the views of these parliamentary committees into account, leaving House members with little insight into the experience of the provisions in effect. The result was a highly politicized and partisan debate, rife with what I could only describe at the time as bumper-sticker slogans and smears instead of a debate on the merits of the policy, a policy with which reasonable people can and do reasonably disagree. Indeed, I regretted the references made by ministers of the Crown at the time that somehow our party was soft on terrorism for simply wanting to debate these provisions, especially considering that it was a Liberal government that introduced the Anti-terrorism Act in the first place.

With Bill S-7 now stipulating that preventive arrest and investigative hearings be once again subject to a five-year sunset clause, I offer my support today with the expectation that if enacted, parliamentary committees will be given the opportunity and resources necessary to undertake full review of the provisions in question during the next trial period and well in advance of any debate to extend it once again. Indeed, any decision made by Parliament that affects the security and rights of all Canadians must be reasoned, thoughtful, evidence-based and not rushed as a matter of political expediency.

The critical issue here is one of principled balance. We must, on the one hand, seek to combat terrorism and keep Canadians safe from terrorist threats and attacks, while at the same time protecting our individual freedoms as enshrined in the charter. These are not, however, mutually exclusive objectives. Indeed, an appropriate and effective anti-terrorism strategy must view security and rights not as concepts in conflict, not as a zero sum game, but as values that are inextricably linked.

Let me articulate a number of basic principles in this regard. First, terrorism itself must be seen as being, in effect, an assault on the security of a democracy like Canada and an assault on our fundamental rights such as the right to life, liberty and security of the person. Accordingly, anti-terrorism law and policy may be said to constitute the promotion and protection of the security of democracy and fundamental human rights in the most profound sense. At the same time, however, the implementation and enforcement of such anti-terrorism law must always comport with the rule of law, must always adhere to the principles of the charter. Torture, for example, must never be allowed to be used and must always comport as well with our international legal obligations.

The second and related principle is that we are not simply talking here about a domestic criminal justice model. We are talking about is an international criminal justice model. We are not talking, as the courts and others have said, of the ordinary criminal. We are talking about the transnational terrorist threat.

This brings me to a third principle, which the Supreme Court has itself enunciated, namely the contextual principle; that we cannot view these issues in the abstract but we must view them in terms of the realities as they have unfolded in this regard. Also, we must appreciate that Canadian anti-terrorism law is inextricably bound with the international criminal justice system and the invocation and application of international law treaties, the invocation of general principles of law recognized by the community of nations. For example, section 11(g) of the charter on this point says that retroactivity shall not avail when the crimes are those that run afoul of “the general principles of law recognized by the community of nations”. Therefore, in this regard, it recognizes that the international criminal justice model departs sometimes from the domestic model.

UN Security mandates must also be taken into account, bilateral and multilateral agreements and so forth. In particular, Security Council resolution 1373, enacted following 9/11, mandates that all states take “additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism”. These standards must be met by our anti-terrorism legislation, if for no other reason than that we cannot have the appropriate or factual understanding of the dynamics involved in our domestic counterterrorism measures if we view them in a vacuum, if we view them as abstracted from the global circumstances and precedents or if we view them, as the Supreme Court has said, out of context without resort to an appreciation of the contextual principle.

However, beyond the abstract in that regard, let us be clear. The threat of transnational terrorism is real and Canada is not unaffected by it, as the recent events, whether they be in Boston or the aborted terrorist attack now in Canada, indicate. Indeed, Canadians have been implicated in terrorist attacks abroad as recently as last month in Algeria, last year in Bulgaria and just two days ago with regard to an arrest in Bulgaria. This is precisely why Bill S-7 also makes it a crime to leave or attempt to leave Canada to participate in terrorist activities. Moreover, Canadians have been killed in terrorist attacks, tragically in the case of 9/11 but also thereafter.

Accordingly, our commitment to civil liberties must always be consistent with regard to the protection of human rights as a whole, and we must take the necessary concrete and decisive actions to prevent terrorist attacks. In the words of two former Supreme Court justices, the Hon. Frank Iacobucci and the Hon. Louise Arbour, who also spent several years as the UN Commissioner for Human Rights, the Constitution is not a suicide pact and “[t]he challenge for democracies in the battle against terrorism is not whether to respond, but rather how to do so”.

Preventive arrests and investigative hearings can be effective, limited and lawful counterterrorism measures. Indeed, the Supreme Court, in the matter of investigative hearings has held them to be constitutional, stating that they do not violate an individual's charter rights against self-incrimination, as evidence derived from such hearings cannot be used against the person except in perjury prosecutions. Moreover, the provisions are not otherwise unknown in Canadian law, and similar provisions already exist in the Coroners Act and the Inquiries Act, and I can go on.

In the matter of preventive arrests, these too are not a new invocation of principle and policy. Preventive arrests are 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 now extends them to suspected terrorist activities.

In addition, preventive arrests and investigative hearings as set forth in Bill S-7 seek to respect Canadians' individual and collective rights through safeguards and principles of transparency. In this regard, it is important to appreciate that there are three safeguards in the bill, and I was involved with respect to the initiation of these safeguards. Reference has been made to the safeguards, and we must appreciate that there is an executive requirement for the consent of the Attorney General and therefore objective oversight in that regard. With parliamentary oversight and the requirements for annual reports from both federal ministers concerned and with Bill S-7, they must not only detail how often the provisions are used, but also make a case for why they should be extended.

Furthermore, there is judicial oversight with respect to investigative hearings, and in the event of an arrest, the individual must be brought before a judge, typically within 24 hours, contrasting with the situation that is in the United States or with the situation in the United Kingdom and the like.

Notwithstanding these safeguards, I understand why some members, maybe even from all parties, remain uncomfortable with the proposed measures. They are indeed extraordinary provisions, though extraordinary provisions to combat extraordinary threats.

I do not, however, share the view offered by some in the House that because the provisions, and we heard this again in debate, were seldom used, in effect they are somehow unnecessary now. In fact, their lack of use can equally demonstrate that they are not abused, that they are truly measures of last—

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I will be sharing my time with the hon. member for Montmagny—L'Islet—Kamouraska—Rivière-du-Loup.

I am pleased to have the opportunity to speak about the issues raised by Bill S-7. However, I would first like to offer my condolences to the families of the Boston Marathon victims and express my support for this extraordinarily resilient community.

Terrorism is a horrible thing, and we need a responsible approach to combat it without losing what defines us as a society. When Osama bin Laden launched the attack on the World Trade Center in 2001, he said that he wanted the North American way of life to disappear forever.

Since those attacks, Western countries have lost a little bit of their candour, and we have had to face our own limitations. At the centre of the lifestyle we share with our American neighbours is the rule of law and the civil liberties enshrined in the Charter of Rights and Freedoms. These social markers are at the heart of Canadian identity, and we must protect them as our most precious treasure, because if we willingly abandon our fundamental rights, then what is the point of combatting terrorism?

This is the main question behind my opposition to Bill S-7. In my opinion, this bill is ineffective and pointless in the fight against terrorism and it directly threatens my constituents' freedom.

We all know that Bill C-36 was rushed through in 2001 following the attacks on New York, which made a deep impression on our minds. Who does not remember those events, even 12 years later? Yet very few people remember Bill C-42, which allowed the government to declare temporary military zones in which fundamental freedoms were suspended. This millennium opened with a new interpretation of our most fundamental freedoms.

Why this aside when talking about Bill S-7? It is simply to show the House the risks of passing a bill such as this one in a time of emotional distress.

What happened in Boston has had an effect on all of us, but if Bill S-7 was so urgent, why did the Conservatives wait until now to introduce it? If I did not trust in the good faith of the members opposite, I would be tempted to say that they are trying to use this tragedy to conclude the debate on Bill S-7 so that they never have to hear about freedom of expression within their own caucus again.

Among other things, Bill S-7 would reinstate sunset provisions contained in Bill C-36, which expired in 2011. That is the case for recognizance powers, which the government is trying to put back on the table for no apparent reason. Other provisions, such as investigative hearings, are cause for concern.

The fact that these provisions were not applied between 2001 and 2007 does not seem to be of great concern to this government. Moreover, with respect to recognizance powers, the Conservatives insisted at report stage that this provision apply to individuals who are not suspected of conducting terrorist activities.

In summary, with Bill C-36, we introduced the idea of preventive detention and provisional judgments grounded in mere suspicion. Is there anyone here who wants to be the object of such suspicion? Bill S-7 goes even further. It reintroduces a sunset clause for an obvious purpose and, moreover, it tries to apply the provision to people who are not even suspected of being terrorists. It is not a mistake: the broad scope of the provision is intentional.

What are we doing? Are we going to put people in jail on the grounds of a suspected suspicion? I am sorry, but that is not the democracy in which I want my grandchildren to grow up. Suspending an individual's freedom because of a suspicion is very arbitrary. No longer requiring this suspicion would be utter madness. Furthermore, this provision could result in 12 months of preventive detention, 12 months of imprisonment without a conviction. What has happened to Canada?

The reading of Bill S-7 raises questions for me that I must ask. If the government wants to extend an anti-terrorist provision not only to terrorists, but also to those suspected of terrorism and, basically, everyone in general, where is this all leading to?

Anti-terrorism legislation like this is not worthy of a state governed by the rule of law. It is not actually used anyway, and our Criminal Code has up to now proved to be adequate for tracking down terrorists. With this type of legislation, we are opening the door to broader applications, which we are already seeing in Bill S-7.

Earlier, I was talking about Bill C-36 and Bill C-42. They have not been useful in protecting Canada from terrorism. The behaviour of our forces of law and order deteriorated as a result.

If memory serves, Bill C-42 was used when the government declared the community of Kananaskis to be under military jurisdiction for a G8 economic meeting in 2002. Who were the terrorists? Al Qaeda, or the global justice movement? Bill C-36 may not have been able to defend the country, but it sure got the authorities all worked up in 2010 during the notorious “Torontonamo”, when the city centre was locked down and $1 billion was spent on security for a simple G8 meeting on the economy. The result was 1,000 Canadians imprisoned and convicted with no evidence, and civil liberties taken away, first inside the security perimeter, then around it, and finally all over the city.

If the authorities feel that they can act like that at a simple demonstration about the economy, what will they do in other situations? I firmly believe that anti-terrorist laws give quite the wrong message to our forces of law and order. “Torontonamo” was strongly criticized in official government reports, but the harm was done. How many other accidents like that are we going to have to deal with before we realize that anti-terrorist legislation can become “anti-Canadian” legislation?

If the Conservative government really wanted to improve security in Canada, why did it cut the budget of our border intelligence unit by half? Why did it end a program designed to recruit more police officers in our communities, and why did it abolish the position of Inspector General of the Canadian Security and Intelligence Service?

Furthermore, the NDP proposed a number of amendments that would have made Bill S-7, if not satisfactory, at least tolerable, but the Conservatives rejected all of our amendments. So we have to learn to live with investigative hearings, a technique worthy of medieval witch hunts, that could well pervert our justice system. Rather than confronting the potential threats hanging over our country, the Conservatives seem to be more interested in using them to significantly change the nature of justice in this country.

In my opinion, Bill S-7 is poorly designed and does not add anything substantial to the Criminal Code, other than the potential for misuse and abuse that we will all regret one day. Bill S-7 should be examined much more carefully before it is passed, since the issues this bill raises are much too important to be left to the whim of the government in power.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, I am very pleased to stand today in the House to speak against Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act. The genealogy of Bill S-7 takes us back to Bill C-36, the Anti-terrorism Act, which was tabled by the Liberal government in 2001. The original intent of the Anti-terrorism Act was to provide the Canadian legislative response to the events of September 11, 2001, 9/11 as we now know it.

There is no question that day should not and indeed cannot be forgotten. The images of passenger planes flying into those iconic towers repeat themselves over and over again in news, television and film, and undoubtedly in the mind as the memories of the many who were personally impacted by that act of terror.

I note with sadness that my colleague from Esquimalt—Juan de Fuca and his partner have such memories to bear.

As these images repeat themselves, we witness the deaths of nearly 3,000 innocents, including 24 Canadians over and over again. That day we awoke to a new kind of threat and a new level of threat. Most importantly, we awoke to a new and profound sense of vulnerability, so we responded.

Several provisions of Bill C-36 became permanently enshrined in other legislation such as the Proceeds of Crime and Terrorist Financing Act, the Criminal Code and the Access to Information Act. However, several parts of the Anti-terrorism Act had sunset clauses expiring in February 2007. These provisions concerned investigative hearings and recognizance with conditions or preventive arrest provisions.

These measures were largely without precedence in Canadian law and for good reason. We believe that these provisions run contrary to fundamental principles, rights and liberties enshrined in Canadian law. The rights and liberties violated include the right to remain silent and the right not to be imprisoned without first having a fair trial. We believe that these are important restrictions on the authority of the state because in their absence there is not sufficient protection of an individual's freedom.

As per the terms of the Anti-terrorism Act, these provisions, in order to be extended, had to be adopted by way of resolution by both Houses of Parliament. However, the resolution was defeated soundly, 159:124 in this House, and these controversial provisions of the Anti-terrorism Act sunsetted.

We know that the efforts did not end there. Similar bills were proposed in 2008, 2009 and 2010 in the forms of Bill S-3, Bill C-19 and Bill C-17 respectively. It seems this is an annual, or almost annual rite. Now they are back.

Time has passed in the interim, a decade roughly since Bill C-36 was brought before the House, and time has been instructive. Since the passage of the Anti-terrorism Act, the recognizance with conditions or preventive arrest provision has never been used. The investigative hearing provision has been used once in the Air India case. Many consider that exercise to have had no positive effect, in fact quite the opposite.

Paul Copeland, a highly experienced and respected lawyer representing the Law Union of Ontario, speaking about this sole experience with the investigative hearing provision, said to the Standing Committee on Public Safety and National Security in 2010 that the Law Union characterized this episode “as a fiasco, and I think that's an appropriate description”. He went on to say about all the provisions examined:

The provisions you are looking at here, in my submission, change the Canadian legal landscape.... They should not be passed, and in my view they are not needed. There are other provisions of the code that allow for various ways of dealing with these people.

This seems to be the nub of the issue. Without such extreme provisions, without changing the legal landscape of Canada, without breaching the rights and civil liberties of Canadian citizens, we have successfully protected the safety and security of Canada and Canadians from terrorist attack. These provisions have proven over the course of time to constitute an unnecessary and ineffective infringement.

As the former NDP justice critic said in the House in 2010:

When facing a crisis, we as political leaders feel that we have to do something even when all the evidence shows that the structures we have, the strength of our society, the strength of our laws, are enough to deal with it. We passed legislation in early 2002 to deal with terrorism when we panicked. We have learned in the last eight years that there was no need for that legislation.

The only thing to add to that summation is that in the past decade we have learned that we did not need this act.

The proof, as they say, is in the pudding. As Denis Barrette, spokesperson for the International Civil Liberties Monitoring Group, noted before the standing committee on Bill C-17 in 2011:

Since 2007, police investigations have succeeded in dismantling terrorist conspiracies using neither one of the provisions we are talking about today.

He concluded:

We believe that Canadians will be better served and better protected under the usual provisions of the Criminal Code, rather than others that are completely unnecessary. Reliance on arbitrary powers and a lower standard of evidence can never replace good, effective police work. On the contrary, these powers open the door to a denial of justice and a greater probability that the reputation of innocent individuals...will be tarnished.

We have borne witness to that in this country.

While these provisions have proven to have no effect on the fight against terror, they have had a profound social impact on Canada and many Canadians. On the eve of 9/11 this year, I showed a film at my local review theatre, the Fox in the Beach. The film is called Change Your Name Ousama. It was produced and directed by local filmmaker Fuad Chowdhury and focuses on a community in my riding of Beaches—East York called Crescent Town. Crescent Town is a very densely populated and diverse community, which is largely made up of Bangladeshi Canadians, most of whom are Muslim.

The film is not a point of view film. It was made for television and screened at the Montreal film festival. It includes significant interview footage, for example, of the assistant director of CSIS. It also includes footage of our Prime Minister in a fairly recent CBC interview telling Canadians that the major threat to Canada is still Islamicism. The film also tells the story of what it feels like to be one of about a million Muslim Canadians living in a political climate where their religion has been held to be a threat to the security of their country.

It is noted in the film by a University of Toronto academic that governments, through their actions, have the power to create stigmas and to marginalize communities. Of this we need, in this place, to be very mindful and sensitive. This is where the film gets its title. It was the advice, amidst the political fallout of 9/11, of a Muslim leader of Crescent Town to members of his community, “Change your name Ousama. Shave your beard. Do not wear your kufi”. In essence, “change or disguise your identity”.

Motivated as they have been, bills such as that introduced in 2001 by the Liberals and its partial reprisal today in the form of Bill S-7 have had that impact. They have left so many across this country and in my riding feeling like they have something to apologize for, as if the onus rests on them to demonstrate somehow that they are not terrorists.

Herein lies a great tragedy. In Bill S-7, as with Bill C-36 before it, we have before us a bill that contradicts not just the legal heritage of this country but a fundamental social and political heritage that takes us back decades at least, a heritage of which we should be proud and protective. The heritage I speak of is the opportunity to maintain and exercise one's culture and religion in Canada freely and still be and feel fully Canadian. This social and political heritage is one that has made us a great place, a place where so many around the world long to come to live.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, first, I would like to thank my colleague for her very rational, fact-based arguments about the bill and why we should be opposing it.

I want to tell her that I was in Parliament in 2001, when the original anti-terrorism bill, Bill C-36, was basically rushed through Parliament. There was very little examination and the one thing we were able to do was to get those sunset clauses included so that there would be a review on the two key issues of interrogation and preventative detention. This is what is coming back to us now, after so many years of various attempts to have this legislation come back.

I am very glad that she has given an overview of what this legislation is about.

I guess the thing that really bothers me is that what we see from the Conservative government is a pattern, that for every problem it defines, and it is not necessarily a problem, the only answer it can come up with is some new piece of criminal legislation. This is exactly what is happening here.

We know, for example, that the sunsetted clauses were only used once. It really begs the question as to why these provisions are needed. I think it is probably more important that we provide support to law enforcement agencies for enforcement, for intelligence gathering, rather than saying, “Well, the answer is another new law”.

I wonder if the member would comment on that.

I liked her analogy that we are getting on a train with no idea where it is going. I think she was right on when she said that.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, it is always an honour for me to debate the bill known as the Combating Terrorism Act with my colleagues.

The main objectives of this bill are: to amend the Criminal Code in order to provide for investigative hearings and preventive arrests; to amend the Canada Evidence Act to allow judges to order the public disclosure of potentially sensitive information about a trial or an accused once the appeal period has expired; to amend the Criminal Code to create new offences of leaving or attempting to leave Canada to commit a terrorist act; and to amend the Security of Information Act to increase the maximum penalty for harbouring a person who has committed or is likely to commit an offence.

More than 10 years have now passed since the tragic attacks of September 11, 2001. These events turned the whole world upside down. As a result, international co-operation has been strengthened in order for the global community to better protect itself against terrorist acts.

A number of western countries implemented policies and laws to protect themselves against terrorism. Canada was no exception. In the aftermath of the September 11 attacks, the government hastily passed Bill C-36, which was followed by Bills S-3, C-19 and C-17 in later years. The Conservatives introduced all bills after Bill C-36.

The attacks had a much more insidious effect: everyone felt threatened by terrorists, who were hiding everywhere, and it was necessary to sacrifice freedoms for security. All of a sudden, people felt far less safe and a climate of fear began to take hold.

Since coming to power, the Conservatives have spent a great deal of time creating an atmosphere of fear, suspicion and insecurity with respect to national security. They have led Canadians to believe that there is an ever-present danger to our major urban centres. In my opinion, the political objective of the government's approach to safety is to obtain increased police powers for the state from the Canadian people.

When a tragedy such as a terrorist attack occurs, it is easy for a government to fall into the trap of acting quickly and forcefully. It is understandable since, after all, the government is responsible for the safety of its citizens.

I would like to quote the former justice critic and current member of Parliament for Windsor—Tecumseh, who clearly described the government's willingness to act when catastrophic events occur. He said:

When facing a crisis, we as political leaders feel that we have to do something even when all the evidence shows that the structures we have, the strength of our society, the strength of our laws, are enough to deal with it. We passed legislation in early 2002 to deal with terrorism when we panicked. We have learned in the last eight years that there was no need for that legislation.

The bills that the Conservatives introduce and the speeches that they give leave me feeling completely baffled. They are asking us to give them the tools they need to protect us. In exchange for their protection, they are asking us to give up a few of our civil liberties. It is not true that freedom and security are mutually exclusive. It is possible to strike a fair balance between freedom and security by making thoughtful decisions that take these two variables into account.

The Conservatives do not believe that. I will explain why. The Conservatives' idea to adopt such a policy emanates from somewhere and that is from beliefs that are deeply rooted in their right-wing ideology. According to political studies, there are often many types of beliefs. This includes fundamental beliefs, which are often associated with basic rights. One's personal safety is, in my opinion, one of these fundamental beliefs. Anyone under the influence of fear will act to protect him or herself. In fact, in our laws, we recognize the legitimacy of the right to defend ourselves.

The Conservatives are dealing in fear. They want to put Canadians on the defensive so that they will then give the government more power in exchange for certain civil liberties.

The official opposition's role is to make sure that the government does not use worst-case scenarios to mislead the public and give itself extraordinary powers. Furthermore, the Conservatives have been implying that if opposition members do not agree with their very restrictive policies, it means that we do not care about public safety and that we cannot be trusted when it comes to national security. I think that the Minister of Public Safety has insinuated that many times.

To my Conservative colleagues I will say that I have worked to make Canadians safe. I also used to be the deputy critic for public safety and I care very much about the safety of all Canadians. Our party would take the necessary and appropriate measures to effectively protect Canadians. Unlike the members opposite, we care about the most fundamental human rights and freedoms, and these must be taken into account when introducing bills or policies that could threaten certain rights and freedoms. We do not take this kind of thing lightly.

The key thing is to never contradict the Conservatives. They firmly believe that an attack is imminent and that police forces need more tools from legislators to be able to combat terrorism. They will reject all facts and arguments that do not corroborate this belief. They focus only on those that support what they believe. How many times has the government refused to listen to scientists and experts, whether on environmental or social policy matters? If something does not support their position and ideology, they reject it outright, regardless of the facts, and the fight against terrorism is obviously no exception.

It worries me a lot to see that the government completely ignores experts in various fields. Public policy is no longer based on common sense. Good public policies are based on facts and on expert and stakeholder opinions. That is how it should work. That is what it means to govern in partnership, a concept that the Conservatives do not seem to care much about.

In my opinion, the worst is that the government is playing right into the hands of terrorist groups by restricting Canadians' civil rights. Terrorist groups attempt by their actions to cause greater collateral damage than the attack itself. So they try to draw media attention to the savage nature of their terrorist attack in order to spread a climate of fear among all nations. That is where the government may be tempted to limit its citizens' liberties. When that happens, the terrorists have achieved part of their objective. From that point on, all security-related political actions are influenced by terrorism and the fear that it caused.

How does that relate to Bill S-7? The purpose of this bill is to grant the government extraordinary powers with respect to terrorism. Those powers are not justified by the threat level or by Canadian society's values respecting civil rights and freedoms, particularly since the Criminal Code contains a series of sections on terrorism and security.

As I mentioned, Bill S-7 is the most recent in a series of anti-terrorism legislative measures introduced since Bill C-36 was tabled in 2001. In this bill, the provisions respecting preventive arrests and recognizance with conditions, two provisions included in the bill, were subject to a sunset clause that expired in February 2007. And there was a reason why that type of provision was inserted. It was that the House had serious concerns, including the possibility that those provisions might be abused.

When the House revised the Anti-terrorism Act, we saw that there had been no investigative hearings or situations requiring recognizance with conditions. The Conservatives wanted to renew the bill in 2007, but they needed the consent of the House, which they fortunately did not obtain. The House decided not to renew those provisions. In fact, only one investigative hearing has been held since 2007, in the context of the Air India attack, and that produced no conclusive results.

And now the government is back with its phoney majority to pass a bill that the House previously rejected because it ran counter to Canadian values. It has also not bothered to include all the recommendations of the Subcommittee on the Review of the Anti-terrorism Act. It selected only what suited it.

What is the rush? Why are these measures suddenly necessary? They expired nearly six years ago, and the act has never been used for this purpose. Naturally, the Conservatives' response to these questions is that just because these measures have not previously been used does not mean they are unnecessary. They will use the ticking time bomb argument and offer all kinds of Jack Bauer-style scenarios.

I will briefly describe those two measures to put this bill in context and sum up what is stated in section 83.28 of the Criminal Code concerning investigative hearings.

A peace officer may, with the prior consent of the attorney general, apply to a provincial judge for an order that any individual who might have information concerning a terrorist act appear before a judge. If the order is made, the person must attend for an examination, answer all questions and bring with him anything he has in his possession relating to the order. Investigative hearings are used to obtain information, not to prosecute individuals. Accordingly, the answers given at one of these hearings may not be used against an individual in criminal proceedings, except in the case of prosecutions for perjury or the giving of contradictory evidence.

Section 83.3 of the Criminal Code deals with preventive arrest under the heading “Recognizance with Conditions”. That section is formulated to include preventive detention. A peace officer may arrest a person without warrant if he believes it is necessary in order to prevent a terrorist attack. The individual who is detained must then be taken before a provincial judge within 24 hours after being detained or as soon as possible, to show cause for the detention. The peace officer must then apply to a provincial judge, with the prior consent of the attorney general, to order that the person appear before a judge to determine whether it is necessary that the person be required to comply with certain specific conditions.

If a judge finds that the person must enter into a recognizance, the person will have to undertake to keep the peace and abide by other conditions, such as giving up control of his firearms for a period of up to 12 months. If the person refuses, he may be committed to prison for a term not exceeding 12 months.

As parliamentarians, the question we have to debate this afternoon is whether the provisions set out in Bill S-7 are necessary and appropriate to protect the safety of Canadians. During the first hour of debate, my colleague from Toronto—Danforth asked the Parliamentary Secretary to the Minister of Justice whether there had been any testimony at the Senate hearings in support of reinstating the provisions set out in this bill. In her answer, the parliamentary secretary did not refer to any such testimony.

The reality is that in police investigations since 2007, terrorist conspiracies have been dismantled without having to use any of the provisions set out in Bill S-7, nor did those investigations call for any extraordinary powers to be granted. Whether in the case of Khawaja, the “Toronto 18” or, more recently, the four people in the Toronto region, none of the provisions of Bill S-7 have been necessary.

I think this is conclusive proof that our police forces have the tools they need to protect the Canadian public. We have to continue to support our public safety officers so they are able to keep doing the good job they have done to date.

We will be opposing this bill because it is a completely ineffective way to combat terrorism and because it infringes our most fundamental rights and freedoms. This bill demonstrates the Conservatives’ total failure to grasp the connection between security and liberty.

The way the provisions of the bill are written could have serious consequences for law-abiding people. Bill S-7 would make individuals who have never been charged with a terrorist act liable to imprisonment for as long as 12 months, or make them subject to strict conditions of release.

The provisions of this bill could be invoked to target individuals participating in activities such as demonstrations or acts of dissent that have nothing to do with any reasonable definition of terrorism. Is the government aware of that or is it knowingly doing this?

The Canadian Council on American-Islamic Relations has raised an interesting situation I would like to share with my colleagues. It says that it is still unclear how the distinction will be made between acts associated with terrorism and other criminal acts. For example, the recent firebombing of a Royal Bank branch in Ottawa, just before the G20 summit, was treated as criminal arson, and so no charge was laid under the anti-terrorism provisions. However, the people who committed that crime could have been charged with terrorism.

Need I remind my Conservative colleagues of who Maher Arar and Mr. Almalki are? They are Canadian citizens who were detained, deported and tortured because we had falsely accused them of terrorist activities.

Is this the kind of policy that this government wants to adopt? Regressive, outdated policies? The Conservatives need to listen to Canadians and perhaps relearn our basic Canadian values, for they seem to have forgotten them.

This bill applies to people who have not committed any terrorist acts per se. Also, in order to now justify all of the tools available to national security agents and for any strategic issues, there are several forms of terrorism and as many tools that can be used depending on the kind of terrorism—environmental, economic, religious, nationalist, and so on.

The recently released anti-terrorism strategy is proof that this government is targeting broader groups. That document gives examples of terrorist groups and includes things like occupy and environmental groups. The government has said on a number of occasions that environmental groups are extremists, perhaps even terrorists. That is why I think the Canadian Council on American-Islamic Relations is an interesting example, since it demonstrates that the application of these anti-terrorism measures will affect everyone differently.

This is not the best way to combat terrorism. The best way to fight terrorism is not by passing extraordinary legislative measures like the ones proposed in this bill, but rather to collect information, and that is the job of police forces.

The existing Criminal Code provisions are more than adequate to investigate people who engage in terrorist activities or to detain someone who poses an immediate and credible threat to Canadians. The Conservatives know this, but they want to prove that they are tough on crime, even at the expense of our individual rights and freedoms.

Neither I nor any NDP member can support this bill.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I am pleased to rise in this House today to speak about terrorism. As everyone is aware, it is an extremely important issue. Terrorism is a very complex and also quite a modern scourge that has afflicted the world for the past 50 years.

Before September 11, 2001, North Americans regarded terrorism primarily as someone else's problem. During the 1970s and 1980s, we watched what happened from time to time in Europe, the Middle East or Asia, on other continents primarily, and we thought we were immune to terrorism. Even when the horrible terrorist act happened in Oklahoma City, in the United States, for us it felt a little bit surreal and random. We told ourselves it was the act of a half-wit, a lunatic, an extremist who was not in touch with the real world; we told ourselves it was a one-time act. We did not expect this sort of thing ever to happen again.

Here in Canada, we thought it was perhaps also because in the United States, there were people with extremist opinions, and we thought that Canada was in many ways a more moderate country, a country that had no history of violence or political extremism.

The events of September 11 totally changed our perspective, which was rather simplistic and perhaps a little naïve. On September 11, the people of North America suffered a massive and profound crisis of conscience. Suddenly, we became aware in a way that deeply transformed us both individually and as a society. For the first time, we understood what it was to be the target of international terrorists and to experience a terrorist act, in broad daylight, in our own backyard.

We understood how the threat of terrorism is real for us as well, and no less real than it is for those living in countries where, so often in the past, we have seen terrorist acts, unfortunately. As I mentioned at the beginning of my speech, it was often something that affected Europe or the Middle East more than North America. We learned that it is not solely someone else's problem and that we must also protect ourselves, by tightening and strengthening our legislation and our public safety infrastructure to defend against terrorism.

I would like to take this opportunity to point out that the Conservative government does not have a monopoly on concern for public safety, despite the image that it has so carefully cultivated over the past few years. In other words, the Conservatives are not any more concerned about the safety of Canadians than are the other parties in this House. They are not more fiercely opposed to terrorism than are the other parties in this House. This needs to be said.

Let us take the example of the bill passed by this House in 2001, before I was elected and before many of the other members here were elected. I am talking of course about Canada's Anti-terrorism Act, which was passed by a Liberal government. Bill S-7, which we are debating in this House today, can be seen as an amendment to Canada's Anti-terrorism Act.

The Chrétien government’s Anti-terrorism Act added new provisions to the Criminal Code, in particular part II.1 and sections 83.01 to 83.33, which specifically covered terrorism offences and made the following activities crimes: collecting property for a terrorism offence or participating in terrorist activities; facilitating terrorist activities; and instructing to carry out terrorist activities.

This means that the bulk of the work of updating the Canadian criminal justice system to reflect the new terrorist threats was done in 2001 by a Liberal government. It is worth pointing this out. As I said, when we listen to this government, we often get the impression that those on the other side of the House are the only ones who worry about the safety of Canadians, and no other government before them has done anything to try to protect the Canadian public better against terrorist acts.

The 2001 act introduced two specific provisions that my colleagues in the other parties referred to earlier, and it is worth reiterating them. The first provision allowed for investigative hearings: it allowed a person suspected of having information about a terrorism offence that has been or will be committed to be compelled to appear before a judge and answer questions where the answers would make it possible to intercept a terrorist act or find the person or persons guilty of committing a terrorist act.

The second provision of the 2001 Anti-terrorism Act gave authorities the power to require a recognizance with conditions, allowing a peace officer who believes that a terrorist act will be committed and who believes that the imposition of a recognizance with conditions will prevent that act, to bring the person before a judge within 24 hours so that a show cause hearing can be held to determine whether the person should be released or should be detained longer in certain circumstances.

Of course those new provisions were controversial. Naturally, they generated debate and prompted questions relating to the principles in the Canadian Constitution, and more specifically in the Canadian Charter of Rights and Freedoms. It is to be expected, in a democratic society, that questions will be raised when measures of that nature, relatively harsh as they in fact were, are introduced.

In response to the concerns expressed both by the Canadian public and by legal experts, who were very knowledgeable about the Constitution and concerned that it be adhered to, the Liberal government of the day came up with two quite creative responses. It included what is called a sunset clause in the Anti-terrorism Act, which provided that the two provisions I have just described would cease to be in force five years after the act was enacted, along with a clause requiring that the law be reviewed by Parliament three years after it received royal assent.

The sunset clause idea is well worth considering. The two contexts are different, but this clause does bear some similarity to the notwithstanding provision in the Canadian Constitution. In other words, this is not something that can be used indefinitely; its existence must be justified periodically. This is quite a creative response to a thorny and difficult situation in terms of protecting the rights of Canadians under the Canadian Charter of Rights and Freedoms.

That is why the Liberal government included this sunset clause—so that these two provisions would come to an end after five years. As we know, the Conservative government tried to extend them, unsuccessfully, in 2007 and it lost a vote on this matter, as other members have pointed out.

At the time, the opposition voted against extending those two provisions, because the government had not taken into account the recommendations made by the House of Commons subcommittee that had thoroughly scrutinized those provisions.

I would like to quote the House of Commons legislative summary regarding the situation at the time of the vote:

For example, the subcommittee had also recommended that the revised investigative hearing provision limit its scope to deal only with imminent terrorism offences, and that section 83.28(2) be amended to make it clear that a peace officer must have reasonable grounds to believe that a terrorism offence will be committed before making an ex parte application and to make it explicitly clear that anything done under sections 83.28 and 83.29 is a “proceeding” under the code.

We also wanted to ensure that these provisions would apply only to anticipated terrorist activity. The Conservative government failed to take those two recommendations into account in 2007 when it wanted to extend those two provisions of the Anti-terrorism Act. This brings us to Bill S-7, which reintroduces the two provisions that disappeared after five years, as set out by the legislation in 2001.

From what I understand, once again, this government still has not taken into account the recommendations made by the House subcommittee that had expressed some reservations. I just read one a moment ago. So we are no further ahead in that regard.

I think this government needs to be a little more open to what Parliament recommends. We will have an opportunity to discuss this in committee.

It is important to point out that these two provisions, which are rather controversial—I am talking about investigative hearings and recognizance with conditions—already exist in Canadian law. Yes, they are controversial, but these principles can already be found in Canadian legislation.

For example, laws concerning public inquiries, competition, income tax and mutual legal assistance in criminal law matters provide for procedures similar to investigative hearings. They are investigative procedures that do not seek to determine criminal liability. Furthermore, criminal law provides for peace bonds similar to recognizance with conditions, which are imposed to prevent anticipated violent offences, sexual offences and criminal organization offences. The principle of investigative hearings already exists, to some extent, in Canadian law.

I must also point out that, in my opinion, these two measures, investigative hearings and recognizance with conditions, respect the charter. For example, in 2004, the Supreme Court of Canada ruled that investigative hearings were constitutional and stated that they must generally take place in public. There must be as much transparency as possible in the circumstances.

The court handed down this ruling in connection with an application for an investigative hearing order for the Air India investigation. The person who was the subject of the order challenged it under the charter, citing the right to remain silent and protection against self-incrimination. The B.C. Supreme Court held that the legislative provision was valid and that the witness's rights could be protected through conditions in the order.

The Supreme Court of Canada granted leave to appeal based on section 40 of the Supreme Court Act and in Re: Application under s. 83.28 of the Criminal Code, concluded that the investigative hearing was constitutional.

Mr. Speaker, how much time do I have left?

Strengthening Aviation Security Act

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, there are more and more questions about the bill. I agree with the member that it has been shrouded in secrecy. When we were here in December we were under this cloud that the bill had to go through. There was a deadline and a lot of pressure on all the parties to rush it through. That has been a very familiar story. I remember the original anti-terrorism bill, Bill C-36, which had to be rushed through, it had to be done. Here we are years later and we still see this kind of legislation come forward without transparency.

My understanding is that the Government of Mexico at this point has not approved the legislation that flows from these secret agreements and secret negotiations.

I think it begs the question, if we were told that this was essential and everything would come to a screeching halt if it did not go through, which obviously did not happen, what really is going on here? Are these agreements necessary? Why are they not transparent? Why does the bill have to come forward at this time?

Again, there is no evidence that shows anything to compel us to do this. On the contrary, the evidence is that the bill is going to create enormous problems in our society and would have a long, far-reaching impact on civil society. Therefore, we should be saying no.

Combating Terrorism Act

[Megan Leslie, NDP, Halifax, NS]

Madam Speaker, it is almost a cliché to say that the events of September 11, 2001 changed the world, but Professor Wayne MacKay, a professor at Dalhousie law school, wrote in a article called “Human Rights in the Global Village” that this was only partly true because:

—terrorism has been an international force for many years. However, on September 11, 2001 the reality of terrorism was visited on the heartland of the United States and it became clear to all that even a super power was vulnerable to the forces of terrorism afoot in the world. The world may not really have changed as a result of “9/11”, but the way that the United States, and by association Canada, approach the world did. We have become more cautious and national security has become a value that trumps most other values--including human rights.

Like most people, I have a very vivid recollection of where I was when the planes hit the Twin Towers in New York City. I was starting my first week at Dalhousie law school and was in the student lounge, which was packed with other students. We were all utterly silent.

I am not really one for numbers. I can never remember if it is Bill C-11 or Bill C-392 or Bill C-9 in the 40th Parliament or the 38th Parliament, but I remember Bill C-36, the Anti-terrorism Act that was introduced in 2001. I remember it like I remember 9/11 because even though I was a fresh-faced law student eager to learn about this great big concept called the law, a concept based on human rights, justice and fundamental freedoms, I still knew that Bill C-36 was a departure from that base of justice and human rights.

As first-year law students, a group of us started a student association called SALSA, the Social Activist Law Student Association. SALSA was and continues to be, and it is still at Dalhousie law school, the coming together of like-minded students who are interested in seeking justice, environmental, social and economic justice. We want to see it realized in our communities.

When Bill C-36 was introduced in 2001, we did not know what to do, but we knew we had to do something. Therefore, we organized a panel of human rights and justice criminal law experts to talk about the bill and educate us on what was exactly going on and what the bill was trying to accomplish. Some of us wrote letters to the editor, others wrote op eds and we wrote to our members of Parliament.

There was a growing consensus then that the dangers of Bill C-36 were that it would trump our human rights and civil liberties in the face of national security and allow for government to act in the shadows shrouded in mystery and secrecy. However, the one thing everybody hung their hats on was the fact that there was a sunset clause in the act. That was the first time I had even heard the term “sunset clause”. The idea was that after a period of time, a review of the legislation would automatically be triggered by Parliament.

The current bill, Bill C-17, proposes amendments to the Criminal Code that would reinstate provisions from the Anti-terrorism Act of 2001 that expired under that very sunset clause in 2007. Very specifically, the bill relates to investigative hearings whereby individuals who may have information about a terrorism offence, whether it is in the past or the future, can be compelled to attend a hearing and answer questions. No one attending a hearing can refuse to answer a question on the grounds of self-incrimination, which is quite different than if someone is in a court facing Criminal Code charges.

The other issue is preventive arrest whereby individuals can be arrested without a warrant in order to prevent them from carrying out a terrorist act. It is detention based on what someone might do. The arrested individual has to be brought before a judge within 24 hours, which is fair, or as soon as feasible and the judge determines whether that individual can be released unconditionally or with certain conditions for up to 12 months. Also, if those conditions are refused, the person can be imprisoned for up to 12 months.

International human rights and domestic human rights are increasingly related when we look at the global village of today. What we do in Canada affects the greater and wider world and our actions have worldwide implications. Similarly, actions outside of Canada's borders can and do have an impact here.

As Greg Walton wrote in a piece for the International Centre for Human Rights and Democratic Development:

Canada has an obligation to provide a model; we need to stand straight lest we cast a crooked shadow.

After my graduation from law school, I had the opportunity to work with Professor Wayne MacKay doing research and assisting with his preparation for the lecture that I spoke about, as well as his appearance before the Senate committee actually reviewing the anti-terrorism legislation back in 2005. While I was working with him, one topic of conversation that we kept coming back to was the idea of racial profiling.

Racial profiling has been defined by the Ontario Human Rights Commission, which is a really good definition, as follows:

...any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.

Professor MacKay pointed out that before September 11 the issue of racial profiling was really about driving while black. A stark example of this comes from my home province of Nova Scotia with the story of Kirk Johnson, a boxer whose case appeared before the Nova Scotia Human Rights Tribunal. When Mr. Johnson was repeatedly, over years, pulled over by police in his expensive car with Texas licence plates, the tribunal found that actually race was a determining factor in the police's decision to pull him over again and again.

Since September 11, that phrase, driving while black, has actually been recoined as flying while Arab. Profiling is broader than just race now. It takes into account religion, culture and even ideology. Concerns about profiling based on race, culture or religion are real but they are accentuated by threats of terror. There is an alarming tendency to paint an entire group with one brush when in fact it is the act of individuals rather than religious or ethnic groups that are at fault.

We know about the uproar in the United States with the proposed building of a mosque six blocks from the site of the World Trade Centre. We think that kind of thing certainly could not happen here but here at home, on the day after the arrests of 17 terrorist suspects in Ontario, windows were broken at an Islamic mosque in Toronto. It can happen here and it does happen here.

At the Senate committee hearings in 2005 actually reviewing the Anti-terrorism Act, Canadian Muslim and Arab groups argued that if law enforcement agents were going to use profiling in their investigations, profiling needed to be based on behaviour, not ethnicity or religion. However, in a Globe and Mail article, a member of this House on the government side cited a different opinion when he said, “(y)ou don't send the anti-terrorist squad to investigate the Amish or the Lutheran ladies. You go where you think the risk is”.

Within the context of Bill C-17, we need to think about the real danger of imposing a sentence. I know it is not a sentence in the strict criminal terms of what a sentence is, but it is a 12-month sentence in prison based on something someone thinks a person might do. We can layer that with the fact that we know profiling is happening in Canada.

We know the Criminal Code works. We know there are provisions in the Criminal Code for a wide range of charges related to anti-terrorism. It is working. How do we know that? It is because these proposed sections that we are talking about in Bill C-17 have never been used. Therefore, why would we take that risk?

We have anti-terrorism legislation that has proven to be useful. The reason that these two provisions have never been used and were not renewed at the end of the sunset clauses is that they did not meet that balance between national security and human rights and civil liberties. There is a reason they expired with the sunset clause and there is absolutely no reason for us to bring them back to life today.

Justice for Victims of Terrorism Act

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, it has been said that the world changed on September 11. I do not know whether the world changed or whether a darker side of our universe was somehow exposed. However, what is clear is that September 11 was a transformative event, impacting on our psyches as well as on our politics, on our priorities as well as on our purposes.

Eight years ago, the reach of global terrorism was illustrated, tragically, more vividly, viscerally and violently to Canadians than ever before. Twenty-four Canadian families lost loved ones in the 9/11 attacks, reminding us also of the horror of Air India years earlier.

Amid the horror and outrage, our government reacted and enacted legislation in the form of Bill C-36. Accordingly, while the threat of terrorism or any legislative response to it was not even on the parliamentary or political radar screen before September 11, it dominated the discourse thereafter and since the enactment of the Anti-terrorism Act some three months after 9/11 itself.

Another measure is now before Parliament, the government's Bill C-35, which has the potential to alter Canada's approach to terrorism as well. However, I want to suggest that the private member's bill that I introduced on behalf of my party is a more dramatic and correct approach in order to provide justice and redress by way of civil remedy to victims of terror while at the same time effectively deterring the states, perpetrators and sponsors of terrorism.

What we have to understand, and this applies both to the government legislation and our own, and here I agree with the generic premise of the government legislation respecting the need to amend the State Immunity Act, for while acts of terrorism are clearly illegal under international law, customary international law has historically given states immunity from suit in domestic courts.

Therefore, we have the situation where Canada's State Immunity Act, in accordance with this basic principle of customary international law, affirmed the principle that a foreign state is immune from jurisdiction in any court in Canada with certain specific exceptions.

Ironically, there is an exception for commercial activity but there is not an exception for terrorist activity. We have a situation where, simply put, our State Immunity Act unconscionably favours foreign states that aid and abet terrorists over Canadians who are harmed by that terror. It removes impugnity with respect to commercial transactions but it retains immunity with respect to terrorist actions. It is in that context that I introduced a private member's bill to rectify this inversion of rights and remedy, this inversion of law and morality.

Under this legislation, when a state engages in the sponsorship of terrorism, it deserves no protection from our federal government. When a state supports a terrorist group that targets Canadians, our Canadian tax dollars should not be spent on defending that state's immunity from liability.

The private member's bill that I introduced sets forth in its preamble the raison d'être for this legislation. I would acknowledge that this raison d'être may well be the objective of the government's legislation and, indeed, features of its preamble in its legislation very much resemble the features in my private member's bill.

What I will seek to show is, while we both may have the same objectives in mind, regrettably, the Conservative legislation does not secure at the end of the day redress for victims of terror, nor does it deter the state perpetrators of terror because the listing framework set forth in the government's legislation undermines the very objectives in the legislation itself, as I will show.

However, let me turn now to our preamble in Bill C-408, which sets for the raison d'être for the legislation. It speaks clearly to the United Nations Security Council resolution 1373, enacted in the aftermath of 2001, and subsequent UN Security Council resolutions thereafter. It states:

—reaffirms that acts of international terrorism constitute a threat to international peace and security, and reaffirms the need to combat by all means—

As our preamble has put it. It continues:

—in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts;

It states that:

—the prohibition against terrorism, as well as the prevention, repression and elimination of terrorism, are peremptory norms of international law—

That is what I refer to as jus cogens.

—accepted and recognized by the international community of States as a whole as norms from which no derogation is possible;

—the support and financing of terrorism...are criminal acts under international law, not sovereign acts for which a state is entitled to immunity;

—the victims of terrorist acts include the individuals who are physically, emotionally or psychologically injured by the terrorist acts, as well as their family members;

—hundreds of Canadians have been murdered or injured in terrorist attacks;

—the Government of Canada reported to the Security Council that fighting terrorism is...the highest priority for the Government of Canada;

I close, with respect to our preamble, and I acknowledge that many of these same principles are set forth in the preamble of the government legislation. As to objective, there may well be a shared objective, but as to the achievement of that objective, the legislations then diverge, and I will show in a few moments exactly how that divergence undermines the very purpose of the legislation of the government, but I will suggest that this purpose is secured by our private member's legislation.

Finally the preamble states that:

—it is in the public interest to enable plaintiffs to bring civil lawsuits against terrorists and their sponsors, which will have the effect of impairing the [function] of terrorist groups, thereby deterring and preventing future [terrorist] attacks;

Admittedly, and this needs to be said, prior to the introduction of Bill C-35, or the introduction of my private member's bill, victims of terrorist acts, arguably, had the capacity to sue individual terrorists, or terrorist entities, or groups, for loss or damage suffered, using Canadian civil responsibility or tort principles in that regard. In fact, if one looked into the situation, there indeed have been civil suits previously in this regard that in fact address the sponsors themselves.

Also, in that regard, at first blush, there may be some concern therefore that while the existing legislation has allowed, under civil law, delictual law in Quebec or the common law of tort, remedies to be taken, this legislation, either that proposed by the government or that proposed by us, raises some constitutional concerns because it attaches civil remedies to federal legislation when such civil remedies are normally thought to be matters within a provincial jurisdiction.

However, as the constitutional law will show, Parliament can establish provisions related to civil redress if they are established within the context of broader regulatory or administrative schemes, which are themselves within Parliament's legislative jurisdiction under the constitution act or, more specific, if they are under the federal jurisdiction in matters related to criminal law, and certainly anti-terrorism law, in its pith and substance, is not only matters related to criminal law but matters of national concern, matters that the courts have held are within the peace order and good government clause and that the civil remedies are, in that sense, ancillary to a power that already exists within a federal jurisdiction.

Other concerns have been raised, which I will very quickly refer to because they have risen in debate this morning and they will arise in discussions before the committee. It might be useful to address them very quickly.

Apart from the constitutional issue, a reference has been made by my hon. colleague from the New Democratic Party on the matter that this legislation gives a right of civil remedy to victims of terrorism, but does not give a right of civil remedy to victims of torture.

That is correct, but the reason for this is not that victims of torture do not have a right to civil remedy. They do. I could even give notice now that I will be introducing legislation that will also provide a civil remedy for victims of torture in the same way that my private member's bill purports to give a civil remedy to victims of terror. However, the issues from a legal point of view, as I will point out at the time of the introduction of my private member's bill, are different in terms of the characterization of the issues, the nature of the remedy, the character of the perpetrator and the like and one could not comingle the two in this legislation because one would do a disservice to both.

Another concern that has been raised is the fact that diplomatic concerns may arise with respect to this legislation and this leads to the final concern and that is the matter of listing of legislation. Here we come to the core of the differences between our legislation.

Simply put, the Conservative legislation takes as its basic premise that state immunity should still operate. In other words, and this is crucial, victims of terrorism under the government legislation will be unable to sue a country that should be held responsible unless the Canadian government decides it should be held responsible. Therefore, whether a foreign state is listed will always be the subject of political negotiations between government. It will always be an issue of executive discretion. It will always have an element of arbitrariness about it. It will take away the basic right of civil remedy from the victims themselves.

In other words, after studying the government's proposed legislation and while I may share its purpose, and I am not questioning the intention, I regard it as necessary in terms of justice for victims of terrorism to put before the House a bill that properly addresses the evil of transnational terrorism, that properly targets the impunity of those states that perpetrate, sponsor or finance acts of terrorism and that properly allows Canadian victims of terrorism to seek justice.

We have an opportunity to provide redress for Canadian victims anchored in principles of domestic and international law. Regrettably, the government's bill handcuffs the victims of terrorism by subjecting them to a political list of countries that the government chooses to target. In this the government bill fails victims of terrorism and places politics above justice.

Simply put, the government's bill takes as its basic premise that state immunity should still operate, which undermines its own purpose in the legislation even when a state is charged with supporting terrorism. Only those states that the government chooses to single out will be held accountable. The government's legislation politicizes the legislation as victims of terrorism have themselves noticed.

Our legislation, my private member's bill's premise on the foundational principle that sponsors of terrorism do not deserve to be shielded by Canadian law and thus state immunity should not continue to operate for such perpetrators of terrorism as it will continue to operate under the government bill.

I move to a close, referring to the words of Victor Comras, which were invoked by the government in order to support its legislation, a former senior official in the U.S. state department who testified before a Senate Standing Committee for Legal and Constitutional Affairs, he explained how maintaining a list of designated countries ended up undermining the U.S. legislation. Therefore, the authority that the Conservatives rely on is Mr. Victor Comras, who came before our standing committee in the Senate and said, “don't go there, don't enact that legislation”. His exact words were, “If we had to do it over again, I have no doubt we would have done it without a list”.

Then he concluded in his testimony here in Canada, “Please learn from our lesson...do not make the same mistake”.

The government, which is invoking Mr. Victor Comras as authority for its legislation, is making the exact mistake that Mr. Comras warned against. I invite the government to in fact respond to Mr. Comras, whom itself has quoted.

While we share the basic principle with the government that victims of terror must have a civil remedy with respect to deterring acts of terror, with respect to providing justice for victims of terror, with respect to giving them standing before the courts to confront the terrorist perpetrators and the like and with respect to removing any immunity from civil liability before Canadian courts, that will only be accomplished if we adopt the private member's bill or if the government is responsive and amends its legislation so as to include the basic principled approach to providing civil remedies for victims of terror that is contained in our private member's bill.

Then we can go forward in common cause, the government and the opposition, to provide victims of terror with a civil remedy that will effectively deter terrorism, that will effectively hold terrorists liable, that will effectively remove immunity from such terrorists, their sponsors, their agents and their like and that will give and secure justice as it must be done for victims of terror.

Criminal Code

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am honoured to rise today to participate in the second reading debate of Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

Bill S-3 was first introduced last October. The Special Committee on the Anti-terrorism Act reviewed the bill and made three amendments. The bill was passed by the Senate on March 6, 2008.

In order to ensure that all due consideration be given to this bill, it is important that we fully consider the bill, its background and the importance of this bill to Canada's law enforcement agencies. This is what I will be focusing my remarks on.

First, I will provide an overview of the bill. This bill seeks to reinstate two important powers that were created by the Anti-terrorism Act but which sunsetted on March 1, 2007. These powers are known as the investigative hearing and recognizance with conditions.

Briefly and simply put, the investigative hearing is a tool that provides the opportunity to have a peace officer bring a person before a judge to be questioned in relation to a terrorism offence, past or future. Its purpose is to enable law enforcement to investigate terrorism offences that have either been committed or that will be committed. Thus, one of its main purposes, although not its sole purpose, is to prevent the commission of a terrorism offence. All of us in the House recognize that is an extremely important objective.

The recognizance with conditions is a tool that allows a peace officer to bring a person before a judge who, after being presented with the proper evidence, may order the person to enter into a recognizance with certain conditions to prevent the commission of a terrorist activity.

Let me provide the background information that led to these provisions sunsetting in 2007.

As everyone in the House is well aware, the Anti-terrorism Act, or Bill C-36, received royal assent on December 18, 2001. Before the Anti-terrorism Act became law, Parliament heard from many witnesses on a number of issues. One of these issues had to do with the two powers that are now contained in this bill.

Witnesses voiced concern over the creation of these new powers which were previously unknown in Canadian criminal law and which appeared to constitute a threat to individual rights and liberties protected by the Canadian Charter of Rights and Freedoms. In view of those concerns, Parliament agreed to subject these powers to annual reporting requirements and a sunset clause.

In addition, section 145 of the act required that a committee or committees of Parliament begin a comprehensive review of the provisions and operations of the act within three years from the date that the Anti-terrorism Act received royal assent. Consequently, on December 9, 2004, a motion was adopted by the House of Commons authorizing the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to begin a review of the Anti-terrorism Act. Its Subcommittee on Public Safety and National Security began its review in February 2005. The Senate adopted a similar motion on December 13, 2004 establishing a special committee to undertake a separate review.

In late 2005, Parliament was dissolved and an election was called. The work of the committees was put on hold. When Parliament resumed in early 2006, the special Senate committee was authorized to continue its review. In the House of Commons, a new Subcommittee on the Review of the Anti-terrorism Act of the House of Commons Standing Committee on Public Safety and National Security began its review of the Anti-terrorism Act.

Both committees sought and received extensions to table their final reports on the review of the Anti-terrorism Act. However, in October 2006, the House of Commons subcommittee released an interim report that addressed exclusively the use of the provisions that we are discussing today. It recommended a five year extension of these provisions, subject to a further review. However, it also recommended that the investigative hearing provision be limited to the investigation of imminent terrorist offences, not past ones. In addition, some technical amendments were also proposed.

Although this report was released in October 2006, the work of the special committee in the Senate was still ongoing. The statutory provision allowing for the renewal of these provisions by passage of a resolution through Parliament did not allow for amendments to be made to the provisions. In effect, time was running out.

In the fall of 2006 and the spring of 2007, the government thus moved toward presenting a resolution to have Parliament extend both provisions for a period of three years. On February 27, 2007 the House of Commons voted 159 to 124 against the resolution that was introduced in the House, and as a result, both provisions expired on March 1, 2007.

It is interesting to note that while this was happening, on February 22, 2007, the special Senate committee released its main report on its review of the Anti-terrorism Act. Two of its recommendations related to these provisions.

First, as was the case for the House of Commons subcommittee, it recommended these provisions be extended for a period of three years, subject to the possibility of a further extension, following resolutions passed by both houses of Parliament. Second, it recommended that the annual reporting requirements also require the Attorney General of Canada to include a clear statement, an explanation, indicating whether or not the provisions remain warranted.

One may wonder why the House voted against the renewal of these provisions when both committees reviewing the Anti-terrorism Act had recommended their extension. There were essentially three reasons given during the House debates.

One, the proposed resolution did not take into consideration the recommendations that had been made by the House of Commons subcommittee, nor the ones made by the Senate special committee.

Two, there were suggestions that these provisions were not necessary, given other powers that existed and the fact that they were rarely used.

Three, the government did not respond in a comprehensive manner to all the recommendations made by both committees that reviewed the Anti-terrorism Act.

As I mentioned, these were the three reasons or excuses why members did not vote in favour of this issue.

The issue of human rights safeguards was also raised. With regard to the first question, as I indicated earlier, in the spring of 2007 there was no time for the government to address the recommendations made by the committees reviewing the Anti-terrorism Act, as the deadline for the renewal of the provisions was too close to allow for a modified version of these powers.

Since that time the government has had time to give full consideration to the particular recommendations in relation to the investigative hearing and recognizance with conditions that were made by the committees, and has had time to implement a large number of them in this legislation.

As for the second argument, allow me, Mr. Speaker, to illustrate why it is important that these provisions be brought back through this piece of legislation.

The current absence of the investigative hearing and recognizance powers has created a serious gap in our law. I wish I could say it were not so, but unfortunately, Canada continues to be exposed to the threat of terrorism and there are no signs that this is about to stop. All of us, being honest with ourselves, know that is indeed the case.

As we all know, since the introduction of the Anti-terrorism Act in 2001, there have been horrific attacks on innocent civilians in Colombia, India, Indonesia, Iraq, Israel, Pakistan, Peru, the Philippines, the Russian Federation, Saudi Arabia, Spain, Tunisia, Turkey and the United Kingdom.

Canada and Canadians have been largely identified by leaders of al-Qaeda as targets for future terrorist attacks. Recently, a criminal trial has begun in the United Kingdom, where several persons have been charged with plotting to blow up planes crossing the Atlantic, including some Air Canada flights.

In its 2006-07 public report, CSIS confirms that terrorism remains a threat to Canada and to Canadians and indicates that the threat of terrorism from extremists posed the most immediate danger to Canada and Canadians in 2006 and 2007.

Given this obvious threat, there is no question that police and prosecutors need the powers to investigate terrorism and to disrupt terrorist activity. Representatives of our law enforcement agencies appeared before the committees reviewing the Anti-terrorism Act and indicated clearly that they needed these tools.

For all these reasons, the government believes that it is necessary to reinstate these provisions.

We must not forget that these tools are unique. There are no other powers in the Criminal Code that do what the investigative hearing and recognizance with conditions do.

Today the efforts of terrorist groups are not abating. Terrorists are displaying increasing sophistication and the ability to use diverse technologies to further their deadly activities.

To combat terrorism, law enforcement must be able to investigate effectively individuals and groups who may pose a threat to the safety and security of Canadians.

For these reasons, I ask all members to give serious consideration to the following notorious facts.

One, terrorism is a very serious and very present threat in Canada. Two, and I think this is something we can all agree on, it is best to prevent terrorist activity and not wait to sift through its aftermath. I am going to repeat that one. It is best to prevent terrorist activity rather than sift through its aftermath. Three, the nature of terrorist activity is such that it must be disrupted at the preparatory stage rather than reacting in its aftermath. Important tools that allow disruption at this stage include the tools we are proposing to reinstate through Bill S-3.

The government is convinced of the necessity to reinstate the provisions that are contained in this bill. Our law enforcement agencies need these tools and we have the responsibility to provide them so that they may be properly equipped to adequately respond to any potential terrorist threat.

Let me also respond to the third argument that has been raised to justify voting down the renewal of these provisions, the fact that the government did not respond in a comprehensive manner to all the recommendations made by both committees that reviewed the Anti-terrorism Act.

First, it was impossible at the time for the government to respond comprehensively to the reports of both committees, since when these provisions expired, the Senate committee had released its main report just a few days before and the House committee had not yet released its final report on its review of the Anti-terrorism Act.

Second, since the expiry of these original powers, the government has been engaged in efforts to respond comprehensively to the reports of both committees that reviewed the Anti-terrorism Act.

Earlier this year Parliament responded to the Supreme Court decision in Charkaoui by enacting Bill C-3, which creates a special advocate regime in the context of security certificates. The government also published last summer its response to the House of Commons subcommittee's final report on its review of the Anti-terrorism Act.

In short, this bill is part and parcel of an ongoing comprehensive approach to review the Anti-terrorism Act, an approach, I might add, that warrants full support by all members.

Tackling Violent Crime Act

[Réal Ménard, Bloc, Hochelaga, QC]

Youth court. I should have remembered him because of his baby face.

When Justice Bellehumeur was a member of the Bloc Québécois, he was particularly enterprising with regard to the provisions of the anti-gang legislation. He had support in caucus and we convinced the government. We started this battle in 1995 following a very sad incident that I will not forget as long as I live—the car bomb attack that led to the death of young Daniel Desrochers in the Hochelaga—Maisonneuve area.

It was at that point that the public took notice that the existing legislation did not have the teeth to attack organized crime. We were presented with a bill that created the new offence of gangsterism. It was too general. In fact, at the time, it required five individuals who, in the previous five years, had committed an offence carrying a sentence of more than five years. It was the three fives rule. It was too general and the police asked us to review the anti-gang law.

The first Bill C-95 was introduced in 1997 as a result of the Bloc Québécois' hard work. The provisions of the anti-gang law were revisited by Bill C-24 and Bill C-36. It was also the Bloc Québécois that worked on taking $1,000 bills out of circulation, thanks to the efforts of my colleague for Charlesbourg—Haute-Saint-Charles, Richard Marceau. This man has been a great inspiration in justice matters. He stands out in other areas as well, but in justice he has been a true inspiration.

Once again, it was the Bloc Québécois that introduced and ensured the adoption, on the last day of the 2004 parliamentary session, of a bill on reverse onus. The member for Abitibi—Témiscamingue likes bills that address specific issues and distrusts those that are generic.

The bill was very specific because it reversed the onus of proof for proceeds of crime acquired by criminal organizations.

When I hear the Minister of Justice showing a lack of respect by saying that the Bloc Québécois used stalling tactics, I do not see how that applies to me, and I am sure the other Bloc members feel the same way. It is the role of the opposition to keep pushing the government to be better. Obviously, every member of the Bloc leaves Parliament at the end of the day feeling exhausted, since there is so much work to do.

That said, crime is not on the rise; in general, it is going down. I think it would be ill-advised to hold a debate that does not take that fact into account. The Bloc Québécois has always been very concerned about mandatory minimum penalties.

Sure, they have always existed in the Criminal Code. But when we passed the bill to establish the firearms registry, back when Allan Rock was minister, we also decided to add 40 or so mandatory minimum penalties for offences involving firearms.

The hon. member for Berthier—Montcalm, with his characteristic insight, already had very serious reservations at the time. He relied on studies by criminologists, particularly at the University of Toronto, who concluded that there is no link between the availability of mandatory minimum sentences in the Criminal Code and the crime rate in a society, any more than there is a link between the incarceration rate and the crime rate in a society.

Consider, for example, the United States. The incarceration rate there is three times higher than Canada's, but the crime rate is seven times higher. Thus, it is not through reliance on incarceration that we will have a safer society.

Of course, the Bloc Québécois recognizes that incarceration must be used in certain situations. This is why we do not question the need to have certain provisions in the Criminal Code, such as section 753, which talks about dangerous offenders. A very serious offence must be involved in order for an individual to be a dangerous offender. An offender must be convicted of personal injury offences. An offender must present such a high a risk of recidivism that the court must be convinced that the person cannot control himself or herself or has difficulty controlling his or her impulses.

Regarding dangerous offenders, the older people among us—including some members of my caucus—will recall that, in the 1950s, they were referred to as “habitual criminals”. Perhaps some members remember this? Even my mother used this expression, although never about her own children.

I think I am out of time, but I would like to be able to start over again after question period.

Anti-terrorism Act

[Irwin Cotler, Liberal, 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.