Mr. Speaker, I am pleased to participate in the second reading debate of Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.
This bill, among other things, seeks to re-enact the investigative hearing and recognizance with conditions provisions that were created in the Criminal Code by the Anti-terrorism Act in 2001, but that expired in March 2007 because of the operation of a sunset clause.
The proposed bill also responds to recommendations of the parliamentary review of the Anti-terrorism Act which took place between 2004 and 2007 and includes additional improvements to the Criminal Code, the Canada Evidence Act and the Security of Information Act.
Terrorism is an ongoing phenomenon that is rooted in deeply held hatred and insecurity. It is characterized by conduct which seeks not only to kill or harm, but also to commit acts for the deliberate purpose of instilling terror in the general population thereby destabilizing it.
Terrorism targets not only the individual but society generally and is an ongoing dangerous presence that every democratic society must continue to combat. Since the horrific events of 9/11, the absence of terrorist violence on Canadian territory does not preclude the possibility of a terrorist attack. Canada's solidarity with the international community of nations in the fight against terrorism has rendered Canada a potential target.
The first line of any response to terrorism must come from Parliament. It is our responsibility to lay down the rules by which terrorism is fought. We are responsible for tracing the difficult line between combatting terrorism and preserving liberties in a way that is effective and gives clear guidance to those charged with combatting terrorism on the ground.
Terrorism confronts democratic societies with a formidable challenge. On the one hand, terrorism must be prevented, fought and contained and those who commit terrorism offences must be brought to justice. On the other hand, states combatting and prosecuting terrorists must remain true to the fundamental principles upon which democracy and a free society are based.
In enacting the Anti-terrorism Act in 2001, Parliament showed due regard to the Canadian Charter of Rights and Freedoms. As a result, Canada's anti-terrorism provisions are notable for their safeguards and protecting fundamental human rights. These include the high mental fault or mens rea requirements that need to be proved beyond a reasonable doubt before a person can be convicted of a terrorism offence, such as knowledge or purpose. To date, these laws have led to several successful prosecutions in Canada, all the while preserving our fundamental values and the rule of law.
Bill S-7 continues in the same tradition. Bill S-7 seeks to re-enact, with some additional safeguards, the investigative hearing and recognizance with conditions provisions that expired in March 2007. These proposals incorporate some recommendations of the 2006 interim report of a House of Commons Subcommittee on the Review of the Anti-terrorism Act and the 2007 special Senate committee report on the Anti-terrorism Act, and include the Senate amendments made to former Bill C-17's predecessor, Bill S-3 in the 39th Parliament.
The investigative hearing provisions give a judge the power on application by a peace officer with the prior approval of the attorney general to require a person to appear before a judge and to answer questions about a past or future terrorism offence and to bring along anything in his or her possession. In order for the investigative hearing to take place, the peace officer must have reasonable grounds to believe that a terrorism offence has been or will be committed and reasonable grounds to believe that information concerning the offence or the whereabouts of a suspect is likely to be obtained or may be obtained, as the case may be, as a result of the order.
The objective of the hearing is to gather information from the person or to produce anything in the person's possession or control to assist in a terrorism investigation. Reasonable attempts must be made to obtain the information by other means and an individual has the right to retain and instruct counsel at any stage of the proceedings. Any information or testimony obtained during the investigative hearing or evidence derived from such information cannot be used in subsequent proceedings against the individual except in relation to a prosecution for perjury or for giving contradictory evidence.
Moreover, the Supreme Court of Canada has extended this last protection to extradition and deportation hearings. The provisions state that a person who is evading service of the order, is about to abscond or fails to attend an examination may be subject to arrest with a warrant.
However, subsection 83.29(4) incorporates section 707 of the Criminal Code, which sets out the maximum period of detention for an arrested witness so that there will now be clear limits as to how long a person arrested in such a case may be detained. Section 707 imposes 30-day detention periods up to a maximum of 90 days' detention for a witness who has been arrested and detained to ensure his or her appearance and giving of evidence.
The recognizance with conditions provision gives a judge the power, when certain criteria are met, to impose reasonable conditions on a person to prevent the carrying out of a terrorist activity. These criteria are that a peace officer believes on reasonable grounds that a terrorist activity will be committed and suspects on reasonable grounds that the imposition of the recognizance with conditions on a person is necessary to prevent that person or anyone else from carrying out a terrorist activity. A person who is ordered into a recognizance is required to keep the peace and to respect other reasonable conditions for up to 12 months. If the person fails or refuses to abide by the conditions, the judge can order that person to be imprisoned for up to 12 months. This penalty is comparable to the penalty for other peace bonds.
The recognizance with condition provision allows for a peace officer to arrest a person without a warrant in two circumstances: first, where the grounds to lay an information exist but there are exigent circumstances, or second, where an information has been laid and a summons has already been issued but the person has not yet appeared before the court. In both cases the peace officer must suspect on reasonable grounds that the detention of the person in custody is necessary to prevent a terrorist activity.
Once arrested, the presumption is that the person will be released once he or she appears before a judge. The person must be brought before a judge within 24 hours after arrest if a judge is available, or if a judge is not available, as soon as feasible thereafter. The onus is on the Crown to demonstrate why the person cannot be released pending the hearing, based on the specific grounds of detention set out in the provision. If the person is ordered detained by the judge, the hearing itself can be adjourned only for a further 48 hours. In his testimony before the Special Senate Committee on Anti-terrorism, Professor Kent Roach of the Faculty of Law at the University of Toronto stated that this 72-hour maximum period of detention is “restrained by comparative standards”.
Professor Roach also testified that he was pleased that the government had included reporting, parliamentary review and sunset provisions in the bill. I would like to talk for a few moments about these important safeguards.
Bill S-7 requires that Parliament review these provisions prior to the date 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. As well, the investigative hearing and the recognizance with conditions provisions are also subject to another sunset clause, which would result in their expiry after five years unless they were renewed by parliamentary resolution.
Finally, the proposals in the bill include annual reporting requirements by the federal government and the provinces on the use of these provisions, and the annual reports of the Attorney General of Canada and the Minister of Public Safety would include an additional requirement that they provide an opinion, supported by reasons, on whether the provisions should remain in force.
The special Senate committee noted in its observations in its final report the importance of Bill S-7 to Canada's ongoing efforts to prevent and deter terrorism both at home and abroad. The re-enactment of these important provisions would be an integral part of these efforts.
The Senate committee also adopted amendments to these two provisions. The first relates to the mandatory parliamentary review of the investigative hearing and the recognizance with conditions provisions. Whereas the English version had made it clear that the review was mandatory, the French version did not. As such, an amendment was adopted by the Senate committee to fix this.
The second amendment addresses the power to vary conditions imposed in a recognizance with conditions. The bill originally allowed only the judge who imposed conditions in the original recognizance to vary its conditions. The amendment now also allows any other judge of the same court to vary the conditions. This is in keeping with the scheme for investigative hearings and in other recognizance with conditions provisions in the Criminal Code.
While the terrorism threat continues, it is also evolving and transforming in ways that present new challenges. Another area of increasing concern and focus for this government is the recruitment of Canadians by terrorist groups, who urge them to travel overseas to fight and engage in terrorist activity, or these people may not have any links or connections to terrorist groups or activities and may in fact be acting alone.
The government recognizes that the complex nature of the problem necessitates a shared and comprehensive response. A primary responsibility of government is to protect all Canadians by detecting and countering the work of terrorists. We do this through intelligence gathering, criminal investigation and prosecutions, and our efforts in this area are guided by respect for fundamental human rights.
During the hearings of the Special Senate Committee on Anti-terrorism, witnesses from the Royal Canadian Mounted Police, the RCMP, and the Canadian Security Intelligence Service, CSIS, confirmed that their organizations were engaging communities in various ways to continuously build positive relationships in an effort to prevent radicalization leading to violence.
RCMP Assistant Commissioner Gilles Michaud testified that in the last year and a half there had been significant changes to the threat environment. He observed that it was increasingly complex and that political conflicts in other countries such as Libya and Syria might affect the security of Canadians both here and abroad.
CSIS Director Richard Fadden testified that CSIS was aware of at least 45 Canadians, possibly as many as 60, who had travelled or attempted to travel from Canada to Somalia, Afghanistan, Pakistan and Yemen to join al-Qaeda-affiliated organizations and engage in terrorism-related activities. He indicated that those people represent a threat both to the international community and Canada.
Bill S-7 responds to this threat by proposing to create new substantive offences, those of leaving Canada or attempting to leave Canada to commit various existing terrorism offences. The bill seeks to put in place specific offences to leave Canada or to attempt to leave Canada to knowingly participate in any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to carry out or facilitate a terrorist activity; to knowingly facilitate a terrorist activity; to commit an indictable offence for the benefit of, at the direction of, or in association with a terrorist group; or to commit an indictable offence that also constitutes a terrorist activity.
The offence of leaving Canada or attempting to leave Canada to participate in any activity of a terrorist group would carry a maximum penalty of 10 years' imprisonment. The other new offences would carry maximum penalties of 14 years' imprisonment.
These new offences would allow for the persons who go abroad either to receive training in terrorism or who wish to go abroad for such or to commit crimes in furtherance of terrorism to be charged with offences specifically tailored to catch this kind of harm. Moreover, these offences would provide for an appropriate level of punishment to be given for such conduct. In my view, these proposed new offences would help to strengthen the ability of our criminal law to combat terrorism and would send a strong deterrent message.
In addition, this bill proposes amendments to the Canada Evidence Act to reflect the 2007 judgment of the Federal Court in the case of Toronto Star Newspapers Ltd. v. Canada. The amendments would allow the Federal Court to order that the applications it hears with respect to the disclosure of sensitive or potentially injurious information could be made either in public or in private. This amendment would increase the flexibility in the court process as well as enhance transparency.
Also, Bill S-7 responds to the final report of the House of Commons Subcommittee on the Review of the Anti-terrorism Act by reducing the duration of a certificate prohibiting the disclosure of information from 15 to 10 years. Pursuant to section 38.18 of the Canada Evidence Act, the Attorney General of Canada can personally issue a certificate prohibiting the disclosure of information for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or for the purpose of protecting national defence or national security. After expiry, the certificate may be reissued by the Attorney General of Canada if the requirements under the Canada Evidence Act are met.
As well, under the Canada Evidence Act the Attorney General of Canada may issue a fiat to take over any prosecution where sensitive or potentially injurious information, as defined in the Canada Evidence Act, may be disclosed. This bill would also implement the House of Commons subcommittee's recommendation to require the Attorney General of Canada to table an annual report in Parliament on the usage of the fiat and certificate provisions. I would note that neither the certificate nor the fiat has been used to date.
Canadians expect their government to have in place the appropriate legal framework to prevent and deal effectively with terrorism and those who threaten our safety. Bill S-7 would be an important enhancement to Canada's counter-terrorism efforts and I urge speedy passage of this valuable piece of anti-terrorism legislation.