Bill C-17 (Historical)

Combating Terrorism Act

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

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.

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

I have to ask one more question, and perhaps we can get the answer in, but I have to get the question in very quickly.

Because I represent a large Pakistani Muslim community in my riding, I've heard over and over again about the devastating impact on people's lives after 9/11. Could you share any personal stories on how people have been targeted and personally stigmatized by this legislation, and what could possibly happen if Bill C-17 passes?

[Bonnie Crombie, Liberal, Mississauga—Streetsville, ON]

Thank you, Mr. Chairman.

I suppose even the Anti-terrorism Act was perhaps an overreaction to 9/11, and that's probably the reason we had a sunset clause.

I have so many concerns, especially hearing the testimony.

Mr. Barrette, you said that the provisions encourage racial profiling, that the presumption of innocence is at stake, that there is a sense of the era of McCarthyism, and that the reputations, lives, and careers of Canadians can be destroyed. Given your statement, I can see that these provisions aren't necessary and that the Criminal Code, in fact, could be used to help protect against terrorism. I think you've just about all stated that.

To summarize, from what I've heard--I'm new to this committee--the provisions are unnecessary, ineffective, and possibly unconstitutional. They ignore the rule of law and the presumption of innocence, disrespect civil liberties, are possibly undemocratic, jeopardize human rights, stigmatize individuals, and target groups. That said, has this legislation been helpful in any way, and if so, how? I suppose the question is, why would the government pursue it? I'm just trying to understand the rationale for these provisions and this legislation. Is there any evidence for supporting the provisions or any rationale for passing BillC-17?

Thank you.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I think I'm quoting from your paper, although paraphrasing slightly, in stating that the recognizance and conditions power in Bill C-17is modest compared with its closest international analogies, and I think Mr. Copeland talked about a piece of legislation in Great Britain that he takes issue with because of its infringement on civil liberties. I imagine both of you will agree that in relation to other western democracies, Canada is not really out of line or going out on limb in Bill C-17, compared with the United States of America, Great Britain, and other western democracies. Is that a fair comment?

[Prof. Craig Forcese]

To summarize my position, I accept that there's an argument for preventative detention. There's a narrow gap. I'm not sure that Bill C-17 is useful in filling that gap, because there's a strong disincentive for law enforcement to use it. If the gap were to be filled by legislation, the legislation would have to be more aggressive in empowering law enforcement, and I'd be unprepared to have those extra-aggressive provisions imposed via this legislation in the absence of very robust checks and balances to enhance the civil liberties content.

[Prof. Craig Forcese]

This is the narrow gap that I was speaking about.

The way Bill C-17 is crafted for preventive detention allows law enforcement, when they have reasonable grounds to believe there is going to be a terrorist attack, to detain persons if they have reasonable suspicion to believe detaining them will forestall that terrorism attack. Conventional criminal law usually allows a person to be detained only when there are reasonable grounds, so the virtue from a law enforcement perspective is that it lowers the threshold for when someone can be detained for this finite period of time.

In my paper I speculate on when a situation may arise in which law enforcement believes there might be an imminent terrorist attack but may not have enough concrete evidence to single out an individual and to rise to the level of reasonable grounds to detain that person. They just have a suspicion about that person.

[Prof. Craig Forcese]

Essentially, I accept that there are circumstances in which conventional criminal arrest would be unavailable, in which the conventional rules on search and seizure would not necessarily mitigate the security risk, and in which in which law enforcement may actually have a bona fide reason to want to do something. The law does not provide for any avenue at present for them to do anything. That's the gap in which I think a system of carefully tailored preventive attention might be usefully deployed.

I leave open the question as to whether Bill C-17 is the best way of filling that narrow gap. I've already outlined some of my concerns about the practical implications of using it. I do accept the argument, however, that there is a very narrow, slender gap that right now is not filled by conventional law enforcement tools.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Thank you.

You note on page 1 that you have doubts that Bill C-17 would prove very useful to law enforcement in practice. Could you elaborate a bit on your doubts as to whether this bill would really change very much about how law enforcement operates?

[James Kafieh]

Thank you.

It is the position of the Canadian Islamic Congress that these provisions are not only damaging to Canadian values and fundamental legal principles but also unnecessary. In 2005 the Canadian Islamic Congress issued a position paper entitled “Security with Rights: Justice is the Ultimate Guarantor of Security”. In it, the CIC cited Muslim Canadian commitment to Canada and its security. The CIC further expressed its concern that the potential abuse of newly expanded security powers by CSIS and the RCMP would lead to abuse and the erosion of civil liberties. The CIC's concern remains unchanged. However, we have now nearly a decade of history that includes a narrative of how post-9/11 security concerns have led to a general undermining of our Canadian values and civil liberties.

The reliance of our international airports on measures now widely described as “security theatre” has alienated a growing segment of Canadians. No-fly lists, botched security certificates, and even indirect responsibility for the torture of Canadians overseas, as was found at the Iacobucci and other inquiries, have all taken their toll on public confidence, yet it must be noted that Muslim Canadians have played a critical role in supporting genuine Canadian security concerns. The Toronto 18 group, for example, was broken primarily because members of the Muslim community notified the authorities of their concerns. What is missing under the present security plan is a genuine partnership between Canadian security and the Muslim community.

An illustration of how strained things have become is the recent cancellation by the Minister of National Defence of a speaking engagement extended by the Canadian armed forces to the CIC's executive director, Imam Delic. The fundamental question is whether either draconian measure in this legislation is even necessary. Reid Morden, the former head of CSIS, believes that these measures are unnecessary and that they present significant dangers for civil liberties. The CIC agrees with him. Interestingly, the recognizance with conditions power has never been used during the five years of its existence, while the investigative hearings power was used only once, with no significant outcome.

Indeed there is no evidence that the Criminal Code, as currently composed, has failed to meet the demands of Canada's legitimate needs relating to security and justice. This prompts the question: why are these provisions being brought back?

If the committee decided to move ahead with this legislation, we would submit the following:

We don't agree with this bill, but we submit and recommend the following to minimize damage done to our legal system, Canadian values, and the fabric of our society: one, the revised investigative hearing provision should limit its scope to deal only with imminent terrorism offences.

Two, subsection 83.28(2) should be amended to make it clear that a peace officer must have reasonable grounds to believe that a terrorism offence will be committed before making an ex parte application.

Three, it should be clarified that anything done under sections 83.28 and 83.29 would be deemed proceedings under the Criminal Code.

Four, the investigative hearing powers should include the granting of full immunity from prosecution on all matters about which only truthful information is provided.

Five, access to a lawyer of the compelled person's choice should be facilitated without delay or interference and be funded at the cost of the crown before, during, and after the investigative hearing.

Six, the compelled person should also have unrestricted access to a special advocate having unfettered access to all information in the care, custody, or control of the crown in relation to the compelled individual.

Seven, the provision for detention without charge for a period greater than 24 hours should be removed entirely from Bill C-17.

Eight, the power set out in Bill C-17 should not be implemented until the accountability framework for the RCMP has been fully enacted and is fully operational.

Nine, compensation for the wrongful use of these powers must be provided to harmed persons.

Ten, an independent oversight mechanism answering directly to Parliament should be established to oversee the provisions in Bill C-17 for as long as these provisions remain part of the Criminal Code.

Eleven, a sunset clause with an evaluation framework must be included with the legislation.

I will close with a couple of thoughts.

We are often told during difficult times that what we need to do is find the correct balance between security and rights. I conclude with the words of Benjamin Franklin, who well over 200 years ago shared the wisdom that those who compromise their liberty for security soon find that they have neither. The recent example of the security measures at last summer's G-20 conference in Toronto and the devastating impact they had on the quality of our civil liberties provide a timely reminder that Mr. Franklin's wisdom remains relevant today in the discussion of this security legislation before this committee.

[James Kafieh]

Among the provisions of that legislation were the investigative hearing and recognizance with conditions powers that are now reintroduced in Bill C-17. This time the war-on-terror hysteria has largely dissipated.

With regard to investigative hearings, this provision bears strong resemblance to the Star Chamber of old. Although the present legislation conveys an air of protection from self-incrimination for individuals compelled to appear, this protection is easily lost when two or more persons are so rounded up. For example, two or more persons may find themselves prosecuted not on the basis of information they gave but on the basis of information they gave about each other.

To avoid an end run on the centuries-old right of persons to remain silent and to be protected from self-incrimination, the investigative hearing powers should include the granting of immunity from prosecution for compelled persons on matters about which they provide only truthful information. In short, persons would then be strongly motivated to tell the truth, the whole truth, and nothing but the truth. What more do we legitimately want?

We also need to bear in mind that not everyone who chooses to remain silent in such circumstances is guilty, and that choosing to remain silent is not an admission of guilt or a proof of guilt. People may, for example, have legitimate concerns for themselves, their families, and their communities.

Such an extraordinary measure as investigative hearings should only be used for the purpose of preventing an imminent act of terrorism. It should never be used as an investigative tool for past acts. The present text of Bill C-17 allows for investigative hearings for past events, for which the imperative of safeguarding of innocent life from imminent attack is wholly absent. This is, in itself, an escalation from the previous form of this provision. Such an escalation shows that we are already witnessing creep in the use of such provisions before the court.

In addition, the investigative hearing provision fundamentally alters and distorts our system of justice in that it places prosecutors in the role of investigators and places the judiciary in a position of presiding over a criminal investigation.

With regard to recognizance with conditions, Professor Craig Forcese's paper, entitled “Catch and Release”, quotes justice laws of the English Court of Appeal as stating that the most fundamental, and probably the oldest, most hardly won, and most universally recognized of human rights is freedom from executive detention, yet it is this very right that is being negated by Bill C-17. Recognizance with conditions allows a peace officer, with prior consent of the Attorney General, to lay an information before a provincial court judge if he or she believes that a terrorist act will be carried out and suspects that the imposition of a recognizance with conditions or the arrest of a person is required to prevent it.

This provision allows for the arrest and detention of people without ever proving any allegation against them. It could also make people subject to conditions on release with severe limitations on their personal freedom, even if they have never been convicted of any crime. Anyone refusing to accept and comply with the terms of the recognizance may be imprisoned for up to 12 months. The legislation does not limit the number of times this provision may be reapplied.

How is this consistent with our Canadian values and the principles upon which our system of justice is founded? Canadians have the example of security certificates to understand the impact that this kind of provision can have. The most recent cases of five men who were detained for up to eight years without ever being charged or convicted of a crime should give us all cause for concern.

Bill C-17 creates a legal regime in which all Canadians will be subject to measures indistinguishable from those of the now largely discredited security certificates that were limited for use only against immigrants and refugee applicants.

[Prof. Craig Forcese, Associate Professor, Faculty of Law, University of Ottawa]

Thank you, Mr. Chairman, and members of the committee.

In these submissions, I take no view on the desirability of Bill C-17 in its present form. As Mr. Copeland mentioned, I have written a lengthy paper setting out my support for a limited, carefully restricted form of short-term preventive detention in Canadian law as a last-gasp tool for law enforcement in confronting a reasonable fear of a serious act of terrorist violence, which does not include a fellow walking around with a padded coat on Parliament Hill.

That paper enumerates features designed to render such a system effective while at the same time remaining compliant with civil liberties expectations found in international and Canadian law. I believe the system of preventive detention that is part of Bill C-17's recognizance with conditions power is modest as compared with its closest international analogues. I have doubts that it would prove very useful to law enforcement in practice, but I also believe that efforts to render the provision more effective as a law enforcement tool would have to be buttressed by inclusion of more robust civil rights checks and balances. Such efforts would require reconsideration of the basic architecture of this bill, a task for which I suspect there is little appetite or time in this committee.

I have more acute concerns about the reach of the actual recognizance provisions--that is, the peace bond. Not least, there is very little clear guidance in the bill and in the constitutional jurisprudence on the reach of the conditions that can be imposed via such a peace bond. If the practice under the immigration security certificate regime is any indication, anti-terrorism-related conditions may be quite strict and may be intrusive on liberty.

I have in the past urged parliamentary consideration of the kinds of stricture that may be imposed via a peace bond in the context of both this and predecessor bills and in the parallel provisions in section 810.01 of the Criminal Code. Again, such a review would require sustained scrutiny by this committee. In the absence of such a time-intensive review, I believe there is at least one change that this committee should make to this bill, one related to the investigative hearing provisions.

Bill C-17 is in essence a reimplementation of the original provisions found in the 2001 Anti-terrorism Act. However, developments in constitutional law since 2001 mean that the provisions found both in that original statute and now also in Bill C-17 cannot be read literally. They must be read with an eye to the constitutional jurisprudence of the Supreme Court if they are to be applied in a constitutionally acceptable manner.

Put another way, Parliament is proposing enacting legislation that cannot be read alone. Those applying it must now be expected to have the legislation in one hand and the volumes of the Supreme Court reports in the other. This, in my view, is an invitation to confusion and is fundamentally inconsistent with what I see to be the role of legislation: to provide clear instruction on the applicable law.

Turning specifically to the amendment that seems necessary to satisfy this concern, as you know and as Paul mentioned, in 2004 the Supreme Court examined the 2001 investigative hearing provisions and ultimately concluded that they were constitutional. However, in doing so, the Supreme Court read in certain requirements in the use of investigative hearings, the most important being an expansion of what's known as “derivative use immunity”, guaranteed in the present bill by proposed subsection 82.28(10).

While that clause extends immunity to subsequent criminal proceedings, the Supreme Court said it must go further than that. It cannot be used in any kind of proceeding, including extradition and immigration proceedings. This is a constitutional requirement, and it should be codified right on the face of the bill.

I will stop there. I am happy to address this or any other issues and questions.

[Ihsaan Gardee, Executive Director, Canadian Council on American-Islamic Relations]

Thank you for the invitation to appear before you today to share our views on Bill C-17, an act to amend the Criminal Code (investigative hearing and recognizance with conditions). My name is Ihsaan Gardee, and I am the executive director of the Canadian Council on American-Islamic Relations, or CAIR-CAN. I am joined today by Khalid Elgazzar, a member of CAIR-CAN's board of directors. He is with me to endeavour to address questions of a legal nature.

CAIR-CAN is a national, not-for-profit, grassroots organization that for the past 10 years has worked to empower Canadian Muslims in the fields of human rights and civil liberties, anti-discrimination and outreach, and public advocacy.

We are mindful of the increased emphasis on public safety and national security in response to the threat of terrorism during the last decade. For the record, Canadian Muslims, like our fellow citizens, are unequivocally committed to their nation's security. We are also cognizant of the real risks to our free and democratic society posed by overreaction and fear when they are used as the basis of public policy and legislation. At the end of the day we risk eroding the foundational values upon which Canada rests, while not making us any safer from terrorism. In short, it would be a lose-lose situation.

We strongly disagree with those who would suggest that attaining a balance between human rights and security is an insurmountable task. In addition to sharing many of the concerns others have raised regarding the proposed legislation, Canadian Muslims have particular misgivings regarding how security regimes such as Bill C-17 have a disproportionate impact on members of our communities that may be considered discriminatory.

In our view, Bill C-17 raises a number of serious concerns that we hope this committee and Parliament will address by not making this bill into law. Chief among our concerns is how the proposed legislation may impact human rights and civil liberties in Canada. We also have concerns about the danger posed by the gathering of information that could be shared with foreign governments whose record on human rights is questionable. The lack of caveats or controls on information sharing has already had a devastating impact on the lives of a number of Canadian Muslims. Finally, we are also concerned about the efficacy of and the need for the proposed legislation, and we are concerned about the potential for abuse, despite measures proposed by others to mitigate this potential.

With regard to the impact on individual freedom and liberty, after 9/11 every major criminal terrorism-related incident, from the Toronto 18 to the case of Momin Khawaja, has been disrupted and prevented without the need for preventive detention or investigative hearings. Some legal commentators have argued that there is a narrow gap within the Canadian context in which preventive detention has utility. However, there are significant risks associated with overreaching state powers, such as the ability to detain someone for up to 72 hours. To jeopardize civil liberties for a potential yet unrealized circumstance pushes the boundaries between civil rights and concrete national security concerns.

It is CAIR-CAN's position that our Criminal Code has existing provisions that are more than sufficient to enable our courts and law enforcement agencies to disrupt and prevent terrorism-related offences before they occur. Under section 495, a detained individual arrested on reasonable grounds must be brought before a judge, who may impose the same conditions as those available under the proposed anti-terrorism measures. The judge may even refuse bail if he or she believes that the person's release might jeopardize public safety. We feel that the experience of the last 10 years has demonstrated that the burden of surrendering civil liberties will be disproportionately borne by Canadian Muslim communities.

It remains unclear how terrorism-related acts are distinguished from other criminal acts in their practical application. For example, the recent firebombing of an RBC branch in Ottawa prior to the G-20 summit was treated as an act of arson, and no charges were laid under anti-terrorism provisions. We are not advocating a broadening of the definition of terrorism; we merely wish to draw attention to the fact that the application of anti-terrorism measures has not affected all groups in an equal manner.

With regard to the dangers of unrestricted information sharing, CAIR-CAN is also deeply concerned about how information gleaned during the proposed investigative hearings could be, and has been, used against Canadian Muslims. We know that in other jurisdictions, capital punishment or other cruel and inhumane treatment is acceptable and, in some cases, routine.

We need look no further than the case of Maher Arar to see how the unfettered sharing of information without any safeguards or adequate redress mechanisms has had a devastating and irreversible impact on both the individual in question and the community to which he belongs.

Not only does the proposed legislation not address issues of redress; even if redress mechanisms were adequately provided for, they would not account for the lingering and deeply personal impact on those who, while subsequently cleared of any involvement in terrorism, must still live with the real and destructive stigma of having been previously labelled a terrorist by the Canadian state and its security agencies.

As Justice Dennis O'Connor highlighted in the Arar inquiry report, and I quote: "The impact on an individual's reputation of being called a terrorist in the national media is obviously severe. As I have atated elsewhere, labels, even inaccurate ones, have a tendency to stick."

Even if one's story did not become the subject of national media attention, the label of “potential terror suspect” is one that has a chilling effect on both the individual concerned and also, by extension, on his community.

I will move on to consider the need for, and the effectiveness of, BillC-17. As has been pointed out in previous hearings of this committee on these provisions, police officers can already use existing Criminal Code provisions to arrest someone who it is believed is about to commit an indictable offence.

Section 495 of the Criminal Code states, and I quote:A peace officer may arrest without warrant a person...who, on reasonable grounds, he believes...is about to commit an indictable offense

Reid Morden, a former head of the Canadian Security Intelligence Service, or CSIS, expressed serious concern about the impact on our legal system of the provisions contained in BillC-17. Of particular note, Mr. Morden explained to the CBC, and I quote:

Speaking strictly of those two particular provisions, I confess I never thought that they should have been introduced in the first place and that they slipped in, in the kind of scrambling around that the government did after 9/11...It seemed to me that it turned our judicial system somewhat on its head. I guess l'm sorry to hear that the government has decided to reintroduce them.

In summary, CAIR-CAN believes our existing criminal law regime and system of natural justice more than adequately addresses the need to prevent terrorism offences before they occur. BillC-17 is therefore unnecessary, and at the end of the day jeopardizes civil liberties and the rule of law.

To conclude, it is CAIR-CAN's considered and strong position from a rule-of-law perspective that our elected representatives must take a clear and unambiguous stand to ensure that the charter's fundamental rights are protected against the very real risk posed by extraordinary and unnecessary new police powers.

We would like reiterate our position that the proposed provisions would, in all likelihood, disproportionately impact upon members of the Canadian Muslim communities.

Our security agencies have already disrupted and prevented terrorism-related incidents using ordinary security and investigative techniques. It is CAIR-CAN's belief that our law enforcement agencies should continue to be given support in executing intelligent and efficient policing that is carried out within the bounds of the rule of law and the charter.

Thank you.

[Denis Barrette, spokesperson, International Civil Liberties Monitoring Group]

Good afternoon. My name is Denis Barrette. I am here today representing the Quebec Chapter of the Ligue des droits et libertés, but also as spokesperson for the International Civil Liberties Monitoring Group. I have distributed a paper with some quotations in it. I will be discussing them in my presentation.

The International Civil Liberties Monitoring Group, or ICLMG, is a Canada-wide coalition of civil society organizations established in the wake of terrorist attacks in the United States on September 11, 2001. The coalition is made up of 40 NGOs, unions, professional associations, religious groups, environmental protection groups, human rights and civil liberties associations, as well as groups representing the immigrant and refugee communities in Canada

To begin with, I would like to say that we have already appeared a number of times before the House of Commons and Senate committees. Our position has not changed with respect to the anti-terrorism law, particularly in relation to the two provisions under discussion today.

The coalition believes that the provisions dealing with investigative hearings and preventive arrests, which are intended to impose recognizances with conditions, are both dangerous and misleading. Debate in Parliament on these issues must draw on a rational and enlightened review of the anti-terrorism law. As we know, that legislation was rushed through Parliament after 9/11 in a climate of fear and under very considerable pressure from the United States.

Nine years later, in 2010, the terrorist threat still exists, but it is not the only threat facing humanity. However, the two provisions under discussion here rely on the very broad definition of terrorist activity and participation in terrorist activities. They enable law-enforcement authorities to carry out preventive arrests and to compel individuals to testify for challenging authority and engaging in dissent, when such activities have nothing to do with what is normally considered to be terrorism.

Furthermore, the current provisions encourage racial profiling and profiling on religious, political and ideological grounds. In its report on Canada in November of 2005, the U.N. Human Rights Committee noted its serious concerns with respect to the excessively broad definition of terrorist activity in the Anti-terrorism Act. The committee stated the following in paragraph 12:The State party should adopt a more precise definition of terrorist offences, so as to ensure that individuals will not be targeted on political, religious or ideological grounds, in connection with measures of prevention, investigation and detention.

In 2007-08, when reviewing Bill S-3, the Senate recommended that the legislation be amended to restrict the scope of that definition. I would refer you in that regard to recommendations 2 and 3 made by the Senate. Yet C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) makes no change whatsoever to the definition, something which will certainly have an impact on the application of these two provisions.

At this point in time, what is the real objective need for these two provisions? From the time of their introduction in 2001 until their repeal in 2007, the only time they were used was in relation to the Air India case which, as you all know turned out, sadly, to be a total fiasco.

Since 2007, police investigations have succeeded in dismantling terrorist conspiracies using neither one of the provisions we are talking about today. Furthermore, since 2001—in other words, in the last 10 years—none of the investigations that resulted in charges or convictions required the use of these extraordinary powers, whether we're talking about the Khawaja affair, the Toronto 18 or, more recently, the four individuals in the Toronto region.

The first provision makes it possible to bring individuals before a judge in order to provide information, when the judge is of the view that there are reasonable grounds to believe that the individual has information about a terrorism offence that has or will be committed. A refusal to cooperate may result in arrest and imprisonment for up to one year. Furthermore, the provision dealing with investigating hearings gives the state a new power of search. Not enough is being said about this. The fact is that this provision can compel an individual to produce an object before a judge or tribunal, which will then pass it on to the police.

What is even more significant and pernicious is the concept of inquisitorial justice introduced by this provision. Under the criminal law in Canada, inquisitorial justice is a new concept. It's a new paradigm between the state, the police, the judiciary and citizens. As we all know, in Canada, as is the case in all common law countries, the criminal law is founded on the adversarial system. That is not the case in France, where there is an inquisitorial process. Our concern is that this new concept could be introduced at a later date into other Criminal Code provisions and applied to other crimes or minor offences. That means that in the medium or long terms, the presumption of innocence could be threatened.

We also believe that the investigative hearing provision may bring the principle of judicial independence, and therefore, the justice system itself, into disrepute. With judicial investigation, the entire concept of adversarial debate disappears. I invite you to carefully read the dissenting opinion of Supreme Court Justices Fish and LeBel in a case by the name of Application under s. 83.28 of the Criminal Code. The two Supreme Court justices concluded as follows in paragraph 191:

The implementation of s. 83.28, which is the source of this perception that there is no separation of powers, could therefore lead to a loss of public confidence in Canada's justice system. The tension and fears resulting from the rise in terrorist activity do not justify such an alliance. It is important that the criminal law be enforced firmly and that the necessary investigative and punitive measures be taken, but this must be done in accordance with the fundamental values of our political system. The preservation of our courts' institutional independence belongs to those fundamental values.

I also note that throughout these two provisions, the notion of suspicion as warranting retaliation against citizens is reinforced. With respect to the provision relating to the concern that a person might commit a terrorist act, section 810.2 of the Criminal Code is already in force. It already allows authorities to impose fairly broad conditions on an individual who poses a serious danger to the public. Furthermore, section 810.01 deals specifically with the risk of terrorist activities and allows a judge to impose conditions to prevent a terrorist act from being carried out. These provisions are already in the Criminal Code, and yet the second provision under discussion—clause 83.3—allows for an additional 72-hour period of detention, as well as the right to collect and record the information of innocent people under the Identification of Criminals Act, which specifically includes section 83.3 as grounds for bertillonnage.

You may also recall the need to establish some means of monitoring the activities of both the RCMP and CSIS with respect to national security, something that was raised by the Maher Arar commission. I would just point again to the lack of such a mechanism and the dangerous nature of these two provisions.

Finally, we believe it is extremely important to highlight the fact that these two provisions, even though they are not being used in our judicial system, will always pose a risk because of their ability to become a formidable and worrisome tool of intimidation. Such a tool will be highly injurious to the individuals concerned. Even though they may not be compelled to appear before a court of law, the impact of these provisions will not be trivial. If they're used, they will result in people being labelled, even though they have never been charged with any crime.

As occurred with McCartyism, the fear of seeing one's reputation tarnished through such a process, being detained for 72 hours and then brought before a judge to answer questions masterminded by police, amounts to a formidable process of denunciation. And, when you're talking about informations secured through coercion, without the free and voluntary process which is part and parcel of the criminal law, you are automatically talking about unreliable, biased and misleading informations. Every lawyer knows how unreliable reluctant witnesses can be. And we also know, particularly since the Maher Arar commission of inquiry, that even a simple investigation can be enough to destroy a reputation, a career and even the future of an innocent person never charged with any crime.

We know as well that these provisions could, as we see it, be abused. I am thinking here of the Air India case. We believe that Canadians will be better served and better protected under the usual provisions of the Criminal Code, rather than others that are completely unnecessary. Reliance on arbitrary powers and a lower standard of evidence can never replace good, effective police work. On the contrary, these powers open the door to a denial of justice and a greater probability that the reputation of innocent individuals, as occurred with Mr. Arar, Mr. Abou-Elmaati, Mr. Almalki and Mr. Nureddin, will be tarnished.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

I call the meeting to order.

Good afternoon, everyone. Welcome to the 47th meeting of the Standing Committee on Public Safety and National Security. This is Monday, December 13, 2010.

In our first hour we will have six witnesses before us. Actually, they are going to be here for an hour and three-quarters, if I'm not mistaken. We will hold the last 15 minutes for committee business, as we decided last week.

We will begin our study of Bill C-17, an act to amend the Criminal Code (investigative hearing and recognizance with conditions). The Minister of Justice and his officials will be here on Wednesday. In the lead-up to that, today we will hear from a panel of witnesses who will bring some concerns to our attention. We can ask the minister about those concerns when he appears.

Today we have with us, from the International Civil Liberties Monitoring Group, Denis Barrette. Welcome.

From the Canadian Council on American-Islamic Relations, we have Ihsaan Gardee, executive director, and Khalid Elgazzar, member of the board of directors. Welcome.

From the University of Ottawa, we have Craig Forcese, associate professor, faculty of law. Welcome.

From the Law Union of Ontario, we have Paul Copeland, lawyer, and from the Canadian Islamic Congress, we have James Kafieh, counsel.

Each of the organizations appearing before us today has prepared an opening statement. Before we go to questions from our committee, I would welcome those opening statements. Perhaps we'll begin with Monsieur Barrette.

Monsieur Barrette, welcome.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone, and welcome here. This is meeting number 41 of the Standing Committee on Public Safety and National Security, on Monday, November 22, 2010.

Just before we get into the orders of the day, I want to encourage all of our members to submit their lists of witnesses for the coming hearings on Bill C-17, the investigative hearing and recognizance with conditions bill. We have only two meetings scheduled for that bill, on December 13 and December 15. The justice minister will be appearing for the first hour and departmental officials in the second, but we do have witnesses who we would ask opposition and government members to get in for the other. We will want to hear those witnesses. We have not had too many submitted as of this point. For the clerk to be able to send the invitations out, we would ask that you get them in as soon as possible.

Today we're going to continue on our study of Bill C-23B, an act to amend the Criminal Records Act, and at the same time we're conducting a review of the Criminal Records Act as per Dona Cadman's private member's business motion M-514.

Our committee thanks the witnesses who have appeared before us here this afternoon. From the John Howard Society of Manitoba we have John Hutton, executive director, and Barrett Fraser, board member. From Building Urban Industries for Local Development, we have Chris Courchene, level one carpenter apprentice, and Andrea Derbecker, training coordinator. From Opportunities for Employment, we have Kenton Eidse, employment consultant, facilitator for the community office, and Mumtaz Muhammed, a participant at the community office.

I understand that each of these three organizations has opening comments and brief remarks, and then we will go into the first round of questions, which is a seven-minute round. The second and all other rounds are five-minute rounds.

Madame Mendes has asked—

Combating Terrorism Act

[The Deputy Speaker, Conservative, Andrew Scheer]

It being 5:30 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-17.

Call in the members.