An Act to amend the Criminal Code (criminal organizations) and to amend other Acts in consequence

This bill was last introduced in the 35th Parliament, 2nd Session, which ended in April 1997.


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Anti-terrorism ActOrders of the Day

February 26th, 2007 / 1 p.m.
See context


Réal Ménard Bloc Hochelaga, QC

Mr. Speaker, it is a great privilege for me to rise and speak to this motion. I must say that I feel rather ashamed. I was here in the House in 2001 when we had the debate. I remember very well all the questions raised by the hon. member for Laurier—Sainte-Marie, who was the opposition leader at the time, as well as those of our justice critic, Michel Bellehumeur, the hon. member for Berthier—Montcalm.

We were worried about a number of things. The first was the very definition of terrorism and a terrorist act. I do not want to return to all that because the Supreme Court did not rule on it. The other extremely important questions that we raised had to do with procedural fairness, the right to a full and complete defence, and how best to achieve a laudable objective. We need to remember the situation in 2001 and how concerned we were, especially in view of what had happened in the United States. We know how close the historical bonds have been between Canada and the United States, bonds that led a former Canadian Prime Minister to say of our relationship that geography made us neighbours but history made us friends.

We could not remain unmoved by the collapse of the twin towers and all the information pouring forth about terrorist networks, real or potential. I would like to thank the hon. member for Marc-Aurèle-Fortin, by the way, for all the vigilance he has shown.

The speeches we heard this morning are pretty amazing in some respects. I should say, first, that for me the Liberals and the Conservatives are the same. We need to remember what the Liberals were saying. The Bloc was very clear. Not that we were great seers or prophets, but we did anticipate a few things. Some provisions of the bill that was being introduced, Bill C-36, were obviously incompatible with the basic principles on which our justice system is built.

I remember very well the questions and comments made by the justice minister at the time. They were even more unacceptable in that she was a former professor of constitutional law who had written articles on legal guarantees and procedural fairness, which I had had occasion to read.

The Liberals and Conservatives were animated by a common desire to move as quickly as possible and respond to the emergency because the situation was indeed very worrisome.

I read the Supreme Court ruling from beginning to end. What the Supreme Court told us is that in a democracy, and in a system where the rule of law means something, the end never justifies the means. As parliamentarians, we must respect that. The Conservatives and the Liberals were of one mind; we realize, with hindsight, that their position does not stand up to our most basic principles of justice.

It is demagogy, to some extent, to rise this morning in this House and to make it seem as though there are those who are concerned about the safety of citizens and those who are not. All parliamentarians in this House are concerned about the safety of citizens. However, it may be that, in our work as parliamentarians, we have to propose measures that push the boundaries when it comes to how we perceive the evidence or how we see the process unfolding.

I was in this House when Bill C-95, the first anti-gang bill, was adopted in 1997.

The definition of a criminal organization then was: five individuals who, in the past five years, committed offences punishable by more than five years' imprisonment.

At that time, there was also a sense of urgency. However, I would never have thought about rising in this House and voting for this bill, which was to be revised by Bill C-24, if the principal condition of the law had been to deny the accused access to all the evidence. That is the problem with this bill. I am surprised that no government members have noted this fact.

We will have an opportunity to mention this: the Criminal Code does contain mechanisms for preventive detention. First, common law recognizes this principle and the Supreme Court has recognized it several times. We need not go very far. Section 495 of the Criminal Code—if my memory serves me correctly—allows a police officer to arrest, on reasonable grounds, a person he believes has committed or is about to commit an offence.

Later, of course, the individual will have a trial and can be represented. All legal guarantees will be offered and justice will be served the way it should be in an adversarial system, in other words, the public prosecution lays charges and provides evidence and the accused can defend himself or herself. Getting to the truth is what this confrontation should be all about. That is not what is being proposed in the antiterrorist provisions.

We are not against the fact that measures are needed. I am sure that the hon. member for Marc-Aurèle-Fortin never said anything of the sort. We acknowledge that some individuals may pose a threat to national security. It is true there are terrorist movements.

I remember attending lectures given by researchers from the Raoul Dandurand Chair in strategic and diplomatic studies. We know that terrorist movements have been at work and that they will be in the years to come. We are even told that the largest terrorist movements, which constitute the worst threat to the security of modern states, are those with religious motivations.

We know all that. We are not questioning the fact that in legislation, whether in the Immigration Act or in other legislation, a minister may be asked to review situations where individuals will have to be deemed threats to national security. We recognize that and we agree that in all modern countries, particularly in vast countries and countries where borders are porous, it is acceptable for these provisions to exist.

Nonetheless, there is something quite unbelievable in these provisions. The Supreme Court said that the way in which the antiterrorist provisions are set up, in their wording and the way the courts are called to interpret them, some procedural guarantees are being breached. I will come back to that.

This leads to the following question. Can these terrorist movements be dismantled by using the provisions in sections 83.27, 83.28, 83.29, and 83.3? Why have these provisions not been invoked? Logically speaking, just because they have not been invoked yet does not mean they will not be in the future, but this is nonetheless a measure of their immediate relevance.

Under the existing Criminal Code—as we were reminded—an individual can be arrested without a warrant. It even sets out that in individual can be brought before a judge, compelled to enter into a recognizance to keep the peace and prohibited from contacting certain individuals. This is set out in section 810 of the Criminal Code.

Section 465 even includes a provision that allows for the arrest of individuals on the basis of conspiracy alone and because there is a risk they will commit acts at a later date. It is not as though we are completely without any other legislative recourse, or as though there is nothing in our existing legislation.

Something is very troubling. While we may not agree on how our political system operates, we cannot deny that there is a recognized tradition of respect for human rights. This includes Diefenbaker's Canadian Bill of Rights, the Canadian Human Rights Act adopted in 1977 and, more recently, the Canadian Charter of Rights and Freedoms.

In the National Assembly, in 1982, at the time the Canadian Charter was debated, we did not agree on the management of linguistic rights. Nor did we agree on section 27 pertaining to the enhancement of multicultural heritage. We nevertheless recognize the charter as a tool for the protection of human rights, particularly for judicial guarantees, which, moreover, already exist and were already set out in the Quebec Charter of Human Rights and Freedoms. We recognize that it serves as a tool for the promotion and enhancement of human rights.

As legislators, how could we have let ourselves become distracted? The Bloc Québécois cannot be blamed because, based on the recommendation of the leader of the Bloc and our justice critic, we voted unanimously against BIll C-36.

Why did we vote against Bill C-36? Because we did not believe that an individual could receive a fair trial without access to the evidence, especially the most important pieces of evidence, the ones supporting the charges or leading to a guilty verdict. The Supreme Court spoke of “sensitive information”. That was the main problem with the proposed law.

I would like to quote what the Chief Justice of the Supreme Court said on page 54. A unanimous ruling is significant, after all. In a decision written by Madam Justice McLachlin, the court said:

I therefore conclude that the IRPA's procedure for determining whether a certificate is reasonable does not conform to the principles of fundamental justice as embodied in s. 7 of the Charter.

This is serious. Legislators should be very concerned about this paragraph. I have difficulty understanding the government's obstinate refusal to recognize the proposed law. Of course, the Conservatives were not responsible for creating it; the Liberals were.

I hope that all Parliamentarians in this House will acknowledge that things have been taken too far, that due process is not happening and that even though we have a general duty to protect our fellow citizens, we must have safe communities. Specifically, we must protect our fellow citizens from possible terrorist attacks.

The court will explain what it means by the “principles of fundamental justice” embodied in section 7. This section is well known to us all. It concerns life, liberty and security of the person. The Supreme Court will say that those rights cannot be interfered with. First and foremost, we must ensure an impartial hearing.

The Supreme Court considered the question of the evidence being introduced ex parte, that is, the judge reviews the evidence, but not in the presence of both parties, specifically, defence lawyers for the person named in the certificate.

Is it not troubling to know that a person who does not appear before the judge—a judge who has reviewed the evidence, including the sensitive information—cannot refute that information, cannot correct the facts, cannot explain them, cannot respond to the quality of the information provided and the credibility of the informants?

Not only did the Supreme Court say that it was a miscarriage or denial of justice, as must exist for section 7 of the Charter to apply, but it also said that judges hearing the evidence ex parte are placed in a position where they cannot be impartial. Is this not tantamount to asking them to be investigators?

The court said that not allowing a person detained under a certificate to receive all of the evidence and be able to refute, explain and correct it, and to question the source of the evidence infringes section 7.

The court did not say that security certificates are unnecessary. Over the next year, the court invites the legislator to review the way in which certificates are issued. It is interesting to remember that the court gave the United Kingdom as an example. In committee, this was even brought to the attention of parliamentarians. The court even gives Canadian examples where the members of a House of Commons subcommittee, who were hearing from employees of the Canadian Security Intelligence Service, were able to respect the security and confidentiality requirements and still carry out their parliamentary work.

The court also has the following observation, and again I will cite Justice McLachlin. Furthermore, no parliamentarian or minister has provided an explanation for this. I hope they will during our exchanges later. Justice McLachlin said, “—Why the drafters of the legislation did not provide for special counsel to objectively review the material with a view to protecting the named person's interest—as was formerly done for the review of security certificates by the Security Intelligence Review Committee, and is presently done in the United Kingdom...has not been explained”.

The United Kingdom has also passed antiterrorist provisions. The court wonders why we did not take the same route. The court proposes a compromise between complete denial of access to sensitive information about the person named in the security certificate and the possible confidential nature of certain information in thwarting terrorist attacks, in other words a procedural fairness requirement, a requirement for respecting basic justice. The court says that if we want to maintain these balances, these powers that have to be balanced between national security, confidentiality of certain information, but also the rights of those who may be charged—who are in fact charged in some cases—then we need access to information. I hope the government will take this into account during the review it has been given one year to do.

In closing, I cannot believe that people were detained for five or six years. I am running out of time. However, we have to remember that different rules apply depending on whether the person is a permanent resident or a foreign national when it comes to a review of detention. A permanent resident gets this review within 48 hours and every six months. A foreign national can be imprisoned for 120 days without ever having their detention reviewed. As the Supreme Court pointed out, this does not make any sense.

I will stop here, but, once again, I believe there is no reason to be proud today of Bill C-36. In my opinion, this House would have been better advised to listen to the Bloc Québécois when it gave these warnings. Fortunately, the Supreme Court was able to take an informed look at this legislation that offends human dignity and the best we can do is to review it.