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

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, Bill S-7 is the latest chapter in a long saga that began in the wake of September 11 and led to a number of legislative measures. Bill C-36, the Anti-terrorism Act passed in 2001, was the first salvo launched following the horrific events in New York which still strike fear in people today.

Obviously, the legislation was brought in not only to respond to this threat and to protect Canadians, but also to meet our international obligations, as dictated at high levels, to the UN.

Some of the provisions of the Anti-terrorism Act amended existing pieces of legislation such as the Criminal Code, the Access to Information Act and the Proceeds of Crime (Money Laundering) and Terrorism Financing Act.

Other more significant changes were brought in, notably unprecedented changes to Canadian law. Those who were serving in the House at the time of the 2001 attacks perhaps can attest to the fact that this legislation was passed hastily and without due consideration.

Facing the unknown and a climate of dread, Parliament responded in a strong-armed, reflexive manner. There is a reason therefore why these provisions, crafted in the urgency of the moment, were subject to sunset clauses.

These so-called sunset clauses ensured that the more controversial measures would simply be temporary. That was for the better. The provisions in question pertained to preventive arrest and investigative hearings.

Had the desire arose to extend the life of these provisions, had they been deemed useful or relevant or had it been acknowledged that they had prevented an otherwise inevitable catastrophe from occurring, there would have been an opportunity to maintain them and make them permanent.

To do so would have required a resolution by both Houses of Parliament. A resolution was in fact tabled and rejected. Parliamentarians in their wisdom found that there was no valid reason to extend the life of these provisions.

Both Houses did their homework as far as these measures were concerned. Each one examined the most sensitive provisions of the 2001 Anti-terrorism Act. In October 2006, the House of Commons Standing Committee on Public Safety and National Security reviewed the legislation, most notably the investigative hearings and recognizance with conditions provisions. The other place produced an aptly named report entitled “Fundamental Justice in Extraordinary Times”.

Despite this flurry of activity, these questionable, freedom-destroying and fortunately temporary provisions expired as originally scheduled in 2007.

Since then, several attempts have been made to resurrect this long-settled debate: Bill S-3 in 2008, Bill C-19 in 2009 and Bill C-17 in 2010.

Each time, the same conclusion has been reached: the state currently has all the tools it needs to combat terrorism.

There was no reason to bring in these measures, even in 2001, and there is no reason to re-introduce them today.

The measures being debated today are not harmless. Among other things, Bill S-7 would re-introduce into Canadian law the phenomenon of investigative hearings that allow a peace officer to apply to a provincial court judge for an order to compel individuals to appear before a judge if they are suspected of having information concerning future terrorist acts. The provision would compel the individual to attend hearings and to answer investigators’ questions.

Another important measure that is being brought hastily before the House is the recognizance with conditions provision which includes preventive detention. It would give a peace officer the authority to arrest an individual without a warrant if he believes such action is necessary to prevent a terrorist act. The individual in question is subsequently brought before a judge, as soon as feasible, according to the wording of the bill, and may be imposed certain conditions, or may even be committed to prison for a term not exceeding 12 months.

From a human rights standpoint, these provisions are very restrictive. One could also argue that they are cause for great concern and that careful consideration should be given to the balance that must be struck between the real advantage they provide in terms of public safety and the cost to citizens, which undeniably in this instance is restrictions on a person’s fundamental rights. Admittedly, at issue are the rights of the individuals primarily concerned, but ultimately the rights of all citizens are affected as well.

Dramatist Henry Becque wrote that freedom and health have much in common and that we only appreciate their value when they are lost to us.

I am greatly concerned about the timing of today’s debate, about the fact that the government has chosen to move it up in light of what has happened. As noted earlier, the 2001 Anti-terrorism Act was passed hastily and this is not how debates on national legislation should unfold.

Today it would seem that an attempt is being made to recreate the same climate of fear and panic in order to hastily push through a bill that has serious implications for people’s freedoms.

It goes without saying that the people in my riding, Longueuil—Pierre-Boucher, want to live in safety. However, they also believe very strongly in the rights that belong to every individual. Many of them are going to wonder whether this is the right time to be debating the measures in Bill S-7, when people are recovering from the horrific, cruel and gratuitous attacks that took place last week at the Boston marathon.

We do not need any added emotion for debating this bill. What we need is some distance, some reflection, and some calm and considered thought.

To me, there is nothing wise about the government precipitating this debate. I stress the word “wise”.

Is it really wise, the day after attacks like that, and with what we have in the news here in Canada, to be rewriting our laws and redefining our fundamental freedoms?

Perhaps it is the usual opportunism we see from this government, in its typical crudeness and poor taste.

We on this side firmly believe that this bill is contrary to the fundamental values of Canadians and the values on which our judicial system is built.

The unambiguous and unvarnished goal of these measures is to limit the civil liberties and fundamental rights of Canadians.

Those rights include basic elements of our judicial system that we take for granted: the right to remain silent, the right to a fair trial and the right to be considered innocent until proven guilty.

The principles of our law, whose origin lies in centuries-old customs and legal traditions, lay out individual rights that are unwavering.

While the draft we are presented with today includes a few sops that are supposed to reassure us, because they are in the form of additional protections, these proposals are very unconvincing overall.

We also oppose these measures simply on their track record: these methods are ineffective in principle.

Ultimately, we firmly believe the Criminal Code is an entirely satisfactory tool for investigating these suspicious people who engage in shady plans or whose goal is to threaten the public. Those are crimes and that is what the Criminal Code is intended for.

In fact, the provisions drawn up in 2001, which had a “sunset clause” that took effect in 2007, were never used. Those measures made people uncomfortable from the outset, in 2001, because they were inimical to liberty.

In 2010, a former director of the Canadian Security Intelligence Service, Reid Morden, said, on the question of the two measures I referred to earlier:

...I confess I never thought that they should have been introduced in the first place...

He raised the idea that these provisions had slipped into the act almost by mistake.

...and that they slipped in, in the kind of scrambling around that the government did after 9/11...It seemed to me that it turned our judicial system somewhat on its head.

He then stressed that law enforcement agencies already have the powers they need to do their job. They do not need additional powers. He concluded by saying:

I guess l'm sorry to hear that the government has decided to reintroduce them.

It appears that these measures caused misgivings among the forces of law and order, who wisely decided not to use these powers in their investigations.

Can someone really explain why these measures would be useful today, when they were not useful in the months following September 11, and that even the people who could have enforced them did not want to?

Finally, when some rights are under threat, all rights are under threat. Under the provisions of this bill, there is not much to ensure that citizens or anyone will not be falsely accused in the future for activities that have nothing to do with terrorism. Some activities may be considered subversive or dissident—slippery words that can be applied to peaceful activities in a democratic context.

Those who defend fundamental human rights are speaking up from all sides, telling us that these measures are unnecessary and that the price to be paid will be paid in civil rights, which is not a fair exchange for the proposed benefits. These measures are unwanted and unnecessary.

We saw this a few years ago when threats of spectacular terrorist attacks were foiled. We saw it again yesterday, when the admirable public safety professionals arrested two suspects who, it appears, wanted to disrupt the lives of ordinary people and do them unimaginable harm.

At this moment in time when terrorism has become part of current events, it is essential that we resist. We must resist terrorism in order to protect ourselves, prepare ourselves and defend ourselves. We must make our trains, airports, public spaces and gathering places safe and secure.

It is also essential that we, as a society, as communities and individuals, refuse to be terrorized by terrorism, and refuse to be manipulated or to change our behaviour and lifestyles. That is precisely what we should not do.

We must not be terrified by terrorism. To stand up to terrorism is to ensure that democracy and individual liberties for everyone in our country are never threatened by such people and their violence.

Since I have only a few seconds left, I just wish to express my astonishment at the Liberal Party's inconsistency. In 2001, the Liberals adopted the sunset clauses, but today they are not proposing any amendments of the sort. I cannot explain that.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Mr. Speaker, this is an interesting debate. I have been listening to a lot of the arguments that have been flowing around this place.

As a preamble to what I am going to say, it seems to me that we have another bill before us that we probably do not really need. The impression I am getting, via the events of today and the events that have happened in the past few years, is that we have sufficient means and sufficient legislation to work for the safety of our country.

The intent of the original Anti-terrorism Act was to update Canadian law to meet international standards, such as meeting the requirements of the United Nations, and as legislative reaction to 9/11. All the provisions of this act, except for the investigative hearings and the recognizance with conditions, remain law today.

The sunset clause was attached to the original bill because serious concern was expressed during the 2001 law-making process that these measures were largely unprecedented in Canadian law and could easily be used inappropriately.

What I find interesting is that, upon review of this legislation that was passed as a reaction to a specific event and in a state of panic, we have learned that there was in fact no need for that legislation.

As of the day of their sunset, a number of investigative hearings have been held. There were no instances when recognizance with conditions was required.

It is unfortunate that the mandated parliamentary reviews of legislation made a number of recommendations that were not incorporated into Bill S-7. It is my understanding that the NDP proposed 18 amendments. It is not unlike what happened to us on the food safety bill. We came and said we would work with the government to improve the bill that was before us—necessary at that time—and it then rejected all of our amendments.

As our colleagues are probably already aware, we have proposed amendments that would improve transparency and strengthen reporting requirements, to minimize the negative impact of the bill on Canadians’ civil liberties. This is an important point. These amendments are based on evidence we heard, so we did not just make them up. As I understand it, we drafted amendments on the basis of evidence heard in committee that reflect the values that we believe are dear to Canadians.

Among the issues dealt with in these amendments, there is first the addition of a SIRC review of a possible co-operation protocol between the agencies, to ensure its effectiveness and its respect for rights protected by legislation before the offences relating to leaving the country come into effect.

Second, we want to ensure that the evidence gathered during investigative hearings cannot be used against an individual during extradition or deportation proceedings, and not just during criminal proceedings.

Third, we want to ascertain the right to legal aid provided by the federal government if the individual is to appear at investigative hearings.

Fourth, we want to ensure that annual reports include detailed information about all changes to the legislation, to policies or to practices in terms of exit information or exit inspections.

Fifth, we want the comprehensive reviews to cover the implementation of the four new offences relating to leaving the country and for the issue to be dealt with by elected members of Parliament, not just by the Senate.

Other amendments have also been proposed, but they were all rejected by the Conservatives. This is the key point.

As this House has already heard, this bill has been in the works for months. It came from the Senate and all of a sudden the Conservatives decided to bring it forward today.

We have received the answer to our question; we know why we are discussing this bill today. I do not need to belabour this point.

I would like to point out that the hon. member for Windsor—Tecumseh spoke against Bill C-17 in the House in 2010. He said:

When facing a crisis, we as political leaders feel that we have to do something even when all the evidence shows that the structures we have, the strength of our society, the strength of our laws, are enough to deal with it. We passed legislation in early 2002 to deal with terrorism when we panicked. We have learned in the last eight years that there was no need for that legislation.

My colleague, the hon. member for Windsor—Tecumseh, is a lawyer. He spent many years in the field. He was our justice critic. He is always the person to whom many of us look, to this day, for his judgment when it comes to the various laws here, and he has basically said that we do have sufficient legislation to combat what we need to combat in regard to terrorism.

I mentioned the actions of today, and I would like to congratulate and thank all those law enforcement officers and those men and women who have put together the roundup today, that they were able to penetrate a terrorist cell. I am not sure of the details, but as a citizen I would like to thank them for that effort. We have professional people on the ground who collaborate, not only with other law enforcement agencies in our country but with other countries, and that goes on. What we need to do is give them more resources, not fewer resources as is happening now. We need more resources to beef up our borders, to ensure we do not have illicit guns coming across the border, and to have people on the ground to penetrate terrorist cells and to work with their counterparts in other countries, so that we in this country can continue to feel safe.

Something that disturbed me, and this is a result of one of the committee hearings, is that Reid Morden, former director of the Canadian Security Intelligence Service, stated in 2010:

Speaking strictly on those two particular provisions, I confess I never thought that they should have been introduced in the first place and that they slipped in, in the kind of scrambling around that the government did after 9/11....

It seemed to me that it turned our judicial system somewhat on its head. I guess I'm sorry to hear that the government has decided to reintroduce them.

Police and security services have “perfectly sufficient powers to do their jobs” and “they don't need any more powers”.This is the former director of CSIS, saying this in 2010. As I flipped through my notes and tried to prepare my speech, that disturbed me.

I will sum up by saying that I believe, as do members of my party, that we have the legislation in place. If we are going to improve, we need to improve the resources on the ground so we can equip those men and women to combat the potential terrorism threats to our country, which I feel confident they are capable of doing.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Far be it from me to tell the Supreme Court of Canada that they don't mean what they say.

Ms. Cheung, you testified on Bill C-17—a similar bill—on February 10 of 2011. You said, and I'm quoting:As it is currently drafted...the investigative hearing provision...leaves open room for potential misapplication of the law.

This is a new iteration of it, and when Minister Nicholson, our Minister of Justice, testified before this committee on November 19 of this year, he noted several and numerous safeguards, including: (i) that the prior consent of the Attorney General of Canada, or the attorney general or solicitor general of the province, would be needed before a peace officer could apply for an investigative hearing order; (ii) there would have to be reasonable grounds to believe that a terrorism offence has been or will be committed; (iii) the judge would have to be satisfied that reasonable attempts have been made to obtain the information by other means for both future and past terrorism offences; (iv) the bill clarifies that section 707 of the Criminal Code, which sets out the maximum period of detention for an arrested witness, applies to a person arrested with warrant and detained in order to ensure his or appearance at the investigative hearing; (v) the witness would have the right to retain and instruct counsel at any stage of the proceeding; (vi) a person could refuse to answer a question or produce anything that is protected by Canadian law relating to the non-disclosure of information or privilege; (vii) federal and provincial attorneys general would be required to report annually on any use of investigative hearings; (viii) this annual report would include an additional requirement that the Attorney General of Canada and the Minister of Public Safety provide their opinion, supported by reasons, on whether these provisions should remain in force.

In other words, there is evidence not only before the Canadian public on a continuing basis but also before Parliament on the use of this.

Do you think such safeguards are important, these ones I've listed?

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, I am very pleased to stand today in the House to speak against Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act. The genealogy of Bill S-7 takes us back to Bill C-36, the Anti-terrorism Act, which was tabled by the Liberal government in 2001. The original intent of the Anti-terrorism Act was to provide the Canadian legislative response to the events of September 11, 2001, 9/11 as we now know it.

There is no question that day should not and indeed cannot be forgotten. The images of passenger planes flying into those iconic towers repeat themselves over and over again in news, television and film, and undoubtedly in the mind as the memories of the many who were personally impacted by that act of terror.

I note with sadness that my colleague from Esquimalt—Juan de Fuca and his partner have such memories to bear.

As these images repeat themselves, we witness the deaths of nearly 3,000 innocents, including 24 Canadians over and over again. That day we awoke to a new kind of threat and a new level of threat. Most importantly, we awoke to a new and profound sense of vulnerability, so we responded.

Several provisions of Bill C-36 became permanently enshrined in other legislation such as the Proceeds of Crime and Terrorist Financing Act, the Criminal Code and the Access to Information Act. However, several parts of the Anti-terrorism Act had sunset clauses expiring in February 2007. These provisions concerned investigative hearings and recognizance with conditions or preventive arrest provisions.

These measures were largely without precedence in Canadian law and for good reason. We believe that these provisions run contrary to fundamental principles, rights and liberties enshrined in Canadian law. The rights and liberties violated include the right to remain silent and the right not to be imprisoned without first having a fair trial. We believe that these are important restrictions on the authority of the state because in their absence there is not sufficient protection of an individual's freedom.

As per the terms of the Anti-terrorism Act, these provisions, in order to be extended, had to be adopted by way of resolution by both Houses of Parliament. However, the resolution was defeated soundly, 159:124 in this House, and these controversial provisions of the Anti-terrorism Act sunsetted.

We know that the efforts did not end there. Similar bills were proposed in 2008, 2009 and 2010 in the forms of Bill S-3, Bill C-19 and Bill C-17 respectively. It seems this is an annual, or almost annual rite. Now they are back.

Time has passed in the interim, a decade roughly since Bill C-36 was brought before the House, and time has been instructive. Since the passage of the Anti-terrorism Act, the recognizance with conditions or preventive arrest provision has never been used. The investigative hearing provision has been used once in the Air India case. Many consider that exercise to have had no positive effect, in fact quite the opposite.

Paul Copeland, a highly experienced and respected lawyer representing the Law Union of Ontario, speaking about this sole experience with the investigative hearing provision, said to the Standing Committee on Public Safety and National Security in 2010 that the Law Union characterized this episode “as a fiasco, and I think that's an appropriate description”. He went on to say about all the provisions examined:

The provisions you are looking at here, in my submission, change the Canadian legal landscape.... They should not be passed, and in my view they are not needed. There are other provisions of the code that allow for various ways of dealing with these people.

This seems to be the nub of the issue. Without such extreme provisions, without changing the legal landscape of Canada, without breaching the rights and civil liberties of Canadian citizens, we have successfully protected the safety and security of Canada and Canadians from terrorist attack. These provisions have proven over the course of time to constitute an unnecessary and ineffective infringement.

As the former NDP justice critic said in the House in 2010:

When facing a crisis, we as political leaders feel that we have to do something even when all the evidence shows that the structures we have, the strength of our society, the strength of our laws, are enough to deal with it. We passed legislation in early 2002 to deal with terrorism when we panicked. We have learned in the last eight years that there was no need for that legislation.

The only thing to add to that summation is that in the past decade we have learned that we did not need this act.

The proof, as they say, is in the pudding. As Denis Barrette, spokesperson for the International Civil Liberties Monitoring Group, noted before the standing committee on Bill C-17 in 2011:

Since 2007, police investigations have succeeded in dismantling terrorist conspiracies using neither one of the provisions we are talking about today.

He concluded:

We believe that Canadians will be better served and better protected under the usual provisions of the Criminal Code, rather than others that are completely unnecessary. Reliance on arbitrary powers and a lower standard of evidence can never replace good, effective police work. On the contrary, these powers open the door to a denial of justice and a greater probability that the reputation of innocent individuals...will be tarnished.

We have borne witness to that in this country.

While these provisions have proven to have no effect on the fight against terror, they have had a profound social impact on Canada and many Canadians. On the eve of 9/11 this year, I showed a film at my local review theatre, the Fox in the Beach. The film is called Change Your Name Ousama. It was produced and directed by local filmmaker Fuad Chowdhury and focuses on a community in my riding of Beaches—East York called Crescent Town. Crescent Town is a very densely populated and diverse community, which is largely made up of Bangladeshi Canadians, most of whom are Muslim.

The film is not a point of view film. It was made for television and screened at the Montreal film festival. It includes significant interview footage, for example, of the assistant director of CSIS. It also includes footage of our Prime Minister in a fairly recent CBC interview telling Canadians that the major threat to Canada is still Islamicism. The film also tells the story of what it feels like to be one of about a million Muslim Canadians living in a political climate where their religion has been held to be a threat to the security of their country.

It is noted in the film by a University of Toronto academic that governments, through their actions, have the power to create stigmas and to marginalize communities. Of this we need, in this place, to be very mindful and sensitive. This is where the film gets its title. It was the advice, amidst the political fallout of 9/11, of a Muslim leader of Crescent Town to members of his community, “Change your name Ousama. Shave your beard. Do not wear your kufi”. In essence, “change or disguise your identity”.

Motivated as they have been, bills such as that introduced in 2001 by the Liberals and its partial reprisal today in the form of Bill S-7 have had that impact. They have left so many across this country and in my riding feeling like they have something to apologize for, as if the onus rests on them to demonstrate somehow that they are not terrorists.

Herein lies a great tragedy. In Bill S-7, as with Bill C-36 before it, we have before us a bill that contradicts not just the legal heritage of this country but a fundamental social and political heritage that takes us back decades at least, a heritage of which we should be proud and protective. The heritage I speak of is the opportunity to maintain and exercise one's culture and religion in Canada freely and still be and feel fully Canadian. This social and political heritage is one that has made us a great place, a place where so many around the world long to come to live.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I am rising today to speak to Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act. I want to state at the outset that New Democrats will be opposing the bill.

Since 2001, we have had an opportunity to revise the bill, which was adopted in reaction to a particular event that sent people into a state of panic. We have learned that there is actually no evidence to support such legislation. When these provisions expired in 2007, we found that there had been no investigative hearing and no situation that required a recognizance with conditions. Since 2007, the investigative hearing has only been used once as part of the Air India inquiry, but that led to no conclusive results. I am going to talk more about that later.

Bill S-7 has four objectives. The first is to amend the Criminal Code to authorize investigative hearings and authorize the imposition of the recognizance with conditions or preventative arrest. Second is to amend the Canada Evidence Act to allow judges to order the public disclosure of potentially sensitive information on a trial or an accused, once the appeal period has ended. The third is to amend the Criminal Code to create new offences for those who have left the country or tried to leave the country to commit a terrorist act, and finally, to amend the security of information to increase maximum sentences incurred for harbouring a person who committed or intended to commit a terrorist act.

I am going to focus on the investigative hearings and recognizance with conditions. I want to give some context here. New Democrats oppose the bill because it is an ineffective way of combatting terrorism and because it is an unnecessary and inappropriate infringement on Canadians' civil liberties. New Democrats believe that Bill S-7 violates the most basic civil liberties and human rights, specifically the right to remain silent and the right not to be imprisoned without first having a fair trial.

According to these principles, the power of the state should never be used against an individual to force a person to testify against himself or herself. However, the Supreme Court recognized the constitutionality of hearings. We believe that the Criminal Code already contains the necessary provisions for investigating those who are involved in criminal activity and for detaining anyone who may present an immediate threat to Canadians.

We believe that terrorism should not be fought with legislative measures, but rather with intelligence efforts and appropriate police action. In that context one must ensure that the intelligence services and the police forces have the appropriate resources to do their jobs.

I want to quote from Denis Barrette, a spokesperson from the International Civil Liberties Monitoring Group, at the review by the Standing Committee on Public Safety and National Security on former Bill C-17, which was an earlier version of Bill S-7. Mr. Barrette said:

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

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

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

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

There are a number of concerns that have been raised with particular aspects of the legislation. It is important to note that sometimes it also gives Canadians a false sense of security. Again, what we need is appropriate resources to ensure that these activities are monitored and prosecuted where appropriate.

The Canadian Civil Liberties Association has a quote from the Supreme Court of Canada on national security from 2002.

The Supreme Court stated:

On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to...meet this challenge.

It goes on to say, however:

On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.

Again, I think it is important that we balance the safety of Canadians and the need for Canada to play its role in combatting terrorism, domestically and internationally, with those civil liberty rights.

In an op-ed referring to Canada and 9/11, which was originally published on September 6, 2011, the Canadian Civil Liberties Association stated:

Prior to the attacks, we demonstrated a high level of commitment to certain core values -- rule of law, due process, equality, habeas corpus, presumption of innocence, and the absolute prohibition against torture. These values lay at the heart of our Constitutional and international law obligations.

We knew, from contemporary history, that the absence of such legal protections resulted in societies where exceptional measures became the norm. Such societies could devolve into accepting presumptions of guilt, secret trials, secret evidence, extrajudicial execution, arbitrary detention, torture, even ethnic cleansing and massacres. To prevent such devolution, Canadians knew that any incursion into civil liberties must be legally and demonstrably justified in a free and democratic society; unjustifiable incursions must be remedied.

It goes on to do an analysis about whether or not we, in Canada, can make that same claim today, and I will only read the sections that are actually applicable to this act. It states:

Our national security actions since 9/11 require our attention:

It talks about a number of things, including Afghan detainees and using immigrant and administrative processes and counter-terror initiatives.

However, the piece that I want to highlight is:

Canada seeks to re-introduce post 9/11 amendments to our Criminal Code that will enable interrogation and preventive detention without criminal charge. Civil liberties concerns include the undermining of due process, fair trial, and lower evidentiary thresholds to trigger proceedings.

These concerns are being raised on a number of fronts about the lack of due process.

Later on in its article, it acknowledges that:

...Canada has not taken the extreme legislative or administrative measures seen in other countries, including the United States, following 9/11.

However, it goes on to state:

But we have not always got it right. And when we fail to take timely action to provide accountability, transparency, and redress, we risk morphing from a state anchored on the rule of law and democratic guarantees, to a state that condones illegal actions and disregards human dignity.

Terrorists have little regard for human dignity, human life, human rights, or the rule of law. We cannot effectively fight terrorism and protect our national security if we operate from a paradigm that also disregards these objectives. If, as Canadians, we no longer shrink from the injustices of wrongful conviction; torture, cruel, inhuman and degrading treatment; racial profiling; arbitrary detention; impunity; then what exactly are we protecting?

I think that is a very good question, one that we need to ask ourselves as parliamentarians and as Canadians. I think that most Canadians would want to continue saying that we in Canada do protect those civil liberties, that right to due process.

I want to put into context where the Conservative government has missed an opportunity because the review of the Anti-terrorism Act was conducted over a number of years. Someone who did the analysis on it pointed out that the review that was supposed to happen at three years became the three-year review.

In 2007, the subcommittee on the review of the Anti-terrorism Act submitted a report. I want to quote from the minority report that was put forward by the member for Windsor—Tecumseh. I do not have time to read the whole report but many Canadians probably have not read that report and I just want to highlight a couple of the points that come back to the challenges we are facing with this bill before us.

In that report, the members noted:

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

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

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

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

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

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

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

This is an important point. We have had the Supreme Court point this out and we have had civil liberties organizations point this out. It is the continuing need to balance the right to protect Canadians in terms of due process with our role domestically and on the world stage.

This dissenting report goes on to say that the Criminal Code already contains this solid arsenal of provisions for combatting terrorism. The Anti-terrorism Act has simply added two more that no police force has yet seen the need to use. Further in the report, it states:

But the ATA is also dangerous, because it is a frontal attack on a number of fundamental principles that underpin our system of law, the system that distinguishes us most sharply from the ideology motivating the terrorists who confront us.

The report continues:

The Civil Liberties Union and the Canadian Association of University Teachers drew up a long list of such principles, including: the presumption of innocence; the right to privacy and to be secure against searches and any kind of invasion of privacy; the right not to be stopped, questioned, arrested or detained based on mere suspicion or on racial, religious or ethnic profiling; the right of every individual to a public, just and fair trial, and the right to appeal; the right to make full answer and defence; the right to be secure against arbitrary imprisonment and torture; the right to bail while awaiting trial, and to have the validity of detention reviewed by way of habeas corpus; the right of asylum; the right to information and to freedom of the press.

We must also learn from our overreactions in the past when faced with danger. As the danger recedes, we feel obligated to compensate the innocent victims of useless measures taken out of fright.

Not only did these measures do nothing to increase our security, but we devoted a great deal of energy to them that could have been better employed in fighting the real danger more effectively.

Sadly, Canada does have a history of reacting to something that ended up not being a threat to Canadians' security at all. The report cites:

One example is the way we treated Canadians of Japanese origin during the Second World War. In 1942, 22,000 people of Japanese origin were arrested and detained, and their property confiscated. 75% of them had been born in Canada. And yet, government documents finally made public in 1970 revealed that both the Department of National Defence and the Royal Canadian Mounted Police were convinced that Japanese-Canadians in no way threatened the country’s security.

I want to repeat that. It states, “...in no way threatened the country's security”. As a result of that, of course, the federal government eventually made an official apology and some financial restitution and put some money toward creating educational, social and cultural programs and activities.

However, it is an example of a response to a frightening world situation that unjustly penalized many Canadians.

During the First World War, some 5,000 Ukrainians were interned and 80,000 others were required to report regularly to the police. A number were forced to endure harsh living and working conditions and more than a hundred died during their internment.

There are other examples of how Canada has behaved in a way that many of us would argue did not respect due process and the liberties that many men and women in this country have fought so hard for.

Later in the report, it states:

Respect for our values is an important element in the war against terrorism. At the plenary closing session of the International Summit on Democracy, Terrorism and Security in Madrid on March 10, 2005, United Nations Secretary General Kofi Annan declared once again, “[T]errorism is a threat to all states, to all peoples.” He added,

[Terrorism] is a direct attack on the core values the United Nations stands for: the rule of law; the protection of civilians; mutual respect between people of different faiths and cultures; and peaceful resolution of conflicts.

But he then went on to say,

[T]errorism is in itself a direct attack on human rights and the rule of law. If we sacrifice them in our response, we will be handing victory to the terrorists… I regret to say that international human rights experts, including those of the UN system, are unanimous in finding that many measures which States are currently adopting to counter terrorism infringe on human rights and fundamental freedoms… Upholding human rights is not merely compatible with successful counter-terrorism strategy. It is an essential element.

In the conclusion of the report, one of the things that was recommended was a parliamentary oversight committee. This report was back in 2007. It states:

Canada is unique among western nations in its lack of a Security oversight committee. Over the course of the review we heard testimony from individuals and organizations who stressed the importance of creating a mechanism for overseeing disparate national security activities. In 2004 an Interim Committee of Parliamentarians on National Security was set up to make recommendations to the government of the day, it presented a report to Parliament in April of 2005 and on November 24, 2005, the government tabled a bill (C-81) to establish a National Security Committee of Parliamentarians.

This dissenting report goes on to say:

We would support recommendation 58 in the majority report. We would, however, further strengthen the recommendation to ensure that any Committee has authority to oversee all security agencies. In the examination of the Air India tragedy and the events surrounding the deportation and torture of Maher Arar, to cite but two examples, we have seen and heard of too many problems created when information is improperly shared or withheld from one agency to another.

The National Security Committee must in addition to providing a review function, be empowered to oversee current polices and conduct to ensure their adequacies. We have throughout the course of the review heard that vast amounts of information are deemed of national security interest and therefore inaccessible to the public or judiciary. Therefore, the proposed National Security Committee must be able to examine this information and where appropriate provide a graduated scale for the release of previously classified information.

Of course, over the years we have increasingly seen a government that withholds information. This is not part of this bill, but we recently we saw a very public feud between the government and the Parliamentary Budget Officer because of the government's refusal to release information and there were threats of court action in order to get information that the Parliamentary Budget Officer needs to do his job.

The same can be said to be true of many of the government departments. One almost needs a full battery of people working on access to information and analysis of the different ways this information is presented because when information is available, it is not presented in such a way that it is easily understandable and many times there are huge difficulties even accessing information which should rightfully be available to parliamentarians in order for them to do due diligence in doing their jobs.

This minority report went on to make a couple of recommendations. I will not read them all, but it states in part:

While the purpose of the ATA review was to examine the existing legislation and, while we cannot write an entirely new law, we would recommend that the existing ATA be terminated. However, if a new law were to be drafted, the following considerations should guide the process:

That new legislation seek to provide the utmost protection to, and not oppression of, our citizens;

That the new legislation be guided by the spirit and principles of the Charter;

That new legislation would prohibit “evidence” garnered from torture domestic or international, in our courts or tribunal;

That there be an absolute ban on sending people back to their country of origin or any other country where there is a reasonable risk of torture or death.

The reason I raised that report from 2007 in the context of the legislation that is now before us, Bill S-7, is that we can see that Bill S-7 largely disregards some of the recommendations that were made, principally around due process. We have a re-introduction of the clauses that were sunsetted around preventative detention and investigative hearings.

It is on those grounds that the New Democrats will be opposing the legislation.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am pleased to talk about Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.

This bill is one of a series of anti-terrorism acts that started in 2001 following the September 11 attacks in the United States.

Bill S-7, the Combating Terrorism Act, aims to reintroduce anti-terrorism measures into our legal system. Those measures have been controversial since they were introduced in 2001.

In my opinion, those measures were introduced in 2001 because everyone was panicking. Everyone considers September 11, 2001, to be a turning point. We are all aware that everyone panicked and that we did not really know how to react to the attacks.

If I asked, every member of the House would be able to tell me where they were and what they were doing when the attacks took place.

For my part, on September 11, 2001, I was 17 years old and starting my college-level nursing studies; I was in my psychology class, and the professor entered the room to announce that there had been attacks in the United States and that a plane had flown into the twin towers.

One of my colleagues, somewhat in a panic, said, “My mother is in New York right now.” Everyone panicked. We all remember that day; we can all say what we were doing when we heard the news.

When all this happened, I was in my first year as a student in Sherbrooke, which is closer to the U.S. border further south, and my father, quite a sensible, brave man—I am really proud of him—called me to say that if I could return to Abitibi if I wanted. He understood that I might feel safer further north. A man like my father, whom I fully respect and who is really brave, was concerned and even in a bit of a panic knowing that I was far away. Everyone panicked.

Nobody knew what was going on, and laws were passed quickly because something had to be done. Elected representatives panicked, and so did the people. Something had to be done immediately. The main anti-terrorism acts passed after September 11, 2001, stem from that.

The text of the bill before us would amend the Criminal Code. It adds to and amends the list of terrorist activities, increases the penalties provided, particularly for harbouring a person who has committed a terrorism-related offence, and amends the Canada Evidence Act and the Security of Information Act.

It is true that terrorism in many forms is a threat to our society, and we must address it. However, it is always a good idea, when discussing crime bills, to consider what constitutes the hard line and what is the intelligent and effective line because the two may be synonymous at times and not at others. Consequently, we must take the time to consider exactly what we want, and I believe we must always aim for the intelligent and effective line.

These days, the opponents of a democratic regime are less and less likely the conventional forces they previously were; they are much more frequently rebel groups or terrorists, who obey no rules or international conventions, no treaties or rules for parties at war.

However, if our opponents do not abide by those rules, is it not appropriate for us to ask ourselves whether we are prepared to abandon those rules in order to guarantee public safety? Sometimes we have to take the time to think and ask ourselves whether we are not selling our soul to the devil by accepting things that go too far for the sake of public safety.

So we must be very cautious when we talk about these things. For example, should we endanger the human rights and individual freedoms that are truly dear to our country, to our democracy, and for which people have fought, for which Canadian forces have fought several wars? Should we set aside the progress we have made? The answer is no.

Why? The Combating Terrorism Act raises this question: are we discharging our public safety obligations? Anti-terrorism measures have previously been taken, and all those provisions remain in effect today, with the exception of those respecting investigative hearings and recognizance with conditions. A sunset clause, which expired in 2007, was put in place with respect to those provisions because they were viewed as a short-term solution to an emergency and because concerns had been expressed at the time. So it is somewhat as I was saying earlier: following the events of September 11, 2001, panic set in. We took measures, without knowing whether they should be maintained, in response, as it were, to the climate of panic that had set in.

Before they were eliminated, these measures were never useful. Before 2007 they were never necessary. They were used only one time, and it was not a success. But now the government wants to reinstate these same measures, which were never used in a situation that was considered to be an emergency situation at the time.

In more recent cases, it was not necessary to use these specific measures. The existing provisions in the Criminal Code were more than sufficient. We are in the process of bringing these individuals to justice, under the provisions and conditions that already exist in our Criminal Code. In 2007, when these measures came to an end, the House rejected the resolution to extend these provisions.

Our desire to be seen as doing something about law and order is making us lose sight of the notion of justice. Our system must not become focused on law and order instead of justice.

If we look at the application of our laws, we can see that the current provisions are already sufficient. Furthermore, the committees responsible for examining this issue heard the testimony of a number of stakeholders who said that existing Canadian laws were enough. For example, during the 2011 study by the Standing Committee on Public Safety and National Security on the old Bill C-17—which was the earlier version of Bill S-7—Denis Barrette, the spokesperson for the International Civil Liberties Monitoring Group; Ihsaan Gardee, the executive director of the Canadian Council on American-Islamic Relations; Ziyaad Mia, the chair of the Advocacy and Research Committee of the Canadian Muslim Lawyers Association; and James Kafieh, the legal counsel for the Canadian Islamic Congress, spoke out against this bill. They said it was unnecessary and violated a number of civil liberties and human rights.

Mr. Speaker, I will share more of what these people said when we continue our study of Bill S-7 and you give me 10 more minutes.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chairman.

Good morning, Commissioner, and welcome to you and your team. I have several questions and I hope to be able to get through them fairly quickly and efficiently.

First of all, have you completed your review of Bill C-17?

Public Safety and National Security

[Kevin Sorenson, Conservative, Crowfoot, AB]

Mr. Speaker, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Public Safety and National Security in relation to Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

The committee has studied the bill and has decided to report the bill back to the House with amendments.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chairman, Mr. MacKenzie used the term “ludicrous” to describe an amendment that would cap violations of Canadians' historic civil liberties at two years and require Parliament to come back after two years to justify those incursions into civil liberties. Mr. MacKenzie calls that “ludicrous”.

I don't call that ludicrous. When I'm speaking of civil liberties, I don't find anything ludicrous about the concept whatsoever. As a matter of fact, there is already a sunset clause in this bill. There was a sunset clause of five years in the original bill when it was passed in 2001. The bill before us proposes a sunset clause of five years. There is nothing unusual about the concept. Parliament is recognizing that when we talk about seriously changing the Canadian civil liberties landscape, which this bill does, Parliament should have to come back to justify that in a certain recurring time period.

The only question is whether five years or two years is appropriate. In the New Democrats' point of view, civil liberties of Canadians are so important that if we're going to try to violate civil liberties Canadians have historically enjoyed, then it's up to Parliament to come back to justify that.

Mr. Chairman, we also heard from witnesses. Several witnesses before this committee testified that they didn't want this bill to pass, but that if it were to pass, they want a very short sunset clause. There were no witnesses--none--that I heard before this committee who testified that a five-year sunset clause is appropriate. In terms of the substance behind this New Democrat amendment, it is actually informed by the evidence this committee heard.

This bill, in its original form, sunset and expired in 2006. We also heard evidence that from 2001 to 2006, when this bill was in force, it was used precisely once--one time in five years. Since that time, in the five years hence, there has been no evidence we have heard before this committee that any of these extraordinary powers are necessary. On the contrary, we heard evidence that successful prosecutions under the existing Criminal Code provisions have been conducted.

I have heard no compelling evidence before this committee--and I listened very intently to all the witnesses--that would lay an evidentiary basis for our justifying taking extraordinary steps, such as enshrining in law the concept of preventative arrest whereby individuals may be arrested without a warrant based on what a police officer suspects they might do. Mr. Chairman, that is an historic alteration of Canadians' rights to be presumed innocent and to not be deprived of their liberty except if the state has reasonable and probable grounds to do so.

I'm going to conclude my remarks by saying two final things. One is that I must say I'm saddened to see the present-day Conservative Party so cavalierly dispensing with Canadian civil liberties. They have been championing one of their historic prime ministers, John Diefenbaker, and talking about naming--I think--an icebreaker after him. Mr. Diefenbaker had a proud record in this country of supporting civil liberties; in fact, he brought in the first Canadian bill of rights. The ease with which this current government is allowing an incursion into Canadians' civil liberties and rights without any evidence is sad, in my opinion.

I also want to comment briefly on the Liberals, who brought in this legislation in 2001. In 2007, when this bill was brought back before Parliament, they opposed it and voted it down in Parliament. Here we are in committee watching the Liberal Party of Canada sit back and let Bill C-17 pass through committee.

I've heard Mr. Holland say that he's going to wait to see what the amendments are. Well, the only amendments I think we're going to see in this committee have to do with the sunset clause, unless I'm wrong.

I don't see any amendments by the Liberal Party or anybody--any that I've been served with--that would alter the fundamental deleterious and disturbing parts of this bill, which, as we've all pointed out, allow people to be arrested based on suspicion, enshrine the concept of preventative arrest, compel people to give evidence against their will, and allow the state to lock up people without charge for any period of time.

Now, I've heard the members opposite on the government side say, “Well, it's only locking someone up without charge for 24, or 48, or 72 hours”. As we all know, it could be a matter of days, depending on when a person is arrested. If a person is arrested on a Friday night at six o'clock, they're going to be deprived of their liberty for at least 72 hours without any charge at all.

The concept of having people locked up if they refuse to give evidence is also something that I think is of fundamental concern to the New Democrats in this country. I want to mention that we've heard about the effect this kind of legislation can have on communities, particularly the Muslim community of Canada. We've heard evidence that they're concerned they may be threatened...when police officers come into the community and threaten someone to be compelled to come and give evidence. If they don't give evidence, they're worried that they may be subjected to all sorts of negative consequences.

Mr. Chairman, everybody is concerned about terrorism. Everybody wants to preserve the western cherished ideals of rights. We all want to protect ourselves against those who would make incursions against those rights. In fact, that's the very purpose, I think, behind all of our motivations: nobody wants to have terrorism. People who would use violence disturb the deepest cherished ideals that we in the west enjoy, which include freedom and civil liberties.

Where the New Democrats draw the line, though, is in violating civil liberties in the name of protecting civil liberties. That is fundamentally disturbing. Even that can be justified, I would argue, in some circumstances; in times of insurrection and in times of war, I think Canadians can accept that their civil liberties may have to be truncated in some fashion, but I think Canadians expect that this happens only when we are satisfied that there's a factual basis for this.

Really, I just have to repeat that in the hearings before this committee the facts are that there has been no evidence laid, other than just rhetorical flourishes about some nascent terrorism in the world. We have not had any evidence whatsoever that this legislation is required or needed or that the current Criminal Code is anything but sufficient to deal with any kind of criminal activity that may threaten our country or our security. That being the case, Mr. Chairman, we should not give up Canadian civil liberties in the absence of that demonstrated case.

[Don Davies, NDP, Vancouver Kingsway, BC]

Yes, briefly, Mr. Chairman. Thank you.

As you know, the New Democrats are wholly opposed to Bill C-17 for all the reasons we spoke about when we were studying this bill and hearing from the witnesses. The New Democrats believe that no foundation has been laid by the government for this bill.

There are some serious concerns about the civil liberties impact that this bill would have, including giving police powers to arrest on a mere suspicion and the power to compel evidence and force witnesses to testify, and indeed, allowing courts to lock people up for up to a year without charge. We find this bill is a serious incursion against Canadian civil liberties, so we're wholly opposed to this bill, and we'll vote against it.

But we did hear from some witnesses, Mr. Chairman, about the sunset clause, which is currently set at five years in this bill. If this ill-advised bill were to pass, in the witnesses' views they wanted a very short sunset clause of two years so that Parliament could keep a very tight leash on, have a very close look at, and a very tight rein on what we all realize are serious derogations of Canadian civil liberties, justified in the name of fighting terror.

I think it behooves all of us as parliamentarians to protect Canadian civil liberties. We can do that by making sure that this bill, if it passes, which I hope it doesn't...but if it does, we can look at the impact of this bill in two years' time instead of five years' time.

Thank you, Mr. Chairman.

[The Chair, Conservative, Kevin Sorenson]

Good morning, everyone. This is meeting number 57 of the Standing Committee on Public Safety and National Security. It is Tuesday, March 1, 2011. Today we are going to the clause-by-clause stage in our consideration of Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

We have with us, to assist us if need be, from the Department of Justice, Douglas Breithaupt, director and general counsel, and Glenn Gilmour, counsel, the criminal law policy section.

We have five amendments that were given to the chair this morning, and all five deal with clause 4, if I'm not mistaken, so we'll move right into it.

I should also remind the committee that we are prepared to finish this today. We have reserved this room until 2 o'clock, but that doesn't mean we have to stretch it out that long.

[Mark Holland, Liberal, Ajax—Pickering, ON]

I'm asking on Bill C-4, Bill C-5, Bill C-16, Bill C-17, Bill C-21, Bill C-22, Bill C-23B, Bill C-30, Bill C-35, Bill C-37, Bill C-38, Bill C-39, Bill C-43, Bill C-48, Bill C-49, Bill C-50, Bill C-51, Bill C-52, Bill C-53C-54, Bill C-59, Bill SS-6, Bill S-7, Bill S-10.

What are the costs? What are the head counts? What are the implications? Why won't you give them to Parliament?

Abolition of Early Parole Act

[Ben Lobb, Conservative, Huron—Bruce, ON]

Mr. Speaker, after the last speech, I think we have heard it all now. Apparently England hosted the G20 summit and spent $50,000 for security. That was an exceptional feat. Certainly, if they were able to hold a summit and spend $50,000 on security, then yes we do have something to learn from them.

The victims of Earl Jones in Quebec are calling for action. Victims of white collar crime from coast to coast are calling for action. The victims said yesterday that they are petitioning all political parties in Ottawa to stand up for the victims of Earl Jones and to do the right thing and act now and support the passage of Bill C-59. Those parties even include the Liberal Party and the NDP.

Let me quote a letter that one of Earl Jones victims sent to the NDP member for Outremont:

We don't want to see this man out on parole as early as next December.... Please work with the other parties to come to a good conclusion for all of us that have been victims—

The letter continued that criminals who preyed on the most vulnerable members of our society should not be released just to save a buck. Was the cost of keeping criminals behind bars worth it? Absolutely.

That is an important comment, because we have heard a fair bit from members about costs, but that is a comment by a victim who says that in some cases perhaps the costs of reparation are suited to the victims.

I would not mind commenting on a speech from yesterday given by the member for Ajax—Pickering. In his speech he advocated 10 times for keeping white collar criminals out of prison. He quoted former U.S. congressman Newt Gingrich at least four times. He seems fixated on Newt Gingrich. The member made reference to the U.S. State of California six times. Not surprisingly, he mentioned victims zero times. As a member of the public safety committee, I have grown accustomed to members on the other side not referring to victims.

Another thing that I heard from the last speaker and from others is that we need to get this bill to committee, that we need to have a debate, that we prorogued this and we prorogued that. However, the fact of the matter is that all of these bills that would help victims, that would fight crime, that would get tough on criminals, just like the bill we are talking about today, could have been dealt with long ago.

Bill C-39 had its first reading back in June. It was referred to committee on October 20. We could have dealt with Bill C-39 before Christmas, but the coalition was more intent on a witch hunt against the RCMP, the Canadian Forces and the Toronto Police Service, the men and women who go to work every day to provide safety and security to our families, friends and neighbours. That was the coalition's priority. Last fall that was what it spent its time focusing on, when it could have focused on legislation that would have actually done something for victims. We could have got tough on crime.

We can go down the list of bills before the public safety committee right now. Bill C-5, the bill dealing with the international transfer of offenders, has been sitting in committee since the fall. It has been at committee for months. Bill C-17, the bill dealing with combatting terrorism, has been before committee for months as well. All of these bills could have been dealt with and been brought back to the House and been voted on and gone all the way to royal assent long ago. Bill C-23B, the bill to eliminate pardons for the most serious crimes, is still hanging around. No action has been taken. They are dragging their feet. Bill C-39 would have addressed the very issues we are dealing with today, but has evolved into Bill C-59.

When the opposition, specifically the Liberal Party, start talking about this and that and the other thing, these are the facts. They can be checked. They are all on the record.

The fact of the matter is that Bill C-39 could have been dealt with long ago. It was first read in the House in June. As I said, it was referred to committee in October, and because of the coalition's agenda and the witch hunt against the RCMP, the Canadian Forces and the Toronto Police Service, we have not heard much of these bills at all.

The government is trying to advocate on behalf of victims by pushing this agenda forward. However, it is being roadblocked at every turn and every step of the way .

Another point I would like to come back to is the costs. We have heard questions about the costs of this and the costs of that. I would also like to talk about victims. I have never heard anything from the coalition about costs when it comes to bills. This is the first time. It is great to hear. It is enlightening that it is starting to look at costs. It may want to consider the costs of the tax hikes it is proposing. However, that is a whole other topic for debate.

These schemers and fraudsters are not fools; they are highly intelligent individuals who are lacking moral fibre and who prey on their victims. They realize that if they are caught, they will get out. They know that. Therefore, when we look at costs, we have to complete the loop and follow the full circle and realize that once these fraudsters and schemers know that accelerated parole is no longer available for them any more, they will think twice before they go down the path of Earl Jones. There is no doubt about that.

Unfortunately, the coalition does not want to talk about that, as it does not suit its argument. As with everything else that I have mentioned in debate this afternoon, it does not suit its needs. However, the facts are right here; the facts can be checked. The fact is that when someone like Earl Jones or Lacroix knows that there will no longer be accelerated parole available, they will think twice. The next offender out there will take a long hard look and a second thought.

While we are talking about parole, let us take another look at what some of these changes will do.

Here is the current situation. Fraudsters who fleece hard-working Canadians of their savings are guaranteed to have their cases reviewed in advance by the Parole Board of Canada, so they can be paroled earlier than other offenders. That does not sound fair to a victim. White collar offenders, who might have destroyed the lives of hundreds of Canadians, are not in fact even required to apply for parole.

Can one imagine that? We have members here who are against this and are having an issue with it. We are just trying to say that we should have some fairness, that we should think about the victims before we send someone back out into the public.

The offenders do not need to lift a finger when they are trying to get back into society. Offenders who qualify for accelerated parole are not required to notify the Parole Board of Canada. In fact, the current Corrections and Conditional Release Act requires that the Correctional Service of Canada refer the cases of the offenders who are eligible for accelerated parole to the parole board before their day parole eligibility date so that they will be released as early as possible.

The other tragedy in all of this is that we do not hear one word from the victims. They are not allowed to make impact statements as to the effects of these offenders' actions on their lives, even the ruination or vaporization of their 30 or 40 years' of savings for their retirements with their families. That is shameful.

This bill needs to be passed today.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Madam Speaker, my question is with regard to the expediency behind moving the bill to committee.

I would like to point out the lack of speed with which the Liberal Party coalition on the other side deals with bills. Bill C-5 has been in committee since the fall. Bill C-17, the terrorism bill, has been lingering in committee, as has Bill C-23B, concerning pardons for offenders. All of these bills have been in committee for months and months and yet there has been no action from the opposition to help us move them along. Instead, in the fall those members spent time going on a witch hunt against the RCMP, the Toronto police department and other good men and women who do a job every day.

I wonder if the member could say why she has not been able to push the law and order mandate to get these things through. That is what we are trying to do and every day we fight roadblocks from her party and the critic for public safety.

Disposition of Abolition of Early Parole Act

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

Mr. Speaker, I would like to participate in the debate on the motion to prevent debate on the content and substance of Bill C-59. I find it rather odd that the Bloc has supported the government's attempt to stifle any attempt at debate on the substance of this bill.

No one in the House can accuse the Liberals of not supporting the idea of eliminating parole eligibility after one-sixth of the sentence is served for economic crimes. Two years ago, my colleague from Bourassa, our candidate in Saint-Bruno—Saint-Hubert and our member for Lac-Saint-Louis participated in a press conference with several of Earl Jones' victims to call on the government to quickly bring forward a bill to eliminate parole eligibility after one-sixth of the sentence is served, especially for criminals who commit major fraud and have multiple victims.

No one can accuse the Liberals of not supporting that idea. I think it is really dishonest of the government to make that kind of accusation when it knows very well what the Liberals' position is. This was pointed out by my colleague from Notre-Dame-de-Grâce—Lachine.

Now I would like to talk about the debate and the fact that the Conservatives and the Bloc members want to limit the scope of the debate. Just seven months ago the members of the Bloc rose in the House to criticize the government for doing the exact same thing it is doing now with Bill C-59. The government moved a motion to block debate.

Last June, the member for Saint-Maurice—Champlain rose in the House to criticize the government for moving a motion to block debate on the Canada-Colombia Free Trade Agreement Implementation Act. The Bloc member for Hochelaga also rose to oppose a government motion to block debate on Bill C-9, the Jobs and Economic Growth Act, by imposing time allocation.

We are opposed to this time allocation motion because we believe that Bill C-59 addresses a very important issue. Furthermore, for two years now, the Liberals have been calling on the government to eliminate parole eligibility after one-sixth of the sentence is served for economic crimes like those committed by Earl Jones, Vincent Lacroix and others.

I think it is a shame that some would have people believe that the Liberals do not want to protect victims. That is simply not true. When the government introduced Bill C-21 on economic crimes and it was referred to committee, the Liberal justice critic proposed an amendment to the bill to eliminate eligibility for parole after one-sixth of the sentence in cases of economic crime. The Conservatives and the Bloc defeated the motion.

Every MP is entitled to his or her opinion on bills that we are called on to debate in the House. It is a fundamental aspect of the democratic process. The operative word here is “debate”, and the collusion between the Conservatives and the Bloc is preventing us from acting as responsible parliamentarians.

We would like to hear from experts. We want to know how this bill will truly address a gap in the law, how it will do justice to victims, how this bill will improve the chances of rehabilitation for those who once lost control of their lives.

Perhaps we should indeed eliminate parole after one-sixth of a sentence for offenders who have committed serious economic crimes and left a number of victims.

However, for non-violent criminal acts that are not fraud, we believe that evidence has shown that parole after one-sixth of a sentence has been very effective and that the rate of recidivism is much lower.

We will never know what the experts might have said since this closure motion eliminates any chance to consult experts. With this government so eager to control everything, it has become somewhat of a tradition to just pass a bill without any idea of the facts that might call it into question.

The Liberals are against this closure motion. It is not justified, and we regret that the Bloc has decided to join the Conservatives to limit the debate on this bill. As far as the substance of the bill is concerned, in the past and still today, no one could accuse the Liberals of not showing their support for eliminating parole after one-sixth of the sentence for economic crimes.

In order to illustrate the government's intellectual dishonesty, I would like to present a chronology of the Conservatives' failures in their so-called fight against crime.

I am referring here to the various bills that have died on the order paper for all sorts of reasons or that have remained in the House or at committee indefinitely.

Here they are. Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts, died on the order paper when Parliament was prorogued; Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), died on the order paper before the House had a chance to vote on it; Bill C-26, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime), also died on the order paper. It is certainly not the opposition that forced the government to prorogue Parliament.

Bill C-31, An Act to amend the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act and to make a consequential amendment to another Act, died on the order paper, and Bill C-36, An Act to amend the Criminal Code, on the faint hope clause, died on the order paper before being brought back this session. One committee meeting was held on Bill C-46, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, before it died on the order paper. Bill C-52, An Act to amend the Criminal Code (sentencing for fraud), which is related to Bill C-59, the bill we are dealing with today, died on the order paper when Parliament was prorogued. Bill C-58, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, died on the order paper. The prorogation of Parliament killed many bills.

Among the bills introduced by the Minister of Public Safety was Bill C-34, the Protecting Victims From Sex Offenders Act, which also died on the order paper. The bill to deter terrorism and to amend the State Immunity Act died on the order paper. Bill C-43, An Act to amend the Corrections and Conditional Release Act and the Criminal Code, died on the order paper. Bill C-47, An Act regulating telecommunications facilities to support investigations, died on the order paper. Bill C-53, An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other Acts, died on the order paper. Bill C-60, An Act to implement the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America, died on the order paper.

To date, no meetings have been held to discuss Bill C-16, An Act to amend the Criminal Code. Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), was given first reading 51 days after Parliament was prorogued, and the committee still has not met to discuss that bill.

Bill C-21, An Act to amend the Criminal Code (sentencing for fraud), was fast-tracked at committee in just one meeting and still has not reached second reading. Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, was given first reading 64 days after Parliament was prorogued, and the government delayed it for 26 days at report stage because of the debate on the short title.

Bill C-48, An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act, was given first reading 89 days after Parliament was prorogued, and we are still waiting for the next step. Bill C-50, An Act to amend the Criminal Code (interception of private communications and related warrants and orders), was given first reading after 94 days, and we are still waiting. First reading of An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act took place 243 days after Parliament was prorogued. Bill C-53, An Act to amend the Criminal Code (mega-trials), was given first reading and nothing more.

Bill C-54, An Act to amend the Criminal Code (sexual offences against children) only made it to first reading. Bill C-5, An Act to amend the International Transfer of Offenders Act was introduced at first reading by the Minister of Public Safety 15 days after prorogation. Two committee meetings were held and nothing has happened since. As for Bill C-23B, An Act to amend the Criminal Records Act and to make consequential amendments to other Acts, we are still waiting. After a few meetings on the subject, the minister was supposed to come back with amendments that he felt were necessary in order to make the bill more comprehensive and definitely more respectful. Bill C-39, An Act to amend the Corrections and Conditional Release Act and to make consequential amendments to other Acts was introduced for first reading 104 days after prorogation and we still have not met in committee to discuss it. Bill C-49, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act was introduced for first reading 232 days after prorogation and there it remains. Bill C-52, An Act regulating telecommunications facilities to support investigations was also introduced for first reading 243 days after prorogation and we are waiting for the next step. The Senate introduced Bill S-7, An Act to deter terrorism and to amend the State Immunity Act for first reading 49 days after prorogation and we are still waiting for the next step. Bill S-10, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts was introduced for first reading in the Senate 60 days after prorogation. Bill S-13, An Act to implement the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America was introduced for first reading 237 days after prorogation.

I am pointing this out to prove that it is not the opposition parties that are slowing the process down. For all sorts of unknown reasons, the government introduces these bill and then goes no further with them.

To conclude, I would like to question the justification for Bill C-59 and the fact that the Conservatives and the Bloc felt this was urgent enough to warrant this closure motion, which is an affront to parliamentary dialogue.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I listened closely to the comments of the member in this chamber, and I am a bit surprised, because he is actually engaging in substantive debate around the bill to which the time allocation motion applies. However, what is really before us in the House today is the time allocation motion itself and the government cutting off the amount of time for debate on the bill.

We should not be debating the merits of the bill itself at all, yet I just heard the member say that all kinds of crime bills have been stalled at committee.

Let me give the House a number of the bills that have now passed through the Standing Committee on Justice and Human Rights: C-4, C-5, C-16, C-17, C-21, C-22, C-23A, C-23B, C-39, C-48, C-50, C-51, C-52, S-2, S-6, S-7, S-9 and S-10. Can the member really suggest that the crime agenda of the government is being stalled?

Some of us would argue they are the only bills we have been dealing with in the House. I wish the member would return to what we are really debating here tonight, and that is the time allocation motion, not the substance of the government's crime agenda.

Standing Committee on Finance

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

Mr. Speaker, I am saddened today to feel the obligation to rise to address comments with regard to the question of privilege raised by the member for Kings—Hants on February 7.

It is like the movie Groundhog Day. Anyone is familiar with that movie knows it was very successful. American actor Bill Murray relives the day over and over again until he learns his lesson.

It appears the government is reliving the same thing and forcing all other members of the House of Commons and Canadians to relive the same days we experienced back in 2009-10 with regard to a request from the special committee on Afghanistan for the production of documents from the government. The government resisted that. It took a question of privilege to be raised in the House. It took comments from many members of the House. It took considerable reflection and study on your part, Mr. Speaker, before you made a ruling that there was a prima facie case of privilege in that regard.

Yet, again, we are faced with the exact same situation today.

If I look at the timeline, the House of Commons Standing Committee on Finance tabled its 10th report on Monday, February 7. The member for Kings—Hants, pursuant to that report, raised the question of privilege of which we are now all aware.

I want to concur with the arguments raised by my colleague for Kings—Hants, as well as those raised by my colleagues from Mississauga South and Windsor—Tecumseh on the issue.

However, I wish to note a number of points. I also wish to address, in particular, the issues of cabinet confidence and the requests with regard to all the justice bills. It is important to do so, particularly with the time of events and the government's response to date to the committee's requests for the production of documents. We have not yet heard the government's response in the House with regard to the question of privilege.

On November 17, 2010, the Standing Committee on Finance passed a motion, ordering the Government of Canada to provide the committee with five-year projections of total corporate profits before taxes and effective corporate tax rates from the 2010-11 fiscal year until the 2014-15 fiscal year, inclusive. The November 17 motion also ordered the government to provide the committee with certain financial information pertaining to justice bills, which I will enumerate.

As all members in the House know, I am the justice critic for the official opposition. Therefore, all the information, all the documents requested through the motion of the finance committee have direct pertinence to the committee on justice and human rights. Those justice bills were Bill C-4, the youth criminal justice bill, Bill C-5, Bill C-16, Bill C-17, Bill C-21, Bill C-22, Bill C-23A, Bill C-23B, Bill C-39, Bill C-48, Bill C-50, Bill C-51, Bill C-52, Bill S-2, Bill S-6, Bill S-7, Bill S-9 and Bill S-10.

The motion specifically requested:

—detailed cost accounting, analysis and projections, including assumptions, for each of the bills and Acts, conducted in accordance with the Treasury Board Guide to Costing.

Members are now aware, by the issue of privilege raised by the member for Kings—Hants, that the motion established a deadline of seven calendar days, which ended on November 24, 2010.

On November 24, Finance Canada replied to the committee, and I will read the department's response in its entirety because it is quite important, particularly to any Canadian and any member sitting in the House who takes his or her work as an elected official representing Canadians, a sacred duty in fact, to know the response. It said:

Projections of corporate profits before taxes and effective corporate income tax rates are a Cabinet confidence. As such, we are not in a position to provide these series to the Committee.

The department claimed it was not in a position to provide these documents to the committee because, according to the government, these documents were a cabinet confidence. That is the heart of the matter. Do the documents requested constitute a cabinet confidence and, if so, are they excluded from the rule of the House of Commons, the power and authority of Parliament, to require documents to be provided?

As the House knows, because it has been mentioned by others in the House who have commented on the issue of privilege raised by the member for Kings—Hants, the government has yet to speak to this issue. I understand that one of the parliamentary secretaries has said the government is taking note of all of members' comments in the House, relating to the issue of privilege, and will respond in due course.

On December 1, 2010, one full week after the deadline of November 24, 2010, the committee received a reply from Justice Canada regarding projected costs of the justice bills. I will read the response by Justice Canada in its entirety. It said:

The issue of whether there are any costs associated with the implementation of any of the Government's Justice bills is a matter of Cabinet confidence and, as such, the Government is not in a position to provide such information or documents.

That is interesting because in justice committee, of which I am a member, when we have repeatedly asked the minister for the cost analysis of a government bill before the committee, the minister has never stated that he could not give us that information because it is a matter of confidence. I would challenge members to check the transcripts of justice committee. What I did hear was he did not have the information with him or some befuddled answer that did not answer the question.

On December 7, 2010, after the government had refused to provide the information ordered by finance committee by the established deadline, the member for Kings—Hants provided the committee with written notice of a motion by which, if passed, the committee would draw the attention of the House to what appeared to be a breach of its privileges. That has been done. The committee adopted the motion and the member for Kings—Hants rose in the House to speak to the issue.

On December 10, the committee received an additional response from the Department of Finance Canada in answer to its motion ordering the production of documents relating to the projections regarding corporate taxes before profits.

In response, the department stated:

To the best of its knowledge, the Department of Finance has determined that [the] "series" or projections of corporate profits before taxes or the effective corporate income tax rates have never been previously disclosed. These projections are from a comprehensive economic and fiscal projection that constitutes a Cabinet confidence.

To reiterate, according to the second or additional response of the Department of Finance to the finance committee, the Department of Finance, acting on behalf of the government, claimed that these projections have never been previously disclosed and constitute a cabinet confidence.

As pointed out in this chamber before, but which bears repetition, I would suggest to any Canadian to Google the phrase, “Corporate tax profits before taxes”, and restrict their search to the domain of the Department of Finance Canada. That Canadian would get exactly two results: the HTML and PDF versions of “The Economic and Fiscal Update“ from November 2005. In that update, we find precisely the information that the Department of Justice, in its December 10 additional response to the finance committee, claimed had never previously been disclosed because it constituted a cabinet confidence. In fact, it was disclosed in the November 2005 economic and fiscal update that was issued by the previous government comprised of the Liberal Party of Canada's elected members of Parliament.

Therefore, the assertion on the part of the government, through its Department of Finance, justifying its refusal to obey, respect and act on the order of the finance committee to produce the documents is an outright fabrication.

The government department could have said that in the past the information had been released, but that the policy had been changed with a new interpretation of what constituted a cabinet confidence and, as a result, would not be releasing those documents to the finance committee. However, that was not the reason given by the department, by the government, for refusing to release that information. The reason given to the committee for not providing that information, that it is a cabinet confidence, is pure nonsense.

What is the state of legislation regarding cabinet confidence?

As mentioned, one can look to the Access to Information Act and the law of evidence act, and one will find that the government does not have a leg to stand on, and in fact does not have two legs to stand on.

Any reasonable Canadian reading the pertinent sections of the Access to Information Act and the law of evidence act would see that the two responses given by the Department of Finance and the response given by the Department of Justice are nonsense.

As I said, we know that in 2005 the previous government recognized that projections of corporate tax profits before taxes were not covered by cabinet confidence. Such projections are not considered a cabinet confidence when, as is the case with Finance Canada's revenue model, these projections are used by the department in a manner not exclusively related to cabinet operations.

What has changed between 2005 and 2010-11? On what grounds is the government now claiming that these projections constitute a cabinet confidence when there was no such assertion in the past and governments in the past have in fact provided and disclosed that information?

The costs of the justice bills are also important because the Department of Justice, as well, replied to the finance committee by claiming cabinet confidence as a justification for not releasing that information to the finance committee.

We know that due diligence would have required that cabinet consider the cost implications of each justice bill before making a decision to proceed with each bill. We know that under normal practices, an analysis of the cost implications of each justice bill would have been included with the memorandum to cabinet prepared for each justice bill.

Why do we know this? We know it because the Liberal Party of Canada has formed government in the past. We know that when we came power the government that preceded us, the one formed by the Progressive Conservative Party of Canada, had done that as well. So these are normal practices. These are practices of a prudent, diligent and competent government.

No diligent, prudent and competent government would consider an issue, whether amendments, or a justice bill bringing in new legislation to the Criminal Code or amending existing sections of the Criminal Code, because that constitutes government policy, would do so without informing itself of the cost of those changes.

That is what previous governments have done, because those previous governments, whatever their faults, have followed prudent, diligent and competent practices with regard to taking decisions on issues brought before cabinet.

As I said, we know that under normal practices, an analysis of the cost implications of each justice bill would have been included with the memorandum to cabinet prepared for each justice bill.

Now let us look at the legislation that deals with what is, or is not, cabinet confidence and whether or not something that falls into cabinet confidence can be accessible.

If one looks at section 69 of the Access to Information Act, it tells us that such analysis and background information is not, and I repeat, not, a cabinet confidence, if the cabinet decision to which the analysis relates has been made public.

A cost analysis of the implications of a justice bill should have been included, and I believe was included, in the memorandum to cabinet, as it is on each and every justice bill.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

No, that's okay. I appreciate it.

As I say, I don't think any of our witnesses here are being disrespectful or anything else. These are their true feelings and their true views. I just made a few notes here on some of the thoughts that were mentioned.

Who are the “real terrorists”? I guess my question would be, to the average Canadian.... Well, we do know that there have been prosecutions of terrorists. One of the greatest terrorist acts suffered by this country was the Air India one. I have to say that the terrorists don't belong to any one group of people from any one religion. They're right across the board, and they exist around the world in every way, shape, or form.

Then we hear, of course, from more than one witness and more than one political party at the table, that CSIS is dysfunctional, that the RCMP have huge troubles, etc. I think we all have a responsibility, if we say those things, to ask whether these agencies are capable of making Canadians safe. I would say the evidence that they are capable, and that they have kept us safe, is the fact that we have not had the kind of terrible terrorist acts that they have had in Great Britain, the United States, and many countries throughout the world. It's because of these agencies that we are safe.

Have they made mistakes? Of course they have. They're made up of men and women who are human. They make mistakes. No one agency or group of people, whether they be learned judges...would ever say that they are not capable of making errors in judgment and mistakes.

I think Canadians need to know why we have the Anti-terrorism Act and these laws. We have them, as was mentioned, because the United Nations directed all of its members to look at their laws and regulations to ensure that they are made in such a way that they can prevent, or attempt to prevent, terrorist acts like 9/11, but not just restrict it to that one act. Canada took on that obligation and constructed the Anti-terrorism Act under a previous government that this party and I think all parties... I forget how the votes were, but at least the two major parties in Canada agreed with it.

But because we were unsure, and because there were some significant changes to our law, we put a sunset clause in. We revisited that. I was part of the subcommittee on anti-terrorism. I can tell you that we looked at it, we had a wholesome debate, and it was the majority view that we should maintain, with a sunset clause, these provisions.

We were talking about the Toronto 18. The comment that the police and other authorities have not used these existing provisions is evidence, I would suggest to you, of the fact that the police are very much aware, and CSIS and those other authorities are very much aware, that you only, only, only use these provisions when the Criminal Code may not apply...but that but there is sufficient evidence to have you believe that you need, in order to prevent an occurrence, the benefits of Bill C-17.

I go further to say that their authority is extremely restricted, because they may only hold a person for 24 hours, and that's if a judge is not available. If a judge is available, we constrain that judge by saying they may not detain more than 72 hours.

So my comment is that we need this legislation because it does indeed add a measure of safety to every man, woman, and child in this country.

[Don Davies, NDP, Vancouver Kingsway, BC]

I have a point of order. We're studying Bill C-17, the Anti-terrorism Act. How is a question on the political events in Egypt relevant to this issue?

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

Is anybody else aware of that situation?

Now, with respect to this concept of preventative arrest, I'm troubled by a number of your comments, Mr. Mia, and also by yours, Ms. Cheung. You state that this proposed legislation, Bill C-17, is not necessary and is open to abuse. You cite correctly a number of Criminal Code provisions that deal with charges that can be laid for conspiracy and for attempts. But you'll have to agree with me that those existing provisions of the Criminal Code deal specifically with issues and allegations that have occurred in the past.

[Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association]

Thank you very much.

I want to thank the committee for having invited the Canadian Civil Liberties Association to appear. I will make the first part of my remarks in French and the second in English.

The Canadian Civil Liberties Association has existed since 1964. It has always worked to defend the rights and freedoms of Canadians. We will make four proposals as part of our submission.

The first is that in its current form, Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) contains major flaws and problems that must be remedied.

Secondly, like other rights and freedoms advocacy groups, we question the need to proceed this way and to adopt the bill in its current form.

Finally, I won't repeat what has been said by my colleagues, but I simply want to present the international context surrounding the bill. I will begin with that proposal.

This is an opportunity for us to take a sober look at provisions adopted in 2001, which expired in 2007 because of a provision, and to determine now if they were appropriate and necessary.

This is being done in a context where we hear the United Kingdom is preparing to review the use of control orders which had been used consistently as of 2001.

One of the reasons why many people say that Bill C-17 is not that dangerous is that these measures have not been used excessively by our police forces. Despite that, it creates a precedent in terms of commitment and in the context of international law. It becomes a precedent for other countries in the world who will look to and use the Canadian precedent.

The only guarantee that Canadians had in the face of these powers is that they were not abused and were almost never used. The same will not be true in other countries. Given Canada's leadership role in terms of international human rights, it is important to look at whether this is the right time to introduce a legal tool which fundamentally questions some of the principles around which our system is organized. That is one of our proposals.

I won't repeat what my colleagues have said. I just want to stress a couple of ways in which the bill stresses our system and its fundamental tenets. There are three tenets, I think, of our system that are at odds with the premise and the economy of the bill, and I think that's why we, as civil libertarians, are searching within this bill for guarantees.

The first one is that, obviously, we live in a system where judges are not inquisitorial judges. They are judges who work and are trained in the context of contradictory evidence. Indeed, I think one of the ways in which we have been able to fine-tune our system of counter-terrorism.... Canadian civil liberties all support the idea that the government has a duty to engage in counter-terrorism. What we're debating here is whether this is the best way. It's not to question the effort; it's to ensure that indeed it does what it seeks to do.

We have responded in other contexts by insisting there be special advocates, to ensure that judges are not put in a position to be inquisitorial. They're not trained for this; it is incompatible with the way in which they are proceeding. But this is not present here. Contrary to what happened after the Charkaoui decision, we are not seeing here a recognition that there needs to be.... If you're going to take someone and threaten his or her liberty in front of a judge in a context where the judge will have to rely on the information provided, you need to balance this by having at least a special advocate. That's what we've learned in other contexts, and I think this, indeed, should be looked at in this context as well.

The second tenet of our system that I think is fundamentally challenged by Bill C-17 is the one referred to earlier. It's the fundamental tenet that you ought not to be detained, arrested, or subject to punishment unless there is a format or a framework by which the accusations and the evidence against you can be tested and at the end of the day you are found to be guilty or not, and that's the end of it.

This process allows preventative detentions that threaten the concept of strong protection through habeas corpus. It creates a fracture in our legal thinking, and that's why people react to this with such visceral fear. It was a great advancement in law and legal thinking to insist that a king not be able to put people in jail simply because he was afraid that something might happen to threaten public order. The writ of habeas corpus was a great advancement in saying it is inappropriate to detain people without having a process to fundamentally challenge the evidence on which you are being detained. That's why people react with such fear to this case in which preventative detentions are being normalized in the process.

Finally, the third principle of our system is that there is no obligation for Canadians to cooperate with the police. Here, they are forced to come and give testimony in front of a judge. As Kent Roach has said numerous times, some people will tell the truth, some people will lie, and indeed they will not cooperate more because there's a threat of being incarcerated.

Now, let me go through the different dispositions and look specifically at some of the challenges they present and some of the ways in which they ought to be.

In our view, the bill should not proceed. It's not necessary and it's not the way to go. But if it is to proceed it must have additional guarantees that are not there.

The first guarantee is under proposed section 83.28. There is no guarantee that this indeed will not be relying on evidence obtained under torture. That's a significant issue. What we would suggest is that there be a commitment that there be included a specific reference saying that there is an affidavit from CSIS, an affidavit from the police, which is being recognized by the judge, as to the evidence's not having been obtained under torture.

We're insisting on this not only because there is a general prohibition around the world against torture and Canada should be part of it, should be an instrument, a model on this. It's also a good signal to say to other countries that whatever evidence they would want to lead in will not be acceptable. But what is interesting as well is that it protects our system from being polluted by the fact that some evidence obtained under torture may have found its way somewhere. If everybody along the system has to guarantee that to their knowledge—and they do the investigation—the evidence has not been obtained under torture, we improve the guarantee that the system will not inadvertently be an instrument of perpetrating torture.

One concern that has been raised, and I think my colleague has raised it, is that it does not protect testimony from being used in proceedings outside of Canada. This was mentioned by the Supreme Court. This is not in the bill; it should be in the bill.

As well, it should not be used against members of the family of people who testify. That's another aspect. Many people who could be compelled here will be shunned for sure by their community but will expose themselves to great dangers, and there's no provision here to ensure their protection.

I know my time is running out, and I just want to make sure that.... Let's see: no special counsel proceeding has been.... There has been no guarantee that no evidence has been obtained under torture....

There are no boundaries to the conditions that can be imposed by the judge, and I think there should be a way in which these conditions are reviewed and found not to be unnecessary.

Finally, there's no right of appeal. There should be a right of appeal.

[Eric Vernon, Director, Government Relations and International Affairs, Canadian Jewish Congress]

Thank you very much, Mr. Chair.

Thank you for the opportunity, even as late in the day as it came, to appear before this committee as it studies this important legislation.

I am delighted to be here on behalf of Canadian Jewish Congress, which for over 90 years now has been the advocacy voice of the Jewish community of Canada and a voice for human rights for all Canadians.

Thank you for the invitation to present the Jewish community's views on antiterrorism in Canada and on Bill C-17.

Let me begin by stating clearly that Canadian Jewish Congress supports Bill C-17. I think it's good that I understand what it means to be a minority, because I clearly am one at this panel. At the same time, we would examine with interest any amendments that this committee might eventually recommend after completing its review towards strengthening the legislation as part of the overall anti-terrorist regime in Canada.

It will come as no surprise, I'm sure, that Canadian Jewish Congress has for many years, and well prior to 9/11, been a strong advocate for a comprehensive and effective counter-terrorism regime in Canada on behalf of a community that is essentially twice targeted--that is, both as Canadians and as Jews.

In our brief on the legislation establishing CSIS, the Canadian Security Intelligence Service, CJC noted, and I quote:

If terrorism is allowed to implant itself in Canada because we are reluctant to establish realistic measures to prevent it, its impact will spread beyond any particular community to affect Canada as a nation and in the international forum. As terrorism grows more organized and more international in scope, so must the efforts to contain it be more organized, serious, and efficacious.

Members of the committee, that brief was submitted in April 1984, almost 27 years ago, and yet in the aftermath of September 11 it became clear just how unprepared Canada was in dealing with the threat of international terrorism and its domestic manifestations. Canadian Jewish Congress was therefore gratified by the government's introduction of then Bill C-36, including the two ultimately sunsetting clauses that lie at the heart of Bill C-17 now.

To date, thankfully, Canada has been spared the agony of the suicide bombings and attacks that, at least since the turn of the new century, have become a commonplace weapon in the terrorist arsenal. But our nation has certainly not been immune to terrorism, not least the tragic events surrounding the bombing of Air India flight 182.

Canada's Jewish community has been targeted for terrorist violence by the likes of Ahmed Ressam and Jamal Akal, and beyond that we cannot but see the community's security in the context of the vulnerability of and attacks on sister communities elsewhere in the world, both before and after September 11, 2001.

Given the multicultural and pluralistic nature of its society, Canada is especially vulnerable in an increasingly interconnected world to terrorist infiltration. While the vast majority of ethnic, cultural, and community groups and their members pose no threat, terrorists are well positioned to exploit, intimidate, or attract individual fellow ethnics and/or co-religionists into supporting, financially and otherwise, and providing valuable cover for their activities in one way or another. We have already had a glimpse into the potential for homegrown radicalization, and if that weren't enough, we have the examples of the U.K. and elsewhere in Europe to ponder.

From our perspective, it was a decided strength of the Anti-terrorism Act that it set its primary sights on prevention of terrorist acts rather than the apprehension and punishment of perpetrators. Potential terrorist operations, or those discovered in progress, must be thwarted immediately. The powers of recognizance with conditions and investigative hearings introduced by the act remain important for the attainment of this purpose. Though having been sparingly used, as we know, it is still important to have these powers available to our security and police forces, because the best and first line of defence against terrorism is effective and timely surveillance and intelligence gathering, intrusive though they may be at times.

We believed in 2001 and continue to believe in the importance of granting expanded powers to the security services through recognizance with conditions and investigative hearings for the careful monitoring of individuals and groups that are suspect and the amassing of relevant information well in advance.

Now, since the passage of the Anti-terrorism Act, Canadians have been passing judgment on how well it met the most fundamental challenge facing any democracy, namely, how to provide for the safety and security of its citizens while minimally impairing the basic civil liberties that underpin their society.

The two sunsetted measures clearly provide a stern test to any democratic society. In fact, these two provisions seem to epitomize the zero sum game of protection of security versus protection of human rights. And as we know, they ultimately died on the floor of the House of Commons.

From our perspective, one need not approach the debate from the either/or perspective of security versus rights. If terrorism is rightly regarded as an assault on human rights, it stands to reason that the implementation of counter-terrorism measures necessarily protects the highest priority rights of life, liberty, and the security of the person--the foundation of all other rights and freedoms.

Now, the corollary of course is that these actions themselves must always be rooted in and comport with the rule of law. A properly framed and implemented counter-terrorism policy enhances civil liberties and core charter values and protects them as part of the way of our life, whose essence is threatened by terrorism.

A look around the world clearly tells us that terrorist acts remain a clear and present danger, and our security and police personnel must have sufficient authority to take preventive action to interdict possible attacks before they occur. Nonetheless, we are fully cognizant of the potential severity of these measures, and we are heartened that Bill C-17 provides additional safeguards to reassure Canadians' concerns about the possible adverse impact of these measures.

Members of the committee, the most fundamental role of the state is to protect the safety and security of its citizens and the core national way of life. Governments such as ours must thwart the efforts of those who would use our open society against us and then shut it down, while at the same time we must be sure not to impair the very democratic nature of that society. But it would be the ultimate irony if in striving to maintain civil liberties we strip authorities of the necessary powers to stop terrorists and extremists from destroying our open and free society.

In our respectful submission, Bill C-17 deserves expeditious passage, as it successfully meets the challenge in restoring the authority for the use of recognizance with conditions and investigative hearings while providing additional safeguards for fundamental civil liberties and rights.

I thank you for your kind attention and look forward to your questions.

[Carmen Cheung, Counsel, British Columbia Civil Liberties Association]

Thank you very much.

Good morning. My name is Carmen Cheung, and I'm counsel with the British Columbia Civil Liberties Association. On behalf of the BCCLA, I wish to thank the members of the committee for the invitation and opportunity to present on Bill C-17today.

The BCCLA is a non-profit, non-partisan advocacy group based in Vancouver, British Columbia. Since its incorporation in 1863, the mandate of the BCCLA has been to promote, defend, sustain, and extend civil liberties and human rights around Canada.

We speak out on the principles that promote individual rights and freedoms, including due process and fundamental justice concerns in situations in which individual interests are affected or engaged by the state.

In December this committee heard from our colleagues with the International Civil Liberties Monitoring Group, La Ligue des droits et libertés, the Canadian Council on American-Islamic Relations, and others. The BCCLA echoes many of the concerns so persuasively voiced here already, namely that the proposed legislation does little to protect Canadians, while at the same time compromising many precious and hard-won democratic safeguards.

Let me start by addressing the preventative detention provision, which permits a holding of an individual without charge for up to 72 hours based on mere suspicion of dangerousness. When this provision was last in force in the Criminal Code, it was never invoked. Advocates for preventative detention point to this statistic as demonstrating restraint on the part of law enforcement agencies; we view it as evidence that such sweeping powers of preventative detention are simply unnecessary.

Protection of personal liberty is a fundamental value in Canadian society and indeed in any free society. Expanding the powers of the executive to detain people must be examined with the utmost scrutiny. Canadian principles of fundamental justice impose limits, both procedural and substantive, on deprivations of liberty. This means two things. First, the process through which any individual is subjected to detention must meet the requirements of fundamental justice. Second, the substantive reasons for any detention must be justifiable in a free and democratic society.

Detention without charge or conviction is deeply problematic, because it is based on a hypothetical. It depends upon speculating on the future dangerousness of an individual because of assumed propensity. Preventative detention is necessarily based on propensity reasoning, because if there were actual evidence of preparation to commit a terrorist act or of conspiracy to commit a terrorist act, then there would be grounds to lay charges for committing a criminal offence, and suspected individuals could be detained under the usual criminal law procedures. Stripping an individual's liberty when no offence has been found to have been committed or when no offence is even suspected to have been committed runs counter to basic principles of fundamental justice.

The Criminal Code, as it currently exists, contains more-than-adequate mechanisms for prosecuting past terrorism offences and preventing future ones. The sweep of terrorism-related offences in the Criminal Code is broad. As defined in the code, terrorist activity encompasses everything from conspiracy to the attempt or threat to commit an act of terrorism to the actual terrorist act itself.

The code also confers expansive powers on authorities to impose conditions on individuals who pose a danger to public safety. As you've already heard, this is reflected generally in section 810.2, and with respect to terrorism offences in section 810.01. As you've also already heard, as recent law enforcement investigations have shown, the terrorism provisions in the current Criminal Code are effective. They have been successfully used to protect the safety of Canadians and to disrupt prospective terrorist attacks.

Detaining individuals based on predictions of future dangerousness is a troubling proposition. Because the requirements of proof are relaxed, there is an increased chance not only of error or abuse, but of such errors or abuse going undetected and without remedy.

For example, it may be difficult to accurately assess whether the prediction of dangerousness is ultimately borne out. Let's say an individual is held in preventative detention and no terrorist attack takes place. The fact that no terrorist attack ensued may mean that by detaining the individual, law enforcement officials successfully disrupted a terrorist plot. But it may equally mean that the detained individual was not involved in any planned attack at all. Such uncertainties cannot be the basis on which Canadians and others in this country are imprisoned for any length of time.

On the other hand, prosecuting inchoate offences such as conspiracy permits the government to incapacitate potentially dangerous people and to disrupt terrorist plots before they can take place, but the evidentiary requirements for laying charges provides a measure of protection against mistake or abuse.

Separate from the deprivation of liberty associated with preventative detention, there is the stigmatizing effect of being labeled a terrorism suspect or an individual associated with terrorist activities. We believe it is fairly uncontroversial to say that the stigma associated with an accusation of terrorism is severe. Yet the system of preventative detention proposed in this bill would effectively brand an individual a terrorist even though law enforcement officials may not have any grounds to lay charges, let alone evidence to convict, now or ever. The potential harm to that individual's reputation and other negative impacts flowing from being labeled as a terrorist cannot be discounted.

With respect to the second substantive prong of Bill C-17, the reintroduction of investigative hearings, we would observe that such a mechanism effectively renders the courts an investigative tool of CSIS and the RCMP. Indeed, we would adopt the logic of Justices LeBel and Fish of the Supreme Court of Canada, when they found that investigative hearings such as the ones proposed here compromise judicial independence from the other branches of government, which is a cornerstone of our democracy.

Although writing for the dissent, Justice LeBel's and Justice Fish's words should have resonance for anyone who subscribes to the concepts of the rule of law and an independent judiciary. They wrote:

Although a judge may be independent in fact and act with the utmost impartiality, judicial independence will not exist if the court of which he or she is a member is not independent of the other branches of government on an institutional level. .... Section 83.28 requires judges to preside over police investigations; as such investigations are the responsibility of the executive branch, this cannot but leave a reasonable, well-informed person with the impression that judges have become allies of the executive branch.

While the previous iteration of this investigative hearing provision may have been deemed "charter-proof", to borrow a phrase from Professor Kent Roach, that does not mean that these measures are truly compatible with the right against self-incrimination. As contemplated in Bill C-17, investigative hearings bear all the hallmarks of complying with the right against self-incrimination. We would submit, however, that they still do not comply with the spirit of the right to silence.

We believe that Professor Roach, of the University of Toronto Law School, perhaps said it best, with respect to the 2001 version of this provision. He wrote:

Regardless of whether investigative hearings can or cannot survive Charter review, there is a strong case that they are unnecessary, unprincipled and unwise. Those who will talk will do so without the threat of prosecution. Those who will refuse to talk or who lie will likely not be deterred by the threat of continued detention or prosecution for failing to obey a judicial order or for perjury. More fundamentally, it is unworthy to abrogate centuries of respect for the right to silence and the right against self-incrimination during police investigations. Attempts at Charter proofing, in the form of judicial authorization, right to counsel and use and derivative use immunity, should not take away from the fundamental damage that investigative hearings will do to our long traditions of adversarial criminal justice.

And indeed, while the Supreme Court did find the 2001 investigative hearing provision to be constitutional, it made that finding only after reading into the law what had not been expressly provided by Parliament. It placed limits on the use of investigative hearings. Specifically, it held that information gathered could not be used against an individual in any kind of proceeding, including extradition or deportation hearings or proceedings in foreign jurisdictions. As it is currently drafted, however, the investigative hearing provision fails to reflect those requirements and leaves open room for potential misapplication of the law. Given the danger that the information compelled through investigative hearings could potentially be used against Canadians or others abroad, perhaps by countries where human rights protections are not as robust as those found in Canada, we are deeply concerned that the Supreme Court's direction has not been codified here.

Finally, we wish to note that while the provisions at issue here, like their predecessors from 2001, are accompanied by sunset clauses, we fear that putting these measures in law again will be far from temporary. We urge you to refrain from passing this legislation and giving it a state of de facto permanence in Canada. Canada has historically served as an example among nations of how democracy, freedom, and the rule of law can be upheld on an ongoing basis. But we must be vigilant in protecting these values. The measures proposed by this bill have afforded no demonstrable gains in combating terrorism and instead would work to erode the democratic principles and ideals that we seek to protect.

I'll end here for now. Thank you again.

[Scott Brison, Liberal, Kings—Hants, NS]

Mr. Speaker, I rise on a question of privilege in relation to the 10th report of the Standing Committee on Finance.

In our system of responsible government, the government must seek Parliament's authority to spend public funds. Parliament, in turn, has an obligation, a responsibility to hold the government to account and to scrutinize the government's books.

Recently, this government impeded the work of the Standing Committee on Finance by hindering its attempts to better understand the federal government's budget projections.

As you know, Mr. Speaker, Standing Order 108 empowers committees to send for persons, papers and records. House of Commons Procedure and Practice, second edition, describes Parliament's right to order the production of documents as a right that is “as old as Parliament itself”.

On November 17, 2010, the Standing Committee on Finance passed a motion ordering the Government of Canada to provide the commitment with five-year projections of total corporate profits before taxes and effective corporate tax rates from the 2010-11 fiscal year until the 2014-15 fiscal year, inclusive.

The November 17 motion also ordered the government to provide the committee with certain financial information pertaining to justice Bills C-4, C-5, C-16, C-17, C-21, C-22, C-23A, C-23B, C-39, C-48, C-50, C-51, C-52, S-2, S-6, S-7, S-9 and S-10.

Among other things, the motion specifically requested:

detailed cost accounting, analysis and projections, including assumptions, for each of the bills and Acts, conducted in accordance with the Treasury Board Guide to Costing.

The motion established a deadline of seven calendar days, which ended on November 24, 2010.

On November 24, the Department of Finance replied to the committee with the following. I will read the department's response in its entirety. It stated:

Projections of corporate profits before taxes and effective corporate income tax rates are a Cabinet confidence. As such, we are not in a position to provide these series to the Committee.

The government provided no further information to the committee before the deadline.

On December 1, 2010, one full week after the deadline, the committee received a letter from the Department of Justice regarding projected costs of the justice bills. Again, I will read the department's response in its entirety. It stated:

The issue of whether there are any costs associated with the implementation of any of the Government's Justice bills is a matter of Cabinet confidence and, as such, the Government is not in a position to provide such information or documents.

On December 7, 2010, after the government had refused to provide the information ordered by the committee by the established deadline, I provided the committee with written notice for a motion by which, if passed, the committee would draw the attention of the House to what appeared to be a breach of its privileges.

On December 10, 2010, perhaps in response to the written notice I had written on December 7, the committee received an additional response from the Department of Finance.

In its response, the department stated:

To the best of its knowledge, the Department of Finance has determined that “series” or projections of corporate profits before taxes or the effective corporate income tax rates have never been previously disclosed. These projections are from a comprehensive economic and fiscal projection that constitutes a Cabinet confidence. As a result, the Department of Finance has not been in a position to provide these "series" to the Committee.

This response appeared somewhat dubious. For, if any member of the House or if any Canadian wishes to Google the phrase “corporate profits before taxes” and restrict their search to the domain of the Department of Finance's website, he or she would get exactly two results: the HTML and PDF versions of “The Economic and Fiscal Update” from November 2005, in which they would find, on page 83, that the previous Liberal government had actually published projections of corporate profits before taxes from 2005 until 2010.

At this time, I would like to seek unanimous consent to table page 83 of “The Economic and Fiscal Update” from November 2005.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Piragoff, I'm going to interrupt you because you're wasting my time. I have seven minutes, sir.

I did not ask you what the current law is. We're dealing with this section under this legislation. To answer my question, yes, a person can be detained under this legislation, Bill C-17, for more than three days. Your answer, sir, is that we could do it anyway. That's not what I am asking you.

This legislation says that. So my next question is, if the current law allows this, what's the need for this provision, then?

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

Thank you, Mr. Chair.

Thank you to all of the justice department officials for your attendance here today and for your expertise on this quest as we try to balance the civil liberties of Canadians with our bona fide security interests to protect ourselves against terrorism.

At our last meeting, we talked about the existing provisions of the Criminal Code. I know that my friends on the other side of the table believe that sections 810 and 495 of the Criminal Code adequately protect Canadians from terrorist attacks, both domestic and abroad. I'm skeptical of that position.

I was wondering if any of you could help the committee understand why section 810 of the existing Criminal Code is inadequate and why we need the provisions in Bill C-17. If you don't know, section 810 says if that a person who fears on reasonable grounds that another person will intimidate a justice system participant or commit a criminal organization offence, you can apply to a judge to have a recognizance.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chairman.

I'm pleased to appear before this committee. My memory may not serve me correctly, but I think it's been quite some time since I've been before this particular committee.

I'm here, of course, on Bill C-17, a bill that will re-enact the investigative hearings and the recognizance with conditions provisions of the Criminal Code. As you will know, these were part of the Criminal Code from late 2001, and they sunsetted, unfortunately, on March 1, 2007. They've been the subject of considerable review as part of the mandatory review of the Anti-terrorism Act, as well as in the form of Bill C-17's predecessor bill in the previous Parliament. Our government believes that this bill responds to the issues raised in those reviews and those debates.

Mr. Chair, let me outline what Bill C-17 proposes.

First, the investigative hearing provision would give a judge, on application from a peace officer, the power to compel someone with information about a terrorism offence that has been or will be committed to appear before him or her to answer questions and/or produce anything in their possession or control. The person would be attending as a witness and not as an accused.

Second, the recognizance with conditions provisions would allow a peace officer—one who has reasonable grounds to believe that a terrorist activity will be carried out and has reasonable grounds to suspect that the imposition of recognizance with conditions on a particular person is necessary to prevent a terrorist activity from being carried out—to apply to a judge to have that person compelled to appear before the judge, where it will be determined if reasonable conditions should be imposed on the person in order to prevent the terrorist activity.

Third, in addition to the annual reporting requirements, Bill C-17 contains a requirement that both these tools should be subject to a mandatory parliamentary review. During the second reading debate, it was suggested that a review of both houses of Parliament would be appropriate. I wish to point out that the bill provides that the review may be undertaken by a committee established by either house of Parliament, or both houses. That, ultimately, is for Parliament to decide.

Mr. Chair, I think it's essential that we outline some of the key safeguards that have in fact been added to the original investigative hearings provisions.

First, the bill provides that in all cases a judge would have to be satisfied that an investigative hearing is warranted, on the basis that reasonable attempts had already been undertaken to obtain the information by other means. Previously, the safeguard only applied to future terrorism offences, not past ones.

Second, the original 2001 legislation imposed annual reporting requirements on the use of the investigative hearing and recognizance with conditions by provincial and federal officials, including the Attorney General of Canada. However, the special Senate committee reviewing the Anti-terrorism Act recommended that the Attorney General of Canada also include, in the annual report, a clear statement and explanation indicating whether or not the provisions remained warranted. The bill would implement this recommendation, while also requiring the Minister of Public Safety to make a similar statement in his annual report.

Third, in 2006, the House of Commons Subcommittee on the Review of the Anti-terrorism Act expressed some concern about whether a person detained for an investigative hearing would be entitled to existing avenues of release under the Criminal Code. In response to this, Bill C-17 would propose, through the application of section 707 of the Criminal code, putting a cap on the period in relation to which an arrested person could be detained for an investigative hearing.

Mr. Chair, I think it's important to note that Bill C-17 would continue to allow for the holding of an investigative hearing concerning a past terrorism offence. The government believes that the past offences, in and of themselves, merit investigation. Without a doubt, they may provide crucial information with regard to the planning of future ones.

I will turn now to some of the key provisions that have been added to the original recognizance with conditions provision.

First, during the Senate committee review of former Bill S-3, the government agreed with Senator Baker's recommendation to bring the recognizance with conditions provision in line with the Supreme Court of Canada's decision in R. v. Hall, where a phrase found in one of the grounds of detention in the bail provisions of the Criminal Code was found to be unconstitutional. We agreed then and we agree now. Bill C-17 includes this change to be consistent with the Hall decision.

There were a few issues raised in previous debates, of course, that I must address. Some have argued that these provisions are not necessary because they have been rarely used. However, the fact that something has been rarely used is very different from saying that circumstances will never arise that could require its use in the future. The tools in C-17 are modest and restrained compared to anti-terrorism measures that exist in other major democracies.

Mr. Chair, in relation to the investigative hearing, some have argued that it does away with the right to remain silent, but as you know, the original legislation contains strong protections against self-incrimination in covering both use and derivative use of immunity. These protections continue in this bill, you'll be pleased to know.

It's important to note that a majority of the Supreme Court of Canada, in a 2004 constitutional challenge to the investigative hearing scheme that arose during the Air India prosecution, emphasized the strong protections against self-incrimination it provided, in fact going beyond the requirements and the jurisprudence to protect against self-incrimination.

The final issue, Mr. Chair, is whether the Criminal Code already contains provisions that could be used for terrorism-related offences such as sections 495 and 810.01. Subsection 495(1) allows a peace officer to arrest without a warrant a person who it is reasonably believed is about to commit an indictable offence. However, a police officer may, at the time of the possible arrest, not reach this threshold. Given the grave nature of the harm posed by terrorist activity, there is a need to be able to act quickly to address the threat.

In my remarks today I have attempted to highlight a few of the safeguards and improvements made to the investigative hearing and recognizance with conditions proposals while at the same time addressing some of the issues that have been raised.

This proposed legislation, in my view, is balanced, fair, and necessary.

Thank you very much.

[Don Davies, NDP, Vancouver Kingsway, BC]

Good morning, everyone.

Mr. Chairman, as I think all members of Parliament know, and certainly all Canadians know, in June of this year Parliament acted swiftly to make necessary and I think well-considered changes to the pardon system in this country. Some relatively urgent circumstances caused Parliament to act.

In particular, two cases came to the public's mind. One was the imminent opening for Karla Homolka to apply for a pardon. The other situation that quite reasonably upset Canadians was the quiet pardoning of Graham James, who had been convicted of a number of sex offences against young men in his charge as a hockey coach.

At that time, back in June, the government tabled a comprehensive pardon bill that contained some positive measures. It also contained some measures that not only required further study, careful consideration, and deliberation, but were on the face of it absolutely the wrong way to go in terms of pardon policy in this country.

Back in June, Mr. Chairman, the New Democrats worked cooperatively and productively with the government to fix the imminent mischief in the pardon legislation. In particular, we dealt specifically with the Karla Homolka and Graham James situations. We did a number of things, as committee members will remember.

The first thing we did, which was very important, was we fixed the problem the pardon granting institution had. They had very little discretion to deny a pardon if the application was made. Prior to our changes in June, there were two waiting periods: a three-year period for summary convictions and a five-year period for convictions by indictment. But if a person waited that length of time after they served their full sentence--not only any period of incarceration, but also any period that may have been served on probation or on parole in the community--provided they had not reoffended in that time period and provided upon a cursory police check they had not triggered the attention of the police in any way, the granting institution really had no discretion but to grant the pardon.

One of the good things that I think was in the government's bill back in June was a provision that would give the parole board the discretion to grant a pardon or to refuse a pardon in any circumstance that would bring the administration of justice into disrepute. For the first time in Canadian history, we gave the tools to the board to deny a pardon in any circumstance in which that test was met.

It was my view then and it's my view now that this tool is sufficient to deny a pardon application by Karla Homolka, were she to make it. I think it also may be broad enough to empower the board to refuse to grant a pardon to Graham James, were he to make that application today. That's what Parliament did through all-party cooperation, including cooperation from the New Democrats. It was also the New Democrats' suggestion to add manslaughter to the list of offences that would require someone to wait 10 years to get a pardon.

We might also remember that back in June the other important measure Parliament took was to increase the time periods offenders had to wait to get a pardon in certain types of offences. We took sex offences against children and increased the time period to wait for a pardon from five years to ten years, and for summary conviction offences, from three years to five years.

At the same time, as I said, what the New Democrats insisted upon was that manslaughter be added to that list of offences for which a person would have to wait ten years. We did that specifically because that's the offence that Karla Homolka was convicted of.

I want to pause here and just talk for a moment about something else that's important. The former Minister of Public Safety, Stockwell Day, three or four years ago, reviewed the pardon system. The government did a review of the pardon system at the time Graham James was in the news. In fact, it was another sex offender, I believe, who was in the news at that time who spurred the government to do a review. The government did a review of the pardon system and made very minor changes to the system at that time, in 2007 if I'm not mistaken. Then we reviewed the pardon system in a very in-depth and profound way in June of this year.

I think that all-party cooperation in June produced a very important and progressive development in our pardon system. It gave the pardon system the opportunity to refuse to grant a pardon and gave them the discretion. It ended what Canadians have always perceived as being a rubber stamp, so that if you waited the three or five years, as it was then, and made your application, pretty much the pardon was automatic. We fixed that problem by putting the discretionary aspect in.

We also, I think, addressed something that Canadians said was a great concern, which was whether three or five years was a long enough period of time to wait for someone to apply for a pardon. In many cases, we thought it wasn't. In a lot of cases, and particularly sex offences, we should make an offender demonstrate a longer period of rehabilitated behaviour, that being ten years. That, I think, was also a positive step.

We've heard some testimony before this committee that if a person is going to reoffend, they do it within five days, five weeks, or five months. If someone has actually not reoffended for a period of five or ten years, then the evidence that we've heard so far--and I think we need to hear more evidence on this--is that it is highly unlikely that the person is going to reoffend.

So here we are today. The government came back this fall and put in some further proposals to change the pardon system, which I think are worthy of merit and further careful deliberation. I think they also, it's fair to say, have continued to pursue some of the flawed aspects of the bill that was presented in June, and that of course is the bill before us, Bill C-23B.

Now, whereas in June, Bill C-23A, as it's now known, made the necessary and important changes, what we have left in Bill C-23B primarily are some issues with regard to which we must, I believe, tread very carefully. When we haven't made any pardon changes in decades in this country, when this government looked at the pardon system in 2007 and thought that it didn't need any changes at all but a couple of minor administrative changes, and when Parliament made important changes in June, there is no need for urgency at this point today.

We have had only three days of hearings so far. For any of the Canadians watching, three days doesn't mean three full days but three meetings of two hours apiece, and in that two-hour period we have had 15 minutes carved out for dealing with committee business. So we have so far, it's fair to say, maybe about four and a half hours of discussion and hearing from a few witnesses on the issue of pardons in this country. From the two hearings at which we heard actual witnesses--and we heard from only a handful of witnesses--I think it's already quite clear that this bill has been exposed as having some serious deficiencies. Some would call them deep flaws. Each time a flaw is exposed, it causes us as parliamentarians and policy-makers to stop and think that we had better move carefully in this area.

So we're just getting started studying this bill, and it's obvious that there are many problems to be dealt with. Now, instead of hearing that evidence, the government wants to shut down testimony and rush through this bill, without having the necessary and careful deliberation. In my submission, that is not a responsible way to deal with a very serious issue.

I want to talk about one of those major flaws. This government has put in this bill—they did it in June and they're coming back with it now—what's called the “three strikes and you're out” rule. There's a provision in this bill that says anyone with more than three indictable offences would be ineligible for a pardon forever. I'm going to say that again. You get more than three indictable offences, and the Conservative government wants to pass pardon legislation that says you will forever be ineligible, barred from receiving a pardon.

The New Democrats arranged to hear from a few of the people who would be most affected by this, former offenders who would be denied pardons forever under this proposed legislation. These are people who have had more than three indictable offences. They came and testified right here at this table before this committee.

We also heard from organizations that work with ex-offenders. Here are some of the things we've heard so far.

We heard that proceeding with this provision hastily might actually endanger public safety. That's because we've heard some evidence—only a little bit so far—that shows that the pardon system and the pardon process is one tool in the rehabilitation process. It's a very important tool. We've heard from people who work with offenders and offenders themselves that having the prospect of getting a pardon, being able to work towards a pardon, helps them to get their lives back on track and not reoffend.

If there is one overreaching goal in the carceral system that we should be working towards and that all parties should be in agreement with, it's that we should always favour policies that help offenders not to reoffend, not only because it's good for the offenders and their families, but also because it's good for our communities. When that person goes back into the community, I want that person not to reoffend, not to endanger any other family, any other person, any other property. I want our people to be able to walk safely in our communities. That means that I, as a parliamentarian, will take it very seriously when I hear people tell me that a particular measure helps them not to reoffend. This piece of legislation, this particular provision of the bill—three strikes and you're out—would endanger that principle. It will take away one piece of hope, one piece of motivation, one piece of policy that, we have a taste of evidence to suggest, is instrumental and helps people in not reoffending. So we've heard the valuable role that pardons play in improving community safety.

In testimony from department officials, we also heard that 25% of the applications for pardons are from people who have more than three indictable offences. When we say “more than three indictable offences”, I'm sure Canadians react the same way I reacted when I heard that, which is that someone with more than three indictable offences should never get a pardon. That's what I thought, until we actually started talking to people who have experience with this process, and to former offenders themselves.

We put three live human beings in front of this committee, only three. Out of the tens of thousands of people who may be affected by this, we heard from three only. We put them here to be subjected to questioning from our side and from the government side. What did we hear? We heard from one person who was convicted of 24 indictable offences, which sounds horrible, until you hear his story. The story we heard is that these were convictions for selling steroids. We heard that this is a person whose wife passed away from cancer when he was a young married man. He had a mortgage, and he went into deep grief. He had financial problems so he started selling steroids. He told us that one transaction of selling steroids would result in multiple convictions: possession, trafficking, conspiracy, and fraud.

So someone who sounds like a person showing an intractable trend, an irremediable criminal, is actually a person who sold steroids over a period of six months and ended up with 24 indictable convictions as a result, because there are multiple convictions from single transactions.

Who is he now? I hope Canadians actually have seen this man. This man has gone for years without reoffending and is now an executive in the media industry, someone who has a mortgage and a new marriage and who occupies a position of responsibility and of probity. This was a person who presented an absolute success of what happens when prison works in the right way. This was not a thug and a hooligan or the type of criminal whom the government likes to portray—the stringy-haired criminogenic monster whom the government likes to hold up as the model for all of their criminal policy. This was a real person who had for a brief stretch of his life a problem, and he has put his life back together in admirable fashion.

The second person we heard from was a young aboriginal man. We all know that aboriginals are terribly disproportionately represented in our criminal justice system and in our prisons. This person told us that he's a recovering alcoholic who committed offences that were property offences. Yes, they were serious; I don't mean to minimize the offences. He committed robberies. He himself said that he knows the pain and the fear he caused when he went into stores and robbed those stores.

But he also is a person who has gone for years without reoffending. He is now a person who has a family and children. He talked about how he wants a pardon so that he can get a better job to support his family.

All three individuals talked about how getting a pardon is an incentive for them and a very important part of their rehabilitation plan to help turn their lives around.

Even, I dare say, some of the Conservatives' own witnesses, people who I think have a lot to tell Canadians about the criminal system—that's the victims groups.... We heard from Sharon Rosenfeldt and Sheldon Kennedy, two people who have suffered at the hands of criminals in a way that none of us can truly understand. Ms. Rosenfeldt lost a child to convicted killer Clifford Olson, and Sheldon Kennedy as a young teenager suffered under the sexual offences of his coach, someone under whose charge he was put, who should have been caring for him and should have been watching out for him, but who violated that trust. We have to take their testimony seriously.

We heard from both of those individuals that neither of them, I don't think, would be terribly in favour of removing the possibility of a pardon from someone forever just because they had more than three indictable offences.

We heard testimony from the minister that the figure of three or more than three indictable offences was an arbitrary one. We asked him if he had any data to support the number three. Is there some data to support that someone with more than three indictable offences is somehow less prone to qualify for pardon than someone with two? Or is the magic number four?

His answer was surprising and I think very disturbing. It was that it just seems right. He has no data—no empirical data, zero. This is someone who has the resources of the Department of Public Safety and probably of the Department of Justice, who has the full resources of government to provide studies and data and facts, who came to this committee and said he had nothing; three just seems right. One's not enough, he said; two's not probably right; but three seems right.

Mr. Chairman, that's Goldilocks policy. That's making policy the way children do: this one is too hard, this one is too soft, and this one is just right.

This policy would preclude tens of thousands of Canadians from ever getting a pardon for the rest of their lives. And it's based on a feeling, a hunch? That's not the way to make carceral policy in this country, and it's not, I think, what Canadians send us to Parliament to do. I think Canadians send each and every one of us to Parliament to carefully consider facts and evidence, to make the best effort we can make to come up with policy that is thoughtful and effective.

Again, the minister admitted no evidence, no data, no studies to show how adopting this law would help in any way to make our communities safer.

I also want to just talk for a second about this. This government has stood in the House time and again and said that the very best social safety tool that a person can have in this country is a job. You won't hear any one of the members of the government contradict that today, because they themselves have said it, because they believe it. And in some ways, Mr. Chairman, it's actually true. A job is a pivotal part of Canadians' abilities to care for themselves and care for their families.

We've heard absolutely unarguable testimony so far that getting a pardon is a critical part of having a person re-establish themselves in the employment world. We all know that when you apply for a job, there's a section on an employment form that asks: “Have you ever been convicted of a criminal offence for which a pardon has not been granted?” The ability to check off that box or not check it off is the difference between someone's getting a job and not getting a job, in many cases. If we want offenders to come back out of prison and to reintegrate themselves into society and start repaying their debt to society, and start acting as we expect our citizens to act and not be a burden on the taxpayer and not be a burden on the state, don't we want them to get a job? Of course, we want them to get a job if they've demonstrated that they deserve that kind of trust again.

The New Democrats are totally in favour of making a pardon process that is strict, that gives the pardon process the ability to deny that pardon, that makes the offender demonstrate that they have truly rehabilitated themselves through an extensive period of time of proving that; not through their words, but through a period of time during which they have shown that they have not reoffended—and make that period of time a good, substantial one; make it a long one, in some cases. But getting a job is critical, and this “three strikes and you're out” proposal would harm that process.

I also want to talk about lengthening the wait times. This bill proposes to double the ineligibility periods before applying for a pardon. It would go from five years to ten years in some cases, and three years to five years for summary convictions.

This is a concept that's worthy of further discussion, worth learning more about. What kinds of offences should go from five to ten years? As I've already said, New Democrats have already indicated our support for moving sex offences against children from five to ten years, and it may even be the case that there are some sex offences against children for which a person should never get a pardon. New Democrats are prepared to look at that.

But what this does with a broad brush...what this government says is that all indictable offences of every type should go from five to ten years. In a Criminal Code that is very thick and has every single type of indictable offence, from impaired driving to shoplifting to forging a testamentary instrument to passing a bad cheque, there are all sorts of offences that Canadians would recognize fall on a spectrum. They fall on a spectrum from the minimally serious to the moderately serious to the heinous.

There are some offences that I think we can all agree may qualify for the “never getting a pardon” process, but absolutely the vast majority of Canadians would agree, because they're reasonable people with common sense, that there are some indictable offences for which you shouldn't have to wait ten years to get a pardon. My colleague in the Liberal Party has brought up a very good example on several occasions of a young woman, perhaps a single mother, who gets into trouble—she's in her early 20s, she ends up writing some bad cheques, or she ends up shoplifting, maybe—because she is low-income and needs to have clothes for her children. She makes a mistake and she has one indictable offence.

This government would say that you have to wait 10 years after you serve your sentence, which in many cases would probably be 12, 13, or 14 years. Additionally, Mr. Chairman, we've also heard from businesses that exist to help people get pardons that the pardon process itself usually takes a year or two years.

So that one young woman who might have made a mistake at 20 years of age might, under this legislation, have to wait 15 years before she can get a pardon. That is not “considered legislation”, in my respectful submission.

In terms of basic drafting, this bill has been rushed so quickly that we can determine that there are drafting flaws in the bill. We have the so-called problem, which we have finally teased out of the minister and out of the support staff—I think they acknowledge that there is a drafting flaw in this bill—concerning the people who are convicted of sex offences against children and the way it works with respect to young offenders: a 16-year-old and a 14-year-old, or a 17-year-old and a 14-year-old. The close-in-age provision is incorrectly drafted in this bill. So we even have a flawed drafting issue here.

I also want to talk a bit about what I will say, with the greatest of respect, is a little bit of Conservative hypocrisy. We brought those three offenders as committee witnesses to show Canadians and this committee the types of people who would be personally affected by this legislation. Again I think it's fair to say that we heard compelling and touching stories of people with criminal pasts who had turned their lives around, who have completely turned their lives around. Conservatives to a person said to these people' faces, we're really proud of what you've done; we really admire the way you've turned your life around. I could be wrong, but I think one or two of them may even have suggested to these witnesses: “We don't mean you. You're not the ones we mean to prohibit from getting a pardon forever. We mean those other people.” But of course, those three are exactly the people who will not get a pardon as a result of this legislation.

Worse, after sitting here in this committee, each of the Conservatives talking to those ex-offenders and treating them with respect and praising them stood up in the House the very next day and made outrageous statements disparaging those very courageous individuals who came to tell their stories.

I won't mention the name, but I'll quote one of the members in the House, the day after these former offenders came and bravely testified—on television—about their criminal past and how it was turned around. It took more courage than I have seen many Canadian demonstrate in a long time. The Conservative member said:

...yesterday the public safety committee heard pleas from the convicted criminals to keep Canada's pardon system as is. Like so many times before, the Liberal public safety critic showed that he put the rights of criminals before the rights of victims.

That, of course, is not true. This is part of the rhetorical nonsense you hear from the government, which accuses anybody who might want to bring some study and some subtlety and some intelligence and some facts to the debate of crime...they accuse us of putting criminals before victims. What nonsense! But they did it, and worse was their two-faced way of telling these people to their faces how much they admired them and the next day going into the House of Commons, where they have parliamentary immunity, and portraying them to the Canadian public as if we had a bunch of common criminals who wanted the pardon system liberalized. It was about the biggest piece of hypocrisy I've seen in a long time.

I want to talk again about evidence. So far the Conservatives have not tabled one piece of evidence, one statistic, one study, or one piece of data before this committee that shows why these changes are needed or how the changes would improve community safety.

I want to talk again about the Conservative approach to making legislative changes based on politics and based on fear and not based on facing evidence.

When they put Bill C-5, the international transfer of offenders bill before this committee, it was unanimously panned by the witnesses. The Conservatives couldn't find one witness, not one, who supported the bill.

They brought Bill C-17, and we heard this expert panel yesterday express grave concerns about the impact on free speech and basic--

[Khalid Elgazzar, Member of the Board of Directors, Canadian Council on American-Islamic Relations]

It's our view that current measures in the Criminal Code are sufficient and adequate to the task, so we also disagree that there is a gap that needs to be filled by legislation such as Bill C-17.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Madame Mourani.

I'll give you a little bit of leeway here on Bill C-17. You do draw in CSIS and a few others, so I'll accept that as a question.

Go ahead, whoever wants to take that one on.

Go ahead, Mr. Barrette.

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

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

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

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

Thank you, Mr. Chairman.

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

I have so many concerns, especially hearing the testimony.

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

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

Thank you.

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

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

[Prof. Craig Forcese]

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

[Prof. Craig Forcese]

This is the narrow gap that I was speaking about.

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

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

[Prof. Craig Forcese]

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

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

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

Thank you.

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

[James Kafieh]

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I will close with a couple of thoughts.

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

[James Kafieh]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

[The Chair, Conservative, Kevin Sorenson]

I call the meeting to order.

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

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

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

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

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

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

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

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

Monsieur Barrette, welcome.

[The Chair, Conservative, Kevin Sorenson]

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

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

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

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

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

Madame Mendes has asked—

Combating Terrorism Act

[The Deputy Speaker, Conservative, Andrew Scheer]

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

Call in the members.

The House resumed from September 21 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.

Cracking Down on Crooked Consultants Act

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, I am delighted to engage in this particular debate.

I want to pay tribute, first of all, to all those members of Parliament who have already intervened. Some of them were critics of mine when I was the minister of immigration. I know that the current Minister of Immigrationwill relish the thought of having a former minister make some submissions. He will probably say that nothing has changed.

However, people have made some pretty insightful suggestions. The people who come to mind, of course, are the member for Laval—Les Îles, the member for Burnaby—Douglas, who just spoke, the member for Vaudreuil-Soulanges, who has yet to speak but who was an ardent critic of mine and of immigration, and of course, all other members of the Liberal Party who used to be the greatest critics of the system and the substance of the system, as we have gone through. I doubt that there is another topic, another department, that has more experts in this House than this one.

I am going to add my voice, humble though it may be, on this issue, simply because I agree with the member for Papineau, our critic on this matter, that the bill should go forward to committee, where it will get the appropriate scrutiny from all those people who have a wealth of experience and expertise. That will give the Canadian public a feeling of comfort that what they are getting is a bill that has really received the scrutiny of this House and Parliament.

I know that the Minister of Immigration has counted on the support of members of Parliament from the official opposition to get some of his issues through the House, and I know that he looks forward to continuing that kind of relationship. I am sure that other members on this side of the House will be only too happy to collaborate in a fashion that will produce a desired outcome.

Many of us here have a tendency to be academic or expert on some things, because that is the way we are in this House. We stand here and we pontificate on things.

I would like to give members a bit of a human element.

I have a young grandson. He is probably watching right now. If he is, I want to be able to point to him. I do not know if he is or not. That little boy, who is going to turn five tomorrow—his name is Stefano—had the good fortune of having, and still has, four grandparents who were born abroad. Each and every one of those four had the kind of difficulties we constantly debate in this House with respect to immigration. Their issues were, and continue to be for those who are like them, issues not of process but of substance. They want to know that the current government, the Government of Canada, actually seeks them out and wants them to come here.

Stefano and his brother--I think they are watching this right now; I hope they are, because I want to say happy birthday to Stefano--have the good fortune of having grandparents who had the good fortune of being able to come to this country to be part of the building of everybody's dream. That is what immigration is. It is not a process. It is about the realization of an ambition and a dream that individuals and their families have for fashioning a future not just for themselves but in co-operation with and in collaboration with a collective in another place, a place that they will turn into their home. Canada has become a home for so many people from so many other places.

I am one of them. I had the good fortune of having parents who had the wisdom to move. They wanted to move. It was a challenge for them. They had to deal with consultants. I did not know. They did not call them consultants then. It was just somebody who gave them a hand who said , “If you go to the Canadian Embassy, you might be able to go to Canada, because they want people. They want people who are going to build Canada. They want people who want to become part of a country that is going to be something more than what we have here, no matter where 'here' is.” Along the way, there were people who took advantage of their desire to have a better life for them and their kids.

We do not want people to take advantage of those who want to come and build this country. The reason we do not want that is not because we have compassion for people in need. It is not because we feel sorry for those who are victims of the unscrupulous. It is not because we think it is wrong for someone to take advantage of another. It is because we think that is inconsistent with those values that make us Canadian.

We do not want people's first experience with this country to be one where they come into contact with those who profess to be expert on how to enter this country and make those people pay dearly to come here.

We do not want our offices to turn into nothing more than processing centres for those who would sell expertise whether real or not as the one expression of Canada that they must then overcome when they come here.

I said a few moments ago that I agree with my colleagues that the bill should go forward and let the committee deal with this. I know that the minister will be happy to hear this.

However, I look at the bill and we have now had four and a half years of a government, some of whose members had become the same kind of experts that I talked about a moment ago. If there was a problem in the process, we have had this amount of time to actually deal with correcting the measures in process. This House cannot simply be one that is dedicated to process. This House has to be representative of the collective ambition of the Canadian public for its country.

For all those who were born here or who came here, we used to call them naturalized Canadians, we have evolved. We do not call them that any more. For all those who were born Canadians and those who have become Canadians, they are all part of that collective ambition that wants a place in the world in which all Canadians can feel they have a portion, a stake, a share in the country that everybody would like to emulate or be a part of.

We need to discuss in this House what that immigration plan is for Canada, how it fits in with the industrial strategy, the social strategy, the political strategy of a country that is evolving, that is developing, that is still becoming. It is not just being. It is not just there. Every day brings a new challenge. Every day brings a new goal. Every day brings a new struggle for people to identify with, to overcome and then to reap the satisfactions associated with saying that we have accomplished something for ourselves and with and for our neighbours.

The bill says that we are going to take care of those people who abuse the system by giving bad advice.

It seems to me that a former minister, the Hon. Elinor Caplan, used to be criticized a lot by her own caucus colleagues when we were on that side of the House some 12 years ago. She talked about this precise matter. She said, “We have to stop those snakeheads, those human smugglers from abusing people abroad and from abusing relatives of those people here in Canada. I am going to travel abroad. I am going to go to Beijing”. That was becoming a big source area for many of our immigrants. She said, “I am going to go to other places, like India and the Philippines, because that is where most of the people are coming from. I am going to see if I can get the co-operation of those governments in order to pursue those who are so unscrupulous that they would take advantage of their people”.

Keep in mind this is about taking advantage of people who would become part of Canada but who are not yet a part of Canada. This is about dealing with people who would try to abuse or take undue advantage of a Canadian system in order to abuse people who are outside our borders even more.

I noted that the minister agreed with that, in essence, in response to a question from my colleague from Laval—Les Îles. He said that we have to co-operate with foreign authorities in order to pursue and prosecute those who take undue advantage of others, even if it appears to be more acceptable in other places than it does here, because, of course, we have the rule of law. It is one of the values that draws people to this place. In other places that particular value is less ingrained and so people work within different parameters.

We say we are going to get rid of unscrupulous consultants. Some of my predecessors and some of the current minister's predecessors tried the same thing. One of the measures undertaken at the time was to provide educational material to those who would have become consultants, in other words, have them work with the department and the legal societies in order to come up with a body of expertise that would be acceptable to our functionaries abroad and in Canada.

We even went so far as to give them their own regulatory authority. Do you know what that means, Mr. Speaker? I know you relish this sort of thing. What happens is governments say that they have to put together an organization, but people are mature enough, educated enough and responsible enough to make the decisions to make that organization function properly, in other words, for their members but also for the people that they would serve.

Why do we say that? We say that because there is a basic principle of law in all western societies that is called caveat emptor, buyer beware. But we try to make sure that all the vendors adhere to a particular policy, a particular set of standards that make us proud but reinforce as well all of the values that we build as a society as we invite more and more people, like Stefano's grandparents, to come to this country and to build it. That is what we do.

We established a set of laws to make sure that nobody contravenes Canadian legislation, but we give them regulatory authority so that they can govern themselves. That is what they wanted and that is what we gave them. We worked with them.

The law societies, of course, were not completely sure that they wanted to have the consultants in place. However, there is a fine line between accepting the criticism as valid from one group against the other. It must be recognized there is a competitive spirit between the two of them. What they need to do is look at that market. I think last year some 230,000 people were given their permanent residency to this country and there were tens of thousands more who had to go to those people for the expertise to develop their applications for other types of visas. One can understand there is a commercial issue here.

I listened to the debate this morning on Bill C-17. I listened to it yesterday as well. There are those who are still following the debate. I see there are some very hardy folks in the gallery and my compliments to them for trying to fashion out what it is that parliamentarians do when they talk about building laws that fashion this country and give us a Canadian identity. My compliments to them for spending at least a few minutes to hear what it is that we have to say.

Bill C-17 talked about building a new regulatory framework in order to make sure that we could fight off the terrorists that we see everywhere. As one member of the NDP from Vancouver indicated, it was in essence beginning to limit the civil liberties in order to fight off the perceived evil that is out there. The Minister of Justice said yesterday that it was not all that bad because it is the law the Liberals had when they were in government after 9/11 and which lapsed in 2007.

If one wants to accept there was a crisis that created a need for legislation, that crisis must have lapsed by 2007 because there was a sunset clause built into the bill. It is now three years later. One is tempted to ask what the crisis is. The crisis is that the government needed to give an impression that notwithstanding all the other economic and social difficulties in this country, its priority would be the creation of a psychological environment that says we are under threat and these tough guys are going to put in legislation that lapsed some three years ago.

It might offend some people who think that civil liberties should be maintained, but after the $1.2 billion boondoggle at the G20 summit and the turning of Toronto into an armed fortress for the sake of a 72 hour photo op, the Canadian public is right to be skeptical about whether this is the message to have.

Some might ask what that has to do with this bill. For those people who are still watching, they should think about what the bill says. It is no longer about the process that I talked about a moment ago. This is Bill C-35, which means there has only been 34 other bills presented since the government got elected in 2008. Imagine that. For all of that time we have been dealing with legislation that did not come from the government. Where is the government's vision of Canada? However, the title of the bill is the cracking down on crooked consultants act.

What are we doing now? We are trying to consolidate all of the issues associated with process under the direction of the Minister of Immigration .

I know that the minister's heart is in the right place when he wants to talk about reforming the entire system, but please, this sort of thing makes it absolutely difficult to take the government's initiative all that seriously. It brings all of those functionaries who are outside the bureaucracy into an ambience where they are responsible to the Minister of Immigration for the kind of livelihood they earn. What is even worse is it tells everybody they represent that the ultimate person, the ultimate individual that controls what happens with their applications is actually the Minister of Immigration.

How can we have any kind of confidence in the independence of representation when everything they do is dependent upon the Minister of Immigration? That is like going to a different set of bureaucrats. That is a little like asking CRA officials to authorize who will fill out our income tax forms, and if we want to do it ourselves, we really cannot.

We need to make the process more fine tuned. But the biggest issue here, and I hope that my colleagues will keep this in mind, is what is it that the government of the day proposes for immigration other than nipping and tucking at some of the processes and procedures that have already been nipped and tucked to death?

Combating Terrorism Act

[Megan Leslie, NDP, Halifax, NS]

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

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

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

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

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

[Megan Leslie, NDP, Halifax, NS]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Maria Mourani, Bloc, Ahuntsic, QC]

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

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

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Libby Davies, NDP, Vancouver East, BC]

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

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

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

[Bill Siksay, NDP, Burnaby—Douglas, BC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

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

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

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

Our party felt that the investigative process needed to be better defined. It was clear that this exceptional measure should be used only in specific cases in which it is necessary to prohibit activities where there is imminent peril of serious damage, and not in the case of misdeeds already committed.

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

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

Again, I am quoting my colleague's text.

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

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

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

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

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

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

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

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

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

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

Now, this provision has gone unused.

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

Section 495 of the Criminal Code states that:

“(1) A peace officer may arrest without warrant

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

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

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

If police officers believe that a person is about to commit an act of terrorism, then they have knowledge of a plot. They probably know, based on wiretap or surveillance information, that an indictable offence is about to be committed. Therefore, they have proof of a plot or attempt and need only lay a charge in order to arrest the person in question.

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

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

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

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

And concerning section 83.3, my colleague added:

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

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

My colleague went on to say:

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

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

He continued on, saying:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Maria Mourani, Bloc, Ahuntsic, QC]

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

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

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

[Don Davies, NDP, Vancouver Kingsway, BC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They went on to say:

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

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

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

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

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

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

The court said:

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

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

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

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

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

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

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

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

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

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

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.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[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.

[Dave MacKenzie, Conservative, Oxford, ON]

Okay. You're talking about changes that have occurred in Canada, and I ask you if you know about Bill C-17 and what changes that brought about to guns in Canada.

[Dave MacKenzie, Conservative, Oxford, ON]

Do you know about Bill C-17 and when it came in and what changes that brought to guns in Canada?

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

(Motions deemed adopted, bill read the first time and printed)