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

This bill was last introduced in the 37th Parliament, 1st Session, which ended in September 2002.

Sponsor

Anne McLellan  Liberal

Status

This bill has received Royal Assent and is now law.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

June 14th, 2016 / 11:50 a.m.
See context

Conservative

Scott Reid Conservative Lanark—Frontenac—Kingston, ON

I want to talk to you about why I think this motion is important and why I think the members of the committee should support it.

Let me start by going back to what the Speaker indicated in his ruling that there was a prima facie case of privilege. When he made his ruling in April he was responding to a matter of privilege that had been raised on April 14 in response to the leak of the story on April 12 to Laura Stone at The Globe and Mail. The Speaker made a point of indicating that the issue of “provenance”—that's the term he used—meaning where the leak came from, finding the source of the leak, ought to be the focus of our investigation, not what we are now focusing upon.

About halfway through his remarks he said, dealing with an earlier case, that “no doubt existed as to the provenance of the leak”, referring to a previous leak that had occurred back in 2010. He's emphasizing that the source of the leak is of key importance. Looking back at previous Speakers' rulings, I find that in dealing with a similar situation back in 2001, Speaker Milliken also emphasized the importance of seeking out the provenance, the source, of the leak. Once again, this was at that time a piece of legislation, Bill C-36, the anti-terrorism act.

Mr. Chair, you were in the House when that arose, as I was.

It was a matter of equal importance from the point of view of Canadians at that time to the stature that Bill C-14 has in the public consciousness today. Some of the content was leaked. The member for Winnipeg—Transcona, at that time it would have been Bill Blaikie, argued that the Speaker ought to investigate.

The Speaker, while he appreciated this input, corrected Mr. Blaikie in the following words:

The hon. member for Winnipeg—Transcona in his remarks tried to assist the Chair by suggesting that it was for the Chair to investigate the matter and come up with the name of the culprit and so on. I respect his opinion of course in all matters, but in this matter I think his view is perhaps wrong. There is a body that is well equipped to commit acts of inquisition, and that is the Standing Committee on Procedure and House Affairs.... Accordingly, in my view this is a matter which ought to be sent to the committee.

Of course, he then went on to rule that a prima facie case of privilege having been found, the matter should be further investigated by the procedure and House affairs committee, by this committee.

The point to be emphasized is there is a body that is ideally suited—I wish he had not used the phrase “commit active inquisition” because, clearly, our goal is not to be the Spanish Inquisition—to inquire, to engage in matters that require further inquiry.

We are the body that does inquiries. Doing inquiries for the purpose of discovering the source of leaks is what we do when leaks of legislation have occurred. To further emphasize how important this was, I am once again turning back to Bill C-36. I wonder if I could also draw the attention of members of this committee to the words spoken by Don Boudria, who at the time was the Liberal House leader. To be clear, the Liberals were in government, he was the House leader, legislation of his government had been leaked out.

He made the following comment prior to the Speaker making his ruling. He said, with respect to Bill C-36, that:

On Saturday I saw extracts from the bill in the media. They were not all factually correct but enough of them were that it caused me to be as concerned as the hon. member

—he's referring to some other member who'd raised the matter—

when raising this question in the House. I cannot say much more other than to apologize on behalf of whoever is guilty of this. I use the word guilty because that is what comes to mind, given the respect that I have for this institution. Anyone who breaches that respect is guilty of an offence in my book. The problem is that we do not know who it is.

So here we have the government House leader, who has just seen a leak occur on his watch, making it very clear that he thinks it's appropriate to determine the identity of the individual.

That's the first point to be made. It is our job to find the individual. It is our job to find the individual because the privileges of the House have been breached. It is not part of that investigation to try to predetermine whether or not the leak was deliberate or unintentional. I have my own views on that subject. I've shared them with the committee in the past. This looks far too much like the kind of information that I would have included in a deliberate leak had I been in the business of deliberately leaking information. That is to say, it very neatly shaped the story that came out of the media. The focus was on the bill not going far enough as opposed to the bill going too far. That is the kind of thing one does when one is trying to engage in leaking for the purpose of redirecting conversation and shaping public discourse.

That being said, that does not, as yet, point us in any particular direction. We do know, based on the testimony we heard from one witness, the Minister of Justice, that she has firmly and absolutely.... In response to my question, when I simply asked her, “Are you the source of the leak?”, she said no. We take her at her word. I take her at her word; I thought the rest of her testimony actually indicated very clearly.... I should be careful what I say here; it indicated to me, in a way that satisfied me, in my subjective judgment.... That's a bit different from being clear, but it was subjectively satisfying to me that she was not the source of the leak.

Indeed, I think her willingness to appear here, at a time when she really is arguably the busiest person in Canada, indicated to me that she was anxious to clear her name and make a point—i.e., that whoever else is the source of this, I am not, and I don't have information as to who is; that is to say, it was not leaked by somebody else with my sign-off, active or passive.

I accept that, but that doesn't mean that the acceptance, active or passive, of other individuals was not involved. Indeed, that is the likeliest scenario. I think when we see a reluctance to allow anybody else to come forward, or indeed to explore which individuals might be responsible, be they officials or be they elected people, it indicates a desire to prevent the truth from being found.

Why would that be, Mr. Chair? Most obviously—indeed, it's the only plausible explanation I can have—it was a deliberate leak. Moreover, a search for the truth revealed that it was not a leak that can be pinned on some low-level individual. No low-level individual can be thrown under the bus and thereby end the story. When we can't find some enlisted soldier to use as a sacrificial lamb when one of the generals is implicated, we start stonewalling. That's what this looks like to me.

Now, I want to come back to a point that Mr. Chan had been making. Mr. Chan said that, well, the text of the bill was not actually leaked, that what we had instead was negative information, information about what wasn't in the bill. Therefore, previous rulings where we talk about the text ought not to be treated as being as important.

Just to be clear about this, I'm returning now to a ruling that Speaker Milliken gave on October 4, 2010. If one turns to page 4711 of the House of Commons Debates—I know we all have our copies with us right now—you'll be able to read Speaker Milliken having said: “It is indisputable that it is a well-established practice and accepted convention that this House has the right of first access to the text of bills that it will consider”.

I think Mr. Chan is arguing that this convention should be understood very narrowly. As long as I don't use the words in the text when I'm making my leak, if I am, say, a minister of the crown or a communications person for one of the ministers of the crown, then no real breach has occurred because under this narrow and technical construction, the actual text is still seen first in the House. If I use words that are somewhat different or if I don't have them in the correct order, as they were in the bill, then I haven't leaked the text of the bill.

This narrow and technical construction, Mr. Chairman, of course is incorrect. The law can sometimes be interpreted narrowly and technically. That is not the interpretive doctrine that the Supreme Court currently, typically, uses, either for constitutional or ordinary textual interpretation, but it has been a respectable doctrine of interpretation in the past, in certain situations where the overbroad reading of the statute could result in an act of injustice.

I'm going to loop back here for a second, so you can see the point of the distinction I'm driving at. In one famous case from the 18th century that is cited in Blackstone, Parliament passed a law indicating that the death penalty was to be applied for any rustling or theft of cattle.

In the language of the 18th century—the English language evolved, of course, as did the French language and other languages—the word “cattle” sometimes was taken in the sense that we would use it today to mean cows, bovines, but “cattle” was also meant sometimes as a term for all livestock. Faced with the situation of an individual who had stolen or poached some other animal—I think sheep, but I'm not sure—the court chose to give a narrow and technical construction to the word “cattle” and said it interpreted the word “cattle” as narrowly as it could, to mean only cows. This was a sheep. This individual would not hang.

I'm not sure what happened to that individual. They probably got transported to Australia or something lesser, but nonetheless it was perhaps not desirable.

Then Parliament passed a new law saying in this act, the word “cattle” meant all livestock, thereby making it clear that they wanted people who poached anything to be hanged.

That general practice of using narrow and technical construction for criminal law, although it has been eroded to some degree in recent decades, remains a way of dealing with situations where the law could wind up causing acts of injustice were it interpreted by using the opposite practice, which is known sometimes as “large and liberal” construction—“construction” means “interpretation”, by the way. The term the Supreme Court likes to use, “purposive” construction, that is to say we interpret this, whatever the words are, to bring fulfillment to the action that was intended.

That's the law. We're dealing here with a convention or practice. There is no such thing as a narrow construction of a convention or practice. It's all about intention. There is no looking at the letter of a convention and ignoring its spirit. It is all spirit. And interpreting the spirit of the law, or a practice or convention, inevitably means giving it a broad construction.

This gets expressed in a number of ways in House of Commons debates, particularly in rulings of the Speaker. The Speaker points out, for example, that you cannot do by the back door that which you cannot do by the front door. In the same way, if I want to address a question to the Prime Minister, I have to refer to him as “the Prime Minister”, not as “Prime Minister Trudeau” or “Mr. Trudeau”. I can call him “my honourable colleague”, “the right honourable gentleman”, and so on, as long as I don't use his name. That's the direct rule. But I can't get around it. I can't enter through the back door by saying, “Today's Globe and Mail says that Prime Minister Trudeau...”, saying that I'm quoting somebody else, so it's not me; it's them. I've tried to come through the back door when the front door was shut. I have tried to find a way of interpreting a practice narrowly, when it ought to be interpreted broadly.

All right. So now you can see the point I'm getting at. We have a practice, a convention, relating to the text not being leaked. It is a well-established practice. It applies to words that don't actually contain chunks of the text, but that have the same effect. I wanted to make that point very clearly, but I would actually go further. In regard to this talk of negative versus positive information coming out, unless the entire text of the relevant sections of Bill C-14 had been released to Laura Stone, it would have been impossible to summarize that which was being left out of the legislation, if you follow. This is all about, “Here's what the government won't be doing. Here's why people who feel very strongly that the legislation should go further ought to be upset. Here's why people who feel the legislation ought not go as far as the parliamentary committee had recommended ought to feel that the government is responding to their concerns”, which after all, is the entire communications exercise of the leak.

That can only be accomplished by indicating that which was absent from the bill. As I pointed out to the minister when she was here—and she made the same point about only negative information being contained—that actually was a greater disclosure of information. I can know only part of the government's plans and leak that positive information about what's in the bill. I could be someone who was only privy to one part of the legislation. But in order to say this or that is actually absent from the bill, I must be familiar with the entire bill, the whole of the bill.

I would make the suggestion to you that only relatively senior individuals in the government, be they people who are actually elected officials or people who serve those officials in a staff capacity, would have had access to all of this information. We haven't ascertained who those people are. It is not an infinite list. It is a finite list. It is a list the government could provide us with if we passed this motion. This is information the government would have to provide us with. And that, I suspect, is the real reason—although one should never attribute motives in this business—that the Liberal members of this committee have been instructed to try to ensure that this motion does not pass. Their goal is, of course, to make sure that the “guilty” parties—to use the term that Don Boudria, Liberal House leader, used 15 years ago—are not found.

That, of course, leaves them at liberty to do the same darned thing all over again. If the approach is going to be that when these matters come before this committee, this committee then kills them quietly, then this committee effectively ensures that contempt of Parliament can happen, and those who engage in that contempt get away scot-free.

Once that pattern has been established, once it is clear that there is no punishment for acting in contempt of Parliament in this particular manner, then they can do it all over again the next time it serves their communications goals to act in contempt of Parliament and release information in this manner or in some similar manner. That's a very worrying thing.

Mr. Chair, I now want to turn to the question of whether this was a deliberate versus an accidental leak. As you know, I've already editorialized to some degree on this. I thought I would explore in a bit more detail why this is important, and the point I'm about to make emphasizes the importance of passing this motion.

I've pointed out that the very fact that the Liberals would like to shut this down suggests that it's someone higher up. It also suggests deliberate intent. After all, if it was an accident, we would be able to determine what the accident was and we could ensure that hole was plugged. Someone could say, “Mea culpa, I'm upset”.

They might say something similar to what Don Boudria said. Let me go back and give you a bit more of what Don Boudria said in 2001, because it is striking. He admits that he is not in complete control of what's going on and is frustrated by that fact. So on October 15, 2001 Don Boudria said, and I quote:

Last Friday afternoon I received a copy of Bill C-36. As is my role as Leader of the Government in the House of Commons, I do what is known as a review of the bill. I took precautions then and earlier with the minister and all of her staff to ensure that the bill was not in any way given to the media or otherwise. I was given that assurance by everyone I spoke to.

This is the part I quoted from before, but I want you to go back and look at what was said by the House leader at the time explaining how it works.

Is his role as leader of the government in the House of Commons, he does what is known as a review of the bill. At some point before it is released to the House of Commons, not way in advance, he gets to see a copy of the bill and, as is the case with Bill C-14, you're dealing with a piece of legislation that is both high profile and also urgent. It has been pulled together in a hurry.

He sees it a few days before it is released. Part of his job, which he stresses, is to make sure that nothing has been given to the media by the minister or any of her staff. The minister he's referring to is the then Minister of Justice, Anne McLellan, and, of course, her staff, and he was given assurances. The House leader was then and is now in possession of the assurances of individuals that they did not leak it. Unless, of course, somebody said they did leak it.

There are several possibilities here. Either, one, the House leader Dominic LeBlanc was given assurances from everybody that no leak had occurred, and one of them lied to him; or two, he was informed by one of them, but the others wouldn't have known that in fact a leak was going to happen or had already happened—it was in the works, and so he was part of it—or three, he and his office were themselves a part of the strategy to leak the information.

I don't know which of those three scenarios is correct. I do accept vis-à-vis the Minister of Justice and her officials, unless they are working behind her back, which I suspect is not the case, that they are not the source of things. But someone is the source of things because the leak exists; the leak was there in The Globe and Mail on April 12. It was a deliberate leak, unless some kind of scenario exists that I'm having trouble imagining, and the House leader is very likely to have known about it.

The House leader should be before this committee to clarify that and, just as we did with the Minister of Justice, we would take him at his word if he says he knew nothing. We would not say, “Minister, you're lying”. We all understand that, if he were lying, that would be itself a contempt of Parliament, and the kind of contempt of Parliament that ends a career if it's ever demonstrated to be the case.

The justice minister's awareness of the severity of deliberately and overtly lying to a committee of Parliament is one of the reasons I take comfort in her words. I take very seriously her words, because she is, as we all can see, a very intelligent person who is not going to do something that stupidly self-destructive.

He should be here. He will be on the distribution list, for sure. He should be here testifying before this committee. He could go further, I believe, than any other person in bringing clarity to where and when this deliberate leak was planned, who was involved in it, and what their strategy was. I guarantee that sunlight—and they say that sunlight is the best disinfectant—will bring an end to future leaks of this sort because no one will want to go through that again. That is the reason we want to have him and other people on the list here, or at any rate to know who they are so we can figure which of those individuals should come here.

Let me make one last point about the desire of the Liberal committee members, or the Liberal whip, to vote down this motion which is critical to actually determining the provenance of this leak. As we've found with the recent matter of privilege on the Prime Minister's physical contact with the member for Berthier-Maskinongé, the committee is in a position to make a ruling and to report back to the House on contempt of Parliament, whether we believe it happened or not, and, if so, how—that is, the details—and perhaps recommendations as to how to ensure that this sort of thing doesn't happen again.

We also have the ability to just say that no report is necessary. This was actually new information to me as of that meeting, and the record of my interaction with Mr. Christopherson in which I tried to determine what course of action we should have, and of my interaction with the clerk in which I tried to find out the rules in this matter, are a matter of public record.

The option of determining that there's nothing here to see not merely ends the possibility of reporting back to the House, but the possibility of dissenting opinions. It ends any investigation. As such, I would make the suggestion that it has the practical effect of giving licence, of saying to the government, “You got away with it. There was an insignificant little hearing, which produced no result and then got shut down through the simple act of the government exercising its majority to reject any new motions to bring forward witnesses.” That's all the punishment there is, so they may be able to get away with this.

I mean, the idea that a convention or practice is permanent and that it can never be eroded is incorrect. Normally the idea that conventions, whether constitutional conventions—and that's my area of specialization—usages, practices that exist in the House, are permanent and lock themselves in is actually not guaranteed. Normally, they do. Normally a convention or practice is an act of self-restraint that is not actually written down in the rules but is accepted as a norm of behaviour and is sanctioned by the overriding body, demonstrating its disapprobation. Normally these things become stricter and stronger with time. If you look at our day compared with 50 years ago, 50 years ago compared with a century ago, and a century ago compared with two centuries ago, you'll find that the conventions are becoming, on the whole, stronger.

These conventions impose restraints upon all of us to abide by the norms of civilized behaviour—or the norms of “respectful” behaviour perhaps is the right term to use—that cause us to restrain ourselves in ways that are not written down in the rules. Those norms become stronger with time, on the whole, but they can go in reverse. One of the roles of this committee ought to be to try and ensure they do not go in reverse and that we do not find ourselves chipping away at, or eroding, a convention, so that something that was not considered respectful behaviour or acceptable behaviour in the past comes to be tolerated in the present.

I would submit that if we're looking on the grand scale of things, then this erosion of self-restraint is one of the things we see happening, for example, in wartime. They always say “truth is the first victim in any war”. The need to shut down openness for strategic reasons becomes one of the victims of war even in the best and most civilized countries, and even when we are fighting for the most just of causes, as we were in the Second World War. In the midst of that war we did things that we are not proud of and that we now recognize were wrong. While I do not make an analogy here, the purpose of the analogy is simply to point out how conventions can erode. I do note that the way in which we acted toward one subgroup in our population at that time was unacceptable.

One could point to other conventions, perhaps at a more benign level, but let me make a clear example here of a constitutional convention in the United States. It was initiated by George Washington, and it developed over the decades, that no president ought to serve more than two terms in office. That was the convention that was respected by every president up to Franklin Roosevelt, who in 1940 ran for a third term because there was a crisis in the nation with an impending war. The United States was still not out of the Great Depression. Nobody thinks that Franklin Roosevelt was not a great man, but after he passed away, a decision was made and concurred with by two-thirds of the members of each of the two houses of Congress, as well as by the legislatures of three-fourths of the states, that in the future no person should be able to serve as president for more than two terms, and that was put into their Constitution.

There was a minor exception made for someone who had served less than half of a previous term of a previous president. Such an individual could serve two terms plus that half term, and Lyndon Johnson considered taking advantage of that in 1968 before announcing that he would not be contesting the 1968 presidential election.

The point I'm making is that conventions can be rolled back, and that what is true with a constitutional convention is also true with a parliamentary practice.

I think what we are seeing here is an attempt on the part of the government to roll back a practice and to say that a practice that has always been understood and interpreted robustly ought to be—“ought” is the wrong term, because it implies they think this is of value—or they can get away with, if they do the right things, restricting or narrowing a practice that is respectful of the House. They can say, “As long as it's not the text, it's okay, we can get away with it”, or that, “If we get caught, then we'll just take this to committee, and we'll kill it quietly.”

We have been given the task of looking for the “guilty” party, in Don Boudria's words, and seeking out the provenance, in Speaker Milliken and Speaker Regan's words, of the leak. Their words, the Liberal's words and Mr. Chan's words, are that this isn't necessary. The Speaker says it's necessary, or recommends it to us, but they say it's not necessary. Past practice has been to take this very seriously, but meh, they say it's not necessary because of a technical argument that there was no revelation of the actual text, even though, clearly, the leak is of a greater scope than if the text had actually been leaked.

Maybe they're right. Maybe they can get away with this. That's how it happens. People drop their guard, either because they feel it's an emergency, for example, in a time of war, or as with the Anti-terrorism Act, in a time of national crisis.

Returning to that bill, Mr. Chair, I voted against that bill. I voted against it because I held a constituency referendum, similar to the one I held on Bill C-14, and the majority of my constituents said to vote against it. They told me to vote against it because it lacked a sunset clause.

We said in a time of crisis that we were willing to suspend some of our traditional civil liberties in the pursuit of terrorists, in the pursuit of those who are willing to do the kind of horrible thing that was done on September 11 and that, in another way, with another weapon, was done just last weekend in Orlando and has been done a thousand different times, a thousand different ways, in the intervening decade and a half. My goodness, those of us who lived through September 11 and those who are living through all of the subsequent horrors visited upon us—whether in London with the subway bombings, or in Paris with the nightclub attack, or in Orlando with this recent outrage against humanity, or any of the others that have slipped my mind because there are so many—can be sympathetic to that goal of saying that we have bigger fish to fry and we can set aside some of these safeguards we have put in place.

But even then, in rural, conservative, law-and-order Lanark County, a majority of people thought it was too much of a price to pay. So they instructed me to vote against that.

I voted not only against the government but also against my party. Four of us from the old Canadian Alliance broke party ranks and voted against it, along with the NDP caucus who also voted against it. I thought that was important.

There is no similar crisis driving this particular breach of the practices of the House. Don't misunderstand me. There actually was a looming deadline—now passed—on June 6, that if we did not have a new piece of legislation in place, the relevant provisions of the Criminal Code would cease to be in force and effect, and so there was an urgent deadline in that sense.

The urgent deadline having passed, we are not actually faced with the prospect of physicians euthanizing people in the streets, which some fearmongers seemed to be afraid was going to happen. But that wasn't what this leak was about. This leak wasn't about somehow assisting the government to deal with that impending crisis, real or artificial.

This was about trying to shape the debate. This was about manipulating public opinion. This was about manipulating the thoughts in peoples' heads. This was about misdirection. This was about the abuse of public discourse. This was about someone saying that he or she has a whole package of information and is going to selectively put out part of that information, going to put it out in a way so that nobody can confirm the truth or accuracy of it, going to put it out in a newspaper with national reach, going to put out this leak in a way that will get picked up by all media, going to shape this debate.

This is not information. This is misinformation. Although virtually every word in this is true, this is about misinformation.

It is striking to me, Mr. Chair, and it should be striking to any objective observer, that one of the minister's defences—and this should not be taken as being terribly serious—was that, after all, part of the leak is inaccurate. It's not correct, so that's okay as a defence. Now, I think you know my response to that. My response to that is that it would almost certainly have been a verbal leak. Laura Stone would have received an email or a phone call saying let's get together. I assume they either met somewhere or had a conversation over the phone with Laura Stone then taking notes, but she was not left with a copy of the legislation, and nobody wrote down or took dictation.

The likeliest explanation is that Laura Stone...and I could be wrong, because maybe she was and is an expert on the details of the ins and outs of assisted suicide, but even if she were, she very likely just made a slight wording error. But a minor correction to the wording makes this correct in every detail.

That is what happened, and it is most regrettable that we are being told that this is not important, that this is something we should just drop. Also, to be clear, this is something we can expect to recur in the future.

Turning now to the great poet, T.S. Elliot, do you remember he talks about how freedom dies when civilization dies, not with a bang, but with a whimper? It's a thousand little whimpers, our failing to respond vigorously. Our failing to try to keep committee meetings going when we're faced with the stone wall we see across the way here, that would be one of the whimpers. That is the reason, Mr. Chair, that we are attempting to exercise the only weapon we have on this side of the aisle, which is public opinion to try to draw attention by dragging out this debate to the fact that debate is about to be shut down; to the fact that open inquiry is about to be shut down; to the fact that silence is about to reign on how one deals with contempt of Parliament.

No one doubts that a contempt of Parliament took place. The question now is whether it's worthwhile taking the valuable time of this committee, or whatever the argument is, to look at this contempt. Matters of privilege are in fact the primary matter this committee looks at. Sometimes they're of a technical nature, sometimes they are not, but they're the primary matter and they take priority. That is a practice long established with us and written into our rules. It is done because we understand that the erosion of these privileges, a little bit at a time, and sometimes by someone who has a very high rating in the public opinion polls at that moment, nevertheless results in the stripping away of those norms of respectful behaviour that are the basis on which our success as an institution is founded.

The way you will have to deal with this in the long run, if the government gets away with this, is that at some point in the future you will have to take your norm of appropriate behaviour and write it into the rules. It's a hard thing to do because once you switch something from being a norm to being the black letter of the rules, it becomes highly mechanistic—a matter that we are all aware of—and something that we're dealing with consensually in the MP code of conduct with regard to issues like gifts and so on. An attempt was made there to put something into a formalized code. The need to be punctilious in our respect for every detail of that code has created its own set of problems. But that is how you deal with it when you can no longer rely on the usages, the conventions, and the practices to provide guidance.

I didn't want to take up all the committee's time. I merely wanted to lay out the arguments. I thought it would be best to be as fulsome as possible.

Perhaps with that, Mr. Chair, I can terminate my remarks. I look forward to the contributions others may have to this discussion.

Thank you.

May 3rd, 2016 / 11:05 a.m.
See context

Committee Researcher

Andre Barnes

Yes. Precisely.

Two similar questions of privilege arose, both of them in 2001: one in the spring of 2001, one in the fall of 2001. I can give a brief summary of the matters, the rulings, and how the committee dealt with those particular cases of privilege.

In spring of 2001 the member from Provencher rose on a question of privilege regarding a departmental briefing on a justice bill. The department was going to give a confidential briefing to members of the press only, which is contrary to the practice of members being invited to these lock-ups. The bill had not been introduced at the time but was on notice. The other issue was that the lock-up that was supposed to occur did not occur, and that members of the media left the confidential lock-up and began phoning the member from Provencher to ask him about his opinion on a bill that he had not been briefed on and had not seen.

The Speaker ruled that this was a prima facie contempt of the House, and stated that once a bill is placed on notice, confidentiality about its contents was necessary—as I spoke about before—because of the pre-eminent role “which the House plays and must play in the legislative affairs of the nation”. The Speaker further stated that, “to deny to members information concerning business that is about to come before the House, while at the same time providing such information to media that will likely be questioning members about that business, is a situation that the Chair cannot condone”.

That matter was referred to a predecessor version of procedure and House affairs. The committee held four meetings on the matter. For witnesses, the committee heard from the member who raised the question of privilege, the minister who sponsored the bill, and departmental officials about departmental policies regarding pre-introduction of bills. The committee also heard from the Clerk and the Deputy Clerk of the House regarding the House's processes for government bills prior to introduction, and it heard from a representative of PCO concerning policies regarding the preparation and introduction of government bills.

The committee did report back to the House on the matter. The report concluded that a breach of privilege had occurred, but did not recommend any sanctions because the minister had apologized for the incident and had taken corrective actions. The committee did have one main recommendation, and that was that all government departments follow the lead of the Department of Justice and adopt a standard policy that no briefings or briefing materials be provided with respect to a bill on notice until it is introduced in the House, with the notable exception of the lock-down held for the budget and other major parliamentary announcements. The committee also requested that by the fall, the Privy Council Office table, through a minister, revised guidelines on dealing with bills prior to their introduction.

That is the case that occurred in the spring.

There was later a case in the fall, which was fairly similar to the one that occurred recently. Notice was given for Bill C-36, an anti-terrorism act. Notice was given on Friday. The bill was introduced on Monday. On Saturday, an article that mentioned the contents of the bill appeared in the National Post. The Speaker ruled that this, again, constituted a prima facie breach of privilege of the House, and noted that this was very similar to the incident that had occurred in the spring.

Again the matter was referred to this committee. For witnesses, the committee heard from the member who raised the question of privilege, the minister sponsoring the bill, departmental officials about the preparation of the bill, and representatives from the Privy Council Office concerning the process and policies regarding the preparation and introduction of government bills and security reviews of information leaks. In the report, the committee concluded that, based on the available evidence, it could not find that a contempt had been committed.

The PCO hired Deloitte &Touche to do a study to find out who had committed the leak, and they interviewed some several hundred staff members to find out who had, in fact, spoken with reporters. Nine admitted to speaking to reporters but indicated that they had not divulged any confidential material to the reporters.

The report did note that the official from the Privy Council Office had indicated that for the most part the details that were divulged in the National Post article were public information, with the exception of a few bits of information.

When the committee decided that no contempt had occurred, the members of the opposition did add a dissenting opinion to the report, and the basis of it was those few pieces of information that could potentially have been confidential, but there was no way to know, and the staff at the department at the time had said that they had not divulged any confidential information. They concluded that it might have been journalistic speculation that allowed the journalist to come up with those few missing pieces of information.

Those are the two most relevant cases of privilege similar to the one that was ruled on most recently.

Combating Terrorism ActGovernment Orders

April 23rd, 2013 / 4:45 p.m.
See context

NDP

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.

Combating Terrorism ActGovernment Orders

April 23rd, 2013 / 12:25 p.m.
See context

NDP

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.

Combating Terrorism ActGovernment Orders

April 23rd, 2013 / 12:10 p.m.
See context

NDP

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.

Combating Terrorism ActGovernment Orders

April 23rd, 2013 / 11:10 a.m.
See context

Liberal

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—

Combating Terrorism ActGovernment Orders

April 22nd, 2013 / 5:05 p.m.
See context

NDP

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.

Combating Terrorism ActGovernment Orders

October 22nd, 2012 / 3:20 p.m.
See context

NDP

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.

Combating Terrorism ActGovernment Orders

October 19th, 2012 / 12:45 p.m.
See context

NDP

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.

Combating Terrorism ActGovernment Orders

October 17th, 2012 / 4:10 p.m.
See context

NDP

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.

Combating Terrorism ActGovernment Orders

October 15th, 2012 / 12:50 p.m.
See context

Liberal

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?

June 5th, 2012 / 5:15 p.m.
See context

Director General, National Security Operations Directorate, Department of Public Safety and Emergency Preparedness

Michael MacDonald

That is a very good question. It speaks to the tool kit or what we referred to after 9/11 with the Anti-terrorism Act, Bill C-36 at the time, which provided the security intelligence and law enforcement community with an appropriate tool kit that they could use should they needed to use it. Of course, it comes with the effective oversight and scrutiny to ensure that there are not abuses.

The government of the day considered those powers such that they had to have a five-year sunset clause, and we know what happened after that sunset clause.

I believe the investigative hearing was used in one aspect. The annual reports—and I was responsible as a young analyst for writing the yearly end reports for the use of those investigative powers—would go on, and that was part of the regular accounting or public reporting mechanism.

I think the point on that is that you have a tool kit and if the tool kit remains closed it's closed. When a threat of such magnitude happens and you have to open the tool kit and use the power, it is there to be used appropriately. That's the mentality that followed along with at least those two particular powers.

March 1st, 2011 / 9:20 a.m.
See context

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Mr. Holland.

Maybe I'll just make mention of the fact that I served on that original committee back in 2001. The Liberal Party brought that Bill C-36 forward, and I can tell you that all parties took it very seriously: would it be abused? Some parties believed that police would use it to open the floodgates. Looking back, I think one of the arguments at that time was that if it were to be abused, then at the sunset clause, after five years, that would be something that the police, CSIS, and all these other groups would have to understand: they might lose this tool.

At that point, it was very much accepted that this was a tool that was needed, but that we had to be very cautious and ensure that civil liberties wouldn't be abused. And you know, in fairness, when we look back over the last nine or 10 years, we really have to ask if they have been abused. This becomes, for all of us, all parties.... You don't want any civil liberties to be thrown out, but on the other hand, we are dealing with people's lives, and if there is an imminent threat.... The tool being there, the police and CSIS--all these groups--recognize that if they use the tool now, it will come under huge evaluation and they may lose it.

So personally, I'm thankful that we haven't seen a lot of abuses based on this sunset clause or based on this piece of legislation, but we would do well to pause and reflect a little bit on what the potential is and what the potential is on the terrorism side as well.

I have Mr. Davies, in conclusion, and Ms. Mourani.

Strengthening Aviation Security ActGovernment Orders

February 3rd, 2011 / 10:25 a.m.
See context

NDP

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 ActGovernment Orders

September 21st, 2010 / 12:50 p.m.
See context

NDP

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.