Bill S-7 (Historical)

Combating Terrorism Act

An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act

This enactment replaces sections 83.28 to 83.3 of the Criminal Code to provide for an investigative hearing for the purpose of gathering information for an investigation of a terrorism offence and to allow for the imposition of a recognizance with conditions on a person to prevent them from carrying out a terrorist activity. In addition, the enactment provides for those sections to cease to have effect or for the possible extension of their operation. The enactment also provides that the Attorney General of Canada and the Minister of Public Safety and Emergency Preparedness include in their respective annual reports their opinion on whether those sections should be extended. It also amends the Criminal Code to create offences of leaving or attempting to leave Canada to commit certain terrorism offences.
The enactment also amends the Canada Evidence Act to allow the Federal Court to order that applications to it with respect to the disclosure of sensitive or potentially injurious information be made public and to allow it to order that hearings related to those applications be heard in private. In addition, the enactment provides for the annual reporting on the operation of the provisions of that Act that relate to the issuance of certificates and fiats.
The enactment also amends the Security of Information Act to increase, in certain cases, the maximum penalty for harbouring a person who committed an offence under that Act.
Lastly, it makes technical amendments in response to a parliamentary review of these Acts.

Combating Terrorism Act

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, this bill has only one objective, and it has nothing to do with observing the age difference between a minor and an adult or the difference between a Canadian citizen and a foreign national. It has only one objective, which is to bring in an unfortunately partisan policy.

The Conservatives want to appear to be the champions of anti-terrorism. They knowingly introduced this bill at a time when people in Boston were victims of an act of terrorism and when Canadian authorities were uncovering terrorist plots. There is a reason we are talking about this bill today.

The government wants to come off as the guardians of Canada. That is not the case. They are not good guardians for Canada. The good guardians are the ones who stopped the terrorists, certainly not the people over there who create obstacles by cutting funding and prohibiting the authorities from accessing internationally relevant information. The government violates all of our own most fundamental laws.

At what point will we see children being sent to prison for what the Conservatives arbitrarily consider to be an act of terrorism?

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

Mr. Speaker, the bill and the context in which we are debating it are full of contradictions. We are here debating that the government is asking for extraordinary measures, when the day before it seemed that ordinary measures, the measures that currently exist, were sufficient to ensure Canadians are protected from terrorist acts.

One of the other contradictions we are faced with is that, again, the government is asking for extraordinary measures at the same time that it is implementing cuts to the enforcement agencies that are there to protect Canadian interests and lives. I look to, for example, cuts of $143 million to CBSA that would affect 325 front-line border crossing guards across the country.

I wonder if the member would comment on that particular contradiction.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, effectively combatting terrorism requires competent, qualified police officers who receive the support they need from the government and effective legislation.

They are responsible for defending democracy, and they are very good at doing so. This government is only looking for publicity. Its only objective is to make itself look good by claiming to be combatting terrorism.

Less work will get done, at the borders, at airport security and in the field, because of the Conservatives' budget cuts.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I am pleased to rise on the matter of Bill S-7, legislation that proposes a number of amendments to Canada's anti-terrorism regime, including provisions respecting the re-enactment of preventive arrests and investigative hearings. As members will know, these provisions expired in 2007 and have, on numerous occasions, been the subject of my remarks in the House and in writings of mine over the years, dating back to the tabling of the original Anti-terrorism Act, Bill C-36 in 2001.

It perhaps goes without saying that this debate began in the period following the horrific events of 9/11, which was characterized at the time as a period when the whole world was changed. Back then the Liberal government of the day introduced provisions for preventive arrests and investigative hearings as components of the larger Anti-terrorism Act. Soon after Bill C-36 in the House in its original form was tabled, I rose in the House and expressed some 10 civil libertarian concerns with respect to that projected draft of the Anti-terrorism Act, including the provisions relating to preventive detention and investigative hearings. I elaborated on these matters in a series of articles and recommended that the provisions be sunsetted after three years, later extended to five years, pending comprehensive parliamentary review, and the government agreed. With that as well as the majority of my other concerns being addressed, some eight out of the ten, I ended up supporting the legislation.

Regrettably, by 2007, when the provisions were scheduled to sunset pending a parliamentary motion to extend them, the House and special Senate committees had not yet completed their studies of the Anti-terrorism Act due to repeated delays including the dissolution of Parliament in 2004 and 2006. Nevertheless, the Conservative government went ahead with proposing the extension of the provisions without taking the views of these parliamentary committees into account, leaving House members with little insight into the experience of the provisions in effect. The result was a highly politicized and partisan debate, rife with what I could only describe at the time as bumper-sticker slogans and smears instead of a debate on the merits of the policy, a policy with which reasonable people can and do reasonably disagree. Indeed, I regretted the references made by ministers of the Crown at the time that somehow our party was soft on terrorism for simply wanting to debate these provisions, especially considering that it was a Liberal government that introduced the Anti-terrorism Act in the first place.

With Bill S-7 now stipulating that preventive arrest and investigative hearings be once again subject to a five-year sunset clause, I offer my support today with the expectation that if enacted, parliamentary committees will be given the opportunity and resources necessary to undertake full review of the provisions in question during the next trial period and well in advance of any debate to extend it once again. Indeed, any decision made by Parliament that affects the security and rights of all Canadians must be reasoned, thoughtful, evidence-based and not rushed as a matter of political expediency.

The critical issue here is one of principled balance. We must, on the one hand, seek to combat terrorism and keep Canadians safe from terrorist threats and attacks, while at the same time protecting our individual freedoms as enshrined in the charter. These are not, however, mutually exclusive objectives. Indeed, an appropriate and effective anti-terrorism strategy must view security and rights not as concepts in conflict, not as a zero sum game, but as values that are inextricably linked.

Let me articulate a number of basic principles in this regard. First, terrorism itself must be seen as being, in effect, an assault on the security of a democracy like Canada and an assault on our fundamental rights such as the right to life, liberty and security of the person. Accordingly, anti-terrorism law and policy may be said to constitute the promotion and protection of the security of democracy and fundamental human rights in the most profound sense. At the same time, however, the implementation and enforcement of such anti-terrorism law must always comport with the rule of law, must always adhere to the principles of the charter. Torture, for example, must never be allowed to be used and must always comport as well with our international legal obligations.

The second and related principle is that we are not simply talking here about a domestic criminal justice model. We are talking about is an international criminal justice model. We are not talking, as the courts and others have said, of the ordinary criminal. We are talking about the transnational terrorist threat.

This brings me to a third principle, which the Supreme Court has itself enunciated, namely the contextual principle; that we cannot view these issues in the abstract but we must view them in terms of the realities as they have unfolded in this regard. Also, we must appreciate that Canadian anti-terrorism law is inextricably bound with the international criminal justice system and the invocation and application of international law treaties, the invocation of general principles of law recognized by the community of nations. For example, section 11(g) of the charter on this point says that retroactivity shall not avail when the crimes are those that run afoul of “the general principles of law recognized by the community of nations”. Therefore, in this regard, it recognizes that the international criminal justice model departs sometimes from the domestic model.

UN Security mandates must also be taken into account, bilateral and multilateral agreements and so forth. In particular, Security Council resolution 1373, enacted following 9/11, mandates that all states take “additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism”. These standards must be met by our anti-terrorism legislation, if for no other reason than that we cannot have the appropriate or factual understanding of the dynamics involved in our domestic counterterrorism measures if we view them in a vacuum, if we view them as abstracted from the global circumstances and precedents or if we view them, as the Supreme Court has said, out of context without resort to an appreciation of the contextual principle.

However, beyond the abstract in that regard, let us be clear. The threat of transnational terrorism is real and Canada is not unaffected by it, as the recent events, whether they be in Boston or the aborted terrorist attack now in Canada, indicate. Indeed, Canadians have been implicated in terrorist attacks abroad as recently as last month in Algeria, last year in Bulgaria and just two days ago with regard to an arrest in Bulgaria. This is precisely why Bill S-7 also makes it a crime to leave or attempt to leave Canada to participate in terrorist activities. Moreover, Canadians have been killed in terrorist attacks, tragically in the case of 9/11 but also thereafter.

Accordingly, our commitment to civil liberties must always be consistent with regard to the protection of human rights as a whole, and we must take the necessary concrete and decisive actions to prevent terrorist attacks. In the words of two former Supreme Court justices, the Hon. Frank Iacobucci and the Hon. Louise Arbour, who also spent several years as the UN Commissioner for Human Rights, the Constitution is not a suicide pact and “[t]he challenge for democracies in the battle against terrorism is not whether to respond, but rather how to do so”.

Preventive arrests and investigative hearings can be effective, limited and lawful counterterrorism measures. Indeed, the Supreme Court, in the matter of investigative hearings has held them to be constitutional, stating that they do not violate an individual's charter rights against self-incrimination, as evidence derived from such hearings cannot be used against the person except in perjury prosecutions. Moreover, the provisions are not otherwise unknown in Canadian law, and similar provisions already exist in the Coroners Act and the Inquiries Act, and I can go on.

In the matter of preventive arrests, these too are not a new invocation of principle and policy. Preventive arrests are effectively the invocation of a peace bond process set forth in section 810 of the Criminal Code, which has been used to protect against criminal violence such as domestic violence, sexual violence and organized crime, and now extends them to suspected terrorist activities.

In addition, preventive arrests and investigative hearings as set forth in Bill S-7 seek to respect Canadians' individual and collective rights through safeguards and principles of transparency. In this regard, it is important to appreciate that there are three safeguards in the bill, and I was involved with respect to the initiation of these safeguards. Reference has been made to the safeguards, and we must appreciate that there is an executive requirement for the consent of the Attorney General and therefore objective oversight in that regard. With parliamentary oversight and the requirements for annual reports from both federal ministers concerned and with Bill S-7, they must not only detail how often the provisions are used, but also make a case for why they should be extended.

Furthermore, there is judicial oversight with respect to investigative hearings, and in the event of an arrest, the individual must be brought before a judge, typically within 24 hours, contrasting with the situation that is in the United States or with the situation in the United Kingdom and the like.

Notwithstanding these safeguards, I understand why some members, maybe even from all parties, remain uncomfortable with the proposed measures. They are indeed extraordinary provisions, though extraordinary provisions to combat extraordinary threats.

I do not, however, share the view offered by some in the House that because the provisions, and we heard this again in debate, were seldom used, in effect they are somehow unnecessary now. In fact, their lack of use can equally demonstrate that they are not abused, that they are truly measures of last—

[The Deputy Speaker]

I am afraid the member's time has more than expired.

Questions and comments, the hon. member for Timmins—James Bay.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I listened with great interest to my hon. colleague. While I agreed with some of his analysis, I disagreed with other parts. I would like to question him on it.

I really felt that what the member said about terrorism being an assault on the fundamental democratic rights and freedoms of any society was completely accurate. Therefore, it is then equally incumbent upon us to ensure that in our response we do not give up fundamental basic rights.

I note he was concerned about the need for a sunset clause with the two very provocative amendments or positions that were brought forward under the Anti-terrorism Act following 9/11, which was arrest without charge and the special investigative hearings. Canadians were very concerned, and that is why they wanted a sunset clause.

He said that we needed it to be evidence-based, but it was not used. These were extraordinary powers.

We went through these hearings. The Liberal Party put zero amendments forward. My hon. colleague has an extraordinary background in issues of human rights and law. I am surprised, because I have heard members of the Liberal Party say that it is not a perfect bill, but they are willing to accept it.

When legislation is brought forth, it is incumbent upon all of us to ensure that all efforts are made to ensure the legal rights that Canadians have enjoyed for this century and more are not undermined.

Does he believe that we should go through an endless round of sunset clauses? If it is evidence-based and it was not used, why is this being brought back now?

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, as I said, the fact that they had not been used does not mean that they may not yet be needed. In fact, it may demonstrate they were not abused. They may yet still need it.

In terms of the Supreme Court's contextual principle, we must appreciate the contextual environment in which the transnational terrorist threat operates.

I would remind the hon. member, and I suspect he knows, that if one takes a comparative perspective here, we have a situation where, in the United States, simply by designating a suspected terrorist an enemy combatant, he or she can be indefinitely detained. Detention in the United Kingdom has been extended from 6 days to 18 days. We are talking about a requirement to bring a person before judge within 24 hours. As I said, there is an inventory of safeguards at the executive level, at the legislative level, at the judicial level and through other commissioners, such as the Privacy Commissioner and the like.

While this is an imperfect approach, nonetheless it was something that was supported after there was review of these provisions by parliamentary committees in the House and in the Senate. It is not as if we did not have any review or appreciation of these principles as well.

I do agree that we need to do more on these matter. For example, members in the House need to have more information in the matter of intelligence gathering, which my colleague from Lac-Saint-Louis recommended. Our government re-established a parliamentary committee to provide oversight with respect to intelligence gathering, and here, too, to invoke more principles of transparency in that regard.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I want to ensure I understand from the comments by the member for Mount Royal that the Liberals are hoping to support this bill and are hoping that the Conservatives are going to then have some parliamentary reviews and oversight, as just mentioned. How likely does the member really believe that is, given the government has used closure on debate a record number of times? Currently, right now, the Conservatives are attacking their own leader.

It is a very naive approach to assume that the Conservatives will later on review this bill. How can the member believe that is going to be possible?

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I am saying that the approach is what I would call the principle of least injustice. In other words, bearing all the facts and circumstances that are known to us, for now these provisions can be helpful, may be necessary and a parliamentary review is mandated. I trust it will take place, and we may have a better appreciation at that time as to how to go forward.

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, it is an honour to speak on behalf of my constituents from Surrey North. I am speaking today about Bill S-7, the proposal to reintroduce anti-terrorism measures, which were previously sunsetted in the Anti-terrorism Act.

Bill S-7 has been shamefully promoted in the wake of the Boston Marathon bombings. The government is exploiting public fear in order to push through its agenda. It is appalling to attempt to use the mourning and pain of the American people to push through legislation that is blatantly confiscating our human rights and civil liberties.

Bill S-7 is not about preventing terrorism. We already have a comprehensive justice system and enough legislation to protect Canadians from acts of terrorism, as well as a variety of capable institutions to facilitate these laws. Rather, this bill fundamentally attacks our rights and freedoms.

Bill S-7 is a reintroduction of the sunsetted clauses of the Anti-terrorism Act, which were also designed in the wake of an instrumental and horrifying event: the terrorist acts of September 11, 2001. The clauses introduced in the Anti-terrorism Act were given a sunset period, which has expired at this point. These clauses include the allowance of investigative hearings and preventive detention, as well as the permission for judges to publicly disclose information about a trial or the persons being tried. Even at first glance, it is obvious that there are major violations of human rights and civil liberties at stake.

The term “human rights” is often tossed around vaguely as an abstract concept. However, the key to this discussion is in exploring what human rights are. The codification of human rights emerged during the 18th century with the French Declaration of the Rights of Man and the American Declaration of Independence. These documents were designed to limit what a state could do to its citizens.

Human rights essentially prescribe what liberties a citizen has within his or her own state and the duties that the state has to its citizens. States have an obligation to respect, protect and fulfill the human rights of their citizens. This is not a duty that our government should be taking lightly. We have made international commitments that confirm our dedication to protecting our citizens from human rights violations.

In 1976, Canada ratified the UN International Covenant on Civil and Political Rights. Under this human rights treaty, the government has an obligation to protect the liberty of people within its borders. This explicitly means nobody should be subject to arbitrary arrest or detention.

Interestingly, in the discussions at the public safety committee, it was discovered that the wording of Bill S-7 allowed for the arrest of people who were not suspected of terrorist activities. In further consultations with parliamentary secretaries, it was confirmed that this was the intention of the government. It is the government's intention to expose every Canadian to this preventive detention, not only those who could potentially cause acts of terrorism. Imagine the resources and cost of arresting or detaining anybody, regardless of whether there is any cause to believe people may engage in criminal activity.

The original purpose of the Anti-terrorism Act was to update Canadian legislation. In order to respond to the United Nations Security Council standards, we must consider that Canada must also adhere to international standards of human rights. Of course, terrorism itself has a direct impact on human rights that Canadians enjoy. It especially violates the principle of life, liberty and security of a person.

Media rhetoric describes terrorism as the opposite of freedom. Although they are not simply binary concepts, if freedom and terrorism are somewhat polarized, then how can we describe the limitations on freedom that the government is proposing?

The preamble to the UN ICCPR states:

—the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy [human rights]...

Does Bill S-7 propose conditions where everyone can enjoy their human rights? It seems to be the opposite case. The Conservative government is exploiting fear to confiscate our freedoms and rights.

Nobody in this House is debating that terrorism should not be addressed. Terrorism is a horrific problem that attacks the heart of national pride and undermines state stability. The events at the Boston Marathon last week were horrific, and I stand with my colleagues as we condemn these attacks and offer our deepest sympathies and best wishes to the victims and families.

Bill S-7 presents us with a very contentious issue. There is a delicate balance between national security and individual human rights. However, this is a balance that Canada has already found. Our Criminal Code already offers the necessary provisions for investigating those who are involved in terrorist activities and those who could be potential terrorist threats to national safety. The proposed clauses in Bill S-7 have been proven unnecessary and ineffective in the past. They have only been invoked once in a situation described as a complete and sad “fiasco” by lawyers and human rights advocates alike.

Rather than investing in a procedure that creates fiascos, the government should be investing in our institutions that have proven themselves capable, like the RCMP. Just yesterday, the RCMP announced it had stopped a plan of terrorism within our borders. There are two suspects in custody right now. The RCMP was able to handle the situation without the aid of the clauses in Bill S-7. RCMP members were effective, timely and able to perform their jobs without compromising the human rights of Canadians.

We are thankful for the work of the RCMP and we need to recognize that work. We should be investing in supporting these institutions that are able to work effectively within the current sphere of the Canadian justice system.

There are valuable tools that should have been introduced in the anti-terrorism act, which would have been influential in combatting terrorism while upholding the integrity of Canadian values of liberty and rights. We should be promoting inter-agency co-operation to reflect the multi-faceted nature of terrorism—

[The Deputy Speaker]

The hon. member for Kingston and the Islands has a point of order.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, I think that we are below quorum. I think this hon. member deserves more people listening to his speech in the chamber here.

[The Deputy Speaker]

I do not think that is a point of order or that there is anything the Chair can do to encourage more people to come in.

There is now quorum in the House.

The hon. member can continue.

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, I want to thank my Conservative colleagues who finally rushed into the House. They often talk about terrorism and how they would protect Canadian human rights and invest in the RCMP and other agencies, yet they do not want to participate in this debate. That is very sad.

There are many valuable tools that should have been introduced into the Anti-terrorism Act, which would have been influential toward combatting terrorism while upholding the integrity of Canadian values of liberty and rights. We should be promoting inter-agency co-operation to reflect the multi-faceted nature of terrorism and address the source of terrorist activities. Efforts against terrorist activities should be performed without discrimination of any kind. The government should be transparent in its dealings with terrorist activities, and we should be able to hold them accountable for their actions. These do not seem like unreasonable requests, yet when they were proposed in committee by the NDP, they were determined to be beyond the scope of the bill.

We cannot sit here and watch the fundamental rights of our citizens being taken away by the Conservative government. Even the United Nations, which requested that states align their legislation with Security Council standards, has established that human rights are integral to combatting terrorism, stating: “Respect for human rights and the rule of law must be the bedrock of the global fight against terrorism.”

The government has an obligation to all Canadian citizens, to all within Canadian borders and to the international community and the international bodies that govern our human rights. The government must respect our current freedoms, protect our rights as well as our security, and fulfill its obligations to Canadians by investing in effective counter-terrorism strategies.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I listened with great interest to my hon. colleague. Again, all of us are so offended by senseless violence and the effect it has on our society. One of the most poisonous effects is that it creates an impression that the basic rule of law and basic rights need to be done away with.

We saw this in 2001 with the horrific time after 9/11, when rendition, torture, arrest without a warrant and detention without charge were considered to be what was needed for the 21st century. At that time in Canada, we had a young engineer who was just coming home from work, Maher Arar, and he was arrested and sent through rendition to torture in Syria. That happened under the former Liberal government. At the time, Mr. Arar was considered to be the price to be paid for democratic freedom. The man was being tortured and he was completely innocent. Now, we realize that his rights were completely abused.

At the same time, the Liberal government brought in two very controversial measures. One was the ability to detain someone without charge. The other was to force those individuals before a judge without their being able to protect themselves. The Liberals knew it was so contentious that they agreed to a sunset clause, because it was to be for a limited period of time. Now, we see that the government is bringing it back in the wake of the horrific killings in Boston and that the Liberal Party is supporting it. The Liberals told Canadians they would sunset it, but now we see them hiding on the coattails of the Conservatives, bringing back the same provisions that were proven unnecessary and a major affront to Canadians back in 2001 and 2002. They could still lead to further incidents. We have not seen this party understand the implications of what happened to Mr. Arar.

We need to ensure that innocent people are not caught up in what they are calling, under this bill, the need for the wide sweep.