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 / 12:15 p.m.
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Niagara Falls Ontario

Conservative

Rob Nicholson ConservativeMinister of Justice and Attorney General of Canada

moved 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.

Madam Speaker, I am pleased to rise and speak at second reading to the combating terrorism act, Bill C-17.

In that regard, I have to thank the hon. government House leader for putting justice legislation first on the list. I know that is in accord with his own thoughts and priorities. I just want to tell him how much I appreciate that this is the first bill before Parliament in this session and thank him.

I am pleased to lead off the debate on a vital piece of the government's national security legislative agenda: Bill C-17. This bill, with which many members are familiar, seeks to reinstate, with additional safeguards, the investigative hearing and recognizance with conditions provisions that sunsetted in March 2007.

This government has put national security and, in particular, anti-terrorism at the forefront of its agenda.

In the March 3, 2010, Speech from the Throne, the government committed to taking steps to safeguard Canada's national security, maintaining Canada as a peaceful and prosperous country and one of the safest places in the world in which to live. This is our goal. The proposals in this bill represent one significant step in the right direction.

There is somewhat of a history in this place on these powers. These provisions were first introduced in the Anti-terrorism Act in December 2001 and were subject to a sunset clause. Members will recall that the ATA also contained a mandatory parliamentary review component, which led to two separate reviews: one by a Senate special committee and, in this place, by two subcommittees, the last being the Public Safety and National Security Subcommittee.

As the committees were winding down their review of the ATA, including the investigative hearing and the recognizance with conditions powers, the sunset date on these provisions was fast approaching. As a result, the government introduced a resolution in the House of Commons that proposed to extend these provisions for three years. Unfortunately, the powers were not extended by a vote of 159 to 124 and the provisions, therefore, expired on March 1, 2007.

It is important to recognize that the reports published by the parliamentary committees that reviewed the ATA were generally supportive of the powers contained in Bill C-17 and called for their extension.

Since that time, attempts have been made by this government to reinstate these important tools.

First, Bill S-3 was introduced in the Senate in the 39th Parliament and contained additional safeguards and technical changes to respond to the recommendations of the committees reviewing the ATA.

The Senate passed Bill S-3 on March 6, 2008, with a few amendments, but it died on the order paper when the election of 2008 was called.

More recently, in the last session of Parliament, this government again made efforts at bringing this important piece of legislation back to life, through Bill C-19. Bill C-19 contained the amendments made by the Senate to the former bill.

In summary, these were making mandatory a review of these provisions by a parliamentary committee within five years; deleting some words in the recognizance with conditions provisions to track charter jurisprudence; and making a technical amendment for consistency.

These changes are also now found in Bill C-17. I want to make that very clear. They are all there in this piece of legislation.

With that short history, let me turn to an explanation how the investigative hearing and the recognizance with conditions provisions of this bill would operate.

What will become very clear, as I described these proposals, is that they would achieve the appropriate balance between the respect for human rights without compromising effectiveness and utility.

First, with the investigative hearing provisions, the courts would be empowered to question, as witnesses, those persons who are reasonably believed to have information about a past or future terrorism offence.

The key here is that the person required to attend an investigative hearing is treated as a witness, not someone who is accused of a crime. It is important to note that witnesses could be questioned under this scheme without the commencement of any prosecution.

Earlier, I noted the balance between human rights and security. In this regard, the investigative hearing provision would be equipped with numerous safeguards for witnesses in accordance with the charter of rights and the Canadian Bill of Rights. I would like to set out a few of these safeguards so that all hon. members can get a sense of the careful attention which our government pays to issues of this type.

First, the attorney general must consent before the investigative hearing can be initiated.

Second, an independent judge must agree that an investigative hearing is warranted, finding in particular that it is believed on reasonable grounds that a terrorism offence has been, or will be committed, the information concerning the offence or the location of a suspect is likely to be obtained as a result of the order, and in all cases, reasonable attempts have been made to obtain the information by other means. Previously, this safeguard only applied to future terrorism offences and not past ones.

Third, section 707 of the Criminal Code, which sets out the maximum period of time in relation to which an arrested witnesses can be detained at a criminal trial, would apply to a person arrested to attend an investigative hearing. This is a new safeguard that is added to Bill C-17, something that was not in the original legislation.

Fourth, the person named in the investigative hearing would have the right to retain and instruct counsel at any stage of the proceeding.

Finally, there is a robust prohibition against the state using the information or evidence derived from the information against the person.

It is important for all members of this place to know that in 2004 the Supreme Court of Canada ruled that the investigative hearing was constitutional having regard to the safeguards that existed at that time in a case called “Re: Application under Criminal Code s. 83.28”.

Therefore, I think all members would agree that the safeguards set out in Bill C-17 in relation to the investigative hearing are robust, effective and reasonable.

Now let me return to the recognizance with conditions provisions of the bill. The recognizance with conditions proposal would permit the court to impose on a person such reasonable conditions as the court considers necessary to prevent terrorist activity. This would prove to be a vital tool in efforts at keeping Canadians safe. As I set out in the various components of the recognizance with conditions scheme, I would ask hon. members to take note of the numerous safeguards contained within the proposal.

Under the proposed bill, before a peace officer is able to make an application to a judge for a recognizance order, again the consent of the attorney general would have to be obtained. A peace officer could lay an information before a provincial court judge if the peace officer believed on reasonable grounds that a terrorist activity would be carried out and suspected on reasonable grounds that the imposition of a recognizance with conditions on a person or the arrest of the person would be necessary to prevent the carrying out of the terrorist activity. This would be the legal test to be met in order to obtain the judicial order to compel a person to attend before a judge.

Under this proposal judges would be able to compel a person to attend before them for a hearing to determine if a recognizance would be imposed. Now the bill proposes a very limited power to arrest without warrants, the purpose of which is to bring a person before a judge so that the judge can exercise his or her power of judicially supervised release.

This power can only be exercised in two situations as follows: first, is where a peace officer has the grounds for laying an information before a judge, but by reason of exigent circumstances it would be impractical to lay an information and the peace officer suspects on reasonable grounds that the detention of the person is necessary in order to prevent a terrorist activity.

The second is where and information has already been laid as a summons issued by a judge and the peace officer suspects on reasonable grounds that the detention of the purpose is necessary in order to prevent a terrorist activity.

For example, suppose that a peace officer has the requisite grounds to lay an information before a judge. However,he or she also learns that the terrorist suspects are planning an imminent terrorist attack and the person is about to deliver material that could be useful in making, for instance, an explosive device. In such an example, the peace officer could reasonably suspect that it is necessary to detain the person and bring him or her before the judge in order to prevent the delivery of the material and therefore the carrying out of the terrorist activity.

The bill sets out that in cases where the person has been arrested without a warrant under the recognizance with conditions provisions, that person cannot be detained for more than 72 hours. In the end, if in the opinion the recognizance is not warranted the person will of course be released.

It is important to note that if a person refuses to enter into a recognizance when ordered by the court, the judge can order the person's detention for up to 12 months. This is a significant power but I am sure one that is understandable in the circumstances given the seriousness of the harm that could be caused by the commission of a terrorist offence. Moreover, it is a power found in other peace bond provisions of the Criminal Code.

For both the investigative hearing and the recognizance with conditions powers, the bill would require annual reporting on the use of these provisions. While annual reporting requirements existed in the original legislation, this is an important change that is found in Bill C-17. In response to a recommendation from the Senate committee that reviewed the ATA, the bill proposes that both theAttorney General of Canada and the Minister of Public Safety provide their opinions, supported by reasons, as to whether the operations of these provisions should be extended. This is an open, transparent and sound reporting mechanism that is being proposed.

One of the benefits of having extensive reviews and debates already to have taken place on these provisions is that one is able to anticipate questions or concerns that may be expressed. I will not attempt to address some of those issues.

Some may take the position that these provisions are not necessary since they have been rarely used when they were in force if at all. However, this argument is premised on the view that since these powers were not used in the past that they will not be needed in the future. In the face of continuing terrorist attacks around the world, this logic is, to say the least, questionable. Neither I nor do I suspect the members of the House have the power to predict the future. Therefore it is imperative that we as a country have the mechanisms necessary to respond to a terrorist threat and that we give our law enforcement proper tools to do so. This is what Canadians rightfully expect.

It is certainly true that when these powers were previously in force for five years, to our knowledge the investigative hearing power was invoked only once and never in fact held. On that occasion, the Supreme Court of Canada considered the investigative hearing scheme and found it to be constitutional. To my knowledge, the recognizance provision was not used at all.

I suggest that this is clear proof, not that these powers are not needed, but rather that Canadian law enforcement is prepared to exercise restraints when it comes to using these powerful tools.

I would like to restate that the recognizance provisions cannot be imposed solely on the ground of reasonable suspicion. The bill would require that the police officer believes on reasonable grounds that a terrorist activity will be carried out and that he or she suspects on reasonable grounds that the imposition of a recognizance with conditions is necessary to prevent a terrorist activity. This is a significant threshold and not one based on mere suspicion.

Some have argued that the Criminal Code already contains similar provisions that could be used for terrorism related offences, such as Section 495(1)(a) and Section 810.01, and that accordingly these provisions are unnecessary. Section 495(1)(a) in part allows a police officer to arrest without a warrant a person reasonably believed to have committed an indictable offence or about to commit an indictable offence. What this argument fails to realize is that the arrest powers in that section apply to a much smaller class of persons than those who would be covered under this bill.

Similarly, the peace bond provisions that I talked about earlier target only potential perpetrators of offences themselves, the actual person doing it. Provided the criteria or the recognizance with conditions are met, this bill would apply more broadly to persons who could not be arrested for terrorism offences in order to disrupt the planning of terrorism. I think all members of the House would agree that this is a class of persons who must, in order to save lives, be subject to a form of judicially supervised release.

We all know that terrorism is not a new phenomenon. Since the attacks on the United States in September 2001, the world has witnessed numerous acts of terrorism but, more important, as the recent guilty pleas and convictions in terrorism cases in our country have shown us, Canada is not immune to the threat of terrorism.

We as a government and as parliamentarians have a responsibility to protect our citizens. In doing so, we must provide our law enforcement agencies with the necessary tools to achieve that objective. It is equally our responsibility to do so in a balanced way with due regard for human rights. That was our goal with this reform and I believe that we have achieved it.

The investigative hearing and the recognizance with conditions powers are necessary, effective and reasonable. I call upon all parties to work together to make Canada a safer place to live, work and thrive.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 12:35 p.m.
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Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, I do not necessarily share the joy that the minister has expressed about the House leader bringing forward this legislation at this time given the fact that many of the amendments and things that we were pushing for were originally suggested in 2007. In fact, we had to wait until March 12, 2009 for the government to bring this bill forward. I can recall speaking more than a year ago to the imperative need to get this bill before committee and yet here we are more than a year later waiting around for the government to deal with it. Prorogation killed it once but the government brought it back.

I can recall when the government said that these measures were so important that they had to be dealt with immediately at committee. Why have we been waiting nearly three years? Why, several bills later, are we still waiting to deal with this at committee, ask questions and approve measures?

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 12:35 p.m.
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Conservative

Rob Nicholson Conservative Niagara Falls, ON

Madam Speaker, I hope the hon. member will remember that this legislation actually came before the House for a vote.

I will pass this advice on to my colleague the government House leader. Just because people have voted one way in the past or made speeches in support of something in the past does not necessarily mean that they will follow through with that.

These sunset provisions were put in by the previous Liberal government. I and my colleagues reintroduced this bill with the approval, the blessing and the tacit support of the Liberal Party and then, at the last minute, they folded their tent and decided they would not be supportive. It was very disappointing. The provisions themselves have been sunsetted. Since my colleague is now worried that it has taken a while for us to get this legislation back to the House, I hope this means he will be supportive of it.

I indicated that I looked closely at amendments that were proposed by his colleagues in the Senate and they are in this legislation. This is the bill that was originally put in by the Liberal Party of Canada when it was in government. I listened to the proposals that were made by the Senate of Canada to get these necessary anti-terrorism provisions. On one occasion the Liberals folded their tent and changed their mind but I hope that will not be the case this time. I am somewhat encouraged that the hon. member has asked why we are not dealing with this. We are dealing with it right now.

The member made comments about the hon. government House leader. He is an outstanding individual and it was an outstanding appointment. I thank him again for putting forward justice legislation right at the beginning of this session. We have been saying for a long time that the economy is absolutely vital to Canadians but our justice agenda is vital and important to Canadians as well.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 12:40 p.m.
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Bloc

Maria Mourani Bloc Ahuntsic, QC

Madam Speaker, I would like to ask the minister a question about CSIS, one of the agencies responsible for national security, particularly counterterrorism. I would like to know if he read the Canadian Press release that states:

Canada's spy agency—CSIS—says it would use information obtained through torture to derail a possible terrorist plot—a position critics argue will only encourage abusive interrogations.

...

CSIS will share information received from an international partner with the police and other authorities “even in the rare and extreme circumstance that we have some doubt as to the manner in which the foreign agency acquired it,” say the notes prepared for use by CSIS director Dick Fadden.

The quoted material is from a briefing note sent to the head of CSIS.

My question for the minister is this: is his government aware that CSIS would use information obtained by torture in certain circumstances, and does his government approve?

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 12:40 p.m.
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Conservative

Rob Nicholson Conservative Niagara Falls, ON

Madam Speaker, I have been very clear about the legislation that we have in Parliament today. We are providing police and law enforcement agencies with the tools they want.

I would ask everybody to look very carefully at what I had to say about the different safeguards that are placed within this legislation. They are to be used on reasonable grounds. I have set those out in detail for both parts of this: the investigative hearings and the recognizance with conditions sections.

I have responded to the reports that I received from the two subcommittees of this House. A committee of the Senate had a look at that. We have made some changes to it that do nothing except enhance this bill.

I would say to the hon. member that we should put in the hands of the police forces the tools they need and deserve to fight terrorism in this country. We cannot turn our heads away and hope that this country will not be targeted or become a victim. We know that terrorism and those who want to disrupt our society exist. Therefore, when we see legislation like this that responds in a responsible manner with appropriate safeguards, it should have the support of all members of the House and, indeed, the members of the other place.

Whatever prejudices, misbeliefs or concerns members have had in the past, I would ask them to look at this legislation. I hope they and all members of the House will stand with the members on this side of the House to support these important tools that our police agents and those in law enforcement need and deserve.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 12:40 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Madam Speaker, I was on the committee that sat through the hearings that reviewed the anti-terrorism legislation. Witness after witness came forward and myself and other members of the committee repeatedly asked questions about a scenario where these two sections were needed given that they are a huge incursion into what are fundamental historical rights for all Canadians, both in terms of the right to remain silent and not be incarcerated unless charged and know what the charges are against a person.

There were witnesses from CSIS, the RCMP and the justice department and no one could give me a scenario where these sections were needed in the light of looking at other sections in the Criminal Code and the Canada Evidence Act that could have dealt with the scenarios they painted. I have to tell the justice minister today that I still have not heard of one scenario where these sections are needed.

When we put that in the context of an attack on fundamental rights, such as the right to remain silent, the right not to be incarcerated unless charged and knowing what the charges are against a person, how can we possibly justify that in a democratic society?

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 12:45 p.m.
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Conservative

Rob Nicholson Conservative Niagara Falls, ON

Madam Speaker, the hon. member started off by saying that this was a huge incursion into the human rights of individuals. I was very clear in pointing out all the different safeguards that existed. They go beyond what was originally there nine years ago in terms of clarifying exactly what it is that we are applying to. It is possible that when it comes to the attention of law enforcement agencies, there is information available for past or future terrorist activities. This clarifies and sets out the basis upon which that evidence can be brought to the attention of law enforcement agencies.

I hope that in his discussion as to what he heard at committee, he would remember those members of the law enforcement agencies saying that these were the tools, the kinds of things they needed, to deal with the threats that we were facing. He would know as well that we are constantly trying to update the Criminal Code and the provisions that are on the books in our country to ensure they deal with the evolving face of crime.

Whether we are talking about everything from identity theft to auto theft to white collar crime, all these types of crimes have changed over the years. It has become more sophisticated. If one had said 10 years ago, at the beginning of the millennium, that it was necessary to have special powers on the books with respect to anti-terrorism, I suppose there would have been more skepticism from the NDP. However, we know what has taken place in the last nine years.

As I mentioned in my opening remarks, law enforcement agencies have been very careful with these powers, which underscores how responsible they are. I am sure he must have heard this at committee. Law enforcement agencies have said to me that they want these on the books, that these are important tools to have in the fight against—

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 12:45 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

I regret to interrupt the minister, but his time has run out.

Resuming debate, the hon. member Ajax—Pickering.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 12:45 p.m.
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Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, this is indeed an important matter on which to speak.

I expressed some of my frustration in the question, and perhaps I will come back to it for a moment. If we go back to 2007, when we were considering this whole matter, it was our party, along with other opposition parties, that said we needed to work collaboratively and as quickly as possible to find solutions to ensure that police had appropriate powers but that we struck the right balance.

At the time, the government was all over us saying that if action was not taken immediately, the end was nigh and this would open the doors to all kinds of threats. It attacked us for even daring to ask questions or suggest that the matter needed to be studied appropriately.

Immediately, after the hue and cry about the urgency of how important it was, it disappeared from the radar. Off it went for a long period of time until it suddenly became enormously urgent again when the government re-introduced it in March 2009, again with much fanfare, saying that this was incredibly urgent. Two years had passed and it had done nothing, but suddenly now it was deeply urgent and a matter of national security that we did something immediately and with next to no debate.

Then the government forgot about it again for a while. We debated it in June. We ended up having a prorogation, which killed that bill and many others, and off it languished yet again.

Here we are some three years later, dealing with this bill. Again the government tells us it is urgent, essential and must be dealt with immediately. It just does not wash. It would appear the government is using the timing of the bill more as a distraction than having any genuine interest in getting something done. The Standing Committee on Public Safety and National Security should have been looking at this issue years ago and having detailed indepth conversations, which we were told we did not have the time to have.

This is a fundamental problem I have with the government. It raises an issue that it says is of such urgency and no one can ask any questions. It wants to ram it through and does not want us to ask any questions. It even questions our patriotism if we ask questions as if somehow we are soft on terror because we want to strike the appropriate balance. Yet the government takes three years on the very same thing that it said was so urgent. All we asked for a few months to have expert witnesses in front of a committee to ensure we got it right.

Why is it important that we get it right? There is such an important balance between collective security on the one hand and individual freedom on the other. On the one hand, every one of us, down to every last single Canadian, wants to ensure that if there is something that puts the country in immediate peril, the police officers have every reasonable tool at their disposal to dispose of that threat safely, to ensure that public safety is maintained and that collective order is preserved.

Of course we want police officers to have those tools, but we want to ensure they are only used in the most extraordinary of circumstances with the most rigorous of oversight and that it is never abused.

This leads us to the second point. This whole process of standing in Parliament, of asking questions, of having committees is about a process of protecting those individual freedoms as well, ensuring we do not go so far in the name of collective security that we erase our right as individuals to have freedoms.

Is that not the thing terrorism looks to erase in the first place? Is it not the very fundamental thing it is looking to destroy?

If we accept provisions without caution and we end up going too far, then we have situations like we had with Maher Arar, or Mr. Nureddin, or Mr. Almalki or Mr. Abou-Elmaati, individuals who got caught up in a system that went too far, that cut too many corners when it came to intelligence and ended up destroying the lives of innocent citizens.

When we have this debate, let us have it rationally, let us have it carefully and ensure we get it right. I certainly hope it is going to finally come to committee and that this is not just another opportunity to obfuscate and distract.

In that regard, when the justice minister congratulates the House leader, I am decidedly less optimistic that the reason it is before us today is because the government is suddenly excited for renewed action. I think it has a lot more to do with a very bad summer.

It is important to talk about from where the bill and the provisions came.

After 9/11, the Liberal government passed the Anti-terrorism Act, the package of measures, including Criminal Code amendments, to combat terrorism and terrorist activity. The act attempted to balance those measures with respect for Canadian values, fairness and human rights. Two new powers in the act, investigative hearings and preventive arrests, were considered sufficiently intrusive and extraordinary that a specific five year sunset clause was applied to them alone. The sunset clause was a Liberal caucus priority.

In October 2006, a subcommittee of the Standing Committee on Public Safety and National Security recommended extending the sunset clause, while also amending the Criminal Code to restrict the scope and application of investigative hearings and preventive arrest. The sunset clause came due on March 1, 2007. The Conservative government then introduced a motion to extend the provisions for a further five years, but in February 2007, the Liberal opposition, as well as the Bloc and the NDP, voted to allow clauses on investigative hearings and preventive arrests contained in the original Anti-terrorism Act, brought forward in the immediate aftermath of September 11, to sunset.

At the time, Liberal opposition offered to work with the Conservative government to find reasonable and effective improvements to anti-terrorism laws that would strike an appropriate balance between safety and protection of rights. After the defeat of the clauses, the government introduced legislation in October 2007 that would have brought back the two clauses with additional safeguards. It required law enforcement officers to satisfy a judge that they had used every other method to get information that they needed. It also required the attorney general and minister of public safety and emergency preparedness to report to Parliament on a yearly basis, explaining their opinion as to whether these provisions should be further extended.

It is important to note that most of these additional items that came forward were as a result of the Senate, and particularly Liberal senators who sought to improve the protection of individual freedoms in this matter. Most of those recommendations were contained in Bill S-3.

I will run through some of the important highlights of the improvements that were suggested to get the right balance: first, an increased emphasis on the need for the judge to be satisfied, as a mentioned before, that law enforcement had taken all reasonable other steps; second, the ability for a person ordered to attend an investigative hearing to retain and instruct counsel, something that previously had not been in place; third, new reporting requirements for the attorney general and the minister of public safety, who must now submit annual reports which not only list the uses of these provisions, but also provide an option supported by reasons as to whether these powers need to be maintained; fourth, the flexibility to have any provincial court judge hear a case regarding a preventive arrest; and last, a five year end date, unless both Houses of Parliament resolved to extend the provisions further.

I do not accept the argument that is posited by some that because these provisions have not been used with great frequency, that they do not have purpose. We have to be cautious to dismiss this just for that reason. There has to be a lot more than that. Clearly, these clauses should only be used in extremely extraordinary situations and we would expect and hope that if they were used, it would be an extremely rare occurrence. That unto itself is not enough to not support the bill.

I am, however, concerned with a couple of items and I they are items that we will have to explore at committee. One is oversight. We have to look at whether or not once every five years is an appropriate length of time under which to review this. We also have to look at the provision that would only have one of the Houses of Parliament review the bill.

We saw in this case, after the sunset clauses came, that the Senate did great work and was able to be very instructive with a number of recommendations that are now a key part of the bill and a key part of the debate. I would suggest that a review, perhaps, by both Houses of Parliament would also be appropriate.

I am concerned as well about the broader issue of oversight and particularly with how intelligence oversight is left right now. It would be inappropriate to have this debate without mentioning the fact that the government has completely ignored most of the key recommendations that came from Justice O'Connor, which were supported by Justice Iacobucci and were repeated by the RCMP Public Complaints Commissioner before he was let go because he criticized and did a good job. That is what the Conservatives do with people who do a good job of criticizing. These recommendations were repeated over and over again, saying that our security and intelligence services did not have adequate oversight, that it had led to major mistakes and that there was an incredible need to reform them.

If we are going to proceed with giving additional powers on the one hand, how can we proceed without dealing with these problems of oversight? Just as an example, the RCMP public complaints commissioner, Paul Kennedy, and again, he was the public complaints commissioner, issued a great number of concerns about the fact that he could only investigate something if there was a complaint made to him. If he had concerns, he could not proactively investigate. If he wanted to get information, he could not compel that information. He could sort of ask, pretty please, for that information to be granted to him. If it moved outside of the RCMP, since most things involving intelligence are multi-agency and therefore involve many different departments, there was no ability for him to track that bouncing ball as it moved through different departments.

There were a number of recommendations I mentioned that said that we have to fix this. We have to make sure that when we have oversight, there are no dark corners we cannot look into. There has been a further recommendation that we need to make sure that we have a committee of parliamentarians that is empowered to look at documents and information to make sure that the law is being upheld and that individual freedoms are being respected. That, right now, unfortunately, has also been ignored by the government.

These recommendations, by the way, were not made last week. In some cases, they go back four years or slightly longer, which is almost since the inception of the present government. It is not that the government came forward and said that it disagreed with them and that these were bad ideas. No, in fact, the government came forward and said that it agreed and would implement them immediately. Apparently we have a different definition of immediately. Immediately for me would have been four years ago. For the government, it is apparently just a tactic to stall and to put off forever.

However, certainly at committee, and now, we have to demand that change in oversight. We cannot have agencies such as Citizenship and Immigration Canada or the Canada Border Services Agency, for example, that have absolutely no oversight whatsoever and continue to talk about granting new powers in the absence of fixing those problems.

The other issue I am concerned about that is important to mention is that the government will have to understand that the Canadian public and Parliament have a tough time trusting when it comes to matters of security and intelligence. Conservatives might have got away at the beginning, when they were a new government, as they called themselves, with people taking them at their word, “don't worry, we have things covered”. However, simply mentioning the words “terror” or “security” does not give them a free pass, not anymore, because we have caught them too many times when they have been less than direct with Parliament about what the facts are.

A specific example, as we know, is when Mr. Colvin came forward with concerns about the way detainees were treated in Afghanistan. Instead of turning and looking at those and having a proper investigation of what he raised as issues, the Conservatives attacked his personal credibility and attacked him personally. They then followed that up by trying to shut down Parliament's ability to take a look at the documents. It came to such a point that there was a crisis in the House, something that had to be determined by the Speaker. There was the whole Westminster system of parliamentary democracy he was looking at to rule on the fundamental right of Parliament to know the truth, to look at documents, and to demand information. Fortunately, the power of Parliament was upheld, but the very fact that the government would try to close down access to that information is deeply concerning.

When the government asks for more powers, to let it have more ability to do things without scrutiny and to just trust it, it will have to understand that there is a great deal of reticence to do so because of that history. There is a great deal of disbelief that it will fix the problem of oversight, because the pattern, as I mentioned earlier, and I am going to go through it specifically now, has not been to respond to thoughtful criticism with thoughtful answers or with review and reconsideration. It has been to go on the attack, to fire, to discredit, and to try to obliterate opponents as opposed to trying to actually respond to their concerns.

We saw Linda Keen, of the Nuclear Safety Commission, who came forward and expressed a number of concerns and disagreed with the way the government was proceeding. She found herself fired. I mentioned Paul Kennedy, someone who did his job with tenacity. I think anyone would have a tough time criticizing the work he did. He was critical of the government, because he kept pushing the Conservatives to make changes that he knew had to be made, reforms such those in the Brown report, which came out of the RCMP pension scandal, or the recommendations dealing with tasers that came from the disaster that happened with Mr. Dziekanski.

They were ignored. In fact, not only did they ignore him, but when he became more vocal and more concerned and more passionate in his plea to have something done, he was fired.

The victims ombudsman, who came forward and said that the government's approach to crime is unbalanced, will not work for victims, and is the wrong approach, found himself fired.

The military ombudsman spoke out on behalf of military men and women and criticized the government. The government often lauds what it supposedly does for the military, yet we had a military ombudsman criticizing it and saying that changes are needed, that there are things that are grossly unfair. People who are coming back from serving their country are not being treated fairly. The government responded by firing that individual. The public complaints commissioner for the military was also fired.

We know that Marty Cheliak, who was head of the Canadian firearms program, went across the country passionately speaking about how the gun registry saves lives, how it is an essential tool for police. He was pleading with the government not to destroy it, not on a partisan basis but on a basis of fact and truth. He was fired, gotten rid of.

Therefore, I am sure that the Conservatives can understand why opposition members and Canadians are reticent to just hand over new powers to them, carte blanche, and trust them. We do not, and those are some of the very many reasons why.

There is an issue, though, beyond trust and the way the government tries to hide things and fires people or discredits, attacks, and maligns those who would have the courage to speak truth to it. It is also a function of incompetence.

One can look at how it has handled other matters that dealt with security. Let us take the G8 and G20. Here was an opportunity for Canada to host the world. It was at a time when the meetings were going to be on austerity, on the need to rein in spending, on the need to find a way to deal with an international debt crisis. It certainly would have been a great opportunity to show leadership, to hold the meetings in a place that was easy to secure and to make sure that the meeting costs were toned down and that the focus was on policy and substance.

Instead, the government first tried to shove the entire thing into a cabinet minister's riding where it would not fit, and then it realized that it could not possibly manage it. The government then split it in half and tossed half to Toronto, basically telling Toronto, seconds before it was dumped on it, “You are going to be hosting world leaders in a downtown core in a security nightmare. Good luck to you”.

The government divided it up and completely mismanaged it. It showed no ownership of its mistakes. It did not come forward and say that we need a protocol going forward to make sure, for international meetings, that we have, basically, rules nailed down on who is going to lead and who is going to take responsibility. Instead, fingers pointed everywhere but at itself, and it said good luck to everyone.

Meanwhile, Toronto was left with just a complete disaster, something that unnecessarily portrayed the city in an incredibly negative light , something that could have very easily been avoided. Of course, we all know the price tag. It was well over $1 billion, probably more than even the $1.3 billion that is being reported right now, for what turned out to be nothing more than a photo op and a black eye for Toronto.

However, it does not end there.

I spent the summer touring across the country, and one of the things that really struck me was how deeply offended many of the communities across the country are by the comments of Mr. Fadden, comments that cast aspersions upon Canadians and upon their citizenship. He treated them like second-class citizens, with no proof and no explanation. The government so terribly mishandled the situation with Mr. Fadden. Now the Chinese community and others are left with a growing cloud of suspicion that hangs over them, no ability to clear it, and no promise that it will be.

How the government handled Mr. Fadden, how it handled the G8 and G20, how it is handling the gun registry, which I am going to talk about tomorrow, so I will not today, and how it has dealt with issues generally when it comes to security intelligence, tells us that it is incompetent and that to hide that incompetence, it tries to shut down any dissent or any other voices.

For that reason, we are going to have to be very careful with this on the committee, and very careful with the government as we go forward in this House.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:05 p.m.
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NDP

Linda Duncan NDP Edmonton Strathcona, AB

Madam Speaker, I have looked very carefully at the input from my colleague from Vancouver Kingsway on the predecessor to this bill. His intervention on this bill raises very serious questions for me.

As a lawyer in Canada, I commit to abide by the rule of law. This is why we have legislatures. This is why we have parliaments. We are duly elected, through an open election, to enact the laws and then to rule our country by the rule of law.

What I find extremely troubling in this bill, including the amendments, is that there really is no attempt to have balance. The government is always talking about its efforts to balance the two interests in the country. I see very serious incursions into the democratic principles of this country and our ability to rule by the rule of law, particularly when this bill would take away the right to know the charges and to be charged before being interrogated and incarcerated.

I wonder if the member could speak to whether he believes that the amendments put forward through this new bill would remedy that situation. On my review of the bill, it looks like those provisions are, frankly, contradictory.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:05 p.m.
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Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, we have to be very cautious. We need to look at this in committee, because we have conflicting information.

As recently as the last couple of months we have heard from law enforcement authorities who say that they do need additional powers, that what they have today is insufficient in the extraordinary case of a situation that is highly volatile and that puts the country in immediate peril.

By the same token, I can read something said by the former director of CSIS, Mr. Reid Morden, who said:

Police and Canadian Security Intelligence Service have “perfectly sufficient powers to do their jobs”....

He went on to say:

If they're properly resourced...they don't need more powers.

I think that there is a careful balance. We have conflicting information from both the intelligence community and the policing community on what additional powers are needed. That is why I really think people have to discount and ignore the government as it tries to ram things through, because we do not want to get it wrong.

I would also add that any balance in this bill today, any additional leveling out, is because of the good work in the Senate done by our Liberal colleagues there. I really want to commend them for the work they did to bring forward a number of amendments that I think substantively improve it.

No doubt, we have more work to do in committee. It is important to look at it there. From the witnesses we are going to have, we are going to have to sort out some of these things to make sure that we get it right.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:10 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Madam Speaker, I appreciate my friends calling for a balance and for more investigation to be done, but it still comes back to this: These are fundamental rights. How long have we had the right to remain silent in the parliamentary system we have in English common law? Is it 400, 500 years? It is fundamental. It was pre-charter, pre-Constitution. It goes way back, and this is a direct attack on it.

When we juxtapose that direct attack with speculation that we might need it at some time in the future and set it in the context of the history of this country, the way the War Measures Act was used against the sovereignists in Quebec and the labour movement and civil rights advocates in Quebec in 1970, we do not have a good history of doing this right. We do not have a good history of the way we treated the Japanese, Italians, and Germans in the first and second world wars.

I ask my colleague, when it is a fundamental issue of human rights and civil rights in this country, and all we have in terms of trying to justify it is speculation, which I have to say, quite frankly, mostly is based on paranoia, how can his party justify supporting this legislation?

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:10 p.m.
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Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, I think it goes back to the comments that we are hearing from police officers, saying that there are instances where all their other powers are insufficient and they are unable to act with the expediency that is needed to avert a tremendous tragedy. I agree with everything he is saying in terms of having to be extraordinarily cautious.

We must ensure that there is in fact a need for that power and it has to be demonstrated. We must ensure if that power is then granted, that there are sufficient oversights and controls of it, that it would only be used in that extremely limited circumstance, it would only be used on a very temporary basis, and that there would be a very strict and rigid regime of accountability for when it was used.

We owe ourselves a debate on this and an opportunity to hear from both conflicting sides. The only thing we have had for the last three years on this issue are bombastic statements about “either approve it now or you are for terrorism”. That is the only thing we have heard. We have had no intelligent debate on this subject.

What I think we have had the beginnings of here today in the House, and what I want to see continued in committee, is a mature, honest conversation about the real factual need for these provisions. If there is a clear need for them, then there be very tight ironclad controls placed around them so that there is a regime of accountability that will not allow them to be used. This is a matter that this House has to consider carefully because this is a very difficult balance. It is not an easy balance.

We absolutely must protect the Canadian public against threats to our public security, against potential acts of terrorism, but that cannot come at the cost of our individual liberties or the things that the hon. member mentioned in his previous comments of stripping individuals of the things that make this country great and that have been the foundation of our democracy.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:15 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

The hon. member for Ahuntsic has three minutes for questions and comments.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:15 p.m.
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Bloc

Maria Mourani Bloc Ahuntsic, QC

Madam Speaker, as my Liberal colleague knows, when we create a law we never know how it will be used. In fact, my NDP colleague gave us the prime example of the War Measures Act.

My Liberal colleague said that with regard to this provision, we need protection mechanisms that will help strike a balance between the need for tools and human rights. I would like to point out to my colleague that both provisions the Combating Terrorism Act would introduce are totally unnecessary. Provisions already exist in the Criminal Code that allow all this.

That being said, my colleague says that the police are complaining that they need more tools. Can he tell me precisely what tools they are talking about? I am not getting the same story. What tools are they talking about?

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:15 p.m.
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Liberal

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.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:15 p.m.
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Bloc

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.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:30 p.m.
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France Bonsant

Good luck.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:30 p.m.
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Bloc

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.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:35 p.m.
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NDP

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.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:35 p.m.
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Bloc

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.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:40 p.m.
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Bloc

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.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:40 p.m.
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Bloc

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.

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 1:40 p.m.
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NDP

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.

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September 20th, 2010 / 1:55 p.m.
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Liberal

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?

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September 20th, 2010 / 2 p.m.
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Liberal

The Speaker Liberal 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.

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September 20th, 2010 / 3:30 p.m.
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Liberal

The Speaker Liberal 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.

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September 20th, 2010 / 3:30 p.m.
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NDP

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.

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September 20th, 2010 / 3:30 p.m.
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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.

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September 20th, 2010 / 3:45 p.m.
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NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Madam Speaker, I thank my colleague for her comments, especially as they come from a former member of our national police force.

When this legislation was introduced, it was created in an obviously different context from where we are right now. Soon after 9/11, many countries tried to shore up certain aspects of their security laws. This was Canada's effort. The government of the day included a sunset clause because it was understood at the time that in such a heated environment sometimes governments will make decisions and changes to laws that they do not necessarily want to have in permanent effect. It is a temporary measure for extreme circumstances. We are now at the sunset clause of this legislation again where it is up for renewal or dismissal, depending on whether it has been useful or not.

This government and the one before have prosecuted cases around homegrown terrorism without using any of these requirements. We actually heard from witnesses at the committee on the provisions in this bill. We understand that the provisions border on the draconian at times, forcing a witness to testify against his or her own interests. This is one of the foundations of our justice system and it is removed through this bill. Holding people without charge is also against the very foundations of what parliaments have stood for, for many years. So know that the measures are serious, and I think the hon. member appreciates that.

These are not light uses in this legislation, but we have never had to use them, even in prosecuting criminal charges of homegrown terrorism. So in the balance that we try to establish here in Parliament as legislators, between the rights of individuals and the protection of society, suspending a person's ability to testify against themselves, suspending the rights of people who are then held without charge, for a piece of legislation that does not get used even when we prosecute in criminal cases involving terrorism, does it not seem to the hon. member that we should allow the sunset to finally take place on this legislation? It was drawn up in a different context, and it has not been applied. Even in moments when we have needed to apply the force of the law and all our security details to terrorism, we have not used this. Is it worth the continued sacrifice to have, on the books in our Parliament and our land, laws that so override basic fundamental human rights, for a law that we simply have not used?

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September 20th, 2010 / 3:50 p.m.
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Conservative

Shelly Glover Conservative Saint Boniface, MB

Madam Speaker, I welcome the opposition member back to the House after the break.

I am glad that the hon. member has asked that question. There are a couple of elements in the question that I would like to explain so that he really understands how imperative this is to law enforcement and to this country as a whole.

First and foremost, the hon. member mentioned that it has not been used. Yes, I agree that it has not been used, but that does not mean that we will not need to use it in the future. We have seen an escalation of arrests in terrorists activities or suspected terrorist activities. As a police officer who is on a leave of absence and I have every intention to return to my position as a police officer when I am done helping to create some new laws here in the House, I know this is a tool that will be used when appropriate. When the hon. member mentions that it has not been used yet, that clearly indicates to me that it is used only when it is absolutely necessary. The officers I have spoken with indicate that they believe this is a tool they will unfortunately have to use in the future, and I would like to give them every tool open to them.

I too am concerned always about the safety and security of Canadians. That is why I think this bill must be adopted, because without this bill, we cannot proactively deal with terrorism. This bill also allows us not only to deal with future terrorists acts, but past terrorists acts, and that is crucial during investigation.

So I would urge the member to consider that this bill is the answer to both protecting Canadians securely and providing for their rights. This is only going to be used in very serious cases, and I would urge the member to consider that and vote with us to ensure the safety and protection of Canadians.

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September 20th, 2010 / 3:50 p.m.
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Charlesbourg—Haute-Saint-Charles Québec

Conservative

Daniel Petit ConservativeParliamentary Secretary to the Minister of Justice

Madam Speaker, I have a question for my colleague, who did a great job introducing the terrorism bill. I want to point out to the House that the Air India crash killed 325 people. Our population is 33 million, and the United States' is 300 million. The attack killed 3,000 people. That is about the same, proportionally speaking. Before 9/11, the Air India bombing was the deadliest terrorist attack in North America.

I have a question for my colleague, who was also with the police before coming to the House to help us introduce our bills. Can she tell us if any other countries have laws more or less the same as the one we are going to introduce, a law that is not harsh, but that seeks to protect our people?

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September 20th, 2010 / 3:55 p.m.
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Conservative

Shelly Glover Conservative Saint Boniface, MB

Madam Speaker, I would like to thank my colleague and welcome all members back to the House of Commons. I am glad to see them all here.

Other countries do indeed have similar laws to prevent terrorist acts. The United States has a “grand jury” system.

The United Kingdom has a more severe regime, namely an offence of failure to disclose information that would be of material assistance in a terrorism investigation to a constable. It is very much the same. A person must divulge information.

Australia and South Africa have also created investigative hearing procedures and this reflects the ongoing concern not only here in our country but across the world that terrorism acts will do harm to all of the people of this world.

I urge, once again, members of the House to consider this very carefully. We do not have to wait for a tragedy to happen to act. We need to put forward preventive measures so that we can stop tragedies like Air India as mentioned by my colleague. We must do this in order to ensure the safety and security of Canadians in the world.

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September 20th, 2010 / 3:55 p.m.
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NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Madam Speaker, I am trying to follow my colleague's logic in that the utility of this bill is to protect Canadians and keep them safe, but it has not been applied. There has been testimony from many who work around this specific type of law, which is very particular, that already in the legal definitions in Canada there is the power to do things to prevent terrorism.

In the draconian measures that we are talking about, anecdotal officers talking to me does not cut it. We need legal experts to come forward and say the law is deficient to protect Canadians.

In the terrorism cases we have prosecuted in this country, if this law were so important, it certainly would have been applied. If this were the critical piece of legislation that was missing prior to 9/11 and the government came up with this and said this is what we need to keep Canadians safe, it would have been used in cases of homegrown terrorism, clearly.

The draconian nature of this is that in Bill C-17 somebody can be held without charge for up to a year, no charges whatsoever. Never does the evidence come before the person who is being held in custody. This should concern all of us. I cast no aspersions on the government, but this law enables this or any future government to simply hold any Canadian for up to a year without presenting a single charge.

We must, as legislators, contemplate the future. We must contemplate bad government always, misinformed government, racist government, governments under some sort of pressure. Why do we need a law that has not been applied now with such draconian measures in it that hurts the rights of all Canadians across the board?

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September 20th, 2010 / 3:55 p.m.
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Conservative

Shelly Glover Conservative Saint Boniface, MB

Madam Speaker, once again I want to answer my colleague simply. We are thinking about the welfare and safety of Canadians in the future, as well as providing a tool so that we can look to the past and use the information so that subsequent offences cannot be committed.

In saying that, the member speaks about putting people in a custody situation and how wrong that seems. I will tell the member what is wrong. What is wrong is when terrorists come into countries and commit acts of violence against people that end up breaking the rules of law, and the hearts and hopes of the people of those countries. That is what is wrong. If we do not have measures like this in place, we cannot prevent those acts from occurring. We cannot prevent those situations from breaking the laws that exist.

When people testify, for example, in a hearing, the member says that they should not have to testify against themselves. That is why we have put in the derivative use immunity. That is why we say that no information that comes from these hearings will be allowed to be used in other judicial proceedings.

I have the utmost confidence in the judiciary and police officers who will be using this tool, so I urge all members to please vote with us on this bill.

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September 20th, 2010 / 4 p.m.
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Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

Madam Speaker, thank you for giving me the floor.

I am pleased to be participating in this debate on Bill C-17, especially because I was a member of the Liberal government on 9/11. I was a member of the committee that studied the bill introduced in the House of Commons by the Liberal government at the time, a bill that specifically included these two clauses, the two provisions that the Conservative government would like to re-introduce.

I would say to all those listening at present that most members at the time were very concerned by the drastic measures affecting people's basic rights. It was not partisanship. In fact it was a concern for many members of the government as well as some Bloc and NDP members.

In response to these concerns, the government of the day brought forward what is known as a sunset clause to ensure that the House would retain responsibility and monitor the government bill to prevent any abuse.

Under this provision, a review was to be conducted after five years and the two provisions were to expire.

That sunset clause came into effect under the current government. The Senate actually carried out a major study in 2007.

I listened with quite a bit of care to the member of the Conservative Party who spoke just previous to me where she talked about how the government is very concerned with ensuring the safety and protection of Canadians and why it is so essential that these two provision be brought back to life. I find it interesting that these provisions died several years ago under the current government. The government has brought the legislation to bring them back to life three times, has moved first reading in the House, and then has let the bill sit on the order paper for months and months.

In one case, the bill finally died on the order paper because the Prime Minister, in 2008, in violation of his own fixed election act, went to the Governor General and asked the Governor General to table the election writ and in so doing knew full well that this bill, that was going to revive these two provisions that this hon. colleague of the Conservatives who just spoke talked about how it is so essential, so important, was going to die on the order paper, knew as well that it had been sitting on the order paper waiting for the government to move second reading so that debate could actually begin. The government did not move second reading.

Then, after the 2008 election, what happened? The government came back with the identical bill, moved first reading, it went on to the order paper, and then it just sat there.

Then, on the eve of December 2009 and January 2010, the Prime Minister, knowing full well that this bill, its previous incarnation which was now this second incarnation under a Conservative government, was sitting on the order paper, waiting for him to give the order to one of his ministers to move second reading so that debate, like the debate we are having today, could begin, because it was in the government's hands under the rules. Canadians have to understand that. It is up to the government to move second reading of its own bills. No other party can do that. No other member of Parliament can do that. Only the government can move second reading of its own bills and allow the debate to begin.

The Prime Minister, said this is so important, to use the words of the member from Manitoba, that we absolutely need these two provisions to be brought back to life. Law enforcement, anecdotally from what I hear from the member from Manitoba because she did not cite any studies, have said that, “Some members of law enforcement have told me that we are going to need these provisions at some time in the future. Even though we have not used them in the last nine years, at some time in the future we will need them and so, it is urgent that we revive these two provisions, bring them back to life and it has to be done now”.

The Prime Minister prorogued the House. He put a padlock on Parliament. He shut it down. And he did it knowing full well that he killed every single one of his government's bills, the bills, especially the law and order ones, that the current government for the last four years has been beating its chest that the Conservatives are the only ones who care about the protection of Canadians, they are the only ones who care about victims of crime and victims of terrorism, and yet, the Prime Minister and his government killed the bill.

Then when we came back from prorogation, all of the parties agreed, including the official opposition, the Liberal Party of Canada, with the government that we would forgo certain time off that had been built into the parliamentary schedule, that we would work those weeks instead, in hopes that the government was going to put forward the bills that it found to be a priority.

The government did not move second reading of this bill. It took the government three months, and there is not a word in this bill that is different from what was in its predecessor and in the predecessor before that. All the government had to do was tell legislative services to reprint the bill. A new number would have been assigned to it. The minister would have given notice to the order people and would have risen during the segment of the day the procedures allow for and moved first reading of the bill.

I am not putting into doubt that member's good faith, but I find it a bit rich to listen to her talk about how her government is concerned about victims of terrorism, that the government is concerned about victims of crime here in Canada, and that the government is the only government that is really for law and order and for ensuring that the proper laws are in place. That is a government, going on to its fifth year now, that has played games with Canadian lives. It has used the issue of law and order to try to gain some kind of partisanship advantage.

The report of the Senate, which is dated February 2007, has a series of recommendations. The Conservative government has not implemented any of the ones I am going to read out. The chair was the hon. David P. Smith. The deputy chair was the hon. Pierre Claude Nolin, a Conservative senator. This report of the Special Senate Committee on the Anti-terrorism Act is not a partisan report. Let me just give two recommendations.

Recommendation number 4 talks about racial profiling. It recommends:

That, in addition to implementing clear policies against racial profiling, all government departments and agencies involved in matters of national security and anti-terrorism engage in sufficient monitoring, enforcement and training to ensure that racial profiling does not occur, the cultural practices of Canada’s diverse communities are understood, and relations with communities are improved generally.

That is a recommendation from February 2007, almost three years ago, and the Conservative government has done nothing about it. Yet it says that it is interested in Canadians' protection.

Let us look at recommendation number 2, which states: “That the government legislate a single definition of terrorism for federal purposes”. It has been two and a half years since the Special Senate Committee on the Anti-terrorism Act made that recommendation, yet the Conservative government and the present Prime Minister have not acted on it.

I find it very rich to hear the Conservatives now arguing that it is a pressing need to have these two anti-terrorism provisions on investigative hearings and preventative detention revived, that the bill has to be re-enacted, and that it is essential, because one day in the future we might need it. They have produced no empirical evidence. They have produced no studies.

A colleague from the NDP, I believe, made the point that the provisions of the Criminal Code used for every single individual charged with terrorism in Canada, homegrown terrorism, as some people refer to it, were not the provisions under the Anti-terrorism Act.

The Criminal Code and the regular provisions we had, even before 9/11, were sufficient to allow our law enforcement and our prosecutorial people to prosecute successfully. All I am asking is: would the government please do its job? If the government sincerely believes that these two provisions are needed, would it please make the case, based not on anecdotal reports but on actual studies that have been done, on empirical studies, on evidence-based studies, and on actual fact?

Any one of us sitting here can come up with anecdotes. That is not governing. That is not a competent government. A competent government bases its policies—and policy legislation is government policy—on fact, on empirical evidence, and on scientific evidence, not on anecdote. It does not do it by saying, “It is my opinion, and therefore that goes, and that is good enough, because it is my opinion,” or ”It is my opinion, on which I have done absolutely no research and have nothing to base it on except gut feeling and perhaps emotion”. That is supposedly a basis from which to govern and enact new legislation and policy. It is not. No responsible government does that. A responsible government actually gathers the facts, goes and talks to people who have made it their life's work to know all the ins and outs of the issue and have the expertise to provide solid, sound advice that is based on fact.

The government today, from the debate I have heard, has not done that. I am asking the government to go and do its job, the job it was elected to do, which is to be a responsible government, a competent government. When the government comes with legislation, come with the facts, come with the reports, the empirical data, the scientific evidence, and the actual facts to back it up. Do not base it on some whim or on gaining partisan advantage and maybe destroying one politician and getting a gain for another politician and gaining a few more ridings and a few more seats. None of it is based on fact. None of it is based on competency. It is based on whipping up a motion.

This legislation is not important to the government. If it were important, the government would have acted on it four years ago. The government sat on its hands. The only reason the government is bringing this legislation forward now is because it is hoping to change the channel. It has had a disastrous 2010 to date.

The Prime Minister padlocked Parliament and raised the ire of hundreds of thousands of Canadians, some of whom actually signed petitions, some of whom participated in rallies to denounce the government. It then decided that it should build a fake lake in Toronto and waste $1 billion on photo ops for the Minister of Industry and for the Prime Minister. Then this summer, it decided that it was going to do away with the long-form census on the basis that state repression can never be justified and that it will use a voluntary survey, which will provide data that is just as good. The experts, including business experts, have said first, that this is not true. Second, if that argument has a solid basis, why is the government allowing the short-form census to remain mandatory? How is that not state repression under the government's thinking but the long-form is?

The government did not consult anyone. It went behind the scenes, in secret, and did exactly the same thing the Prime Minister did with prorogation. He did it when he thought no one was listening and no one was paying attention.

I am going to come back to the issue of Bill C-17.

I ask the government to please make its case that reviving these two provisions is needed. Make the case based on fact, based on actual studies that have been done, not based on rhetoric, not based on ideology, but on actual fact. Be a competent government and show that you have done your homework, because to date that has not been done. I have not heard any Conservative show that he or she has at least done the homework the government has not done. I have not heard one Conservative speaking on the bill provide any facts, any scientific facts, any studies that have been done, or any empirical data. None. All I have heard is anecdote. That will not suffice. A party cannot govern on anecdote. At least it cannot govern competently, because sooner or later that incompetence will catch up with it. We saw that with Brian Mulroney.

I beg the government to do its job, give the House of Commons and Canadians the respect they are due, and provide the actual evidence showing why these two provisions found in Bill C-17 should be enacted. I would like the government also to explain why it has waited four years. Why has the government allowed the bill to die several times on the order paper because the government did not bother to move it to second reading. Why?

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September 20th, 2010 / 4:15 p.m.
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NDP

Linda Duncan NDP Edmonton Strathcona, AB

Madam Speaker, I had the privilege this past week of participating with one of my colleagues in a seminar sponsored by King's University College in Edmonton on fear-based government policy. The hon. member is making a very valid point. We need to make sure, as elected members of Parliament in a democratic nation, that we are making decisions on critical law and policy based on evidence and not on fear.

We have the responsibility, as elected officials, to make sure that we govern in a cogent, informed way. I would ask the member how members of her party can bring themselves to consider supporting the bill? It languished for four years. The government with its fighting-hard-against-crime agenda has simply not given prominence to the bill. There have been a number of actions brought against alleged terrorists in this country, and at no time was this law utilized. Where is the evidence? Where is the sound rationale for bringing this law forward?

I am concerned that surely, in a country that is run by the rule of law and democratic foundations, would the elected officials ever support a law that would take away the fundamental right to remain silent, the right to not self-incriminate, the right to know the charges, and the right not to be interrogated or imprisoned without knowing the charges.

I recognize that the previous Liberal government supported this law. It was at a time of fear of what was going on in the world. How then, given the member's very cogent argument, can she bring herself or her party to support this law?

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September 20th, 2010 / 4:20 p.m.
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Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

Madam Speaker, I would like to point out that the legislation and these provisions were actually enacted, as I stated quite openly and freely, by a Liberal government back in 2001. I was one of the members of Parliament at the time who sat on the committee reviewing the Anti-terrorism Act and therefore had a certain amount of impact.

I take note of the point that the member made, which I as well attempted to make, and that is a responsible and competent government does not govern or enact policies out of fear. I believe she would understand that there was a great deal of fear back in 2001, but calm heads did prevail and made the point that these were draconian measures, that we were not satisfied that the case had been made that they would ultimately be required, that our existing Criminal Code and laws would not be sufficient.

As a result of that, the Liberal government listened. It listened to the experts, to the members of the House of Commons, who had these concerns and preoccupations, and agreed to put a sunset clause in the bill. The sunset clause was over five years later. If the government did not re-enact it, the provisions automatically died, and they died under the Conservative government. That government said that it was important to revive these provisions, knowing full well they had never been used. However, it has never provided, as my colleague said, any cogent evidence to support its claim that these provisions are absolutely needed.

The member asks how my party can support this. My party is a responsible party. We have heard experts in the past, some who have said the provisions may be needed, others who have said they may not be needed. We would like the debate to continue on this. The only way for it to continue and to hear from all stakeholders, including individuals who may have been targeted by the existing and still active provisions of the anti-terrorism bill, is to come before the House of Commons to speak of their experiences and give us the evidence either in favour of or opposed to so each individual elected to the House can make a cogent choice.

I have no shame in saying that my party has decided it will allow this to go to committee. It does not mean that we are in support of the provisions being re-enacted. We want to hear what the stakeholders and experts have to say because the government certainly has not made a case for it yet.

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September 20th, 2010 / 4:20 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, my question was really for the member for Saint Boniface who spoke previously.

There is some concern that the provisions of the bill could be used to target individuals engaged in protest or dissent. I think back to the days of the Vietnam War demonstrations and the Amchitka blast when the Americans exploded a nuclear bomb on the islands off Alaska. I was involved in that back in 1971.

If there are issues like that, how do we know the provisions of the bill will not impact on those situations? Could the member could respond to that question.

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September 20th, 2010 / 4:25 p.m.
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Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

Madam Speaker, no, I cannot and that is another good reason why the bill should be sent to committee so the experts who have that information and knowledge, who can properly respond to his questions and do so on the basis of scientific evidence and empirical data.

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September 20th, 2010 / 4:25 p.m.
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Liberal

Siobhan Coady Liberal St. John's South—Mount Pearl, NL

Madam Speaker, I appreciate having the opportunity to ask my hon. colleague a question.

My colleague in her very eloquent dissertation spoke about how the bill had been before the House, that it had been four years in the making, that it was a Liberal bill that had been changed over time and that the legislation had been allowed to lapse then reintroduced and kept for the last four years.

I was interested to hear her talk about how the provisions of Bill C-17 had not really been fully and factually accounted for and that we were waiting for those facts.

Does the hon. member think that it is complete incompetence by the government in not bringing forward the bill in the last four years and not giving those facts, or what would be the rationale for not having brought forward this information at an earlier point so we could have a good and open discussion and send it to committee so we could hear from stakeholders?

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September 20th, 2010 / 4:25 p.m.
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Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

Madam Speaker, all I can say is it has become a recurring pattern, the modus operandi of the current government.

I have seen the government in action for the past four years, now going into five years. It is a government that seems to be governing based on gut feeling, based on hyper-partisanship, based on whether or not it can actually divide a people and in so doing go get a few votes here, or get some financial support and donation there. It does not appear to be a government that governs based on actual fact and scientific studies.

One only has to look at its decision with regard to the census. One only has to look at how it is now muzzling our scientists on the environment and climate change. One only has to look at how it is a government that has either fired or not renewed any independent officer of the government or of Parliament who it disagrees with, that it does not like what it hears.

It is unfortunate, and why? It is unfortunate for Canadians because Canadians deserve better. Canadians deserve a government that is competent, a government that actually governs and develops policies based on the best advice and the best knowledge of facts, science and evidence at the time, not based on hyper-partisanship, or on rhetoric or on ideology.

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September 20th, 2010 / 4:25 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

Before resuming debate, it is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Acadie—Bathurst, Official Languages; the hon. member for Dartmouth—Cole Harbour, Poverty; the hon. member for London—Fanshawe, Status of Women.

Resuming debate. The hon. Parliamentary Secretary to the Minister of Justice.

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September 20th, 2010 / 4:25 p.m.
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Charlesbourg—Haute-Saint-Charles Québec

Conservative

Daniel Petit ConservativeParliamentary Secretary to the Minister of Justice

Madam Speaker, I rise to take part in today's debate on Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions). I am pleased to take part in the debate at second reading of Bill C-17, which would restore the Criminal Code provisions pertaining to investigative hearings and recognizance with conditions that were created by the Anti-terrorism Act of 2001.

Unfortunately, these important anti-terrorism tools ceased to be in effect in March 2007 under a sunset clause. The investigative hearing provisions gave judges the power, on application by a peace officer and with prior authorization of the Attorney General, to compel an individual to appear before the court to answer questions about past or future terrorism offences.

The provision on recognizance with conditions gave judges the power to impose reasonable conditions to prevent terrorist acts from being carried out if certain criteria were met.

In the aftermath of September 11, Canada was certainly not the only democratic country in the world to have legislated new powers in order to prevent terrorist acts.

In creating the Anti-terrorism Act in 2001, Parliament duly took into account the Canadian Charter of Rights and Freedoms. That is why, compared to those of other democratic countries, our provisions on investigative hearings and recognizance with conditions stand out by guaranteeing the protection of basic human rights. Those same guarantees can also be found in the provisions presented here today, and still others have been added.

In comparing the measures taken in Canada and those taken by other parliamentary democracies, it is quite clear that Canada took a moderate approach and fully considered basic rights and freedoms, values that are at the very core of our Canadian identity.

First, regarding the investigative hearing provisions set out in the bill, let us begin by looking at what some other countries, specifically the United Kingdom, the United States and Australia, have done in that regard.

In the United Kingdom, the closest thing to the investigative power may be the Terrorism Act 2006. That act is based on previous legislation on organized crime and enables an investigative authority, such as the director of public prosecutions, to require a person to provide documents, answer questions and provide information relevant to the investigation of a terrorism offence. Generally speaking, no judicial authorization is necessary, which is what makes that legislation very different from Bill C-17.

The United Kingdom has other legislation that goes further than investigation before a judge. The Terrorism Act 2000 was amended in 2001 to create the offence of refusal by a person to disclose to police, as soon as reasonably possible, information they know or believe to know that could be used to help prevent the perpetration of a terrorist act by another person. It applies if the person knows or if they have reasonable grounds to suspect that the police are investigating a case involving terrorism or are planning to do so. The proposed sentence is a maximum of five years in prison.

Bill C-17 does not include a similar power. I repeat; it does not include a similar power. According to a recent article, in Great Britain—we are familiar with the events—27 charges were laid for that offence between 2001 and 2007.

Under the United States' long-standing grand jury procedure, 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.

Australia has specific procedures similar to the Canadian investigative hearing. The Australian equivalent is covered in the Australian Security Intelligence Organisation Act.

This legislation allows the ASIO, after being authorized by the Attorney General, to ask an independent authority—a federal magistrate—to issue a warrant to question individuals for the purposes of a terrorism investigation. A warrant may also be issued in some cases to authorize the detention of a person for the purpose of questioning. A person may be detained for the purpose of questioning for up to a maximum of 168 hours. The questioning carried out under a questioning warrant or a questioning and detention warrant must be done in the presence of a prescribed authority, generally a retired judge, according to the terms set out by that authority.

The Australian law prevents the individual from contacting a lawyer of his choice in some cases, for example, when the prescribed authority is satisfied, on the basis of circumstances relating to that lawyer, that if the individual is permitted to contact the lawyer, a person involved in a terrorism offence may be alerted that the offence is being investigated.

Furthermore, if the person specified in the warrant, or his lawyer, directly or indirectly discloses operational information as a result of the issue of a warrant or the doing of anything authorized by the warrant, while a warrant is in force, or in the two years following the expiry of a warrant, this constitutes an offence punishable by a maximum of five years imprisonment. In such a case, strict liability applies to this offence.

As we can see, by proposing the investigative measures provided for in Bill C-17, Canada is not an odd man out among other democracies, a number of which are among our closest allies. However, it is important to note that by creating the legal obligation to disclose information that could help a terrorism investigation and making the failure to do so a criminal offence, the United Kingdom goes much further than Bill C-17.

Let us look at how the parts of the bill that deal with recognizance with conditions compare to the legislation passed by other countries, starting with the United Kingdom.

Pursuant to subsection 41(1) of the Terrorism Act 2000, a constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist. All that is needed is reasonable suspicion. The maximum period of pre-charge detention is 28 days. The British government has tried unsuccessfully to increase this to 42 days.

Furthermore, in 2005, the United Kingdom created a system of control orders that apply to citizens and non-citizens alike. There are two kinds of control orders: derogating and non-derogating control orders. The first are those that derogate from the European Convention on Human Rights, and the second are those that contain obligations that respect the convention.

Basically, the home secretary—I am still talking about the UK—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 activities and this measure is considered necessary in order to protect the public from terrorism.

The duration of the orders varies depending on the kind of control orders imposed by the court. Non-derogating control orders are enforced for a maximum of 12 months while derogating control orders are enforced for up to 6 months. They can be renewed under certain conditions. As of September 10, 2010—so just recently—there were nine control orders in effect, all concerning British citizens. None of the orders derogated from the convention.

This system of control orders has been very controversial. The House of Lords ruled that imposing a curfew of 18 hours a day violated the right to liberty guaranteed by the European Convention on Human Rights.

Another House of Lords later concluded that a person subject to a control order must be provided with sufficient information about the allegations against them to be able to give meaningful instructions to the special advocate concerning these allegations.

Although critics have questioned the validity of the control order system, Lord Carlile of Berriew, the independent reviewer of Britain's anti-terrorism legislation, concluded that this system is still valid. In his February 2010 report on control orders in the United Kingdom, Lord Carlile concluded that abandoning the control orders system would have a damaging effect on national security and that there is no better means of dealing with the serious and continuing risk posed by some individuals.

However, I would like to inform my hon. colleagues that the new coalition government—that is, the coalition government in England—is currently studying anti-terrorism measures. The study will focus on control orders as well as pre-charge detention of suspected terrorists, including reducing the maximum detention period of 28 days. The study findings are to be reported to Parliament this fall.

In addition, I would like to mention that the Counter-Terrorism Act 2008 contains a provision whereby someone convicted of a terrorism-related offence can be required, once out of prison, to periodically provide police with certain information such as their name, home address and any changes to this information. The person subject to this requirement can also be subject to a foreign travel restriction order, which limits their movements outside the United Kingdom in order to participate in another terrorist act.

I would like to add that Australia has also adopted a control order system. Upon request, a court can place obligations upon a person if, on the balance of probabilities, it is satisfied that the control order would substantially assist in preventing a terrorist attack, or that the subject provided training to or received training from a terrorist organization In general, a control order is valid for up to 12 months. We know that two control orders have been issued since the system was put in place. These orders are no longer valid.

Furthermore, the governments of Australia and its states authorize the preventive arrest of terrorist suspects. Under that system, the Australian federal police, in the case of an actual or imminent act of terrorism, may ask the judge to order the preventive arrest of a suspect for a maximum period of 48 hours. In Australia, states and territories allow for preventive detention for up to 14 days.

Therefore, how do these international measures compare with the proposals outlined in Bill C-17, the bill currently before the House? The provision for recognizance with conditions requires that there be reasonable grounds to believe or suspect. In addition, the intent of this provision is not to arrest people but to detain suspects in order to prevent a potential terrorist attack.

Similarly, although the provision provides for arrest without a warrant, it is very narrow in scope, as in an emergency.

In summary, it is fair to say that the measures of other countries are similar to and sometimes go further than those proposed by this bill. For example, an overview of the differences between Canada, the United Kingdom and Australia indicates that Canada, unlike the United Kingdom, does not have a maximum detention of 28 days prior to charges being laid. Unlike the United Kingdom and Australia, Canada does not have a system of restrictive measures. However, in contrast to the United Kingdom, Canada does not criminalize the failure to provide a peace officer with information pertinent to a terrorist offence.

Unlike Australia, we do not restrict the selection of lawyers for the investigation and unlike the United Kingdom, Canada does not impose the requirement to report or travel restrictions on persons found guilty of terrorist acts, as we saw previously.

I have attempted to prove that, like other democratic nations, Canada has recognized the need to provide for additional powers in order to investigate or prevent terrorism. It is a very unique crime that requires unprecedented solutions.

The honourable members should be reassured by the fact that the provisions of the bill include abundant guarantees and are narrow in scope when compared to measures adopted by other parliamentary democracies, such as the United Kingdom.

By re-establishing the powers provided for by Bill C-17, Canada can prove that it can play a leadership role and is taking steps to fight terrorism, all the while respecting human rights.

Consequently, I am asking for the speedy passage of this very useful bill to combat terrorism.

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September 20th, 2010 / 4:45 p.m.
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Bloc

Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC

Madam Speaker, it is my pleasure to speak on my party's behalf about Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

I must reiterate that the Bloc Québécois is opposed in principle to Bill C-17. The Bloc Québécois has what I feel is a responsible, logical process for analyzing such measures. Any measure that deals with terrorism must strike a balance between security and respect for basic rights. Therein lies the problem because the dichotomy makes this bill ambiguous. We have to ask ourselves this question. Yes, it goes without saying that we must keep people safe. We were reminded of that just last week during memorial ceremonies at Ground Zero in New York. Although it happened nine years ago, we cannot forget the terrorist attacks or those who lost their lives.

People deserve reassurance. We have to keep people safe. However, a wrong-headed government or one acting in bad faith could use the security imperative as an excuse to investigate, conduct searches or imprison any person who seems suspicious based on very subjective criteria. That is why we have charters to guarantee respect for basic rights.

The Bloc Québécois recognizes that both imperatives have to be respected and taken into account. We know what the Conservatives have shown us since coming to power and even before then, when they were in the opposition. I have been here since 1993, and we have seen their reform agenda. Let us not forget that the Conservative Party used to be the Reform Party. The Conservatives do not like to be reminded of that fact. Then they became the Canadian Alliance, and now they are the Conservative Party. Let us not forget, however, that the old reform base is still very much alive for many Conservative members. Still, I know that some of them have a more progressive approach. I would not want to generalize and be accused of demagoguery. We have to recognize the progressive elements in the party, and during face-to-face discussions, we can see that some of the party members do not share the party's ultraconservative views.

With this in mind, the Bloc Québécois became very involved in the review process of the Anti-terrorism Act and its operation, a review which is provided for in the act itself. As the previous speaker mentioned, under the sunset clauses, we must now proceed with this review again.

The Bloc Québécois has taken time to examine the issue thoroughly. I said earlier that the Bloc Québécois is opposed to this bill in principle. That idea did not just come to us out of nowhere. Opposing this principle was not a decision that just popped up like a jack-in-the-box.

From December 2004 to March 2007, the Bloc Québécois listened to witnesses, read submissions and interviewed experts, community representatives and law enforcement officials. We conducted a comprehensive analysis with those concerned by the application of this legislation. It is all well and fine to adopt an inapplicable or utopian law, but we have to realize that law enforcement representatives, especially those working on cases involving terrorism, have to enforce that law and apply it day by day.

During the Subcommittee on the Review of the Anti-terrorism Act's specific study of two provisions in Bill C-17, the Bloc Québécois made its position on investigative hearings and recognizance with conditions clear.

The Bloc Québécois felt that the investigative process needed to be better defined. We still feel that way today. In our opinion, it is clear that this exceptional measure should be used only in specific cases in which it is necessary to prevent activities where there is imminent peril of serious damage, and not in the case of misdeeds already committed. The nuance is important.

However, we were strongly opposed to clause 83.3, which deals with recognizance with conditions. Not only do we feel that this measure is of little, if any, use in the fight against terrorism but, more importantly, there is also a very real danger of its being used against honest citizens.

The Bloc Québécois finds that a terrorist activity deemed dangerous can be disrupted just as effectively, and in fact more effectively, by the regular application of the Criminal Code, without the harmful consequences that a preventive arrest can trigger.

Therefore, we recommended abolishing this approach, and we won our point on February 27, 2007. Today, our position has not changed. On the one hand, the investigative process should not be reinstated unless major changes are made to it, which is not the case with Bill C-17. The government would have had the opportunity to do so with the introduction of this bill.

On the other hand, preventive arrests have no place in the Canadian justice system, given their possible consequences and the fact that other provisions which are already in place are just as effective.

Of course, in the time I am allotted, I could speak more about the technicalities, but I would like to close by focusing on the fact that law enforcement officers are telling us that they can still use other provisions of the Criminal Code to arrest someone who is about to commit a criminal offence.

A criminal offence would also include a terrorist act. I think our police officers are competent. They are professionals who keep the peace and protect the safety of our constituents. There is no doubt about that. The Conservative government does not have a monopoly on discipline and law and order.

The Conservative Party is in no position to lecture anyone. Those best suited to enforce the Criminal Code are our peace officers and various levels of police, be they municipal other otherwise. In Quebec, we have the Sûreté du Québec, which is the envy of many police forces across the country and around the world.

The structure of the Sûreté du Québec and the professionalism of its members are often envied by other countries. And foreign delegations often come to study the Quebec police system, which is a credit to us, I believe.

I mentioned earlier that police can use the Criminal Code to make an arrest. For example, paragraph 495(1)(a) of the Criminal Code states the following:

A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

The officer has the discretionary authority and does not need to wait for a criminal offence to have been committed before intervening. Criminals have even gone to court saying that it was unfair that when they were preparing to rob a bank that the police waited on the corner for them to leave their car, about to rob the bank, before they intervened. That argument has actually been used in court, which is ludicrous. And unfortunately, there are lawyers that have defended such cases.

In other words, just because an officer is hiding does not mean that he cannot intervene. Rather, the officer plays a preventive role. He does not need to wait for something bad to happen. He is supposed to chase thieves, but he must also prevent criminal acts from happening. And this is why we feel that Bill C-17 is completely useless. We do not need it.

This bill, if adopted as is, could be used to label an individual as a terrorist based on flimsy evidence. In this regard, I spoke earlier of the erosion of fundamental rights and freedoms. We could compare this situation to that of Maher Arar upon his return from Syria, before he was exonerated by Justice O'Connor. Maher Arar's case is the most blatant example of a person who was judged according to completely subjective criteria, requiring Justice O'Connor's inquiry to exonerate him.

If this new, temporary provision of the Criminal Code had been used, a judicial decision could have imposed conditions based on the fear of terrorist activities.

That is what I wanted to say to my colleagues in the House and to the people watching us on television. I stand by what I said: the Bloc Québécois is opposed to the principles of the bill. I am well aware that the Conservatives react whenever we oppose one of their bills to amend the justice system and undermine the fundamental rights of citizens.

I will just make my prediction now, not because I have looked into a crystal ball but because, as usual, we know how the Conservatives operate. If the opposition does not like this bill and is opposed to the bill, they will say that the Bloc Québécois supports terrorists. I am saying it and we are about to hear it. Madam Speaker, just sit there until the end of the debate, read the papers tomorrow, and you will see the headline, the Bloc Québécois supports terrorists. It is like the time we were told that the Bloc Québécois supports pedophiles. Conservative demagogues said those things. Most of us are parents; some of us are grandparents. They said that the Bloc Québécois protects pedophiles rather than children.

This summer, I promised myself that I would not get angry. However, I am getting angry again because I am thinking about that. Yesterday, I spent the day with my two and a half year old grandson. Being told that we protect pedophiles is no laughing matter. That is Conservative-style demagoguery.

I am eager for an election so we can unmask the Conservative demagogues opposite.

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

Jean Crowder NDP Nanaimo—Cowichan, BC

Madam Speaker, I want to thank the member for his eloquent defence of justice in this country. He has raised a couple of troubling aspects of the bill.

This piece of legislation points to the continuing erosion of democratic rights and civil liberty rights under the current Conservative government. We have seen the firing of any number of heads of public agencies. We have seen people, who do not agree with the Conservative government, such as the recent Veterans Affairs ombudsman not having his contract renewed, and on and on.

The member mentioned Maher Arar and of course that was an absolute travesty of justice when the government did not step up to protect his rights. The current legislation shows a lack of balance between security and fundamental rights. In fact, this piece of legislation would allow for imprisonment of up to 12 months or for the imposition of strict recognizance conditions on individuals who have not been charged with any crime. Could the member comment on this continuing erosion which Canadians consider to be pretty fundamental to who we are as Canadians in terms of civil liberties and our values of justice?

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

Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC

Madam Speaker, I want to thank my colleague from the NDP for her question. It is clear that Republicans are gurus to our colleagues across the way, that the Conservatives draw their inspiration from the George W. Bush years. The approach in those days was repressive rather than preventive. That is the difference. This was never more apparent than during the G20 summit, when over a thousand arrests were made in Toronto this summer. More than 1,000 people were denied their individual freedoms. These people only wanted to demonstrate, not necessarily to use violence, but to express their discontent with the influential people of this world who meet to make decisions on our behalf.

These people only wanted to demonstrate. Some 1,000 people were sent to jail when the City of Toronto adopted a bylaw that made a mockery of all individual freedoms.

The Conservatives' approach and their bills do not make sense and this permeates through other levels. The Toronto city council adopted bylaws that completely tore up certain charters, swept aside the right to demonstrate and the right to oppose decisions that might be made during the G20. More than 1,000 people were unjustly put in jail. I remind my colleague that most of those people were Quebeckers.

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September 20th, 2010 / 5:05 p.m.
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Conservative

Ed Fast Conservative Abbotsford, BC

Madam Speaker, I have listened all afternoon to these kinds of tirades about the safety of this country. As we know, Canada faces the very real threat of terrorism, as does the rest of the world. Yet, I hear a Bloc member saying that this legislation, which is intended to renew previous legislation passed by a previous Liberal government, is useless. I have sat in this House for four and a half years. I have listened to that member. I have listened to his colleagues in the Bloc. Not once have they proposed any legislation that would make this country safer when it comes to terrorism.

I challenge that Bloc member to go to his constituents, stand up at a public meeting and say, “I'm not prepared to do anything to protect you against terrorists”. It is a shame. I challenge that member to defend that shameful position in this House again.

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September 20th, 2010 / 5:05 p.m.
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Bloc

Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC

Madam Speaker, you can see the Conservatives' attitude. Earlier, I told you that I did not need a crystal ball to know that they would react this way to any opposition.

The member has challenged me. I will give him one example. Perhaps the member should have paid attention to politics before getting elected. I was elected in 1994. In 1995, when the Liberals were in power, the Bloc Québécois was directly responsible for amending the Criminal Code to enact anti-gang legislation. The Bloc Québécois did so in response to the murder of young Daniel Desrochers in the riding represented by my former colleague from Hochelaga—Maisonneuve, Réal Ménard, who is now mayor of the borough of Mercier-Hochelaga-Maisonneuve. All that young Daniel Desrochers wanted was the right to ride his bike safely. He happened to be near a Jeep 4x4 during the biker wars—

Combating Terrorism ActGovernment Orders

September 20th, 2010 / 5:05 p.m.
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Some hon. members

Oh, oh!

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September 20th, 2010 / 5:05 p.m.
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Bloc

Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC

Madam Speaker, he should let me answer. Actually, that does not bother me because I will speak to those intelligent enough to listen. He is interfering with my concentration.

I would like to tell him about Daniel Desrochers, an eight-year-old martyr. He was riding his bike on the sidewalk on a street in Hochelaga—Maisonneuve. While he was passing a Jeep 4x4 that belonged to one of two biker gangs, the vehicle exploded. Young Daniel Desrochers was hit in the head with a piece of metal and died.

The Bloc Québécois' justice critic, Réal Ménard, waged a heroic battle, and the Bloc Québécois succeeded in passing an anti-gang law. That was thanks to the Bloc.

My colleague, who has been in the House for just four years, should do what the Speaker of the House does and reread Hansard because Parliament was around long before he got here. He did not invent Parliament.

That is just one example because I do not have time for more.

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September 20th, 2010 / 5:10 p.m.
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Bloc

Raynald Blais Bloc Gaspésie—Îles-de-la-Madeleine, QC

Madam Speaker, I wonder if the hon. member for Montmorency—Charlevoix—Haute-Côte-Nord could talk about another example, for instance, the drugs found growing in fields. In the past, criminal groups were heavily involved in drug trafficking. One political party that has been working very hard in the fight against crime is the Bloc Québécois.

There are other examples like that one. Most of the time—people often forget this, as I think the member can attest—in about 80% of cases, the Bloc Québécois supports the bills introduced by the government.

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September 20th, 2010 / 5:10 p.m.
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Bloc

Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC

Madam Speaker, I thank my hon. colleague from Gaspésie—Îles-de-la-Madeleine for reminding us about the marijuana growers who literally terrorized our honest corn producers, especially in Montérégie, in the area of Saint-Hyacinthe, Drummondville, Chambly, and so on. Our honest producers were truly being terrorized. They were being threatened and traps were set in their fields. The Bloc Québécois worked hard on that issue, especially our colleague Yvan Loubier, who was the member for Saint-Hyacinthe—Bagot.

Another example comes to mind, that is, the reverse onus in the case of individuals living off the proceeds of crime, when proceeds of crime are found in their homes. That is another file that the Bloc Québécois pushed ahead.

I hope the Conservative demagogues will not try to skirt the real issue here. As my colleague from Gaspésie said at the end of his speech, any time the Conservatives have introduced a bill that was sensible, reasonable, realistic and achievable—which is a very rare combination—the Bloc Québécois has supported it.

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September 20th, 2010 / 5:10 p.m.
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Mississauga—Erindale Ontario

Conservative

Bob Dechert ConservativeParliamentary Secretary to the Minister of Justice

Madam Speaker, I am pleased to take part in the second reading debate in relation to Bill C-17.

It is perhaps timely that this debate begins only days after the only man convicted in the Air India bombing, Inderjit Singh Reyat, was found guilty of committing perjury during the 2003 trial of Ajaib Singh Bagri and Ripudaman Singh Malik, who were ultimately acquitted of criminal charges arising from the Air India bombing. It is a sober reminder that terrorism has caused the death of hundreds of Canadians. Let us not forget the tragic total resulting from that mass murder, 329 passengers and crew, when Air India flight 182 was blown up in mid-flight, and two baggage handlers were killed at Tokyo's Narita Airport.

The hon. members of this House may recall that in November 2005, the Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness heard testimony from Maureen Basnicki, whose husband died at the World Trade Centre on 9/11, and from Mr. Bal Gupta, chair of the Air India Victims Families' Association. Their testimony was given as part of the parliamentary review of the Anti-terrorism Act. In his testimony, Mr. Gupta read into the record the following recommendations:

The Anti-terrorism Act should not be repealed or softened, and its provisions should be strengthened by closing loopholes...There will be more legal tools to compel witnesses to testify in terrorism-related cases.

At that time, the two powers that Bill C-17 proposes to reinstate, the investigative hearing and the recognizance with conditions, were part of the Anti-terrorism Act. They had yet to sunset. Later, according to newspaper reports, Mr. Gupta supported extending the life of these tools when Parliament was debating whether to extend them or to have them sunset in early 2007. As members know, they did sunset in 2007.

The Air India tragedy and the events of 9/11 remind us that when enacting anti-terrorism legislation for combating terrorism in a manner that has due regard for fundamental human rights, we must consider not only the rights and freedoms of those that may be accused of terrorism, but also the tragic human cost to terrorism itself, not only the deaths of or harm done to the victims, but also the harm done to their families.

I recently came across a study written by Professor Craig Forcese, which included the following quote from Mr. Justice Laws of the English Court of Appeal. It eloquently describes the difficult task facing legislators in this area. It is a long quote, but an important one, so I hope members will please bear with me. He wrote:

This grave and present threat [of terrorism] cannot be neutralised by the processes of investigation and trial pursuant to the general criminal law. The reach of those processes is marked by what can be proved beyond reasonable doubt...In these circumstances the state faces a dilemma. If it limits the means by which the citizens are protected against the threat of terrorist outrage to the ordinary measures of the criminal law, it leaves a yawning gap. It exposes its people to the possibility of indiscriminate murder committed by extremists who for want of evidence could not be brought to book in the criminal courts. But if it fills the gap by confining them without trial it affronts “the most fundamental and probably the oldest, most hardly won and the most universally recognised of human rights”: freedom from executive detention.

In light of these concerns, it is appropriate that any proposal to reinstate the powers of the investigative hearing and the recognizance with conditions should be subjected to rigorous review. It is right and proper that this bill should now be reviewed by this Parliament. In doing so, however, I would remind hon. members that this bill does not appear out of the blue. It is a culmination of efforts by previous Parliaments to seek to improve this legislation, including the parliamentary committees that reviewed the Anti-terrorism Act.

Bill C-17 was carefully drafted to respond to many of the recommendations made by both the Senate and the House of Commons committees that reviewed the Anti-terrorism Act. Not all recommendations were accepted but many were. In addition, a previous version of the Bill, Bill S-3, was reviewed by the Senate special committee on anti-terrorism, and as a result, further amendments were made. These are all incorporated into Bill C-17.

Further, I would add, there has also been a judicial review by the highest court of the land, the Supreme Court of Canada, of one of the two key tools found in this bill, the investigative hearing.

I wish to address much of the remainder of this speech to a number of criticisms made in the investigative hearing during that legal challenge and the court's response to them. Hopefully, this will give all hon. members a better understanding of the complex issues raised by this tool and how it was fashioned in a manner to protect fundamental human rights.

Perhaps the major argument against the investigative hearing was that it denied a person the right to silence and/or the right of self-incrimination. However, the court rejected this argument. After examining the robust protection against self-incrimination found in the then existing legislation, the court noted:

--the procedural protections available to the appellant in relation to the judicial investigative hearing are equal to and, in the case of derivative use immunity, greater than the protections afforded to witnesses compelled to testify in other proceedings, such as criminal trials, preliminary inquiries or commission hearings.

As well, in order to prevent possible future abuse, the court expanded the use and derivative use immunity protections beyond the scope of criminal proceedings to include deportation and extradition proceedings.

Another major argument was that the investigative hearing compromised the independence of the judiciary because it co-opted the judiciary into performing executive investigatory functions in place of its usual adjudicative role. However, the majority of the Supreme Court rejected this claim, arguing that:

The function of the judge in a judicial investigative hearing is not to act as “an agent of the state”, but rather, to protect the integrity of the investigation and, in particular, the interests of the named person vis-à-vis the state.

Another argument made was that the independence of Crown counsel was compromised because the Crown counsel's role became impermissibly intertwined with the police task of investigation. Again, the Supreme Court rejected this argument, pointing out that, in part:

--one may assume that by bringing Crown counsel into the judicial investigative hearing process, the legislature intended that the Crown would conduct itself according to its proper role as an officer of the court and its duty of impartiality in the public interest...The mere fact of their involvement in the investigation need not compromise Crown counsel’s objectivity, as the critical component is their own “necessary vigilance”--

Another argument was that the investigative hearing in the court challenge was that the judicial investigative hearing in the circumstances of this case served the improper purpose of obtaining pretrial discovery for the Air India trial. However, the majority of the Supreme Court of Canada rejected this argument, agreeing with the trial judge that its purpose had been predominantly investigative.

As well, in a companion case issued the same day, the Supreme Court held that the open court principle applies to an investigative hearing. It held that while the application for an investigative hearing should not be held in public, akin to the application for a search warrant where it comes to the investigative hearing itself, there should be a presumption of openness.

In reaching this conclusion, the court adapted the Dagenais/Mentuck test which had been developed in case law in relation to publication bans to the investigative hearing. The court acknowledged, however, that there could be circumstances where the presumption could be rebutted. It stated:

It may very well be that by necessity large parts of judicial investigative hearings will be held in secret. It may also very well be that the very existence of these hearings will at times have to be kept secret. It is too early to determine, in reality, how many hearings will be resorted to and what form they will take. This is an entirely novel procedure, and this is the first case — to our knowledge — in which it has been used.

To summarize, Bill C-17 builds upon the original provisions governing the investigative hearing. It builds upon them by adding additional safeguards, but the foundation remains the same. This foundation was examined by the Supreme Court of Canada in 2004 and was upheld to be constitutional. In our future deliberations about this bill, we should not forget that the investigative hearing has already passed the test of compliance with the Canadian Charter of Rights and Freedoms.

Let me now proceed to the recognizance with conditions provision. Unlike the investigative hearing provision, the recognizance with conditions power created in 2001 by the Anti-terrorism Act was never tested in the courts. However, it is based on the peace bond provisions found in other parts of the Criminal Code, albeit with modifications so that it can be used to disrupt nascent terrorist activity.

It is particularly with regard to the recognizance with conditions that the quotation from Lord Justice Laws that I used at the beginning of my speech is apt.

This is because it can be used in circumstances where the information obtained by the police gives rise to a reasonable belief that a terrorist activity will be committed, where there is insufficient information that could allow the police to arrest the person for involvement in a terrorism offence, but there are reasonable grounds to suspect that it is necessary to impose a recognizance with conditions on the person to prevent the carrying out of the terrorist activity.

Some have argued that this is too great an extension of the criminal law power. Let regular police powers apply, they argue, in which case they mean that the police already have the power to arrest someone who they believe on reasonable grounds is about to commit an indictable offence. However, the difficulty with this proposal is that it would severely restrict the ability of the state to prevent terrorism because it requires an “about to commit test” which reports the concept of imminent harm.

In contrast, the recognizance with conditions provisions found in Bill C-17 increases the ability of the state to take preventative measures to protect persons from terrorism, but it does so, in my mind, in a way that is consistent with the rule of law. Hence the need for a two-pronged test to be satisfied: a reasonable grounds to belief test, and a reasonable grounds to suspect test. Reasonable suspicion alone is not enough.

Moreover, I also point out that important accountability mechanisms are built into the provisions of this bill. Some of these are carried forward from the original legislation. First and foremost, the investigative hearing and the recognizance with conditions would be subject to a sunset clause which would result in their expiry after five years unless renewed by parliamentary resolution. As well, there would be annual reporting requirements by the federal government and the provinces on the use of these provisions. Although, in the case of the federal government, there would be an expanded reporting requirement.

In addition, these provisions would not be able to be used unless the consent of the appropriate attorney general is first obtained. This is true even in the case of a person who is arrested without warrant under the recognizance with conditions tool. While the peace officer in such a case would be able to arrest the person to bring the individual before a judge, he or she would still have to obtain the consent of the appropriate attorney general in order to lay any information before such a judge. This is a condition that must be satisfied before a hearing can take place to decide if a recognizance should be imposed.

Also provided for in the bill is a provision inserted by the Senate when it was reviewing a previous version of Bill S-3. Parliament must review these provisions prior to the date that they sunset. As part of this review process Parliament would be able to examine the degree to which these provisions had been used, successfully or unsuccessfully, and would be able to make a determination based on the available evidence as to whether or not these provisions would continue to be needed.

I believe all of us in this House believe that terrorism should be combated. For those who believe that the existing criminal law is sufficient to combat terrorism, I respectfully disagree. I believe events both outside and inside Canada, such as the recent convictions in the Toronto 18 case and the recent arrests in Toronto, show that the threat of terrorism is an ongoing concern and that there is a need for the tools of the investigative hearing and the recognizance with conditions.

However, I also recognize that in order to combat terrorism successfully these measures must be crafted so as to ensure adequate protection of fundamental rights. By examining the decisions of the Supreme Court of Canada in relation to the investigative hearing, I hope I have dispelled the concerns that it violates fundamental human rights and basic notions of fairness. Indeed, I would ask all hon. members to reflect on the fact that Bill C-17 improves upon the safeguards found in the original legislation. I urge all members to support the passage of this bill.

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September 20th, 2010 / 5:25 p.m.
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NDP

Peter Julian NDP Burnaby—New Westminster, BC

Madam Speaker, I listened very attentively to the parliamentary secretary give the reasons for reintroducing a bill that expired years ago. As the member knows, the original provisions were brought into the House but they were not used and Parliament chose not to renew them. Yet the government is choosing at this time to bring this bill forward.

The member has already made the case of those who have been raising a contrary point of view on this, that the recent arrests and some investigations have been done with existing Criminal Code provisions. What is very clear is that the underfunding by the government of our police forces, something that has an impact in a whole variety of areas, and the breaking of promises around funding for RCMP, is something that would do a lot more to address concerns generally than the provisions in the bill that, as has already been noted, were not used and expired.

I can only wonder why the government is bringing the bill forward at this time. It does not seem to make sense except when we look at the summer the government has had. The Conservatives made appalling, inappropriate decisions around the census. They have had boondoggles around the untendered nature of the billion dollar jet fighters, around the fake lake and the billion dollar cost of the summit and the $130 million paid out to Abitibibowater basically because Abitibibowater was upset. All of these boondoogles, moneys paid out, have turned the tide of public opinion against the government.

It seems to me that what we are seeing today is a government that is so desperate that it wants to try to revive fear by throwing together legislation that was not used in the past and was not renewed by Parliament rather than dealing with the real issues about which Canadians are talking. Is that not the real reason why the government is bringing this forward today?

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September 20th, 2010 / 5:25 p.m.
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Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Madam Speaker, obviously I disagree with the member. Innocent people are being killed around the world on a daily basis by terrorists. Terrorist plots are happening right now in Canada. We have seen it with recent arrests. Our law enforcement officials are telling us that these provisions are necessary to keep Canadians safe.

While it appears that no investigative hearing had been held or recognizance with conditions imposed before the previous provisions expired, this should not suggest, in my opinion, that they are not important or not needed in the future. We should take comfort in the fact that based on past experiences with previous provisions, law enforcement officials and prosecutors have demonstrated caution and restraint with respect to the use of these provisions. Moreover, law enforcement agencies have expressed their support for the continuation of these previous provisions.

It is incumbent upon all members of the House to do what is necessary to keep Canadians safe. In my view Bill C-17 would do that.

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

Linda Duncan NDP Edmonton Strathcona, AB

Madam Speaker, I would like to put the question to the hon. parliamentary secretary that I have put to a number of members in the House on speaking to the bill.

While the hon. member has spoken eloquently about the need to stand up and protect Canadians, so on and so forth, we need to stand back and take a look at the intent of the bill. We need to ensure that all Canadians are treated equally under the law and accorded equal rights according to our Charter of Rights and Freedoms and according to the basic principles of the rule of law and democracy on which our country stands.

I have yet to hear the government define a terrorist or a terrorist activity. The bill, which has never been used and which has languished for four years, is supposedly an incredibly important law. There have been concerns with terrorism and security around the world for quite some time, including in our country. Therefore, I concur with my colleague who earlier asked why now. How would the bill ensure that the rights of all Canadians to be treated fairly before the law are protected, that they have a right to remain silent, that they have a right against self-incrimination, that they have the right to know the charges against them and the right to be charged before they are incarcerated?

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

Bob Dechert Conservative Mississauga—Erindale, ON

Madam Speaker, if the member wants to know the definition of a terrorist activity, I would suggest she read the Criminal Code of Canada. She might also take the time to read the Air India Supreme Court decision, which I referred to in my speech earlier.

If she were to look at the Criminal Code of Canada, she would see that subsection 83.01(1)(b)(ii)(E) defines the general definition of terrorist activity in such a way as to exclude from the scope of a serious interference within a central service, lawful or unlawful advocacy protest, dissent or stoppage of work unless there is an intent to cause death, serious bodily harm, endangering a person's life or causing a serious risk to the health or safety of the public.

I suggest that perhaps the hon. member take the time to read the Criminal Code of Canada, which she is here to uphold, and then she will know what a terrorist activity actually is.

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

Conservative

Colin Carrie ConservativeParliamentary Secretary to the Minister of Health

Mr. Speaker, I enjoyed my colleague's speech. I have been listening to the speeches this afternoon and it is quite interesting from our coalition partners to hear some of things they have in common, being soft on crime and it seems soft on terrorism.

I listened to some of the comments and how they are so misinformed. The last speaker talked about how individual rights and freedoms would not be protected with the bill.

The parliamentary secretary has already talked about how it has passed the Charter of Rights analysis with the Supreme Court. He has talked about how the bill evolved in the past.

Could the member explain to the House why sometimes reasonable measures are necessarily required during a terrorist situation? The previous speaker, the other coalition partner, mentioned that we should be funding more police officers.

There is a really important vote coming up this week about gun registry. Could he perhaps explain what the logic is if some of her colleagues flip-flop? If we got rid of the gun registry, we would have more money to fund the front line police officers.

Could the member comment on that?

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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.

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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.

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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?

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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.

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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?

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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.

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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?

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 10:35 a.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, this is a bill that the legislators at the time, when they passed it, thought was dangerous. Our legislation respects individual freedoms and the fact that individuals must never be punished unless we are certain that they are guilty of a crime, and it ensures that the individual's fundamental rights are not intruded upon.

The legislators at the time thought that such an intrusion was possible. That is why they inserted a sunset clause so that the legislation would be reviewed in five years to see whether it was still warranted. To determine whether this was the case, the attorney general was asked to report on whether the legislation was justified, and why. In all of the reports that he submitted, the attorney general noted that the fact that these provisions were not used by the RCMP or federal prosecutors in the first five years and two months of their existence illustrates that officials were proceeding cautiously in using these powers. They did not use them. Not once did the RCMP or other federal prosecutors make use of this legislation.

Nevertheless, the attorney general added:

The Government of Canada continues to believe that the investigative hearing and recognizance provisions are necessary preventive measures that should be part of the Criminal Code.

Why is it necessary to maintain a tool that has never been used? I think that when this came back for review—in February 2007, if my memory serves me correctly—we made it clear that there was a risk that these laws could be used by a malevolent government to stigmatize political opponents. The leader of the Liberal Party at the time said that one of his reasons for not supporting the renewal, that is, for not allowing the provisions to stand, was that there was a risk of unfairly stigmatizing someone. And that stigma could seriously damage the person's life because he would be subject to a court ruling related to terrorism followed by a recognizance.

Do not forget that this recognizance and the proceedings require reasonable grounds, plausible suspicions, but suspicions of a serious offence. Consequently, if it is suspected that someone has potentially committed or may commit a serious offence, that person is then subject to a court ruling. How will this person's life be affected by having a court impose terrorism-related conditions? If these suspicions were unjustified, which could very easily happen since they are only suspicions, how can this person prove that the suspicions are unjustified and then overcome the stigma? I remember that that was the case with Maher Arar, who was flagged not in court, but in reports that were sent to another security service, that of the United States. How can this person be taken off the no-fly list? I am sure that someone who has been subject to a recognizance would be on this list. And since it is public, if his employer hears that he was subject to a recognizance, will he keep his job? Will another employer give him a job in the future?

In today's society, do people realize the serious harm that befalls someone who is labelled a terrorist, even based only on suspicions?

The proposed legislation before us today contains no provisions to ensure that someone falsely suspected can somehow get rid of that stigma. The absence of such a procedure would be enough in itself to justify not renewing the clause.

It is important to understand why this measure is more or less useless. When an individual suspected of being involved in a terrorist act is brought before a judge, the only thing the judge can do is impose conditions; the judge cannot incarcerate that individual. And if the individual agrees to sign the recognizance, the judge must release him.

For heaven's sake, in today's reality, how does a person become the object of such suspicions, which do not allow authorities to lay formal charges against that person? Suspicions probably arise when authorities learn about some of the person's relationships or as a result of electronic surveillance conducted in people's homes. But if those things clearly established the existence of a terrorist plot and that person's involvement, there would be evidence of a conspiracy. Conspiracy is a criminal offence, even if the objective of the conspiracy is never achieved. So that person could be charged with conspiracy and brought before a judge. The judge determines whether it is in the public's interest to incarcerate the individual, considering the evidence of conspiracy that is presented. That judge can incarcerate the individual, unlike a judge whose only recourse is to impose release conditions. The judge can even detain the individual.

Then what happens? The proceedings continue and either the charges are dropped and the person is acquitted, or the person is found guilty. If he is found guilty, then so much the better.

Nonetheless, we have to consider that not everyone who is acquitted owes that outcome to a savvy lawyer or insufficient evidence presented to the judge. In our society, I like to think that people are acquitted because they are not guilty. When a person is acquitted of a charge he can go on with his life. However, when a person is ordered by a judge to sign a recognizance on suspicion of terrorism, he is stigmatized for life.

Is this the kind of weapon we want to leave behind for a potentially dishonest government, particularly when it is the attorney general who authorizes the use of this procedure? I am not comforted by that thought.

Even if the government is not that dishonest, there are circumstances in which it is very difficult to respect the principles of the democratic state we have the privilege of living in. I experienced one such circumstance. As a young lawyer during the October crisis, I saw a government that I respected—despite the many accords it signed—invoke legislation that had been left on the books, namely the War Measures Act. And look what happened and how the War Measures Act was used.

Does anyone remember what kind of people were thrown in jail, kept there, and accused? A popular singer, Pauline Julien, and several poets—including Gaston Miron, I believe— were arrested, but most importantly, nearly all of the candidates in the Montreal municipal election were incarcerated under the War Measures Act.

Should another terrorist threat surface, I believe that future authorities could panic and use this law to, at the very least, stigmatize their rivals. A future government could even be dishonest. Our governments are reasonably honest, certainly more honest than most other governments in the world, and existing laws give them an incentive to remain so.

This is a violation of the legal principles that guide us. Let us not forget that these principles are what make our kind of government so much better than the kind of government or regime that terrorists typically seek to establish. We cannot stoop to their level and keep laws on our books that could be misused.

There are two main reasons why this legislation should not proceed. First, the measures it provides for are useless. It has never been used because it is useless. Second, it is dangerous. A government could easily be tempted to use it, not for its intended purpose but to stigmatize political rivals, which is often the case. For example, those who want stricter and stricter laws are happy to denounce those who stand for fundamental legal principles and a different attitude toward crime. They are portrayed as being pro-crime. I have heard that many times from those in government now. I can certainly imagine them using these provisions under certain circumstances to taint the reputations of their adversaries by accusing them of involvement in terrorist activities.

I should also point out that, in its annual reports, the government was supposed to justify the usefulness of this law to date, but has never been able to. Does that record suggest that this law is useful? All the Attorney General had to say was this:

The Government of Canada continues to believe that the investigative hearing and recognizance provisions are necessary preventive measures that should be part of the Criminal Code.

I would like to know why he still thinks that this bill is useful and should be renewed.

I will point out to MPs not belonging to the Conservative Party that they agreed in 2007 not to extend these provisions.

There are still a number of reasons why this legislation should not be renewed. Not enough changes have been made, according to those who believe they are necessary. In particular, no effort has been made to add provisions to the legislation enabling an innocent person who has been subjected to wrongful suspicion and stigmatized by a recognizance required by judicial decision to re-establish his reputation, live an ordinary life and travel as freely as he did before the conditions were imposed.

Canada's international reputation is at stake. I repeat, in today's world, if we need to prevent a terrorist attack, we will be able to do so because of electronic eavesdropping, meetings or because we are informed that there is a conspiracy.

In that case, we can charge the person. Those who drafted this bill believe that signing a recognizance is less serious than having charges laid. It may be less serious in the short term, but I hope they understand that, in the long term, it is much more serious. A person who is wrongly accused will be acquitted and the stigma removed; however, a person who comes under suspicion unjustly has no way to remove the stigma that remains in the security agencies' reports.

Why has the legislator, the attorney general, who was presented with these arguments in 2007, not found a solution? Because he has made no effort to do so. That is laziness in addition to recklessness. He is accepting a law that, when initially passed, could be dangerous for individual rights. It is the type of law that terrorist organizations would like to see adopted across the globe. We are playing their game by drafting laws that grant such discretionary power. Therefore, this bill is useless and dangerous.

I will acknowledge that there are two amendments that would improve the legislation. First, there is the fact that police must show that other investigative methods have failed, and second, there is the right to have a lawyer of the person's choice present, as the member who spoke before me mentioned. But we still have the same fundamental problem: this law can destroy the reputation of someone who perhaps does not deserve it. There are only suspicions against a person, and no way of repairing the damage that has been done.

As was the case with the War Measures Act, there could be situations that we have not foreseen. When the War Measures Act was passed, a government could have been tempted, or even gone as far as to use this legislation simply to destroy the reputation of political adversaries and to place them in a difficult position.

I am referring to the election that was held the year after the War Measures Act was used and almost all those who ran against Mayor Drapeau were incarcerated. Obviously, Mayor Drapeau won this election by a landslide, by getting all of the councillors from his party elected. He made a historic statement to the effect that this was his kind of victory. There were many other reasons to vote for Jean Drapeau rather than his opponents at the time.

Thus, a law that goes against our general principles, and goes so far as to incarcerate political opponents, has already been used once in our history. What is to say that one day, this legislation will not be used to stigmatize and destroy the reputation of political opponents? Not to mention the fact that errors can be made in good faith. Someone can be wrongly—but in good faith—suspected of being a terrorist and be subject to these provisions, but if the suspicions turn out to be untrue, no one is able to correct that injustice.

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September 21st, 2010 / 10:50 a.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I thank my hon. colleague for his astute and always well-informed comments. I noted that the previous Liberal speaker talked about rights being in collision and rights being conditional. I note that it was a Liberal government during World War II that violated the rights of Japanese Canadians and interned them. I note as well that it was a Liberal government in 1970 that violated the rights of Canadians and Quebeckers under the War Measures Act. It was also a Liberal government that passed the Anti-terrorism Act after 9/11 that had outrageous violations of the civil liberties of Canadians.

I am wondering if my hon. colleague would comment on the fact that Liberal governments seem to take an approach that civil liberties can be violated when times are difficult, the very time when civil liberties are most important. I am wondering if he could share his thoughts on whether civil liberties ought to be respected in times of peace but not in times that are challenging, or whether he thinks civil liberties are a core fundamental Canadian value that must be respected at all times.

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September 21st, 2010 / 10:55 a.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I believe that this question contains an important principle. Fundamental rights are always important but especially so in cases where governments could be tempted to put them in jeopardy. The law is a living thing that changes and adapts to new situations.

He is right to say that it is easy to be generous in extending rights when social peace does not seem to be in danger. But when we feel we are in danger, there is a strong temptation to be less generous.

In this case, however, since the RCMP and security agents have not used this tool and have never publicly expressed to the government the need for such a tool, it seems clear to me that we should not have it, because experience has shown that, while a government can seem very respectful of fundamental rights at the outset, the pressure of certain events can tempt it to be much less respectful.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 10:55 a.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, during the hearings into the former bill, Bill S-3 at the Senate, the previous incarnation of this legislation, some folks raised issues about investigative hearings saying that it was a change in how our judicial system worked, that it put judges in the position of having to lead an investigation which was not their usual role and that that was problematic in our system of justice.

I wonder if the member could comment on that change in the role of judges should this legislation pass.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 10:55 a.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I believe that the member who just asked me the question realizes that I did not talk about this aspect.

The fact that people can be forced to testify under oath about what they know seems to be a less serious infringement of fundamental rights, especially since we have given them, albeit in very convoluted language, the right not to self-incriminate. That is why I focused my arguments on the other provision, which can lead to the unfair stigmatization of an innocent person.

I would remind members that Mr. Justice Hugessen, I believe, spoke about the first part more eloquently than I ever could. Judges do not like to be investigators. I would like to add that currently in Quebec there is one person in particular who is finding it difficult to be an investigator, even though he is one of the best legal minds in Canada. I am talking about Mr. Justice Bastarache, of course.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11 a.m.
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Bloc

Ève-Mary Thaï Thi Lac Bloc Saint-Hyacinthe—Bagot, QC

Mr. Speaker, I would like to thank the hon. member for Marc-Aurèle-Fortin for his speech. I have a question for him. He was a prominent attorney in his first career. He was one of Quebec's best-known attorneys, and he is still an attorney.

I would like to know whether the Act to amend the Criminal Code (investigative hearing and recognizance with conditions) violates the right of the accused to consult with an impartial lawyer of his or her choice. Under the current Canadian system, lawyers must respect solicitor-client privilege.

Does this law not violate one of the fundamental rights of the accused, solicitor-client privilege?

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11 a.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, to be honest, I do not think that this law violates that right. The purpose of my remarks was to show that a grave injustice could be perpetrated upon some individuals. Maher Arar was subjected to exactly that kind of injustice and continues to be subjected to it.

In this case, the proposed amendments would give the accused person access to a lawyer of his or her choice. It goes without saying that the lawyer must respect solicitor-client privilege.

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September 21st, 2010 / 11 a.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I am proud to stand on behalf of the New Democratic Party of Canada and speak loudly and clearly against this misinformed legislation.

The fundamental issue presented by Bill C-17 before the House today engages some very alarming and critical matters.

Fundamentally the bill engages these concepts, and that is due process in law cannot be respected by offending due process in law. Civil rights cannot be protected in our country by violating civil rights. Freedom in Canada cannot be supported by abridging the freedom of every Canadian in the country.

These comments cut to the heart of this matter and I will come back to these concepts later on in my speech.

Bill C-17, an act to amend the Criminal Code, was introduced twice in the House before. It contains provisions found in former Bill S-3, which was as amended by the Senate Special Committee on Anti-terrorism last year.

The bill proposes amendments to the Criminal Code that would reinstate the anti-terrorism provisions that expired under the sunset clause in February 2007. The bill essentially proposes two critical matters. First, it provides for the appearance of individuals who may have information about a terrorism offence and compels attendance before a judge for an investigative hearing. It contains also a provision that deals with the imprisonment of those people for up to 12 months without charge.

Investigative hearings whereby individuals who may have information about a terrorism offence, past or future, can be compelled to attend a hearing and answer questions. Under the legislation, no one attending a hearing can refuse to answer a question on the grounds of self-incrimination. While information gathered at such hearings cannot be used directly in criminal proceedings against that individual, derivative evidence can and could be used against that individual in further criminal proceedings against that person.

Second, the bill provides for a form of preventative arrest whereby individuals may be arrested without evidence in order to prevent the carrying out of a terrorist act. In other words, the bill provides for detention based on what someone might do, not what he or she has done. The arrested individual must be brought before a judge within 24 hours or as soon as feasible after that.

In that case, a judge would determine whether that individual is to be released unconditionally or released under certain conditions, in other words, recognizance with conditions for up to 12 months without charge. If the conditions are refused, the individual may be imprisoned for up to 12 months without charge.

Bill C-17 contains a five year sunset clause, which requires a resolution of both the House and the Senate for it to be renewed.

The seriousness with which the bill attacks our civil liberties in our country is established by the fact that it has to contain a sunset clause to come back before the House. This shows that the government does not have the confidence to put these provisions into law for a permanent period of time, and that should be alarming to every member of the House.

Clause 1 C-17 would amend the Criminal Code and is similar to the original Anti-terrorism Act, section 83 of the Criminal Code, which forces individuals who may have information about a terrorism offence to appear before a judge for an investigative hearing. Again, the objective of this is to compel that person to speak under penalty of imprisonment. I want to deal with that matter first.

Every student in the country knows about the right to remain silent and the right not to give evidence that may be used to incriminate one in a future proceeding. Such a right is a cornerstone of a free and democratic society. Yet this legislation would violate that historic right that can be traced back centuries into British parliamentary democratic tradition.

I want to pause and say that civil liberties are something that every Canadian holds sacrosanct and civil liberties are something that ought to be protected vigilantly in all circumstances.

The erosion of civil liberties does not happen in profound or drastic fashion. History has proven that the erosion of civil liberties happens incrementally and that every society that has descended into dictatorship or authoritarianism has begun with a gradual erosion of civil liberties. People do not wake up one day and find that their Constitution is eviscerated or that their civil liberties are evaporated. What history has told us is that, little by little, governments intervene and they start taking away people's civil liberties. That is why, as members of Parliament in the House, as the representatives of the people and the guardians of civil liberties in our country, every member of the House has an obligation to oppose any legislation that would derogate from Canadian civil liberties, our Charter of Rights and Freedoms, or any other constitutional right that we have.

I also want to talk about the right to appear at a hearing and the right to remain silent.

This summer the Conservative government moved to end the long form census because it felt that the state had no right to ask people incriminating questions such as how many bedrooms existed in the house. It has said repeatedly that Canadians have to be protected against a government that would ask them questions for the purposes of gathering research, questions that help determine social policy in our country. The government said it was offensive and was a violation of the rights of Canadians. Yet the first act the government has put forward in the House after the summer recess would force Canadians to come before a judge and compels them to answer questions, in violation of their historic constitutional right to remain silent and not incriminate themselves.

Am I the only Canadian who finds that to be the most hypocritical contradiction that probably has existed this year? What kind of government cannot see the contradiction between purporting to stand up for the rights of Canadians not to be asked offensive questions, but then hauling them before a judge and forcing them to answer questions, violating their constitutional rights in the bargain?

There are not constitutional rights engaged when Canadians are asked questions on a census. The government said that we could not ask Canadians questions in the long form census that might result in Canadians being imprisoned for refusing to answer. This legislation would imprison people for refusing to answer. I would like to hear a member from the government explain that contradiction to Canadians.

The legislation would also does something else that is extremely offensive and something that all parliamentarians ought to protect and oppose vigilantly, and that is the concept of preventive arrest. That is the concept of arresting people not based on what they have done, not based on evidence, but based on mere suspicion about what they might do.

Could such a power be exercised by a government? Canadians might ask if any government would exercise such a power irresponsibly. We have an example where it did exactly that recently.

This summer in Toronto, at the G20 hearings, authorities of the state arrested 1,100 Canadians for simply walking in the street and expressing their views. Why did it do that? It did that for preventive reasons. We know that because for 900 of those 1,100 Canadians, when they appeared in court several months later and the state was forced to actually back up those arrests, the state withdrew the charges. What happened this summer? Eleven hundred Canadians had their civil rights violated, their right to assemble publicly and peacefully and to express themselves under multiple sections of the Charter of Rights and Freedoms. The government and the state took away those rights because of preventive reasons. It took away the rights of those Canadians to express peacefully to world leaders gathering in our country how they felt about issues affecting the world and the government and organs of the state violated the rights of Canadians in that regard.

We do not have to talk hypothetically or talk about fictional examples. I think every Canadian watched with disgust and horror when police rounded up Canadians, penning them in and holding them for days on end so their expressions would not be heard by world leaders. Then after the event was over, they were let out and the charges were dropped. That is what preventive arrest looks like, and the bill wants to enshrine in law a concept of preventive arrest.

I want to talk a bit about the Liberals, because the Liberals have a long history of talking about civil liberties and then acting against them. I have already mentioned that in World War II it was a Liberal government that rounded up Japanese Canadians and interned them based on nothing but their ancestry and violated their civil liberties. It was a Liberal government in 1970 that rounded up Quebeckers without charge and detained them and violated their civil liberties. After 9/11, it was a Liberal government, in a rush to look tough, brought in the Anti-terrorism Act that had a number of serious incursions into Canadian civil liberties.

For the Liberal Party of Canada, civil liberties are not something that we protect only when it is easy to protect them. Civil liberties ought to be protected when they are needed most to be protected, and that is in a time of difficulty. Anybody can stand up for civil liberties in a time of easiness and peace, but what really separates those who believe in civil liberties from those who do not is how they act when times are challenging.

I also want to talk about the government's portrayal of the provisions of the bill as being critical. This is the third time the government has moved to introduce this legislation in the House, and twice before, this legislation has died because the government let it die: once when it caused an unnecessary election that by the way violated its promise of fixed election dates; and second, when it prorogued the House.

If these powers are so critical, the government has to explain why these powers have never been exercised. It is almost nine years later and I cannot find a single example where anybody was put before a judge and where these powers were actually enforced. However, I can tell the House that under our present Criminal Code, which has provisions for conspiracy and provisions that give our police officers the powers they need to investigate any kind of terrorist act, there have been successful prosecutions. We can have a vigilant country that investigates and works to prevent terrorism and respects civil liberties at the same time. We do not have to sacrifice civil liberties in the name of security.

This brings me to my next point. What Canadians want in our country is our way of life protected. What Canadians want is to be free from any kind of terrorist activity that would violate our freedom and our civil liberties. We cannot sacrifice our civil liberties in the name of protecting them.

Ensuring public safety is essentially about protecting the quality of life of Canadians. We hear the government say that all the time. Quality of life can be defined in many ways. If we talk to our family members, neighbours in our community, I would dare say they would define quality of life in a variety of ways. However, I think every Canadian would agree that we would define quality of life by the right to live in peace, the right to pursue liberty and happiness and the right to be protected against offensive incursion into our liberties by our state.

While Canadians are in favour of protecting Canada against terrorism and of having a country that is secure, we are also in favour of freedom and civil rights. Security means feeling safe. It means feeling that our country and communities are safe and that we can safely go out into our streets. However, it also means that we need to feel that our federal government, our provincial government and the courts in our country are protecting us, and this means protecting our civil liberties and our civil rights.

This legislation also engages another fundamental right, which is the right to be presumed innocent. It is not for a Canadian to be compelled to go before a court and be compelled to answer questions under threat of imprisonment. The right to be presumed innocent is the right to sit back in silence and enjoy the fact that the state has to prove a case against an individual. The minute we start making incursions into that right, we are going down a slippery slope, the end of which we know not. That is why it is so important to be vigilant in protecting our civil liberties.

As I said before, we lose these rights incrementally, just a little bit here and a little bit there. Before we know it, there is moderate infringement of our civil liberties. Then we go a bit further, and pretty soon there is substantial infringement of our civil liberties.We go a little further, and before we know it, there is profound violation of our civil liberties. I would ask all my colleagues in the House to join with New Democrats in saying that we will not go down that path. We want to live in a country where we have concrete rights.

My hon. colleague in the Liberal Party talked about rights being in collision and about balancing rights. He said that if people go home unhappy, that suggests that we have the appropriate balance. With the greatest respect, I could not disagree more.

When it comes to fundamental civil liberties, there is no balancing. When it comes to civil liberties, there is no collision. When it comes to civil liberties, there is no keeping everybody unhappy. When it comes to civil liberties, we either have them or we do not. We either live in a country where we have the right to be presumed innocent, or we do not. We either live in a country where we have the right to remain silent and not give evidence that may be used against us, or we do not. We either live in a country where there is no such thing as preventative arrest and where the state must justify putting a Canadian in prison based on what he or she has done or might be doing, or we do not. I do not see any collision there. I do not see any balancing there. The minute we start talking about balancing civil liberties, we are on the path to erosion.

I say that for a number of reasons, but primarily I say that because we cannot protect civil liberties by offending them. We cannot advance freedom by abridging it. We cannot improve human rights by derogating them. We must stand up for these civil liberties. This bill would do only a couple of things, but they are significant things.

I also want to talk briefly about some comments made recently with respect to torture, because I think they are tied to civil liberties.

Recently, the head of CSIS, Richard Fadden, said that the state might rely on information that may have been derived from torture if it is felt that it might be helpful in preventing some sort of episode in Canada. Canada either opposes torture or it does not. We cannot say that we oppose torture except when the information might be helpful. By the way, all information derived from torture is inherently unreliable. One can never say that information that is a product of someone inflicted with physical torture is ever the truth. The only way to stand up against torture is by taking a firm stand against it.

Why do I bring that up in the context of this debate? It is because it is just a slight opening. We might say that we are against torture, except in this one circumstance. No. This is 2010 not 1610. We do not consider it acceptable in this world or in this country to subject someone to physical torture as a means of getting information. The way to say so is to say that we will never rely on it. It is unequivocally wrong.

It is the same thing with the provisions in this bill. It is wrong, and I urge all members of the House to join with the New Democrats in opposing this flawed and extremely dangerous piece of legislation.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11:20 a.m.
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Conservative

John Weston Conservative West Vancouver—Sunshine Coast—Sea to Sky Country, BC

Mr. Speaker, I applaud the member for Vancouver Kingsway's commitment to civil liberties, a commitment that is shared by most members of the House. Certainly, as the founder of the Canadian Constitution Foundation, I am one of those who shares such a commitment.

Members listened while he used the words “freedom” and “liberty” over 30 times in the course of his remarks. We sat nodding our heads, saying that we all agree with freedom, but as Viktor Frankl , the famous writer who was imprisoned in Auschwitz, said, to every freedom there must be a responsibility. Without responsibility, freedoms are dangerous.

Some of the most powerful advocates for civil liberties the world has ever known, such as John Stuart Mill, have said, contrary to what the member across the way said, that there is a balancing of rights. There has to be.

The world is increasingly dangerous. We have seen terrorist threats inside Canada for the first time. What does the member have to say about responsibility along with freedom when preventing terrorism from occurring in our country?

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September 21st, 2010 / 11:20 a.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, that is a fascinating comment, coming from a member of the government.

I would, in turn, ask him a question. The government is talking about the freedom of Canadians to own guns but opposes the responsibility of even registering a gun. In that case, I guess there is no corresponding responsibility. A Canadian, according to the government, has the freedom to own and walk around with a gun, but there is no corresponding responsibility to do something even as minor as registering that weapon. In that case, it is a question of pure freedom. I would be interested in hearing my friend's comments to help me understand that.

Of course there are corresponding responsibilities, but core civil liberties are core civil liberties. The right to remain silent and not incriminate oneself is not conditional. It is either a right or it is not a right. The right not to be arrested when one has not done anything, when the state has no evidence that a person has done something or might do something, has no corresponding responsibility. Canadians are either free to walk our streets and not have their liberties restricted by the state in the absence of evidence or they are not.

I agree with Mr. Frankl's comments about responsibility and freedom, but we are not talking about those kinds of liberties. We are talking about core constitutional liberties, which I believe have no conditions attached. They are core, fundamental values and rights that every Canadian enjoys, and we have to support and protect those rights vigilantly.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11:20 a.m.
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Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Mr. Speaker, I do not want to be seen as negative on the issues raised by the hon. member for Vancouver Kingsway. This, of course, is the one place in the country where we should always be supportive of advocacy in favour of our freedoms.

The member may have failed to connect the dots for me. First, he referred to the right to remain silent. That is not a right in Canada. There is a right against self-incrimination. The member may have been watching a few too many American television shows.

The Canada Evidence Act is very clear that when a question is put in a judicial proceeding, the answer must be given. The answer cannot subsequently be used in a criminal proceeding against a person, other than for perjury. However, there is no actual right of self-incrimination. I would like him to address that, because he referred to this right but did not give an example of how this legislation would breach that right.

Second, on the issue of investigative hearings, we have always had in this country, for over a century, the grand jury procedure. It requires citizens to appear before a grand jury, where they are forced to answer questions on criminal matters. That evidence is not usable against them in subsequent criminal proceedings if charges are laid. That is an example of how our legal system has already done that. I would like him to comment on that.

Third, preventive detention is virtually analogous to the conspiracy offence whereby someone is charged with conspiring to commit a criminal act that has not happened yet. These concepts are not new to us. We are just refining them a little for Canadian purposes in compliance with the Charter. Would he comment on that, please?

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11:25 a.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, the first question I would ask the hon. member is why his party voted against these provisions in 2007.

I have, of course, come to expect that the Liberal Party will run one way one day and another way the next day. Canadians are left wondering exactly where they stand on any issue at any given time. His party did not like these provisions three years ago. It seems to like them now. I am not exactly sure why.

I am a lawyer by training, as well, and with respect, I will differ with my friend. Canadians do, in fact, have the right to remain silent and not give evidence that might incriminate them. That is exactly what this act violates. It forces people to testify without the historic legal protection that the testimony cannot be used against them in subsequent criminal actions through derivative evidence. In that respect, although the evidence cannot be used directly against a person in a subsequent criminal proceeding, derivative evidence can be. In effect, the act violates Canadians' right not to give evidence against themselves.

If my friend wants to say that Canadians do not have that right, I will respectfully disagree with him.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11:25 a.m.
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Bloc

Maria Mourani Bloc Ahuntsic, QC

Mr. Speaker, in 2007, as my colleague was saying, all of us—including the Liberal Party—voted against extending these provisions. Now all of a sudden the Liberal Party has changed its mind even though Bill C-17 does not introduce any fundamental changes. These provisions are still useless, because other provisions already exist in the Criminal Code to allow agencies and police officers to take action, whether with regard to investigative hearings or preventive arrest.

Does my colleague understand the Liberals' change of heart? I am still trying to figure out whether it is just one-upmanship in a world where everyone tries to come across as protecting public safety by fuelling the fear of terrorism and the fear of crime. It is nothing more than grandstanding. I do not know who is better at it, the Liberals or the Conservatives.

That is how I interpret all of this, but perhaps my colleague has another way of looking at it.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11:25 a.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, the short answer to the question is no, I cannot offer an explanation as to why the Liberals are flip-flopping on this position.

We can all understand why, after 9/11, this legislation may have been passed because of high emotion and nervousness. I think it was wrong at that time, but we understood it.

However, I cannot understand why any parliamentarian would stand in this House today and violate precepts of democracy and Canadian civil rights when there has not been one example, in the last eight years, of anybody successfully brought before a judge who would have made this legislation necessary.

In calm, rational, sober thought, in a moment when we can actually address our minds to what this legislation would really do, I respectfully submit that no parliamentarian ought to stand in this House and knowingly violate Canadians' rights. States have always justified incursions into civil liberties by appealing to some fear. They have always tried to truncate people's freedoms with the justification that there is some bogeyman of some type.

The legislation ought to be rejected. I hope that the Liberal Party of Canada finds those principles and that its members find it in themselves to do as they did correctly in 2007 and join with the Bloc and the New Democrats in opposing this kind of very misinformed, dangerous legislation.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11:30 a.m.
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Bloc

Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC

Mr. Speaker, I am pleased to speak today to Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), a type of anti-terrorism legislation. I am also pleased to explain to you, Mr. Speaker, and to all those watching us, the balanced position that the Bloc Québécois has always defended.

The hon. member for Marc-Aurèle-Fortin has championed this issue with support from our member for Ahuntsic. Those two hon. members have some experience in this. Let us not forget that the hon. member for Marc-Aurèle-Fortin is a well known criminal lawyer. He was Quebec's attorney general at one time. He was the one who launched Quebec's Opération Printemps 2001, a large-scale operation to break up organized crime and criminal biker gangs in particular. Our colleague from Ahuntsic is a criminologist by training and we refer to her for information on fighting street gangs. She even played a role in the arrest of marijuana grow operators. We get our advice from people who fight crime for a living. Those are the people the leader of the Bloc Québécois chose to champion this issue and try, in a responsible manner, to fight terrorism. That has always been the Bloc Québécois' approach.

Our party has been involved since the very beginning of the process to review the Anti-terrorism Act. Between 2004 and 2007, the Bloc Québécois heard witnesses, read briefings, and interviewed specialists, civil society representatives and law enforcement agencies. During the Subcommittee on the Review of the Anti-terrorism Act's specific study of the two provisions in Bill C-17, the Bloc Québécois made its position on investigative hearings and recognizance with conditions clear.

Our party felt that the investigative process needed to be better defined. It was clear 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 section 83.3, dealing with preventive arrest and recognizance with conditions. Not only do we feel that this measure is of little, if any, use in the fight against terrorism but, more importantly, there is a very real danger of its being used against honest citizens. This is important, because it is part of a responsible approach. Some members here say they want to amend the Criminal Code, but really, the goal should be to actually improve the situation. But that is not the case here, as we can see in the position taken by the Bloc Québécois as a result of the analysis done by our esteemed colleagues, as I explained, the hon. members for Marc-Aurèle-Fortin and Ahuntsic.

I would like to quote the text, because it is very important. Amendments to the Criminal Code are often very complicated and contain many references. In a dissenting report, my colleague from Marc-Aurèle-Fortin very clearly explained his position and his viewpoint regarding these legislative amendments. It is worth reading, to ensure that all members and the people watching us at home understand better.

Again, I am quoting my colleague's text.

Terrorism cannot be fought with legislation; it must be fought through the efforts of intelligence services combined with appropriate police action.

There is no act of terrorism that is not already a criminal offence punishable by the most stringent penalties under the Criminal Code. This is obviously the case for pre-meditated, cold-blooded murders; however, it is also true of the destruction of major infrastructures.

Moreover, when judges exercise their discretion during sentencing, they will consider the terrorists’ motive as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high and that deterrence and denunciation are grounds for stiffer sentencing. This is what they have always done in the past and there is no reason to think they will do differently in the future.

This part of the text signed by my colleague from Marc-Aurèle-Fortin is important. It explains that we already have a criminal code, that there are laws in place and that judges have already convicted people who have committed such serious crimes as murder and have already established a way to set sentences and judge these people.

We must also consider that, when it comes to terrorism, deterrence has limitations. First, it will have very little impact on someone considering a suicide bombing. Second, those who decide to join a terrorist group generally believe that they are taking part in an historic movement that will have a triumphant outcome in the near future and that will see them emerge as heroes.

Continuing with the logic of my colleague from Marc-Aurèle-Fortin, I would say that it is important to understand that terrorists' perceptions and actions are different than those of ordinary citizens. I would add that we should not believe that they will be deterred by legislation. Therefore, we have to bear in mind the fact that their motivation is different than that of ordinary citizens.

Therefore, one cannot expect that new legislation will provide the tools needed to effectively fight terrorism.

Legislation can, however, be amended if police do not seem to have the legal means needed to deal with the new threat of terrorism.

Consequently we must ensure that the proposed measure does not unduly disturb the balance that must exist between respect for the values of fairness, justice and respect for human rights, which are characteristic of our societies, while also ensuring better protection for Canadians [and Quebeckers] and for the entire world community.

Section 83.3, which provides for preventive arrests and the imposition of conditions, was advanced as such a measure when it was adopted.

Now, this provision has gone unused.

That is not surprising, given that police officers can use existing Criminal Code provisions to arrest someone who is about to commit an indictable offence.

Section 495 of the Criminal Code states that:

“(1) A peace officer may arrest without warrant

(a) a person […] who, on reasonable grounds, he believes […] is about to commit an indictable offence”

As my colleague's text mentions, clause 83.3, which would be added by Bill C-17, does not change anything, because the Criminal Code already contains section 495, which allows for preventive arrests.

The arrested person [when he is arrested under section 495] must then be brought before a judge, who may impose the same conditions as those imposable under the [Act]. The judge may even refuse bail if he believes that the person’s release might jeopardize public safety.

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.

Therefore, it is very important to understand that section 495 of the Criminal Code already does what Bill C-17 would do, but with evidence that makes it possible for a judge to render a decision.

There will eventually be a trial, at which time the arrested person will have the opportunity to a full answer and defence. The person will be acquitted if the suspicions are not justified or if there is insufficient proof to support a conviction.

It seems obvious to us that the terrorist act thus apprehended would have been disrupted just as easily as it would have been had section 83.3 been used.

In keeping with what my colleague from Marc-Aurèle-Fortin was saying, section 495 of the Criminal Code already exists, allowing for preventive arrest, provided there is sufficient evidence.

And concerning section 83.3, my colleague added:

However, it is this provision that is most likely to give rise to abuses.

Section 495 does not give rise to abuse if there is evidence, but section 83.3, as set out in Bill C-17, is vulnerable to abuse.

My colleague went on to say:

It may be used to brand someone a terrorist on grounds of proof that are not sufficient to condemn him but against which he will never be able to fully defend himself. This will prevent him from travelling by plane, crossing the border into the United States and probably from entering many other countries. It is very likely that he will lose his job and be unable to find another.

This is a predictable situation that could create injustice. And that is what my colleague from Marc-Aurèle-Fortin was arguing against.

He continued on, saying:

Terrorist movements often spring from and are nourished by profound feelings of injustice among a segment of the population. The fight against these injustices is often conducted in parallel by those who want to correct the injustices through democratic means and those who believe it is necessary to use terrorism.

The former made a positive contribution to the transformation of the societies in which we live today. They are often the source of many of the rights that we enjoy.

It is inevitable that political activity will bring the first and second groups together. Very often, the former will not even be aware that the latter are involved in terrorism. The planning of terrorist activity is by its nature secret.

The point is that we have to be careful. If we were to pass the proposed section 83.3, when we already have section 495 of the Criminal Code providing for arrest in cases with sufficient evidence, that would open the door to abuse.

We cannot give certain members of society cause to protest by taking away some of their rights. That is how terrorists operate. They try to convince segments of society that the only thing the current government and politicians want is to take away people's rights. That gives them an opportunity to say that the rights of individuals are not being respected and that society is unjust and unfair. That is one way to stoke terrorism. That is what the Bloc Québécois is warning against. We must always act responsibly.

In seeking to convict an individual, we must always have enough evidence of the kind that will hold up in our justice system, which was created by our predecessors and has worked well to this day. Section 495 of the Criminal Code currently provides for preventive arrest when the police can lay sufficient evidence before the court. We can do the work.

So why try to improve this kind of legislation for political and partisan reasons? That is pretty much how the Conservatives do business. They get people worked up by saying that they will come up with a bill to prevent something from happening—terrorism, in this case. But they are just adding fuel to the fire. It is perfectly clear that abuse can happen. Provisions like section 83.3 can be passed to enable the government to violate people's rights and show that our society is becoming less just, less tolerant. That would arouse hostility against our society. That is what the Bloc Québécois wants to prevent. We always try to deal with situations responsibly.

The Bloc Québécois has always stood up in this House to defend the interests of Quebeckers and to help the members of other political parties from outside Quebec understand what it means to be a Quebecker. That is what the hon. members for Marc-Aurèle-Fortin and Ahuntsic tried to do. That is what they do every day here in the House, drawing on their personal experiences.

As I said at the beginning, we are trying to make people see that Quebec has been very successful in certain areas, and one example is the fight against crime. The statistics speak for themselves. The Conservatives can try to change Statistics Canada's long-form census all they like and do whatever it takes to prevent us from getting the real statistics, in an attempt to impose their philosophy and ideology on all situations. But the reality is this: Quebec has a much lower crime rate than the other Canadian provinces and the United States.

Our society has made a conscious decision to try to understand and invest in the fight against poverty and rehabilitate criminals instead of trying every possible way to prove that crime exists, that more and more prisons need to be built and that tougher sentences are needed. This is what the Conservatives are doing by allowing everyone to have weapons without a firearms registry. They want to put more weapons on our streets, while believing there will be fewer criminals. I do not think that is the solution.

The Bloc Québécois has taken a balanced position regarding Bill C-17. We believe that the Criminal Code has all the tools needed to combat terrorism, as long as we are able to conduct analyses and investigations.

This is a society governed by the rule of law. It must be proven that a person has committed an offence before he is charged. That is the way things are done, but the Bloc Québécois has never had any qualms about reversing the burden of proof when necessary. And it has done so. The Bloc Québécois introduced the first ever reverse onus legislation in this House regarding profits made from the proceeds of crime. As a result—and thanks to the Bloc Québécois—criminals now have to prove that they came by their money honestly, otherwise it automatically becomes evidence of their guilt. That is a choice. These battles have to be fought, and they will be won—as my colleague said in his speech—when more power is placed in the hands of the police. But they already have these powers under section 495 of the Criminal Code, which enables them to carry out preventive arrests based on sufficient evidence.

Section 83.3 gives us an impression that preventive arrests could be made in the absence of sufficient evidence. We saw what happened with the Arar affair. I will not recount all the instances of Canadian police officers being hauled before the courts and being told that they have not done their job properly. Compensation has had to be paid out, among other consequences.

They are trying to change the laws in an attempt to gloss over a whole new approach to fighting crime, which includes making arrests without all the necessary evidence. This is a line that the Conservative Party dares to cross blithely and gleefully. We in the Bloc Québécois, however, are seeking out other approaches before we simply trample on people’s rights. I will not read out the list again, but if a person is accused of terrorism, it is no secret that they risk losing many rights, including those I referred to earlier. Now, should evidence turn out to be lacking—and if it were determined that an individual was not guilty and that there was insufficient evidence—the government would have no choice but to pay substantial amounts in compensation.

We would prefer that the Criminal Code remain unchanged, since it already has provisions for preventive arrest. We feel that Bill C-17 goes too far.

That is our colleagues' dissenting opinion on this issue. And I would again like to commend my colleagues, the members for Marc-Aurèle-Fortin and for Ahuntsic, for enlightening us all. All members of this House would do well to lend them an ear and learn about the responsible and intelligent approaches favoured by Quebec when it comes to fighting crime.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11:50 a.m.
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Liberal

Alan Tonks Liberal York South—Weston, ON

Mr. Speaker, for the record, and it will probably be obvious from my question, I am not a lawyer. The debate and questions and answers have been rather directed and contained within a very legal approach and that is appropriate with respect to the discussion of the bill. However, as I have been listening l have been trying to put myself in the position of the lay people listening to this discussion and trying to arrive at a conclusion as to whether they feel that the bill would in fact protect them against terrorist acts.

Probably the most heinous terrorist act was the Air-India bombing. As I was trying to react from my constituents' perspective, I could not help but reflect on the fact that a key witness to the Air-India bombing admitted to lying under oath, either lied or, by omission, circumvented the judicial proceedings that probably would have come up with a different conclusion.

Does that not give the member some concern? Is it not then, from that concern, realistic for us as legislators to find a way that would make the law capable of dealing with that kind of deliberate circumvention of judicial process? It is important to this debate because that is, in effect, what I believe Canadians want us to do. In fact, the investigative hearings within the concept of national justice does provide protection to those who are being accused by police and agencies. Would the member respond to that particular concern?

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September 21st, 2010 / 11:50 a.m.
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Bloc

Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC

Mr. Speaker, the hon. member should understand that I have made the effort to quote my learned colleagues because my legal background is in the area of contracts rather than crime fighting. Nevertheless, I do have an understanding of the situation. The Bloc Québécois has always had a balanced position. That is how we do things. We must often attempt to put aside our personal frustration. We have to try to find a balance.

The hon. member for Marc-Aurèle-Fortin gave a presentation to the members of our caucus. We must be able to improve laws. When the Criminal Code is amended, it must benefit the police officers who work in the field. Can we do more while continuing to respect rights? Our society has decided to respect individual rights. Other societies have decided to set aside individual rights and serve the interests of the public. Clearly, this is the society's decision.

We want to have a balanced position. If we keep the Criminal Code as it is, preventive detention is allowed when there is sufficient evidence. If the hon. member is telling me that he would like to see preventive detention without evidence, that would be up to society to decide. However, that is not what Quebeckers have currently chosen to do.

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September 21st, 2010 / 11:50 a.m.
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NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Mr. Speaker, my Bloc friend's critic in this area has done a good job of putting forward evidence to support the position that the NDP and the Bloc have taken to oppose this proposed legislation.

Two years ago at the subcommittee on justice and human rights, when we were studying Omar Khadr's situation, Senator Roméo Dallaire came to that committee and spoke to us about the slippery slope that we had set upon when one Canadian is given more or less rights than another Canadian.

This summer at the G20 we saw evidence of police forces in Toronto going too far where there were preventive arrests happening there. We heard earlier today from the member for Vancouver Kingsway that 900 of the 1,100 people were released almost immediately, which was clear evidence of that violation. Preventive arrest is a huge step down that slippery slope.

If the government's legislation is enacted, what does the member think will happen with our police forces at that point in time?

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September 21st, 2010 / 11:55 a.m.
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Bloc

Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC

Mr. Speaker, the real question is: what message do we want to send about terrorism and to terrorists? Do we seriously think that violating the rights of our people is a message that will discourage terrorism? That is the real question our colleague was asking. Is that what will discourage terrorism, or will it simply help prove their point that these societies have less and less respect for the rule of law?

Often, that is how we are able to integrate people into our societies, because they choose to come to a place where human rights are considered and respected. That is a choice that we have made. If we decide to go against our values, we will have to ask ourselves whether we are sending a message that discourages terrorism.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 11:55 a.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, I am pleased to have this opportunity to speak in this debate on Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions). The short title is the Combating Terrorism Act.

It is important that we review what this bill actually sets out to do, because sometimes when we are debating it, we lose track of this over the course of the debate, and people who might be listening could lose track as well.

Specifically, what this bill will do is establish investigative hearings under the provisions of the Anti-terrorism Act, whereby individuals who may have information about past or future terrorism offences can be compelled to attend a hearing and to answer questions. No one attending a hearing can refuse to answer a question on the grounds of self-incrimination. Information gathered at such hearings cannot be used directly in criminal proceedings against the individual, but derivative evidence may be.

The other significant provision of this legislation is a provision for preventive arrest, whereby individuals may be arrested without a warrant in order to prevent the carrying out of a terrorist act. Detention in this case would be based on what someone might do in a certain situation. The arrested individual must be brought before a judge within 24 hours, or as soon as it is feasible. The judge determines whether the individual is to be released unconditionally or released under certain conditions, recognizance with conditions, which are in effect for up to 12 months. If the conditions are refused, the individual may be imprisoned for up to 12 months.

The bill also contains a five-year sunset clause, requiring a resolution of both the House and Senate for it to be renewed.

This is indeed significant legislation, and it is not the first time we have seen it come before the House. It came out of the Anti-terrorism Act that was enacted after the 9/11 events. At that time, when there were serious concerns about what had recently happened, everybody was worried and fearful, which is not too strong a word to use, about what was actually going on at that time.

These two provisions were included in that legislation, albeit with a sunset clause requiring that they be reviewed within five years. If Parliament did not re-approve them, they would come to an end. In fact, that is exactly what happened. When they were put to Parliament, Parliament did not agree to their extension.

Since that time, there have been several attempts by the Conservative government to reintroduce these provisions into our criminal law, into the Anti-terrorism Act. One was short-circuited by an early prorogation of the House, and others have not been given the priority that, if they were sufficiently important, they should certainly have received.

This is not the first time, in my term as a member of Parliament, that we have debated these issues. I have to wonder why, if this is so important, it was not given a higher priority by the government. It belies the importance of these issues that the government has not made sure this legislation got through earlier.

I also have to wonder why this legislation is necessary. I do not believe that we are responding to any serious failure of the Criminal Code of Canada to deal with terrorism, or any of the crimes that might be related to terrorism in Canada. I have not heard that we have failed to convict people who have committed terrorist acts or who are considering terrorist acts. In fact, post 9/11, we have convicted people under the provisions of the Criminal Code, without using these special provisions of crimes related to terrorism. We have seen the group in Toronto. We have seen others who have been convicted. This would say to me that there is not a problem with the existing Criminal Code legislation, that there is not a problem in investigating and actually charging and convicting people in the usual process of crimes related to terrorism.

I have to ask, then, regarding these special provisions, which go way beyond the normal provisions of our justice system, and which violate fundamental human rights in Canada, why we would want to go down that road. To my knowledge, no proof has ever been presented to the House or to one of the committees of the House, that the current provisions of the Criminal Code are not functioning when it comes to dealing with acts of terrorism or conspiracy to commit terrorism. Why do we have these provisions before us?

It is important to consider the serious nature of these provisions. They have a serious effect on what Canadians have come to know as basic human rights, basic civil liberties. The proposal to compel testimony from individuals, to force people to testify in court, violates the right to remain silent. It violates the right not to incriminate oneself before the law. That is a serious violation. It is something that most Canadians appreciate in our criminal law. Before we go down this road, we need to consider carefully why all this is necessary.

The investigative hearing proposals in this legislation would force someone to testify before a judge if he or she were suspected of having information about terrorist activity that has already occurred or that might occur. It directly compromises the right to remain silent, one of the fundamental principles of our justice system. The refusal to testify at an investigative hearing can lead to one year of jail time. It can also reduce the right to silence for persons who are questioned by the RCMP or CSIS: if they are uncooperative with a police investigation, the possibility of having to go to an investigative hearing can be used to compel cooperation and compromise their right to remain silent.

We have to realize that not everyone who chooses to remain silent in such circumstances is guilty, that choosing to remain silent is not an admission of guilt or proof of guilt. People may have legitimate fears and concerns. For instance, they might be concerned about their personal safety. Given the broad definition of terrorism in the Anti-terrorism Act, I believe that this provision is a problem. The definition itself has come in for criticism in the past.

This provision and the one on preventive detention are serious departures from our justice process. They could be used against people who are legitimately protesting or who are viewed as dissidents by our society. These provisions could be used to harass or even imprison such people.

A number of people today have mentioned the G20 protest and the mass arrests that were held. For the most part, they appeared to be carried out for preventive reasons. In my opinion, this process violated the rights to peaceful assembly, protest, and the expression of political views.

The whole question of investigative hearings raises another serious issue about how we do justice in this country. It puts judges in the position of having to oversee an investigation, which is a real departure from the normal process in our system. It is not the practice of our justice system and it is not something that most judges have experience with. It is a major departure since investigations in our system are normally undertaken by police authorities.

In hearings the Senate had on the previous incarnation of this bill, Jason Gratl, the president of the B.C. Civil Liberties Association, put this concern in this way:

The primary difficulty with investigative hearings is that they distort the functions of the judiciary and the Crown. In essence, the course of order-making power of the judiciary is brought to bear on an investigation. That power places prosecutors in the role of investigators, which is unlike their usual role. It also places the judiciary in a position of presiding over a criminal investigation.

This is a serious consideration that we need to look at with this legislation and this proposal.

There is also the matter of preventive detention. Preventive detention, or recognizance with conditions, is the other key part of the bill. It compromises a key principle of our justice system, namely, that one should be charged, convicted, and sentenced in order to be jailed. This provision would allow for the arrest and detention of people without ever proving any allegation against them. It could make people subject to conditions on release with severe limitations on their personal freedom, even if they have never been convicted of any crime. That is a serious departure from what we would normally expect from our justice system.

Some folks may say this is necessary, but I believe that jailing people because we think they might do something is extremely problematic, to say the least. It is easily apparent how such a measure can be abused.

There is a good example to be found in our practice already, and I think it is a very bad practice. It relates to the question of security certificates, which is a measure under the Immigration and Refugee Protection Act. We have seen this in the post-9/11 period. It was intended to expedite deportation of non-citizens. Under this legislation, we have seen it used as a method of detaining people, a method of preventive detention for people that the state suspected may have been involved in terrorist activity. The most recent cases were the five men who were detained for years, some up to eight years, without ever being charged or convicted of a crime.

I think this was a distortion of the intention of the security certificate legislation. I also think it was a process that violated basic human rights in Canada. Some of these men are still subject to release conditions as a result of the security certificate that this government issued against them and that the previous Liberal government initiated.

There are serious problems, and we have seen some of these problems emerge in the court processes that these men have been involved in over the years. In fact, a number of the security certificates have now been thrown out because of the length of time they have been used and problems related to evidence.

I have to emphasize that these people have never been charged or convicted of any crime in Canada. The security certificate process has had nothing to do with that. I think this is an indication of how a legal measure can be distorted. Security certificates were intended to expedite deportation for people who had violated the conditions of their stay in Canada. But they have been used for other purposes. That is something we need to consider when we are looking at extraordinary measures like the ones in this legislation.

I point out that there is no issue related to terrorism that is not already covered by the Criminal Code. I think the NDP's justice critic, the member for Windsor—Tecumseh has said this loud and clear on a number of occasions. The last time we were debating this issue in the House he put it very eloquently. I want to quote from his speech at that time. He said:

There is no act of terrorism that is not already a criminal offence punishable by the most stringent penalties under the Criminal Code. This is obviously the case for premeditated, cold-blooded murder; however, it is also true of the destruction of major infrastructure.

Moreover, when judges exercise their discretion during sentencing, they will consider the terrorist motive as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high and that deterrence and denunciation are grounds for stiffer sentencing. This is what they have always done in the past and there is no reason to think they will do differently in the future.

It is clear that there is no crime related to terrorism that is not already included in the Criminal Code. I can think of no circumstance of a crime committed as part of an act of terrorism that would not be dealt with in the strictest, toughest way by our courts. Some specific examples might be helpful. For instance, counselling to commit murder is already an offence under the Criminal Code. Being a party to an offence is also a crime. The crime of conspiracy is well established under the Criminal Code and deals with the planning of criminal activity.

Let us be clear. In the conspiracy category, no crime actually has to be committed for someone to be found guilty of conspiracy under the Criminal Code. A charge is possible even when no crime has been committed under the existing provisions of the Criminal Code of Canada.

We also have hate crime legislation that outlaws the promotion of hatred against a particular group, which may have some relevance in situations of terrorist activity.

The whole question of preventive detention also has an existing parallel in some ways in the Criminal Code. It should be noted that peace bonds provisions already exist in the Criminal Code and can be exercised where there are reasonable grounds to believe that a person's life or well-being is threatened by another person. This provision has similar power to preventive detention, as discussed in this bill, but more significant safeguards are built into the Criminal Code provision.

No one has demonstrated to my satisfaction that this existing provision will not meet the needs of dealing with terrorist activity. It is crucial to be very clear about that. We have not seen any evidence that there is a failure of the Criminal Code to deal with acts of terrorism or the planning of terrorist acts in Canada. We have not seen that the existing provisions of the Criminal Code of Canada need these extraordinary measures, which are an affront to some basic and long accepted and long established, for hundreds of years, principles of our justice system in Canada.

We need to be clear that when it comes to dealing with terrorism and conspiracy to commit terrorism, we really need to focus on and put our energy into police and intelligence work. We have seen in the past that Canada was ill-prepared when it met the challenge of a terrorist act. The Air India bombing comes to mind. Canada did not have the ability to appropriately investigate that situation. Police authorities did not have the resources, staff or people with the skills they needed to appropriately investigate that kind of crime.

We have to make sure in this process that our police and intelligence services have the personnel and resources they need to investigate potential terrorist acts and to charge those responsible. That has to be the flow. We have to do the investigations and lay the charges and ensure the full gamut of our justice system is engaged in that process.

I do not think it is appropriate to say that we are going to do the investigation and come up with some evidence but shut down the rest of the process of charging and hopefully convicting someone who is alleged to have committed those crimes. The conviction is very necessary in all of that. For me that is one of the failings in the security certificate process.

We have to be aware that these provisions were first proposed in a time of fear, after the attacks of 9/11. People were not exactly sure what was happening at that time. We have to also be aware that legislating in a time of fear and uncertainty like the period immediately after 9/11 can lead to bad legislation. It can lead to unintended consequences, ultimately, such as labelling and stereotyping individuals and groups in our society.

There is much evidence that says when we do that kind of thing, we do not make good legislation. Denis Barrette, the spokesperson for International Civil Liberties Monitoring Group, said at the Senate hearings on Bill S-3:

These laws are used in emergencies, where fear and panic are at the forefront—somewhat like what happened at the time of September 11, 2001.

Fear is never a good adviser. It is rather in moments of peace and quiet that the importance of preserving rights and freedoms should be rationally assessed. It is obviously important to defend them in difficult times, but we must plan for how to protect them in difficult times.

It is easy to protect rights and freedoms in peaceful times. We must provide for the unpredictable and ensure that, in a moment of panic, legislation does not result in innocent victims because it was poorly conceived or because it was dangerous or useless.

I believe that is what we have before us in Bill C-17, and that is why I strongly oppose this legislation.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 12:15 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Madam Speaker, I commend the hon. member for Burnaby—Douglas on his thoughtful and respectful remarks that manage to strike just the right balance when we are talking about civil liberties in this country.

One of the other areas of this legislation that shows its flaws can be found in its provision that anybody who refuses to accept or agree to the conditions that may be levelled by the court in terms of the preventive arrest protest can be jailed for up to 12 months. Several observers have pointed out it is highly unlikely that a bona fide terrorist would refuse to agree to those conditions but rather would agree to the conditions, of course, so that he or she could continue with any planned activities. This shows that provision to be relatively useless.

I wonder if the hon. member could comment on that or any other part of the bill that may provide a false sense of security because it is not well thought out or workable.

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September 21st, 2010 / 12:15 p.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Madam Speaker, my colleague's question brings me back to my point that there is no substitute for charges under the Criminal Code, for engaging the justice process, for getting somebody into court and proving the allegations or allowing that individual to disprove them, and for getting that person convicted and jailed.

We should be focusing our attention on that. We should allow our system to do that. We should make sure that our system has the resources it needs to engage that process fully without compromising the basic tenets of our criminal justice system, without inventing ways of short-circuiting it because we believe there is some kind of emergency or special circumstances.

Our system has proven its value over and over again. We have experience with it. We have the precedents to know how it works. We know its strong points and its failings. We do not need to invent new exceptions to that process. I believe the ones in this legislation are serious exceptions to that process.

This legislation is saying that somebody is compelling an individual to testify. Arresting and detaining and putting conditions on an individual for preventive reasons are serious abrogations of basic civil rights and basic elements of the process that we have in place in this country.

I do not think there is any evidence to show us that these provisions are useful, that they have been more effective in dealing with terrorism. We have not really engaged them. We may have used the compulsion to testify once in the Air India court case. I do not believe that any of the evidence gleaned in the requirement to testify by one of the witnesses was ever used or was found to be useful in the ongoing court case.

There is no evidence to my understanding that these provisions are useful, that they have been used, that this departure from the normal process is helpful in any way. It is very unhelpful. They go to a diminution of the important and basic values of our society and of our justice system. That is why I think this is dangerous legislation.

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 12:20 p.m.
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NDP

Megan Leslie NDP Halifax, NS

Madam Speaker, my colleague made me think about the difference between human rights and civil liberties. Human rights require state intervention whereas civil liberties are about ensuring that the state does not intervene.

When I think about human rights and civil liberties in that way and I think about our national security, which one would think would require state intervention as well, I am quite worried that our national security has become a value that actually trumps human rights and civil liberties. Any time we go down the path toward ensuring national security, we have to make sure there is a balance among these three things.

Could the member let the House know what he thinks about that balance? Can we achieve a balance among national security, civil liberties and human rights?

Combating Terrorism ActGovernment Orders

September 21st, 2010 / 12:20 p.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Madam Speaker, it brings me back to the question of what is the threat we are facing that requires these extraordinary measures.

The government has not presented any evidence that there has been a failure of the Criminal Code to deal with terrorist activity in Canada. In fact, since 9/11 there have been people charged with terrorist activity in Canada and there have been convictions. People have been sent to jail for those activities.

It seems to me that the system is capable of functioning without violating human rights and without violating civil liberties in Canada and using the existing provisions of the Criminal Code. It seems to me that if there were evidence that somehow people were getting away with these crimes in Canada at the present time or since 9/11, there might be reason to consider other measures. I am not sure that these measures would be worthy of consideration even in those circumstances, but in the absence of any evidence that there is a problem, I do not know why we are considering these measures again.

I think Parliament made the right decision when, after five years of these provisions being present in our criminal law, they were allowed to sunset and were passed over. Parliament realized at that time they were not necessary and were not helpful. I do not believe the government should be reintroducing them at this point.

Parliament has debated this issue in the past and I think the appropriate decision was made at that time.

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September 21st, 2010 / 12:20 p.m.
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NDP

Libby Davies NDP Vancouver East, BC

Madam Speaker, I would first like to thank the member for Burnaby—Douglas for his very thoughtful comments on Bill C-17. I think the member has spoken in this House every time this bill has been before the House. It is a measure of his concern and commitment which is certainly shared by my colleagues about the importance and the serious implications of this bill. I very much appreciate the history that he has given today and what he has reflected upon in trying to bring it forward in our Parliament.

One thing that strikes me in listening to his comments is that in today's Quorum, which has newspaper clippings from across the country, there is not one mention of this legislation being debated, but we can see page after page of stories on the gun registry. In talking about balance, if we could weigh those things, it makes me wonder how much the public is aware. People probably are not aware, other than those people who might be watching this debate on CPAC. When it comes to public awareness of this kind of legislation and the long-term impact it has on Canadian society and on our criminal justice system, I just do not think people have a clue. I wonder if the member could comment on that.

The member has spoken to this issue in the House a number of times. We have tried to get information out to let people know that this is coming up, that it is really serious and we need to pay attention to it. It is so unfortunate when we see all of the attention going to something like the vote on the gun registry and no attention going to this issue which of course will have a huge impact on everybody in Canada.

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September 21st, 2010 / 12:25 p.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Madam Speaker, the member for Vancouver East has raised an important issue about what does seize our attention.

I am thankful that here in this place there are members who are prepared to engage this important issue. I am thankful that the member for Vancouver Kingsway, our New Democrat public safety critic, is working very hard on this issue, that our justice critic, the member for Windsor—Tecumseh, and so many other New Democrat members are working hard on this issue and are prepared to participate in debate.

We know the central importance of the issues that are being challenged by this legislation. We will continue to do that work. We will continue to be on the record about our opposition to this legislation. Hopefully, that opposition will be noticed. Hopefully, we will change a few minds in the process of speaking publicly on this issue and that other Canadians will also come to realize the very serious nature of what the government is proposing and will come to understand that these measures are useless, dangerous and that we should not proceed with them.

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September 21st, 2010 / 12:25 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

Before resuming debate I should advise the House that we have now completed the first five hours of debate on this bill and we have come to the 10-minute interventions.

Resuming debate. The hon. member for Vancouver East.

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September 21st, 2010 / 12:25 p.m.
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NDP

Libby Davies NDP Vancouver East, BC

Madam Speaker, first, it is very nice to see you back in the Chair. We know that your quiet way of responding to the House and keeping the necessary level of control is very well-respected by the members. Welcome back.

I am very pleased to rise today in the House to speak to this bill, as I have on a number of occasions. I have been listening to the debate this morning and feeling so proud to hear my colleagues from the NDP. We heard from our justice critic, the member for Windsor—Tecumseh, yesterday. Today we heard from our public safety critic, the member for Vancouver Kingsway, who made a very compelling speech about what is wrong with this legislation and why we are opposing it. And we have just heard from the member for Burnaby—Douglas, again a New Democrat, who has been following this bill ever since he has been in Parliament.

I want to begin at that point because I was in the House in 2001 when this legislation was introduced very soon after the events of 9/11. I remember, and the member for Burnaby—Douglas spoke about this, the sense of panic and fear that did exist, even within this Parliament. I remember in debating the legislation at that time, almost 10 years ago now, the sense of the need to act, to bring in something to show that the government of the day, a Liberal government, was responding to these grotesque acts of terrorism and in having that debate back in 2001. It was finally passed in 2002.

I was not on the justice committee, but I remember reading the testimony from the witnesses, people who do reflect upon the law and the state of our criminal justice system. Even back then there were dire warnings and concerns that were expressed about the anti-terrorism legislation, in the manner that it was rushed through, that it was ill thought out, but fundamentally a question as to whether or not we even needed the legislation.

Here we are now, so many years later, in what we could say is a sober second thought and yet, we are poised to move ahead again on those elements of the original bill that were sunsetted. The reason that they were sunsetted, the five-year clause dealing with investigative hearings and preventative arrest, is they were so controversial that certainly the NDP and the Bloc, at the time, pressed very hard to get those measures included so there would be a proper and full parliamentary review on those very serious provisions in the original bill. As others have pointed out, when those sections came to their conclusion, at the end of February, a resolution that came forward in this House to actually extend those provisions for three years was actually defeated. I remember that debate, too, and I remember participating in that discussion.

I think at that point many of us were hopeful that we had had that serious second sober thought about the bill, about its consequences, how it had been used, the fact that it has not been used, and that the time was really to ensure that those sunsetted clause remained that way.

Here we are again debating those same provisions and because of the reversal by the Liberal Party, the Liberal members, it appears that this bill will now continue on to committee. We will see what happens after that, but it does not bode well.

I guess what I want to focus on is the fact that it does strike me as very compelling that, on the one hand, we are dealing with a matter as serious as this legislation and anti-terrorism. Some of us are trying to weigh up whether or not this kind of legislation is actually needed and yet, there is so little attention to it. That was my reason for asking the member Burnaby—Douglas because it astounds me that there is so little attention. There is no attention that I can see in the media and no awareness in the general public that we are debating this bill. We are about to march forward with these kinds of provisions that would have such a deep impact on Canadian society, our fundamental rights to remain silent, to remain innocent until there are charges brought.

These are very basic things within the Canadian democratic society. Yet, on the other hand we have the perfect storm around the gun registry. The gun registry is important. I am someone who is going to be voting to support the continuation of the gun registry. However, it is so ironic to me what gets attention and what does not.

Therefore, this debate today is really important. As individual parliamentarians and within our caucuses we have to reflect on what it is that we are unleashing again, what we are allowing to unfold.

Hearing some of the debate, one could be left with the impression that we have no laws in Canada to deal with terrorism and this is why we have to have it. I find that this is very much a disturbing trend that we see coming from the Conservative government. Its whole agenda is on formulating new laws, little boutique provisions, that it brings forward to the Criminal Code when in actual fact, when we look at it in the cold light of day, when we look at it in terms of real evidence and factual information, many of these laws that have been brought forward actually are not required. Our justice system and the laws that we have in the country are very comprehensive.

That is not to say that there are not changes that are needed, but if we look at the drug bill that we had in the House, if we look at the private member's bill on trafficking, they were all proposals that were designed to give people the illusion that somehow we are tackling a major problem.

As my colleague pointed out earlier, in some instances what we needed to be focusing on was better policing, better intelligence gathering or better enforcement of the provisions that we have.

This idea that for every issue and problem that we have in our society we need a new and tougher law, and we need to keep bringing these on, becomes like an assembly line of putting these laws one after the other. We end up debating them ad nauseam in the House. I think there is a pattern here and the bill is very much disturbingly a key element in that pattern that is coming forward from the Conservative government.

We have heard today of some of the provisions there are already in the Criminal Code to deal with suspected acts of terrorism. I do not have a shadow of a doubt that within our existing framework we do have adequate provisions to deal with this issue. By allowing these two provisions to go ahead, first, the one dealing with investigative hearings where someone can be compelled to attend a hearing and to answer questions, and second, on preventative arrest whereby someone who might be do something with no evidence necessarily can be arrested and brought before a judge, a decision can be made about whether or not to incarcerate individuals for up to 12 months or whether to release them on certain conditions. We have heard again and again that these provisions actually have not been used.

There was one situation with the Air India inquiry where one of these provisions was used but the evidence was never brought forward. However, in a general sense, over this many years the key provisions of the bill have actually not been used. It should tell us something about this legislation. It should tell us something about Canadian society.

It is very striking that we are again debating this legislation and about to move forward on these two very problematic clauses.

We have situations in Canada already where we have had serious movements within the justice system. The security certificate is one. The member for Burnaby—Douglas laid out very thoughtfully how even in that instance under the Citizenship and Immigration Act, where these certificates were meant to be used to expedite the deportation of people who were in violation of deportation, they too have been used in a very inappropriate way.

We have seen cases where individuals have been imprisoned for years at a time, some of whom went on hunger strikes. Their basic rights were violated and they lived in very difficult conditions.

In conclusion, New Democrats again will firmly stand in opposition to this legislation. We believe that these two provisions need to be abandoned. They do not need to go ahead. We will remain steadfast in that opposition and alert people to what is going on, and hope that other members of the House will come to that conclusion as well.

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September 21st, 2010 / 12:35 p.m.
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Bloc

André Bellavance Bloc Richmond—Arthabaska, QC

Madam Speaker, I am pleased to join my colleagues who have contributed to the debate on Bill C-17. I am not going to say anything the Bloc Québécois has not already said about this bill, but I am going to provide a few examples to illustrate how inappropriate it would be to renew the sunset clauses, as is the government's intention in introducing Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

In any bill we debate the Bloc Québécois likes to see a certain balance. In this specific case, in any legislative measure on terrorism such as Bill C-17, there absolutely must be a balance between security and respecting other basic rights.

Earlier, I heard an NDP colleague talk about human rights and civil liberties. Indeed, pushing things too far in one direction or another causes problems. That is where the government needs to step in. For example, if we go in the direction of inappropriate security that violates our civil liberties, we can end up in a situation like the one at the G20 in Toronto. People who had gathered together for a peaceful demonstration were arrested in their dormitory. They had not even started demonstrating.

There may be excessive preventive measures when it comes to security. The same is true in the other direction. If terrorists or potential terrorists can use loopholes to execute their Machiavellian and diabolical plans, then we have to do something about that.

When we look at what has happened since these sunset clauses were established, we realize that they have never been used. That is why the government has come in a few years later with the intention of reinstating these clauses, but there is no evidence to support their usefulness.

Between December 2004 and March 2007, there were several debates and several committees studied this issue. The Bloc Québécois listened to witnesses, read submissions, and questioned experts, representatives of civil society and law enforcement officials. We have all the tools we need, therefore, to determine our position on investigative hearings and recognizance with conditions, the two points being considered in this bill.

Then as now, we in the Bloc Québécois feel that it is better to provide more guidelines on investigative hearings. That is the first point we want to make. It is obvious to us that this exceptional provision should only be used in certain specific cases to prevent actions involving an imminent risk of serious harm, and not in the case of acts that have already been committed. This does not mean that we are opposed to investigative hearings, but they should be confined to specific cases when it is essential to have them.

In regard to recognizance with conditions, we are still opposed to section 83.3 concerning preventive arrest and recognizance with conditions. This is a useless and ineffective process. These clauses have never been used in all the time they have existed. Not only are they ineffective at fighting terrorism, but the uses to which they could be put will always be a sword of Damocles hanging over the heads of people, a clear danger to the rights of honest citizens.

I mentioned the G20 a little while ago. Justice will take its course, but there were clearly some abuses in the arrests that were made following the demonstrations. Some well-known agitators go to demonstrations of this kind, even if they are supposed to be peaceful, in order to create trouble. The police have a duty to arrest these people, and they generally do a good job in order to prevent things from degenerating into a riot.

Sometimes, though, the police get carried away, cross the barricades, and go after people who are there for perfectly legitimate reasons. This is still a democratic country. There are valid reasons, therefore, for going to demonstrations and expressing one’s disapproval of decisions the government has made or even decisions made on a global level. That is why these demonstrations occur. I think there was also a problem with this.

A number of experts testified that dangerous terrorist activities can already be averted effectively—even more effectively—through the normal application of the Criminal Code with none of the harmful consequences that preventive arrest may entail.

So we already have the tools we need. Our job as legislators is to improve the bills that come before us. We are never against that. We are always in favour of doing what we can to improve security, but to do that, we need to change a piece of legislation, amend it or add some clauses to improve and facilitate the work that our police forces do. When there is a lot of talk about these cases, it is because there is a problem.

The Criminal Code has all of the provisions required to implement measures to foil the plans of those who would commit terrorist acts. The mechanism we are talking about was eliminated in February 2007. Obviously, I am talking about the second point.

The investigation process should be reinstated only if major changes are made. Unfortunately, Bill C-17 does not do that. Preventive arrest has no place in our justice system because it can have such a devastating impact on people's reputations and because other effective measures are already in place.

Since yesterday, I have heard some of the government members' speeches, but I have heard no evidence whatsoever that any gaps exist or that the existing Criminal Code does not provide police forces with the means to counter the activities of those who would commit terrorist acts.

What I have heard is the Conservatives make malicious and sensationalist accusations against people who oppose Bill C-17, against those of us in opposition, the Bloc and the NDP. They accuse us of being practically pro-terrorism. Why bring back ineffective measures that have never even been used? There was a reason for the sunset clauses: the measures were made available to the police for a period of time to see whether they could be used effectively. But they were never used at all, so why bring them back in this bill? Furthermore, since sections of the Criminal Code already provide for effective action, why try to muddy the waters by proposing other measures?

Of course, we are always in favour of improving measures to make our streets and public places safer. However, the government is simply putting up a smokescreen, probably because they want people to see how important public safety is to them. We know that yesterday the Prime Minister listed public safety as one of his priorities, but Bill C-17 does not include any truly effective measures. And since these measures were ineffective when they were first introduced, I think it would be inappropriate to reinstate them today.

Since I am being told that I have very little time left, I will conclude by saying that it is always possible to improve our system and our safety, but it requires a balance as well as truly effective measures.

It is because of this analysis that we have decided not to support restoring this measure. Not only do we feel that this measure is of little, if any, use in the fight against terrorism but, more importantly, there is a very real danger of its being used against honest citizens. In addition, a terrorist activity deemed dangerous can be disrupted just as effectively through the current Criminal Code and existing measures.

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September 21st, 2010 / 12:45 p.m.
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Bloc

Maria Mourani Bloc Ahuntsic, QC

Madam Speaker, I would like to begin by commending my colleague on his excellent speech. He was successful not only in laying bare the pointlessness of this hot air and bluster bill, but also in showing us how dangerous the bill is, to the extent that it may infringe upon our human rights.

I would like to know what my colleague thinks about certain allegations that, in fact, are verging on no longer being allegations. A Canadian Press headline reads, "CSIS would use torture-tainted info”.

What does my colleague think about that allegation? Does he think that this kind of legislation will lead to both instances of abuse and arbitrary decision making?

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September 21st, 2010 / 12:45 p.m.
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Bloc

André Bellavance Bloc Richmond—Arthabaska, QC

Madam Speaker, I thank my colleague, the member for Ahuntsic, for her question. She asked this question of the Minister of Public Safety yesterday. As usual—and despite any assurances to the contrary before the session resumed—she failed to get an answer to her question.

As my colleague stated, these are allegations. However, any door that can be opened and may lead to cases of abuse is outright dangerous. I agree with my colleague on this matter. Moreover, as I said in my speech, why change something that already works well?

If there were urgent requests on the part of police officers and those folks who keep us safe, indicating that they are unable to fight terrorism in Canada and Quebec or—alongside Interpol—elsewhere in the world, then we would need to do something about it. If there were a legal loophole making it impossible for them to prevent people from committing terrorist acts, we would have to look into it. That much is obvious. And that is what we are constantly doing as we are dealing with a moving target.

With these measures, though, as my colleague pointed out—and this might actually occur under the current government—there is the risk that abuses will be committed in the name of ever-sacrosanct security—security that we actually agree with. If, for example, one of your children is arrested while taking part in a peaceful demonstration, you will realize at that point that there may have been an abuse of power under the guise of increased security.

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September 21st, 2010 / 12:50 p.m.
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Bloc

Maria Mourani Bloc Ahuntsic, QC

Madam Speaker, I would like to ask my colleague the following question. I would like to know what he thinks of the change in the Liberals' position. In 2007, there was some unanimity about the fact that these provisions did not serve any purpose and should not be renewed or extended. However, the government has introduced the bill again, so we now have Bill C-17 before us. The Liberals have suddenly changed their position. Yet, there is absolutely nothing new here. There have been very few changes.

I wonder what my colleague thinks is going on with the Liberals? Is this a matter of simple demagoguery and security one-upmanship?

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September 21st, 2010 / 12:50 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

The hon. member for Richmond—Arthabaska has less than a minute to answer the question.

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September 21st, 2010 / 12:50 p.m.
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Bloc

André Bellavance Bloc Richmond—Arthabaska, QC

Madam Speaker, in such instances, I always reply that we must ask the Liberals themselves why they suddenly reversed their position on the bill.

The bill will be examined in committee, but it is clearly useless. As my colleague said, we have already recognized that these clauses were totally ineffective. We will be wasting our time in committee. I have a feeling that the Liberals are putting up a smokescreen, as I accused the government of doing earlier, in preparation for the next election. They can use this to say they are against terrorism. I believe that all members of this House are against terrorism.

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September 21st, 2010 / 12:50 p.m.
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NDP

Megan Leslie NDP Halifax, NS

Madam Speaker, it is almost a cliché to say that the events of September 11, 2001 changed the world, but Professor Wayne MacKay, a professor at Dalhousie law school, wrote in a article called “Human Rights in the Global Village” that this was only partly true because:

—terrorism has been an international force for many years. However, on September 11, 2001 the reality of terrorism was visited on the heartland of the United States and it became clear to all that even a super power was vulnerable to the forces of terrorism afoot in the world. The world may not really have changed as a result of “9/11”, but the way that the United States, and by association Canada, approach the world did. We have become more cautious and national security has become a value that trumps most other values--including human rights.

Like most people, I have a very vivid recollection of where I was when the planes hit the Twin Towers in New York City. I was starting my first week at Dalhousie law school and was in the student lounge, which was packed with other students. We were all utterly silent.

I am not really one for numbers. I can never remember if it is Bill C-11 or Bill C-392 or Bill C-9 in the 40th Parliament or the 38th Parliament, but I remember Bill C-36, the Anti-terrorism Act that was introduced in 2001. I remember it like I remember 9/11 because even though I was a fresh-faced law student eager to learn about this great big concept called the law, a concept based on human rights, justice and fundamental freedoms, I still knew that Bill C-36 was a departure from that base of justice and human rights.

As first-year law students, a group of us started a student association called SALSA, the Social Activist Law Student Association. SALSA was and continues to be, and it is still at Dalhousie law school, the coming together of like-minded students who are interested in seeking justice, environmental, social and economic justice. We want to see it realized in our communities.

When Bill C-36 was introduced in 2001, we did not know what to do, but we knew we had to do something. Therefore, we organized a panel of human rights and justice criminal law experts to talk about the bill and educate us on what was exactly going on and what the bill was trying to accomplish. Some of us wrote letters to the editor, others wrote op eds and we wrote to our members of Parliament.

There was a growing consensus then that the dangers of Bill C-36 were that it would trump our human rights and civil liberties in the face of national security and allow for government to act in the shadows shrouded in mystery and secrecy. However, the one thing everybody hung their hats on was the fact that there was a sunset clause in the act. That was the first time I had even heard the term “sunset clause”. The idea was that after a period of time, a review of the legislation would automatically be triggered by Parliament.

The current bill, Bill C-17, proposes amendments to the Criminal Code that would reinstate provisions from the Anti-terrorism Act of 2001 that expired under that very sunset clause in 2007. Very specifically, the bill relates to investigative hearings whereby individuals who may have information about a terrorism offence, whether it is in the past or the future, can be compelled to attend a hearing and answer questions. No one attending a hearing can refuse to answer a question on the grounds of self-incrimination, which is quite different than if someone is in a court facing Criminal Code charges.

The other issue is preventive arrest whereby individuals can be arrested without a warrant in order to prevent them from carrying out a terrorist act. It is detention based on what someone might do. The arrested individual has to be brought before a judge within 24 hours, which is fair, or as soon as feasible and the judge determines whether that individual can be released unconditionally or with certain conditions for up to 12 months. Also, if those conditions are refused, the person can be imprisoned for up to 12 months.

International human rights and domestic human rights are increasingly related when we look at the global village of today. What we do in Canada affects the greater and wider world and our actions have worldwide implications. Similarly, actions outside of Canada's borders can and do have an impact here.

As Greg Walton wrote in a piece for the International Centre for Human Rights and Democratic Development:

Canada has an obligation to provide a model; we need to stand straight lest we cast a crooked shadow.

After my graduation from law school, I had the opportunity to work with Professor Wayne MacKay doing research and assisting with his preparation for the lecture that I spoke about, as well as his appearance before the Senate committee actually reviewing the anti-terrorism legislation back in 2005. While I was working with him, one topic of conversation that we kept coming back to was the idea of racial profiling.

Racial profiling has been defined by the Ontario Human Rights Commission, which is a really good definition, as follows:

...any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.

Professor MacKay pointed out that before September 11 the issue of racial profiling was really about driving while black. A stark example of this comes from my home province of Nova Scotia with the story of Kirk Johnson, a boxer whose case appeared before the Nova Scotia Human Rights Tribunal. When Mr. Johnson was repeatedly, over years, pulled over by police in his expensive car with Texas licence plates, the tribunal found that actually race was a determining factor in the police's decision to pull him over again and again.

Since September 11, that phrase, driving while black, has actually been recoined as flying while Arab. Profiling is broader than just race now. It takes into account religion, culture and even ideology. Concerns about profiling based on race, culture or religion are real but they are accentuated by threats of terror. There is an alarming tendency to paint an entire group with one brush when in fact it is the act of individuals rather than religious or ethnic groups that are at fault.

We know about the uproar in the United States with the proposed building of a mosque six blocks from the site of the World Trade Centre. We think that kind of thing certainly could not happen here but here at home, on the day after the arrests of 17 terrorist suspects in Ontario, windows were broken at an Islamic mosque in Toronto. It can happen here and it does happen here.

At the Senate committee hearings in 2005 actually reviewing the Anti-terrorism Act, Canadian Muslim and Arab groups argued that if law enforcement agents were going to use profiling in their investigations, profiling needed to be based on behaviour, not ethnicity or religion. However, in a Globe and Mail article, a member of this House on the government side cited a different opinion when he said, “(y)ou don't send the anti-terrorist squad to investigate the Amish or the Lutheran ladies. You go where you think the risk is”.

Within the context of Bill C-17, we need to think about the real danger of imposing a sentence. I know it is not a sentence in the strict criminal terms of what a sentence is, but it is a 12-month sentence in prison based on something someone thinks a person might do. We can layer that with the fact that we know profiling is happening in Canada.

We know the Criminal Code works. We know there are provisions in the Criminal Code for a wide range of charges related to anti-terrorism. It is working. How do we know that? It is because these proposed sections that we are talking about in Bill C-17 have never been used. Therefore, why would we take that risk?

We have anti-terrorism legislation that has proven to be useful. The reason that these two provisions have never been used and were not renewed at the end of the sunset clauses is that they did not meet that balance between national security and human rights and civil liberties. There is a reason they expired with the sunset clause and there is absolutely no reason for us to bring them back to life today.

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September 21st, 2010 / 1 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Madam Speaker, I congratulate my colleague on a wonderful speech that was full of intelligence, thoughtfulness and passion.

I know she has devoted her life to serving her community in a legal capacity. I wonder if she could give the House her thoughts on the potential application of the Charter of Rights and Freedoms in this legislation, in particular whether she believes this legislation might be subject to a successful charter challenge. I would be most interested in hearing her thoughts on that.

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September 21st, 2010 / 1 p.m.
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NDP

Megan Leslie NDP Halifax, NS

Madam Speaker, I note the member's definite commitment to seeking environmental, social and economic justice in his own community and across Canada.

It is a good question about the charter. Section 7 of the charter states that we have a right to life, liberty and security of person but we also have section 9 which states that everyone has the right not to be arbitrarily detained or imprisoned. Twelve months without a charge, 12 months of just investigation, kind of smacks of arbitrary detention to me.

However, beyond the charter, we have the International Covenant on Political Rights which, in article 9.1, states that everyone has the right to liberty and security of person. It looks like our charter. It goes on to state that no one shall be subjected to arbitrary arrest or detention. It looks like our charter. It goes on to state that no one shall be deprived of his liberty, except on such grounds and in accordance with such procedures as are established by law. It sounds like our charter.

We have domestic law that Bill C-17 seems to come up against, but we also have this international covenant where we have said out loud to the world that these are the rights that we respect, that this is the basis of our justice system and that these are the bases of human rights in Canada.

Bill C-17 goes up against our international obligations as well as our charter, which is part of our Constitution, the basis of all that is just and good here in Canada.

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September 21st, 2010 / 1:05 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

Is the House ready for the question?

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September 21st, 2010 / 1:05 p.m.
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Some hon. members

Question.

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September 21st, 2010 / 1:05 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

The question is on the motion. Is it the pleasure of the House to adopt the motion?

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September 21st, 2010 / 1:05 p.m.
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Some hon. members

Agreed.

No.

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September 21st, 2010 / 1:05 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

All those in favour of the motion will please say yea.

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September 21st, 2010 / 1:05 p.m.
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Some hon. members

Yea.

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September 21st, 2010 / 1:05 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

All those opposed will please say nay.

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September 21st, 2010 / 1:05 p.m.
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Some hon. members

Nay.

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September 21st, 2010 / 1:05 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

In my opinion the yeas have it.

And five or more members having risen:

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September 21st, 2010 / 1:05 p.m.
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Deepak Obhrai

Madam Speaker, I ask that the vote be deferred.

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September 21st, 2010 / 1:05 p.m.
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NDP

The Acting Speaker NDP Denise Savoie

The recorded division on the motion is deferred until tomorrow after government orders.