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.

[A/Commr James Malizia, Assistant Commissioner, National Security Criminal Investigations and Protective Policing Branch, Royal Canadian Mounted Police]

Thank you, Mr. Chair.

Thank you for inviting me here to speak about Bill S-7, the combatting terrorism legislation. I appreciate the opportunity to provide answers to your questions about the implications for law enforcement arising from this bill.

The RCMP believes that Bill S-7 contains important tools that could enhance our ability to detect, prevent, deny, and respond to terrorist threats. With terrorism, even more so than with other forms of criminal activity, it is imperative that we work to prevent attacks before they occur.

Canada's national security remains a key strategic priority for the RCMP. We have had a number of successful prosecutions under the Anti-terrorism Act since its inception in 2001. The three most commonly used Criminal Code provisions have been section 83.18: participating in the activity of a terrorist group; section 83.2: committing an indictable offence for the benefit of a terrorist group; and section 83.19: knowingly facilitating the activity of a terrorist group.

Radicalization of Canadians to criminal extremism is a continuing challenge to our society, and the RCMP works assiduously to counter the extremist message through our outreach efforts with a number of vulnerable communities across the country.

The proposed new offences of leaving or attempting to leave Canada to participate in the activities of a terrorist group will assist law enforcement to stop the activities of prospective terrorists at an earlier stage of their preparations, before they leave Canada to join a terrorist training camp or do harm elsewhere.

This will provide law enforcement with a preventive tool consistent with Canada's counterterrorism strategy. We understand and appreciate the responsibility these amendments entail for law enforcement with respect to subsection 6(1) of the Charter of Rights and Freedoms—the right of Canadian citizens to enter, remain in, and leave Canada.

Concerns have been raised about the potential for abuse of the investigative hearing and recognizance with conditions provisions as a way of compelling individuals to testify or otherwise give information. It has been argued that these are unnecessary instruments because they were never previously used.

We recognize that the investigative hearing provision is likely to be used in rare situations where we know a witness has critical information, but who is unwilling to cooperate with police. For instance, they may not want to assist the authorities, or they may be involved in or aware of a terrorist plot.

Current RCMP operational policy describes the steps, controls, and accountability processes in place to ensure that powers assigned to peace officers are used lawfully and appropriately.

With respect to the investigative hearing provision, the RCMP had previously written into policy a number of safeguards for its use, and we believe there is considerable oversight built into its prospective use.

Should the provision be reinstated by Parliament, the RCMP will expeditiously update its policy and continue to emphasize its potential impact on the rights and freedoms of Canadians, and insist that caution and discretion be exercised when considering its use. Training will also be updated accordingly. Our centralized oversight of national security criminal investigations at national headquarters would ensure vigilant responsibility and accountability over these powers.

The recognizance with conditions provision allows a person to be detained for a maximum of 72 hours, potentially a critically important time period necessary to prevent a terrorist activity from being carried out. As with the investigative hearing provision, a number of safeguards are linked with its use, including Attorney General consent, judicial authorization, and annual reporting.

In summary, the various proposals for change provided by this bill since the statutory reviews of the Anti-terrorism Act in 2001 are welcomed by the RCMP because procedural rights, appeal rights, and accountability to Parliament have been enhanced, all contributing to public assurance about these measures.

Preserving the open court system and trial fairness is a fundamental dimension of the democratic traditions that we all cherish in this country.

The words of the International Jurists Commission in their 2009 report on terrorism, counterterrorism and human rights are significant to bear in mind when states invoke new anti-terrorism laws. An effective criminal justice system based on respect for human rights and the rule of law is, in the long term, the best possible protection for society against terrorism.

Again, thank you for inviting me to participate in these important hearings.

[The Chair, Conservative, Kevin Sorenson]

I call our meeting back to order.

We're on our second panel today. We're continuing with our consideration of Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act. We welcome our guests from the Royal Canadian Mounted Police. We have Mr. James Malizia, assistant commissioner, national security, criminal investigations and protective policing branch. As well, we have testifying for the Toronto Police Service, Inspector Stephen Irwin, with the intelligence division.

I understand you have brief opening statements before we proceed into a round of questioning.

Mr. Malizia.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair.

If I understood Mr. Leckey correctly, he offered to send us information that might answer the question about the relationship between the amendments in Bill C-45 and Bill S-7. To be more specific, I would be interested in not only your assessment of that relationship, but also a bit of speculation that has been done on this side that it may in fact have an impact on the ability to collect pre-departure information earlier, and therefore provide a capacity for instituting at least some form of exit controls. If you are willing to get that back to us, that would be greatly appreciated.

[Geoffrey Leckey]

We haven't been able to identify any increased costs that would be incurred by the CBSA as a result of the implementation of Bill S-7.

[Geoffrey Leckey]

That authority would still remain with the RCMP.

In fact, the impact of Bill S-7 on the activities of CBSA will be minimal.

[Geoffrey Leckey]

I'd just like to point out that Bill S-7, as currently drafted, does not give the CBSA the authority to stop people.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Two of the things that Bill S-7 reinstates are recognizance with conditions and investigative hearings. We've heard testimony so far to the effect that it's important that those be reinstated, since they are important tools for law enforcement to use in fighting terrorism and stopping terrorist activity.

Is that something CBSA supports? Specifically, I'm thinking of the recognizance with conditions. There may be times when your intelligence will discover that there are certain activities taking place or are going to take place, and I would think the ability of law enforcement to stop those activities in a timely manner is very important. Would you agree? Does CBSA support those parts of the bill?

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Thank you very much for that clarification.

I want to go back to Bill S-7 now, to three of the main parts of the bill and the changes, basically the updates, that come back to law enforcement in order to effectively counter terrorism and keep Canadians safe. I think it's important that we hear again your role. Some would think that you are just at the border, so if terrorists come in and if you're not aware of who they are, how can you actually help stop them? Can you please talk about the integrated approach you have with other law enforcement?

Specifically, you talked about a layered approach and risk management. I think it's important that we hear about the role CBSA plays in countering terrorism and about why these specific changes are necessary.

[Geoffrey Leckey, Director General, Intelligence and Targeting Operations, Canada Border Services Agency]

Thank you, Mr. Chair. Thank you, honourable members. My colleague and I are pleased to be here today. My name is Geoff Leckey and I am the director general of the enforcement and intelligence operations directorate in the operations branch of the Canada Border Services Agency.

I have with me today Sébastien Aubertin-Giguère, who is the executive director of the risk management and foresight division in the programs branch.

As part of the public safety portfolio, the CBSA is responsible for ensuring Canada's security and prosperity by managing the access of people and goods coming to and departing from Canada.

Though the agency's involvement in Bill S-7 is minimal, our day-to-day operations support the government's counterterrorism objectives. Today, I will focus my comments on the role that border management plays in the national security continuum.

Since its creation, the CBSA has been an integral component of Canada's national security policy by ensuring effective border management. To this end, the agency maintains close and productive relationships with its portfolio and other law enforcement partners at home and abroad.

Managing the border in today's complex world calls on our people to use a variety of skills and technology efficiently and effectively behind the scenes and when dealing directly with traders and travellers.

As you may know, the agency is responsible for enforcing the Customs Act, the Immigration and Refugee Protection Act, and over 90 other acts of Parliament, including the Anti-terrorism Act. To deliver effectively in these responsibilities, the CBSA recently opened a new state-of-the-art training facility in Rigaud, Quebec, to train border services officers in interviewing, examination, and investigative techniques. The college is key to our ability to perform our duties in providing excellence in border services.

As I stated earlier, the agency's role in this legislation, Bill S-7, is minimal, but we are supportive because the justice system and the law enforcement community need improved tools to interdict those individuals within Canada who engage in terrorist activity.

The CBSA plays a key role in Canada's counterterrorism strategy as a border security agency. While the agency is not directly mandated to investigate, identify, arrest or prosecute terrorists specifically, it does perform two essential security activities: denying terrorists entry into Canada and collecting and reporting on counterterrorism targets.

To achieve these outcomes, the CBSA collaborates on immigration security screening and admissibility screening of known or suspected terrorists with the Canadian Security Intelligence Service and with Citizenship and Immigration Canada. It also employs intelligence-based targeting to assist in counter-terrorism and strategic export controls of commercial shipments. The CBSA liaison officer network works to prevent inadmissible persons from coming to Canada. Border services officers also enforce export controls on goods and currency.

In addition, BSOs have participated in extensive program development and training and the use of detection technology so that they can conduct effective, non-intrusive examinations where possible. For example, the agency uses digital fingerprint machines to capture fingerprints, which are then sent electronically to the RCMP central registry for verification. Faster and more efficient front-end security checks ensure that those who may be criminally inadmissible to Canada are not permitted to enter.

Agency officials regularly work with immigration organizations overseas to identify emerging trends in irregular migration and document fraud. They also participate in joint activities designed to prevent the proliferation of weapons of mass destruction and their delivery systems.

The CBSA processes a staggering number of travellers and goods entering Canada each year. In the last year, the CBSA processed 93 million travellers, 29 million vehicles, and released 13 million commercial shipments. In order to balance the joint mandates of facilitation and national security, the CBSA applies a layered risk management approach to its intelligence and enforcement activities. The agency works with its key partners such as Citizenship and Immigration Canada, the RCMP, CSIS, and U.S. Customs and Border Protection so that it can effectively focus its efforts on areas of high or unknown risk.

As you can see, partnerships are key to the CBSA's effectiveness in border management and national security. The CBSA is a critical law enforcement partner because of its ability to turn the information it collects into intelligence about possible national security threats, including terrorism. The CBSA shares this information with its key domestic partners such as the RCMP and CSIS.

The CBSA also partners with international customs and immigration organizations to implement the terms of international agreements. The Beyond the Border action plan with the United States is a prime example of such a partnership. It assists the CBSA and its U.S. counterparts in ensuring that the border remains open to secure trade and travel but is closed to crime and terrorism.

Mr. Chair, while our role under this proposed legislation is minimal, the agency's mandate continues to be the first line of defence to ensure the safety and security of Canadians.

This concludes my opening statement.

Mr. Aubertin-Giguère and I would be pleased to answer any questions the committee may have.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone.

This is meeting number 61 of the Standing Committee on Public Safety and National Security on Monday, November 26, 2012.

Today our committee is continuing our study of Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act. We are reducing the time we spend today with each panel by several minutes in order that we can have the last 15 minutes of the meeting for committee business.

On our first panel we are hearing from the Canada Border Services Agency. Geoffrey Leckey is the director general of intelligence and targeting operations, and Sébastien Aubertin-Giguère is executive director of the risk management and foresight division in the program branch. I understand that you have some opening statements and that you would be willing to take some questions afterwards.

[Monik Beauregard, Director, Integrated Terrorism Assessment Centre]

Thank you.

Mr. Chair and members of the committee, thank you for your invitation to appear before your committee.

I'm pleased to be here today to discuss matters related to Bill S-7, the Combating Terrorism Act, in particular, and the role and mandate of the Integrated Terrorism Assessment Centre, ITAC.

Similar to CSIS, the Integrated Terrorism Assessment Centre (ITAC) is not an enforcement organization, so the Criminal Code provisions related to traveling overseas to engage in terrorism will not affect our work. I would echo my colleague's comments about the amendments related to protecting sensitive information from public disclosure. That being said, I should make clear that ITAC has no independent ability to collect intelligence. Simply put, unlike CSIS, we have no intelligence officers in the field.

Rather, the primary objective of ITAC is to provide comprehensive and timely terrorist threat assessments for all levels of the Government of Canada with security responsibilities. Our workforce is seconded from across government, thereby representing a wide variety of skill sets and knowledge bases. These individuals bring their knowledge and expertise to ITAC, making it uniquely qualified to analyze terrorist threats against Canadian interests in a way that takes into account the perspectives of all government departments and agencies.

ITAC acquires information from across the Government of Canada, including the Canada Border Services Agency; CSIS; the Communications Security Establishment Canada; the RCMP; Foreign Affairs and International Trade; CRA; the Financial Transactions and Reports Analysis Centre, also known as FINTRAC; the Privy Council Office; Public Works; National Defence; and the Correctional Service of Canada.

Mr. Chair, ITAC threat reports use intelligence and information from various sources and methods to assess this threat. We provide these terrorism threat warnings and assessments in relation to, for example, travel by high-profile officials, high-profile events, and current threat-related activities both in Canada and abroad.

Turning to the threats themselves, I would echo the deputy director's comments. The most serious terrorist threat to Canada remains violent Islamist extremism, although I would be careful to point out that no ideology, religion, or group is immune from violent, extremist elements.

al-Qaeda and its affiliates continue to represent the greatest threat from the Islamist terrorist perspective. These would include, for example, al-Qaeda in the Arabian Peninsula, which is known for innovative attack planning; al-Qaeda in the Islamic Maghreb, which has conducted kidnapping operations from its Sahara safe haven; al-Qaeda in Iraq, which has gained experience during the Iraq insurgency; al-Qaeda core, which, though seriously weakened, remains committed to violent jihad from its Pakistani base; and al-Shabaab, which has a strong territorial base in Somalia and an experienced cadre of foreign fighters.

My position, as Executive Director, is jointly appointed by the National Security Advisor and the director of CSIS. Committee members should also be made aware that ITAC was formed as a result of the events of 9/11. It was created as an organization that would bridge some of the institutional gaps in the Government of Canada.

At the time, you will remember that there was a reasonable fear that the Government of Canada was not sharing information horizontally to the extent it should have. As the final report of the National Commission on the 9/11 terrorist attacks demonstrated, the United States also had very similar concerns. Moreover, there was a need for an organization to provide greater all-source analysis and context regarding terrorist threats, taking into account the expertise from across the Government of Canada.

Mr. Chair, clearly the need for cooperation and information sharing across the Government of Canada is vital to our national security. The siloed approach of yesteryear simply does not work, potentially endangering lives and damaging Canadian interests. ITAC prides itself on being an important piece in solving this policy puzzle, thus providing support to the Government of Canada's national counter-terrorism policy.

As I've reached the end of my time, I now look forward to answering the committee's questions.

Thank you.

[Michel Coulombe, Deputy Director of Operations, Canadian Security Intelligence Service]

Thank you.

Mr. Chair and members of the committee, good afternoon.

I'm pleased to be here today to discuss matters related to Bill S-7, the combatting terrorism act.

As you are probably aware, the director of CSIS spoke to Bill S-7 at the Senate anti-terrorism committee last April. As the bill has largely remained the same, what he said at the time remains valid, and as such, I will keep my comments related to the bill short.

Bill S-7 aims to provide the justice system and law enforcement with better tools to respond to terrorist activity that reaches a criminal threshold. Given that the service has no law enforcement mandate, we would not directly have recourse to the provisions envisioned by the bill. That said, as a member of the broader national security community, we are certainly supportive of any additional tools that will help our law enforcement partners better confront terrorism.

The amendments related to section 38 of the Canada Evidence Act recognize the importance of protecting sensitive information from public disclosure. Mr. Chair, CSIS welcomes these measures as they help prevent our operations, sources, and tradecraft from being compromised.

Mr. Chair, I will now turn from the details of the bill to the threat it seeks to address.

As our public report, recently tabled in the House of Commons, stated, “the greatest threat to Canada's national security remains terrorism”.

In Canada, terrorism has been associated with a variety of radical political and religious movements, so today, the most salient threat is that posed by violent Islamic extremism. This is a global movement and is represented by a variety of groups. Obviously, al-Qaeda and its affiliates are the best known and are of the most concern to Canadian and allied security services. However, in recent years, what we in the intelligence community called the al-Qaeda core has been significantly impacted. The death of Osama bin Laden and much of his al-Qaeda senior leadership has significantly weakened the organization.

Despite these successes, there remain concerning global trends, particularly in the Middle East and Africa. Recent events in North Africa and Syria have provided an opening for Al Qaeda-affiliated groups. This was dramatically revealed in the murders of American Ambassador Chris Stevens and three other personnel in Benghazi, Libya, at the hands of terrorists this past September.

Events in Syria are no less concerning. Syria presents many difficulties, particularly in separating those elements that will, over the longer term, contribute to regional stability from those that may engage in terrorism. Canada and our allies have welcomed the recent establishment of a more comprehensive Syrian opposition authority. There remain, however, Al Qaeda-affiliated forces operating throughout Syria.

It is CSIS's assessment that the situation in Syria will remain chaotic for the foreseeable future, and this will continue to offer a permissive environment for terrorist activities. As such, al-Qaeda affiliates will likely increase their presence and operations in the country. The military and intelligence support provided by Hezbollah and Iran to the Assad regime further complicates this conflict.

Supporting democratic transitions in the countries of the so-called Arab Spring, while limiting Al Qaeda and its affiliates' space to operate, will be an immense policy challenge for Canada, our allies, and the region.

Mr. Chair, switching now to the domestic sphere, CSIS continues to investigate hundreds of persons involved in terrorism-related activity that threatens Canada and our allies. The service assesses that there are approximately 50 Canadians—many in their early twenties—who have travelled or attempted to travel from Canada to Somalia, the Afghanistan-Pakistan tribal areas, Syria and Yemen to engage in terrorism-related activities in recent years. The spectre of these young people returning to Canada—with combat experience and thoroughly radicalized views—is a serious national security concern.

Any aid Bill S-7 can provide to alleviate and prevent some of this activity would be welcome. It should be pointed out that criminal sanctions are not generally a deterrent to terrorists who are motivated by extremist ideology, but as Bill S-7 would provide another tool to law enforcement, we are certainly supportive.

Mr. Chair, underpinning domestic terrorism is the radicalization of individuals to violent, extremist ideology, a phenomenon that requires greater study. In this regard, I would like to draw to the committee's attention an element of our recent public report that highlighted some conclusions of a CSIS study on radicalization in Canada. The study is an important milestone and one of the first of its kind in Canada. While much of the report is classified, I can share some of the conclusions for the committee's edification.

The study does not identify a predictable pattern or linear process for radicalization. Domestic extremists come from diverse backgrounds, age brackets, income levels, and education levels. All this to say, that there is simply no “terrorist type”.

However, several drivers do appear with some frequency, including significant feelings of injustice against western governments, societies, and ways of life. As well, there is the conviction that the Muslim world is under attack and requires defending through the use of violent jihad. These views are often promulgated through Internet propaganda, conspiracy theories, and charismatic leaders.

Mr. Chair, the required policy response is not obvious. Although these findings do suggest that undermining this narrative could aid in preventing radicalization, whether to, how to, and who would do this remain questions for policy-makers, the government, and parliamentarians such as you.

Mr. Chair, I am reaching the end of my allotted time. I will cede the floor to Ms. Beauregard and would then be pleased to deal with these and other issues in questions from the committee.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone.

This is meeting 60 of the Standing Committee on Public Safety and National Security on Wednesday, November 21, 2012.

Today our committee is continuing our study of Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.

On our first panel testifying today we will hear from the Canadian Security Intelligence Service. Michel Coulombe is the deputy director of operations.

As well, we have Monik Beauregard, director of the Integrated Terrorism Assessment Centre.

I've explained it to you folks already. Today there's been a concurrence motion that has been moved in the House, and it could be that the bells could start ringing as early as ten minutes to four, but it may be after that as well. Our intent is that when the bells start, we will conclude this aspect of the first hour. Depending on timing, we may come back or we may not. I rather doubt it. My sense is that we may not, but we'll wait and see what the timing is.

Please don't let that deter you from your statement. We have looked forward to this study and to your statement, so the floor is yours.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

At the NDP, our concerns always have to do with the repercussions on the charter—including the increase of related complaints, freedom of association, and so on. How much do you think the implementation and enforcement of all the provisions of Bill S-7 will cost taxpayers?

[Glenn Gilmour]

The Attorney General certificate is a certificate signed by the Attorney General of Canada to prevent sensitive government information from being disclosed. Originally I believe it allowed for the duration of that certificate to be 15 years, but because a recommendation was made by one of the parliamentary committees reviewing the Anti-terrorism Act that this period of time be reduced from 15 years to 10 years, that recommendation appears in Bill S-7.