Bill C-36 (Historical)

Anti-terrorism Act

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

Combating Terrorism Act

[Megan Leslie, NDP, Halifax, NS]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice for Victims of Terrorism Act

[Irwin Cotler, Liberal, Mount Royal, QC]

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

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

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

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

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

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

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

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

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

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

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

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

As our preamble has put it. It continues:

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

It states that:

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

That is what I refer to as jus cogens.

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

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

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

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

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

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

Finally the preamble states that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Criminal Code

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Réal Ménard, Bloc, Hochelaga, QC]

I understand your position, but that is not my point. You would not be comfortable with the idea of having maximum, rather than minimum, sentences. Of course, I respect your point of view as sponsor of the bill.

I am very interested in the question of organized crime. The chair will remember that there was a subcommittee on organized crime when we were studying bills C-24 and C-36. What sort of information do you have on the links between organized crime and vehicle theft?

Tackling Violent Crime Act

[Réal Ménard, Bloc, Hochelaga, QC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anti-terrorism Act

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, on October 15, 2001, in the immediate aftermath of 9/11, the Liberal government at the time introduced Bill C-36. The then minister of justice and attorney general, Anne McLellan spoke in support of that legislation, including the two provisions that were not then but are now the subject of sunsetting clauses.

I rose in the House at the time and expressed the view that I had 10 civil libertarian areas of concern with the proposed legislation and which included the two provisions at issue, on which I elaborated subsequently in speeches and in an article thereafter in the 14 National Journal of Constitutional Law entitled, “Terrorism, Security and Rights: the Dilemma of Democracy”.

In discussions with the minister and government at the time, I made certain recommendations regarding these areas of concern. While I remain still concerned about certain provisions of the bill, such as the definition of terrorism itself, an aspect of which was recently invalidated by the courts, citing, as it happens, my article at the time, I ended up supporting the bill because the government amended the proposed legislation in many of these area of concern, though I still maintained certain reservations about it as set forth in the article.

Among the amendments I proposed and which the government accepted was that these two provisions at issue be sunsetted after three years, which has now stretched into five, and pending parliamentary review of these provisions.

I am of the view today that these provisions do have provision for executive oversight, as in the requirement for consent of the attorney general, for parliamentary oversight, as in the requirement for annual reports from both the federal and provincial ministers concerned at Parliament and the provincial legislatures, and a judicial oversight to judicial review. The Supreme Court, as has been mentioned before in the House in the matter of investigative hearings, has held these provisions to be constitutional.

Indeed, the sunset provisions may be said to comply with the charter and are not otherwise unknown in Canadian law. For example, preventive arrest is effectively the invocation of a peace bond process set forth in section 810 of the Criminal Code, which has been used to protect against criminal violence, such as domestic violence, sexual violence and organized crime, and extends it now to suspected terrorist activities.

Similarly, the investigative hearings are not unknown in Canadian law. We can find it under the Coroners Act, the Inquiries Act, in section 545 of the Criminal Code and I can go on. All that is also set forth at length in my article respecting those two provisions at the time.

It is not surprising then that five years later reasonable people can and do reasonably agree on the import and impact of these provisions. We can take the view to agree or disagree. We can take the view, as many in my party do, that since the provisions were not used, they are therefore not needed. Or, we can take the position, as I have, that since they have not been used this demonstrates that they have not been abused and that they in fact may be needed.

That is why, while I initially proposed that these clauses be sunsetted subject to parliamentary review, following the experience of the last five years, as I have just summarized, and my own experience as minister of justice and attorney general, I now favour their extension. However, as I have said, this is a position on which reasonable people can and do reasonably disagree.

I regret, therefore, that the government is proposing the extension without taking the views of these parliamentary committees into account in the House and the Senate. I regret that reference was made to a prospective investigative hearing impugning thereby the reputation of a member of the House and undermining thereby the integrity and the independence of that very inquiry itself, and seeking to link it to a debate on the sunsetting of these provisions.

Indeed, even if we support the extension of these provisions, as I do with certain safeguards and after parliamentary review, this prejudicial invocation was inappropriate, irrelevant to this debate and wrong. I regret the references made by ministers of the crown that our party is “soft on terrorism”. That is to politicize the debate, which should be addressed on the merits, and convert a debate on which reasonable people can and do reasonably disagree into one of bumper sticker slogans and smears.

Accordingly, for those reasons I cannot support the government's motion. It has been proposed without the benefit of parliamentary review on appropriate safeguards and it has been advanced in a politicized and prejudicial fashion.

At the same time, I would support the extension of these provisions with appropriate safeguards after parliamentary review at the appropriate time. My position for now and for those who will now follow is that of a principled abstention.

Since the court's decisions regarding the definition of the Anti-terrorism Act need to be revisited; since the Security of Information Act has also had provisions quashed; since the Supreme Court of Canada has now unanimously invalidated the provisions of the Immigration and Refugee Protection Act that deny the named person on a security certificate the right to due process, the right to a fair hearing, the right to know the information against him or her and be able to answer and rebut the charges; since the Supreme Court has suspended the impugned provisions for a year; since the question of deportation to a country where there is a substantial risk of torture is otherwise before the court; since, elsewhere and during the period that I was minister of justice, the whole question of the security certificate regime puts us in a Hobson's choice of having to either deport to a country where there is a substantial risk of torture on the one hand, which I said as minister that I would never support, or prolong detention on the other, aspects of which have now been invalidated by the court; and since the security certificate regime scheme needs to be revisited because of this Hobson's choice; therefore, given the need for a comprehensive look at the entirety of our anti-terrorism law and policy, which includes not only Bill C-36 but the Security of Information Act, the Immigration and Refugee Protection Act, the provisions in the Canada Evidence Act and a whole holistic approach to anti-terrorism law and policy review, I cannot support the government's motion at this time.

However, I trust that we can have a principled discussion and debate with respect to the whole question of anti-terrorism law and policy that does not end up being a politicized and prejudicial debate, but one in which we can arrive at an all party agreement, both as a matter of principle and as a matter of policy.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, scurrilous seems to be the word of the day and hopefully the hon. member will help us with the definition.

I agree with him that it has become emotional and politicized. I regret that very much. These are very serious issues and I regret very much that the Prime Minister chose to take that route. I regret that he chose to attack the hon. member and therefore put into play the validity of the investigative section of Bill C-36 and to raise the very fears that my hon. colleague from Scarborough Southwest and I were talking about just a moment ago, that these kinds of hearings can be used, frankly, as fishing expeditions and in the process, people's reputations and lives are compromised.

I find that very regrettable on the part of the Prime Minister.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, I am pleased for the opportunity to speak to this issue. I wrote this speech a week and a half ago when the debate was first before the House and I needed an opportunity to speak.

As they say in politics, a week is a long time. We have had an extraordinary set of events over the course of that week. We heard the decision of the Supreme Court last Friday, a 9-0 decision, which is certainly a significant decision. We also had the attack on a member of Parliament by thePrime Minister of Canada in the House.

I know it came as a shock to the government members that the Liberal Party was prepared to embrace all of Bill C-36, not just the parts we wanted to tiptoe around. Unlike the Conservative Party, we voted for the entire bill. I sat on the justice committee five years ago when that bill was being considered. I was quite skeptical of those sections, the impugned sections that we are talking about today, and I was not very shy about saying so, both inside and outside of caucus.

In my view, on the evidence that was presented to us in the months following September 11, the evidence simply did not warrant the inclusion of these provisions in Bill C-36. There was quite an animated discussion both inside and outside of caucus on this and, indeed, on the Hill as well.

Hansard has me saying this on October 17, 2001, about a month after September 11:

Watching television last night I was struck by the eagerness of some Canadians to trade their rights and freedoms for security. It was both surprising and disheartening to me to hear caller after caller be prepared to give the government and parliament a blank cheque. It was also disheartening to hear Canadians make wild and outrageous links between immigrants, refugees and security. When people are afraid they say things that they would never otherwise say. They think things that they would never otherwise think, and they do things that they would never otherwise do.

It will be a test of our nation that has a reputation for stability and tolerance to deal with these fears. Otherwise the terrorists win. They win because neighbours turn on neighbours. Instead of reaching out we turn inward. We walk away from our rights for which previous generations have fought and died. The challenge is not to let terrorism win and to break this cycle of victimization where victims in turn victimize. I am hopeful that the justice committee will carefully scrutinize the bill.

We did in fact scrutinize the bill. Some of us argued long and hard that these sections were flawed and had the potential, and I emphasize potential, for abuse and would be used in ways, if they were to be used at all, that we would not otherwise have anticipated. Quite a number of caucus members spoke against these provisions and the prime minister and minister of justice of the day agreed to put a term limit on these sections of the bill.

After third reading, a reporter put a microphone underneath my nose and asked me how I could have voted for Bill C-36. I said it was very difficult. Again I quote myself from Hansard:

None of us will be enthusiastically voting tonight. Possibly after the work of the committee we are somewhat less unhappy, but no one would introduce this kind of bill unless the circumstances justify it.

There are three conditions which erode civil rights: unanimity of purpose, just cause and great uncertainty. We have unanimity of purpose. Canadians want something done. We have a just cause in the fight against terrorism. We have great uncertainty. The population is quite nervous. We have eroded civil liberties, but will our Faustian bargain give us greater security?

We now have five years of experience under our collective belts and with one notable exception, the provisions have never been used. The Air-India inquiry is the notable exception, but at the committee, in caucus and on the floor of the House, I cannot recall any member, any minister or any official ever saying that this could have a retrospective application. Therefore, in some respects, the Air-India inquiry comes to me as a surprise.

It was sold to us on the basis that it would have only a prospective application; that is, the police, or the RCMP or CSIS would have reason to believe that something bad was about to happen. Then they would use the provisions, which we are talking about, to prevent that bad thing from happening.

Using the section for an inquiry like Air-India was certainly something that did not cross my mind and possibly did not cross the minds of many of those who voted in favour of Bill C-36.

No legislation is proposed in an isolated environment. Laws are proclaimed and laws are withdrawn on the basis of experience. What is our experience thus far?

On the security side of the ledger, clearly we are much better prepared than ever. We have had arrests and incidents which have thus far been contained by good intelligence and good police work. On the funding side, we have built up the capability of our intelligence, police, security and military services over the past five years with very significant resources. I dare say that those budgets have possibly grown the most of any budget passed in the House in the last five years.

On the human rights side of the equation, however, the record is somewhat less clear and not nearly as sterling. We just had a Supreme Court of Canada decision, which was a unanimous decision, that detention certificates were unconstitutional. Taking away the liberty of the citizen and others without trial, without access to the evidence and without counsel is an anathema in a free and democratic society. I thought the court's comments were balanced, reasoned, fair and respectful to Parliament and the government's foremost obligation to protect its citizens.

Mr. Arar could have used some of that protection. I cannot recall a case of any Canadian citizen in all of our history where the rights of a citizen have been so abused. Supplying dubious intelligence, cooperating in the extraordinary rendition by a foreign country, knowing that he would be tortured or having reasonable apprehension that he might be tortured is about as bad as it gets. The result is the resignation of the RCMP commissioner, an apology from the Prime Minister and compensation in excess of $10 million.

Apparently, Justice O'Connor's inquiry is even having effects in European nations, where European nations are reconsidering their willingness to allow airplanes for the CIA to land on European soil in order to complete these renditions to other countries. In those countries there has been a great deal of soul-searching going on as to what laws and what cooperation they will offer in the future. Unfortunately, soul-searching does not appear to be the strong suit of the Prime Minister or the government.

What was the Prime Minister thinking about when he attacked the member for Mississauga—Brampton South? Did he really think that a scurrilous attack on a fellow member, who happens to be a Sikh, would somehow enhance the debate between security and rights? Did he really think that this was going to be a contribution to the two major tasks of government: the right of citizens to expect that their government provide security and the right of all citizens to live freely and face their accusers in an open trial with all the evidence? What was he thinking about?

Does he really believe that baseless allegations contribute to an atmosphere of reasoned debate or is this feeding some other agenda, that thePrime Minister really will do anything, absolutely anything, to get his majority? Does this not play into his pandering to fear in Canadians, much like I read out in my quote from Hansard of five years ago, playing to the fears in the population?

The respective merits of whether to sunset or not sunset are irrelevant to the tactics narrative, tough on crime, tough on terrorism. The reality is that security, citizen's rights, reasoned debate and just plain common decency give way to the tactics narrative in pursuit of a majority. Destroy a live, who cares? Destroy a family, who cares? Destroy a nation, who cares? “I have got my majority”.

The Prime Minister, and I do not know whether it is advertently or inadvertently, gave a classic display of the abuses that those of us who sat on the committee five years ago were most worried about. He took a newspaper article and tied it to a member's family and the Liberal position on these clauses.

Surely, it was fundamental to ask questions like these, after all he is the senior political officer in our country. How did the newspapers secure a secret list of potential witnesses? If someone handed him an article just before question period, is that not a fundamental question? It seems fundamental to me. How did that newspaper receive that secret list? Would it not be perfectly ordinary for any prime minister to ask, who would leak such a thing? Why would they leak such a thing? What is the motive?

If for no other reason but simply to protect his own government, would he not ask, “Could my government have been involved in such a leak?” Would he not ask that kind of a question? Is that not a straightforward question to ask before he would engage in a long term smear, knowing full well that these sections on sunsetting or not sunsetting were going to be implicated in some way?

If he is not worried about his own government and he wants to get in his tactical narratives, et cetera, surely to goodness he would have the victims of the Air-India inquiry in mind. These people have been seeking a form of justice for literally years now. Would this not be a fundamental question to ask? “Is my attack on the hon. member going to compromise the integrity of that inquiry?” Is that not a fundamental question?

I do not even know whether he does not care. I think he will do absolutely anything to get a majority and he really does not care how he gets there.

Are witness lists not to be held in the strictest confidence? What little association I have had with inquiries is that they are guarded like Fort Knox, so how does one get those kinds of witness lists?

Using his bully pulpit as the Prime Minister of Canada, the biggest bully pulpit there is in the country, using his bully pulpit to undermine the integrity of the commission of inquiry, what was he thinking about?

Finally, there are the victims of Air-India. As I say, these people have sought justice for years. Surely to goodness a scurrilous and baseless allegation such as this will only lead to the undermining of the quality of that inquiry.

As I look back on my time here and my time on the justice committee, I feel some justification for my skepticism. I do not think that we can deal with terrorism lightly. I do not think we can just join hands, sing Kumbaya and hope that terrorism will somehow or another go away. Terrorism is real. There are indeed those who wish to do us harm. Some even live among us. And threat assessment is not an exact science.

However, as legislators we must only create laws that are proportionate to the reality of the threat. In my view, these provisions are an overreach, disproportionate to the threat, and cannot be justified in a free and democratic state.

Part of Justice O'Connor's report dealt with the policy review of the RCMP's national security activities. He said at page 22:

The national security landscape in Canada is constantly evolving to keep abreast of threats to our national security. It is vital that review and accountability mechanisms keep pace with operational changes. A review in five years' time should assist in this respect.

We have now had five years with Bill C-36. The evidence of the need for these sections was sketchy at the time. The government of that day felt sufficient discomfort to build in an exit ramp. No evidence in these five years has come forward to justify the retention of these sections. This continues to be a significant intrusion into the rights of all Canadians. Therefore, it is my view that these provisions should sunset.

Mr. Speaker, I put it to you that actually the government had been offered a couple of other alternatives. I see the hon. member for Scarborough Southwest sitting down there, and I know that he and his colleagues have worked diligently on this particular section of Bill C-36. I am somewhat disappointed not to see the government coming forward with legislation that reflects the hard work of that committee. I am also disappointed that the government has not come forward with legislation that reflects the work of the Senate.

I have heard arguments in the House that the election intervened and things of that nature. What I have read of the reports is that there are certain decisions that could be taken, that could have been presented by the government, and which would have addressed a number of the significant human rights concerns that have been raised over the course of this period of time, while still addressing the security concerns, those twin responsibilities of government.

I know that our leader has offered cooperation to the government in the event that the government could present comprehensive legislation such as this, but, for whatever reason, the government has chosen a straight up, straight down vote. Unfortunately, I therefore find myself in a position where my skepticism over this period of time has been justified, and my view is that these impugned sections should be allowed to sunset.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I am pleased to participate in the debate on the motion to extend the provisions of Section 83 of the Criminal Code, which, if they are not extended by a vote of the House, will lapse and die. Arguably, if there is a need for these types of provisions, new legislation will need to be introduced, thereby creating a gap in our law, if it is the will of the House and the government to proceed in that way.

These particular sunset provisions were added to the Criminal Code by Bill C-36 after extensive justice committee study and public debate. I was very involved in the work of the justice committee and I do have some personal knowledge of those events at that time.

The sunset provisions were inserted at the insistence of a number of people, including members of the House, for two possible scenarios. The first was the possibility that the provisions, which were quite new to the Criminal Code, might be misused in some way. It turns out that the sections have not been used and therefore have not been misused.

The second reason was in the event that the sections were not needed. Over time it was felt that the perceived need for this type of procedure might not be there and if the conspiracy that gave rise to this legislation was to end, diminish or calm, it could be argued that these more robust procedural provisions might not be necessary and that our ordinary laws might prevail and be usable.

In my view, I do not think either of those circumstances have occurred. There has not been a misuse of the provisions and the conspiracy that gave rise to them has not ended or calmed. I will speak to that later in my remarks.

One could say that these provisions were certainly not enacted because they were not needed. If they were not needed, they would not have been enacted. In fact, the public servants and parliamentarians who generated the legislation could see the need at that time and that is why they were enacted. One could argue that circumstances have changed and that is part of the subject of debate here today.

Why were the sections needed five years ago? I think the reason relates to the fact that there was an acknowledged gap in our criminal law, our common law, that simply evolved through the passage of time. Prior to the last century, the subject of security of the state was in the hands of the king. In fact, it was listed among the king's prerogatives and the king actually did take care of that kind of business.

We have all read history books and seen the movies. The king and his forces would actually detain and arrest people who were conspirators against the state. I suppose they did not make fine distinctions in those days whether it involved a conspiracy, a sedition, a subversion or a treason. These were all components of the common law in those days. The king simply would detain the person, perhaps arrest the person and make use of the dungeon and eventually liquidate the conspiracy.

After we entered into the 20th century, with the growth of civil liberties and written constitutions, it became apparent that our citizens needed rule of law. Commonwealth jurisdictions then adopted what were then known as the war measures acts. When the state entered into a serious war conflict, it relied on special legislation called the war measures act. It was used during the first world war and the second world war.

Eventually, in the modern context, those pieces of legislation were seen to be a bit too draconian for peacetime and therefore were dropped. We no longer have a war measures act. As a result, the legislation we relied on through the Korean War and the two world wars up to about the 1960s is no longer there so that the state cannot rely on any special provisions. It must use the criminal law.

We then had the terrible events of 9/11. Roughly 300 or 400 miles from here as the crow flies, we witnessed the events in Washington, New York and Pennsylvania. Following that, other events occurred in Bali, Madrid, Philippines, London and an almost event in Los Angeles. These events have been ugly. They were terrorist attacks, killing and maiming many and creating the maximum in violence, disruption and disorder. That is the nature of the threat.

As I mentioned, we do not have the provisions that used to be contained in the war measures act, and not only do we not have those, but in years gone by the state could rely on conspiracy laws. However, with the evolution of modern evidentiary rules, it becomes very difficult to convict for a conspiracy. As a result, because the sections have fallen into disuse, not many police or crown prosecutors are good at using them and the courts are not comfortable with them.

I would also point out that we no longer have grand jury investigations. These were part of our criminal process. A grand jury would be invoked, put in place and would investigate allegations of a criminal act or a conspiracy before they actually occurred or just after they happened but before criminal charges were laid. Two or three decades ago our jurisdiction stopped using the grand jury procedure.

At the end of the day, our laws have given up on the war measures act, the law of conspiracy and grand juries. My point is that there has been, by happenstance, a gap in our law. In peacetime, our laws work quite well. We are always reforming them but our laws generally are up to the test, but when the state gets into a conflict or it is at risk, it would be my view that the state needs to rely on a different set of provisions. These sunsetted provisions in Bill C-36, the Anti-terrorism Act, were intended to fill the gap.

It is also worth noting that all of our major allies had to do the same thing. This is not just a Canadian story. Our allies in the U.K., the United States of America and Australia all had to legislate to fill this gap in their laws as well. That is a notable thing and we in the House should take note of it. This is not a circumstances peculiar to Canada.

It is important to segregate things which are not politically, legally connected. I have read some of the debates and I have seen some of the media on this. We are not dealing with investigative warrants under the Security of Information Act. We are not dealing with investigative warrants taken out by CSIS to deal with threats to the security of Canada under the CSIS Act. We are not dealing with continued detention under the Immigration Act. We are not dealing with security certificates, which are removal procedures under the Immigration Act. All of those things are outside the envelope of what we are dealing with here.

We are dealing with two sections. The first one, the investigative hearings section, is both retrospective and prospective in its stance. It can look in the rear view mirror at threats and offences and terrorist activities that happened previously, or prospectively or pre-emptively into the future. The second one is the detention with recognizance section and that is pre-emptive in perspective. In other words, it does not look backward. It is there for the purpose of pre-empting an imminent terrorist attack.

I have tried in my own layman's way to conjure up a scenario when these sections would be used. This is one thing that is actually missing from the debate and I am not sure why. I am curious why security professionals or government officials have not offered a scenario which would explain a bit more clearly how and why these sections would be used. I realize that security professionals do not want to alarm the public. They do not want to reveal existing procedures. They are under oath to keep their information inside a security loop. These are probably some of the reasons we have not had that element of this debate.

It is also notable that this country's security apparatus is populated by officials who do not have the power of arrest. This is a very important distinction here. Most people think that CSIS officials can run around and scoop people off the street. The fact is they cannot legally or otherwise. CSIS officials are not even armed. They do not arrest people. The only people who arrest in this country are peace officers, that is, police officers. All the security professionals on the job are not able to make an arrest, whether it is at CSIS or CSE or in transport. They must be peace officers before they can arrest anyone.

As we develop our intelligence data, it is important to realize that if there is going to be any pre-emption of a terrorist attack by an arrest, it would be done by a policeman, not by our security apparatus. Most of the information we get involving security and intelligence comes from the broader security and intelligence apparatus. Some of it comes from police intelligence, but the bulk of it comes from our security and intelligence apparatus and our allies. That is a very important and indispensable function.

Because we do not have a scenario here, I am going to suggest the scenario of a border attack somewhere on the Canadian border. I do not think I am being right off the page here in suggesting there could be an attack. I do not have to go into any gory details; let me just say that an attack is possible and that the attack is imminent. Let me suggest that police and authorities may not have all the data needed to obtain a Criminal Code warrant for any of the existing provisions in the Criminal Code. They may have only one or two persons identified. They may have a possible target identified. They may have detected part of a cell and a likely target. They may not be able technically to connect all of the dots necessary to obtain a Criminal Code warrant. If they can, then they can take out a Criminal Code warrant and make an arrest.

Let me suggest as well that this data has not come from their own sources, but has come from an intelligence agency or an allied intelligence agency. I will assume for the sake of my scenario that the information is credible and real.

Given the potential for massive violence and disorder, pre-emption becomes the order of the day. It becomes a priority. If people are not sure what massive violence and disorder is, they should think about what happened in London, Madrid or New York City, just to get the flavour of what this is.

Under these sections a peace officer using credible data, probably packaged by an intelligence agency, either domestic or ally, would then present the information very quickly to the attorney general of a province. If some members think that is time consuming, some of our constituents have to wait sometimes to see an MP or to see a cabinet minister, but I can say that getting through to the attorney general of a province on a matter of priority happens very quickly. I have had the pleasure of dealing with an attorney general on a matter of that nature, and it was a very prompt and a very quick turnaround time. The information is then packaged for an attorney general, who must provide consent in writing. The information is then taken to a judge, who must also sign off and issue the warrants.

The procedure for the use of these sections is judicially supervised in the beginning. It is consented to by the attorney general representing the government. It is managed by a peace officer, police officer, subject to the Criminal Code. The entire process in both sections has been judicialized. It is totally judicially supervised. There is a warrant, a judge, an attorney general, and a totally judicialized procedure. It looks awfully charter compliant to me.

It has already been mentioned that our courts have agreed that these procedures are charter compliant. An argument that the charter is a reason that these sections should not be renewed, in my view, respectfully to all of those who feel that way, is not on; I do not accept that. There may be other issues involving civil liberties that concern them, but certainly not the charter, at least not in a way that I have heard in this House or in the courts up to now.

There are some side notes worth noting. Both the committee of this House and the committee of the Senate have reviewed these provisions and have reported back confirming their support for the provisions.

Also, there exists, as I pointed out earlier, an arguable symmetry between the provisions that we have enacted here and the provisions enacted by our major allies. They operate on the assumption, and I know there was collaboration back at the time these sections were enacted, that our legislation bears some analogy to their own, that when we deal with our allies, they will have the ability to act quickly, and when they deal with us, we will have a similar ability to act quickly.

If these two sections are to lapse, it is arguable that our legislation will not be so symmetric, will not coincide with the legislation of our allies. Since the threat of conspiracy persists, and I am informed that it does, they may be curious as to why we would allow these two sections to lapse.

I would attribute the argument that the sections have not been used to good intelligence work and good luck. Both of those have contributed to that. Regarding the suggestion that the sections are not needed, one only has to look at weekend reports from the United Kingdom, where public reports are that the threat level there is as high as it has ever been.

With all due respect to many in the House who are concerned about the civil liberties aspects of this, I hope the record will show that these sections are charter compliant and that they are there for the benefit of Canadians as a whole as a protection order. I hope colleagues will take all of that into consideration in the vote.

[Réal Ménard, Bloc, Hochelaga, QC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Opposition Motion--Government Policies

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

Mr. Speaker, the Anti-terrorism Act was brought in for a reason by the Liberal government years ago. There is a sunset clause. I was the chair of the subcommittee on Bill C-36. At that time, the deputy prime minister, the minister of public safety and I had many conversations. They were not prepared to make any changes. They supported the act as it stands today.

I do not know why they have had a change of heart. Under the current circumstances I think it is important--

Citizenship and Immigration

[Jim Abbott, Conservative, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, it gives me a great deal of pleasure to speak to this motion, particularly in light of my own personal history on the issue. I have always been deeply concerned about the rights of Canadians and the freedoms that we have in our society.

Going back to Bill C-36 and what is presently under consideration by this House, the motion to give an additional three years to the anti-terrorism law, it turns out that I am going to have to confess to the House and to Canadians that I made a mistake. I made a mistake five years ago when I voted against this anti-terrorism bill. It was the position of my party to support the Liberal government on the anti-terrorism bill.

The bill was proposed immediately prior to the break week in October, and the debate proceeded to the break week around Remembrance Day. During that period of time and those two breaks, I went around my constituency. I went to classrooms and to coffee shops. I conducted town halls. I listened to the people in my constituency.

The major concern coming out of all of that was the fact that the anti-terrorism bill as such was so odious and so bad, and so crushed the individual freedoms and liberties for which hundreds of thousands of Canadians died, that nobody wanted the bill. Although there are the two provisions that are now before the House for debate in the bill, and there is a five year sunset clause, there are other provisions in the Anti-Terrorism Act that are virtually equally odious to the sense of freedom and the sense of fair play that we have in our society.

As a consequence of that, I chose to take a position contrary to the Canadian Alliance position at the time and contrary to that of my leader. I was one of two people in our party, I believe, who stood up and voted against that bill.

I am happy to say that I was wrong. I was wrong with my vote because, in the intervening period of time, we have seen that the police forces, the people who protect Canadian society, have not had occasion to enact any of those provisions, and that is good.

I was also wrong in taking a look at the potential for there to be a miscarriage of justice, for the potential for there to be excessive use, and for the potential for civil liberties of Canadians to be taken away.

Quite frankly, I feel somewhat qualified to speak to this particular motion because of the strong sense that I as an individual representing the people of Kootenay--Columbia have about the individual civil liberties of everybody in Canada.

Taking a look at this motion per se, and having listened to the presentation by the member for West Vancouver—Sunshine Coast—Sea to Sky Country, I find his position, if indeed it is representative of where Liberal members are coming from, to be absolutely breathtaking in the scope of its hypocrisy.

His position is unsustainable when we look at the fact that my colleague from Abbotsford and I pointed out, which is that it was the Liberal justice minister who went before the press gallery, who spoke very well, very strongly and very purposefully about the Anti-Terrorism Act, and who actually saw the incarceration of these men. If it was not she, it was her predecessor, also a Liberal justice minister.

For him to be standing here and saying that just because we have changed government, just because the Conservatives are now in charge of the keys on the doors that we should be changing the system, if there is such a thing as logic in that argument, it absolutely eludes me. I do not comprehend other than for possible political posturing and advantage, why he would have chosen to have made that speech.

Although I disagree in the most fundamental way with the position the NDP members are taking on this issue and the position they take on a number of related issues, in my judgment, although I believe they are fundamentally wrong, they are nonetheless doing it because they believe it. There is a consistency to the NDP position.

There is a total inconsistency to the Liberals' position. We never know what it is going to be from day to day. The new leader of the Liberals I believe took a position on the anti-terrorism bill, or at least certainly his party did, which the Liberals have now completely overturned and flip-flopped on.

As a person who is deeply concerned about the personal freedoms and the rights that we have in Canada, I say to the Liberals to get their act together, to get some principles on the positions they are going to be taking on these issues. It is far too important.

I will argue and do everything I can within the law, within the legislative power of Parliament to defeat what the NDP members are talking about, but I do respect the fact that they are taking what they consider to be a principled position. It is a position that they have.

I find myself in despair over the fact that on issues that are so fundamental, so bedrock to who we are as Canadians and what our society represents, the Liberals wish and wash and flip and flop and we never know where they are going to end up.

I felt compelled to stand on this issue because it is one that has been immensely important to me as long as I have had the extreme privilege that I have had to represent the people of Kootenay--Columbia in this place.

Anti-terrorism Act

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, let me say to the member for Skeena—Bulkley Valley that in the subcommittee we are looking at all other aspects of Bill C-36. It is a very comprehensive review. That report will be finished in the not too distant future. Really, I hope the government looks at that report seriously.

With respect to Mr. Arar, my argument would be that these provisions have not been used. If the provisions of investigative hearings and preventive arrests had been abused since 2001 until today, I would be the first one to say we should sunset them. In my judgment, and I think in the general consensus, they have not been abused because they have not been used.

Therefore, my argument would be that because they parallel many of the provisions currently available in the Criminal Code, although they are not precisely what is needed under Bill C-36 and that is why they were written in, my argument would be that they have not been abused, they are still needed, and they therefore should be extended.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, being the member for Etobicoke North, I will not be saying how I will be voting either on this matter.

I am pleased to enter the debate on this motion that has been brought before the House by the Conservative Party to extend for a period of three years the provisions related to preventive arrests and investigative hearings.

I serve on the subcommittee and in fact I served on the subcommittee in the previous Parliament as well. We agreed to revive the former testimony from the last Parliament so that we could get on with the recommendations. We are working still very feverishly on the main body of the report. Unfortunately we had to uncouple the provisions related to investigative hearings and preventive arrests because they have the sunset clauses. I believe they will sunset this week. Those provisions had to be uncoupled from the main body of the report and that is why they are on the floor of the House today.

I know that the committee is doing a lot of hard work on the Anti-terrorism Act generally. There will be a report at some point, hopefully in the not too distant future, which I think will respond to many of the concerns raised by many Canadians.

I am disappointed that the government has chosen to ignore the 10 recommendations of the subcommittee and has brought in only two of the recommendations. In fact, the two recommendations with respect to extending the provisions differ from the recommendations of the subcommittee. The subcommittee recommended that they be extended for five years. We did that because we know how long it takes to review these provisions. These are very complex matters. They require a lot of testimony and witnesses on both sides of the issue. If there was a three year review, I would suggest that some subcommittee would have to begin that review almost immediately.

Some of the other recommendations were more of a housekeeping nature, but there were a couple of recommendations that were important and the government has chosen to ignore them. I raise the same concern as my colleague from the Bloc. I am hoping that as we are putting in this effort at the subcommittee that the government will actually listen to what the subcommittee has to say.

On a general theme, it is very difficult to get balance in life. That could be at a personal level. How does one balance one's professional life and career with a family? How do we balance so many different competing demands on us as citizens? That is very true, in fact more profoundly true, for governments and parliaments when they have to find the right balance between protecting their citizens against threats to their security, whether those threats are internal or external, and balancing that against the legitimate rights of Canadians to have their civil liberties protected and respected, for their privacy rights to be respected, and for their rights and freedoms to be protected. It is never an easy task and it will never be an easy task. It was not an easy task in 2001 and it is not an easy task here today when we are presented with these issues.

It would be easy for me to hide behind the fact that I was on the subcommittee in both Parliaments. I heard all the testimony. In fact, I had the great honour to serve as parliamentary secretary to the minister of public safety and emergency preparedness in the last parliament. I am not going to hide behind all that because I think all of us in this House know what the issues are.

There are questions around the fight against terrorism and the protection of civil liberties. That is what it is about. At the committee we heard from both sides. We heard from civil libertarians that these provisions were excessive and we heard from many other witnesses that the provisions were necessary or in fact did not go far enough.

This is what life is about. We have to wrestle with these issues and we have to make some decisions.

What I would like to do first of all is to come back to the recommendations that the government, at this point and perhaps forever, has chosen to ignore.

What the subcommittee recommended was that investigative hearings only be available when there is a reason to believe there is imminent peril that a terrorist offence will be committed. It surprised me to learn that right now an investigative hearing can be called into play when a terrorist act has already been committed. We challenged the government members at the time to bring forth evidence that would justify that provision, not just looking forward, but looking backward. We were not able to get that evidence, so we made that a recommendation.

With respect to preventive arrest, we said that a peace officer must have reasonable grounds to believe a terrorism offence will be committed. The government has chosen at this point not to deal with that one. It is difficult, when the government comes in with two out of ten recommendations and two of the recommendations are different from what the subcommittee recommended, to respond to that.

In a general theme, my view is that since 2001, nothing much has changed. We still face the threat of terrorism. I would agree with my colleague from Leeds—Grenville that perhaps a terrorist threat is more complicated, more intense, more sophisticated than ever before. I do not think much has changed since 2001. If anything, the terrorist threat could be worse.

It is no secret that our forces are fighting in Afghanistan. That has many people not very happy with us. We are on the al-Qaeda list, not necessarily because of Afghanistan, but perhaps for other reasons as well. I do not believe that the terrorist threat has diminished very much, if at all. In fact, I think it has probably increased.

I can certainly respect the judgment of my colleagues in the House on this side and the other side that 2001 was a grand compromise. Many in the House felt that preventive arrest and investigative hearings were instruments that were too severe and, as a compromise, the sunsetting provisions were written into Bill C-36. Today, five years later, the debate is if they have not been used, they are not needed, and therefore that is why we did sunset them. That was the purpose of it. Because we were not comfortable with them back in 2001, and therefore we should be sunsetting them.

I certainly respect that point of view. It is not a point of view I agree with, but that is what this place is all about, having debate. I do not agree with it because I believe that the other argument is equally or, in my judgment, more valid. If those provisions have not been used, then clearly the concerns of those in 2001 that maybe law enforcement or authorities would abuse these provisions has not been borne out. They have not been used. For me, that makes the case that we should extend them.

We know that with respect to investigative hearings there was a time during the Air-India inquiry when an investigative hearing was requested, but by the time the Supreme Court ruled, and the Supreme Court ruled that it was an appropriate instrument, it was too late because the Air-India work had been completed. That was a decision of the Supreme Court. The investigative hearings as a function have never been used, nor have preventive arrests.

Last summer 15 young people were arrested in the Toronto area. Some ask if the provisions of Bill C-36, the anti-terrorism legislation, were used. They were not used. Some argue that if they were not used, then why do we need them. It is a good debate.

What we are missing here is that there will be occasions when there is enough evidence to arrest people under the normal provisions of the Criminal Code, but we do know that with terrorism offences, sometimes all that the security people or the law enforcement people are seeing is maybe email messages, sometimes encoded, but they have a very strong feeling that some terrorist attack might be imminent. In a case like that, they might not have all the evidence they need to arrest people under the current provisions of the code and they may need the provisions under Bill C-36.

I recall the testimony of the ombudsman from the United Kingdom who came to our committee. He basically oversees the anti-terrorism regime within the United Kingdom. When pressed about why these provisions were necessary, he used the analogy of when the police believe that a bank robbery is imminent, but they do not have a lot of evidence and they just put two and two together. The police have been around and have seen it all and can figure things out sometimes that something is about to happen. With a bank robbery, if they thought that something might be happening, they could stake out the bank and just watch for signs of suspicious activity.

This witness from the United Kingdom said, and I think he is so right, that with a terrorist attack we cannot stake out the place. If someone comes in with a bomb and blows up a building, it is too late because the person, who probably would look like any of us, would walk in and might have bombs or other terrorist instruments and therefore we cannot stake out the joint. We have to deal with it.

That is why these provisions were put into Bill C-36 and that is why I believe that they are still required.

I think there is misinformation circulating with respect to these provisions. There are already provisions in Canada's law that are equivalent for example to investigative hearings. Investigative hearings are investigatory and not intended to determine criminal liability within the context of the law related to public inquiries, competition, income tax and mutual legal assistance in criminal matters. There are already provisions for investigative hearings in those areas.

With respect to recognizances with conditions, that is preventive arrest, there are equivalents with respect to peace bonds that are issued to deal with anticipated violent offences, sexual offences and criminal organization offences.

Both these legislative measures, preventive arrest and investigative hearings, already have some grounding in the criminal law of Canada. Unfortunately, these provisions themselves do not apply to terrorism offences so they had to be written into the law to be applicable to terrorism offences.

The member for Leeds—Grenville chaired the subcommittee. I was surprised that he was not able to have all 10 recommendations dealt with by his government. That is a disappointing aspect for me.

With the reports coming out of the Maher Arar inquiry, we are anticipating increasing demands for oversight over the RCMP and over CSIS. In fact, it was our Liberal government in the last Parliament that tabled a bill to set up a committee of parliamentarians to oversee our national security policy and agenda. I am hoping the government proceeds with that legislation or something akin to it because I think it is appropriate to have these oversights.

The drafting of the bill was worked out with all the parties in the House in the last Parliament. Whether it would have the support of all parties in this Parliament I do not know, but I suspect many of the same people are around and that we could reach some agreement on what should be in a national security committee of parliamentarians. I think more oversight is needed and that would be an important step.

Also, the Maher Arar inquiry has recommended certain initiatives to increase the oversight of our agencies: CSIS, the RCMP and perhaps the Canada Border Services Agency.

We also need to deal with some concerns by Canadians about the sort of star chamber aspects of some of the provisions of Bill C-36 and also the security certificates. Even though security certificates are outside the realm of Bill C-36, the subcommittee, in its wisdom or lack thereof, decided to include security certificates. I know that these are of much concern to many Canadians. The government refers to them as a three-walled cell. People can be detained under security certificates if they pose a national security threat to Canada but they are free to leave at any point in time. There are star chamber elements about that and I would like to see those dealt with.

There are also questions from various charitable organizations, and I think rightfully so, that feel they could be delisted when something inadvertently happens even though they applied the due diligence that would normally be expected.

There are many things that we can do to deal with the balance between civil liberties and the need to protect society against threats. In fact, I think there is a lot of outreach that the government and all parliamentarians should be doing. Under the previous Liberal government, we started a major dialogue with the Muslim community in Canada. I attended a meeting with the then prime minister, the member for LaSalle—Émard, when we met with 35 imams from across Canada. These imams were speaking out against the violence in the United Kingdom in which terrorists bombed buses and innocent people lost their lives.

These imams spoke out against that violence, so the then prime minister and my colleagues and I met with these imams, first to thank them and congratulate them for speaking out against violence and the injuries to and deaths of innocent bystanders, but also to begin a dialogue on how to reach and connect with the Muslim community in Canada. In my riding of Etobicoke North, I have the third largest Muslim community in Canada. These people are very much against violence and against injury to and the death of innocent bystanders. The imam there spoke out against that as well.

We need to do more. I think we need to do more at our border. We know what the policy is: no racial profiling. But we know about, and I have heard of, real life experiences of people coming across our border who have been treated unjustly, unfairly and with a discriminatory sort of bent. That is why our government launched the fairness initiative, which would have given everybody coming across our border an outlet to go to if they felt they were treated unjustly or discourteously at our border. They would have had an objective observer to complain to, where those matters would be dealt with and disciplinary action would be taken if that was what was uncovered. I hope the Conservative government introduces that.

We started a consultation process under the previous Liberal government, but I do not see anything coming forward to give people dignity and respect at our borders and to cut out racial profiling. Threat profiling? Absolutely. Racial profiling? Never. We should not allow that. We can take measures to start to deal with that.

We need to do more work. The government needs to orchestrate this with CSIS, the RCMP and the Canada Border Services Agency to redo the outreach to these communities, because there is a lot of misinformation. There is a lot of miscommunication. I do not mean to single out the Muslim community, but the Muslim community is affected. We have to deal with that. Muslims are largely affected. There are some misunderstandings. There is some miscommunication going on. We need to deal with it.

I hope this government seizes upon those opportunities to dialogue with the Muslim community, because the vast majority of the Muslim community is made up of peace-loving people. They too want peace and security in Canada. They tell me, “We live in this country as well, and we want peace and security for ourselves and our children and our children's children”. We need to do more dialogue and outreach. As I said, our Liberal government started that process, but I think much more needs to be done.

Twenty or more years ago now, in Canada we witnessed the Air-India terrorist attack, so anyone who argues that Canada is immune from a terrorist attack just simply does not get it, in my judgment. We cannot be naive about these things. These terrorist organizations are very organized. They are prepared to do whatever it takes to make their point.

To wrap up, nothing much has changed since 2001, in my judgment. I think we still have terrorist threats. While we do not like to infringe on civil liberties, in my judgment the balance is still appropriate. It is not Draconian in my view. I think it is still necessary to ensure that we protect our citizens, give them peace and security and, at the same time, reach a good balance with their civil liberties.

Proceeds of Crime (Money Laundering) and Terrorist Financing Act

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, I am quite happy to join the debate on such an important subject as Bill C-25, An Act to amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Income Tax Act and to make a consequential amendment to another Act.

This enactment amends the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to enhance the client identification, record keeping and reporting measures applicable to financial institutions and intermediaries.

It establishes a registration regime for money services businesses and foreign exchange dealers and creates a new offence for not registering.

It allows the Financial Transactions and Report Analysis Centre of Canada to disclose additional information to law enforcement and intelligence agencies and to make disclosures to additional agencies.

The bill permits the centre to exchange compliance related information with its foreign counterparts. It also permits the Canada Border Services Agency to share information about the application of the cross-border currency reporting regime with its foreign counterparts. It also includes a consequential amendment to the Canada Border Services Agency Act.

The bill creates an administrative monetary penalty regime, something which certainly seems to be needed.

It also amends the Income Tax Act to allow the Canada Revenue Agency to disclose to the centre, the Royal Canadian Mounted Police and the Canadian Security Intelligence Service information about charities suspected of being involved in terrorist financing activities.

Everyone in the House will likely agree that one of the best ways to fight organized crime and terrorism is to starve those involved of the funds that they need to operate. Stemming the flow of illegal money is of great importance, and it is equally important that we protect the privacy and the charter rights of individual Canadians.

Bill C-25 is a step in the right direction and contains much of what the previous Liberal government was in the process of developing. We will certainly support it in principle at this stage of debate.

The proposed amendments in the bill will make Canada's anti-money laundering and anti-terrorist financing regime more consistent with new financial action task force standards. They also follow some of the recommendations made in the 2004 Auditor General's report and in the 2004 Treasury Board evaluation of the regime. I will now turn to some of the key features in this bill.

There are enhanced client identification and record keeping measures for financial institutions and intermediaries. The proposed amendments include requirements for reporting entities to undertake enhanced monitoring of high risk situations, correspondent banking relationships and transactions by politically exposed persons. Banks, insurance companies, securities dealers and money service businesses would be required to take measures to identify and to monitor the transactions of foreign nationals and their immediate families who hold prominent public positions.

There is the reporting of attempted suspicious transactions. All reporting entities currently reporting suspicious transactions would be required to report suspicious attempted transactions to FINTRAC. This is the practice in other G-8 countries and is consistent with financial action task force recommendations.

Another feature in the bill is the registration regime for money service businesses and foreign exchange dealers. The proposed amendments would create a federal registration system for individuals and entities engaged in money service businesses or foreign exchange. FINTRAC would act as the registrar and would maintain a public list of registered money service businesses and foreign exchange dealers. These businesses are already covered by the Proceeds of Crime (Money Laundering) and Terrorist Financing Act; however, given that this is an unregulated sector, the registry will assist FINTRAC in ensuring compliance with the act.

The bill refers to enhancing the information contained in FINTRAC disclosures. As recommended in the 2004 Auditor General's report and at the behest of law enforcement, the proposed amendments enhance the information FINTRAC can disclose to law enforcement and security agencies on suspicions of money laundering or terrorist financing. This will increase the value of FINTRAC disclosures, ultimately leading to more investigations and eventual prosecutions.

The bill creates an administrative and monetary penalties regime. Currently the act only allows for serious criminal penalties if the act is contravened. FINTRAC requires the ability to levy fines to deal with lesser contraventions in order to take a more balanced and gradual approach to compliance. The amendments create an administrative and monetary penalty system whereby fines can be applied for non-compliance. This was a recommendation in the 2004 Auditor General's report.

The bill reintroduces requirements for legal counsel. The government is working with the legal profession, including notaries in Quebec, to finalize requirements for client identification, record keeping and internal compliance procedures for legal counsel when they act as financial intermediaries. The bill removes the obligation for legal counsel to file suspicious transaction reports or other prescribed transaction reports.

The bill expands information sharing between federal departments and agencies. The amendments in the bill would expand FINTRAC's ability to share information with the Canada Border Services Agency, the Canada Revenue Agency and the Communications Security Establishment. In addition, FINTRAC would be able to receive terrorist property reports under the United Nations act regulations.

Internationally, the enforcement of the anti-money laundering and anti-terrorist financing requirements would be strengthened by information sharing provisions on compliance related information between FINTRAC and its foreign counterparts on obligations applicable to the financial sector and between the Canada Border Services Agency and its foreign counterparts on the enforcement of the cross-border currency reporting regime.

This bill proposes to make some necessary changes to the previous government's Bill C-36, the Anti-terrorism Act of 2001. Changes such as these will likely be required every few years as money launderers become more sophisticated and police need new powers to fight them. This is precisely what makes money laundering so difficult to combat. No matter how many safeguards and checks we as legislators put in place, the criminal element will always look for new ways to avoid or to counter them.

Canada's financial intelligence agency reported $5 billion worth of suspected money laundering and financing of terrorist activities last year alone. That total is more than double the one a year earlier. Of that, $256 million is tied to suspected terrorist financing. Of the 143 reports FINTRAC made to law enforcement agencies, there have been no convictions. The Auditor General in 2004 suggested that allowing more information to flow to law enforcement authorities would help in investigating these suspicious activities. This bill provides these powers.

This bill is largely derived from recommendations made by the Department of Finance under the previous Liberal government's tenure. Money laundering and terrorist financing have economic and social costs against which we must remain vigilant. In order to achieve this, we must continually re-evaluate how we monitor and disclose suspicious transactions as the nature of these activities changes and continually becomes much more sophisticated. The government must move to stem the tide of money laundering and terrorist financing and at the same time protect the privacy rights of law-abiding Canadians.

Given that both the Auditor General and the RCMP have expressed concern that exemptions for the legal profession leave serious gaps in this legislation, I am concerned with the government's decision to remove the obligation for legal counsel to file reports of suspicious transaction with FINTRAC.

Our colleagues in the other house recently tabled a report entitled “Stemming the Flow of Illicit Money” which made several recommendations, some of which are in the bill and some of which are not. I would also like to see the Senate Standing Committee on Banking, Trade and Commerce recommendations for Parliament to have greater powers to also scrutinize FINTRAC.

One of the main concerns I have is that we are not bringing some of the businesses that currently do not fall under FINTRAC's guidelines into the bill. As the banking, trade and commerce committee reported, the RCMP believe that as stricter regulations are imposed on businesses in the financial services industry, criminals are seeking alternative methods of laundering the money accumulated from criminal activity.

Various characteristics of the precious metals, stones and jewellery industry make it highly vulnerable to criminal activity. The RCMP has identified these businesses as a likely place for criminals to launder money, yet this bill does not require them to report suspicious transactions as financial institutions must. I strongly recommend that all of us in all parties work together to make sure that we amend this law so that it reflects clearly what is needed.

Another weakness that has been identified by both the Auditor General and the RCMP is that lawyers are not required to disclose suspicious transactions to FINTRAC. This is, of course, another delicate balancing act. On the one hand, we need to give law enforcement the ability to track down those who launder money, using a lawyer as a financial intermediary. On the other hand, we have the issue of protecting solicitor-client privilege. This bill strikes a compromise between the two and I look forward to studying whether this compromise is appropriate under the circumstances.

Another major concern with the bill is that it does not adequately ensure that the privacy of Canadians is protected. The bill will allow FINTRAC to share greater amounts of information with law enforcement agencies. This is necessary in order for those agencies to fully investigate suspicious transactions and to eventually prosecute where appropriate.

Another part of the bill that does not work as effectively as we would like to see is to provide increased protection for the privacy of Canadians, such as by creating an independent review commission with the powers and authority to conduct random reviews of an agency's files and an agency's operations. The Auditor General has also recommended that some such commission be created. In her 2003 report, she wrote:

The government should assess the level of review and reporting requirements to Parliament for security and intelligence agencies to ensure that agencies exercising intrusive powers are subject to levels of external review and disclosure proportionate to the level of intrusion.

It is extremely important that be put in place as this legislation goes forward for the review. Essentially, if we are going to give FINTRAC the ability to share more of Canadians' personal information with bodies like the RCMP and the Canada Border Services Agency, then should we not also move to ensure there is sufficient oversight of FINTRAC to ensure that the information that it is disseminating is appropriate?

As I said before, this is by and large a good bill. It has certain omissions and weak points and I feel that we should all work to amend it at the committee stage, but overall it will provide the police and prosecutors with some of the tools they require to combat money laundering and terrorist financing.