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.

Combating Terrorism Act

[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.

[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.

[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.

[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.

[Bob Dechert, Conservative, Parliamentary 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.

[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.

[Daniel Petit, Conservative, Parliamentary 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.

[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?

[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?

[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?

[Shelly Glover, Conservative, Parliamentary 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.

[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.

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.

[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.

[Rob Nicholson, Conservative, Minister 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.