Combating Terrorism Act

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

This bill was last introduced in the 40th Parliament, 3rd Session, which ended in March 2011.

Sponsor

Rob Nicholson  Conservative

Status

Report stage (House), as of March 2, 2011
(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.

Votes

Sept. 22, 2010 Passed That the Bill be now read a second time and referred to the Standing Committee on Public Safety and National Security.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:30 p.m.
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Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Mr. Speaker, as the member knows, the gun registry costs the Canadian taxpayers over a billion dollars and I dare say that this money would have been much better spent enforcing the criminal laws that we have in the country, keeping Canadians safe, putting more police officers on the streets and giving them better tools to do their job.

The Supreme Court of Canada made it very clear that the powers in Bill C-17 are constitutional and protect fundamental rights under the Charter of Rights and Freedoms. For example, the power with respect to investigative hearings has a number of safeguards, including that only a judge of the provincial court or a superior court of criminal jurisdiction can hear a peace officer's application for an investigative hearing and the prior consent of the Attorney General of Canada or solicitor general of a province will be needed before a peace officer can apply for an investigative hearing order. In addition, there will have to be reasonable grounds to believe that a terrorism offence has or will be committed. In addition, the judge will have to be satisfied that reasonable attempts have been made to obtain the information by other means for both future and past terrorism offences.

The nature of these terrorism offences is such that the peace officers often do not know exactly when the terrorism incident will take place, but they have evidence to suggest that people are plotting the terrorism incidents.

On this side of the House we believe we cannot put the safety of the people of Canada at risk waiting for that time when the peace officer is going to say that the bomb is about the explode in a few minutes or an hour from now and then go to the court. We need to be able to act quickly and prevent that from happening to keep people safe in Canada.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:35 p.m.
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Conservative

Ed Fast Conservative Abbotsford, BC

Mr. Speaker, it is my pleasure to stand today in support of Bill C-17. It is a bill that seeks to reinstate the investigative hearing and recognizance provisions that were created in the Criminal Code by the Anti-terrorism Act in 2001. That was in the wake of 9/11.

The investigative hearing provisions gave a judge the power, on application by a peace officer and with the prior approval of the attorney general, to compel a person to attend at court to be asked questions about a past or future terrorism offence. The recognizance provision gave a judge the power when certain criteria were met to impose reasonable conditions on a person to prevent the carrying out of a terrorist activity. I think all of us in the House would support that as a laudable goal.

Unfortunately these important tools in the fight against terrorism expired in March 2007 because of the operation of what is called a sunset clause. The bill being debated today would re-enact these important provisions.

I would first like to discuss how the recognizance portions of the bill compare with the legislation of other countries. Other countries have been the subject of terrorist acts as well. Canada's major terrorist act, of course, was the Air India disaster, a sad story and chapter in the history of our country.

When we look to the United Kingdom, we see that its terrorism act allows a constable to arrest, without warrant, a person whom he reasonably suspects to be terrorist. The maximum period of detention for which a person can be detained under this power before being charged is 28 days. Efforts by the United Kingdom to extend this period to a longer period of 42 days were unsuccessful.

Further, since 2005, the U.K. has created a system of what it calls controlled orders that can apply to British citizens as well as to non-citizens. There are two kinds of control orders that can be imposed, derogating and non-derogating.

Derogating control orders are those that specifically derogate from the human rights guarantees which are found in the European Convention on Human Rights, while the non-derogating control orders contain obligations that are meant to comply with that convention.

Basically the U.K. Home Secretary can 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 and conditions on this individual.

The length of time that a control order is in force varies depending on the type of control order that the courts impose. A non-derogating control order expires after 12 months, while a derogating control order, because it is more severe, expires after 6 months. They can be renewed under certain conditions. As of September 10, there had been nine control orders in force, all of which were in respect of British citizens. All of these control orders were non-derogating, in other words the less severe kind.

Moreover, I would note that under the counter-terrorism act, 2008, there exists a power in the U.K. to impose on a person who has been convicted of a terrorism offence the requirement to notify the police periodically of certain information after being released from prison, things such as identity, place of residence and future changes to those items. As well, a person subject to this notification requirement can also be made subject to a “foreign travel restriction order” to prevent the person from travelling outside the U.K. to take part in terrorist activity.

In the United Kingdom, governments have already taken the threat of terrorism very seriously. They have not left it to the previous criminal code to protect them. They have gone beyond it to ensure their citizens are protected.

In Australia, something very similar has been done. It also has control orders. On application, a court may impose obligations on a person if satisfied on the balance of probabilities that making the order would substantially assist in preventing a terrorist act or that the person has provided training to or received training from a listed terrorist organization. Generally, a control order in Australia may last for up to 12 months and our understanding is that two control orders were issued since the creation of that legislation.

The Australian national government and the state governments also allow for preventive detention of terrorist suspects. Again, that is reasonable. The threat of terrorism around the world is not abating so the Australian government recognized that and provided for preventive detention. Under its scheme, 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. The preventive detention in Australian states and territories is up to 14 days.

When we compare the experience of the U.K. and Australia to Bill C-17 that is before us, the recognizance provisions of the bill are reasonable and require that there be reasonable grounds to suspect and reasonable grounds to believe that a terrorist act will be committed. Moreover, the purpose of the recognizance with conditions provision is not to arrest a person but to put a suspected person under judicial supervision in an effort to prevent the carrying out of a terrorist activity. Again, reasonable and I believe most Canadian would share that sentiment.

Also, while there is an arrest without warrant power under the recognizance provisions being proposed, it is extremely limited in scope. We are trying to balance the individual rights of Canadians against the very real and urgent threat of terrorism and that terrorism presents to our country.

In summary, it is fair to say that the measures elsewhere are akin to and, in some cases, far surpass the measures proposed in Bill C-17.

With regard to the investigative hearing provisions of the bill, I would again like the House to consider what other countries, most notably Australia and the U.K., have done in these areas. For example, in Australia there are specific procedures generally similar to the Canadian investigative hearing. For example, Australia's equivalent is found in the Australian security intelligence organization act. Under that act,the security intelligence organization with the attorney general's consent can seek a warrant from an independent issuing authority, usually a federal magistrate or judge, for the questioning of persons for the purpose of investigating terrorism.

A warrant may also be obtained that authorizes the detention of a person for questioning in certain limited circumstances. A person who is held in detention for the purpose of questioning can be held for up to a maximum of 168 hours. Any questioning must be undertaken in the presence of a prescribed authority, generally a retired judge, and under conditions determined by that authority.

Under the Australian legislation there are some limits that are placed on the ability of the person to contact a lawyer of his or her choice. For example, if the prescribed authority is satisfied that on the basis of circumstances relating to the lawyer, if the person is allowed to contact the lawyer, a person involved in a terrorism offence may be alerted that the offence is being investigated. In other words, these are steps that have been implemented to ensure that communications cannot proceed that would allow the commission of a terrorist offence. If the person subject to the warrant or his or her lawyer discloses operational information as a direct or indirect result of the issue of the warrant under the warrant prior to the expiry or for two years after the expiry of the warrant, he or she commits a crime punishable by up to five years in jail. In such a case, the offence is one of strict liability.

Building on previous legislation relating to organized crime, the United Kingdom's terrorism act enables investigating authorities, such as the director of public prosecutions, to compel individuals to produce documents, answer questions and provide information that is relevant to the investigation of a terrorist offence. Generally, no judicial authorization is required, which is a significant departure from our own Bill C-17.

The U.K. also has other laws that go beyond an investigative hearing before a judge. The terrorism act of 2000 was amended in 2001 to create the offence of failing to disclose to a constable, as soon as reasonably practicable, information which a person knows or believes might be of material assistance in preventing the commission by another person of an act of terrorism. Now that is a mouthful but it is important to know that it applies where the person knows or has reasonable cause to suspect that a constable is conducting or proposes to conduct a terrorist investigation and it is punishable by up to a maximum of five years imprisonment.

Bill C-17 does not include a similar power. In other words, we, as a government, recognize that there is a balancing of individual rights against the public right to be protected against terrorist acts and we have chosen not to go that far. Again, it speaks to the reasonability of the legislation that is before us today.

Members may also be aware that the United States has a long-standing grand jury procedure where 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.

As we can see, Canada has, like other democratic countries, recognized the need for additional powers to investigate and/or prevent terrorism. The threat of terrorism is very real to this country. We have already experienced that in the Air India disaster. Many of the families of the victims of that disaster are not satisfied with the protections that are presently in place in Canadian law. They want additional tools for our police and our investigative authorities to investigate these kinds of crimes and, more important, to do their very best to prevent those crimes from occurring.

Perhaps had we had these tools that are in Bill C-17 available back then, we could have prevented such a disaster from happening.

I have talked at length about the measures that are present in other democratic countries facing terrorist 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 would not constitute an assault on human rights. That was never the intent. In fact, this legislation would simply renew legislation that a previous government introduced. On the contrary, these would be minimally intrusive and more restrained than our foreign counterparts.

Other countries similar to Canada have taken even more extreme measures to address the threat of terrorism. That is why again I say that the provisions of Bill C-17 are reasonable and measured. The provisions contained in this bill are replete with safeguards. They are restrained in scope when compared to measures found in some other democracies. They would not present a threat to Canadian values but would actually protect them by protecting Canada's citizens.

With the re-enactment of the powers contained in Bill C-17, Canada can show that it is taking measures to prevent terrorism and that it is a leader in doing so while at the same time respecting human rights.

I therefore urge all my colleagues in this House to support this very important legislation.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:50 p.m.
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NDP

Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, I like the member for Abbotsford and I always enjoy his speeches. Like other government members, he tried to speak eloquently to the issue at hand, which is this bill before us. He did make a fair attempt and certainly spoke of legislation in other countries and in other jurisdictions as opposed to addressing the issue itself, which is this bill that has been brought forward again by the government.

The problem of course is that what we have before us is something that has raised serious concerns around its impact in a number of areas. The provisions were not used. It expired and Parliament chose not to renew it. The government has decided to bring it forward now. The question that has been asked by members of the opposition is why. Despite the eloquence of the member for Abbotsford, he has not been able to respond to that issue either. When we think of the issues around the lack of funding for our police forces across the country, the question seems to be that this is a channel changer. The government is trying to change things away from its boondoggles, its misspending on the jet planes and the fake lakes and everything else it has been spending money on rather than supporting our front line police officers.

That has to be the question. Is the government attempting to change the channel for its mistakes and spending priorities?

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:50 p.m.
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Conservative

Ed Fast Conservative Abbotsford, BC

First, Mr. Speaker, my colleague from Burnaby—New Westminster has t it all wrong. He seems to think that this measure is one of either we use it or we lose it.

Canadians are demanding that we have in place the tools that are necessary to actually get the job done. I am so pleased that we have not had to use this legislation in the past to intervene when there were cases of terrorist activity in Canada.

What is even more intriguing is that the NDP and my colleague from Burnaby—New Westminster are more interested in throwing law-abiding citizens in jail for not filling out a census form but they will not throw violent offenders and terrorists in jail. I do not know how they explain that. They make all this to-do about the fact that people do not want to disclose to the government, quite rightly so, how many rooms they have in their house. They want to throw those kinds of people in jail, law-abiding Canadian citizens, but they do not support our efforts to get tough on violent criminals and terrorists. Shame on them.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:50 p.m.
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Liberal

Scott Brison Liberal Kings—Hants, NS

Mr. Speaker, the hon. member has referred to the people who will be jailed as a result of their refusal to fill out the long form census. Would he answer this question? How many Canadians have been jailed for refusing to fill out the long form census which has been in place a long time?

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:50 p.m.
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Conservative

Ed Fast Conservative Abbotsford, BC

Mr. Speaker, if they have not been jailed, why do we need the census in the first place? This is an attempt by the Liberals to change the channel on this bill, which is about terrorism and getting tough on terrorism and ensuring we have the tools to intervene when there are terrorist acts either being committed, intended to be committed or have already been committed.

All day I have listened to the Liberals talk, trying to change the channel. They were talking about the census and about prorogation. What they hate to do is admit that they are soft on crime and they are not prepared to do anything further to protect Canadians against terrorism.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:55 p.m.
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Bloc

Yves Lessard Bloc Chambly—Borduas, QC

Mr. Speaker, sometimes unusual things happen and unusual statements are made. And when such a statement is made by a minister, we need to pay special attention in order to understand the nature of that statement. Such is the case with my colleague's comments about imprisonment. We know that the Conservative government is about to build new prisons, and I believe that nearly $13 billion has been earmarked for this purpose.

We asked the Minister of Public Safety why so many prisons were being built. He responded by saying that too many unknown crimes were going unpunished. Does my colleague share this opinion? If so, how can we imprison someone who has supposedly committed an unknown crime?

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:55 p.m.
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Conservative

Ed Fast Conservative Abbotsford, BC

Mr. Speaker, I believe the hon. member is referring to preventive detention. The bill contains provisions that allow our authorities to undertake investigations, including detention, to provide them with the opportunity to intervene and question people who may have knowledge about terrorist acts that may be committed.

I was very disappointed to hear that this member's colleague earlier today referred to this legislation, which is intended to protect Canadians, as being useless. That generally reflects the attitude the Bloc has to safety in Canada and the safety of our citizens. They will not stand up for victims of crime, and they will not stand up for those who may in the future become the victims of terrorist acts. I find that very disappointing. I believe that this member is better than that. What he should be doing, and what his party should be doing, is joining us in our sincere efforts to renew legislation that actually protects Canadians against terrorism.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:55 p.m.
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Bloc

Yves Lessard Bloc Chambly—Borduas, QC

Mr. Speaker, I rise on a point of order. A resolution was passed by all of us here concerning respect and courtesy in the House. But what they are saying about our motives and behaviour is completely false.

It is entirely inaccurate to state that we are against penalizing people who commit a crime. Let us not start this again. It goes against the mutual commitment we made to act like gentlemen here.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:55 p.m.
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Conservative

The Acting Speaker Conservative Barry Devolin

I would encourage all members to demonstrate the respect for one another that they would wish to receive themselves. I am not sure whether that was a point of order.

Questions and comments, the hon. member for Edmonton—Sherwood Park.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:55 p.m.
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Conservative

Tim Uppal Conservative Edmonton—Sherwood Park, AB

Mr. Speaker, very eloquently my colleague from Abbottsford explained why we need this bill to protect Canadians. He explained how other countries have similar bills. He mentioned the United Kingdom and Australia. An important part of this bill would be what he talked about: the safeguards and the checks and balances. Perhaps my colleague could further explain some of the checks and balances and the safeguards in this bill.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:55 p.m.
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Conservative

Ed Fast Conservative Abbotsford, BC

Mr. Speaker, yes, there are safeguards. We looked to the Australian model and the U.K. model. We realized that the period of detention might not necessarily meet with the favour required to pass the legislation. There are provisions that provide for a short period of detention in order to get at the information that our authorities need to prevent terrorist acts from occurring in Canada. I am confident that Bill C-17 is reasonable, temperate, and modest. I believe Canadians will understand what we are trying to do here. It is all about providing our police authorities and our investigative authorities with the additional tools they need to protect Canadians.

We do not hear much from the other side of this House about victims. We do not hear much from them about protecting the public. I believe the focus of this House of Commons needs to return to the sacred trust that is imposed on each one of us, and that is to stand up for protecting our citizens against violence, crime, and terrorism.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 6 p.m.
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NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Mr. Speaker, I have to beg your indulgence today. The allergies are getting the upper hand on me. I am hearing things in this place that throw me for a loop, but I am comforted by the words of an amateur politician from many years ago who said, “Don’t believe anything you hear and only half what you see”. That amateur politician was Abraham Lincoln.

In this debate and for the last number of years, we have seen the abuse of the word “terrorist”. The justifications for sacrificing of the rights of Canadians on the altar of terrorism, and fighting the war on terror, are reprehensible. Recently, I was sitting in my home, watching a ship full of Tamils coming to our west coast seeking refuge. I remember the government standing up and saying that terrorists were aboard that vessel. If that was true, the government should have stopped the ship long before it ever got to Canada. What evidence did it have?

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 6 p.m.
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An hon. member

Oh, please.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 6 p.m.
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NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Go ahead, I will wait. I will pause. I am quite thrilled to pause.

The reality is that the government had no evidence at that time. This is the issue before us today, the fundamental rights that we have in this country. When we are accused, we have a right to see our accuser, to see the evidence against us. All this was trashed and thrown away in the name of terrorism. The fundamental rights of Canadians were thrown away.

We hear, in the debate today, one of the people from the Conservative side of this House saying that if we had only had these laws in place we probably would not have had the Air India tragedy. That is offensive to the victims of the Air India tragedy. Those people know better. Those people know that the investigation was fumbled.