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

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

Mr. Speaker, I encourage the member to read those reports, but the fact is that these are extraordinary powers. These powers would only be used in extraordinary cases where Canadians' safety was at risk.

I believe that Canadians want to have some protection. They want to know that their law enforcement agencies have the ability to keep them safe in a time of a potential terrorist attack.

We have heard that Osama bin Laden has Canada on the list as a potential target for a terrorist attack. We have seen other countries that he in fact mentioned have been subject to terrorist attacks and many people have been killed.

Does the government believe that it is important? We will see what happens in the vote. The fact was that the majority of members of the subcommittee that I chaired, which ended its work about a year ago, actually recommended that these go ahead and we have seen them upheld in court. Therefore, I think that this is something that Canadians would like to see.

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, I want to ask my hon. colleague about what other countries are doing.

The reason I would like to know this is obviously the world has changed since 9/11 and sometimes countries have to prepare for these eventualities rather than just simply sit around and sift through the rubble, as I have heard the minister say.

I wonder if my hon. colleague, who has in fact done a lot of work on this and I congratulate him for that, could identify or even suggest if there are any other countries that are doing similar work to protect their citizens.

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

Mr. Speaker, that fact is that the committee did look at what was going on in other countries. One of the countries that was recently attacked of course was the United Kingdom. In the U.K. the police may arrest without warrant persons whom they reasonably suspect are terrorists.

The maximum time that a person could be held in detention without charge under the power that the U.K. has had since 2000 was from 7 days to 14 days and now it is 28 days. This is quite a bit more than what we have in Canada, but I go back to once again, that Canadians are looking for law enforcement to have the tools to help keep them safe. I will be supporting this. I know members of the government will be supporting this and I know Canadians will be behind them in that.

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

Mr. Speaker, in response to my previous question the member said that these were extraordinary measures and that we expected that people would use them judiciously and with caution. I am not quoting him exactly but he implied that this was his feeling about this.

My first response is that we all know which road is well paved with good intentions and I think we have to be cautious, when we extend these kinds of broad powers, and very careful about the potential when they will be used. There is no sense putting a law in place that we do not expect to be used some day.

Right now, under the Criminal Code of Canada every crime that I can think of that would be related to terrorism is already treated as a very serious crime under the Criminal Code.

Can the member tell me of any crime that is not covered by the Criminal Code that might be part of a terrorist activity? Certainly murder would be one as well as conspiracy to commit a terrorist act like exploding a bomb, all those kinds of things would currently be covered under the Criminal Code of Canada. Why is something more than the Criminal Code of Canada necessary to protect us from acts of terrorism?

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

Mr. Speaker, I appreciate the hon. member's passion on this.

The fact is that the committee did spend a lot of time considering the importance of human rights and the potential of abuses, and they are addressed. The safeguards are built into this legislation, into investigative hearings, and into recognizance with conditions.

I know that he is concerned about some of the potential offences there, that he was looking for other ones, but the fact is that this is designed to help prevent a terrorist activity or to prevent another one that may be happening after one happens. The fact is that law enforcement has been looking for this and other governments have been looking to have this. We saw that the Air India inquiry was looking for this.

Parliament actually did not extend the provisions back in February of 2007, but the bill is now before us and the member will have an opportunity to have a say on it.

[The Deputy Speaker, NDP, Bill Blaikie]

It is my duty pursuant to Standing Order 38 to inform the House that the question to be raised tonight at the time of adjournment is as follows: the hon. member for Ottawa—Vanier, Telefilm Canada.

Resuming debate, the hon. member for Davenport.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, there is little doubt that the bill we are debating today, Bill S-3, remains a very divisive topic for Canadians and parliamentarians.

We are dealing with a bill which proposes amendments to the Criminal Code that would reinstate anti-terrorism provisions that expired under a sunset clause in February 2007.

These provisions would essentially bring individuals who may have information about a terrorist offence before a judge for an investigative hearing. It would deal with recognizance with conditions and preventive arrest to avert a potential terrorist attack.

These provisions have gained the interest of the general population and many groups have voiced their opinions on these extraordinary measures.

The first measure deals with the provisions to bring a person before a judge by subpoena or by arrest who, perhaps, on reasonable grounds, has knowledge of the whereabouts of someone who may be suspected of being involved in terrorism activity.

The second portion is equally extraordinary because it deals with the detention and recognizance of someone who is suspected of having something to do with a terrorist activity. As we know, to arrest somebody we need reasonable grounds under our current system.

When we look at that provision, which is the most litigated part of the Criminal Code, we see there is a great difference between suspicion and belief. There is a significant line there and this is why this legislation has raised such interest and concern for Canadians.

Since the terrible attack on the U.S. on September 11, 2001, which was a crime against humanity, states throughout the world have changed their domestic laws in order to respond to the new realities of terrorism. Canada of course is no exception.

In the United States, the patriot act was passed with wide margins in both houses of Congress, and has since then been criticized by civil liberties groups as fundamentally weakening human rights. Canada also enacted a legislative response to the events of September 11, 2001, through the Anti-terrorism Act.

Both statutes were speedily enacted and intended to address the threat posed by the attack and designed to give government agencies additional tools and powers to prevent and combat terrorism. However, there are key differences between the Canadian and the American legislative approaches.

Prior to the coming into force of the Anti-terrorism Act, the Canadian Criminal Code did not contain a definition of terrorist activity. To date, the Supreme Court has made several important rulings on the need to balance human rights and national security. One important one that comes to mind is the decision in the case of Cherkaoui and security certificates.

Another very important one is Suresh v. Canada. The Supreme Court of Canada discussed this balancing approach in relation to a decision to deport a suspected terrorist from Canada on assurances that he would not be tortured if returned to Sri Lanka.

The court noted that the balance to be struck in this situation was between Canada's interest in combating terrorism and the deportee's interest in not being deported to torture, taking into account the circumstances or conditions of the potential deportee, the danger that the deportee presents to Canadians or to the country's security and the threat of terrorism to Canada.

The Supreme Court concluded that this balance will usually come down against expelling a person to face torture elsewhere with the result that deportation should generally be declined where on the evidence there is a substantial risk to torture.

As Suresh v. Canada illustrates, the balancing process involved, where removal is contested on human rights grounds, is tested further in the context of state responses to terrorism.

It is important to note that after September 11, the United Nations has, on numerous occasions, called upon states to bring to justice to those involved in terrorist activities through the process of extradition or prosecution while, at the same time, reminding states that any anti-terrorism measures must comply with international human rights law.

If we go back to 2001, the sunset clause, originally introduced in the Anti-terrorism Act, states that these provisions would cease to apply at the end of the 15th sitting day of Parliament after December 31, 2006, unless they were extended by a resolution. As of February 2007, no investigative hearings have been held and no reported use of the provisions on recognizance with conditions.

It is important to note that while the provisions introduced today are similar to those that expired in February 2007, they are not identical. Some of the key changes in the bill include: placing an emphasis on exhausting all reasonable attempts for the collection of information about potential or prior terrorist activity before the ordering of an investigative hearing; and requiring the Attorney General and the Minister of Public Safety and Emergency Preparedness to issue separate annual reports with their opinions as to where these provisions should be extended.

If we look back to the month of February 2007, the government put forward a motion to extend the measures without amendments for three years. This was eventually defeated in the House by a vote of 159 to 124. Even with ominous threats from the Prime Minister to trigger an election if amendments were made to the bill, the Liberals still pushed to have additional safeguards to these provisions. As such, I am pleased to find that these safeguards, which were also recommended by both the House and Senate committees, have been added to the bill.

These provisions include: an increased emphasis on the need to have made reasonable attempts to obtain information with respect to both future potential terrorist activity and such activity in the past; the ability for any person ordered to attend an investigative hearing to retain and instruct counsel; the flexibility to have any provincial court judge hear a case regarding a preventive arrest; and a five year end date unless both Houses of Parliament review and resolve to extend the provisions further.

However, the fact is the Prime Minister still refuses to listen to the democratic majority and, instead, dictates to the House that no amendment should be made to this bill or, once again, it might trigger an election.

Even the Supreme Court of Canada suggests that the bill be amended on a number of issues. I will not go into all the recommendations made by the court, but I must point out that the government has once again chosen to ignore its important recommendations.

As I have already mentioned, these provisions have attracted the interests of academics and the general population alike. This has been evident in both the House of Commons and the Senate committees that have studied this issue. In fact, these committees heard from a broad spectrum of witnesses, who have voiced opinions on these extraordinary measures.

On the one side, some feel that these provisions do not violate rights, that, in fact, they reduce potential threats and address them in a practical manner. Some would also argue, such as Gary Bass, deputy commissioner for the RCMP, that these “renewed provisions will assist with those who might otherwise be reluctant to testify”.

Mr. Bass maintains that with these provisions, witnesses would no longer have any choice but to testify truthfully. On the other side, people have argued against this view and expressed the opinion that such provisions could be counterproductive and detrimental to witnesses.

In fact, Yvon Dandurand, a criminologist at University College of the Fraser Valley, British Columbia, argues that compelled witnesses are still exposed to potential retaliation from those who expect them to lie if compelled to testify.

Also, some have felt that the Anti-terrorism Act represents a substantial departure from Canadian legal traditions and fear that use of these provisions might eventually extend beyond terrorism offences to other more generic Criminal Code offences. Such provisions also make it clear that those who volunteer information to the authorities could find themselves subject to an investigative hearing, preventive arrest or a charge for a terrorism offence.

Canada historically has been a leader in maintaining balance between human rights and public safety. I believe all of us want Canada to remain a safe and secure country. I also believe Bill S-3 could potentially cross an important thin line and violate the rights of Canadians and compromise civil liberties.

I am reminded of the famous words that were uttered, after September 11, by Cardinal Theodore McCarrick, the archbishop of Washington, in a mass on September 12, 2001, for the victims in the immediate aftermath of the terrorist attack on the U.S. He reminded us all that:

We must seek the guilty and not strike out against the innocent, or we become like them who are without moral guidance or direction.

Although Bill S-3 has had attached to it new safeguards in comparison to the original provisions, I feel it must be sent to the House committee again to be thoroughly studied and debated so Parliamentarians can make the right and educated decision on this controversial matter.

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

Mr. Speaker, I listened to my hon. colleague across. I know he is very passionate about his comments, and I appreciate that.

Has he spent any time talking to his colleagues who were on the committee and who dealt with this over a considerable length of time? I understand his concerns are about the innocent, but has he given consideration to how the police can function in a society when we deal with terrorism?

I believe the rules are in there to protect the innocent and to protect Canadians in the broadest sense, and it has been determined to be constitutional. However, has he directed his mind as to how Canadians can be protected against terrorists using the existing laws? If he has spent time in talking to his colleagues who were on the committee, did he not talk to them about those issues dealing with terrorism and the protection of Canadians?

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I have had an opportunity to speak to my colleagues on this side of the House. Many of them have assured me of some of the provisions within this legislation. I have also have an opportunity to speak with many human rights groups that also have concerns about what could happen.

I have always believed we have to listen to the different groups to ensure the legislation we bring forward is in fact balanced. I am proud to live in Canada, a country where we respect the rule of law. I know the rule of law and the laws that we make here as parliamentarians are extremely important, both in how we assess civil liberties and human rights and how we protect the safety and security of our citizens, which is one of the major responsibilities we have as parliamentarians.

I take that job very seriously. It is one of the reasons why, even though I have some concerns and reservations about the bill, I have asked that we at least send it to committee, have it studied, listen again to the different groups out there and then make a final decision when it comes back. I will make a final decision when it comes back for third reading.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Mr. Speaker, in my opinion, the measures we are being asked to enact require a couple of things.

The first one is that we have complete trust in our judicial system, and I do. I am not questioning the ability and the independence of our judicial system, although there have been murmurs from the government about the meddling of our judicial system and correspondingly, appointments that may reflect a certain bent. However, that is not the question.

Would my colleague agree that the same kind of trust, if we are to adopt these measures, would be required of our national police?

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I appreciate the question of my hon. colleague on the issues of trust, both in our judicial system and in our police.

The Supreme Court has made several rulings, which are worthy to be considered since September 11, and I think I alluded to a couple of them, the Suresh decision and the Charkaoui decision. The court has talked about the balance between human rights and national security. It is always a struggle for parliamentarians to get the legislation right in terms of that equal balance.

I believe very strongly and passionately that our judicial institutions do an amazing job in protecting the human rights of Canadians. I have full respect and confidence in their decisions and rulings, as well as our police forces, which have called for these additional tools as well so they can combat security risks.

There is always a struggle between human rights and national security, but they are not incompatible. There is no question that they can coexist.

Our party, which brought in the Anti-Terrorism Act after September 11, really did try to look at the balance and put in sunset clauses to bring about that balance as well. We have struggled, but we balanced it quite well.

We have done better than most other countries in western European. We certainly have much more broader legislation with respect to rights in Canada than there is in the Patriot Act in the U.S. Our legislations in Canada have been much broader and more respectful toward civil liberties than many of the countries in western Europe.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, one of the problems that different lawyer associations and groups have raised is that some personal information could exit this country and could then be used against individuals. As we know from the enactment of the Patriot Act, Canada has yet to have a privacy agreement. We need a treaty to understand what happens to the Canadian information, where it goes, how it is used and so forth.

This issue has not been addressed in the bill, and I will ask the hon. member about that situation. I know we have had a series of problems in my constituency with regard to tracking the direction of personal information.

Also there are very serious cases, like the Maher Arar case wherein information was shared with another government's officials and departments. We do not know where that information goes. The Patriot Act prevents access to that type of knowledge and also the ability the scrub that information. It also has other consequences, for example, where individuals cannot get themselves taken off a no fly list.

Could my colleague tell us if those issues have been addressed by the bill?

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I quite agree with the hon. member. It is an issue of great concern, and the sharing of information is something I have raised in the House.

As the hon. member is probably aware, I have spoken as well against the no fly list, but the U.S. is demanding it of our country, which is a violation of our sovereignty.

The sharing of personal information is something that greatly disturbs me, specifically how that information is used. I would like to see in committee how this issue could be addressed. The committee stage is a good opportunity to deal with an issue as important as this.

I did not get a chance earlier, but I will take this opportunity to state that Canada is not immune to terrorism. We had a terrible terrorism act in Canada with the Air-India bombing.

Canada has always tried to balance human rights and national security. Getting it right is very important to parliamentarians. It is a struggle I will have to go through as we debate the bill at second reading and at committee stage. When it comes back to the House for third reading, I will make a decision whether I will support it.

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, I am pleased to join today in the second reading debate of Bill S-3. I would like to focus my comments more specifically on the amendments themselves as made by the Senate to the bill. I want to assure this House, though, that the people of Cambridge and North Dumfries in my riding wish me to support this bill, so I am happy to speak in favour of it.

I would like to mention, too, that I will be splitting my time with my colleague from Selkirk—Interlake.

Some people may think that my riding of Cambridge is one of those communities that is not on the terrorist list and would wonder why I would be up in the House speaking to this issue, but my riding has one of the busiest highways in all of Canada, the 401, going right through it. We have an urban area of about 110,000 to 113,000 people, divided into nice little communities that we used to call Hespeler, Preston and Galt.

Within 45 minutes of Cambridge, there are three airports and the riding itself is actually very diversified. One of the largest veal producers in North America is in my riding. Eighty per cent of the satellites that circle this world have parts from COM DEV in my riding. A statistic that shocked me is that there are 150 million people living within an eight hour drive of my riding, so I think it is exceptionally important for the folks in my riding that we concern ourselves with the threat of terrorism.

I am very pleased to have the opportunity to debate, at second reading, Bill S-3. I will limit my comments to the amendments made to the bill by the Senate.

When the Minister of Justice appeared before the Senate special committee on December 3, 2007, the committee questioned the constitutionality of the wording that was used in section 83.3, which deals with the recognizance with conditions provision.

The concern raised flowed from the 2002 judgment by the Supreme Court of Canada in a case called R. v. Hall. In the Hall case, the Supreme Court considered the constitutionality of the specific wording in the bail provisions, wording which was replicated in actual fact in Bill S-3.

Specifically, the Supreme Court found that paragraph 515(10)(c), the third ground for denial of bail, was unconstitutional under sections 7 and 11(e) of the charter, in particular because of its use of the words “any other just cause and, without limiting the generality of the foregoing, that...”.

As I said, as introduced, Bill S-3 had also proposed the use of the same wording in the recognizance with conditions provision.

The government obviously agreed that this needed to be corrected. The amended version of paragraph 83.3(7)(b)(C) now begins with the words “the detention is necessary to maintain confidence in the administration of justice”, and it goes on from there. I refer my colleagues to lines 28 to 30 of page 6 where they will find that the wording has been corrected and is now quite constitutional.

The second amendment addressed inconsistencies in the wording that appeared in clause 1 of the bill. Subsection 83.28(4) contains two paragraphs. The first one focuses on past terrorism offences. The second one focuses on future terrorism offences.

As introduced, however, there was an inconsistency in the use of the terminology between the two paragraphs. The former referred to “a terrorism offence”, whereas the latter referred only to “the offence”. The French version suffered the same defect.

The special Senate committee therefore amended subparagraph 83.28(4)(b)(ii) to ensure consistency in the wording in both provisions and of course in both official languages.

Finally, the third amendment made by the Senate to Bill S-3 was to subsection 83.32(1.1). This subsection originally proposed that a review of these two powers proposed by Bill S-3 be made at the discretion of Parliament. The Senate amended this particular provision to make the parliamentary review of these powers mandatory.

As we can see from the summary of the Senate amendments, these were slightly technical although very important amendments and they did not alter the essence of Bill S-3.

The proposals in Bill S-3 provide law enforcement agencies with the proper tools. I will point out that the committee met with a number of law enforcement agencies that deemed these tools to be necessary to help them do their jobs in addressing the ever present threat of terrorist attacks. They also include safeguards required to help preserve the safety and security of all Canadians, as well as to protect their fundamental rights, the right of hard-working Canadian families to play, to feel safe at night and to live their lives in peace.

I am asking all hon. members in this House to hear the facts of this bill and understand the need for such important legislation. I ask them to join me and support it.

I urge all members of this House to support Bill S-3.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, in my colleague's speech today he talked about his home constituency of Cambridge. I went to Wilfrid Laurier University, which is in Kitchener-Waterloo, just outside of Cambridge. It is a very beautiful community, one with a lot to be proud of, and is very diversified. He mentioned the 401 and concerns. Everybody in Canada really is concerned about terrorist attacks.

My riding actually has the busiest international border crossing in the world. In fact, more than 30% of Canada's entire trade to the United States goes through my riding on a daily basis, including more trade than all of Canada's to Japan. There are actually four crossings, but the main crossing is the Ambassador Bridge.

On that bridge, there is a system right now whereby someone drives on and does not actually get checked until getting to the other side. As well, the only real plan for security, for appearances and so forth, is to rent a police officer once in a while who goes underneath the bridge. This is a four lane bridge that obviously is very important for the economy, connected right to this member's community.

Given the fact that these are the government's criteria for security, I would like to ask the member whether he thinks that is sufficient. Why have there not been, in this private enterprise, the mandated improvements to make sure? There are 24 international bridges and tunnels between Canada and the United States. Only two are privately held. This is one of them. I would like to hear from the member as to whether he is satisfied with that type of security provision from this private operator.