Bill C-19 (Historical)
An Act to amend the Criminal Code (investigative hearing and recognizance with conditions)
This bill was last introduced in the 40th Parliament, 2nd Session, which ended in December 2009.
Rob Nicholson Conservative
Second reading (House), as of June 9, 2009
(This bill did not become law.)
This is from the published bill. The Library of Parliament often publishes better independent summaries.
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.
Extension of Sitting Hours
June 9th, 2009 / 10:25 a.m.
Pierre Paquette Joliette, QC
Mr. Speaker, the Leader of the Government in the House of Commons said that the government had introduced a number of bills. I have to say that the legislative agenda is not full enough to warrant extended sitting hours. I will explain what I mean later in my speech, but I want to express my opinion and ask the House leader a question. He had set a number of goals about a number of bills that he felt should receive royal assent by June, and he shared those goals with us at the meetings of the leaders and whips. All these bills, except one, are currently in the Senate. So from that standpoint, he has achieved nearly all his goals.
We had been told that certain bills had to be sent to the Senate by June before they could receive royal assent. Four bills had been identified. Two are currently in the Senate, while the House is still discussing the other two, but we could certainly come to an agreement on them. One bill was to be reported on by the appropriate committee, and that will be done. Three problematic bills remain. One has been mentioned, and that is Bill C-8, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves. The other two are Bills C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) and C-23, the Canada-Colombia Free Trade Agreement Implementation Act. We disagree on these three bills, and we want to have in-depth debates on them.
Does the member think it would be reasonable for the opposition to agree to extend the sitting hours when the only bills likely to be debated during those extended hours are the bills that are the most problematic for the opposition? I think that that is not reasonable and that he will agree with me that we cannot agree to this blank cheque.
Extension of Sitting Hours
June 9th, 2009 / 10:25 a.m.
Jay Hill Prince George—Peace River, BC
Mr. Speaker, I say with the utmost respect to my hon. colleague, the House leader for the Bloc Québécois, that in his remarks he made my exact point of the need for the extension of hours.
He named the three bills that have been somewhat problematic to get agreement on from both sides of the chamber: Bill C-8, the matrimonial real property bill, to which my Liberal colleague referred as well; Bill C-19, investigative hearing and recognizance with conditions bill; and Bill C-23, the Canada-Colombia free trade agreement bill.
He went on to say that he would like to see some debate in depth. That is exactly what can be accomplished by extending the hours. I say that with all sincerity and reasonableness. If those bills are problematic, then why not work a little bit harder for Canadians?
We all know that Canadians are hurting. Canadians are struggling right now. They want to see this Parliament work. As I stated throughout my remarks, by and large Parliament has been working. We have been getting legislation through the House.
As I say, he made the actual point that I have been trying to make in that we need to have the additional time with only some 33 hours remaining of debate time for government legislation before the House rises. I do not think it is unreasonable to extend the hours and have a few more hours to debate bills like those.
I also referred to the House leaders and the whips. Quite some time ago, weeks ago in fact, I said that we would be introducing additional legislation. In particular, the Minister of Justice has been doing that. We will also have other legislation that was not on the list, as I said, which we would like to see debated before the House rises.
Extension of Sitting Hours
June 9th, 2009 / 11:20 a.m.
Pierre Paquette Joliette, QC
Mr. Speaker, as I said, we are open to talking about it.
That does not mean that we will automatically agree to any request the government might make to extend sitting hours, but if debate on a certain bill were about to end and we still needed a few more hours, of course we would give that careful thought.
I want to add something else. I took a look at what was tabled every Tuesday for the past month. We have covered nearly everything the Leader of the Government wanted us to, as I said. He wanted bills in the House to be ready for royal assent; he got all but one of them—Bill C-6—and that is expected to happen around June 10. He wanted four bills to be sent to the Senate. Two of them are in the Senate. There are two more to go. So that makes three. Bill C-20 is in committee and should be back here soon. The parliamentary leader wanted the committee's report to be done by June, and that is likely to happen.
We have a problem with Bill C-19. I would remind the House that Bill C-8 and Bill C-23 were not included in the government's agenda that ends June 23. I therefore assume that the government does not plan to address those bills before the fall. We will debate them in the fall.
I therefore do not believe there is enough material to keep the House busy for 11 days from now until June 23. Once again, if we need to extend the sitting hours occasionally, the government can rest assured that the Bloc Québécois will be open to discussion.
June 9th, 2009 / 12:45 p.m.
Rob Moore Parliamentary Secretary to the Minister of Justice
Madam Speaker, it is a privilege to rise to speak further to Bill C-19, which deals with provisions that had sunsetted under the Anti-terrorism Act.
These important provisions are known as the investigative hearing and recognizance with conditions provisions. They would allow our police officers to take steps that have been considered and steps that have the appropriate safeguards in place to ensure the rights of all concerned, but steps which may be necessary from time to time to prevent or to investigate a serious or imminent attack on Canada and Canadians
When I was last speaking, I was talking about the human rights concerns that had been raised over the course of debate on these provisions. I did want a chance to reflect on those concerns and address them, and assure the House that appropriate safeguards are in place.
Both the investigative hearing and the recognizance with conditions provisions as provided for in this legislation are replete with human rights safeguards.
With respect to the investigative hearing, these safeguards would include the following.
First, there could be no investigative hearing without the consent of the relevant attorney general.
Second, only a judge of the provincial court or of a superior court of criminal jurisdiction could hear a peace officer's application for an information gathering order and could preside over an information gathering proceeding.
Third, there would have to be reasonable grounds to believe that a terrorism offence has been, or will be, committed.
Fourth, the judge would have to be satisfied that reasonable attempts had been made to obtain the information by other means for both future and past terrorism offences. Further, the judge could include any terms and conditions in the order that the judge considered to be desirable to protect the interests of the witness or third parties. The witness would have the right to retain and instruct counsel at any stage of the proceeding.
Finally, the bill would incorporate protections against self-incrimination, including in relation to the derivative use of the evidence in further criminal proceedings against the person testifying, except for perjury or giving contradictory evidence.
Members should also be reminded that the Supreme Court of Canada upheld the investigative hearing in 2004 in application under section 83.28 of the Criminal Code. I would note in this regard that the Supreme Court of Canada stated that the protection against self-incrimination found in the investigative hearing was greater than that afforded to witnesses compelled to testify in other proceedings, such as in a criminal trial.
As to the recognizance with conditions, it too would have many human rights safeguards, such as the following.
First, the consent of the relevant attorney general or solicitor general would be required before a peace officer could lay an information to bring a person before a provincial court judge.
Second, only a provincial court judge could receive an information, and would have the discretion as to whether to cause the person to appear before him or her.
Third, the presiding judge would have to be satisfied by evidence that the suspicion was reasonably based. The judge would have to come to his or her own conclusion about the likelihood that the imposition of a recognizance on the person would be necessary to prevent a terrorist activity.
Finally, the person entering a recognizance would have the right to apply to vary the conditions under the recognizance order.
Experience has also shown that when these tools were part of our law, the investigative hearing was invoked only once, in connection with the Air India inquiry, and the recognizance was never used. This demonstrates the restraint that the law enforcement officials have exercised and would continue to exercise in deciding whether to use these powers.
The government is proposing that both the investigative hearing and the recognizance with conditions provisions be re-enacted for a period of five years.
At the end of five years, the bill would allow for further extension of one or both of these provisions. The task of deciding whether further extension is necessary would be informed, in part, by the mandatory review of the provisions found in the bill.
As well, the mandatory annual reports of the Attorney General of Canada and the Minister of Public Safety would detail the use of the provisions by federal officials and provide the minister's reasons regarding the usefulness of the provisions.
I believe that the investigative hearing and recognizance with conditions powers are necessary, effective, and reasonable. I urge all hon. members to support the bill.
June 9th, 2009 / 1:05 p.m.
Mark Holland Ajax—Pickering, ON
Madam Speaker, I am pleased to speak to Bill C-19.
One of the most difficult balances we have in dealing with public safety is the balance between collective security on the one hand and individual freedoms and individual civil liberties on the other. It is a difficult balance, particularly in the wake of the events of 9/11, with which we have been challenged, not just our country, but countries in all parts of the world as they have tried to manage a process of ensuring the safety of the general population while at the same time making sure that terrorism does not undermine the very freedoms that define our society.
We have these two balancing interests. On the one hand the government makes the point, and it is well made, that there can be extenuating circumstances, situations where collective security is put in deep peril, where there is an impending terrorist threat that demands immediate action, where police need to be given every tool at their disposal to get answers and to prevent disaster from happening. Canadians would expect nothing less than that.
On the other hand there is an equally important assurance that needs to be made that those tools, those exceptional powers, would only be used in the most extreme circumstances. They would only be used in examples where there was an imminent threat and something that presented a serious risk to public security and public safety and that these powers would not be abused. In this regard, oversight becomes exceptionally important. As a Parliament, we need to look regularly upon this and ensure that the proper balance has been struck.
As we have seen western democracies struggle with this balance, this pull in both directions, we have seen errors made on both sides. There have been some states that have clearly gone too far and have jeopardized individual freedoms far too much for very little gain in terms of public safety. On the other hand there are those that have not taken action, have not given law enforcement officials and those on the front lines stopping terror the tools they need to do their job. That is where we are with this particular bill.
When the government first introduced its legislation after the sunset clause had been completed, it was clear that was greatly deficient. There were a number of problems. The Senate studied it. The Liberal senators did an enormous amount of work, along with others, but it was led particularly by the Liberals in the Senate. They tried to rebalance the bill, to make sure that those two competing priorities were met. I think they did an excellent job in that regard.
I will go over exactly what we are talking about and give an analysis of some of the reasons, at this point, we as a party certainly will be supporting sending the bill to committee. However, because of the sensitive nature of it and the balancing that is required, we will have a lot of work once it gets to committee.
It is important to note that investigative hearing provisions in the Criminal Code allow authorities to compel the testimony of an individual without the right to decline to answer questions on the grounds of self-incrimination. The intent would be to call on those on the periphery of an alleged plot who may have vital information, rather than the core suspects who would have an overwhelming incentive to lie or to protect themselves.
The preventive arrest provisions in the Criminal Code allow police to arrest and hold an individual, in some cases without warrant, provided the police have reasonable grounds to believe the arrest will prevent future terrorist activity.
After 9/11 the Liberal government passed the Anti-terrorism Act, a package of measures, including Criminal Code amendments, to combat terrorism and terrorist activity. The act attempted to balance those measures with respect to the Canadian values of fairness and human rights.
Two new powers in the act, investigative hearings and preventive arrest, were considered sufficiently intrusive and extraordinary that a specific five-year sunset clause was applied to them. The sunset clause was a Liberal caucus priority to ensure that oversight, as I mentioned before is so important, was had.
In October 2006 a subcommittee of the Standing Committee on Public Safety and National Security recommended extending the sunset clause while also amending the Criminal Code to restrict the scope and application of investigative hearings and preventive arrests.
The sunset clauses came due on March 1, 2007. The government introduced a motion to extend the provisions for a further five years, but in February 2007, the Liberal opposition, as well as the Bloc and the NDP, voted to allow the clauses on investigative hearings and preventive arrests contained in the original Anti-terrorism Act, brought forward in the immediate aftermath of September 11, to sunset.
At the time, the Liberal opposition offered to work with the Conservative government to find reasonable and effective improvements in the anti-terrorism laws of Canada to strike an appropriate balance between safety and protection of rights.
After the defeat of the clauses, the government introduced legislation in October 2007 that would have brought back the two clauses with additional safeguards. It required law enforcement officers to satisfy a judge that they had used every other method to get the information that they needed. It also required the attorney general and the minister of public safety and emergency preparedness to report to Parliament on a yearly basis explaining their opinion as to whether or not these provisions should be further extended.
In October 2007, upon the introduction of Bill C-3, on security certificates, and Bill S-3, on investigative hearings and preventive arrest, both the Liberal critic and the Liberal leader in the Senate indicated their support for both pieces of legislation. Bill C-3 eventually did become law. Bill S-3 did not make it through the House before the 2008 election because the government failed to call the bill for debate.
I want to talk about Bill S-3 and some of the changes that were made by the Senate that I think started to move the bill back into a better balance between those two priorities.
Bill S-3 included improvements to the code's terrorism regime, such as an increased emphasis on the need for a judge to be satisfied law enforcement has taken all reasonable steps to obtain information by other legal means prior to resorting to an investigative hearing; the ability for any person ordered to attend an investigative hearing to retain and instruct counsel; new reporting requirements for the attorney general and the minister of public safety who must now both submit annual reports which not only list the uses of these provisions, but also provide an opinion supported by reasons as to whether these powers needed to be maintained; 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 resolve to extend the provisions further.
The former minister of public safety encouraged the Senate special committee on anti-terrorism to continue studying Bill S-3 and related issues even after reporting back to the Senate. The committee suggested key amendments to the bill that were included in the final version passed by the Senate in March 2008. The most significant of these amendments mandated a comprehensive parliamentary committee review at the fifth anniversary of the bill's coming into force.
With all of these things having been said and that balance being moved more toward where it needs to be, we on this side of the House are prepared to see the bill go to committee where obviously it is going to need a lot more work. There are a couple of points I would like to address now for consideration and which we will want to talk about at committee.
We want to ensure there is strong parliamentary oversight. One of the questions I asked the parliamentary secretary not so long ago was the possibility of ensuring that we have a review by both houses of Parliament, not just one. That is something we can work on in a collaborative fashion in committee. The last time the bill was reviewed, the Senate had a lot of important additions to make and important observations that otherwise would have been missed.
The second thing we could discuss at committee is the possibility of the frequency of the review, whether or not three years would be possible as opposed to five years. If we approach it with the philosophy of trying to ensure we have the appropriate amount of oversight, those who are concerned that these powers might in some way be misused would have their fears assuaged.
I do feel the legislation as it stands now has a significant number of safeguards. I think we could consider further ones. However, it is imperative that our law enforcement officers and officials have the tools they need to act in a preventive way against potential terrorist threats in this country. By having sufficient oversight and by taking the proper time to study the bill at committee after it leaves this House, we can strike that appropriate balance and move forward in a productive way.
June 9th, 2009 / 1:55 p.m.
Don Davies Vancouver Kingsway, BC
Madam Speaker, I am cognizant that I have 20 minutes to speak but only 4 minutes to begin. I am going to lay the preparatory groundwork for my speech later on.
Not everybody in the House will agree with what I am about to say, but the fundamental issue presented by the piece of legislation before the House today is that due process in law cannot be supported by offending due process in law. Civil rights cannot be protected by violating civil rights. Freedom in this country cannot be supported by abridging the freedom of Canadians in this country. That cuts to the heart of this matter, and I will come back to that concept later on in my speech.
Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) was introduced in the House on March 12 of this year. It contains the provisions found in former Bill S-3, as amended by the Senate Special Committee on Anti-terrorism in March of last year.
The bill proposes amendments to the Criminal Code that would reinstate the anti-terrorism provisions that expired under a sunset clause in February 2007. It provides for the appearance of individuals who may have information about a terrorism offence, compells attendance before a judge for an investigative hearing, and it contains provisions also dealing with imprisonment of those people for up to 12 months without charge.
This legislation also contains a five-year sunset clause that requires the Attorney General of Canada and the Minister of Public Safety to issue separate annual reports that include their opinions as to whether these provisions should be extended.
The seriousness with which the bill attacks our civil liberties in this country is established by the fact that it has to contain sunset provisions to come back before the House. The government does not have the confidence to put these provisions into law for an extended period of time.
Bill C-19 essentially reintroduces the provisions relating to investigative hearings and recognizances that first came into force in December 2001. A sunset clause contained in that act stated that the provisions in question would cease to apply at the end of December 31, 2006 unless they were extended by a resolution passed by both Houses of Parliament.
As of February 2007, not one investigative hearing had been held, and there was no reported use of the provisions on recognizance with conditions at that time. I will come back to this theme later on.
Hon. colleagues on the other side of the House continue to maintain that this legislation is required, but it has never been used in the first five years of its existence.
Let me start with the first of these two offensive provisions, and that is investigative hearings.
Clause 1 of Bill C-19 would amend the Criminal Code, and it is similar to the original Anti-terrorism Act. Section 83 of the Criminal Code forces individuals who may have information about a terrorism offence to appear before a judge for an investigative hearing. The objective is to compel that person to speak, under penalty of imprisonment.
A peace officer, with the prior consent of the Attorney General, can apply to a superior court or a provincial court judge for an order for the gathering of information if there are reasonable grounds to believe that a terrorism offence has or will be committed.
If there are reasonable grounds to believe that information concerning the offence or whereabouts of a suspect is likely to be obtained as a result of the order, and if reasonable attempts have been made to obtain such information by other means, if granted, such a court order would compel that person to attend a hearing and answer questions on examination. No one attending such a hearing can refuse to answer a question or produce something in his or her possession on the grounds of self-incrimination.
Every Canadian school child is familiar with the edict in this country that an individual has the right to remain silent and not to testify if that testimony would present self-incrimination. It is considered a fundamental tenet of western and British legal tradition. It has been part of our country's Constitution and civil liberties for hundreds of years.
June 9th, 2009 / 3:05 p.m.
Don Davies Vancouver Kingsway, BC
Mr. Speaker, as the House may know, prior to question period I was discussing Bill C-19, which engages the issue of civil rights in this country.
I would like to point out the valuable work that is done in our country on behalf of the civil rights of ordinary Canadians and, in fact, on behalf of people all over North America, by people like James Hoffa, president of the International Brotherhood of Teamsters, John Murphy, an international vice-president, the Canadian president of Teamsters Canada, Robert Bouvier, international vice-president and long time British Columbia teamster, Don McGill, Ontario teamster Larry McDonald and the very fine work done at the grassroots level fighting for the rights of people every day by British Columbia teamsters Jure Kelava, Maureen Roberts and Larry Sargeant.
These are the kinds of people who go out every day and help support and strengthen the civil and human rights of Canadians in our country. It behooves everyone in the House to remember the efforts of such people when we are debating bills, such as Bill C-19.
Getting back to the gist of Bill C-19, prior to the break I was speaking about the first problem with the bill, which is forced testimony under compulsion of prison under the Anti-terrorism Act.
The second thing in the bill, which is highly objectionable to anyone who cares about human rights, is the provision respecting preventative arrest, meaning that the state can imprison someone for up to 12 months, without ever laying a charge, on the mere suspicion of being involved in a terrorist endeavour.
Clause 1 of Bill C-19, which re-enacts section 83.3 of the Criminal Code with substantially similar provisions, deals with recognizance with conditions and preventative arrest to prevent a potential terrorist act. Under this re-enacted section, with the prior consent of the Attorney General, a peace officer may lay information before a provincial court judge if he or she believes that a terrorist act will be carried out and suspects that the imposition of a recognizance with conditions or the arrest of a person is required to prevent it.
Such a detained person must then be brought before a judge within 24 hours or as soon as feasible thereafter, which is not spelled out, and at that time a show cause hearing is held. If a judge determines that a person should enter recognizance, the person is bound to keep the peace and respect other conditions for up to 12 months, to which it is unlikely a terrorist will not agree. However, if the person refuses to enter into a recognizance or disagrees with the conditions in any way, the judge can order that person to be imprisoned for up to 12 months.
As I said before the break, our school children know about the right to remain silent. They also know of the presumption of innocence. They believe strongly in the western British tradition that informs the justice system in Canada, that people cannot be jailed on mere suspicion. They should not be jailed without being arrested, charged or convicted on any charge. That is exactly what the bill does.
First, New Democrats are opposed to the bill because it is an ineffective way to combat terrorism. Second, it is an unnecessary and unwelcome infringement upon our civil liberties. As I said before, we cannot protect freedom by offending it. We cannot protect human rights by infringing them. We cannot strengthen due process by abandoning it.
The Criminal Code already contains the necessary provisions for investigating those who are involved in criminal activity and for detaining anyone who may present an immediate threat to Canadians. We believe terrorism cannot be fought with careless and rights offending legislation, but it can be fought with intelligence efforts and appropriate police action.
I am proud to say that the NDP is once again taking a stand against the Conservative government for going too far. I am not taking this position just to take a stand against the government, but I will take a stand against a government that goes too far in pursuing a national security agenda that violates the rights of Canadians. We all believe it is important to protect national security, but it cannot be done at the expect of civil liberties.
Ensuring public safety is essentially about protecting Canadians' quality of life. We hear the government side say that all the time. But quality of life can be defined in many ways. If we talk to our family members, neighbours or people in the community, I would dare say they would define quality of life in a variety of ways. However, it would be by defining the right to live in peace, the right to pursue liberty and happiness and the right to be protected against offensive incursions of liberties by a state.
I think that two other things come out. While they are in favour of protecting Canada against terrorism and in favour of having a country that is secure, they are also in favour of freedom and civil rights. Security means feeling safe. It means feeling that our country and communities are safe and that we can safely go out into the streets. However, it is also about feeling that our federal government, provincial governments, courts and country are protecting us. That means protecting our civil liberties and human rights.
In addition, Canadians want to see any kind of security legislation balanced against these rights, because freedom and rights are as dear in principle to Canadians as national security. For some reason, the Conservative government is either unwilling or unable to find that balance, as has proven by introducing Bill C-19 and also the security certificate legislation. With both of these pieces of legislation, the Conservatives take the wrong approach. They take an unbalanced approach to fighting terrorism in Canada.
Do we need to fight terrorism in Canada? Of course we do, but there are many tools at our disposal currently in the Criminal Code that could be used as opposed to introducing yet another piece of legislation.
Let us look at the facts. I have said that this legislation is unnecessary. It was not used once in the first five years of its being introduced in 2001. The government says that it is necessary. If it is so necessary, why has not one person been brought before a judge on it?
Second, is it effective? Again, not one person has ever successfully been brought before a judge on it, so how can we say?
However, I do know there has been one case of someone being successfully prosecuted in this country under the Criminal Code for an alleged conspiracy to commit terrorism, and that is Mr. Momin Khawaja. The important lesson to be learned is that under our normative criminal laws right now and our current legal framework, we are successful at prohibiting and interrupting any attempt by anybody in this country who might wish to commit a terrorist act. This legislation is not necessary.
However, I can say that there are at least five examples of Canadian citizens in the last eight years who have had their rights offended because of the Anti-terrorism Act's provisions that hearken back to 1950s McCarthyism. The Anti-terrorism Act in this country allows trials to be conducted in secret. It allows testimony to be heard behind closed doors. It truncates the ability of accused people to have their counsel of choice cross-examine and test evidence that is presented in private.
Who am I talking about? I am talking about people like Maher Arar. I am talking about people like Mohamed Harkat. I am talking about Messrs. Nureddin, El Maati and Almalki, who have been rendered to foreign prisons because of secret, untested testimony. They were tortured in Syrian and Egyptian dungeons. Mr. Harkat has been under a security certificate for five years for absolutely nothing.
The same reasonable and probable grounds that the members on the opposite side say have to be demonstrated before any of the imprisonments, security certificates or violations will be implemented will not protect them. The same testimony by CSIS, which resulted in all five of those men losing their liberties and being tortured, has now been cast under a cloud of suspicion.
Just two weeks ago, the Federal Court issued a stinging decision that questioned the compliance of CSIS with court orders. It raised the possibility of prevarication by CSIS witnesses. For everybody in this House, “prevarication” is the polite way for a judge to say “lying”. It found that CSIS buried and actually kept evidence from the special advocates appointed to defend Mr. Harkat, which cast doubt on the reliability of the secret witnesses against him.
When my friends on the other side of this House talk about there being protections in this legislation, tell that to Mr. Harkat. Tell that to any of the five people who have either had their rights offended or been tortured or been subject to house arrest for the last five years. They are Canadians, too, and their human and civil rights have been offended.
Again, Bill C-19 would do two things that are offensive to anybody who believes in a just society, in civil liberties and human rights, who believes in a fair justice system. It would force people to testify without the right against self-incrimination and it would force them to go to prison if they do not. It would actually allow the state to imprison people for up to 12 months without being charged with anything.
We say we want to preserve our way of life, that we want to preserve our freedom in this country. Is the way to do that to offend our freedom? I say, no.
We all understand that the Anti-terrorism Act was introduced by the previous Liberal government in 2001. The Liberals were all in favour of it then. They opposed that legislation two years ago when they voted with the NDP and did not agree that the sunset clauses be reintroduced. Now it is hard to know what they think about it. I cannot get it clear from them. It sounds like a classic Liberal position.
We can understand why such legislation may have been passed in the high emotion and nervousness in the aftermath of 9/11. It was wrong, but we can understand it. However, we cannot understand why any parliamentarian would stand in this House and violate precepts of parliamentary democracy and Canadian civil rights when there has not been one example in the last eight years of anybody who was successfully brought before a judge that would make this legislation necessary .
In calm, rational and sober thought, in a moment where we can actually address our minds to the needs and what this legislation would really do, no parliamentarian ought to stand in this House and violate Canadians' rights. I do not care what the justification for that might be. States have always justified incursions into civil liberties by appealing to some fear. They have always tried to truncate people's freedoms with the justification of some bogeyman of some type, but it ought to be rejected.
The members opposite talk about protective provisions in this bill. Again, let us talk about the case of Mohamed Harkat. All those provisions and protections were in the legislation then. There was judicial oversight. There were court-appointed defence counsel for him called special advocates. There were court orders issued to CSIS to produce information to his lawyers. Did that help? Tell that to Mr. Harkat. He is the victim of a security certificate that has been in place for years, and now we find out it was probably because there was some witness testifying against him in secret and it turns out he had no credibility.
I want to move my remarks to the overarching point, that if we have learned anything since 9/11, it is that our fundamental freedoms and guarantees of due process are critical to our rights as citizens. It is what we are protecting. It is the rationalization for why we would even propose any kind of legislative framework in this country.
The complete Orwellian irony of having a government propose legislation that would violate those very rights in the name of protecting them needs to be explained by the members opposite.
The civil rights we enjoy, the right to remain silent, the right to not be detained in jail before the state has proved a case or a charge against someone, are important bulwarks against the potential abuses of state power. These are not purely theoretical rights. These make up the fabric of our country, the fabric of our constitutional rights as citizens.
New Democrats are going to stand strong and firm to make sure that the rights of Canadian citizens are protected in every respect and that we create a functional and effective security establishment in this country that also respects fundamental civil liberties and rights as Canadian citizens, because that can be done.
June 9th, 2009 / 3:30 p.m.
Shelly Glover Parliamentary Secretary for Official Languages
Mr. Speaker, I want to note that I will be sharing my time with the member for Northumberland—Quinte West.
I am very pleased to rise in my place today to speak in support of Bill C-19. It seeks to re-enact the investigative hearing and recognizance with conditions provisions in the Criminal Code. The bill is almost identical to former Bill S-3, which died on the order paper at second reading before the House in a previous Parliament.
I will start by quickly explaining what investigative hearing and recognizance with conditions mean.
The investigative hearing provisions would empower a peace officer investigating a terrorism offence that has been or will be committed to apply to a judge for an order requiring a person who is believed to have information concerning the terrorism offence to appear before a judge or produce a thing. The peace officer would have to have the prior consent of the relevant attorney general before making such an application. What would be essential to deal with this is an information-gathering order that would apply in respect of a witness, not an accused.
Recognizance with conditions means that, with the prior consent of the Attorney General, a peace officer may lay an information before a provincial court judge if the peace officer 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 the terrorist activity. The judge could then compel that person to attend a hearing before him or any other judge.
As mentioned, a number of arguments have arisen in the past that have been critical especially of the recognizance with conditions provision. I will deal with them one by one.
I would like to address the contention that the recognizance with conditions provision is unnecessary because the Criminal Code already contains other provisions that could be used to prevent the carrying out of a terrorist activity, especially sections 495, 810 and 810.01 of the Criminal Code.
Section 495. (1)(a) states that a peace officer may arrest without warrant a person who, on reasonable grounds, he believes is about to commit a serious indictable offence. In addition, sections 810 and 810.01 apply when any person fears on reasonable grounds that another person will cause personal injury or commit a criminal organization offence or a terrorism offence. These sections empower the judge to order that the individual enter into a recognizance with conditions.
These provisions all focus on someone who it is reasonably believed is either about to or will commit a crime. They do not encompass any other person and so are very narrow in scope. On the other hand, the recognizance with conditions provision would apply to situations where there are reasonable grounds to believe that a terrorist activity will be committed and there are reasonable grounds to suspect that the imposition of a recognizance with conditions on a person is necessary to prevent the commission of a terrorist activity.
In other words, the police may have reasonable grounds to believe that a terrorist activity will be committed but would otherwise be unable to take action in relation to a person because the officer lacks, at the point of identifying the threat and the person, the grounds necessary to support the requirement of a belief on reasonable grounds in relation to that particular person. That officer may only have reasonable suspicion. Given the grave nature of the harm posed by terrorist activity, there is a sincere need to be able to act quickly to address the threat.
The provisions relating to recognizance would allow persons to be brought before a judge if there are reasonable grounds to suspect their involvement in terrorist activities. They would also allow a judicial review to prevent the commission of acts of terrorism. This is why the provisions relating to recognizance with conditions are necessary and judicious.
In relation to the investigative hearing, one complaint has been that it takes away a person's right to silence. We have heard the member of the NDP repeat that several times during his dissertation. However, let us not forget that the Supreme Court of Canada held otherwise. In application under section 83.28 of the Criminal Code in 2004, the Supreme Court concluded that the investigative hearing provision did not violate section 7 of the charter.
In fact, the Supreme Court found that a person testifying at an investigative hearing is better protected than any other witness in a criminal trial. This bill also clarifies that the maximum detention for a witness arrested to ensure appearance at an investigative hearing is limited to 90 days, as is the case for witnesses who are detained in relation to a criminal trial under section 707 of the Criminal Code.
The provision relating to recognizance with conditions is in large part based on the Criminal Code provisions on sureties to keep the peace. As I have said, the purpose of the modifications is to make it possible to prevent apprehended acts of terrorism. There are also guarantees, particularly the need to obtain the consent of the Attorney General concerned.
It has also been argued that imposing a recognizance with conditions on a person attaches to that person a stigma of being an alleged terrorist. However, as noted, there are other peace bond provisions in the Criminal Code—for example, where persons are required to enter into peace bonds because it is reasonably believed they will cause personal injury or commit a sexual offence against a young person. These exist today. In these cases, there is no requirement that a criminal charge be laid.
Should these provisions be eliminated on the basis of a stigma possibly attaching to persons even though they have committed no crime? I do not believe that is the case. The government considered the substantive recommendation in the House of Commons subcommittee's interim report to the effect that the investigative hearing power be limited to the investigation of “imminent”, and that word is important, terrorism offences, thereby excluding the possibility of holding an investigative hearing in respect of past terrorism offences. This recommendation was not accepted.
It did not take into account, for example, the possibility of a terrorist group planning a series of terrorist acts following on each other. An investigative hearing related to the first offence, held after the fact—that is, in relation to a terrorism offence that had already been committed—might bring to light certain important information that would make it possible to prevent the other offences from being committed.
I have attempted to address some of the arguments that were previously raised against these provisions. It is my view that these criticisms do not stand up to close scrutiny. The proposed provisions are minimally intrusive and do not present a threat to Canadian values but actually protect them. Therefore, I ask all hon. members in the House to support this bill.
June 9th, 2009 / 3:40 p.m.
Rick Norlock Northumberland—Quinte West, ON
Mr. Speaker, I come here today to discuss Bill C-19, the investigative hearing and the recognizance with conditions that the bill seeks to re-enact, which expired in March 2007.
The investigative hearing provisions permitted a judge to question persons having information about a past or future terrorism offence. The recognizance with conditions provision permitted imposing conditions on a person, where necessary, to prevent the carrying out of a terrorist activity. These provisions were not, and certainly would not be, unique to Canada. Other democratic countries have similar tools, or ones that tend to go much further than those proposed in this bill.
I believe that by comparing these proposals with foreign counterparts, it will become clear that the proposed investigative hearing and recognizance with conditions that are found in the bill would be seen to be reasonable measures and not at all excessive.
Let me first address the issue of investigative hearing. In 2001 the United Kingdom created a specific crime of withholding information relating to a terrorist act. A person who could have assisted police in preventing an act of terrorism, or in arresting, apprehending or prosecuting someone involved with terrorist activities but failed to do so, could be imprisoned for up to five years.
Also, the U.K. terrorism act of 2006 enables an investigative authority, such as the director of public prosecutions, to issue a disclosure notice requiring a person to provide information or documents relevant to the investigation of a terrorism offence.
Under the United States longstanding grand jury procedure, a federal grand jury can subpoena any person to testify under oath, subject to claims of privilege. Anyone who obstructs a grand jury risks being held in contempt.
Australia and South Africa have specific procedures similar to the proposed Canadian investigative hearing.
The Canadian approach certainly does not go further than other democratic nations in creating an investigative hearing procedure. Other countries have done as much, or even more, in ensuring that they have the tools to investigate terrorism offences.
The Australian counterpart of the recognizance with conditions is a system of control orders and preventive detention of terrorist suspects. The Australian federal police may apply to a judge for an order allowing up to 48 hours of preventive detention of a terrorist suspect where there has been a terrorist act or where a terrorist act is imminent.
Australian states and territories, under their legislation, allow for preventive detention for up to 14 days. Disclosing during the detention period that a person is detained is punishable by a maximum five years in jail. The Australian federal police annual report of 2006 to June 30, 2007 shows that one interim control order was made but that there were no preventive detention orders. One interim control order expired in December of last year.
Similarly, the United Kingdom has much broader powers for the detention of suspected terrorists, compared to Canada's recognizance with conditions power. In the United Kingdom, under the amended terrorism act 2000, a person can be arrested without warrant and held in detention without charge for up to 28 days if the police reasonably suspect the person of being a terrorist.
As many know, the U.K. government wanted to extend this period even further in its proposed counterterrorism bill to a maximum of 42 days. However, this initiative proved to be very controversial and was defeated by the House of Lords in October 2008. As a result, the U.K. government allowed the bill to continue its journey through the British Parliament without the 42-day measure, but it also published a bill containing the power to detain for 42 days, which will be held in reserve and which will be introduced in the British Parliament if and when the need arises.
The U.K. also has a system of control orders which has been in place since the passage of the prevention of terrorism act 2005. This generally allows for the home secretary to apply to a court to impose obligations on an individual, where there is a reasonable suspicion that the individual is or has been involved in terrorism-related activity, and it is considered necessary in order to protect the public from terrorism to impose obligations on the individual.
Control orders can be imposed on citizens or non-citizens alike. There are two kinds of control orders: derogating and non-derogating control orders.
The derogating control order is one that derogates from the European Convention on Human Rights. This type of order could potentially apply in the case of house arrests. A non-derogating control order is one that does not derogate from the convention. Some cases involving non-derogating control orders have now been decided by the House of Lords. It ruled, for example, that a condition requiring a person to stay confined at home for 18 hours each day contravened the right to liberty under the European Convention on Human Rights, but that a 12 hour and possibly a 16 hour curfew was acceptable.
Non-derogating control orders are enforced for 12 months, but they can be renewed. The quarterly statement on the use of control orders covering the period September 11, 2008 to December 10, 2008 said that in total 15 control orders are currently in force, four of which are in respect to British citizens.
Additionally, U.K. police officers have other powers given to them by the terrorism act 2000 that do not exist in Canada. For example, police can designate a certain area, or order anyone to leave it, or not to enter it at the risk of committing an offence. A senior police officer may also authorize a uniformed constable to search a vehicle or a person in a designated area when to do so would be expedient for the prevention of a terrorist act. As we can see, the U.K. powers by far outstrip in scope what Canada provides for its law enforcement purposes.
Finally, I would add that the need to fulfill our international obligations should also prompt a re-enactment of the powers. The United Nations Security Council resolution 1373, to which Canada is a party, obliges the party states to “Take the necessary steps to prevent the commission of terrorist acts--”. The provisions proposed in this bill are intended to do just that.
I have talked at length about the measures that are present in other democratic countries facing terrorism threats and whose legal systems are similar to ours. As I have endeavoured to make clear, the tools we are now seeking to re-enact do not constitute an assault on human rights. On the contrary, they are minimally intrusive and are more restrained than our foreign counterparts. They do not present a threat to Canadian values but actually protect them. Accordingly, I would ask that all hon. members support this bill.
June 9th, 2009 / 3:55 p.m.
Raymonde Folco Laval—Les Îles, QC
Mr. Speaker, I rise to speak today to Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).
The Liberal Party of Canada supports this bill, in principle. I say that because this bill has a history linked with September 11, 2001.
Governments the world over were charged with establishing anti-terrorism legislation to protect their countries in the event of an attack on their security and safety.
The security and safety we took for granted no longer exist. In today's world, rapid travel, changes in values and attitudes and strained international relations have become an unavoidable fact.
Many members no doubt recall that Canada approved initial anti-terrorism legislation in December 2001, because of a sunset clause that entitled Parliament to review the legislation after five years. Members were concerned and rightly so at seeing fear make a mockery of Canadians' fundamental rights, especially those of cultural communities and, in particular, let it be said, of individuals identified as being from the middle east or the near east.
Even though Parliament improved the legislation, what remained was the criminalizing of peaceful activities and the possibility of unfair trials.
Today we have witnessed the ongoing challenges faced by Mohamed Harkat, a refugee from Algeria, released from jail in 2006 after spending three and a half years incarcerated without a trial. He is accused of having ties to terrorist organizations. Very recently, at the end of May, 16 officers carried out a search of his home in the south end of Ottawa, accompanied by three sniffer dogs trained to find weapons, explosives and money, all because they wanted to know if he was complying with the terms of his release.
Here is a man, and he is not the only one in Canada, detained without trial, whose human rights have been consistently violated in the name of safety and security. This is unfortunately not the only case of this kind in Canada.
Further, the Federal Court later ruled that Canadian border agents were “the most intrusive”. According to Justice Simon Noel, “fairness has to prevail”. He felt the agents had gone too far in seizing items such as family photos. The ruling also called into the question the performance of CSIS, the fact that its informant was not trustworthy. Therefore, the information that put Harkat behind bars could be false. It is information that the government, including the Conservative Minister of Citizenship and Immigration, has been using to deport this family man.
The question was raised by Justice Noel, who presided over the case and who is apparently known as one of Canada's most respected and experienced judges in terror cases, that CSIS also could have deliberately withheld information that could have cleared this man's name.
Are these the values on which Canada now stands, ones of unfairness and inequality, the inability to have the opportunity to be proven innocent by a jury of one's peers? Surely there is another way to do that. Let us tell individuals like Harkat and Adil Charkaoui, a schoolteacher from Montreal, that these are not the pillars, values and principles upon which Canada has built a strong democracy before the Conservative government came into power.
Allow me to recall the facts pertaining to Bill C-19. First, the provision of the Criminal Code pertaining to investigative hearings allows authorities to require an individual to testify without giving them the right to refuse to answer questions on the grounds that the responses might be self-incriminating. The aim of this provision is to compel those involved secondarily in a terrorist plot, who might have vital information, to testify instead of the prime suspects, who are prone to lie in order to protect themselves.
The second provision of the Criminal Code concerns preventive arrests. It allows the police to arrest and detain an individual, in some cases without a warrant, on the condition that they have reasonable grounds for believing that the arrest would prevent the commission of new terrorist acts.
A number of points must be remembered as regards the position of the Liberal Party of Canada. First, my party takes very seriously the safety of Canadians and the protection of their rights. Next, as in all cases of legislation concerning national security, we think a balance must be struck between public safety and individual freedoms. We obviously welcome the government's decision to include security safeguards, proposed by the special committees of the Senate and the House of Commons, which had studied the matter. That has already been mentioned by others before me. These precautions improve the bill and help calm the concerns over individual freedoms we raised when previous versions of this text were studied.
Bill C-19 hearkens back to another bill introduced previously in the other place as Bill S-3. That bill was discussed in a committee of the other place, and dealt with investigative hearings and preventive arrest. This text was introduced in 2007 and then reintroduced with some additional safeguards. Considerable work has already been done on this bill. The 2007 revision required police officers to prove to the judge that they had used all other methods to obtain the needed information.
It also required the Attorney General and the Minister of Public Safety and Emergency Preparedness to make an annual report to Parliament explaining their opinion on whether provisions should be extended. In October 2007, prorogation resulted in the bill, which had been referred to the other place, not getting back here to the House of Commons.
Bill S-3 included certain improvements worthy of mention. First, police officers must prove to the judge that all other reasonable and legal means have been used to obtain the information. Second, any person called to a investigative hearing has the right to retain counsel . Third, the Attorney General and the Minister of Public Safety and Emergency Preparedness are required to make an annual report to Parliament justifying extension of the provisions. Fourth, any provincial court judge may hear arguments relating to preventive arrest. Fifth, the special anti-terrorist provisions may not be extended for more than five years unless both House of Parliament agree to extension.
I realize there will be very emotional points of view on the bill. I had to take a long time before I decided the pros and cons of the bill because it is very important to the population and our way of life in Canada as well.
There are groups who have historically been targeted by those who would deliberately wish to carry out terrorism acts against them. Protection and safety are important. If it means reducing the human rights of others, then we have to accept that.
What is good about the bill is that clause 2 adds new subsections to section 83.31 of the Criminal Code, which calls for separate annual reports on sections 83.28, 83.29 and 83.3 by the Attorney General and the Minister of Public Safety and Emergency Preparedness. The reports would include opinions and reasons on whether these sections should be extended within the act.
What is important is that the bill be sent to committee so it can be thoroughly reviewed and discussed in detail. I want to remind everyone in the House, and people who will be reading this debate, that this is not the end of the debate. If the bill is accepted by the members of the chamber, it will then go to committee. The members of the committee will amend the bill. The groups that are either for or against the implementation of these hearings will go before the committee to provide input and suggestions.
When it is referred to committee for consideration it can be amended, and I hope that the amendments will provide a better balance between collective security, which we all care about, and another thing we all care about too, individual freedom in Canada.
June 9th, 2009 / 4:10 p.m.
Raymonde Folco Laval—Les Îles, QC
Mr. Speaker, the reason why I laid out the chronology since 2007 was precisely to try to show what we have been through in the Liberal Party and to illustrate the relationship between Bill C-3, Bill S-3, which came from the other chamber, and Bill C-19. That is the jargon we parliamentarians use.
In other words, we had a bill in the other chamber, Bill S-3, which introduced some provisions that were extremely important, I would even say fundamental. Unfortunately, for all sorts of parliamentary reasons, Bill S-3 could not be brought forward in this chamber and so the government decided to reintroduce Bill S-3 in the form of what we are now calling Bill C-19.
If Bill C-19 reiterates the elements of Bill S-3, as I really have the impression it does, those being safeguards and protections for individual freedom, then I will have no problem supporting Bill C-19.
June 9th, 2009 / 4:15 p.m.
Gord Brown Leeds—Grenville, ON
Mr. Speaker, I am very happy to address hon. members in the House on the importance of the powers contained in Bill C-19.
The bill seeks to re-enact the investigative hearing and recognizance with conditions provisions that were originally part of the Anti-terrorism Act, but ceased to be in effect as of March 1, 2007 when they were sunsetted.
The bill contains changes to the original provisions that are designed to respond to many of the recommendations that were made by two parliamentary committees that reviewed the Anti-terrorism Act. 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-terrorism Act. The subcommittee made a number of recommendations in the interim report that was tabled on October 23, 2006. The recommendations of the majority of the subcommittee included that both provisions be extended for five years to the end of the 15th sitting day of Parliament after December 31, 2011. It also recommended that there be further parliamentary review before there be any further extension, and that the investigative hearing provision be limited to occasions where a peace officer has reason to believe that there was imminent peril that a terrorist offence would be committed.
I want to speak to the investigative hearing and the recognizance with conditions provisions and also the things that the committee actually dealt with in the report of October 2006, as well as the Senate committee report that was tabled in February 2007. Additionally, the bill contains the amendments that were made last year by the Senate when it reviewed the predecessor to this bill, Bill S-3.
The result is that this bill would create enhanced human rights safeguards and would expand upon annual reporting requirements. Bill C-19 is the same as former Bill S-3 as amended by the Senate in March 2008, with one principal exception. That exception is the additional change made to subsection 83.28(12), which I will explain later. Bill S-3, subsequently died on the order paper due to the fall 2008 election. This bill picks up where Bill S-3 left off.
The investigative hearing and the recognizance with conditions provisions were designed to assist law enforcement agencies and strengthen their ability to prevent acts of terrorism. First I am going to talk about investigative hearings. It seems that I already spoke about this in the House when I spoke to Bill S-3 in the 39th Parliament, but these are very important tools for law enforcement agencies to ensure that we are protected against terrorist attacks.
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 the judge believes there are reasonable grounds that a terrorism offence will be committed in the future, if the person has direct and material information and 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 was 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 these safeguards.
First, only a judge of a provincial court or of a superior court of a 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 proceedings.
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 prosecution for perjury and giving contradictory evidence. This prohibition also applies to derivative evidence, that is, evidence 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 purposes 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 predominant 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 has been noted that the Supreme Court of Canada held that the protection against self-incrimination at investigative hearings, carried out in the context of criminal investigations, also extended to deportation and extradition matters.
There are a number of new things in Bill C-19. There are new human rights safeguards that are not found in the original legislation. For example, new to the provisions is the requirement that in all cases, a judge to whom an application for an information gathering order is made must be satisfied that reasonable attempts have been made to obtain the information by other means. The previous legislation required this when investigating possible future terrorism offences, but not past terrorism offences, and only in relation to reasonable attempts to obtain the information from the person subject to the investigative hearing, as opposed to third parties more generally.
Another change alluded to earlier which is proposed for the first time in this bill would be made to subsection 83.28(12). It would clarify that the judicial power to order things into custody on an investigative hearing is discretionary rather than mandatory. This change would align this provision with the Supreme Court decision and application under section 83.28 of the Criminal Code, which held that a judge at an investigative hearing has considerable discretionary power to the effect that the word “shall” in the provision would be changed to “may”.
Additionally, subsection 83.29(4), not found in the original legislation, would clarify that the witness detention provisions of section 707 of the Criminal Code apply to investigative hearings. As a result, witnesses at the investigative hearing would enjoy the same procedural safeguards with respect to detention that applied to witnesses in criminal prosecution.
I would also like to speak 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 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 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 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, and 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. The consent of the Attorney General of Canada or the attorney general or solicitor general of the province, of course, is required. The peace officer could also lay information before a judge if he believes there is reasonable grounds that the activity could be carried out. The judge receiving the information would have a residual discretion not to issue process, for example, where information is unfounded.
Continuing on, these two provisions that were sunsetted back in 2007 were important tools that were used or can be used to help keep Canadians safe as we ensure that we do not suffer from terrorist attacks. These are things that Canadians do fear, and they do want to ensure that law enforcement has the tools required to ensure that Canadians remain safe.
There was the attack, of course, in the U.K. back on July 7, 2005.
There was the case just a few years ago here in Canada where there were some Canadians arrested on the threat of the potential for a terrorist attack.
So we must remain vigilant. Canadians expect that.
The committee I chaired back in the 39th Parliament that reviewed this act spent a great deal of time. I spoke a little earlier about what the committee brought forward in recommendations to the House that very much mirrored the recommendations that were brought forward in the Senate.
In 2007, after the committee released its interim report back in the fall of 2006, with just a few months to go before the sunsetted provisions were set to sunset, where the majority of the committee had brought this forward, it turned out that when we were running out of days in order to maintain these two sunsetted conditions, the Liberal Party withdrew their support, or at least the members of the committee who had supported the extension of these sunsetted provisions withdrew their support.
We brought back Bill S-3 in the 39th Parliament. We had the fall election in 2008, and that bill died on the order paper.
Bill C-19 seeks to deal with bringing back those two provisions that we know can be used in the arsenal to continue to keep Canadians safe, to fight against terrorism.
Part of this as well is that it would continue to be reviewed on an ongoing basis. That was one of the recommendations that came forward in the 39th Parliament out of the subcommittee, that we do in fact ensure that these provisions continue to be reviewed. They are quite strict. These are important tools. They do need to be reviewed, because we do not know the implications. These are extraordinary measures.
At this time I do not see any compelling reason we should not seek to reinstate these provisions and have them in the toolbox that we and law enforcement can to use to ensure that Canadians remain safe.
I urge all hon. members to support this legislation. Let us get it to committee and move it forward.
June 9th, 2009 / 4:40 p.m.
Réal Ménard Hochelaga, QC
Mr. Speaker, I am pleased to rise in this debate on Bill C-19, whose purpose is to re-introduce two provisions that the House did not want to approve when we dealt with them back in 2007.
I remember the debate we had in 2002. I was in the House then, having been elected a few years previously. If I remember correctly, Minister McLellan was responsible for public safety at the time and there was a legislative committee on which the Bloc Québécois was represented by the hon. member for Saint-Jean. It was not the Standing Committee on Public Safety and National Security or the Standing Committee on Justice and Human Rights that dealt with these proposals. I remember the situation very well. It was just after the attacks of September 11, 2001. There was a kind of psychosis in the air and all countries felt the need to be much more vigilant about terrorism. This widespread psychosis made us realize just how vulnerable we were as a society.
I can remember reading documents and going to conferences where we were told about the new phenomenon of terrorism. It was mass terrorism, in which innocent civilians were attacked. We had seen examples on subways and in airports. The terrorists were pursuing ideological ends. These were not various groups confronting one another but people trying to find ways to destabilize and terrorize civilian populations. We were trying to find methods—and very legitimately so, I can easily understand it—to avert these threats.
It was a time when the American congress had quickly passed the Patriot Act. I think the United Kingdom passed some legislation too, as well as France. Canada did not want to be left out and passed an act.
It would be a mistake for the members to allow themselves to be guided by reasoning that is fundamentally flawed. The provisions proposed here give the impression the government wants to find people to convict. It wants to force people before judges without having to meet a certain burden of proof, and that is clearly unreasonable. They argued at the time there was an emergency. I am very proud that the Bloc Québécois never yielded to this psychosis. There was also a very strong feeling of sympathy for the Americans. Prime Minister Chrétien went to walk around Ground Zero, along with all the party leaders.
We obviously have a special relationship with the United States. In speaking of it, former President Kennedy said geography made us neighbours and history, friends. There really is a symbiotic relationship between Canada and the United States. Whether it is the border, the American dream or trade flows, we are integrated in ways that can sometimes be very harmful. It is not my intention, though, to talk about that now.
I am proud that the Bloc Québécois managed to resist voting for these provisions, which are not the right approach given our objectives. When members do not agree with these provisions—one of them more than the other, if I understood correctly, especially when it comes to preventive detention in section 83.3—that does not mean we are less concerned about terrorism, we are not vigilant, we do not think we should anticipate terrorist acts, or we think there is no such thing as terrorism.
It was even explained to me that, in the world right now, there is an alarming proliferation of terrorist groups and that the most threatening terrorism, the most active, should I say, is that guided by considerations that are often ideological based on religious practices. That said, we are parliamentarians, democrats. We do not lose sight of the balance that must be struck in Parliament between rights, and of course, the end, in this case, is to protect the public. In 2002, it did not seem to us that this balance was reached and that the means being proposed to us were likely to achieve this end. Through my colleague, Marc-Aurèle-Fortin, who sat on the Standing Committee on Public Safety and National Security, we are renewing our position and concerns of 2002, when we considered the provisions put before us then.
Why did we have concerns? Because, for a parliamentarian, the end can never justify the means. We can never take shortcuts with warrants, assessment of the evidence or detention, even if we are talking of 24 hours. We can never take shortcuts, because to do so in this matter, there will be no more limits and there would be a loss of vigilance that is beneath the office we hold.
People here lived through the 1970 crisis. I was a little too young, but I am well aware, having heard the oral history, of the extent to which 1970 was a blot on our collective history of individual rights. Freedoms were suspended and because of that excesses were committed against poets, women singers, people who were moved by freedom, who believed in a certain ideology but represented no threat to society.
In the Bloc Québécois, we are not prepared to give our support to this type of democratic shortcut, even less so when we consider the history of these provisions, a short history, I grant you. Investigative hearings are mechanisms by which a provincial court or superior court justice of the peace can be asked to compel a citizen to testify and answer questions. While certain mechanisms may prevent it from being prejudicial for later testimony, the potential for compelling someone on the basis of suspicions remains. These investigative hearings, while they are more clearly defined, still represent a threat to procedural balance and democracy. I will come back to this.
Investigative hearings, like preventive arrest and detention, exist in provisions but have never been used. That is rather surprising. I heard the government members telling us earlier that these are tools needed by the various law enforcement agencies. It is contradictory, not to say paradoxical, and perhaps even inconsistent to suggest that tools are vital to law enforcement agencies, when they have never been used. Could we take into consideration the fact that the reason we have never used them is that there are alternative means in law, provided in the Criminal Code, which the law enforcement agencies can use?
We all understand that when terrorism is involved, somewhat like when organized crime is involved, these are not things that come about through spontaneous generation. They are things that call for lengthy investigations and a huge amount of resources. The Bloc Québécois does not dispute that intelligence is needed or that wiretap warrants are required. I was also in this House when wiretap warrants were extended. Not only may those warrants be necessary, but there may also be surveillance operations.
Terrorism and the networks that make it possible are things that depend on organizations. It is reasonable for a state to be able to use all means available to it to try to anticipate what is going to happen. Not only is it reasonable, it is also our duty. Society would not feel safe without the Canadian Security Intelligence Service, the RCMP and all of the organizations that are responsible for intelligence. I agree, and I understand, that the state must have agencies that will keep an eye on these various networks and will use wiretaps, surveillance, undercover operations and counter-espionage, and all lawful means available to its leaders, to anticipate, foresee and engage in extremely vigilant monitoring of these people’s behaviour.
Let us consider the question of preventive detention. Obviously there is a considerable risk of abuse and stigma. In our legal system, the first consideration is fairness. If the state, with its prerogative powers, uses coercion against individuals and intrudes into their private lives, it is reasonable for there to be something to offset this, that being the knowledge that the individuals will have evidence against them that will lead to a conviction. In order for them to know and understand that evidence, and be able to prepare their defence, they must know what they are charged with and they must be arrested in accordance with the procedure set out in the Criminal Code.
In the case of preventive detention, that balance is upset somewhat. If I understand correctly, in the case of preventive detention, individuals may be arrested based on grounds or suspicions. Suspicions, in legal terms, are much less sound considerations. When there are reasons to think that individuals will commit terrorist acts, we generally have information we can use to assess the situation. There are various provisions. Why not use the conspiracy provision? If I remember correctly, it is in section 467 of the Criminal Code. Why not use the conspiracy provisions?
If we want to force someone to behave in a certain way and enter into a recognizance to keep the peace, why not use section 810? There is a big difference between clause 83.3 in the proposed legislation and section 810. They both have the same objective, namely to avoid something and ensure that someone enters into a recognizance to keep the peace. Under section 810, however, the person is summoned before a justice of the peace but not arrested. That is the first very important distinction.
The justice can require him to sign a peace bond, and he is arrested only if he refuses. If I remember correctly, the person can only be arrested for 12 months, although I think that might have increased to 24 months, at least in the case of section 810.
Those are provisions, therefore, that can be used by the various people responsible for enforcing the law. Unfortunately, clause 83.3 goes much further than that. A person can be held for 24 hours. The justice can also impose conditions for keeping the peace, there is no doubt about it. There will also be a stigma attached to the person involved because he was brought before a justice of the peace and associated with things that lead one to think he was involved in terrorism.
Being stigmatized in this way can have repercussions on a person’s job. If his employer hears about it, his reputation could be tarnished in the organization he works for. His employer may well question his allegiance as an employee and even his contract.
If an employer finds out that one of his employees has been associated with terrorism, even if only suspected of it, he could very well lose confidence in him. This is understandable but very detrimental, especially as it is based not on a charge, or solid proof, or a trial conducted under the established rules but simply on a process that takes someone to a peace officer who sends him before a justice of the peace, all on the basis of suspicions.
Once someone has been associated with terrorism, even if only suspected of it, there are repercussions not only on his job but also on his mobility, for example if he wants to travel by plane or any other means.
In thinking about our objective, neither Canada nor Quebec is safe from terrorist incidents. We understand that. But why ask parliamentarians to take shortcuts with our democracy when there are no assurances that these shortcuts will ever be used by law-enforcement agencies? In fact, until there is proof to the contrary, they certainly have not been used so far.
In connection with the prevention of acts of terrorism, section 495 of the Criminal Code provides that a peace officer may arrest without warrant a person whom he believes on reasonable grounds is about to commit a criminal act. As we can see, the provisions are already in place.
I must say with no ill will, because I am totally incapable of it, that I am surprised by the attitude of our colleagues in the official opposition. The Liberals supported the charters and just society of Pierre Elliott Trudeau, and I thought they always responded positively to the call to end practices that might be considered highly discretionary and of concern in terms of individual rights. I do not understand that the official opposition is today supporting the government. If my calculations are right, that means that Bill C-19 will likely be passed. Even if the Bloc and the NDP oppose it, we can realistically expect it to pass.
That is shameful, especially since the leader of the Liberal Party, when I was a law student, was recognized as an authority in individual rights. How can he today drop his guard and allow his party to support a bill that is extremely worrisome in terms of individual rights and the potential abuses it may lead to?
My time is up. I appeal for Bill C-19 not to be passed.
June 9th, 2009 / 5:05 p.m.
Brian Murphy Moncton—Riverview—Dieppe, NB
Mr. Speaker, it is my pleasure to speak to the bill. I have the objective to cover a number of topics that I think might give us the full picture.
Too often in the House, we talk about specific legislation. We call it “C-19” or C-whatever. We talk about clauses in bills. We talk about the black letter law and the fine lines. All too often, it must be lost on the Canadian citizenry, stakeholders such as law enforcement officials and attorneys general, et cetera, and all of us that there is a wider context and broader scope.
Today, we are essentially discussing aspects in the Criminal Code of Canada. I have said a number of times that a great way to get Conservatives on our side is to say that one of the best things they ever did as a party was to have a bright Maritimer, a former prime minister and minister of justice, Sir John Thompson. In 1892, when he was the minister of justice, he collated and wrote the Criminal Code of Canada, many years after we became a country. The hon. member from Scarborough has said it maybe it was one of the last goods things they did. That is probably unfair, but it history will judge.
The point is we live with the Criminal Code. The fact it was enacted it in 1892 and has never really had a wholesale revision of it means that we keep adding things to it. We keep adding layers to the Criminal Code. One of the layers we enacted in the wake of 9/11, the terrorist attacks on North America and our security and sovereignty as it was felt then, was section 83.1, a separate section on terrorism. It became law on January 17, 2002.
This was the context where we said that we would take 24 pages of the code and dedicate it to anti-terrorism tactics and legislation. It is a good place to start, because I have mostly been hearing a bit of a repetition from the Conservative side of the fine points about anti-terrorism legislation and how we have to shore this up because we kind of lost the boat in 2007. We have to clean this up and stop the leaks. It is only two subsections, which is a very small part of the 30 pages.
There has not been a wholesome discussion of what we did in 2002 in reaction to the terrorist attacks of 9/11. However, what I have heard all day from members of the opposition is the supposition that the Criminal Code takes care of all criminal activities and that there should not really be a special circumstance for acts of terrorism, that other parts of the code protect individual liberties. Criminals are people accused of crimes. They say that these should be good enough and that we should not have a special section on terrorism.
There is a lot written about how we reacted as a country and as Parliament to the acts of 9/11. There may be a thought after the passage of time that we overreacted with respect to the intrusion upon individual liberties and rights as defined in the charter. That will be a judgment of history. I do not think events are written into history in three, five or ten years. As they say, history is often written by the winners, but history is also often written when the winners and losers are long gone. The judgment of history will decide whether there were overreactions in North America or the western world with respect to 9/11.
However, when we look at the context of section 83.1, we can see that it is written fairly broadly and fairly comprehensively to take international situations into account. I do not think it can be said that the whole of section 83.1 was an overreaction that went too far. I have yet to hear the opposition parties say that the section 83.1 should be thrown out. I take it as an admission that the other opposition parties feel section 83.1 is worth keeping.
I think of my friends in the Bloc, particularly my friend from Hochelaga, who rail against certain sections of 83.1, in particular the recognizance preventive detention sections, which are the crux of the debate today. It is very curious that at the justice committee, he was the very member who brought forward the motion to suggest we should list organized crime organizations as outlawed associations and further our work in battling crime. It is a sure analogy because that is the very thing we did in section 83.1. By cabinet decision, by Governor-in-Council, there can be a scheduled list of terrorist groups, which then is made to apply to this part of the Criminal Code.
The member from the Bloc, who was extremely eloquent in defending his position, undercuts himself when he says that we should do this domestically in the Criminal Code, buttress section 467.1, which is the organized crime part of the code, with a legislated listing or organized crime associations, just like we did in 2002 with terrorist organizations.
I am a little concerned that opposition members are perhaps overreacting to legislation, the bulk of which heretofore they have not objected to.
I have a word on organized crimes. It is not an advertisement for the upcoming justice committee hearings, but it is worth noting that we spend 26 pages in the Criminal Code on terrorism and we spend 4 pages on organized crime. Currently we are trying to move organized crime into the terrorism section 83.1 by perhaps naming organizations and buttressing that section. If we are talking about organized crime, we can go to section 467.1 and say that this is what Parliament intended in dealing with this specific problem.
There is great recognition in the House that there is a specific problem when it comes to organized crime. Unlike what my friends in the other opposition parties are saying, it is not all found elsewhere in the Criminal Code. We are not talking about simple assault or murders. We are talking about murders, assaults and harm done by criminal organizations.
It is easier for us to understand that because we know about criminal organizations, drugs and crime. We see it every day. We see there are not enough prosecutions to keep up with the crimes. It is in front of us and it is in front of our constituents. It is open, it is notorious and it is there to see. Therefore, we see the need for that.
In the months after 9/11 we saw the need for section 83.01. As I say, I do not think there has been a backtracking on the need for a separate section on anti-terrorism legislation.
Like all reviews of legislation and like all needs for legislation, from time to time it is important to look back and see whether we overstepped. I am not saying that this would be part of the debate today, but an act of terrorism is defined in section 83.01, as many of those definitions are defined by universal declarations. I will not go through them all. They have been well pounded out by international organizations, declarations and conventions. They are all there. The definitions are clear. However, they are also for acts or omissions in or outside of Canada.
It was groundbreaking for this part of the code to take into account acts or omissions that took place offshore. It was very vital for us to treat terrorist offences differently in that way so we could have extraterritorial jurisdiction. However, it goes on to say that these acts are committed in whole or in part for political, religious or ideological purpose, objective or cause.
I know a number of lawyers who have been involved with some very high profile cases, including none other than the member for Mount Royal. They have suggested that the phrase, which precurses the debate of the sections we are getting into, may be a bit wide.
If we think about it, in organized crime we do not get into the ideological, political or religious reasons why organized criminal organizations open up chop shops or grow marijuana for the currency in the drug trade, corrupting our youth with respect to illicit drugs. We do not much care about that. We care about the fact that they are organized, they have targeted groups and they harm people by various crimes that would otherwise be in the code.
It is similar with respect to terrorism. We might say that ideological purpose drives a person to be a suicide bomber, and I understand that, but in this day and age, in our country of pluralistic values, the word religious hits a button, which I think is objectionable. The fact that it does not exist in the patriot act would tell us that the Americans bill of rights will not countenance it.
If we had to gauge reactions to 9/11, probably the American response was a little more reactive than ours. Again, history will judge that. I say that as a precursor because I know the influence for a lot of this legislation may be British in origin.
The British Parliament in its legislation, as it does not have a code, has been reactive to terrorism for a lot longer. It has some of the best crack units in anti-terrorism and some of the best intelligence gathering because of its longer experience with terrorist activities, which, in the main, were caused with the “problems” in Northern Ireland. Again that went back to the thought many years ago that this was only a religious problem. That is something at which we might want to looked.
Remember we are talking about the last three or four pages. With respect to the bill itself, the first 20 or so pages talk about the special powers that might be given to judges and prosecutors to amass evidence and property. As section 83.03 says, providing or making available property or services for terrorist purposes is an offence. There is the whole section of establishing the list.
There is the admission of foreign information obtained in confidence, which would not necessarily apply to a domestic crime. This is why section 83.1 is needed. There is the freezing of property, which again is a special element of the anti-terrorist campaign to get rid of parts of the Criminal Code. There is immunity from disclosure. There are audit powers that are necessary for the incursions into terrorist organizations. There are restraint and forfeiture of property applications that fill this part of the section. There are forfeiture provisions unaffected and participation in an activity and terrorist group, which are the collateral named or delineated offences.
There are a number of activities of harbouring and concealing terrorists, the instructing to carry out a terrorist activity if the individual is not the actual person involved, before we get to the debate about investigative hearings and the arrest warrant for detention in aid of that.
The Canadian public should know, and parliamentarians should keep reminding themselves, that we have no intention of getting rid of section 83.1, the whole terrorist part II.1. Not a speaker rose and said we should get rid of that.
The so-called sunset provision would maybe let the public feel or some people think that we have not had a lot of incidents, that maybe we do not need this heavy-handed tool, therefore the whole Anti-terrorist Act regime in this part of the code will go out. It is not part of the debate today.
We are talking about two provisions of the legislative agenda and whether they should be returned to the code and looked at on an annual basis, as the amended act says, and reviewed. Also it should be looked at within the view of terminating it within five years, another sunset provision.
The investigative hearings, in particular, have been tested by the Supreme Court of Canada. That is another thing I did not hear much about in the debate today. In the 2004 decision of the Supreme Court of Canada, Bagri, sections 7 and 11(d) of the charter were declared not to have been violated by these sections of the code.
This is now 2009. Five years ago, and two years after the enactment, those sections have been declared, without further challenge in five years, to have been compliant with the charter. We are now debating whether they should go back in. One reason is there have been improvements to the deleted or the sunsetted provisions by virtue of the work of the House and the other House.
Bill C-19, replaces, in the two section I want to talk about, the pith of the debate, sections 83.28 and 83.3 of the Criminal Code. These call for an investigative hearing to gather information for the purposes of an investigation of a terrorist offence and to provide for the imposition of a recognizance with conditions on a person to prevent him or her from carrying out a terrorist activity.
This act that has been brought in also provides that these sections cease to have effect for the possible extension of the operation.
All parties in this House take the protection of rights very seriously. On the other hand, there is a collective right in favour of protecting national security. There is the collective right of Canadians in every province and territory to feel that we have secured our boundaries, that we are going to act preventively, hopefully, and at least reactively, to measures that are undertaken by terrorist groups to destroy our country. I have to think that is a primordial national value shared by all parties.
Obviously the question in the debate today is the question of balance. How much infringement on individual rights will be tolerated for the protection of the collective right in favour of national security?
What is encouraging about this bill, as opposed to the last time we debated whether these two provisions should sunset or not, is that the government has incorporated safeguards proposed by the Senate and the special House committee that studied these matters in Bill C-19.
We feel that this bill deserves to be sent to committee to be studied in an overall wholesome and holistic way to determine whether those safeguards do indeed satisfy the right balance. Let us face it: none of us who spoke today are qualified to be witnesses on the topic. We are the elected members who express, as best we can and in the best fashion we can, what we think are the wishes of the Canadian people and in particular the people in our ridings.
At a hearing at committee, we would expect to hear experts in the field on this very important question of the balance between individual rights and the collective right of national security. The bill should be sent to committee because it has addressed previous concerns and it has incorporated proposed amendments set forth by the Senate members of the committee who studied it.
Again, this is not an advertisement. Let us be clear: the Senate committee studying this bill did a good job. They made a thorough review of the legislation and they proffered some suggestions that were followed by the Conservative government. It is about time that the government and all members in this place say that the Senate did a good job. There are some very capable people in the Senate, who brought forth some very important procedural protections and the tweaking of the two provisions to make it palatable, in my view, on the balance of rights.
The investigative hearings provisions in the Criminal Code allow authorities to compel the testimony of an individual without the right to decline to answer those questions. The intent would be to call in those who are on the periphery of the alleged plot, as it may be in terrorist circumstances, who may have vital information, rather than the core suspects. It is information gathering.
The second aspect of these two provisions is the preventive arrest provision, which in the Criminal Code allows the police to arrest and hold an individual, in some cases without warrant, provided they have reasonable grounds.
I think these amendments are very reasonable. They follow on Bill S-3.
In conclusion, I might add that the stakeholders in support include the Canadian Jewish Congress, which told the Senate committee that studied these provisions:
We believed in 2001, and continue to believe today, in the importance of granting expanded powers to the security services through recognizance with conditions and investigative hearings for the careful monitoring of individuals and groups that are suspect and the amassing of relevant information well in advance.
I want to speak briefly about the Harkat decision. I would like to discuss it in terms of the questioning that I may receive. The Harkat case is a jumble of the misapplication of the law as it is. It does not stand for the proposition that the law as it is or as it is about to be amended through this process is bad. It is throwing the baby out with the bathwater to use Harkat and the various decisions of Justice Noël for an argument that we should not enact proper legislation respecting the balance between individual liberties, the rights of individuals and the collective need for security.
June 9th, 2009 / 5:25 p.m.
Brian Murphy Moncton—Riverview—Dieppe, NB
We do not have time to talk about the death penalty and the inappropriateness of the government's action, but I do have time to say that Bill C-19 adopts suggestions made by Liberals in the Senate, by Liberals here and by opposition parties, that suggest, for instance, there should be a right to retain and instruct counsel in these secret hearings, which was absent before.
It is very important, I will not say softened, but they made it more fair, that a judge must recognize that the disclosure and the investigation must be complete and that investigators, namely the police authorities, must exhaust all other methods before they get into preventative detentions and investigative hearings. They must go through the wringer, so to speak, before they trample on individual rights. That would guarantee, hopefully, the collective right of security.