Bill S-3 (Historical)

An Act to amend the Criminal Code (investigative hearing and recognizance with conditions)

This enactment replaces sections 83.28 to 83.3 of the Criminal Code to provide for an investigative hearing to gather information for the purposes of an investigation of a terrorism offence and to provide for the imposition of a recognizance with conditions on a person to prevent them from carrying out a terrorist activity. It also provides for those sections to cease to have effect or for the possible extension of their operation.

Criminal Code

[The Deputy Speaker, NDP, Bill Blaikie]

When the House was last debating this matter, the hon. member for Surrey North had the floor. She has five minutes left, which I presume she wants to exercise.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, forgive my eagerness to speak to the many flaws in the bill.

As I say, this bill supposedly has a provision for the arrest of a person involved in an imminent terrorist threat, thereby disrupting the terrorist activity. We support the idea that we should disrupt an activity like that, but if someone is planning a terrorist act, the Criminal Code already allows for him or her to be arrested and held for up to 72 hours.

The bill also says that persons will have a peace bond for something that they may not even have done. We have never seen this before with peace bonds. Why do we need this? Under the Criminal Code mechanism, if no evidence is found leading to charges against the person, he or she must be released. That is what the Criminal Code says.

However, Bill S-3 goes one step further, and that is the problem. These individuals are released under conditions. There could be a variety of conditions. They may be perfectly reasonable for somebody who is convicted of being involved in terrorism, but not when there is no evidence of doing anything wrong.

It is extremely unjust. As Craig Forcese said, “One would imagine that a peace bond is likely to be ineffectual in relation to a suicide bomber”.

The last point I would make about this, and civil liberty groups have sharply criticized this as well, is that if a person is detained, a file is opened on that person. If a file is opened, it stays with that person and impairs his or her freedom to travel and apply for a job. It is a negative stigma that stays around the individual.

Let us keep in mind that we are talking about people who may have done absolutely nothing wrong. New Democrats will not and cannot support a bill that will punish people who are not guilty of any criminal activity.

As I mentioned earlier, many members of other parties in this House are also opposed to this legislation. I am speaking now specifically for my Liberal colleagues, as many of them took a very principled stand and voted against this legislation when it came to the House earlier in the session. They did the right thing. They stood up, but what will they do now?

I expect that they may do what they have done all along since the member for Saint-Laurent—Cartierville won the leadership of the party. They may sit on their hands. I find it particularly egregious that Liberals would support the bill when I know many members of their caucus share the same concerns I have voiced here today.

Voting for Bill S-3 is not like voting for the budget as a strategy to avoid an election. Standing shoulder to shoulder with the Conservatives and voting for Bill S-3 is giving approval to major changes and it strikes at the heart of Canadian values. I am calling on my Liberal colleagues today to do the right thing and vote with the NDP against the legislation.

I understand that members of the Bloc Québécois are on the same side of the issue as we are expressing, so a Conservative-Liberal alliance will be what it will take to pass Bill S-3. I hope Liberals have the courage to take a stand. As I have already said, ensuring public safety is about protecting quality of life. A good quality of life depends on a balance between freedom and security.

The investigative hearings are flawed. They do not accommodate the guidance of the Supreme Court of Canada. This is vulnerable to misuse. The recognizance with conditions provision is fundamentally opposed to a core value in our justice system: that a person must be guilty of doing or plotting something in order to be punished.

Therefore, both provisions of Bill S-3 are flawed beyond repair, but the NDP's main reason for opposing the legislation is that in point of fact it is unnecessary. The Criminal Code can be used to attain the goals that I have spoken of today.

Many groups have spoken to the standing committee. I think we will be hearing from other speakers later in the day who have talked to Muslim and Arab groups, who know there are particular people who may be more vulnerable to these kinds of conditions under Bill S-3, just as they were under Bill C-3.

It is simply unacceptable to take something that has been a core value of this country for so long, which is that one must be guilty of something for us to punish that individual, and throw that away and say no, we just have to think that someone might think about doing something. It is unacceptable to say that we do not actually know that someone will do something, but we are still going to find that someone guilty and punish him or her by placing conditions upon that person.

It is simply unacceptable. It hits at our core values. As Canadians and as parliamentarians, we should absolutely reject any kinds of changes that go down what is a very slippery slope toward taking away the freedoms of Canadians.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I would like to ask the member if she could tell us what are the consequences, in her opinion, for individuals who may be condemned—if we can say that—to having to sign a recognizance with conditions? What are the consequences, in today's world, that an individual will have to live with afterwards and, if the suspicions about them were completely unwarranted, what means are available to remove this mark from their file?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I think many people will look at the conditions in the bond and sign it but not understand what the conditions will mean in what they are able to do in their lives.

Let us think for a minute. People frequently travel back and forth across the border between Canada and the United States. They will get to the border, the border officials will check their name and they will find they have a peace bond against them. They will likely be refused. They may have family in Europe, the continent, India or wherever. Many people go back and forth to visit family. I have, as others have. They will be refused.

They need to make a living. Will this be reported to their employer? When they go to change jobs and people do proper reference searches, which they should do, of course, what will show up is that the person has been detained and has had to sign a peace bond to be out in the community. For employers, who may have a variety of people to pick from, and certainly in many areas they do, then the person with the peace bond will, most likely, not be selected. It has now affected his or her employment.

What if this is a mom who is in the hospital delivering her baby. She may require some medical assistance, assistance from social services around parenting or a public health nurse. If people look at her file and find that she has a peace bond against her, will that influence the way that people hover and watch the way she raises her child, although potentially she may have done nothing wrong?

My colleague raised a very important question about travel and employment. If people do have a peace bond, I do not think that many of the people who will be doing a reference check or a check for medical or social services will wonder whether the person was really innocent even though she or he has a peace bond. Most people will assume that the person is guilty and that she or he has done something wrong. That negative stigma and that file will stay with the person.

What can people do about it? My understanding is nothing. Actually, they can go to jail for a year by refusing to say anything, but in that case they would not find themselves with the peace bond. However, their only other option is to say nothing and potentially go to jail for a year. They do not have an appeal process. They do not know why they have been picked up and detained. As in Bill C-3, they have very little recourse to protect themselves.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I have a question for my colleague relating to Bill S-3.

We are watching the erosion of civil liberties. She has really articulated the connection of the individual impact but also how it will relate to their employment and their family, which has greater consequences for us. Living on the border, I deal with that on a regular basis. Even with mistaken identity, where people are often assumed to be someone else, that has affected their clean record to get across the border.

We have been clear on our strategy about this. Why does the member believe the Liberal Party is backing away or splitting on this issue when it really has significant consequences? A lot of time and money has been wasted in the House with regard to failed bills in the past and this one seems to be setting itself up to be a failure.

I would like to hear her comments on that.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I can only speculate. I would hope that some of the Liberals who are in the House today will be standing to speak on behalf of the bill. From the calls I have had to my office, I know they must be getting the same calls from people concerned about the bill.

When bills have failed before around Conservative-Liberal alliances, it may have been because some of those times the Liberals have agreed with the Conservatives. They would applaud that I am sure.

It seems to me that much of this is about strategy. I understand that political strategy is a consideration as we think about voting, although I would hope in the end never the consideration. However, for it to cause an election and to take away basic rights and freedoms that Canadians have always had in order to forestall facing the voters would chop away at the whole underpinning of Canada and Canadians and what people in this Parliament have striven to put in place for a balance between freedom and security.

We have seen quite a bit of political strategy on the part of the Liberal opposition. They are not standing up to vote on matters that seem pretty clear and ones they would normally vote on. I think the public is beginning to understand that is not what their constituents are telling them. They only seem prepared to talk about their right to govern.

[Tony Martin, NDP, Sault Ste. Marie, ON]

Mr. Speaker, I just wonder if the member would share her thoughts on what the Liberals' position is on the bill.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, we will not know their position until the bill comes to a vote.

I was pleased that the Liberals supported it when it was in the House before so I would expect them to support it this time. My understanding, from speaking with people, is that they will not be supporting the bill. Perhaps I will be surprised. They stood before to support it and they may stand again to support it. It will be a busy world.

I will be surprised if the Liberals stand in support of this legislation. Since there has been no change and since they supported before, I expect they will support it again. However, my understanding is that they will not be supporting it, although that is not official as I have not heard it from their leader. We will wait and see. If they supported it before and there is no change, and they do not support it this time, it will be very clear to everybody, including their constituents, why they have not supported it.

The House resumed consideration of the motion that Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I am very happy to address hon. members in this House on the importance of the powers contained in Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

The investigative hearing and the recognizance with conditions provisions are tools that were designed to assist law enforcement agencies and strengthen their ability to prevent acts of terrorism.

I would also like to note that I chaired the subcommittee of the Standing Committee on Public Safety and National Security which reviewed the anti-terror bill. At this time I propose to describe in some detail what these two provisions achieve. I will then address how this bill responds to the interim report of the House subcommittee that tabled that report in October 2006, and the Senate's special committee report that was tabled in February 2007.

First, I will talk about the investigative hearing.

The investigative hearing provision would allow the courts to compel a witness who may have information about a terrorism offence to testify and provide information about the offence. The process relating to this provision works as follows.

With the prior consent of the Attorney General, a peace officer investigating a terrorism offence that has been or will be committed may apply to a judge for an order requiring a person who is believed to have information concerning the terrorism offence to appear before the judge to answer questions and/or produce something.

If a judge believes there are reasonable grounds that a terrorism offence will be committed in the future, that the person has direct and material information and that reasonable attempts have been made by other means to obtain the information, the judge may make an order for the gathering of information.

It is important to note that this investigative hearing provision and the process were found to be constitutional by the Supreme Court of Canada in 2004. The reason this provision was found to be constitutional lies in the safeguards that are intimately attached to the exercise of this power. I will note those safeguards.

First, only a judge of a provincial court or of a superior court of criminal jurisdiction can issue the order to hold an investigative hearing.

Second, before an application for the investigative hearing order can be made, the Attorney General of Canada, or the Attorney General or Solicitor General of the province, needs to consent to making the application for the order.

Third, the person ordered to attend at the investigative hearing has the right to retain and instruct counsel at any stage of the proceeding.

Fourth, any incriminating evidence given by the person at the investigative hearing cannot be used against him or her in a further criminal proceeding except for prosecutions for perjury and giving contradictory evidence. This prohibition also applies to derivative evidence, that is, evidence that is found or derived from the evidence initially gathered in the context of the investigative hearing.

Fifth, the Supreme Court of Canada has also ruled that through the use of this provision there is a constitutional exemption against self-incrimination that precludes testimonial compulsion where the predominant purpose of the proposed hearing is to obtain evidence for the prosecution of the person. In other words, a person cannot be brought before a judge and be compelled to provide evidence if the predominate purpose is to gather evidence against that person to lay charges against him or her.

Sixth, the Attorney General of Canada and the Attorney General of the provinces were and continue to be required to report annually on the use of the investigative hearing provisions.

Finally, it is to be noted that the Supreme Court of Canada held that the protection against self-incrimination in investigative hearings carried out in the context of criminal investigations also extended to deportation and extradiction matters.

At this time I would like to move on and talk about the recognizance with conditions provision.

This provision would give the court the power to issue an order requiring a person to enter into an undertaking whereby he or she accepts to respect certain conditions imposed upon him or her to prevent the carrying out of a terrorist activity. The purpose of the provision is to create a mechanism that would allow the authorities to disrupt the preparatory phase of terrorist activity rather than act after the fact.

The provision is not designed to detain a person, but rather to release the person under judicially authorized supervision. The process by which the recognizance with conditions operates is as follows:

With the prior consent of the Attorney General, a peace officer who reasonably believes that a terrorist activity will be carried out and who also reasonably suspects that the imposition of a recognizance with conditions or the arrest of a person is necessary to prevent the carrying out of a terrorist activity, may lay an information before a provincial court judge. That judge may then cause that person to appear before him or her or any other provincial court judge. In very limited circumstances the peace officer may arrest that person without a warrant in order to bring him or her before the judge.

In any event, a person will be brought before a judge within 24 hours, or as soon as possible, if a judge is not available within this time period. If the person is detained to protect the public or to ensure his or her attendance at a subsequent hearing, the matter may be adjourned for a maximum of 48 hours. Thus, generally speaking, the person can only be detained for up to 72 hours.

If the judge determines that there is no need for the person to enter into a recognizance, the person will be released.

If the court determines that the person should enter into a recognizance, the person will be bound to keep the peace and respect other specified reasonable conditions for a period not exceeding 12 months.

Only if the person refuses to enter into such a recognizance can the judge order that he or she may be detained for up to 12 months.

As in the case of the investigative hearing, the recognizance with conditions is also subject to numerous safeguards. These are:

The consent of the Attorney General of Canada or the attorney general or solicitor general of the province is required.

The peace officer could also only lay an information before a judge if he or she believes on reasonable grounds that a terrorist activity will be carried out and suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of a terrorist activity.

The judge receiving the information would have a residual discretion not to issue process, for example, where an information is unfounded.

A warrantless arrest of a person could only be made in very limited circumstances, for example, where the grounds to lay an information exist, but by reason of exigent circumstances, it would be impractical to lay the information, and the peace officer suspects on reasonable grounds that the detention of a person is necessary in order to prevent a terrorist activity.

If a person is arrested without warrant, the officer must either lay an information before the judge, generally within 24 hours, or release the person. Before laying the information, the peace officer must obtain the consent of the relevant attorney general.

A person detained in custody must be brought before a provincial court judge without unreasonable delay and in any event, within 24 hours of arrest, unless a judge is not available within that period, in which case the person must be taken before a judge as soon as feasible and the hearing must be held within 48 hours.

A judge must be satisfied on the evidence adduced that the peace officer has a reasonable suspicion that it is necessary to have the person enter into a recognizance with conditions before ordering that the person enter into a recognizance to keep the peace and be of good behaviour, and to comply with any other reasonable conditions for a period of 12 months.

Only if the person refuses or fails to enter into the recognizance can he or she be jailed for up to 12 months.

The person entering into a recognizance has the right to apply to vary the conditions under the recognizance order.

Federal and provincial attorneys general would continue to be required to report annually as appropriate the use of this power, while the Minister of Public Safety and the minister responsible for policing in each province would continue to be required to report annually on the arrest without warrant power.

I have focused my remarks on two well-designed tools that are meant to aid law enforcement agencies in their efforts to prevent the commission of a terrorist activity, tools that are also dressed with robust safeguards. One of the provisions has already been declared constitutional by the Supreme Court of Canada.

How much better can it get? One would think that there is no need to make changes to the wording of the original provisions considering the above, but as always, this government continues to strive to make our laws better and to do so in cooperation with all members of the House and the Senate. For that very reason, our government has responded favourably to a good number of the recommendations of the House subcommittee and the special Senate committee that reviewed the Anti-terrorism Act. Both of these committees made a number of recommendations in relation to these two powers.

Here are the amendments to the original provisions that the government either proposed or accepted, and that are now found in Bill S-3:

Subparagraph 83.28(4)(a)(iii) was modified by adding a safeguard to the section dealing with past terrorism offences. Under the proposed legislation, an order for an investigative hearing may be issued only if the judge to whom the application is made is satisfied that “reasonable attempts have been made to obtain information” by other means. In this context, “reasonable” means that, where possible, police will have tried other sources for obtaining the information they seek before resorting to the use of investigative hearing.

Previously, a similar but narrower provision had applied only to future terrorism offences, not past ones. This new wording also applies to future terrorism offences, as can be seen in subparagraph 83.28(4)(b)(iii).

The bill also caps the maximum detention time for a witness brought in under an investigative hearing order by specifying in subsection 83.29(4) that section 707 of the Criminal Code, which sets out the maximum period of detention for an arrested witness, applies to investigative hearings.This is meant to address the concerns that were expressed by the House subcommittee that it was unclear to what extent release mechanisms elsewhere in the code applied to the investigative hearing process. Technical wording changes were also made to address various recommendations made by the House subcommittee.

Finally, proposed subsection 83.31(1.1) would enhance the reporting requirements by the Attorney General of Canada with respect to the investigative hearing provisions. The Attorney General of Canada would be required to provide his or her opinion, supported by reasons, as to whether these provisions continue to be necessary. This change implements part of recommendation 17 made by the special Senate committee.

As can be noted in regard to the investigative hearing provision, Bill S-3 effectively incorporates many of the recommendations made by the House of Commons and the Senate. The one substantive proposal that the bill did not incorporate was the recommendation of the House of Commons subcommittee that the investigative hearing power be limited to the investigation of imminent terrorism offences and not past terrorism offences.

The government could not respond favourably to this recommendation and there are many reasons why this is so. To begin with, this proposed limitation would forestall entirely the possibility that the investigative hearing could be used in relation to the ongoing Air-India investigation.

This recommendation would also prevent the use of an investigative hearing to gain information about a terrorism offence after the offence has already occurred, even in the very recent past. For example, if a terrorist attack were to occur in Canada similar to the attacks in the U.K. on July 7, 2005, the police, on the day after the attack, would not be able to use this power, since the attack would have already taken place and despite the fact that it may be a prelude to a further terrorist attack.

This recommendation implies that terrorists will only ever commit one terrorist offence. The better view is that after a terrorist group has committed an offence, whether it is participating in a training camp, fundraising, or an act of violence, the justification for the use of the investigative hearing is even more compelling. This is because, aside from the need to bring the perpetrators to justice, there is a requirement to prevent the group from continuing with its activities.

To adopt this recommendation would have the effect of preventing the use of an investigative hearing to gain information about a terrorism offence after the offence has already occurred, even an offence that has occurred in the very recent past.

This government believes that a terrorist activity, be it past or future, unquestionably merits the same tools as they both respond to a specific need expressed by our law enforcement agencies in their fight against terrorism. To do otherwise would be unacceptable.

Moving on with the other amendments that this government agreed to make in response to the committee's recommendations, though largely unchanged from its previous incarnation, the recognizance with conditions provision in Bill S-3 brings about an additional annual reporting requirement that was recommended by the special Senate committee on the Anti-terrorism Act.

As for other changes brought to the original legislation, the House of Commons Subcommittee on the Review of the Anti-terrorism Act recommended that both provisions be extended for five years, while the special Senate committee recommended that they be extended for three years subject, in both instances, to the possibility of a further extension following resolutions passed by both houses of Parliament.

What Bill S-3 proposes is to allow Parliament to extend the existence of one or both provisions for a period of five years. While the original legislation made it clear that a resolution could be tabled to extend both provisions, it was not clear from the wording whether a resolution that would extend only one of the powers could be tabled. The new wording would explicitly permit the extension of either or both of these provisions.

Other changes made by the Senate will be referred to by other hon. members who will also speak.

As has been made clear in my remarks today, there is no question that the government has given proper consideration to the various recommendations made by the House of Commons and the Senate and that, in doing so, we have improved both the investigative hearing and the recognizance with conditions provisions. Given this, I invite all members of the House to support this bill and reinstate these two important tools.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, one thing that has to be addressed is that this is a Senate bill and there is an important element to that. We are talking about a bill that nobody can deny is going to change civil liberties in this country. It is going to create another procedure that is different, that limits rights and limits the ability for people to even defend themselves in the context of our current laws. That is even acknowledged by the Canadian law society and others that have advocated for different amendments, because it deals with things such as personal information that could be exposed not only internally but externally and the legacy that could leave on a person's life.

I would like to ask my colleague how he feels about this bill originating in the Senate. His party has been saying that there needs to be Senate reform, despite the fact that the Conservatives appointed a member to the Senate, a cabinet minister, and the Prime Minister has been critical of the Senate in the past. At the same time, when it comes to seeing significant changes in Canadian democratic law, they come from the Senate, which is not accountable.

I would like the member to address that issue. It is a quandary. This issue which is so important for our democratic rights in Canada is coming about by a group of individuals who are not accountable.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, the member expressed some concerns about the content of the bill. There are safeguards built into this bill. The fact is that members from his party and all parties in the House were members of the subcommittee. There was the special Senate committee as well. They spent many hours working to try to improve these provisions. They were built into the committee reports.

I encourage the hon. member to read both the Senate committee and House subcommittee reports. The fact is there is accountability. The hon. member will have an opportunity to stand in his place and have a say on that. It originated in the other house, but so many of the attempts by this government to get legislation through have been slowed down in committees and have continued to be stonewalled.

In terms of the democratic opportunity, the hon. member will have an opportunity in the House to stand either way on this bill.

[Dave MacKenzie, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I am happy to stand in the House and compliment my colleague, who has had a very active part in a lot of this legislation. He has taken a very active role and has a keen interest in it. I recognize his interest purely as a Canadian to start with, but he certainly has some border crossings in his area and these issues are important to him.

Equally, I know that he is also concerned about the rights and freedoms of Canadians. I would like the member to tell us if it has been tested as far as the constitutional correctness to hold investigative hearings. Have the courts had a look at it?

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, the fact is that back in June 2004, in reference related to the Air India prosecution, the Supreme Court of Canada upheld the constitutionality of this provision. In a companion case, the court held that there was a presumption that investigative hearings should be held in open court. Although upheld as constitutional, a hearing was never convened, but the fact is that this has been tested in court. It has been upheld as being constitutional.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, there are many concerns about this legislation, that this legislation compromises many fundamental and key principles of our justice system.

One of the concerns about investigative hearings is that upsets the usual practice of the courtroom. It upsets the usual role of a judge in those circumstances. It actually puts the judge and prosecutors into the role of investigators, something that is not their normal role in the judicial process in a court hearing, and something for which many people believe they do not have a particular background or training to play that kind of role in our judicial system.

I wonder if the member might comment on that fundamental shift in the role of judge and prosecutor.