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

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I thank my hon. friend from Toronto—Danforth for raising some very specific and ongoing implications of the legislation.

It also occurred to me that the process of intending to leave the country could become a terrorist act. In conjunction with that, if we look at clause 83.23, we then have by association others drawn in, “A person who knowingly harbours or conceals any person who they know to be a person who has carried out a terrorist act or facilitates it”.

By extension, if planning to leave the country to go overseas for what is alleged to be a terrorist activity, such as camp training, would this sweep bring in others who, in normal context, would be seen to be doing an innocent activity?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, that, in fact, was discussed a little in the Senate hearings.

The general principles of the Criminal Code that connect one offence to other acts, such as complicity, various forms of aiding and abetting, they all apply. The question of a broader circle of people being drawn into the criminality that these new provisions would enact is very real.

The official government witnesses before the Senate committee tiptoed around this. They acknowledged that it was a real issue but there was a sense that we did not really want to criminalize other's assistance.

Now, of course, all the intention standards would have to be there. If one innocently helps a person leave the country by helping out with the person's passport but does not know why the person is leaving, then there is no connection. However, the moment one knows why, one would absolutely be drawn into the orbit.

One of the witnesses, I believe it was Mr. Fadden but it might have been another witness, commented along the lines that we should not be naive about how many people actually do assist others to leave for this purpose.

The idea of a wider circle beyond the person leaving does appear to be in contemplation.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I thank my hon. colleague for his great contribution to this debate.

I would like to focus on the principle of the presumption of innocence, which is a foundational principle of our legal system. Does the member share some of my concerns about how this may question this fundamental principle?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, confining myself to the leaving or attempting to leave the country provisions is not so much a question of presumption of innocence but the problem of proving intention in these circumstances to something that will be quite far removed in time. The underlying concerns for the principle of the presumption of innocence within our procedural criminal law system do circle back on concerns about what kind of evidence would be adequate to actually effect the detention at the border, then an arrest and then a prosecution. Would there be some kind of slippage toward less and less onerous standards of proof that might in the end not lead to prosecution but would certainly lead to detention and arrest? That would be my concern.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I would like to thank my colleague for his speech. In his view, does the Criminal Code currently contain the necessary provisions to investigate individuals who engage in criminal activities and to detain anyone who might pose an immediate threat to Canadians?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I feel like I am in my law classes where a student asks me a question about something to which I do not know the detailed answer.

What I do know is that the Criminal Code does contain provisions that allow for a measure of preventive actions. The sections that deal with what we call peace bonds in English, do allow for preventive actions. We also have all kinds of measures that allow for arrests on the understanding of the arresting officer or agency that a criminal offence is about to happen.

We have to keep in mind that, for example, in the case of the Toronto 18, the kinds of arrests that were effected there were preventive in the sense that, apart from what was going on at the planning stages and the forays in the forest, the actual acts that we understand they were thinking about doing had not occurred. The system seemed to have allowed that to be detected. That has to do with the basic police and intelligence work that does allow for arrest when someone has started down the preparatory path of committing a crime. It is not just a matter of prevention where nothing has been done. People can be arrested and charged when they start down the path even if they have not been completed the path.

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

Mr. Speaker, this bill provides for increased penalties for those who harbour persons carrying on terrorist activities in this country, but are the factors that have led those people to support terrorists taken into account? Is the fact that certain persons are threatened and somewhat compelled to do so considered? For example, a family may be threatened in order to compel it to harbour such individuals or to remain silent. Does this bill draw a distinction based on the reasons that lead individuals to support terrorists?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, we would turn to the general criminal law and for various defences that would be available, including the defence of duress. That would enable people to say that they had no choice but to do what they did in harbouring. However, it is a pretty onerous standard and so it is not easily available if someone feels constrained versus actually threatened. If they are threatened, then they would have a defence.

[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.

[The Acting Speaker, Conservative, Bruce Stanton]

The member for Abitibi—Témiscamingue will have 11 minutes to conclude her speech and another 10 minutes for questions and comments when the House resumes debate on this motion.

The House resumed from October 15 consideration of the motion that Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, be read the second time and referred to a committee.

[The Acting Speaker, Conservative, Bruce Stanton]

When this issue was last before the House, the member for Abitibi—Témiscamingue had 11 minutes left.

The hon. member for Abitibi—Témiscamingue.

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

Mr. Speaker, before running out of time on Monday, I was speaking about the witnesses who oppose this bill because they believe it is pointless and violates various civil liberties and human rights. They appeared before the Standing Committee on Public Safety and National Security in 2011, when it was studying Bill C-17, the previous version of Bill S-7, in another Parliament.

This is what Denis Barrette of the International Civil Liberties Monitoring Group said:

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.

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.

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 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.”

This shows that alarms were already going off about a number of problems in Bill C-17 with respect to civil liberties and how such a bill could be used. These problems remain in Bill S-7. This bill clearly has a problem balancing security and fundamental rights. What worries me is that I see no valid reason for these provisions.

These provisions have been expired for five years, so how can they all of a sudden have become so important and necessary, when they never proved to be useful when they existed? None of the witnesses was able to think of a case that would require this kind of law. None of the witnesses said that these provisions were necessary. On the contrary, witnesses clearly told the Senate committee that there were major problems with respect to human and children's rights.

I would like to talk about what Ihsaan Gardee of the Canadian Council on American-Islamic Relations had to say:

We are mindful of the increased emphasis on public safety and national security in response to the threat of terrorism during the last decade.... 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....

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...Bill C-17 [could] have a disproportionate impact on members of our communities that may be considered discriminatory.

[...]

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.

I repeat: here is another witness who is saying that the measures set out in this bill are not useful and could even carry risks.

Let us go back to the statement made by James Kafieh. He said:

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 [the bill]...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.... Such an escalation shows that we are already witnessing creep in the use of such provisions before the court.

He also said:

This [bill] 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? ...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.

That is food for thought for our discussions on this type of bill. When it comes to combatting terrorism, we cannot just simply add slightly tougher provisions to the Criminal Code without understanding why. The fact that Canada is already a signatory to a number of international conventions that address this makes these measures unnecessary.

In 2001, when these provisions were being discussed, the aim of the Anti-terrorism Act was to update Canadian laws to meet international standards, particularly UN requirements. All the provisions of the Anti-terrorism Act, except for that concerning investigative hearings and recognizance with conditions, remain in effect today, which is what we are discussing today and what is being presented in Bill S-7.

To be perfectly clear, all the provisions of the original Anti-terrorism Act have remained in effect except for the two that expired in 2007, which were never used and which parliamentarians felt did not need to be renewed because they did not prove necessary.

Now, we are dealing with a Conservative government that says that the NDP is against making the country safer when it comes to combatting terrorism. In truth, this bill does not add anything substantive in terms of security. What is more, this bill will undermine fundamental human rights and freedoms. In my humble opinion, this represents a real risk. Canada already has a legal arsenal to combat terrorism, including international treaties, a complete section of the Criminal Code that deals with this, and a whole host of laws.

Furthermore, another provision in this bill would amend the definition of “special operational information” in the Security of Information Act. Under this change, the identity of a confidential source that is being used by the government would be considered to be special operational information. This would reduce the transparency of information.

Considering this government's track record when it comes to transparency, reducing it any further on such a delicate subject would really worry me.

In short, I oppose this bill because we already have very effective measures in place. This measure would be ineffective and pointless in the fight against terrorism.

This bill violates civil liberties and human rights and, once again, does so unnecessarily. In particular, it violates the right to remain silent and the right to not be jailed without a fair trial, two rights that are absolutely fundamental in Canadian society.

The provisions we are debating here today were invoked only once, and unsuccessfully. This perfectly illustrates the fact that we already have all the tools we need to combat terrorism. Thus, there is no reason to pass legislation that threatens our civil liberties.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I thank my colleague, and I would like to ask her a question.

I recognize that Bill S-7 creates an imbalance between security and fundamental rights.

She said that we have the Criminal Code and international treaties and that therefore unreasonable legislative measures like the ones put forward in Bill S-7 were not the most appropriate way to maintain a balance.

What other methods could she see being used in this bill, whether in terms of the police or intelligence services?

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

Mr. Speaker, as I said in my speech, at this point, the Criminal Code and the various pieces of Canadian legislation already adequately address our anti-terrorism requirements.

There is no need for the provisions set out in Bill S-7, because I think at this point our police have the means to act.

Last Monday, I said we would have to think about it. Are we ready to sell our souls to the devil? Are we ready to accept provisions that run counter to our fundamental rights to ensure, in theory, greater security even though we are really not any safer? The question must be asked.

With this bill, we are going too far. We cannot sacrifice our rights to justify security needs that are in fact useless.