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 / 6 p.m.
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Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

That is what the chair of the Air India association said.

Combating Terrorism ActGovernment Orders

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

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Pardon me, but I gave you your turn. You give me my turn.

Mr. Speaker, it is a fundamental offence to the people who have suffered. The government and these members talk endlessly about the rights of victims and the concern for victims. In this place is where we protect the victims, where we work together, or should work together, to protect them. In this debate, on something so fundamental as the rights of Canadians, the long gun registry is tossed in, the long form is tossed in. Anything to score crass political points is tossed into this debate.

Are they really standing up for Canadians? I do not think so.

In our history as a country, we have failed Canadians. We have failed people from around the world. There have been times in this country, in the second world war, where we detained our own citizens. Subsequently, we had to apologize. In my home community of Hamilton, in the spring of this year, there was a gathering of folks well into their eighties, remembering how they were interned and how their fathers and grandfathers of Italian descent were interned. That was a mistake that seemed to be right at the time, because people were fearful.

Again in 1970, watching television one night, 48 hours after Mr. Pierre Laporte and another gentleman from the British consulate were taken hostage, we had the War Measures Act proclaimed against Canadians. It was not against those people who today might be called terrorists. It was against Canadians. They went into the law offices. They went into offices of labour unions and took files that had absolutely nothing to do with it. That was a time when there was free rein in this country to do whatever one wanted, in the name of the War Measures Act.

We are sitting here today, looking at another place in history, another opportunity to say to ourselves that maybe, just maybe, because we have not used this since we put this act into place, it may not be necessary.

Earlier today, the member for Windsor—Tecumseh was talking about the War Measures Act. He said that we have learned in the last eight years that there was no need for that legislation. The justice minister said today that we might need it.

If it were not for the fact that we are dealing with fundamental human rights and liberties, there might be some merit to this and some logic to the argument, but these two sections of the anti-terrorist legislation contain a serious incursion into rights that have existed in this country since pre-Confederation, rights that go back 400 or 500 years.

As this debate continues in this, Canada's home of law and justice, our House of Commons, I want to give a brief history lesson that puts in place what the member for Windsor—Tecumseh was talking about. This is going to sound strange in the beginning, I assure everyone.

What happened in the year 1215? What was the major event of 1215? Of course none of us sits around thinking about it, but it was the Magna Carta. It was issued in that year and then issued later in the 13th century, a modified version. At the time, it had removed certain temporary provisions. Is everyone now hearing the words “temporary provisions”?

The bill that we are addressing, Bill C-17, had a sunset clause. I often find fault with the official opposition, but it did one thing right in the moment of fear following 9/11 when we were wondering what we should do as a country. Opposition members knew they were going to try to put into place legislation that would allow incursion into the rights of Canadians. When they did that, they said maybe it was not something that should be permanent, so they put in a sunset clause. The Supreme Court of this country ruled on it, as everyone will recall, and that is part of the reason we are here today.

I want to take everyone back to the Magna Carta. The charter was first passed into law in 1225 and then again in 1297 with the long title, “The Great Charter of the Liberties of England, and of the Liberties of the Forest”, which remains in the statutes of England and Wales.

People will remember that in 1215 King John was the king of England. It was his barons who forced him to proclaim those certain liberties. It is amazing that he had to accept that his will was not arbitrary. He accepted that no free man, which was the language of the day I say to my sisters here today, could be punished except through the law of the land. That is a right that exists to this day. That is the right that our veterans have fought for in conflict after conflict. It is enshrined in law in almost all the democracies of the world. No free man could be punished except through the law of the land.

What do we have today? In the name of terror, terrorism, or whatever the latest word is, we are going to change the law of the land to take away, permanently, the rights of Canadians. In Parliament, our home for establishing laws for Canada, following 9/11 we strayed from the goals of the Magna Carta. Maybe, just maybe, we began acting a little too much like King John and others who would seek too much control.

We saw a similar thing occur in the United States. I can still recall, following 9/11, the picture of the Congress and the Senate gathered together. They had been under attack. Several thousand people died and it was a country that was very worried about what was coming next, and rightfully so.

Nobody in this place will try to minimize the fact that there are people in the world who seek to do destructive things. The hardest balance that any government has to make, the one that faced this House of Commons about nine years ago, was to balance rights against protecting the people.

We have had nearly 10 years now where it has not been needed. Even though the sunset clause did not run its course properly, we could get into the why of that, but I think I will pass on that.

Where once the king, or in our case, Parliament, was tasked with protecting the liberties of its citizens, the government of the day set out to legally circumvent the rights inherent to all Canadians.

The Magna Carta was forced on an English king by a group of his barons. It was done in an attempt to limit his powers.

Here we are today, doing the reverse of that. We are trying to increase the subversive kind of powers of government, those powers that we do not want to have hidden behind doors.

In this place I have defended Omar Khadr repeatedly and called upon the government to do the right thing in Omar Khadr's case. My point is that if we look at Guantanamo Bay and how the United States government moved to Guantanamo to avoid being subject to the laws of its country and they still call it a democratic country, we are here today talking about doing something similar. We are not setting up a hidden place; we are doing it in the House, no doubt. However, in the year 1100, there was a Charter of Liberties, when King Henry I had to specify particular areas where he would allow his power to be impinged upon, or be pushed back, or be controlled. That was at the behest of the people, one more time.

The people in my riding who have talked to me repeatedly about the injustices that we saw with the Japanese in World War II, the Italians in World War II, the Komagata Maru at the turn of the 20th century and other mistakes that were made in Canada say, “Beware. Be cautious. Be careful. Do not so cavalierly give away the rights of Canadian citizens”.

In the 13th century, to refer again to the outcomes of the Magna Carta, nearly all of its clauses had been repealed by that time. We should think about that for a second. We had, back in the 12th and 13th century, a move toward rights and freedoms for people, and over the next centuries they were repealed and pulled back.

However, there were three main clauses that remained part of the law of England and Wales, and to a great extent they are to be found elsewhere in the world because they are the fundamental basis of so many important things in law.

Lord Denning described it as the greatest constitutional document of all time, the foundation of the freedom of the individual against the arbitrary authority of a despot.

They were thinking in terms of a monarchy, but when a government, any government, gives itself too much control, it is setting itself up for that accusation.

In the year 2005, in a speech, Lord Woolf described the Magna Carta as:

the first of a series of instruments that now are recognised as having a special constitutional status.

The three things that were important were the right of habeas corpus, or the Habeas Corpus Act; the Petition of Right; and the Bill of Rights and the Act of Settlement.

However, if we think in terms of habeas corpus, if we think in terms of what I started this speech talking about, the right of a person, a Canadian, to know the evidence against them, to face their accuser in a court of law, and to have the apprehension of that individual done in conformity with the laws of Canada, we had the situation recently of the Toronto 18. We had the apprehension of those folks. It went through the process and we had a turn of guilt in one instance. We have had, right here in this community, other arrests that have taken place.

I want to go back again to the charter as an important part of the extension of history's process that led to the rule of constitutional law in the English-speaking world.

I keep talking about the foundation of our rights. In practice, the Magna Carta in the medieval period did not, in general, limit the power of the kings. However, by the time of the English Civil War, it had become an important symbol for those who wished to show the king or queen that they were bound by law.

What does this ancient document have to do with limiting the power of kings, and how has that happened within the structure of Bill C-17?

It seems that with the government, on this issue, as with the previous Liberal government, the rights of Canadians were denigrated and dismissed in the name of the war on terror. To the credit of the Parliament that sought to limit the rights of Canadians under the Anti-terrorism Act, the government added the sunset clause, which was referred to earlier, to see an end to these abuses in the year 2007.

Today the Conservative government argues that it needs the same oppressive tools again, those that we find today in Bill C-17. I would argue that the provisions of the Canadian Criminal Code are effective enough. Again, I refer to the Toronto 18. We had arrests and we had convictions in those cases.

In Canada we are not required to give testimony that incriminates us. Being a child brought up in the 1950s, I always called that the fifth amendment, because I did not realize that we were referring to the United States. It is a fundamental aspect of justice. One is not required to incriminate oneself.

We have rights under habeas corpus. We have the right to a speedy trial, to see the evidence against us, and to meet our accusers face to face. I would ask whether the members present are prepared to sacrifice the rights given to free people that have been in place since the time of the Magna Carta, that have evolved over the history of this country and other primarily English-speaking countries, the so-called British Empire countries.

Those are our roots. That is who we are. Again, the question is whether we will allow the government to become like the court of a kingdom that represents the interests of the king. Do we know any kings in this place? Will we stand with and for great Canadians everywhere?

In terms of the change in this country and the change that has happened to Canadian citizens as brought about by this government, there is a change in the fundamental direction and attitude of services provided and the protection of Canadian citizens, such as the G20 protection of Canadian citizens. I am sure that we will hear much more about it in this place. We saw protestors marching. In amongst those protesters there were people misbehaving. There were people breaking the law, but we saw wholesale arrest and detainment. I know the story of one lady who was picked off the line, put into a police car, driven for four hours, and then released.

Are we going to allow people to be picked off the streets, detained with no charge, and released and told they are free to go because the event is over? That is what happened at the G20.

On behalf of the constituents of Hamilton East—Stoney Creek, I am supposed to trust a government to allow that G-20 type of activity to take place. It was a peaceful march, and they could have easily apprehended those people who were the problem that day. If it was allowed to go to the place it went, how am I supposed to trust the government with more powers and more authority?

I say that if we pass Bill C-17, what we are actually doing is giving away fundamental rights of Canadians and opening them up to the kind of abuse, in a broader way, we saw at the G-20.

I will conclude today by saying that I stand here proudly with the rest of my friends, and particularly with my friend from Windsor—Tecumseh, who gave such an eloquent speech earlier today. I almost tried to give the same speech again. It was so tempting, because he spoke directly to the heart of this issue.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 6:20 p.m.
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Conservative

Mike Wallace Conservative Burlington, ON

Mr. Speaker, I want to give the member for Hamilton East—Stoney Creek the opportunity to clarify his earlier comments. He was responding to questions on his position. He stated that if we suspected that there were terrorists on ships in international waters, Canada would have the obligation and the right to go into those waters and turn those boats around. It was unclear whether it was his position or that of the NDP. I am giving him an opportunity to clarify that.

Combating Terrorism ActGovernment Orders

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

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Mr. Speaker, I was responding to what was put before Canadians by a minister of the government when that minister said that he knew that there were terrorists aboard that ship. He said that there were terrorists and other immigrants coming to this country aboard that ship.

My challenge to my colleague is in a rhetorical sense. If the minister knew this, how did he know this? Where did he get the evidence? Who was supplying the evidence? It would have been investigative authorities who, if they knew this, would have known it before that ship left the country it left from. If that were the case, the intervention should have been made there. That is my point about dealing with it before it comes to Canada.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 6:20 p.m.
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Liberal

Geoff Regan Liberal Halifax West, NS

Mr. Speaker, I listened with interest to the speech made by my hon. colleague from Hamilton East—Stoney Creek. I appreciated and enjoyed his comments.

I wonder if he would agree with my assessment of part of what is happening here. We have seen that whenever the government does not like the way things are going, it brings forward one of its crime bills. In fact, at times over the past few years we have seen some of the so-called tough-on-crime bills languish. They just sat around for months when the government did not bother to call them. The Conservatives would then try to blame this side of the House or blame the Senate or whomever for the fact that those bills had not gone forward. In fact, the government had not put them on the order paper each day to make that happen. They had not brought them forward.

When the government wants to change the channel, it tries to create fear in people. We have seen that with the census. The Conservatives want people to be afraid that those terrible census takers are going to arrest them. My hon. colleague from Abbotsford was actually claiming a few minutes ago that this is the reason we have the census. I do not think there is a question on there asking if one has been arrested or jailed for not answering the long-form census. In fact, no one has ever been arrested for that.

We have seen the fear the Conservatives create by suggesting that Russian bombers, propellor aircraft that are 40 years old that do not even enter Canadian airspace, are a huge threat to us. Therefore, we need these F-35s, these $16 billion worth of fighters. I wonder if my colleague would agree with that.

Combating Terrorism ActGovernment Orders

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

Wayne Marston NDP Hamilton East—Stoney Creek, ON

No offence to the member, Mr. Speaker, but that is a wandering type of question.

To be serious for a moment about an incursion by the Soviet Union, now Russia, and the capabilities they have, no matter what kind of airplane they have in the air, 15 minutes after that missile is warmed up, it is going to be visiting us in downtown Ottawa. To be very clear, we do need to have an air defence system with the capacity to protect our country.

Our concern, as a party, was the method with which these aircraft were ordered. They were ordered in a single-source type of venture. There should have been discussion in this House. It should have gone to committees of this House. We should have had the input of our generals, who clearly, from the freedom of information we read today, were expecting to have the posting for the sale and purchase of these particular aircraft. We have $16 billion. If we had bought half, we would have $8 billion to do something for seniors and other people.

Coming to the point of fear, the government relies on the fear of Canadians, unfortunately. We see it on many fronts. The Conservatives were not so concerned about it that they could prevent themselves from proroguing the House twice.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 6:25 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, in his presentation, the member pointed out the fact that this legislation was introduced under very tough circumstances in 2001 but that it did have, and rightly so, a sunset clause after five years, which legislation of this type usually has and should have. However, when it did expire after not having been applied or used, no movement was made to renew the legislation.

We have provisions under the current laws to deal with these sort of situations. As the member pointed out, we have the situation in Toronto with people being caught and charged with terrorism. We have a similar situation in Ottawa. I would also like to point out that only a few years ago in Manitoba when the Queen visited, there were two or three people who made some threats and I was told that they were simply picked up and removed for the period of time of the Queen's visit. I do not know where they were taken or what the police did with them but they just disappeared from the scene for a period of hours. Clearly, under the current laws in this country, there is ample provision for dealing with threats. We have been dealing with this issue for years.

This is a lot of window dressing on the part of a desperate government that is sinking fast in the polls and trying to recover. It comes up with some boutique crime bills that it hopes will translate into some gains in the polls. The government should know by now that it did not work in the past, that it does not seem to be working right now and that it probably will not work in the future. It should look back to the minority Parliament of Lester Pearson where, in roughly the same period of time of six years, the Lester Pearson government worked with the opposition and brought in a new flag. It joined the armed forces, brought in medicare and did many progressive things. The sooner the current government figures out that it should start working with the opposition we then could have some new initiatives for this country, but nothing is happening because of the Conservatives' belligerent attitude toward the opposition and to Parliament.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 6:25 p.m.
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NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Mr. Speaker, when we think in terms of those types of legislation that come before us, we ask ourselves what they are about. One of them is the street racing bill. For criminal negligence causing death or injury, those tools are available to the police to deal with these offences. It was a serious issue in a part of Canada. and I will not go into the particular area, but the reality of the situation is that the tools were there. We have not heard about a massive usage of this new legislation and that is an example of where a demonstrated fear was taken advantage of for crass political reasons as far as I am concerned.

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.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 10:10 a.m.
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Liberal

The Speaker Liberal Peter Milliken

When this matter was last before the House the hon. member for Hamilton East—Stoney Creek had the floor. There were two minutes remaining in the time for questions and comments consequent upon his speech. I therefore call for questions or comments.

Resuming debate. The hon. member for Moncton—Riverview—Dieppe.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 10:10 a.m.
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Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I am pleased to speak this morning to this important bill. I also am pleased to be back in the Chamber after a summer recess that was very successful in terms of democracy, of hearing from the public and of coming back here, as I think all parliamentarians have, with a joint sense that we must make this place work. We must make it more co-operative, more intelligent and more reasonable and open.

With that in mind, I am drawn to the comments of Andrew Cohen in this morning's Ottawa Citizen who said that backbench MPs and individual MPs have no power, have no independence, do not think, do not debate and pretty much are the stuff found under rocks. However, I beg to differ in a non-partisan moment.

In two days we will be voting on a backbencher's bill that has engaged all of the public one way or another in debate. Many current members in the House and those in past Parliaments have worked very hard and quietly on issues of importance to them and their constituents. Overall, with all due respect to question period and the reforms therein proposed and the highlights on the news every night from this Chamber during that time, it bears repeating that most of the serious work in Parliament is done in committee and in cross party, cross the aisle negotiations with respect to laws that hopefully make this country a better place and, as I bring it back to this debate, a safer place.

Bill C-17 is a perfect example of a bill that has been bandied about in various incarnations dealing with the security of the public, which is one issue that does not divide anybody in the House. We all want the public to be safe and we all want public security. We may differ, however, on the means to achieve public security.

The debate itself has been discussing two important tools. Whether we agree they are needed is the hub of the debate but it bears repeating as to what they are.

In response to threats of terrorism and in the period just after 9/11, there was much debate about what we would do if we were faced with future terrorist threats, attacks or rumours of attacks or threats to our country and to our people. It was not a unilateral decision but it was felt by this Parliament that two inclusions should be made to our over 100-year-old Criminal Code. For the people who wrote and enacted the Criminal Code in the 1890s, probably the nearest thing to a terrorist attack was the War of 1812 or the raid in St. Albans, Vermont in 1865. That was probably in the psyche of most of the people who wrote the code way back when.

Let us look back to 2001 to the communities like Gander, Newfoundland and Labrador, Moncton and Halifax that welcomed plane loads of people diverted by the terrorist attacks in New York, which we recently commemorated earlier this month. What was the mentality of the Canadian public and parliamentarians with respect to public security? Something needed to be done. As Canadians and parliamentarians, we felt under attack. We felt ill-equipped to handle the next perhaps imminent threat of terrorist activity. We as Canadians felt, because of concerns made known at the time, that our border was porous and that somehow we had something to do collectively in a remote guilt sense for the occurrences in New York and other places on that day.

Parliament, therefore, decided to inculcate the Criminal Code with two tools to be used if necessary, one being the investigative hearing. In the Criminal Code of Canada an investigative hearing would allow authorities to compel the testimony of an individual without the right to decline to answer questions on the basis of self-incrimination.

The intent would be to call in those on the periphery of an alleged plot who may have vital information, rather than the core suspects. These are the people on the periphery, who would have an overwhelming incentive to lie to protect themselves, the actual accused. It was an attempt, working in concert with CSIS and our investigative security-based individuals, to find out more information to prevent terrorist attacks and terrorist incidents. That was to be inserted into the Criminal Code of Canada, a very new provision.

The second new provision was the preventive arrest provision, allowing police to arrest and hold an individual, in some cases without warrant, provided they have reasonable grounds to believe that the arrest would prevent future terrorist activity. Those were introduced in 2004. In the context of 2001, the context seemed reasonable. The context was that we were protecting our community. We were protecting our nation.

There were many safeguards built in to those provisions, and I might add that it was a Liberal government that brought in these provisions, so I do not think it lies in anyone's mouth on any side to say that Liberals are not concerned with terrorism. This was Liberal legislation, and like all legislation that was new and that dealt with the collision between the need for public safety and the primacy of individual rights, it is the collective versus the individual. Like all of those debates and all those pieces of legislation, the collision always results in imperfection because no one goes home completely satisfied with the result.

The key part of the legislation was the so-called sunset clause. At the end of five years, the legislation would sunset and would be no more. The provision was put in place clearly because parliamentarians, particularly members of the Liberal caucus and members of the government, and committee reports and minutes are replete with speeches to this effect, realized that this collision between the public security goal and the private rights goal would result, potentially, into an intrusion into the latter, so they said, “Let us sunset it. Let us see if it is needed, if it is used wantonly, without regard for personal rights, if it is used at all, and if it can be interpreted by the courts or refined through practice”.

Many times we lob a ball into the air called legislation and really hope that the courts get a chance to interpret it, to get it right, one might say, but we do try to make legislation work. In this case, the sunset clause was allowed to sunset, despite attempts to bring the debate back to Parliament. At the very end of the time for the period to run out, a debate was held and the sunset clause was not removed, or the legislation was not permitted to continue, so we are without these tools. This is where we are today. This is the debate today, whether we should have these tools in our Criminal Code with respect to terrorism or suspected terrorism.

A bill which eventually worked its way through the Senate of Canada, with good recommendations from senators and Commons committees before that, a bill known as Bill S-3, correctly and accurately assessed the situation since the original enactment of these provisions. These provisions are found in the Criminal Code in sections 83.28, 83.29 and 83.3. These are the conditions for investigative hearings, which define at some length the modalities as well as recognizance with conditions and arrest warrants for the anti-terrorism legislation.

It is not just these three sections. It is a misnomer to think that we just put these three sections in. There are some 25 pages in section 83 dealing with terrorism. They deal with seizure of property and all sections that have not been challenged or rescinded. It is only these sections dealing with individual liberties that have been touched.

Bill S-3 made some improvements to the regime as it was. There was an increased emphasis on the need for the judge to be satisfied that law enforcement has taken all reasonable steps to obtain information by other legal means before resorting to this.

There was one key consideration: the ability for any person ordered to attend an investigative hearing to retain and instruct counsel. A person so apprehended should have the right to counsel of their choice. There were new reporting requirements for the Attorney General and the Minister of Public Safety who then must now both submit annual reports which not only list the uses of these provisions but also provide opinions supported by reasons as to whether the powers needed to be retained.

There should be flexibility to have any provincial court judge hear a case regarding a preventive arrest.

And, finally, the five-year end date, unless both Houses of Parliament resolve to extend the provisions further, would be put in; that is, another sunset clause.

These amendments made their way through Parliament and, at the risk of not having a completely happy audience, then the P word intervened and we were sent home to go through yet another election. That is sad. That is too bad. But that has been debated before. We know that we do not like prorogation, it interrupts our business, but we were on our way.

Remember now these provisions were put in and as I said, we often want to hear what the courts have to say about them.

Well, an important decision of the Supreme Court of Canada took place in 2003 and 2004. The hearing was December 2003 and the decision was in the middle of the year 2004. The court, made up of the current chief justice and almost all the existing judges now, with the exception of New Mr. Brunswick's Mr. Justice Bastarache, who has since retired, concluded that the provisions put in, particularly 83.28, investigative hearings, were constitutional, but there were a number of comments made in that decision which no one could take as a complete endorsement of the legislation.

While they upheld it, it is important, I think, to note that three justices of the Supreme Court, remember, one has left the court, dissented and found, for instance, using their language:

The Crown's resort to s. 83.28 [which was an investigative hearing] of the Criminal Code in this case was at least in part for an inappropriate purpose, namely, to bootstrap the prosecution's case in the Air India trial by subjecting an uncooperative witness, the Named Person, to a mid-trial examination for discovery before a judge other than the Air India trial judge.

They went on to say:

The Named Person was scheduled to testify for the prosecution in the Air India trial, but because the Crown proceeded by [a different method known as the] direct indictment, neither the prosecution nor the defence had a preliminary look at this witness [who was detained from the investigative hearing]. Section 83.28 was not designed to serve as a sort of half-way house between a preliminary hearing and a direct indictment.

What we have here are the players and the justice system ending up using a tool that was there for, quite frankly, maybe a different purpose. The players and the system had used a certain way of proceeding in a criminal case. They saw this tool lying on the shelf and they used it.

The court, in its majority, said, sure, we can do that because public security is the number one aim here. However, it did lead to the feeling that we, as parliamentarians, in sort of a renvoi or a send-back, have been told by the court that we did not draft perfect legislation when we drafted these pieces and it had been used somewhat indirectly for the purpose in question because of a prosecutor's choice to go a certain way, which I cannot second guess because the Air India trial was a very complicated matter, involving numerous informants of high publicity content throughout Canada. So, I cannot second guess the prosecutors, but they used it for a purpose that led three justices of the Supreme Court to say that is not what this was intended for.

The majority of the court, however, went on to say it is allowable, that section 83.28 does not violate section 7 of the charter and it does not violate section 11(b) with respect to counsel.

I find that a bit strange and I allow for the fact that because the person was not a person under arrest but a witness, by the clear letter of the law the individual would not have a right to counsel. I like the changes that have been submitted by the Senate, by members of the committee and the House that say yes, counsel of the choice of the detained person should be permitted.

We went further in the House and in the Senate than the majority of the Supreme Court that would have allowed such a use of section 83.28. In other words, we have improved, through the recommendations and now the bill being presented, what the Supreme Court thought was allowable with respect at least to the right to counsel.

The court said:

--a judicial investigative hearing remains procedural even though it may generate information pertaining to an offence...the presumption of immediate effect of s. 83.28 has not been rebutted.

It took the law of Canada to be serious. It took the tools in the tool box regarding anti-terrorism as serious and upheld the use of it, and we are down to numbers almost with respect to the Supreme Court, even when good, smart thinking, and now three members of the Supreme Court said it was misused, essentially.

Where are we, then, with the need for this legislation? There are opinions on either side, but let us remember the legislation originally introduced was to combat terrorism. Besides 9/11, which was traumatic for everyone in North America and the world, the prime instance of terrorism and trying to combat it resulted in or came out of the crash of Air India flight 182 and the following study of it by John Major, who was a former Supreme Court justice.

I know Liberals want to send it to committee and examine what was done with Bill S-3, the precursor acts. We want to put safeguards into any proposed legislation and keep the balance right between the need for public security and the primacy of individual rights. That is a given.

I told a little story about how we are interpreting laws based on the one instance of a prosecutor using a certain tool, which led the Supreme Court to say in a divided way, “Yes, it's okay, but you should be more careful than the committee improving the act”. The bigger picture that has been missing in the debate so far is what use is this if our security services do not talk to our police services and our police services are not in sync with the court officers who ultimately direct that this tool be used?

The report of John Major is very instructive in that regard because he says terrorism is both a serious security threat and a serious crime. Secret intelligence collected by Canadian and foreign intelligence agencies can warn the government about threats and help prevent terrorist attacks. Intelligence can also serve as evidence for prosecuting offences.

There is a delicate balance between openness and secrecy and that is what this debate is all about. We have to focus more on terrorism threats from the national security level than this tool, which the Supreme Court of Canada has already said is allowed.

Finally, I would close by saying that the member for Windsor—Tecumseh, on behalf of this party, said we do not need this because we have not used it. I have a sump pump in my basement and I may never use it, but if I have a flood I want to have that sump pump there. I want to be ready for something that may happen in the future.

For my dollar's worth, I think this should go to committee and we should look seriously at what the dissent in that Supreme Court judgment said, what the majority said and this time, with the benefit of its advice and the advice of John Major, we should get it right. We should have those tools on the shelf.

The members who say we do not need them should be happy that we do not need them because it means that we have not had a terrorist threat. However, if we have a terrorist threat, I want those tools to be on the shelf for prosecutors to use, if needed, to keep our country safe, which is the goal we are all here to pursue.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 10:30 a.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I listened quite carefully to my hon. friend's remarks and I must say that I found it difficult at times to figure out what exactly his position or the position of the Liberal Party is with respect to this particular act.

I know the Liberal Party brought in the Anti-terrorism Act in what I think was a knee-jerk reaction after 9/11. That act contained many serious violations of traditional civil liberties and rights that Canadians enjoyed in this country. I know that members of his party voted against the provisions of that act in 2007 when the sunset clause expired and here they are today seeming to talk about supporting this act going to second reading.

I heard my hon. colleague talk about the importance of civil liberties, for instance, the right not to incriminate oneself, which is a right that can be traced back in this country hundreds of years and has developed as a pivotal, key civil right in this country. Yet, this act would allow the state to force someone to testify without the right of self-incrimination.

I am wondering if my friend can clearly state for Canadians whether he supports or opposes the ability of legislation to violate Canadians' right not to self-incriminate.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 10:30 a.m.
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Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

In the legislative history of the bill, there were improvements made along the way. With respect to his preliminary concerns about where the party is, the party generally accepted the Senate's view in its Bill S-3 improvements.

We have to examine what the minister means with respect to the right to instruct and retain counsel, which I think is key to the member's point on self-incrimination.

I challenge the member to show me where the right against self-incrimination, which is from the section 10 and section 11 rights of individuals in the legal process, is not at all times in collision with, say, section 1 of the Charter, which is the override provision, or with the general sense of the need for national security.

I said in my remarks that there is always a collision between these. They cannot be compatible. There has to be a collision between the rights. No one right is alone, sacrosanct, and overpowering.

For the member to say that to the public belies his training, I think, as a lawyer and also as a public official.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 10:30 a.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I would like to ask the member who spoke whether he knows and understands why the Minister of Justice wants this provision to provide for preventive arrest and recognizance with conditions. Can the member tell us and comment on that?

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 10:30 a.m.
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Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I was here in the chamber when the minister gave his speech. I looked at the provisions in the law. He put his reasons forward. My understanding is that it is not much different from the legislation that existed, which the Conservatives at the time, the member will recall, in 2007, wanted to renew without any changes.

It even, in fact, picks up some of the recommendations in Bill S-3. The two major provisions are still in the same order.

In fact, if I read the minister's speech, he appears, subject to the test at committee, to be adopting some of the improvements that were suggested, ultimately, by the Senate when it passed the bill before we were prorogued into another election.