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

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, I stated earlier that the timing is somewhat suspect. No one in the House, least of all the NDP, suggests that what happened in Boston is not something we should pay very close attention to and be very concerned about. Our hearts, thoughts, and prayers go out to the individuals who were affected by what must have been a very difficult, trying, and frightening time.

The bill has been sitting in limbo for the past four months. For the government to suddenly decide to bring it forward today smacks of some political opportunism, if ever I saw it.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I congratulate my colleague on his speech.

I would like to hear what he has to say about this government's measures. On the one hand, the government is advocating law and order and says that it wants to combat terrorism. On the other hand, particularly in budget 2012 and successive budgets, it has made significant cuts to public safety.

Could he elaborate on this?

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, the importation of illegal handguns is a serious and pressing problem in my riding and in the city of Toronto. There was a bank robbery just yesterday, which was probably with illegally imported handguns, because just about all of them are. Two individuals were shot during the bank robbery in Toronto, in my riding. That kind of thing needs to be prevented. The importation of illegal guns needs to be prevented. Cutting the budget for border services officers is not the way to prevent illegal guns from coming to Toronto.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I rise today to speak to Bill S-7, which is before us.

Before I get into my comments, I want to mention that I will be sharing my time with the member for LaSalle—Émard.

What happened last week in Boston was a heinous crime. It was a horrible situation that affected real people. It terrorized a community. We were all moved by it when we saw the images on TV.

As someone who likes to run and who takes part in running, I can personally say that it is normally a place of celebration. If members have never seen a marathon run, I would recommend that they go. It is a magical place where people of ages, sizes and genders come to celebrate participation and civic action. It is one of the most wonderful expressions of civic participation, because it involves not only the people participating in the race but also those who are on the sidelines cheering people on. When people come to Ottawa during a race weekend, they see people by the canal cheering on people they do not even know. It is a magical thing to see. That is why it was so difficult to witness this heinous assault on a public space.

Boston is known for its friendly citizens. The Boston Marathon is world renowned, and we were all moved. None of the members in the House have the licence to say they were moved or more concerned than another member. Let us start with that premise, the premise that everyone in the House thought what happened last week was horrific and that we need to do things to make sure that we prevent those kinds of occurrences from happening again. Let us make that point, because sometimes the debate gets heated and people become passionate. I think we have to avoid being personal and partisan when it comes to this issue.

However, when it comes to the application of this bill and the agenda, it is very important that we underline what appears to be the motive of the government. As members know, this has been stated, and it needs to be restated: it was on last Friday at the last minute that the government decided to put this bill in front of the House. Let us remember that it has been around since 2007. In 2001, there were provisions brought in by the previous government, with a sunset clause in 2007. In 2007 a bill was brought forward, and since 2006 we have had a government that has had the opportunity since 2007 to pass it.

It works against the logic of the Conservatives when they say they have to do this right now, because they have had the ability to pass the bill for years, not only with a majority government but before that, because the Liberals were supporting them when we had a minority Parliament.

Let us be clear about where everyone stands on this. The Liberals support the bill, notwithstanding the fact that there are concerns around civil liberties. We have concerns mainly because since 2001 and 2007, the provisions that were put in place by the Liberal government were never used. If we look at some of the concerns we have had in this country with respect to terrorism, such as the infamous Toronto 18, that was not dealt with by using these provisions but rather through good old-fashioned investigative police work and coordination. That was how it was dealt with.

The Liberals want to support the Conservatives on this bill, and that is fine. However, the point is that the Conservatives could have passed this measure even when they had a minority Parliament. They have had a majority Parliament, yet last Friday they claimed they had to pass it immediately because it is urgent. The government has no credibility on that—zero.

Some members get angry when they think about what is being done here, but I will say it is unfortunate. It is with deep sadness and regret that we see a government using this issue and this bill in the way it is today.

We heard the parliamentary secretary say that this is very important and that they wanted to hear from everyone. I am not seeing that so far from the other side today while we are debating this bill. I am not seeing the opportunities to ask questions and the opportunities for senior ministers to get up and speak. I will leave it to citizens to figure out what it is all about.

What is so incredibly unnerving is to see what happened last week being used in this way. Canadians really have to understand what the agenda of the government is. If it was on this issue, it would have passed this law back in 2007. It could have. It had the support of the Liberals. The Conservatives have had a majority since 2011. Did they pass the bill? No. How many bills have the Conservatives rammed through this place? If it was so important, they could have had this done. They have had time allocation and they have had omnibus bills and they could have done it.

For the government to stand and say that this is urgent and we have to pass it in light of what happened in Boston lacks credibility, to put it mildly. If the government is seriously concerned about this issue and wants to see results, then it has to put its money where its mouth is.

To that end, what we do have is a government that has actually done the opposite. It has cut border services, the people who are responsible for being our eyes and ears when it comes to threats of terrorism. It has cut RCMP budgets as well.

We have to ask ourselves what is at play here. We have heard from experts, as members on the committee would have heard, who have deep concerns around how the bill could be misapplied. Giving up rights—which, let us be clear, is what we are talking about in this bill—has to have a premise and there has to be evidence for it.

The evidence to date has been that we have never used these provisions when they were available and that we have been able to prevent terrorism by using the tools we have available to us. I mentioned the Toronto 18 case, and there are others. If the government is going to take away rights, then it has to make the argument and it has to have the evidence. We do not believe an argument has been made that is cogent enough to actually undermine civil liberties.

As has been mentioned a couple of times, The Globe and Mail did say in its editorial today that there are a lot of questions around the timing, but there is also another a key question. I will quote from the editorial today:

More worrying is the fact that there are aspects of the proposed bill that raise questions about balancing civil liberties with the need to protect citizens. A wise course of action would be to postpone the bill’s final reading so that any emotional fallout from the Boston bombings doesn’t colour an important debate about public safety in Canada.

I could not agree more, regardless of whether members think this is the way to go or not. The time to push this through, ram this through, is not immediately after an incident like this, because it will have made no difference to the incident we are talking about, which is in the United States. To date we have not seen any evidence that it was connected to Canada. Certainly these provisions would not have helped.

Again, it really is up to the government to explain why it is doing this now and for my friends in the Liberal Party to explain why they support it.

We heard about the importance of the charter last week from Liberals. I have to say we are proud as a party to have stood against the War Measures Act. We stand against this bill, but most of all we stand for being clear and honest about the reasons and the rationale for actions one takes in this Parliament.

Today we stand with the victims of the horrific terrorism case in Boston and we stand with all victims of extremism, but we stand against cynicism and we stand against political gains when it comes to protecting citizens no matter where they are. That is the position of our party, and I say it proudly.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, I want to thank my colleague for his remarks. He is, as members know, our international affairs critic and as such has a very firm and knowledgeable grasp of situations that impact us here in Canada and that impact Canadians around the world.

I want to pick up on part of his remarks.

I think that this is an issue of leadership. We need leadership in how we respond to events both within and outside Canada, but we have none from the Conservative government.

If we had leadership, the Conservatives would not have cut the security budget by 29.8% in 2012-13 and 2013-14 and put our communities at risk in regard to our preparedness for emergencies and in terms of the personnel we need to respond to them, such as police officers. The recruitment fund has been gutted, with no renewal.

What should the government be doing instead of cutting and dismantling? If the Conservatives truly believe that we need to be secure, what should they be doing?

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I thank my colleague for London—Fanshawe for her question and her work. I was recently in her riding and I know that she has done a remarkable job of connecting with the constituents within her riding and, in fact, had a meeting with members of the Arab and Muslim community after they went through a very difficult time. She has shown real leadership on the ground in her riding.

However, to answer her question, one should invest in the very people who are our eyes and ears in preventing terrorism or extremism. It is quite surprising to hear the audacity of the Conservatives when they say on the one hand that we have to move on this issue because it is so important while on the other hand they are cutting the budgets of the very people who would prevent extremism and terrorism. The answer is that we invest in people to ensure that we prevent acts of extremism and terrorism. One does not just talk about it; one actually does it.

In the budget put in front of us and in previous budgets, we have seen cuts, so it is inconsistent for the government to say that it is serious about this issue when it actually cuts the budgets of the very people who help prevent extremism and terrorism.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, back in 2004, the Supreme Court of Canada made a ruling indicating that investigative hearings are in fact constitutional. We have seen numerous attempts by the government to try to bring in legislation, and on one it prorogued itself to kill the legislation. Now we have this bill before us today.

My question is related specifically to the need to provide for investigative hearings for the purposes of gathering information. We see that as one of the tools that our law enforcement officers could be using to combat terrorism. I wonder if the member would like to provide his take on the importance of that particular tool.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, when one takes a right away, one had better be sure it is for the right reason. The Liberal Party has decided it will support the government on this bill. However, we do not support the government on this bill.

As I said in my comments, to date we have been able to prevent acts of terrorism by investing in the police, CSIS and others. We have to be vigilant on the balance between rights and security. We do not think the bill is necessary, and we are not alone.

I would suggest that just because it has gone through the court system and the court system says it is okay, that does not mean we should do it. That is why we had a different position years ago when it came to the War Measures Act.

Rights are things that are built up. They are things that we had better ensure are not taken away unless it is absolutely required. We do not believe, as the Liberals do in this case, that we should take rights away. The argument that we need to do that has not been adequately made.

We need to invest in people to prevent terrorism. That is what we would do.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I am confused and concerned as I rise in this House today to speak on Bill S-7, the combatting terrorism act, as the Conservatives call it.

I am confused because the government expressed no intention of putting this piece of legislation back on the agenda. It had instead opted to have successive opposition days. As a result, I have some serious questions about the real reasons we are debating this bill right now. I am not the only one. This morning, The Globe and Mail stated:

The two-day debate in Parliament on the...government's proposed anti-terrorism legislation smacks of political opportunism, and it is regrettable that it will take place.

The editorial concluded:

More worrying is the fact that there are aspects of the proposed bill that raise questions about balancing civil liberties with the need to protect citizens.

I am also concerned as I rise in the House because, regardless of what arguments the opposition puts forward, their arguments will be twisted around and demolished by the Conservatives, who, instead of debating this issue, want to use this time to get their message out.

First of all, I would like to start by defining terrorism and talking about how it has evolved over time. My research opened my eyes, especially to the motives of perpetrators of acts of terrorism, motives that are not always fully known to us, contrary to what we may often think.

Terrorism goes back a number of centuries, and the term was particularly used after the fall of Robespierre in France to refer to the reign of terror in 1793 and 1794. The dictionary continues to define it as the systematic employment of violence to achieve a political goal.

The United States Department of Defence defines terrorism as the calculated use of unlawful violence, or the threat of unlawful violence, to inculcate fear intended to coerce or intimidate governments or society in the pursuit of goals that are generally political, religious or ideological.

The Department of State continues by saying that acts of terrorism are often perpetrated against civilian—or non-combatant—targets.

Terrorism dates back to antiquity, when groups used systematic assassinations to spread fear and promote their cause. As I already mentioned, it was after the French Revolution that the government at the time used a climate of terror to take down its opponents. Even now, this type of terrorism is used and institutionalized by governments. The rise of nationalism during the last century exacerbated instances of terrorism. Terrorism has gone global and we are seeing a change in the types of terrorism and in the groups or individuals who are conducting these activities.

How can we combat terrorism in Canada, especially as this bill proposes to do?

We must know what kind of terrorism Canada has experienced in recent decades. In Terrorisme et antiterrorisme au Canada, the authors state:

The threat of terrorism—meaning the probability that a highly destructive incident will take place in Canada—is practically non-existent....

For several reasons, it is ridiculous to think that Canada can prevent terrorist attacks, although we can certainly prepare for emergencies and develop strategies to minimize destruction and provide assistance to victims. Some plots will be foiled. However, this is very rare and when we look at the plots that have recently been uncovered in Canada and the United States, we cannot help but notice that they are amateur in nature and have a slim possibility of being successful. First, the evolution of international terrorism must be taken into consideration. Instances of truly international attacks (instigated, financed or run remotely from outside the target country) have been considerably declining in the past ten years. The fact that they are so rare means that they are too unpredictable to be prevented: there is no pattern or detectable model. However, most acts of terrorism in western countries are carried out by individuals born in the country they are attacking or by naturalized citizens. These people are recently radicalized and ill-prepared. This means that their actions tend to be uncommon...and organized quickly—also difficult to detect in advance. Second, since there is a nearly infinite number of vulnerable targets in a country like ours, it is not a good idea to focus on protection. There is no way to prepare...

Bill S-7 is not the right way to go about combatting terrorism. The bill reintroduces measures that have proven to be unjustified and ineffective in the past. Over the weekend in The Globe and Mail, Doug Saunders described the silence following a tragedy like the one in Boston, and how politicians try to fill that silence:

...we point to the neglected menaces and failures within our own society, we raise our security and perhaps lower our tolerance for reduced civil liberties, and in the process we allow a new political moment to take shape.

Further on, he also says that major attacks against civilians are extremely rare, but every time they occur, they seem to have the same effects and elicit the same reactions: confusion, horror, fear and profound sympathy for the victims, who are all too numerous in tragedies like this.

However, I do not believe it was those reactions that pushed the Conservatives to bring back Bill S-7, which will not fight terrorism but is simply an example of political opportunism. Our laws already fight terrorism. Terrorism is a crime, and we already have laws in place to bring to justice those who plot or commit acts of terrorism. This bill is useless and will not combat terrorism in Canada.

I should add that this government has a very strange way of addressing safety. In the 2012 budget and budgets before that—and those that are to come, I imagine—it announced considerable reductions of $687.9 million to public safety, whether it was at the Canada Border Services Agency, the Canadian Security Intelligence Service or the RCMP.

That is a strange way of addressing public safety. The Conservatives come up with a bill like this one, which is completely useless, while their actions run completely counter to protecting and increasing public safety in Canada.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I would like to go back to the Supreme Court ruling from 2004, which talked about investigative hearings. With terrorism being what it is now, it has really changed the dynamics in many different ways. We understand that our law enforcement officers are looking for the opportunity to use this as a tool.

I am interested in knowing if the member feels that there is a need, from her or her party's perspective, to give law enforcement officers this tool that allows an investigative hearing. Is that something she believes is necessary and needs to be amended to allow it to take place, or it is not necessary?

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I would like to thank the member for his question.

Since 2001, the provisions in the bill that was passed in the wake of September 11, 2011, have never been used. That is a clear response to my colleague's question. These provisions have not been used. We have enough tools already. I believe that investigators have the tools they need to do their jobs.

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

Mr. Speaker, on a day when we are still mourning the loss of so many people in Boston, we are debating a bill that could have enormous implications.

I am interested in my colleague's opinion. Bill S-7 is a law of general application, which means that it would affect not only adults but juveniles as well. Canada has certain obligations under the UN Convention on the Rights of the Child and other international instruments to protect children from unnecessary detention. The Canadian Coalition for the Rights of Children proposed amendments to the bill that would ensure that children under the age of 18 would be taken into special consideration and not be subject to these measures. The government ignored that recommendation. We are concerned about this.

The Liberal Party is supporting this legislation. Last week the Liberal leader said that New Democrats were somehow soft on the Charter of Rights and Freedoms, although the first charter of rights and freedoms in this country came in with Tommy Douglas in Saskatchewan. New Democrats, as opposed to the Liberal Party, fought to ensure that first nations were included in the charter.

The Liberal Party is supporting a bill that would not offer clear protection to those under the age of 18 from these kinds of detention measures. What does my hon. colleague think about that?

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I thank my colleague for his very perceptive question and especially for pointing out one of the problems caused by Bill S-7.

When bills are introduced, we have to work on them and consider all their potential consequences. It is scandalous that experts appeared before the committee, amendments were proposed and that, once again, the government turned a deaf ear. That is a problem.

We identified serious flaws in this bill. The government must absolutely go back to the drawing board.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, first of all, I would like to inform you that I will be sharing my time with the member for London—Fanshawe.

The iterative, in the sense of repetitive, nature of additions to the Criminal Code devised unilaterally by this government bring out my instincts as a litigator.

Introducing in the House arguments that call into question a tangent that resembles an edict and that would implement coercive measures can only contribute to maintaining an intrinsic balance in the rule of law in our country.

Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, currently before the House, is likely to feed a number of citizens' fears related to repeated attempts to circumscribe the spectre of civil liberties and human rights in our country, all under the cover of legislative initiatives associated with the repression of contingent and intangible threats to Canada.

I would like to emphasize the hypothetical nature of terrorism in Canada, and I think that my colleagues agree with me in this respect. The Criminal Code, the tool we are currently using, already contains many provisions related to terrorism. Based on my own analysis, which is fairly sound since I practised law for six years, I believe that we would be opening a Pandora's box by blindly delegating discretionary powers to peace officers. This would ultimately allow them to unilaterally determine which individuals pose a threat to national security and then simply proceed with interrogations and pre-charge detention.

Pre-charge detention already exists in France, where individuals can be detained for a certain period of time while an investigation is conducted. This is unprecedented in Canada, particularly for individuals who do not necessarily have a criminal record or links to organized crime or terrorist groups.

This type of addition to the Criminal Code will leave the door wide open to abuse. As a lawyer, my first instinct is often to look at how such decisions and legislative measures could be challenged in court. I know that the Canadian government has Crown lawyers. I have sometimes wondered whether the government is really listening to these lawyers, because this type of measure can clearly be challenged.

The bottom line is that the exercise of such discretionary power can only result in abuse. We know that such measures have never been implemented in Canada. Adding them to the Criminal Code will only result in a significant number of court challenges. I strongly urge the government to re-evaluate its position and listen more closely to its own lawyers. The Government of Canada must have good lawyers on staff.

The notions of terrorism in the Criminal Code are always being revised, which means that the use of power could become more arbitrary and less evidence could be needed to determine the reasonableness of an interrogation or preventive detention.

I would like to give an example of the type of reasoning that could result from the implementation of the proposed measures if the bill is passed. The proposed amendments will result in many instances of individuals being arrested without a warrant because a peace officer believes that the arrest is necessary to prevent a terrorist attack. Ultimately, the individuals in question will be subject to recognizance with conditions. This all concerns individuals who were not suspected of terrorist activities.

Thus it will be possible to arrest someone who has no criminal record and no known links to terrorism or organized crime. That individual could be arrested based on suspicion, based on the perception of the officer responsible for the case who sees an act of violence. That individual could be questioned for 24 hours.

Then, also based on the peace officer's opinion, that individual could be brought before a judge and forced to appear outside the usual structure of criminal charges and penal and statutory rules. We are still talking about civil matters.

That individual, who should be presumed innocent until proven guilty, can be brought before a judge who will be called upon to determine if release conditions can be imposed on him.

If that individual does not want to meet those conditions or appears unwilling to do so, he could be imprisoned for up to 12 months. Accordingly, someone who is presumed innocent could be held in detention for 12 months, if he does not meet those conditions. Quite obviously, this leaves room for potential abuses of power. It is immediately obvious that this is unacceptable.

If the individual refuses, he can be imprisoned for up to 12 months. This imprisonment, not the result of a criminal conviction, is considered preventive detention.

I would like to say a few words about preventive detention. I would like to reiterate that I miss practising law. That said, over the years that I was a practising lawyer, some changes were made to preventive detention. When I began practising in 2006, if a client's case was treated according to normal criminal procedures, preventive detention counted for double time. In fact, judges applied this calculation de facto. In other words, time spent in remand custody was credited two-for-one for individuals who were not released following their bail hearing. That is no longer the case. The justice system has new instructions and that time simply no longer counts as double time.

This illustrates the trend towards applying harsher, more demanding measures when it comes to sentencing for criminal matters.

Seeking to include preventive detention of up to 12 months in the Criminal Code, coupled with eliminating the need to comply with the conditions of making an arrest without a warrant for the purpose of preventing a hypothetical terrorist act, clearly shows the highly questionable nature of the Conservatives' approach to national security.

As I said, I still have my lawyer's instinct. That is why I saw a case right away and the possibility of a court challenge against measures like these.

Actually, when I give training and I go to various first nations reserves and aboriginal communities across the country, I always make sure to tell them that people have the option to consider class action suits against unilateral decisions that are highly prejudicial and problematic.

I often encourage people to consider that option, given the possibility of pooling money and having a host of plaintiffs in a case. That reduces the financial burden for each plaintiff. In cases involving thousands of plaintiffs, they can put together a substantial amount of money and gain access to experts and their expertise, which would be difficult for an individual.

I submit all this respectfully.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I thank the hon. member for his speech. I always pay close attention to his way of seeing things and presenting them.

Could he speak to the fact that we have before us a bill from the Senate? If this is one of the government's priorities, why does the bill not come from the House of Commons? Let us move on to something else.

In budget after budget, the amounts for public safety agencies have been significantly reduced.

Could he comment on the disconnect between what the government says and what it does?