This bill was last introduced in the 40th Parliament, 3rd Session, which ended in March 2011.
Rob Nicholson Conservative
Report stage (House), as of March 2, 2011
(This bill did not become law.)
This is from the published bill.
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.
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.
Mark Holland Liberal Ajax—Pickering, ON
Madam Speaker, I clearly said that in the most extraordinary of circumstances we want to make sure that the police have all the tools they need to do their job.
It is extremely irresponsible not to debate this in committee. Experts on both sides of the argument are saying entirely different things. We need to debate this in committee in order to ensure that tough measures are introduced to protect society and the rights of Canadians.
Maria Mourani Bloc Ahuntsic, QC
Madam Speaker, this session of Parliament opens with two of the Conservative government's favourite tactics: a warmed-over bill that is just for show, or what I like to call a microwave bill.
This bill is warmed over because this is the third time the government has introduced it. The Conservatives do not understand that we do not support this bill. Despite the fact that Parliament decided not to renew two provisions of the Anti-terrorism Act on February 27, 2007, Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) resurrects provisions of the former Bill C-19, which rehashed provisions of the former Bill S-3, as amended by the Senate Special Committee on Anti-terrorism in March 2008.
The purpose of this bill is to reintroduce measures that expired in February 2007 under a sunset clause. A sunset clause sets out exceptional measures that may violate human rights. The idea is to make it temporary and see if it works. That is usually why we have sunset clauses.
These measures were investigative hearings and recognizance with conditions, as I said earlier. I will cover these measures in more detail in my speech.
Neither House of Parliament renewed these measures because they were never used. No investigative hearings were held. Not a single one. What is more, recognizance with conditions provisions, also known as preventive arrest, were never used. These provisions had their chance, but they were totally useless. They also had major human rights implications. So why resurrect this warmed-over bill?
As I said earlier, the Conservatives' other favourite tactic is making a big show, which they do to scare people. They would have us believe that we live in a dangerous world full of terrorists. That is why the Conservatives make up laws so people think they are being taken care of and kept safe. They put on a show by introducing a totally useless bill to convince people that the government is really taking their safety seriously.
I have to say that I am getting a little tired of the way they scare people and keep bringing back the same old same old. The Conservatives are using fear of terrorism and fear of criminals to introduce and reintroduce crime bills. It is the same thing over and over again. Simply put, they are using fear of terrorism to justify attacks on human rights.
From December 2004 to March 2007, we heard from witnesses, read briefs, and questioned experts, representatives of civil society, and law enforcement officials. The Bloc Québécois made its position known. We felt that the investigative process needed better guidelines, and that this exceptional measure should be used only in specific cases in which it is necessary to prohibit activities where there is imminent peril of serious damage, and not in the case of misdeeds already committed. We were also firmly opposed to the provision dealing with preventive arrest and recognizance with conditions.
Our position has not changed since 2007. We will vote against this bill.
We made comments during the debate. Because there was a debate. I do not understand why my Liberal colleague thinks it is so important for us to have a debate. We have debated it. The Senate has debated it. We have talked about it. What is there left to say? If it is no good, it is no good, and we move on. There are things we can do to fight terrorism.
It is clear that they have not considered any of our suggestions. A number of recommendations were made by both the House of Commons and Senate committees that examined this issue. These recommendations were dismissed.
As usual, the Conservative government wants to have its own way, forgetting that in a free and democratic society, there must be a real balance between security and respect for human rights. The goal of terrorism is, of course, to force people live in a state of terror and to cause the rights of individuals to be violated. And in this, the terrorists will win, in what I can only characterize as a world war.
Let us take a closer look at the two provisions that this government is attempting to reintroduce. First, let us look at the provision concerning investigative hearings. Section 2 deals with sections 83.28 to 83.3 of the Criminal Code under which, generally speaking, a peace officer could—with the prior consent of the Attorney General—apply to a provincial court or superior court judge for an order for the gathering of information. The order, if made, requires the named person to appear before a judge for examination and to bring any information in his or her possession. The person named in the order loses the right to remain silent. It is as simple as that. In addition, section 83.29 states that a warrant of arrest can be issued for anyone evading the investigative hearing. So you lose your right to remain silent and if you are not happy about it, you can be arrested. That is more or less what this means.
In fact, the police never use this provision because, in a routine investigation, they can question witnesses and carry out search warrants to obtain documents. This is already covered in the Criminal Code and it is already very clear.
Now, let us look at the other provision, which is even worse: recognizance with conditions, or preventive arrest as it is called in section 83.3. At this time, it already exists in the Criminal Code as section 495, which says:
A peace officer may arrest without warrant:
(a) a person who...on reasonable grounds, he believes...is about to commit an indictable offence;
So preventive arrest already exists as section 495 of the Criminal Code. A person who is arrested under this section must be brought before a judge who can impose conditions, in the same manner as the Anti-terrorism Act. The judge can even refuse bail if he believes that freeing the person could prove prejudicial or jeopardize someone's safety, thus representing a threat to public safety.
We can see that this provision has not really been used because, in any event, the police already have the tools they need to do their job. It is simple. For example, if police officers believe that a person is about to commit an act of terrorism, then they have knowledge of a plot. They probably know, based on wiretap or surveillance information, that an indictable offence is about to be committed. Therefore, they have proof of a plot or attempt and need only lay a charge in order to arrest the person in question. They are already able to do so. There will eventually be a trial, at which time the arrested person will have the opportunity to a full answer and defence, as in any lawful society. The person will be acquitted if the suspicions are not justified; or, if there is sufficient proof that the person indeed wanted to commit an act of terrorism, they can be charged. It seems that the terrorist act thus apprehended would have been disrupted just as easily as it would have been had section 83.3 been used.
However, the preventive arrests the government wants to reinstate would allow for the arrest of a person who is not necessarily the one who is believed likely to commit a terrorist act, but only and simply a person whose arrest is necessary to prevent the carrying out of the terrorist activity. That is a significant nuance that can result in arbitrary arrests and target completely innocent people who have nothing to do with the case.
Some saw section 810 of the Criminal Code as being quite similar to section 83.3. Section 810 can employ the same type of procedure as section 83.3. While there is a similarity in the procedures followed in these two sections, there is a very big difference in their application. Section 810 talks about a summons, while section 83.3 talks about preventive arrest. Section 810 states that a person can be summoned before a judge, who can order that person to maintain the peace, which is not the same as the provision in section 83.3 whereby a person can be arrested because they are suspected of being a terrorist. Such an arrest is not based on fact, but on the suspicion that the person might be a terrorist. He is therefore arrested as a preventive measure. There is a big difference between these two sections.
It is extremely dangerous to create laws that are useless and violate the basic principles of criminal law, which seeks a balance between public safety and human rights. Whether we like it or not, it could lead to abuse sooner or later.
We should ask ourselves the following question: how can we wage an effective and intelligent war against terrorism? That is a very difficult question because, as with any form of crime, there is no simple, quick fix. Fighting crime or terrorism takes time and is very difficult because causes of such phenomena are numerous and complex. The solutions to such problems cannot be overly simplistic and consist merely of new Criminal Code provisions.
We have to attack the root of terrorism. That involves fighting poverty, not just in Canada and Quebec, but throughout the world. We live increasingly in an interrelated world, in an era of globalization. The world is becoming smaller as a result of the Internet and all rapid information systems. Regions are being abandoned and left in the hands of fundamentalists. We must fight urban violence and prevent ethnic wars. The war in Iraq, which was a great American lie, the rise of global conservatism, racism, intolerance of differences, communitarianism, the increasing Islamophobia in Canada and the world, must all be battled. I could list many more causes, but I will focus on something in which I have been especially interested for some time.
In order to effectively combat terrorism, we need to have professional, competent intelligence agencies and expert police services that are able to conduct investigations properly. The intelligence agency must be given the necessary resources to do the job, for it costs money. Canada has an intelligence agency, CSIS. Does that agency have sufficient financial resources to combat terrorism? It has a budget of half a billion dollars, which, I believe, is sufficient. The other fundamental question is whether it is competent and professional. That is the real question.
I conducted a little analysis of my own. I began to look at certain points, which I will share with the House. Very recently, retired Supreme Court judge John Major released his report on the Air India tragedy. The report harshly criticized CSIS and the RCMP. I will not dwell on that report for too long, because I do not have enough time.
One thing I would like to point out, however, is that CSIS has the discretionary authority to not share pertinent information with the police, including the RCMP. Furthermore, it was this lack of communication between the RCMP and CSIS that largely, and unfortunately, prevented this terrorist threat from being identified and averted.
On page 82 of volume three, the report states: “There is evidence that the discretion in section 19(2)(a) was used, especially in the early stages of the post-bombing investigation, to thwart full cooperation by CSIS with the RCMP.” I will not read the next part. However, there is a quotation, which states: “...we can only provide them investigational leads”. This illustrates the problem that exists in the legislation governing CSIS.
Furthermore, a Canadian Press article from June 17, 2010, reported that the former judge said that “agencies were not prepared for the threat of terror attacks in 1985—and holes in the country's security systems still need plugging”.
I also had a look at another issue regarding CSIS. Obviously, we had that scathing report, but there is also the matter of the current director, Mr. Fadden. I do not know whether you followed this during the summer, but the committee met and invited Mr. Fadden to speak about the allegations he made on CBC television. In committee, the Bloc tried to present a motion calling for the resignation of Mr. Fadden, the Director of CSIS, in light of the comments he made on the CBC. Because now we have a CSIS director who put on a show for the media. We have never seen that before. Generally, CSIS directors are very discreet. He came to the committee to apologize, but he made allegations to whoever would listen that ministers—we do not know where, we do not know who—and elected officials in British Columbia—we know where, but we do not know who—were agents of influence from foreign countries like China and the Middle East. What did he base this on? We do not know. But we do know the serious consequence of this type of unfounded and unsupported claims. Now the witch hunt is on to find out who these ministers are, who these elected officials in B.C. are who are agents of influence. He has already made similar statements in which he accused certain NGOs and advocacy groups of being sympathetic to terrorists.
These are the types of accusations we hear from this government when we do not vote in line with them: that we work with criminals and support terrorists. We have to wonder about the fact that an agency like this is being managed by a leader like that. We have been waiting for Mr. Fadden's resignation, which has still not happened. So let us ask this: was he simply following directions from higher up? We would like to know what is going on on the other side of the House.
France Bonsant
Good luck.
Maria Mourani Bloc Ahuntsic, QC
Yes, good luck.
I will try to cover my last point quickly. It is about statements that appeared in the Canadian Press in September 2010. According to the statements, Mr. Fadden received a memo stating that CSIS is using information obtained through torture. I want to point out that we debated this in the Standing Committee on Public Safety and National Security in March 2009.
I will stop there and come back to this later.
Joe Comartin NDP Windsor—Tecumseh, ON
Madam Speaker, I was just wondering whether my colleague from the Bloc wanted to elaborate on that point, please.
Maria Mourani Bloc Ahuntsic, QC
Madam Speaker, I want to thank my colleague very much.
The saga began on March 5, 2009, in the Standing Committee on Public Safety and National Security when the executive director of the Security Intelligence Review Committee, Ms. Pollack, appeared as a witness. I asked her if CSIS uses, has used, or will use, information obtained by torture and if so, is it reliable? I will read to you what she said in response. It is quite something.
As for the first question, related to information obtained through torture, there is a decision that has been rendered by a member of this committee in the context of a complaint that was made, in which it was determined that at times, yes, CSIS does use information that was obtained through torture and that their overriding focus in doing so.... Obviously they do so in the context of investigating threats to the security of Canada. Is this information reliable? Naturally her response was “no”.
I will be told, of course, that that was the answer given by Ms. Pollack of the Security Intelligence Review Committee. But what does CSIS have to say about this? The same day, March 5, we were also joined by a CSIS representative, Mr. O'Brien, operations and legislation advisor for CSIS. I asked him the very same question. Mr. O'Brien is a very honest person, for he told the truth. After skating around the issue for a bit, he finally replied as follows:
Frankly, I'm tempted to say that there are four words that can provide a simple answer, and those four words are either—and this is the skating around—“yes, but” or “no, but”, and the “yes, but” is, do we use information that comes from torture? And the answer is that we only do so if lives are at stake.
So they do use this kind of information.
So a public safety minister and the head of CSIS at the time appeared before the committee and told us to our face that Canada does not use this kind of information. They said so to our face. But what have we learned since? On September 13, 2010, a briefing note intended for Mr. Fadden specified that even though such information could not be used in a court of law to prosecute someone who poses an imminent threat, the government—the Conservative government—must make use of the information to attempt to disrupt that threat before it materializes. That is the reality at CSIS.
France Bonsant Bloc Compton—Stanstead, QC
Madam Speaker, I was listening to my colleague from Ahuntsic, who spoke about terrorism, torture and so forth. I would like to know what she thinks about the international agreement. In fact, we do not have the right to torture people just for the fun of it. Therefore, I would like her to further explain how they hide the threat of torture and what is presently happening to people in other countries.
Maria Mourani Bloc Ahuntsic, QC
Madam Speaker, I thank my colleague for her question. No one has the right to torture anyone. No one has the right to use information obtained through torture. Canada has signed conventions prohibiting the use of torture. Canada—and by extension, every agency, department and body under its authority—must uphold these conventions.
CSIS is not above the law. Its purpose is to carry out threat assessments. The worst part of all this is that CSIS says that it uses information obtained through torture. This is dangerous because such information sources are not reliable. CSIS is, therefore, producing inaccurate assessments. And if its assessments are inaccurate, we need to ask ourselves how this is affecting our security. We are essentially entrusting this agency with the duty to conduct assessments regarding the threat of terrorism when it has clearly stated that on occasion it uses information obtained through torture—inaccurate information—when it sees an extreme threat.
The Omar Khadr case is the best example and clearest evidence of this. He admitted under torture that he saw Maher Arar in an al-Qaeda camp in Afghanistan. And yet we now know that this is not true. But that is to be expected. When you are 15 years old and end up in Guantanamo being tortured, you will go so far as to say that you have seen extraterrestrials. You will say any absurd thing just so that they stop torturing you.
Statistically—and all the studies show this—information obtained through torture is not only immoral, it is unreliable.
So we have one agency, which is giving unreliable information to the RCMP, which in turn spends our money conducting investigations based on unreliable information. The worst part is that we give them half a billion dollars a year to carry out this kind of assessment.
Instead of passing legislation introducing two useless provisions, we need to properly overhaul the law governing CSIS and review the way it does things. That is what we need to do. We should not be debating two completely pointless clauses today; we should be talking about what needs to be done with CSIS in order to make it effective, competent and accountable.
Joe Comartin NDP Windsor—Tecumseh, ON
Madam Speaker, whenever I get up to speak to legislation that purports to fight terrorism, I think of a rule that I had for my staff when I was practising law and a rule that I had and still have for my campaign workers. I tell them not to panic.
There are times when I have even thought seriously about perhaps having an amendment in our Constitution that would compel political leaders of whatever political stripe not to panic in a time of crisis. This happened in 2001 and in 1970 with the War Measures Act. It happened during the second world war with our shabby treatment of Japanese Canadian citizens. It happened in the first and second world war with the way we treated Italian and German Canadians, longtime citizens of this country.
When facing a crisis, we as political leaders feel that we have to do something even when all the evidence shows that the structures we have, the strength of our society, the strength of our laws, are enough to deal with it. We passed legislation in early 2002 to deal with terrorism when we panicked. We have learned in the last eight years that there was no need for that legislation.
The justice minister today said that we might need it. If it was not for the fact that we are dealing with fundamental human rights and fundamental civil liberties, there might be some merit and some logic to that argument, but these two sections of the anti-terrorism legislation are talking about a serious incursion into rights that have existed in this country since pre-Confederation, rights that go back four or five hundred years to the common law of England. One of my colleague's made that point in a speech.
The vast majority of our children in elementary school know they are supposed to have the absolute right to remain silent. The whole weight of the state cannot be used against someone to force him or her to testify against himself or herself. As we heard just now from the Bloc, a part of that has been used historically. Torture has been used to force people to confess, to make statements against their own interests. We had the fundamental right to remain silent until this legislation came into effect in Canada. Set in that context, there is absolutely no justification for us to have this type of attack on those fundamental rights.
We hear speculation about this or that possibly happening and this type of legislation being needed in those circumstances. 9/11 was nine years ago and we have not needed it that whole time. There have been incidents of people contemplating violence for political ends, one of the definitions of terrorism. We never needed this type of legislation in any of those incidents. One of the former directors of CSIS, Reid Morden, has come out publicly and confirmed that we have not needed it. He said, “There is no need for this type of incursion into those fundamental rights”.
We also have to set in context the history of this country when we look at the way the War Measures Act was used during the second world war against Japanese Canadians and the way it was used against a wide swath of the population of Quebec in 1970.
I always tell this story with regard to the not panicking. The justice minister of that day was my predecessor from my riding, a law dean, and very well-educated. I remember having a breakfast meeting with him, in Windsor, about 48 hours before the War Measures Act was invoked. What he said to me at that time was, “We don't know what's going on in the province of Quebec. We don't know if there is in fact an apprehended insurrection occurring there. We just don't know”. And yet, less than 48 hours later, the then Prime Minister involved the War Measures Act.
What did we see at that time, in terms of the relevancy of this? We saw labour leaders, we saw members of civil society, with broad sweeps, incarcerated. No explanation. No charges. Some kept for short periods of time. A large number kept for weeks and even into a month or more.
I have to say in spite of the protestations by the government, and I have to say the Liberals and the official opposition, of some of the protections it is trying to build in, that risk still exists with this legislation if it were to become the law of the land. Because when we panic and we start making decisions based on that, whether it is political leaders, whether it is prosecutors, whether it is police, judgment goes out the window. Those fundamental rights get breached rapidly and dramatically.
The bottom line is that it is not worth the risk to pass this legislation to have that incursion into our fundamental rights in this country for what might happen in the future.
I want to make this other point which I made earlier when I was asking a question of the justice minister.
We had extensive hearings when the review occurred of the anti-terrorism legislation. We did those in 2006 into early 2007. We had a large number of witnesses come before us to try to justify this type of legislation. They were repeatedly asked, “What are the scenarios?” and they would describe scenarios where they thought they could use this legislation, none that had ever occurred in Canada up to that point and none that have occurred since then either.
However, when pressed about other sections of the Criminal Code that could be used for charges at that time, or sections in the Canada Evidence Act that could be used to justify getting out the information they needed, without exception that I can recall, and I think I am accurate on this, there was not one of those scenarios which stood up to an analysis of why we needed this legislation which is what we already have in our law as tools for our officers to use.
I want to digress for just a second.
I really do not think it lies in the mouth of the Conservative government to try to justify the use of this legislation because it is being asked to do so by our police forces. Our police forces are not out lobbying for this legislation. They are out lobbying to hold on to the gun registry and the government is ignoring them 100%, in fact, in many cases, accusing them of misleading facts and ignoring all of the recommendations from them, which are based on facts, in that situation, as opposed to speculation under this bill.
They are trying to build in these protections, which is an admission of how much this could affect us, and in fact will affect us, I say that without hesitation, in another crisis as individual citizens of this country. Will it be the first nations? Will it be the sovereignists in Quebec? Will it be the labour movement? Will it be radical students? We do not know who the target will be, but there will be a target group and it will be used against them when the government goes into that panic phase.
The Liberals' reliance on the review being done by both the Senate and the House gives me no sense of comfort. When this comes up for review again, should the law ever get through, I have no comfort in it being turned over to an unelected Senate that has been stacked or will be in another few months by the Conservatives. I have no sense of comfort that that body will protect these fundamental rights of all Canadians.
What are we trying to do here? I hear from both the Conservatives and the Liberals that we are trying to strike a balance. The fundamental rule is that we do not compromise on fundamental rights, whether it is here in this country or at the international level. The right to remain silent is a fundamental right. The right to not be incarcerated without charge and without knowing the charge is a fundamental right. There is no compromise on fundamental rights. If we use that as our guideline, then we must vote against this legislation.
I could go into the details of some of the objections that I am hearing from Conservatives, in particular to our position, but when we look at the protection they are trying to build in, it is just not there.
One of my colleagues earlier today pointed out that with regard to the right to remain silent, we do not have that any more. We must give information. The Conservatives have now tried to build into the legislation a right to have counsel which was not there before in the prior legislation. It was not there in one of the original drafts of the legislation either. However, those two sections are completely contradictory. I, quite frankly, do not know what a court will do. My sense is that it will determine that in fact one does not have a right to counsel, that one must give the evidence that is being demanded if one does not have time to get counsel in to assist them. This is another fundamental right that was created by the charter, long-standing in our country, and it will go by the wayside if the bill goes through.
The rules are: we do not panic when we are in a crisis situation; we never compromise on fundamental rights, which is what is being proposed here; and we should not rely on an unelected Senate to protect those fundamental rights, which is also being proposed. Certainly, when we look at the so-called protections that are here in this incursion, they are not there.
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Mr. Speaker, my friend goes back to the annals of history with the War Measures Act. He did not quite go back to the War of 1812, with which he may be personally acquainted, but does he not concede that the War Measures Act, when it was applied in the second world war and again in 1970, was in the pre-charter era and that there is no danger whatsoever that any of the ATA provisions would not be reviewed within the scope of the charter?
Surely the member is aware of court decisions that were very adamant in ensuring that the right to counsel of the choice of the detainee would be inserted in the law. Surely he thinks that could be either made by way of amendment at committee or perhaps even be proposed by the government.
With that provision, which is the salient point that the courts have opined upon, would the member not be comfortable with the charter in place, with the right to counsel and finally his statement that these are fundamental rights, right to counsel and right against self-incrimination? Does he not concede that section 1 of the charter, which overrides, in the case of national security, certain fundamental rights exist and has been held by the courts, the Supreme Court of Canada in fact, to have been applied?
In other words, does the member not concede that even though we have not used these provisions we may need these provisions and that it is prudent government to look at legislation that takes into account the modern laws, not the laws of the 1940s, which his speech was, with all due respect, replete with?
The Speaker Peter Milliken
I hesitate to cut the hon. member off at this point in time but it being two o'clock we have to proceed with statements by members. I am afraid the hon. member for Windsor—Tecumseh will have to wait until debate resumes to answer this question. I am sure he is looking forward to that.
The House resumed consideration of the motion that Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.
The Speaker Peter Milliken
When the matter was last before the House, the hon. member for Windsor—Tecumseh had the floor for questions and comments consequent upon his speech. He was asked a question, and therefore I call upon the hon. member for Windsor—Tecumseh, if he wishes to respond to the comment that was made earlier, and to continue with questions and comments.
Joe Comartin NDP Windsor—Tecumseh, ON
Mr. Speaker, the question was whether our opposition to Bill C-17 and some of the arguments I made against it were timely, in light of some of the historical abuses of human rights and civil liberties that we have seen in this country. That is an interesting question. What have we learned from our mistakes in the past? The suggestion is that mistakes made in the past will not be repeated.
When we look at the number of times we have made the same mistake in the past, usually in a crisis, we see that sometimes governments panic and attack certain members of their society by undermining fundamental rights. That is what this bill would do.
One of the other parts of the question, to be a bit more timely, was whether we can we rely on our courts to protect our fundamental rights. In this country, we have a division of authority, and courts certainly have a role to play in protecting our rights by interpreting the Constitution and the Charter of Rights. However, they also have, as I think our Conservative colleagues rarely will acknowledge, a deep respect for the role that we as parliamentarians play in passing laws.
We have a responsibility as parliamentarians to protect fundamental rights. We are not doing that by this legislation. Nor is there any reason to believe that our courts will find, as they have for part of this legislation, that it is within the Charter of Rights. That is not the end of it. We still have a responsibility to deal with this as parliamentarians. They have a responsibility not to interfere other than in the most exigent circumstances.
I have at times been critical of our judiciary. When we look at the process of security certifications that has been gone through in the last seven or eight years, we see that any number of times we have had interpretations, particularly from the federal court, in which they did not at the time protect fundamental rights. They have begun to do so. They began in 2006 or 2007. There were several years in which those certificates were used improperly, and our courts finally got around to realizing that. So we cannot rely exclusively on our courts to protect fundamental rights. We have to assume our responsibility, and supporting this legislation would not do that. This should be opposed. We should be striking this bill off our agenda.
Combating Terrorism ActGovernment Orders
September 20th, 2010 / 3:30 p.m.
Saint Boniface Manitoba
Conservative
Shelly Glover ConservativeParliamentary Secretary to the Minister of Indian Affairs and Northern Development
Mr. Speaker, I am pleased to contribute to the debate on Bill C-17. This key piece of anti-terrorism legislation seeks to re-enact, but with more safeguards, the provisions having to do with investigative hearing and recognizance with conditions, which we lost because of a sunset clause in March 2007.
The powers set out in the bill attempt to fill a gap in our national security law. Effectively they focus much of their attention on the prevention of a terrorist offence.
I think all members of the House can agree that unlike some other forms of criminality a terrorist who is able to carry out an offence is attempting to injure and kill large numbers of people, making prevention an even more crucial policy goal.
This point, that there is a qualitative difference between terrorism offences and other regular forms of criminal activity, has been made by a number of terrorism experts. In this regard the members of the House may wish to recall the testimony of Lord Carlile of Berriew, the United Kingdom's independent reviewer of its anti-terrorism legislation, before the House of Commons subcommittee that reviewed the anti-terrorism act in November 2005. Lord Carlile was asked whether there was really any difference between investigating terrorism and investigating organized crime. She replied:
If I can I'll just characterize one important difference between terrorist crime and normal organized crime, or what police in Northern Ireland call ODCs, or ordinary decent criminals, in a distinction that they make. With organized crime, it is often possible for the police investigating that crime to leave arrest until very late. Indeed, for example, there was a huge robbery at London Heathrow Airport a couple of years ago—I was involved in the case for a time professionally—in which they allowed the robbery to take place, and they arrested the robbers whilst they were committing the robbery, with the result that in the end most of them pleaded guilty. You can't run that risk with terrorism.
To summarize this relatively short bill, the proposed investigative hearing provisions would create a mechanism for questioning persons before a judge about a past or future terrorist offence. The proposed provision for recognizance with conditions would allow a judge to impose reasonable conditions on a person in order to prevent the commission of a terrorist activity.
Surprisingly, some have maintained that the provisions are not necessary. Various reasons have been advanced in this regard. I would like to use my time to address some of these arguments, as I think it is important to have an informed debate on these matters.
Some say that since the provisions have never been used they must not be a truly necessary law enforcement tool. I cannot disagree more.
This view is based exclusively on hindsight and not on foresight. In the policing world, which I know very well as a member of the Winnipeg Police Service on a leave of absence, foresight is crucial, as is pro-activity. One could just as logically claim that because to date one's house has not burned down or one has never before become seriously ill that there is no need ever to buy fire or life insurance. Given the existence of an ongoing terrorist threat, reliance on past experience alone is an insufficient guarantor of the future security of Canadians.
Another view advanced has been that the recognizance-with-conditions provision is unnecessary because other Criminal Code provisions could be used instead. This view fails to appreciate the purpose of the recognizance-with-conditions provision. This tool is designed to disrupt the planning of terrorist activity at a very early stage. I will give an example. Suppose the police receive intelligence that a foreign head of state visiting Canada will be the target of a terrorist attack. They may therefore have reasonable grounds to believe that a terrorist act will be committed, but they may not have reasonable grounds to believe that a particular person will be the one to carry out the attack, which is the standard required under our existing arrest laws.
As a result, the person could not be arrested for conspiracy or under subsection 495.(1) of the Criminal Code. Similarly paragraph 810.01(1) would not apply, because it is targeted, in part, at those who it is reasonably feared will engage in a terrorist activity.
Bill C-17 seeks to fill this gap by authorizing a peace officer to lay an information before a judge if he or she believes on reasonable grounds that a terrorist activity will be carried out and suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, with the arrest of the person, is necessary to prevent the carrying out of a terrorist act.
Some have also put forward the position that Bill C-17 infringes upon human rights. In rebutting this view, let me begin with the investigative hearing provisions.
In the debates on this bill's predecessor, former Bill C-19, the argument was made that this hearing was an infringement on the right to silence. The answer to this argument was authoritatively given by the Supreme Court of Canada in 2004 in a case called “Application under s. 83.28 of the Criminal Code”, which arose in the context of the Air India prosecution.
The majority of the court rejected the appellant's argument that the investigative hearing violated an individual's absolute right to silence and the right against self-incrimination, noting in part the specific and robust protections governing use and derivative use immunity found in the original legislation. Indeed, the court noted:
Derivative use immunity is provided for in s. 83.28(10)(b). Indeed, the protection in para. (b) goes beyond the requirements in the jurisprudence, and provides absolute derivative use immunity, such that evidence derived from the evidence provided at the judicial investigative hearing may not be presented in evidence against the witness in another prosecution even if the Crown is able to establish, on a balance of probabilities, that it would have inevitably discovered the same evidence through alternative means.
We all need to keep in mind when thinking about possible adverse ramifications of the recognizance with conditions that they have a built-in legal filter. They can only be imposed when two criteria are met: A peace officer must believe on reasonable grounds that a terrorist activity will be committed, and must suspect on reasonable grounds that the imposition of the recognizance is necessary to prevent the carrying out of the terrorist activity.
Moreover, the second criterion is not one of mere suspicion, it is one of reasonable grounds to suspect. In other words, this is a higher bar. This means more than a mere hunch. In this regard, I would note that the concept of reasonable suspicion is not unknown in Canadian criminal law.
By analogy, I note that the Supreme Court approved the standard of reasonable suspicion in the context of the common law police power of investigative detention, the police power to briefly detain a person where the officer has reasonable grounds to suspect the person has committed a crime. In this regard, I refer hon. members who are interested to the case of Regina v. Mann.
Therefore, I think it is fair to say that this will not be applied to a broad range of people in this country. With regard to the view that these powers can unfairly label a person a terrorist without the opportunity to clear oneself, I would call attention to the well-established and often-used peace bonds or recognizance powers in the Criminal Code. In particular, a peace bond could be imposed to prevent a person from inflicting injury on or committing a sexual offence against a young person. These, too, have implications for the defendants who are subject to them, but no one would argue that because of this these provisions should not exist.
Like these existing provisions, the proposed recognizance with conditions is carefully tailored to achieve an overarching critical objective, namely the prevention of a terrorist activity, an objective that I know all members support.
Another criticism of this bill, in its previous incarnation as Bill C-19, was made by the hon. NDP member for St. John's East. It went as far as, in effect, something like this:
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 disagree, and I am going to prove that point immediately. I would point out that this accusation of fundamental unfairness cannot only be made of the recognizance with conditions provision found in this bill, it can also be equally made of all the peace bond provisions of the Criminal Code.
Please allow me to set out for consideration and reflection by the hon. members the following peace bond provisions that contain this very same power to order up to 12 months' imprisonment where a person refuses to enter into recognizance.
The first is a recognizance where a person fears on reasonable grounds that another person will cause serious injury to him or her or to his or her spouse or common-law partner or child, or will damage his or her property, under paragraph 810(3)(b) of the Code. Other examples are a recognizance where a person feels on reasonable grounds that another person will commit a terrorism offence or a criminal organization offence, under subsection 810.01(4); a recognizance where a person feels on reasonable grounds that another person will commit one of various sexual offences in respect of a person under 16 years of age, found under subsection 810.1(3.1); or a recognizance where a person feels on reasonable grounds that another person will commit a serious personal injury offence, which is found under subsection 810.2(4).
In all these instances, if a person refuses to enter into a recognizance, the power to order up to 12 months imprisonment exists. My point is that the punishment provision for refusing to enter into a recognizance is not unique to the recognizance with conditions provision found in Bill C-17. It is standard for all peace bond provisions in the Code. It is therefore a good reason to ensure that there is a means whereby a person's refusal to enter into a peace bond has consequences.
Indeed, I would point out that the recognizance with conditions provision found in Bill C-17 is, in one important respect, more limited in scope than some other peace bond provision found in the Code.
Hon. members may recall that where there is a reasonable fear that another person may commit a sexual offence against a person under 16 years of age or that another person may commit a serious personal injury offence, the recognizance can actually be extended from 12 months to two years if the person has been previously convicted of a similar offence. In contrast, in Bill C-17 the maximum period of time that a recognizance can be enforced is in fact 12 months.
Changing gears a little bit, I want to discuss briefly some of the policy decisions that went into the development of the bill. Members may recall that the House of Commons subcommittee interim report on the Anti-terrorism Act, the legislation that originally contained both of these schemes, recommended limiting the investigative hearing power to the investigation of imminent terrorism offences.
The government has, for good reason, decided not to go this route. If this limit were imposed, it would exclude the possibility of holding an investigative hearing in respect of past terrorism offences. For example, if this recommendation were to be accepted and if a terrorist group committed an offence and planned a subsequent offence, or offences, in the investigative hearing no questions could be asked about the offence already committed, even though such questioning could yield information that would be essential to the prevention of the planned subsequent offences. It is clear that this decision makes good policy sense and serves to better protect Canadians.
Another criticism that may be raised is that the bill does not totally reflect the judgments of the Supreme Court of Canada with regard to the investigative hearing provisions. As hon. members may recall, the Supreme Court of Canada in 2004 rendered two decisions with regard to the investigative hearing. In one case, the Supreme Court held that the investigative hearing should presumptively be an open hearing, albeit this is a presumption that could be rebutted, depending on the facts of the case; and in the other, which I have already referred to, the Supreme Court upheld the constitutionality of the investigative hearing.
However, as part of its latter judgment, the Supreme Court extended the protection of use and derivative use immunity beyond the criminal proceeding context to cover extradition and deportation hearings.
In my view, it is unnecessary for Bill C-17 to explicitly propose an amendment to extend the use of derivative use provision to extradition and deportation hearings or to include a provision about the presumption of openness in such cases. It is obvious to me that, if enacted, Bill C-17 will be interpreted in light of the Supreme Court's conclusion on these issues.
I have attempted to address some of the objections to the bill that have been raised in previous discussions. I hope that some of the reasons I have articulated will have resonated with my colleagues in this place and that they begin to view these provisions as minimally intrusive and ones that do not present a threat to the Canadian values but actually protect them.
I want to reiterate that we have heard from police officers as well on this issue. I myself was a police officer when the sunset clause took away these powers, and I am here to say that I represent many police officers across this country who believe this is essential to prevent any kind of terrorism attacks in the future.
I would urge all hon. members in the House to please support Bill C-17 and in doing so contribute once again to the safety and security of all Canadians.