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.
