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.

Sponsor

Rob Nicholson  Conservative

Status

Second reading (House), as of June 9, 2009
(This bill did not become law.)

Summary

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

Criminal CodeGovernment Orders

June 8th, 2009 / 6:15 p.m.
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Niagara Falls Ontario

Conservative

Rob Nicholson ConservativeMinister of Justice and Attorney General of Canada

moved that Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

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June 8th, 2009 / 6:15 p.m.
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Fundy Royal New Brunswick

Conservative

Rob Moore ConservativeParliamentary Secretary to the Minister of Justice

Madam Speaker, I am pleased to speak today to Bill C-19. The bill seeks to re-enact in the Criminal Code the investigative hearing and recognizance with conditions provisions. Many hon. members will be aware of this subject matter as it has been before Parliament on our agenda from time to time in recent years, most recently as Bill S-3 in the previous Parliament, which was passed by the Senate and debated at second reading in the House.

I am pleased the government has reintroduced this bill. It further demonstrates the unwaivering commitment of the government, and I should add, our Minister of Justice, to give law enforcement agencies the tools needed to safeguard our national security, while respecting human rights. It also offers Parliament the opportunity to re-enact those important provisions. I sincerely hope Parliament will seize this opportunity.

In the time available to me today, I would like to discuss the nature of the investigative hearing and recognizance with conditions. In addition, I would like to revisit very briefly previous parliamentary debates on these matters to emphasize that the provisions contained in the bill, while substantially similar to those that were debated in the sunset debates, are also somewhat different.

The bill responds to many parliamentary recommendations that have been made previously. The bill proposes to re-enact the investigative hearing provisions, which will allow the courts, on an application by a peace officer, to compel someone with information about a past or future terrorism offence to appear before a judge to answer questions and when requested bring anything in the person's possession or control to the judge. The investigative hearing would be an information gathering tool in respect of terrorism offences. Its purpose would not be to charge or convict an individual with an criminal offence. The focus would be on questioning witnesses, not on cross-examining accused persons.

The bill would also seek to re-enact the recognizance with conditions as a measure that would be intended to assist peace officers to prevent imminent terrorist attacks. If a peace officer would have reasonable grounds to believe that a terrorist activity would be carried out and would have reasonable grounds to suspect that the imposition of a recognizance on a particular person would be necessary to prevent such an activity from being carried out, then the peace officer could apply to a judge to have the person compelled to appear before a judge.

The judge would then consider whether it would be desirable to release the person or to impose reasonable conditions on the person. The government would bear the onus of showing why conditions should be imposed. The recognizance with conditions would be designed to aid the disruption of the preparatory phase of a terrorist activity. The recognizance with conditions has previously been referred to as preventative arrest, however, this is not a particularly apt characterization of the provision since it would only be used under exceptional circumstances that a person could be arrested without a warrant. However, even in this instance, the attorney general's consent would have to be obtained before the officer could lay the information before the judge.

The maximum period of detention when seeking a recognizance with conditions would generally be no more than 72 hours. If the judge were to determine that there would be no need for recognizance, the person would be released. However, if the court were to determine that a recognizance would be necessary but the person refused to enter into a recognizance, the person could be detained for up to 12 months.

I wish to touch briefly on the legislative history of these provisions and to remark upon them.

Members will no doubt be aware that the investigative hearing and recognizance with conditions were initially part of the Anti-terrorism Act. These provisions were to expire, absent an extension agreement by both Houses of Parliament, at the end of the 15th sitting day of Parliament following December 31, 2006, which was March 1, 2007. The Anti-terrorism Act anticipated that the mandatory reviews of the act would be completed well in advance of the parliamentary debate on the extension of these sunsetting provisions. As it turned out, this was not the case.

In October 2006, the House of Commons subcommittee tabled an interim report recommending that the investigative hearing power be limited to the investigation of imminent and not past terrorism offences. It also proposed some technical amendments to the provisions, but otherwise approved of these powers and recommended extending them for five years subject to further review.

The government, however, had yet to hear from the special Senate committee, which was conducting its own review of the legislation. Indeed, the Senate committee report was not issued until February 22, 2007, just days before the vote on the extension of the powers. The special Senate committee recommended a three year renewal period for both powers.

On February 27, 2007, when the time came to vote on the motion to extend the provisions, the final report of the House of Commons subcommittee on the Anti-terrorism Act was still unavailable. Consequently, it was not practically possible for the government to respond to recommended changes before the vote.

Since that time, there was an opportunity for reflection and the government was able to respond by introducing Bill S-3 on October 23, 2007. Bill S-3 sought to re-enact the investigative hearing and recognizance with conditions with additional safeguards and some technical changes that were responsive to many of the recommendations made by the two parliamentary committees that reviewed the Anti-terrorism Act.

Further, the Senate made three amendments to former Bill S-3, including making mandatory a parliamentary review of these provisions.

Bill C-19 reintroduces former Bill S-3, as amended by the Senate. In addition, one further proposed amendment has been included in the new bill. This new change would clarify that the judicial power to order things into police custody at an investigative hearing would be discretionary rather than mandatory. This change would align the provision with the decision of the Supreme Court of Canada in application under section 83.28 of the Criminal Code, where the Supreme Court concluded that the investigative hearing provision conferred upon the judge considerable flexibility and discretion.

Thus, the investigative hearing and recognizance with conditions proposals contained in this bill are not the same as those provisions that were debated during the sunset debate. While they are substantially similar, important changes have nevertheless been made to respond to parliamentary recommendations.

When the resolution to extend the life of these provisions was last debated, three arguments were made in support of sunsetting these provisions: one, that they had not yet been amended in accordance with the recommendations of the parliamentary committees; two, that the provisions were not necessary, given that they had rarely been used; and three, concerns were expressed regarding the protection of human rights. I would like to address these arguments.

In the time since the original provisions sunsetted, the amendments suggested by the parliamentary committees have been carefully considered. The large majority of these recommendations have been addressed in the bill, including with respect to a mandatory review, annual reporting requirements and various technical amendments.

Moreover, as I have indicated, the bill also includes the Senate amendments that were made during its consideration of former Bill S-3, as well as the additional amendment that I have highlighted.

The government has not taken up a particular recommendation made by the House subcommittee in its interim report. In that report it recommended that the investigative hearing not deal with information gathered in respect of past terrorism offences, but should be limited to the collection of information only in relation to imminent terrorist offences. In this regard, it should be noted that the special Senate committee did not take a similar position.

Perhaps when people speak of past terrorism offences, they may think in terms of years. For example, as we know, the tragedy of Air India happened in 1985. Bill C-19 recognizes the significant value of being able to acquire historical information as well as information that may prevent the commission of future terrorist acts. Accordingly it does not propose to limit the application of the information gathered in the investigative hearing to imminent terrorist offences.

As for the argument that the provisions are unnecessary, we need to be reminded of the increasing number of terrorist attacks all over the world and the gravity of the threat of terrorism. Unfortunately, it is folly to believe that Canada and Canadians are immune from the threat of terrorism. If we look at this issue realistically, we know that this is not the case.

Terrorism trials are taking place in our country as we speak. Clearly the threat of a terrorist attack, which these provisions are designed to prevent, continues. We need to be ready to respond to terrorist threats and it is important that our law enforcement authorities are properly equipped to do so.

Both the investigative hearing and the recognizance with conditions, as provided for in the bill, would be replete with human rights safeguards. With respect to the investigative hearing, these safeguards would include the following. There could be no investigative hearing without the consent of the relevant attorney general. 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.

There would have to be reasonable grounds to believe that a terrorism offence has been or will be committed. The judge would have to be satisfied that reasonable attempts had been made to obtain the information by other means. 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.

The bill also incorporates 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.

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June 8th, 2009 / 6:25 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

Order. I regret to interrupt the hon. member, but when debate resumes on Bill C-19, he will have 10 minutes to pursue his comments.

The House resumed from June 8 consideration of the motion that Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

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June 9th, 2009 / 12:45 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

The hon. Parliamentary Secretary to the Minister of Justice has about nine minutes left for his comments.

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June 9th, 2009 / 12:45 p.m.
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Fundy Royal New Brunswick

Conservative

Rob Moore ConservativeParliamentary 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.

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June 9th, 2009 / 12:55 p.m.
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Liberal

Larry Bagnell Liberal Yukon, YT

Madam Speaker, I would like to thank the member for a very comprehensive explanation of the bill, and of course we are very supportive of the concepts of the bill. He gave a good explanation of one of the elements that the committee had recommended, which the government did not follow up on, in regard to the historical claims.

I wonder if there are any other recommendations from either the House or the Senate committee that were not followed up on and could the member explain the rationale for that?

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June 9th, 2009 / 12:55 p.m.
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Conservative

Rob Moore Conservative Fundy Royal, NB

Madam Speaker, in fact, many of the recommendations that were made both by the parliamentary committee, which studied these provisions, as well as the Senate committee, which studied these provisions, have been adopted. I can mention one of them specifically, which is that the change that would clarify the judicial power to order things into police custody at the investigative hearing would be discretionary rather than mandatory.

As we know and the hon. member is well aware, the investigative hearing provisions had in fact been considered by the Supreme Court in a case and held to be constitutional. This proposed amendment would bring the bill and the provisions further in line with the ruling of the Supreme Court in that regard.

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June 9th, 2009 / 12:55 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Madam Speaker, I think that all Canadians have seen what happens when there is a substantial departure from Canadian legal tradition. In the recent case of Mohamed Harkat, we saw what happens when trials are held in secret, cross-examination is truncated, and evidence is presented to people without the presence of the accused and their lawyer.

This bill proposes amendments to the Criminal Code that deepen these problems. They relate to putting in place investigative hearings where people can be compelled to attend a hearing and to answer questions. In other words, the historic right to remain silent is abridged by this government bill, and preventative arrest, where individuals are detained not because they have committed any act but because they might, which goes against the historic presumption of innocence in this country.

I wonder if my hon. colleague could comment on why the government wants to abridge these two important rights, and I would point out that because something may be constitutional, it does not make it right.

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June 9th, 2009 / 12:55 p.m.
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Conservative

Rob Moore Conservative Fundy Royal, NB

Madam Speaker, honestly, I am actually a little shocked at the question. Who among us in this chamber would not rather prevent an imminent terrorist act than have to deal with the tragic consequences of that act?

These provisions not only have not been abused but they have not been used except in one case, so obviously law enforcement are using extreme discretion on the use of these provisions. Yes, these provisions are new. They came in, under a previous government, under the Anti-terrorism Act, and they are designed to act in a constitutional manner to prevent some of the most serious terrorist acts that could take place right here on Canadian soil.

I will mention, for the hon. member's benefit, the safeguards to which I referred earlier. There can be no investigative hearing without the consent of the Attorney General. Only a judge of a provincial court or of a superior court can hear a peace officer's application. There would have to be reasonable grounds to believe that a terrorism offence has been or will be committed.

I will not enumerate the rest of the safeguards that I had in my speech, but as the member should be aware from having listened to my speech, there are numerous safeguards in place. The investigative hearings have been considered by the Supreme Court of Canada and held to be constitutional. When we have to weigh bringing in legislation like this against protecting Canadians from an imminent terrorist act, we have to take steps to protect Canadians.

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June 9th, 2009 / 12:55 p.m.
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Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, going forward we must ensure there is proper oversight. Would the government consider the possibility of both houses reviewing the bill instead of one house reviewing the bill, as is currently worded in the legislation?

The last time this bill was undertaken, the member said in his speech, quite rightly, that there were important changes and amendments made by the Senate. How would the member feel about further reviews involving both houses to ensure a more rigorous review process and the possibility of a review within three years rather than five years to ensure there is vigilant oversight?

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June 9th, 2009 / 1 p.m.
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Conservative

Rob Moore Conservative Fundy Royal, NB

Madam Speaker, a review of the provisions is part and parcel of the bill. When these provisions were originally included in the Anti-terrorism Act, there were sunset provisions. There was lengthy debate in the House on those provisions. Many good points were raised and responded to.

These provisions have been considered by a Senate committee as well as the House of Commons. Recommendations that flowed from the Senate and recommendations that flowed from the House have been incorporated into this bill. There is a five-year review, whereupon these provisions would have to be reconsidered. There is also mandatory reporting. It is from that mandatory reporting that we know the investigative hearing provisions have only been used once and the provisions on recognizance have not been used.

The provisions themselves are working quite well. In fact, even if this bill passes and these provisions are back in place, we hope that they are never used, but that they are there so that in a case of extreme threat to our country and Canadians, they can be used.

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June 9th, 2009 / 1 p.m.
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NDP

Jack Harris NDP St. John's East, NL

Madam Speaker, I think Canadians' sense of justice is affected by this bill. In fact, I think it is recognized in the bill itself that the bill comes from a previous bill that had a sunset clause. The provisions were deemed, even by the Parliament that passed them years ago, to be of a type that should die unless there was reason brought forward to continue or renew them.

These provisions died a natural death in 2007. As a result, they have not been in force. There has not been any reported problem associated with this. No one in the media or the press has mentioned that this tool was sadly lacking in a particular case. We think that this provision is not necessary. When a bill allows for imprisonment for up to 12 months or strict recognizance conditions on individuals who have not been charged with any crime, it is contrary to the core values of our justice system.

I do not see why the government is bringing this back in. Can the Conservatives give any justification at all for bringing this back in when the bill died without being renewed, as it was intended to?

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June 9th, 2009 / 1 p.m.
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Conservative

Rob Moore Conservative Fundy Royal, NB

Madam Speaker, I can give justification as to why we bring them in. We want police to be able to prevent an imminent terrorist attack. Is it that hard to understand? These provisions allow for cases where the police have reason to believe that a terrorist attack on Canadian soil is imminent. That means it has not taken place yet, but it is about to take place. Under the provisions of this bill, there has to be reason to believe that a terrorist attack is imminent. As I mentioned before, our goal should be to prevent that attack. Without these tools in place, the police do not have the appropriate tools to prevent that attack. These provisions allow for the mechanism to prevent an imminent terrorist attack.

I have enumerated the safeguards in the bill a couple of times. The safeguards are numerous. The provisions have been considered by the Supreme Court of Canada and have been found to be constitutional. We have to act to protect Canadians.

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June 9th, 2009 / 1:05 p.m.
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Liberal

Mark Holland Liberal 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.

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June 9th, 2009 / 1:10 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, my concern with the bill is the sunset clause, which was initially put in the bill when this became legislation. There was a great deal of concern among parliamentarians about the extraordinary powers that were being delivered to the police.

The Conservatives say that this would only be used in the case of an imminent terrorist attack, yet in jurisdiction after jurisdiction police officers can defend all kinds of powers on the basis that it will help stop some kind of nefarious activity.

For many years, a process of internment in Ireland was supposed to be a process to stop the IRA. Ireland also had processes where people were taken and held without trial for long periods of time. Again and again we have seen serious injustices, like the Guildford trials and the Birmingham bombings.

The question I would ask my colleague is on the provision of being hold someone for 12 months without charges. If there is an imminent attack, we want to ensure the provisions are in place to respond. However, police will always say there is a good reason for picking people up and holding them for 12 months.

In the case of Harkat, CSIS provided false information. In the case of Mr. Abdelrazik in Sudan, the government continues to deny his rights. It cannot even bring any kind of claim against him, yet those rights are denied again and again.

Does my hon. colleague think it is good enough to say that we will have parliamentary oversight of a provision that really undermines fundamental due process in our country?

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June 9th, 2009 / 1:15 p.m.
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Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, when the Anti-terrorism Act was originally introduced and the sunset clauses were put into place, it was done specifically so we could take a look at the period that transpired and how these tools worked and how effective they were.

No one is suggesting by any means that somebody can just be picked up without cause. The standard is set extremely high. I go back to some of the points I made that were added by the Senate, which are critical to my support in seeing this go over to the committee.

There are increased emphasis, as I mentioned before, on the judge to be satisfied that law enforcement has taken all other reasonable steps before using this as a mechanism, the ability of people to both retain and instruct counsel, requirements for an annual reporting by the Attorney General and the Minister of Public Safety, the flexibility of a provincial court judge to hear a case on a preventative arrest and so forth.

When we look at the threshold that has been established, it is extremely high. It is not law enforcement officials on their own making a decision to detain somebody. It is them going before a judge, making a case that an individual needs to be detained and needing to prove they have done everything else that they possibly could and that this is the only tool left at their disposal.

When we take a look back over the past five years and the fact that this has only been used once, it shows it has only been deployed in the rarest of circumstances, as would be appropriate. This is the type of tool that we would only expect to be used in very rare circumstances. One would hope that Canada would never again face the kind of threat that would necessitate the deployment of this option.

Nonetheless, in extreme circumstances, it is important we reserve that right. There has been a lot of work to date to ensure this balance is struck. I would submit the balance there is sufficient enough to warrant this going to committee to for further study.

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June 9th, 2009 / 1:15 p.m.
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Liberal

Larry Bagnell Liberal Yukon, YT

Madam Speaker, I commend the member on his comment that the Senate has also reviewed this as well. I cannot imagine the government would be against this, as the parliamentary secretary explained the good ideas he used from the Senate in the drafting of this.

Under a government that treats everyone equally, we expect there would probably not be as many concerns with the bill. However, selectively, the government has not followed policy or government law in dealing with Canadians, in particular on our policy on the death penalty, where it refused to give that protection to some Canadians overseas. There is also the Canadian who has been totally abused, as far as the principles of Canadian law, and the government has refused to bring him home.

Does he have confidence that the government would not abuse such a powerful law?

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June 9th, 2009 / 1:15 p.m.
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Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, I agree with the member and I am very hopeful on the first point that in committee we will be able to work collaboratively. We have a very constructive committee where we can work on these issues. That is an issue on which we can work. I look forward to talking with the Conservative members and other members of the committee to see how we can work on that collaboratively and come up with something that ensures we include the Senate's voice in this process.

On the second point, I would agree with the member if it were simply left up to the government. If it were only the government's choice on when to deploy this and when it would be applied, I would have grave concerns.

One of the things the Senate did, which was so important, was it made sure the courts were involved and that law enforcement officials and the crown had to prove they had exhausted all other measures at their disposal to get at that information and there was an imminent threat that necessitated them moving forward. The courts act in this instance as the arbiter of the use of this power.

By looking over the last number of years and looking at how rarely this has been deployed, we can get a certain degree of assurance that balance will be continued going forward.

However, I take the member's comment, which is a very good one. I again point out the fact that this is just at second reading right. We are going to be going to committee and we are going to be spending a lot of time and work ensuring that balance is respected.

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June 9th, 2009 / 1:20 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Madam Speaker, I listened carefully to the member's comments and I have a couple of questions.

The first concerns the repeated use of the words “imminent threat”. Those words do not appear in the legislation. The infringement of rights that we are talking about, basic fundamental rights, occur when someone has reasonable and probable grounds to suspect that an attack may be coming, not an imminent threat, which is a much loser test. Would the member comment on that?

Also could the member elucidate the House on why his party voted against these provisions two years ago, when there was attempt to reintroduce them in the House, but now appears to support them two years later? What has changed?

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June 9th, 2009 / 1:20 p.m.
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Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, on the member's second point first, an enormous amount has changed. It was one of the things that I really tried to address in my comments. We were initially opposed because the balance that I spoke about simply did not exist. In fact, the Senate, through an enormous amount of work, was able to strike that balance. I commend the Liberal leadership in the Senate, which took hold of this and tried to find that balance. It introduced a number of important measures, which I will not repeat again because I have enumerated them before, but they really changed the nature of the bill.

I think quite rightfully our caucus responded to that and said that now this was a different bill, with a different weight and a different balance.

With respect to the assessment of threat, personally the bill makes it very clear that the standard is exceptionally high. The threat has to be something that poses an immediate and present danger to the security of the nation. I read that with absolute clarity in the legislation.

I look forward to having a debate on that when it goes to committee and ensuring that the threshold is set that high. Having read the legislation, I am convinced it is, but it is something that needs to be there in those circumstances and we need to guard that. I hope the member would agree with it.

Being on committee with the member and having worked with the member on a number of other items, I am sure we can discuss this matter in committee and ensure that the right balance is struck.

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June 9th, 2009 / 1:20 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, I think there is great interest that we have set the threshold very high.

We had a pizza delivery guy in Ottawa picked up, brought to court with sensitive information blacked out. The judge held that guy, Mr. Harkat, for three and a half years without bail. We found out later that CSIS did not bother to tell the judge that its evidence was pretty dodgy. This has happened in Canada. It happened under this kind of legislation.

How can the member give us any confidence that this will not happen again if we allow these extraordinary powers?

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June 9th, 2009 / 1:20 p.m.
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Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, it does not matter what the legislation is. There is a fundamental reality that mistakes and errors get made and when they do, we need to pounce on them. I have been as vocal as anybody else when our intelligence and security officials have failed us and to call them out on that.

However, let us not make the mistake and say that by not giving them the tools, there are not going to be mistakes that occur. We have to be ever vigilant. If we are not, then we will have problems.

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June 9th, 2009 / 1:20 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Madam Speaker, I am sure that anyone listening who does not have a background in law will have a great deal of difficulty in understanding the provisions. There has been much talk on a number of fronts about striking a balance between two necessities: fighting terrorism and respecting human rights.

I will now speak in layman's terms, as I would to a jury, in order to explain what this is all about, since I am sure that anyone listening to the speech of the government representative would not grasp it at all. I will do so as thoroughly as possible, and I believe people will then be able to formulate their own opinions. My opinion is shaped by life experiences: the 1970 October crisis in Quebec and my contacts with police forces and the courts.

Essentially there are two provisions: one that has been more correctly called preventive arrest but is now being called recognizance. The other has to do with testimony. I will focus for the most part on preventive arrest, because I feel this clearly has the greatest potential to cause considerable harm to innocent people, while offering very few advantages as far as fighting terrorism is concerned in the case of guilty parties. I would even go so far as to say the advantages are almost nil.

First of all, the decision is based on a suspicion. The Attorney General must of course give prior consent, and the police officer must have reasonable grounds to believe that the individual is about to commit a terrorism offence, is part of a terrorist plot or is planning an act of terrorism. If there is an immediate danger, the police officer may arrest the individual immediately and bring him before a judge. The judge must then assess whether the police officer's suspicions are reasonable and whether the terrorist plot is significant, in other words he must establish whether it is dangerous, based only on suspicions.

The only thing the judge can do, after a number of procedures have been followed, including detaining the individual but never more than 48 hours at a time, is to agree with the police officer and state that the suspicions are reasonable and the act planned is dangerous. He can then require the individual to sign a recognizance for one year, with certain conditions attached, and send the person back home.

So there are two possibilities: the suspicions are justified, or they are not. I think everyone will admit that when you are acting on the basis of suspicions, you sometimes make mistakes, and people are unfairly suspected. That is why, in our legal system, we generally do not convict people based on suspicions. When I studied law, it was said that a thousand suspicions are not equal to one piece of evidence. But in this case, the decision is to have the person sign a recognizance if the suspicion is reasonable and the act in question is dangerous.

If the person is innocent, they will certainly be eager to sign the recognizance. They will not realize that from then on they will be stigmatized as having been subject to a judicial decision relating to terrorism. Even if they comply with the conditions, when the year is out, the stigma will remain.

Do we imagine that this person will ever again be able to take a plane? Do we imagine they will be able to cross the American border, when they have been compelled to sign a recognizance like that?

The person will probably lose their job, and this will be a considerable barrier to finding another job. That is the harm that can be caused to an innocent person, and it is not insignificant.

If the person suspected is not innocent, however, it will be reassuring to hear that the judge must send them home on a mere recognizance.

Obviously that is what the judge will do. Obviously, as a result, the person is now aware that they are known, that their conspiracy has been uncovered. That in itself may be enough to deter them from going ahead. Do you think this kind of recognizance is very reassuring for a confirmed terrorist? But let us look, instead, at what might happen.

How do we know that a person is preparing to commit a terrorist act? First, most of the time, if not all the time, the person is not all alone. They are part of a conspiracy. These people have agreed to commit a terrorist act. Through surveillance of their movements and the people they meet and, to a large extent, wiretapping, the police reach the conclusion that the person is probably planning a conspiracy. In our law, when two or more people agree to commit a criminal act, known as an indictable offence, that is called conspiracy. They are guilty of conspiracy, even if they do not commit the criminal act they were planning.

If the police in fact have that kind of information, they have enough information to arrest them. The law also says that a police officer can arrest without warrant a person who is about to commit a criminal act. If the ordinary law is applied, a criminal terrorist plan can certainly be interrupted in that way and charges laid.

Now, if the individual were wrongly suspected, after charges were laid, there would be a trial. In the course of the trial, the individual might be acquitted. Not only might they establish their innocence, but it might be determined whether or not there was reasonable proof of the planned plot. This individual will be acquitted. The first individual, however, who is innocent and who agreed to sign a recognizance because they had never thought of carrying out a terrorist act will never be acquitted. They will continue to be stigmatized for having been forced by the court to enter into a recognizance in connection with terrorism.

It is time to look at the balance, weighing what is to be gained on the one hand and the potential for injustice on the other. It is unrealistic to think that hardened terrorists will honour their recognizance. Does the government think that it would have discouraged those who took part in the terrible events of September 11, when they were called on to board the planes and carry out their plot? That is something very important.

In addition, through the regular application of the laws on conspiracy, the court may deny an accused a surety bond if the evidence provided by the Crown, even prima facie, supports the likelihood of a dangerous plot in progress. In the other case, the court is obliged to free the accused underwritten recognizance. What added benefit is there in the fight against terrorism compared with the injustices we are doing to the people wrongly suspected? We have examples of people wrongly suspected in Canada.

Obviously, I find that appalling, no doubt because of my legal training in criminal law and my years of practice. If there is one important feature of the civilized country in which I live and wish to continue living, it is the seriousness we attach to penalizing an innocent person. In our first law courses, we were told it was better that 100 guilty persons escape than that one innocent person suffer. In this case, it is on the basis of mere suspicion that we will stigmatize an individual for a long time. The stigma will remain.

There is nothing in the bill, even though it was clearly explained to them at the time of the study in 2007 that we should consider compensating such a person. That is typical, I think, of the current government. I might have expected better from the Liberals. I know they were the ones who originally conceived this, but the prevailing mood at the time was frightful. It was just after September 11. At least they had the wisdom to say it should be reviewed in five years to see whether it had been effective.

It is much better to enforce the law than to enforce this act. That is why none of its provisions have ever been used. Someone made the argument that the fact it has never been used does not mean it never will be. Others say that the fact it has never been used is proof that it is useless. If we understand what it brings to the fight against terrorism, we will understand why it has never been used: it is useless. It is useless but it is dangerous because it results in innocent victims.

With my training in criminal law, I find that appalling. It is not someone being incarcerated, of course, it is not like prison for a bandit, but restricting someone’s movements, destroying his reputation with his employers, and ensuring many people think he is a terrorist is a horrible stigma. Now that we know it does no good, it is time to get rid of it.

They would rather discuss the theory of it all. They think a balance has been established, but do not say what it is based on. I might tell the House a little later, if I get that far. I had a good quote from Kofi Annan. He is certainly not a terrorist. He was the Secretary General of the United Nations, among other things. He said basically it would be a victory for the terrorists if the legal protections enjoyed by all citizens of civilized societies were reduced. That is exactly what is happening here.

I also have the impression that only certain people are targeted. We had one member with an Arabic name in the last Parliament, Omar Alghabra, I believe. I do not think he was re-elected. He was opposed to renewing this. It is as if we are not so sensitive because it is not people named Smith or Gagnon or Tremblay who are targeted.

I was a young lawyer at the time of the October crisis. I witnessed the way a government can get things totally wrong. Using an antique piece of legislation, the War Measures Act, they arrested in excess of 300 people. Among them: a poet, a popular singer—Pauline Julien; Andrée Ferretti, the staunch independentist; and one man whose brother was a terrorist. What is more, this brother, whose name was Geoffroy, had pled guilty to more terrorist acts than he could possibly have committed, because some of them had taken place in two different places at the same time. He took the rap for the rest of them. Geoffroy's brother and his sister-in-law were arrested. With only one or two exceptions, all the candidates of FRAP, a municipal political party, were arrested and jailed.

The names involved then were familiar to us all: Lemieux, Tremblay, Gagnon and the like, but now the names that come up are Abdoulazik, Albati and so on—those people will now be the targets of these provisions, which can be just as unjust as the War Measures Act—but that is of no concern to the people who are coming up with these fantastic, theoretical ideas.

We need only to take a proper look at the situation. Police forces have been smart enough not to use it, for the good reason that it is useless—not just somewhat useless, but totally useless. The measures have been in place since 2002. They were not used once in 2007. Not used in 2007 of course because they were not renewed. No one has presented us with a single example of a situation in which this arrest and recognizance would have been of use, instead of the usual enforcement of the Criminal Code.

When a terrorist plan is imminent, it is because there are accomplices, conspirators, and the police have evidence. Let them take that evidence and lay charges. At worst, the accused will be acquitted later, but at least they will be prevented from acting. If the evidence satisfies the judge, they will be incarcerated. But if there is a recognizance, the stigma will remain.

Another part is the examination. When a terrorist conspiracy is thought to be underway and someone can give us information about it, we can also summon the person to appear before a judge to be questioned. I acknowledge that this is a very civilized way of questioning someone about criminal conspiracies.

For those who feel like reading the bill, it must be said that it is extremely difficult to understand. The federal government always writes laws the same way. I have always said, and I can never say it enough, that badly written laws are understood badly and then applied badly. We have hundreds of examples. When you read the law, many of the provisions stipulate that the person is obliged to answer, but they may object, and if they object, they will still be obliged to answer. The fact that they object, however, can never be used against them. In the Quebec courts, that is called the protection of the court, or the protection of the law. In other words, once the person has objected, what they say can never be used against them, unless they commit perjury or make another contradictory statement.

In the English law we practise here, people have the right to remain silent. This is an infringement of the right to silence. I will leave it to others who are much more concerned about this to talk about it, but I will say this. We have to look at the reality of the situation. A party to a conspiracy is summoned before a judge, with their counsel. Of course, it is certainly better than interrogating someone under torture to make the person say what we want to know. The police do have interrogation techniques that are not torture, but I assure you that when they are interrupted by an objection from counsel or a decision by a judge, there is a psychological effect. That is why the police do not use it. We can keep it if we want, but it is still contrary to the basic principles of the law that a person should never be compelled to cooperate with the police.

The more serious question relates to the other. In any event, it is inseparable. We can certainly consider it in committee if some people still want to do that, but I hope they will have more solid arguments than last time if they change their minds.

As young people would say, I have been a bit “heavy”, although I do not want to joke about such a serious subject. This is what the order the judge may make says:

Before making an order under paragraph (8)(a), the provincial court judge shall consider whether it is desirable, in the interests of the safety of the person or of any other person, to include as a condition of the recognizance that the person be prohibited from possessing any firearm, cross-bow, prohibited weapon—

I have never heard tell of a crossbow-wielding terrorist, but if we need to cover all the bases, there it is. But if we need to cover all the bases, it is significant that one thing is not included: compensation for those who have been unjustly stigmatized. If their innocence is proven, what will be done to remedy the harm done by stigmatizing them as terrorists or putting them in the category of persons about whom there has been a judicial decision relating to terrorism? It seems to me that the government has had more than two years to remedy this injustice, but it has not done so. This speaks volumes about where its concerns lie.

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June 9th, 2009 / 1:40 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, the member has been a long-time member of the House. He was a former Quebec justice minister, and he certainly knows of which he speaks.

The provisions of this bill could be used to target individuals engaged in activities of protest or dissent that do not come close to any reasonable definition of terrorism. I would like to ask the member if he could expand on those comments.

If this bill could possibly be extended to people involved in strike action or other forms of protest, we certainly would not want to see that happen in this country.

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June 9th, 2009 / 1:45 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Madam Speaker, the hon. member is absolutely right to ask me that. It is a point I neglected to raise, yet it is extremely important.

When something like this remains on the books, as one of his colleagues has pointed out, one never knows who will use it or how. This is exactly what happened with the War Measures Act, which was still on the books. It could certainly be used against protestors at some point, especially if terrorist tendencies were to resurface, as we have seen in Quebec and sometimes also when aboriginal leaders have been protesting.

The problem is that, when people share the same cause, they may run into each other without knowing about any terrorist plots. But the fact of having crossed paths could raise suspicions. Arrests could be made on grounds of reasonable suspicion. If this power is left in the hands of an underhanded government with evil intentions, it could be used against political opponents.

That is what happened during the October crisis, with respect to FRAP, the municipal party that was running against Mayor Drapeau. As I said, Pauline Julien and the poet Gérald Godin were thrown in jail, along with many others. The government can again make use of it at some time.

I am not saying that such are its intentions. I do not want to attribute evil intentions to it that it does not have. But it could feel that temptation. When I heard all the things that were said against the coalition, I felt that the government was getting pretty carried away.

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June 9th, 2009 / 1:45 p.m.
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Bloc

Yves Lessard Bloc Chambly—Borduas, QC

Madam Speaker, I would first like to congratulate my colleague from Marc-Aurèle-Fortin on his excellent speech. I think the House of Commons is very privileged to hear a speech of such high quality. Not only did he explain in legal terms the abuses that can be committed through such a bill, but he also gave us the facts, and facts are facts. They do not deviate. He gave concrete examples. I myself had a taste of the War Measures Act when I was a trade unionist in 1970.

I would like to hear my colleague's thoughts on the path this bill leads us down, ideologically speaking.

When we move outside the strict framework of the law, and when a certain ideology has been used to enact laws, is there not a danger that we could see other abuses besides the examples he gave?

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June 9th, 2009 / 1:45 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Madam Speaker, I see things differently, and not in ideological terms.

Personally, I think I am a defender of the ideology of human rights. I studied the fine print in this bill because I wanted to see if any injustices might have been included. I think I found them and I have exposed them many times over.

I think I also exposed the fact that we should have been prepared for them if they are to be maintained. What strikes me however, and I think it is universal—it does not apply only in this Parliament—is that people who are more conservative and in favour of law and order are generally found in democracies. They want to preserve those principles, but they are often the first to attack them without realizing it. I have noticed that this often happens with them.

Personally, I believe that convicting an innocent person is a terrible thing. For them, it is the price to pay to save our system. That is why I believe they should reread Kofi Annan. He said, and very convincingly, that the terrorists will have won when they make us change our system so we have fewer fundamental rights.

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June 9th, 2009 / 1:50 p.m.
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Fundy Royal New Brunswick

Conservative

Rob Moore ConservativeParliamentary Secretary to the Minister of Justice

Madam Speaker, I listened with some degree of alarm to the member's speech when he pulled out an example about protests or strikers as an application where this bill could be used. Earlier, I listed all the safeguards that are in place before these provisions can be enacted.

The member should acknowledge that these provisions have only been used once in the past eight years. There is a mandatory review of the provisions. The provisions have been upheld by the Supreme Court of Canada as being constitutional, and they are being put in place to prevent a worst-case scenario from happening on our soil. We are glad they have not been used. We hope that they never have to be used.

Would the member rather prevent a terrorist attack in Canada, or would he rather deal with the aftermath?

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June 9th, 2009 / 1:50 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Madam Speaker, I explained what measures you could take if there were an emergency. How would you know if there were such an emergency? How do the police know? Through wiretaps and surveillance they come up with a series of fairly convincing circumstances indicating that there is a plot.

Arrest them, charge them with conspiracy—it is an offence—and get on with the trial. If these people are innocent, they will be acquitted. Whereas in the current situation, you force someone to sign a recognizance and—

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June 9th, 2009 / 1:50 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

I would like to say to the member that the Speaker will not be arresting anyone. Furthermore, I would ask him to address the Speaker directly.

The member for Timmins—Baie James has the floor for questions or comments.

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June 9th, 2009 / 1:50 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, I find it fascinating that whenever we ask questions of the Conservatives about due process and so on, they start accusing everyone else of somehow being friends of the terrorists.

My hon. colleague has built a reputation in the province of Quebec for standing up and taking on the Hells Angels. He is no slouch when it comes to standing up on issues of justice.

We are hearing from the Conservatives that this bill, which had to have a sunset clause in it before because its powers were so extraordinary that it allowed people to be held for 12 months without any charges, would never be used, that this is Canada and that the rule of law would prevail. Yet, we see that whenever the police have these powers, they have been misused. We only have only to look at Mohamed Harkat, who was held for three and a half years without trial. We could look at Maher Arar, who was rendered to Syria while the government knew all the way up the chain of command that he was being tortured.

I would like to ask my hon. colleague why he thinks that when a government has these powers that the police would not somehow end up misusing these powers once they become permanently entrenched in our system.

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June 9th, 2009 / 1:50 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Madam speaker, I will summarize.

My issue with this part of the legislation is not that it is too stringent but that it is not stringent enough. The application of criminal law allows us to take measures that are more effective at breaking up a criminal plot than the measures contained in this bill. There is a risk of falsely accusing people on the strength of mere suspicion.

The benefits of this law are insignificant compared to the harm it will surely cause the innocent people accused on the strength of mere suspicion. When we operate that way, we run the risk of being mistaken.

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June 9th, 2009 / 1:50 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

Resuming debate, the hon. member for Vancouver Kingsway.

I should warn the member ahead of time that I will have to interrupt him at 2 p.m. and that he may resume his comments afterward.

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June 9th, 2009 / 1:55 p.m.
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NDP

Don Davies NDP 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.

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June 9th, 2009 / 1:55 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

I regret to interrupt the hon. member. He will have 15 minutes left when debate resumes.

The House resumed consideration of the motion that Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

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June 9th, 2009 / 3:05 p.m.
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Liberal

The Speaker Liberal Peter Milliken

Order, please. Before the interruption in the debate the last time, the hon. member for Vancouver Kingsway had the floor. There are 15 minutes remaining in the time allotted for the hon. member's remarks.

I therefore call upon the hon. member for Vancouver Kingsway.

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June 9th, 2009 / 3:05 p.m.
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NDP

Don Davies NDP 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.

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June 9th, 2009 / 3:20 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, I do recall back in 1971 or 1972 when the Americans were planning an atomic test on Amchitka Island. I remember participating in a demonstration in those days. There were 10,000 people in Winnipeg, and it was the biggest demonstration since the 1919 strike. I was one of the organizers. I participated in a lot of anti-Vietnam war demonstrations during that period.

I would like to ask the member whether possible provisions in the bill could be used to target individuals engaged in protest activities of this type, or any other type of activities, for example, labour strike situations. Could those activities be grounds for government action with respect to this particular type of legislation?

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June 9th, 2009 / 3:25 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Indeed it could, Mr. Speaker.

To quote someone who is eminently unquotable, Ronald Reagan said, “One man's terrorist is another man's freedom fighter”.

How do we define terrorism? The provisions of the bill are directed at compelling people to come forward and potentially be jailed in the name of fighting terrorism. Who defines that?

Today we say we do not have to worry about that because it will never be defined in any improper way. Really? In the history of this country, labour leaders have been jailed for exercising what at the time were considered inappropriate actions and all they were doing was trying to organize workers. That was considered a criminal act.

It is not a stretch of the imagination for someone to think that an accumulation of people might, in their view, be an activity that might threaten the security of this country. It has been done before by people in the party of members opposite who thought that trade unionists were criminals.

It has been done in the name of racial profiling. Recently members of the Canadian Muslim community have been unfairly targeted for doing nothing other than being members of the Islamic faith.

A person was rendered to Syria and thrown in jail for two years and tortured because, as a truck driver, he had a map of Ottawa. CSIS, in its great secret service intelligence gathering fashion, thought it was a map to be used for improper purposes. It turned out to be a map telling him how to deliver goods to warehouses.

When someone stands up and says, “We can violate rights. Trust us. We are never going to violate the rights of anybody who ought not to have their rights violated”, that is not a reliable basis on which to pass legislation in this country. Everybody's rights should be protected in this country.

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June 9th, 2009 / 3:25 p.m.
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Bloc

Thierry St-Cyr Bloc Jeanne-Le Ber, QC

Mr. Speaker, I listened to my colleague's comments.

He made an interesting comment about how laws that create the potential to violate rights give governments the opportunity to do so, and therefore we should not pass such laws. I would like him to comment on the fact that, even when we pass good laws that call on the government to defend and protect people's freedoms, the government still finds a way to violate people's rights. Mr. Abdelrazik's case is a good example. The court has ordered the government to respect this Canadian citizen's rights, but the government says that it could not care less about the law and the court ruling, and that it will not act in accordance with either.

Does my colleague find this as frightening as I do? If we were to wind up with laws that attack our individual rights and freedoms, this government, which does not even respect existing laws, would take advantage of the situation to openly attack our civil liberties.

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June 9th, 2009 / 3:25 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I would like to congratulate my hon. friend's party, the Bloc Québécois, which also has stood firmly in principled fashion against these incursions against our civil liberties.

He is quite right. There are many examples in this country where legislation has been passed that, on the face of it, does not offend any rights, but in the application of that legislation, it does so. So what would we make of the current legislation that, on the face of it, violates people's rights?

My friend mentions the case of Mr. Abdelrazik, a Canadian citizen sitting in an embassy abroad, who has the full right to come home. The government is ignoring orders of a court to bring that person home and it cannot produce an iota of evidence that the person presents a danger. Are we to trust the government's version of implementing legislation? I do not think so.

It is a slippery slope. Members opposite have said that it is important to have this legislation to prevent terrorism, that the ends justify the means. We can make our society safe tomorrow. Let us allow police officers to kick down the front doors of every house in this country if they suspect a crime has been committed there. Certainly more criminals will be caught, but I do not think Canadians would accept that, because they understand that the most majestic thing about living in a free and democratic society is the right to be free against state incursions into their liberties.

That might mean that the state is not as ruthlessly efficient in rooting out crime as it could be, but that is the price of living in a free and democratic society. That is the balance that the NDP was talking about that the Liberals claim to want to pursue, but of course, it depends on which way the wind is blowing and what particular day of the week it is as to whether they will actually have the courage to implement it.

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June 9th, 2009 / 3:30 p.m.
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Saint Boniface Manitoba

Conservative

Shelly Glover ConservativeParliamentary 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.

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June 9th, 2009 / 3:35 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I would like to ask a question of the hon. member who just spoke.

She must certainly know that people can be wrong when they make decisions based on mere suspicion. Sometimes people are wrongly suspected and sometimes rightly suspected. There are cases where people are wrongly suspected but ordered by a judge to enter into a terrorism recognizance. These are terrorism recognizances rather than apprehended domestic violence recognizances, as in section 810 of the Criminal Code, to which she was referring. This terrorism recognizance will be terribly damaging, for example if the person tries to travel, and it will make all kinds of things impossible. What happens when people are wrongly suspected? When it turns out this was the case, are there measures here to compensate them and right the wrongs done to them?

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June 9th, 2009 / 3:40 p.m.
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Conservative

Shelly Glover Conservative Saint Boniface, MB

Mr. Speaker, I want to thank my colleague for his question.

Our government realizes that everything that is done is not always perfect. Everyone in the world knows that it is impossible to be perfect at all times. There will always be exceptions. We are not saying here that we are perfect or that our police officers, lawyers and all those involved in the legal process are perfect. It is impossible for everything to be perfect. We know some mistakes will be made.

I was a police officer for nearly 19 years. I made mistakes. Sometimes I also suspected something else. Nevertheless, there has to be some prevention of terrorist acts. These are very serious acts, and I hope my colleague will take that into consideration when he votes.

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June 9th, 2009 / 3:40 p.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, I want to thank the member for her contribution to the debate and for her service to the community as a police officer for 18 years.

In that regard, I would like to ask the member if she could tell us what crimes related to terrorism would not be covered by the current Criminal Code. It is my understanding that any crime that we could possibly think of related to terrorism is already a serious crime under the provisions of our Criminal Code and one that is dealt with very seriously should it ever go to prosecution in our criminal justice system.

For instance, the crime of conspiracy already exists under the Criminal Code, so anyone planning that kind of terrorist attack is already committing a crime. They do not actually have to commit the crime before they could be found guilty of a criminal activity. We also have hate crimes legislation, so if the crime that is being planned targets a particular group, that is already covered by our Criminal Code.

Could the member tell us exactly why these special measures are needed when the Criminal Code already deals very seriously with all the issues related to terrorism?

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June 9th, 2009 / 3:40 p.m.
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Conservative

Shelly Glover Conservative Saint Boniface, MB

Mr. Speaker, I want to thank the member opposite for his question and for his comments about my service with the police.

I just want to mention that my colleague's question relates to crimes. What this bill is trying to do is prevent acts from occurring. They are not crimes that necessarily have been committed. We are trying to provide tools to investigate the potential that acts of terrorism are going to occur.

Our police officers at this point do not have the powers that we are attempting to provide to them through this bill. They do not have the ability to question people under what we are now calling the recognizance with conditions and those types of things. We want to provide them those tools so that we can safeguard national security.

It is not about charging people and referring to charges that are already in existence in the Criminal Code. It is about prevention. It is about using tools so that we can ensure the national security that we all care tremendously about.

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June 9th, 2009 / 3:40 p.m.
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Conservative

Rick Norlock Conservative 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.

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June 9th, 2009 / 3:50 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I want to congratulate the previous speaker on the seriousness of the arguments he advanced.

I just want him to understand that the reason why I think the anti-terrorism provisions should not be maintained is that they are insignificant, for all intents and purposes. In those cases, though, where innocent people are unjustly suspected, their lives will be badly affected and they will find it very difficult to travel or to find and keep a job. I do not think the injustice is worth it. I am convinced that these provisions will never be used against real terrorists. What will be used are the provisions of the Criminal Code, and conspiracy charges will be laid, as has already happened.

I would like to know his opinion as a police officer on the investigation he did not talk about very much. He must have conducted some police interrogations in his career. Does he think they would be at all effective with someone who did not want to reply from the beginning, did not want to cooperate, and was accompanied by his lawyer before a judge?

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June 9th, 2009 / 3:50 p.m.
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Conservative

Rick Norlock Conservative Northumberland—Quinte West, ON

Mr. Speaker, the hon. member and I, since my tenure here, have sat on the public safety committee, and now I am on the justice committee. We share a responsibility that I know we both take very seriously.

With regard to innocent people, any innocent people, when they are arrested by the police on reasonable probable grounds that they have committed an offence, all of that is done in good faith. There is, of course, some stigma attached to a person who is eventually found innocent of a crime. That is very traumatic to the person involved, and traumatic to any decent, caring person.

The saving grace in our criminal justice system is that as long as all parties participating in that, the police, the prosecution, the defence and the individual who is charged, are all acting in good faith, the Criminal Code basically says that the right thing is done.

The bottom line here is if a fear that we might do something wrong, or that someone might be ill done by, prevents us from doing what the international community under the United Nations obligations, that we are a party to, expects us to do, we have to do something. We need to work toward this new threat of terrorism, and give the tools that are necessary to the police and the Crown to get that job done.

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June 9th, 2009 / 3:55 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, the previous speaker, the member for Saint Boniface, admitted that mistakes are made by police officers in the course of duty. It is not perfect legislation. The question I would have, and the member from British Columbia asked the question before, in this member's opinion what crimes related to terrorism are not already covered by the current Criminal Code? He, himself, has mentioned that conspiracy would already exist and would be covered under the Criminal Code as it stands right now.

Criminal CodeGovernment Orders

June 9th, 2009 / 3:55 p.m.
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Conservative

Rick Norlock Conservative Northumberland—Quinte West, ON

Mr. Speaker, again, I go back to the statement of the former member who admitted that police officers make mistakes. I believe everyone in this world, other than one man, makes mistakes. Everybody makes mistakes. I think the successes in this country with regard to criminal investigation, criminal prosecutions, far outstrip any mistakes.

Again I say, if the fear of something going wrong prevents us from doing the right thing, then why are we even here? Terrorism is a new threat. This country has not had to deal with the kind of terrorism that we see around the world today. We have not had to deal with that in our past.

We have to bring in the tools necessary to fight that threat. In committee we are passing some new laws and enhancing things like the DNA data bank because there are new tools that allow us to do our job. This part of our anti-terrorism legislation will do just that. It will give us the tools to allow us to do the job and that is to protect Canadians from the threat of terrorism.

Criminal CodeGovernment Orders

June 9th, 2009 / 3:55 p.m.
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Liberal

Raymonde Folco Liberal 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.

The bill we are examining here in the House, Bill C-19, is identical overall to the version of Bill S-3 amended by the Senate, whose key provisions I have just reviewed.

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.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:05 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I would like to ask the member who spoke before me whether she really thinks a recognizance signed by a terrorist is a good guarantee and protects us against whatever terrorist plan that person might be hatching.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:05 p.m.
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Liberal

Raymonde Folco Liberal Laval—Les Îles, QC

Mr. Speaker, when it comes to terrorism there are no guarantees. If there were guarantees, we would not have gone through what we have both in Canada, the United States and England and elsewhere in other countries, including France. There are no guarantees.

What we can and must do, and this is our responsibility as parliamentarians, is try to put the most effective possible obstacles in the path of people who might organize a crime like terrorism.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:10 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, I am trying to sort out where the Liberal Party is on this bill. In 2001 the Liberal majority government of the day passed the Anti-terrorism Act . It was set to expire under a sunset clause in February 2007. A five-year sunset clause sounds very reasonable to me.

In February 2007, after the act expired, a resolution was introduced in the House to extend the provisions by three more years. That resolution was defeated on February 27, 2007, by the NDP, the Bloc and the Liberals. The Liberals were against extending it.

Now we move to our current situation today, where the Conservatives have introduced a new bill. It sounds to me, after listening to the member, that now the Liberals are in favour of the bill.

Could the member confirm that I have this chronology in the proper order and that it is accurate?

Criminal CodeGovernment Orders

June 9th, 2009 / 4:10 p.m.
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Liberal

Raymonde Folco Liberal 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.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:10 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I would like to ask the member a question.

She herself acknowledges that we cannot get guarantees from terrorists. This provision leads to only one thing: the person must sign a recognizance to comply with certain conditions. So it cannot guarantee anything. Why, then, would we keep it, when we consider how it could be used against political adversaries or innocent people who would be stigmatized as terrorists? They would be only too happy to sign the recognizance because they are not involved in any terrorist plans.

This measure offers nothing and that is why it has not been used. What has been used is arrests for conspiracy. We also have to remember that the Criminal Code provides that a police officer may arrest without warrant a person who is about to commit an indictable offence. That is the answer, not this meaningless signature on a recognizance for the future, meaningless and yet capable of being used against adversaries to stigmatize them.

That is what the former leader of the Liberal Party understood when he spoke—

Criminal CodeGovernment Orders

June 9th, 2009 / 4:10 p.m.
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Conservative

The Acting Speaker Conservative Barry Devolin

The hon. member for Laval—Les Îles.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:10 p.m.
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Liberal

Raymonde Folco Liberal Laval—Les Îles, QC

Mr. Speaker, in my speech just now I touched on a number of items that I believe protect the individual.

The first is that the peace officers must prove to the judge that attempts have been made to obtain the information referred to by other reasonable and legal means. Second, the fact that the individual has the right to retain counsel at the investigative hearing, strikes me as being the basis of our entire justice system. Third, there is the annual report to Parliament, not only by the Minister of Public Safety but also by the Attorney General. I do not want to revisit all those points, but I would like to add one thing.

If the bill is passed by Parliament, it will then be referred to a committee. I assume my colleague sits on the Standing Committee on Justice and Human Rights and that is precisely where we expect to hear his suggestions for improvements to the bill. That is what I propose to him very seriously.

The bill is far from perfection and we need all the support and intelligent contributions of hon. members in order to improve it in committee. I know that, with all his experience, the hon. member is fully capable of contributing to this process.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:15 p.m.
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Conservative

The Acting Speaker Conservative Barry Devolin

It is my duty, pursuant to Standing Order 38, to inform the House that the question to be raised tonight at the time of adjournment is as follows: the hon. member for Dartmouth—Cole Harbour, Employment Insurance.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:15 p.m.
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Conservative

Gord Brown Conservative 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.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:30 p.m.
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Langley B.C.

Conservative

Mark Warawa ConservativeParliamentary Secretary to the Minister of the Environment

Mr. Speaker, I listened intently to my colleague, the member for Leeds—Grenville.

I found what he had to share today very interesting and a bit of the history lesson of how we ended up where we are and the encouragement to support this good bill. He reminded us that he was the chair of the subcommittee that dealt with this Anti-Terrorism Act a number of years ago, and I want to ask him what happened. He touched on it briefly.

My understanding was that the Bloc and the NDP did not support the majority of the recommendations and had their own report, a dissenting report. Why was that?

I have served on the justice committee and now serve on the environment committee. Often what I see is the taking of a strong stance against crime or terrorism in public, but when it actually moves to committee, we see the NDP, the Bloc, and often the Liberals starting to play games and they do not support it. They use those parliamentary games.

My question to the hon. member is, why did they not support it, and what happened at committee?

Criminal CodeGovernment Orders

June 9th, 2009 / 4:30 p.m.
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Conservative

Gord Brown Conservative Leeds—Grenville, ON

Mr. Speaker, I want to thank the hon. member for his excellent question because these are important things that did happen back in 2007. The fact was that the committee spent a great deal of time reviewing all the provisions within the act. Of course, there were the two provisions in the act that were set to be sunset after the five-year period since the bill was originally brought into effect back in 2002.

There were the two sunset provisions that were not supported by the Bloc and the NDP originally. They were supported by the members of the Liberal Party that were on that committee. When it got to the point where we were going to have a vote, because it did have to go through a vote here in the House to continue to have those two provisions in effect, the Liberal Party withdrew its support. It was not prepared to support that.

There was a great deal of work done by that committee. It was only those two parts, those two sunset provisions, that were not supported unanimously by the committee, and I found it very disturbing when that happened.

There seemed to be general consensus on the committee that we move ahead with that, and I hope there is going to be support in the House to move this bill forward.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:30 p.m.
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Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, what I have been hearing all afternoon seems to be a debate about legal rights, the rights against unreasonable search and seizure, the right of freedom, and so on.

Obviously the hon. member has had quite a bit of experience in looking at section 83 and on, the terrorism section of the Criminal Code. It is a separate section of the code. It has been recently enacted. It is some 26 pages. It is designed to deal with terrorism, is it not? It is not dealing with the average person on the Clapham omnibus, as Lord Denham said. It is not about average Canadians' rights. It is a particular definition of rights against the landscape of terrorist activity. Thus there are many provisions about seizing property that do not apply to normal offences about seizing assets that have to do with terrorist activities. There is the naming of terrorist organizations. It is a different context.

Can the member better describe what I am trying to get at, that this is a different section of the code dealing with an exigent circumstance—that is, terrorism?

Criminal CodeGovernment Orders

June 9th, 2009 / 4:35 p.m.
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Conservative

Gord Brown Conservative Leeds—Grenville, ON

Mr. Speaker, it is an excellent question and I want to congratulate the member for recognizing exactly that. These are important provisions.

These are not things that would be used against law-abiding citizens. These are specific parts of the act that were brought in by the Liberal government back in 2002 in response to the terrorist attacks of September 11, 2001. At the time, it was moved through the House and became law very quickly. That was an important time. Many countries in the world at that very time were enacting similar legislation.

Canadians and Parliament decided at that time that they wanted to see these two provisions of the act that we are dealing with now reviewed. They wanted them to be reviewed five years after. That is what the committee did. It is a balancing act between security and human rights. It was believed by the committee at the time, and I believe today, and I know many hon. members here believe, that there is a balance there.

In case there are any issues with it, five years hence there would be another opportunity for a committee of Parliament to once again review that and bring it back for Parliament to make a decision.

It is true that these provisions of the act are specifically designed to deal with terrorism.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:35 p.m.
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Langley B.C.

Conservative

Mark Warawa ConservativeParliamentary Secretary to the Minister of the Environment

Mr. Speaker, I again want to thank my colleague for his commitment and all his hard work on this.

I have two questions. When a bill goes to a standing committee there is often the comment that it would not withstand a constitutional challenge. Therefore, are investigative hearings constitutional; and do other countries have investigative hearings?

Criminal CodeGovernment Orders

June 9th, 2009 / 4:35 p.m.
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Conservative

Gord Brown Conservative Leeds—Grenville, ON

Mr. Speaker, some individuals have felt that this legislation would not pass the constitutional test, but back in 2004, the Anti-terrorism Act did pass the test and was deemed constitutional by the Supreme Court of Canada.

Other countries have these investigative hearings and they use them as important tools to protect their citizens.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:35 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I would like to ask the hon. member who has spoken whether he was given any example of a situation where the preventive arrest provision would have been used and where it would not have been just as easy to use the Criminal Code by laying conspiracy charges or using the provision in the Code which clearly states that a police office may arrest without warrant a person who is about to commit a criminal act.

That person could, of course, eventually be acquitted if innocent, while an innocent party who has signed a document would be stigmatized for the rest of his life.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:35 p.m.
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Conservative

Gord Brown Conservative Leeds—Grenville, ON

Mr. Speaker, the hon. member was an important part of the committee that reviewed the Anti-terrorism Act back in 2006 and 2007. As he well knows, we did have a great deal of discussion about this.

It is true that these other provisions of the Criminal Code can be used, but the committee and I believe that what we are proposing today in the bill are two important tools. They may be controversial, but they are important tools that should be available to law enforcement. The safeguard that would continue to be there would be that these would be reviewed every five years.

It was an excellent question, and I do want to congratulate once again the hon. member for all his hard work on that committee a few years ago.

Criminal CodeGovernment Orders

June 9th, 2009 / 4:40 p.m.
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Bloc

Réal Ménard Bloc 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.

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June 9th, 2009 / 5 p.m.
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Bloc

Thierry St-Cyr Bloc Jeanne-Le Ber, QC

Mr. Speaker, I listened to the presentation by my colleague from Hochelaga with considerable interest. His speeches are always very wise and moving. He stressed the importance of not making provisions that would enable the government to attack people's rights in a just and democratic society.

I would like his opinion on a concern I have. The government is already violating its own laws. It rejects the opinions and decisions of the courts. We have seen this with the Abdelrazik case recently, in which the court ordered the government to comply with its own laws and to honour the rights of this Canadian citizen who wants to return to his country and against whom there is no shred of evidence of his being a terrorist. With it not being permissible under the law but the government doing it all the same, what would it be like if the government were permitted to do this sort of thing under the law?

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June 9th, 2009 / 5 p.m.
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Bloc

Réal Ménard Bloc Hochelaga, QC

Mr. Speaker, my colleague from Jeanne-Le Ber is usually enlightened and moderate, in addition. The one does not necessarily come with the other, but this member is the happy synthesis of both. My colleague is quite right. During the more than 16 years I have been in Parliament, no government has ever had such a pitiful record in human rights. Obviously, the matter of the death sentence of Canadians abroad comes to mind. The courts had to intervene to ask the government to commit to providing a more rigorous defence than what it had been offering. There are people held in foreign prisons, which the government refuses to repatriate. This government, frankly, is pitiful in the field of human rights. We have all the more reason to be concerned about the future use that might be made of these provisions.

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June 9th, 2009 / 5 p.m.
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Charlesbourg—Haute-Saint-Charles Québec

Conservative

Daniel Petit ConservativeParliamentary Secretary to the Minister of Justice

Mr. Speaker, first, I listened attentively to my colleague from the Standing Committee on Justice and Human Rights. I would like to ask him the following question.

First, in the last session, his party voted against what is called the violent crime bill. Second, that party voted against the drug trafficking bill. That party voted against the human trafficking bill. I have not been here long, about three and a half years, and every time, systematically and on every occasion, I agree with him here, the Bloc always works for the criminals. It never works for the victims when criminals have some right.

I would like to know why he is still voting against this bill today and why he has advised his party to still be against this bill, a law that is needed for the protection of the public.

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June 9th, 2009 / 5 p.m.
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Bloc

Réal Ménard Bloc Hochelaga, QC

Mr. Speaker, of course, some people think that the member for Charlesbourg—Haute-Saint-Charles is a little demagogue who distorts the facts and is incapable of any consistency with the truth in any form whatsoever. I would not want you to think I am the one saying that, but on occasion I have had to listen to descriptions along that line when someone was talking to me about the member for Charlesbourg—Haute-Saint-Charles.

The Bloc Québécois has an extremely impressive track record when it comes to vigilance against organized crime. I was the first member to introduce a bill to deal with criminal organizations. We got $1,000 bills withdrawn. At the time when Charlesbourg—Haute-Saint-Charles had a very vigilant member, in the person of Richard Marceau, that is what we did. On the last day of the Martin government, we got a bill passed to reverse the burden of proof for proceeds of crime.

So when it comes to this gratuitous demagoguery from the member for Charlesbourg—Haute-Saint-Charles, who distorts the facts and is incapable of any sustained legal reasoning, we do not need it. We voted against the bills he referred to because there were mandatory minimum sentences in them. He would be unable to rise in this House and present us with a single scientific study that supports his views. The member for Charlesbourg—Haute-Saint-Charles is the master of demagoguery.

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June 9th, 2009 / 5:05 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, we have seen it again. We have seen a member of the governing party make the argument that if we criticize the Conservatives or vote against legislation, then we are siding with terrorists. They are trying to boil this whole argument down to little 30-second clips so they can use it on their television ads. It is all about the next campaign.

Does the member think there is any possibility that parts of the bill could be used to target individuals engaged in legal protests or union activities, such as strikes, or anti-war demonstrations against the war in Afghanistan or any other such activity?

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June 9th, 2009 / 5:05 p.m.
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Bloc

Réal Ménard Bloc Hochelaga, QC

Mr. Speaker, I have not reread the recent briefs submitted to the Standing Committee on Public Safety and National Security, but I recall that in 2002 I read briefs from witnesses who told us that the definition of “terrorist” was so broad that they actually believed that this kind of connection could be made between apprehended terrorist activities and organizations like unions and ideological or other groups.

I know that some people were apprehensive about this, but I do not know whether the recent work done by the Standing Committee on Public Safety and National Security has resulted in any narrowing of the definition of “terrorist” from the 2002 definition.

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June 9th, 2009 / 5:05 p.m.
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Liberal

Brian Murphy Liberal 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.

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June 9th, 2009 / 5:25 p.m.
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Liberal

Larry Bagnell Liberal Yukon, YT

Mr. Speaker, I would like the member to elaborate on the government not treating people equally with these extra powers, for example, not applying our prohibition against the death penalty against certain persons in the United States, or not bringing back a person who is out of the country and who has been treated terribly relative to Canadian justice. Does the member have any worries about the powers in this bill under conditions where a government deals with Canadians differently?

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June 9th, 2009 / 5:25 p.m.
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Liberal

Brian Murphy Liberal 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.