Bill C-19 (Historical)

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

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

Criminal Code

[Rob Nicholson, Conservative, Minister 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.

[Rob Moore, Conservative, Parliamentary 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.

[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.

[The Acting Speaker, NDP, Denise Savoie]

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

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, it is a privilege to rise to speak further to Bill C-19, which deals with provisions that had sunsetted under the Anti-terrorism Act.

These important provisions are known as the investigative hearing and recognizance with conditions provisions. They would allow our police officers to take steps that have been considered and steps that have the appropriate safeguards in place to ensure the rights of all concerned, but steps which may be necessary from time to time to prevent or to investigate a serious or imminent attack on Canada and Canadians

When I was last speaking, I was talking about the human rights concerns that had been raised over the course of debate on these provisions. I did want a chance to reflect on those concerns and address them, and assure the House that appropriate safeguards are in place.

Both the investigative hearing and the recognizance with conditions provisions as provided for in this legislation are replete with human rights safeguards.

With respect to the investigative hearing, these safeguards would include the following.

First, there could be no investigative hearing without the consent of the relevant attorney general.

Second, only a judge of the provincial court or of a superior court of criminal jurisdiction could hear a peace officer's application for an information gathering order and could preside over an information gathering proceeding.

Third, there would have to be reasonable grounds to believe that a terrorism offence has been, or will be, committed.

Fourth, the judge would have to be satisfied that reasonable attempts had been made to obtain the information by other means for both future and past terrorism offences. Further, the judge could include any terms and conditions in the order that the judge considered to be desirable to protect the interests of the witness or third parties. The witness would have the right to retain and instruct counsel at any stage of the proceeding.

Finally, the bill would incorporate protections against self-incrimination, including in relation to the derivative use of the evidence in further criminal proceedings against the person testifying, except for perjury or giving contradictory evidence.

Members should also be reminded that the Supreme Court of Canada upheld the investigative hearing in 2004 in application under section 83.28 of the Criminal Code. I would note in this regard that the Supreme Court of Canada stated that the protection against self-incrimination found in the investigative hearing was greater than that afforded to witnesses compelled to testify in other proceedings, such as in a criminal trial.

As to the recognizance with conditions, it too would have many human rights safeguards, such as the following.

First, the consent of the relevant attorney general or solicitor general would be required before a peace officer could lay an information to bring a person before a provincial court judge.

Second, only a provincial court judge could receive an information, and would have the discretion as to whether to cause the person to appear before him or her.

Third, the presiding judge would have to be satisfied by evidence that the suspicion was reasonably based. The judge would have to come to his or her own conclusion about the likelihood that the imposition of a recognizance on the person would be necessary to prevent a terrorist activity.

Finally, the person entering a recognizance would have the right to apply to vary the conditions under the recognizance order.

Experience has also shown that when these tools were part of our law, the investigative hearing was invoked only once, in connection with the Air India inquiry, and the recognizance was never used. This demonstrates the restraint that the law enforcement officials have exercised and would continue to exercise in deciding whether to use these powers.

The government is proposing that both the investigative hearing and the recognizance with conditions provisions be re-enacted for a period of five years.

At the end of five years, the bill would allow for further extension of one or both of these provisions. The task of deciding whether further extension is necessary would be informed, in part, by the mandatory review of the provisions found in the bill.

As well, the mandatory annual reports of the Attorney General of Canada and the Minister of Public Safety would detail the use of the provisions by federal officials and provide the minister's reasons regarding the usefulness of the provisions.

I believe that the investigative hearing and recognizance with conditions powers are necessary, effective, and reasonable. I urge all hon. members to support the bill.

[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?

[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.

[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.

[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.

[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?

[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.

[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?

[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.

[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.