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.

Nuclear Terrorism Act

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

Mr. Speaker, the nuclear terrorism act, currently in the form of Bill S-9, would amend the Criminal Code to align our law with obligations under two international agreements, as the parliamentary secretary has so ably outlined. One is ICSANT, the International Convention for the Suppression of Acts of Nuclear Terrorism of 2005, and an amendment to another treaty in 2005, the Convention for the Physical Protection of Nuclear Materials.

In broad terms, those two instruments, along with the underlying Convention for the Physical Protection of Nuclear Materials, deal with the protection of radioactive material, nuclear material and nuclear facilities, and the protection from nuclear or radioactive devices.

The creation of criminal law offences is one aspect of the protection scheme, alongside ensuring there is a broad, in essence, kind of universal jurisdiction to prosecute for most aspects of these offences.

The present bill, Bill S-9, is overdue if one looks at the dates of the two instruments, both 2005, although this delay is mitigated by the fact that Canada is not yet bound to either instrument because it has not yet ratified. We have signed but that is not the same thing as ratification. The passage of Bill S-9 will put us in a position to be in compliance and, thus, to ratify.

However, why we have left this combined ratification and implementation for so long does remain a mystery to me, despite the answer just given by the parliamentary secretary. This is not a controversial bill from any side of the House and I cannot imagine a minority Parliament would have held it up.

As I have already indicated, the NDP very much supports the bill going to committee. We will vote for it at second reading and we expect to do so at third reading. Overall, we are completely behind the bill as a necessary measure as part of Canada's international co-operation against threats related to nuclear terrorism of various forms.

In a world of heightened technological sophistication that increases the ability to steal material, attack installations, make radioactive devices and so on, it is impossible to overstate the importance of such co-operation and, indeed, Canada's role in that co-operation.

We wish to see this bill become law as rapidly as possible. At the same time, we also emphasize that some close technical scrutiny of the bill in committee is still called for to ensure that it has been drafted in the best way to fulfill our obligations under these two treaties so that we can then go on and not be in non-compliance once we ratify.

It may be that some slight amendments will be needed in committee. I say this for three reasons.

The first reason is that there was what seems to have been a major omission in the government's bill that went to the Senate before coming to us. What was that omission? I referred to it in my question just now to the parliamentary secretary. Whereas ICSANT's article 2(1)(a) includes the offence of making a radioactive device, Bill S-9, in its original form before the Senate, did not include this activity despite mentioning every other conceivable form of activity that also was in the two treaties: possession, use, transport, export, import, alteration and disposal.

The Senate caught this omission, assisted, no doubt, by an alert Library of Parliament preliminary summary of the bill, and the mistake has been rectified in what we now have coming from the Senate.

However, and this is my main point, the situation does give one reason to pause and ask a question. If something as significant as making a radioactive device, which appears clearly in the text of the relevant treaty, was missed, has anything else been overlooked, or has there been some other slippage in the tightness or the accuracy of the drafting of this bill? The committee needs to ensure this is not the case.

The second reason there may be a need for amendments following directly on from the just asked question is that the commitment may need to consider amendments in that there is some reason to believe that parts of Bill S-9 have been drafted in terms that are not just more general in their phraseology than the specific treaty articles they are meant to implement but are broader in the sense of criminalization of more than is required by the treaties.

I will, in a moment, outline where this may be a problem in Bill S-9, but a prior problem may be that the Minister of Justice and officials before the Senate committee do not appear to agree that there are any such aspects of over-breadth. The reason this is a problem is that such denial makes it impossible to go to the next stage of analysis, which is to ask whether over-breadth in relation to what is strictly required by the treaties is actually of any real concern.

If the treaties permit state parties to go further in what they criminalize, and the treaties probably do permit this, then it becomes a matter of sound public policy discussion as to whether we do wish to go further. However, if the government denies that Bill S-9 does go further, we cannot even have that discussion.

The third reason we may need to entertain a small amendment or two in committee is that there may, and I emphasize the word “may”, be under-breadth in terms of the coverage of one aspect of Bill S-9 offences. Now I may have misread the corresponding treaty provisions in relation to the sections of Bill S-9 in question, but one reading of them is that Bill S-9 may not go as far as required in one respect. If this is the case, then our legislation would put us in non-compliance after ratification. I will identify this possible glitch in a moment.

I will now proceed with a bit more detail on these points to illustrate why it is that we may have to pay some close attention in committee.

First, on the issue of potential over-breadth, and I do apologize to everyone listening that this will be as technical as it is starting to sound. In particular, with respect to proposed sections 82.3 and 82.4, article 2 of ICSANT is rather inelegant in expressing the need for specific intent on top of general intent for some of the offences mentioned. It talks about any person intentionally possessing, using, making a device and so on with the intent to cause death or serious bodily injury or with the intent to cause substantial property damage or harm to the environment.

The first point to note is that this double use of intentionality does cause a certain degree of inelegance. Bill S-9 does not repeat that. It uses simpler language, for the most part going straight to the specific intent formulations. This seems wise.

However, the problem that then appears on one reading of proposed sections 82.3 and 82.4 is that the specific intent formulations of the ICSANT treaty regarding use or damage to a nuclear facility are not reproduced in Bill S-9. Instead, proposed sections 82.3 and 82.4 of the bill merely assume a general intent standard. This is because, and again this is a very technical point, in proposed sections 82.3 and 82.4 the acts listed after the words “or who commits” are cut off from the specific intent references earlier in the provision.

In a similar vein, the amendment to the CPPNM treaty on acts directed against nuclear facilities also has a specific intent requirement that Bill S-9 does appear to omit.

Here is another point about over-breadth that I will simply state as a very clear problem, as there is no doubt or debate about this one. The references to crimes of threat in Bill S-9 go further than necessary under the treaties. This is very helpfully laid out in the very well put together legislative summary provided by the Library of Parliament.

Finally, there is a provision in Bill S-9 that talks about committing an indictable offence with intent to obtain material or a device versus the treaty provisions, which actually list the specific other forms of offence that are attached to this search for intent to obtain material or a radioactive device.

We have created a much broader tacking-on of this notion of committing any indictable offence as opposed to the offences specifically listed in the treaties: theft, robbery, embezzlement, fraudulent obtaining and so on.

All of this is as dry as the hon. member for Gatineau promised it would be. However, I did want to get this on the record so that it helps us at the committee stage to ask whether this is a correct reading, and if so, what needs to be done about it.

There is something quite significant however about the fact that if there is over-breadth in any respect, there is a multiplier effect that occurs throughout Bill S-9. That is because a number of other provisions tack themselves onto the offences. Four of them in particular are worth mentioning. One is the extraterritorial scope of the offences. The second is that they enter into the definition of terrorist activity, which is thereby broadened. The third is that the electronic surveillance provisions of the Criminal Code would be kicked in by the offence definitions, as are fourthly, the DNA sample provision of the Criminal Code.

The issue is not that these offences are simply more broadly worded in and of themselves, which may strike people as a slightly semantic issue. It is how one multiplies the potential significance of that across all of the other provisions I have just listed. It is what I call an amplification effect.

I mentioned that there is possibly an odd twist here. There may be one instance of narrowing our treaty obligations in Bill S-9 in such a way that might mean that Bill S-9 does not go far enough and, thus, may put us in breach of the treaty.

The new CPPNM amendment in article 7(1)(d) criminalizes “the intentional commission of...an act which constitutes the carrying, sending, or moving of nuclear material into or out of a State without lawful authority”. Yet proposed section 82.3 of Bill S-9 would make the import and export offence subject to the specific intent portions of that section, which are not in Article 7(1)(d) of the treaty amendment. This could possibly be a misreading of the treaty amendment on my part or of what is intended by Bill S-9, but there does appear to be the possibility that we have under-inclusion in that respect.

All of this adds up to the fact that the committee will need to pay some attention to whether or not this legislation has been drafted as well and as tightly as needed, particularly in light of the fact that in asking questions of the parliamentary secretary just now, the responses that came back were fairly general. It is not at all clear that the government has its head around these problems, despite the warning of some of these questions being asked in the Senate.

I would like to say a few words about parliamentary democracy as it relates to this legislation. One might assume that I am referring to the fact that the bill started in the Senate, the unelected, second chamber of our Parliament. In fact, that is not my immediate concern. A much more real concern and affront to this chamber is that Bill S-7, on which debate started earlier today, first went to the Senate.

Having listened to myself for the last 10 minutes, Bill S-9 is very technical in nature. It may well be the kind of bill that can fruitfully be started in the Senate so that the House benefits from some preliminary cleaning up and does not have to allocate undue time to studying the bill. The fact that the Senate caught the omission of the making a device offence may actually prove my point, in part.

My immediate democracy concern does not relate to the Senate. Rather, it relates to the methods we use in Parliament to implement treaties and statutes. Again, I am not referring here to the mess that many in this room know exists with respect to the lack of consistency in the way that statutes are drafted to accomplish implementation of a treaty.

By one count in a law journal article I read some time ago, there are well over a dozen methods employed, ranging from verbatim reproduction of treaty text to very general language that does not even hint at there being an underlying treaty motivating the legislative change. While this is an important issue and while it does bear directly on how Bill S-9 may be over-broad in parts, I will leave that for another day.

Therefore, I turn to what my concern actually is.

What I want to discuss is much more procedural in nature. The way in which bills are introduced, presented and reported from stage to stage is close to a travesty when it comes to the twin goals of transparency and accountability. Parliament, and thereby the Canadian public, must be given every opportunity and tool to be able to understand precisely what is in a bill and how that content relates, in this context, to an underlying treaty or another international instrument such as a Security Council resolution.

However, that is not what happens here in Canada. Treaty-implementing bills almost always get plunked onto Parliament's desk with nothing resembling an overview, let alone a road map, from the government of how a statute's provisions line up with related treaty provisions. Parliamentarians end up reading a bill as if they have a jigsaw puzzle to solve. They track down the related treaty and then try to connect the dots between the treaty and the statute with absolutely no help from the government by way of a commentary that could easily provide explanatory charts showing side-by-side text so that Parliament's role of scrutinizing critically and effectively can be facilitated.

Instead, valuable energy is wasted at the preliminary stage of understanding what is going on in the relationship between the statute and the treaty text. As some members will be aware, I am speaking as someone who was not only a law professor in a previous life but has been an international law scholar for over 20 years. Therefore, if there is anyone in a position to put the jigsaw puzzle together it would be someone with my background. However, even I find it very frustrating.

More importantly, I find it undemocratic. Why? Anything that makes legislative details needlessly inaccessible gets in the way of clear and focused analysis and debate, both by and among parliamentarians, and in terms of how journalists and the public in general will have difficulty grasping analysis and debate if there are no well-presented documents that make the subject of analysis and debate reasonably easy to follow. At multiple levels, democratic scrutiny is undermined and the distance between Parliament and society is exacerbated.

Without dwelling further on the details of an ideal system of clear and transparent presentation of treaty-implementing bills, which this bill lacks, at minimum the government must be required to include alongside a bill a document that does at least the following three things.

First, the document should show the text of the treaty and statute in a side-by-side comparison that makes clear what the statute is intended to implement.

Second, the document should explain and justify the method of implementation that has been chosen. For example, if general language is used or if a treaty text is reproduced nearly but not entirely in verbatim form from the treaty, we need to know why that decision was made.

Finally, the document should provide a clear account of what is not in the implementing bill by reason of the fact that either Canadian law may already cover off the area, the treaty provisions in question may only operate on the international plain or the matter must be dealt with by a provincial legislature.

In order to appreciate that this is not simply a cranky protest, all we have to do is to consider what everyone knows about how inaccessible even basic bills are when presented to Parliament in terms of how well we can understand the underlying statute that is being amended. We also can refer to budget bills that do not come anywhere close to meeting OECD transparency guidelines.

In this immediate context, my main point is to draw attention to one problem we have with a very procedural dimension of accountability in this Parliament, which is not alone in the way we deal with legislation.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Mr. Speaker, as I said in my speech, one of the proposed methods is to have concurrent prosecutorial authorities for the attorney general of Canada, as well as the provinces and territories which are the ones, under our constitution, that generally administer the law. They are the ones applying what terrorism offences exist now. That is one of the ways we will be dealing with this.

This is where we are sort of partnering Bill S-7 and Bill S-9 together. We are taking steps to bring this together now in order to deal with it effectively and in a timely way. That is the understanding on the concurrent jurisdiction.

Combating Terrorism Act

[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.

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

Mr. Speaker, my remarks today will be on a series of clauses in Bill S-7, clauses 4 through 8, which would add a number of sections dealing with the question of leaving or attempting to leave the country for purposes related to terrorism.

These proposed provisions that will make it a crime to leave or attempt to leave Canada to join a terrorist group or participate in a terrorist activity respond to very real concerns. Assuming the accuracy of testimony before the Senate, there are worries about a non-trivial number, even if a proportionately small number, of citizens or permanent residents contemplating leaving Canada for this reason or having already done so. There is reason to believe that male youth under age 18 or young men over age 18 in some diasporic communities are targeted, especially for recruitment to join in terrorist activities abroad. There is very much reason to be concerned.

All that noted, we are led, as we must always be when youth are highly likely to be the main subject of criminal law measures, to wonder if criminalization will be as productive a measure as its proponents hope. Let us assume that we all believe in preventive measures of a social, educational, mentoring sort alongside addressing root causes of alienation that lead to the kind of radicalization we are concerned about in this context. The question then becomes what the value would be of criminal charges against youth arrested at airports or other borders seeking to leave Canada.

At least for those under age 18, it is true that the Youth Criminal Justice Act will apply and that the act allows for holistic education-centred sentences, for example. That is a good thing, although everyone needs to be reminded of two caveats: one, that youth still receive criminal records; and two, that the Crown can always seek to apply for adult sentences. However, once one reaches that magic number of 18, we are left with the full-blown application of the criminal law. At minimum, we need to know that the approach of government is more multifaceted than reliance on these new Criminal Code provisions alone.

In this respect, there is one thing proponents have in common with those of us who are concerned about promoting non-criminal measures to divert people, especially youth, from radicalization of the sort that embraces violence, and that is prevention. If prevention could be achieved in ways short of the cumbersome and often clumsy invocation of the criminal law, I suspect that some productive consensus could be arrived at. The problem, however, is that it is very hard to design coercive measures to prevent a person's departure shy of using the criminal law while still remaining faithful to principles related to liberty and the rule of law that we cherish.

It might be thought that one way to use the criminal law in a way that falls short of full-scale criminalization would be for these new provisions to be used as the basis for detention by the Canada Border Services Agency and then arrest and charge by the RCMP, but then have the Crown decide not to prosecute. Keep in mind that when I say the Crown, I mean the Attorney General because these new provisions are among those in the Criminal Code that require the Attorney General's consent to prosecute.

When one reads the Senate committee records for Bill S-7, one gets the impression that there may be in part some who may mean, by the new provisions, this kind of idea in terms of the preventive purpose. If these new provisions allowed the state to prevent people, for example, youth, from joining terrorist enterprises while not resulting in criminal convictions and sentences, would this not be a defensible result? The answer seems clear. Criminal law will not be able to function within acceptable limits if it becomes a tool for disruption, whereby arrest is the end goal, but not prosecution. The more a system can be used with no real intention of prosecuting, the more it will over time be used in exactly that way.

For the Criminal Code to maintain its integrity, its implication must only ever be on the basis of good faith that each stage of decision-making is relevant, good faith that there is adequate evidence to sustain a prosecution. All this leads to the question of whether we actually do have a prosecution system in Canada that is willing and able to prosecute, considering that much of the evidence for the new offences will be produced from intelligence that CSIS and perhaps other agencies may well not be prepared to allow to go to court for fear of revealing sources and methods.

We know from the Air India inquiry how such considerations can inhibit effective prosecution. We have no reason to believe that the prosecution capacity has changed since the 2010 Air India report. Therefore, we may end up with a system that theoretically allows for proof of intention to leave the country for these purposes. We can all imagine the kinds of proof, ranging from emails, parents or community members, provision of information, information from foreign intelligence and so on. Therefore, a system that theoretically allows for proof of intention is possible but in practice may lead to charges being dropped because intelligence agencies will not want evidence made public. If so, we may inadvertently end up with the criminal law being used, in the way I talked about earlier, as a means to disrupt behaviour with limited prospect for use for its prescribed purpose of criminal prosecution. Therefore, in committee this may be an issue worth probing. Will the sort of evidence available actually usable before the courts?

Let us now look at another challenge, which is the interface of acquiring evidence of intent to leave the country for this purpose and logistics. This is the issue of how all of this will work at the point of exit from Canada.

At the moment, we all know there are no exit controls at all the borders, notably at airports, other than no-fly lists for those deemed to be a threat to aviation. Testimony before the Senate made it clear that co-operation protocols or memorandums of understanding would be needed among CSIS, the RCMP and the CBSA.

Mr. Fadden, the director of CSIS, went further and noted that would have to extend likely to CATSA, the agency of the Department of Transport that regulates security. How these protocols will be developed and what kind of accountability there will be for their operation remains a concern especially because the RCMP, a key link in the inter-agency collaboration that will be needed here, has been shown by both the Arar and the Air India inquiries to be an agency that suffers from lack of accountability and inappropriate oversight mechanisms. Yet, with the government's Bill C-42, we see that it has no intention of acting on the Arar commission's carefully thought through recommendations for RCMP accountability and oversight.

However, there are two comments by Director Fadden that most definitely will need to be followed up in the House of Commons committee after second reading.

I will turn to the first one. He said:

—I emphasize that we have not developed the protocols yet. What we will need to do is work closely with the Mounties and make sure [that] we are communicating at all times with border services.

The other complicating factor...is that Canada has no system for controlling exits. We do not even have a system to be aware when people are leaving. This will involve more than the CBSA; it may well involve CATSA, the agency of the Department of Transport that regulates security.

I should not say much more because I will get myself into a situation I will not be able to get myself out of.

We will need to better understand what is being considered, what is being referred to here by the director of CSIS. Is some form of cross the border surveillance system to clock everyone's exits being contemplated? That seems to be hinted at within the statement, especially the sentence, “We do not even have a system to be aware when people are leaving”. The suggestion is that such a system of awareness is some sort of requirement, a sine qua non for the protocols to be implemented to give effect to these new Criminal Code provisions.

One way to be aware of someone exiting the country is to already have identified them as having the intention that this criminal provision talks about and then to track them to the airport. However, that kind of specificity may not be what Mr. Fadden is actually alluding to.

To return to the question I have already asked once, are we looking at a more general surveillance system that CATSA, for example, would operate? We need clear answers on this in committee.

It might also be that a revision of the no-fly list is part of what is being contemplated as a general surveillance mechanism.

At another point in his testimony before the Senate, Mr. Fadden discussed why no-fly lists would not currently provide the mechanism: (a) for being aware of when someone is seeking to leave; and (b) for preventing that person from boarding the aircraft. Here is his observation:

The current structure of the no-fly list program is such that you have to be a threat to aviation....My understanding is that officials are preparing a series of proposals for ministers to try to make this list a little more subtle, but I do not know where they are on it.

Is it possible that the government is considering a mechanism to put people on a no-fly list based on evidence, at whatever standard of proof, that the person intends to leave Canada in a way that would violate one of these new leaving the country provisions? If so, we need to know much more about how this would work in relation to enforcement of these new provisions in the code, how people would be put on this list and how they could get off.

Would this be an alternative to arrest and possible prosecution under the criminal law provisions? If so, is this possibly preferable to direct intervention of the RCMP to arrest, followed by possible prosecution? I think in particular of how this would avoid criminalization of youth where the primary concern with respect to the kind of radicalization that leads them to want to leave Canada to get involved with terrorism.

At the same time, however, what we know about how no-fly lists currently operate in a zone of non-accountability leaves me deeply doubtful that this approach would provide a preferable preventive mechanism.

Just for example, the experience of Maher Arar and other Canadians like Mr. Almalki, Mr. Elmaati and Mr. Nureddin create real worries about what could happen to a Canadian who ends up on a no-fly list for reasons related to CSIS or RCMP speculation about intentions to engage in terrorism.

The Canadian government's purpose might be to stop the person from leaving Canada. Perhaps the purpose is to get youth to think twice before trying to leave Canada by another means. However, foreign intelligence agencies that might get access to our no-fly list might act very differently on that very same information if the person in question ever did leave Canada and then showed up on the radar screen of some country when seeking to use that country's airport.

The reason this is of such concern is that the connection between a person and terrorism within this new leaving the country criminal law provision can be very attenuated. Intentionally attempting to leave becomes itself a terrorism offence and the evidentiary basis for being put on a no-fly list as opposed to being brought forward for prosecution may be far below the standard of beyond a reasonable doubt within our criminal law system. Yet on such a possible thin basis, someone's name could enter into the interconnected global system of surveillance that could lead to preventive arrest or worse in other countries on that basis alone.

I emphasize that those are concerns prompted by an admittedly very brief reference from Mr. Fadden, but in the context it is potentially a very telling reference. We must be aware how collaboration and information-sharing works between intelligence agencies between countries. This is something I have had the chance to study in some depth several years ago when preparing a report for the settlement process in Mr. Arar's lawsuit against Canada.

Unless we have confidence in how people would get on this new, more subtle, to use Mr. Fadden's language, no-fly list and confidence in whether, how and with whom the names on that list and the reasons for being on that list are shared, there is much to be worried about with respect to Mr. Fadden's revelation about a more subtle no-fly list.

In any event, I think the point is clear that, based upon the testimony of the director of CSIS before the Senate, this needs to have detailed testimony and scrutiny in committee after second reading in this House.

I will now turn to a few comments, one, in particular, made by Minister of Justice when he was testifying before the Senate. He talked about how investigative hearings could produce the evidence to discern the intent of a person to leave the country for purposes of terrorism. However, we know that investigative hearing provisions, which are being proposed to be restored in the Criminal Code by this bill, state that testimony cannot be used as evidence in court against the person giving that testimony.

This leaves us with one of two possibilities with respect to what the minister was referring to.

The first is that he is actually thinking about using this mechanism as a mode of detention and arrest but not necessarily going to prosecution. We return, therefore, to the problem of use of the criminal law system to allow for disruption with no real prospect for prosecution.

More likely, however, the minister could not have meant that. He must have meant that investigative hearings will be used to question people about other people's intentions and, thereby, use that as evidence for the attempt to leave provisions of the Criminal Code. If so, this would have profound implications with respect to how often and to which people these investigative hearings would be used as evidence-gathering tools. We need to discuss this in committee.

The minister also suggests evidence of intention to leave the country could come out of the hearings that deal with preventive recognizance with conditions. Presumably, again he means someone else is brought to such a hearing about some impending terrorist act and information is then revealed about another person and that evidence is then used to prove that person intends to leave the country for purposes of terrorism.

We need to ask the minister and his officials what he meant by reference to those two sunsetted provisions, if they come back into law, as being mechanisms to gather evidence of intention to leave the country.

That raises another question. Would the proposed new clause 83.3, resurrected from the 2001 Anti-terrorism Act, allow for recognizance with conditions if someone can be shown to be on the point of leaving? Because this would be a terrorist act, when people attempt to leave, they are now engaging in a terrorist act according to the new provisions. They can then be required to stay and their passport taken away for up to 12 months. Is this scenario possible? Is this in fact a planned sequence? Does the government have this in mind?

Keeping in mind how the United Kingdom actually uses control orders to prevent departures from the country, the question has to be asked whether or not this is something the government contemplates. This is a question to pursue, again in committee.

I will conclude with the overall comment that there is much to look at in committee if we are to fully appreciate and make judgments about the utility of these new attempting to leave or leaving the country Criminal Code provisions.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, as it is mostly members of the official opposition who have spoken to the bill, I think it is important to make a correction: no one in the House said that the fact that this provision has not been used is proof that there was no terrorism. It is very important to add that the existing provisions seem to have been enough.

I would like to ask the representative of the party that often wraps itself in the charter if we are to understand that the members of his party are voting in favour of Bill S-7 or whether, on the contrary, the fact that the committee's recommendations were not taken into account, including in the two cases he mentioned, indicates that they are not voting in favour of this bill.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I am pleased to rise in this House today to speak about terrorism. As everyone is aware, it is an extremely important issue. Terrorism is a very complex and also quite a modern scourge that has afflicted the world for the past 50 years.

Before September 11, 2001, North Americans regarded terrorism primarily as someone else's problem. During the 1970s and 1980s, we watched what happened from time to time in Europe, the Middle East or Asia, on other continents primarily, and we thought we were immune to terrorism. Even when the horrible terrorist act happened in Oklahoma City, in the United States, for us it felt a little bit surreal and random. We told ourselves it was the act of a half-wit, a lunatic, an extremist who was not in touch with the real world; we told ourselves it was a one-time act. We did not expect this sort of thing ever to happen again.

Here in Canada, we thought it was perhaps also because in the United States, there were people with extremist opinions, and we thought that Canada was in many ways a more moderate country, a country that had no history of violence or political extremism.

The events of September 11 totally changed our perspective, which was rather simplistic and perhaps a little naïve. On September 11, the people of North America suffered a massive and profound crisis of conscience. Suddenly, we became aware in a way that deeply transformed us both individually and as a society. For the first time, we understood what it was to be the target of international terrorists and to experience a terrorist act, in broad daylight, in our own backyard.

We understood how the threat of terrorism is real for us as well, and no less real than it is for those living in countries where, so often in the past, we have seen terrorist acts, unfortunately. As I mentioned at the beginning of my speech, it was often something that affected Europe or the Middle East more than North America. We learned that it is not solely someone else's problem and that we must also protect ourselves, by tightening and strengthening our legislation and our public safety infrastructure to defend against terrorism.

I would like to take this opportunity to point out that the Conservative government does not have a monopoly on concern for public safety, despite the image that it has so carefully cultivated over the past few years. In other words, the Conservatives are not any more concerned about the safety of Canadians than are the other parties in this House. They are not more fiercely opposed to terrorism than are the other parties in this House. This needs to be said.

Let us take the example of the bill passed by this House in 2001, before I was elected and before many of the other members here were elected. I am talking of course about Canada's Anti-terrorism Act, which was passed by a Liberal government. Bill S-7, which we are debating in this House today, can be seen as an amendment to Canada's Anti-terrorism Act.

The Chrétien government’s Anti-terrorism Act added new provisions to the Criminal Code, in particular part II.1 and sections 83.01 to 83.33, which specifically covered terrorism offences and made the following activities crimes: collecting property for a terrorism offence or participating in terrorist activities; facilitating terrorist activities; and instructing to carry out terrorist activities.

This means that the bulk of the work of updating the Canadian criminal justice system to reflect the new terrorist threats was done in 2001 by a Liberal government. It is worth pointing this out. As I said, when we listen to this government, we often get the impression that those on the other side of the House are the only ones who worry about the safety of Canadians, and no other government before them has done anything to try to protect the Canadian public better against terrorist acts.

The 2001 act introduced two specific provisions that my colleagues in the other parties referred to earlier, and it is worth reiterating them. The first provision allowed for investigative hearings: it allowed a person suspected of having information about a terrorism offence that has been or will be committed to be compelled to appear before a judge and answer questions where the answers would make it possible to intercept a terrorist act or find the person or persons guilty of committing a terrorist act.

The second provision of the 2001 Anti-terrorism Act gave authorities the power to require a recognizance with conditions, allowing a peace officer who believes that a terrorist act will be committed and who believes that the imposition of a recognizance with conditions will prevent that act, to bring the person before a judge within 24 hours so that a show cause hearing can be held to determine whether the person should be released or should be detained longer in certain circumstances.

Of course those new provisions were controversial. Naturally, they generated debate and prompted questions relating to the principles in the Canadian Constitution, and more specifically in the Canadian Charter of Rights and Freedoms. It is to be expected, in a democratic society, that questions will be raised when measures of that nature, relatively harsh as they in fact were, are introduced.

In response to the concerns expressed both by the Canadian public and by legal experts, who were very knowledgeable about the Constitution and concerned that it be adhered to, the Liberal government of the day came up with two quite creative responses. It included what is called a sunset clause in the Anti-terrorism Act, which provided that the two provisions I have just described would cease to be in force five years after the act was enacted, along with a clause requiring that the law be reviewed by Parliament three years after it received royal assent.

The sunset clause idea is well worth considering. The two contexts are different, but this clause does bear some similarity to the notwithstanding provision in the Canadian Constitution. In other words, this is not something that can be used indefinitely; its existence must be justified periodically. This is quite a creative response to a thorny and difficult situation in terms of protecting the rights of Canadians under the Canadian Charter of Rights and Freedoms.

That is why the Liberal government included this sunset clause—so that these two provisions would come to an end after five years. As we know, the Conservative government tried to extend them, unsuccessfully, in 2007 and it lost a vote on this matter, as other members have pointed out.

At the time, the opposition voted against extending those two provisions, because the government had not taken into account the recommendations made by the House of Commons subcommittee that had thoroughly scrutinized those provisions.

I would like to quote the House of Commons legislative summary regarding the situation at the time of the vote:

For example, the subcommittee had also recommended that the revised investigative hearing provision limit its scope to deal only with imminent terrorism offences, and that section 83.28(2) be amended to make it clear that a peace officer must have reasonable grounds to believe that a terrorism offence will be committed before making an ex parte application and to make it explicitly clear that anything done under sections 83.28 and 83.29 is a “proceeding” under the code.

We also wanted to ensure that these provisions would apply only to anticipated terrorist activity. The Conservative government failed to take those two recommendations into account in 2007 when it wanted to extend those two provisions of the Anti-terrorism Act. This brings us to Bill S-7, which reintroduces the two provisions that disappeared after five years, as set out by the legislation in 2001.

From what I understand, once again, this government still has not taken into account the recommendations made by the House subcommittee that had expressed some reservations. I just read one a moment ago. So we are no further ahead in that regard.

I think this government needs to be a little more open to what Parliament recommends. We will have an opportunity to discuss this in committee.

It is important to point out that these two provisions, which are rather controversial—I am talking about investigative hearings and recognizance with conditions—already exist in Canadian law. Yes, they are controversial, but these principles can already be found in Canadian legislation.

For example, laws concerning public inquiries, competition, income tax and mutual legal assistance in criminal law matters provide for procedures similar to investigative hearings. They are investigative procedures that do not seek to determine criminal liability. Furthermore, criminal law provides for peace bonds similar to recognizance with conditions, which are imposed to prevent anticipated violent offences, sexual offences and criminal organization offences. The principle of investigative hearings already exists, to some extent, in Canadian law.

I must also point out that, in my opinion, these two measures, investigative hearings and recognizance with conditions, respect the charter. For example, in 2004, the Supreme Court of Canada ruled that investigative hearings were constitutional and stated that they must generally take place in public. There must be as much transparency as possible in the circumstances.

The court handed down this ruling in connection with an application for an investigative hearing order for the Air India investigation. The person who was the subject of the order challenged it under the charter, citing the right to remain silent and protection against self-incrimination. The B.C. Supreme Court held that the legislative provision was valid and that the witness's rights could be protected through conditions in the order.

The Supreme Court of Canada granted leave to appeal based on section 40 of the Supreme Court Act and in Re: Application under s. 83.28 of the Criminal Code, concluded that the investigative hearing was constitutional.

Mr. Speaker, how much time do I have left?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, we do indeed share these kinds of concerns. However, I would like to suggest that my colleague wait until I give my speech on Bill S-9 this afternoon. I do not want to give her a scoop because it is against my principles.

Right now, we are talking about Bill S-7, and Bill S-9 will be debated this afternoon. We do in fact have concerns about it, and we will see how all that plays out in Bill S-9.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, Bill S-7, like a number of other government bills, suffers from a major problem: there is no balance between the idea of security and fundamental rights.

Given the government’s unending enthusiasm for making it appear that there is a crying need to amend sections of the Criminal Code, and for striking fear into people’s hearts, it is fortunate that the NDP is here to stand guard and make sure we protect certain fundamental freedoms that we have here. We are not saying that we support terrorism; we do not support it in any way. I am going to talk about the official position of the NDP on Bill S-7.

By the way, I am extremely surprised to see a bill that is as far-reaching as Bill S-7 be introduced in the Senate. Ordinarily, this kind of bill comes in by the back door, from the back benches in the House, but this time it is coming from the Senate. It was examined there and then introduced here. Let us not delude ourselves: this bill is not really coming from the Senate; it is coming from the Minister of Justice, who wants to amend some provisions of the Criminal Code.

Before getting to the heart of the subject, I would like to thank some of my colleagues who have done exceptional work on this issue, including my colleague from St. John's East, who was justice critic before me, and the critic who preceded him. I would also like to thank my colleague from Toronto—Danforth, who has done an excellent analysis of the subject and has provided extremely valuable support for me on this issue.

There is clearly a major problem in this bill when it comes to balancing security and fundamental rights. Let us not delude ourselves. We have put questions to the Parliamentary Secretary to the Minister of Justice. How is it that provisions that expired four years ago have suddenly become extremely important and have to be implemented, when, to our knowledge and the knowledge of the witnesses who appeared before the Senate committee that examined Bill S-7, there have been no cases to date?

In answer to the question that my colleague from Toronto—Danforth put to the Parliamentary Secretary to the Minister of Justice, there will be endless quoting of witnesses who appeared before the Senate and support the bill. Those witnesses did not say it is needed; they said “you cannot be too careful”. When we are dealing with concepts as important as international law, terrorism or civil liberties, that is not really the way to do things.

It is not that simple. To deal with terrorism and terrorist threats in Canada, you do not simply include some slightly tougher provisions in the Criminal Code or other legislation. Canada is already a signatory to a number of international conventions, such as the Convention on the Rights of the Child. The present government, however, seems to be strangely unfamiliar with the concept of child soldiers. For once, the government would do well to listen to Senator Dallaire, who saw the implications this can have up close. We have all witnessed the tragedy of Omar Khadr. The attitude taken toward a Canadian citizen, toward someone we call a child soldier, is not really a model of good government. In short, these are thorny problems we are dealing with here.

The first thing we have to seriously wonder about is why the government is going through the Senate to make fundamental changes like the ones proposed in this bill. That is one of the problems.

I think it is important that members understand what is going on with Bill S-7. I am therefore going to give a bit of background.

It is interesting to hear the parliamentary secretary say that this expired seven years ago but that the fact it expired does not mean it was not necessary. This is not the first time the government has tried to enact a bill of this nature.

First, there was Bill S-7, which was introduced in the Senate on February 15. Basically, that bill amends subsection 7(2) of the Criminal Code, which describes acts that relate to an aircraft, an airport or an air navigation facility, are committed when the person who commits them is in Canada, and by operation of subsection 7(2) and paragraph 83.01(1)(a) constitute a terrorist activity. We see how technical this can get. It would add new terrorism offences to Part II.1 of the Criminal Code, which covers section 83.01 and the sections that follow.

I encourage the members of the House to read section 83.01 of the Criminal Code and the sections that follow it, which already cover many aspects of terrorism. That part is devoted entirely to terrorism.

This bill will also, in certain circumstances, enhance the existing sentences provided for by the Criminal Code that may be imposed on any person who knowingly harbours or conceals a person who has committed a terrorism offence. It will restore to the Criminal Code the provisions relating to investigative hearings, recognizance with conditions and preventive arrest in the case of a terrorist activity. A concept like this presents a problem, because our legal system presumes innocence until proof to the contrary is provided.

The desire to institute systems that compel a person to incriminate himself is a problem for me. We cannot hand a blank cheque to a government that, to date, has not shown that it takes these matters seriously or that it values human rights. It has given the impression of being tough on crime, but has not acted logically, and we have seen no need, based on the facts, to alter sections that are as important as these.

This bill also proposes to amend sections 37 and 38 of the Canada Evidence Act, to reflect some but not all of the recommendations made by the Subcommittee on the Review of the Anti-terrorism Act of the House of Commons Standing Committee on Public Safety and National Security in its March 2007 report, in compliance with the judgment of the Federal Court of Canada in Toronto Star Newspapers Ltd. v. Canada.

It would also amend the definition of special operational information in the Security of Information Act to provide that the identity of a confidential source that is being used by the government would be considered, under that act, to be special operational information. What we have to understand is that this is an attempt to reduce to a minimum the transparency and exchange of information that ensure that everything is done in a manner that is consistent with the fundamental rights of Canadians.

It would also, in certain circumstances, increase the penalty provided for the offence of knowingly harbouring or concealing a person who has committed an offence under section 29 of the Security of Information Act.

As I said, this is not the first time the government has attempted to do this. This is the most recent in a series of anti-terrorism acts that started with Bill C-36, the anti-terrorism act introduced in 2001. That shows that this bill can be introduced in the House of Commons. Was the government too worried that common sense would prevail here in the House, and so it preferred to have the Senate clear the way for it? I have absolutely no idea, but it is disturbing to see bills as far-reaching as this one start out in the other place.

Some of the provisions of this bill were subject to a sunset clause and so they expired in February 2007. We have to understand that the Anti-terrorism Act was passed after the horrible events of September 2001. We should not be surprised that in the aftermath of an event that devastated our entire planet, when people were asking what kind of world they were living in, a decision was made to take certain measures.

I am not being partisan at all when I say that it is always extremely dangerous to make such fundamental decisions in law when everyone is hitting the panic button and wondering how to resolve a situation that initially seems entirely incomprehensible. That goes without saying. That may be how humans and politicians react, but it is definitely not a good way for a lawmaker to react.

In 2007, this act included certain sections that had to be reviewed because they were so-called "sunset clauses", which means that a period of time is allowed for implementation and that a re-evaluation is necessary. At least I can commend the politicians of the time who had the brilliant idea to submit that, or to resubmit it, to both houses, because it had to be submitted to both houses. This bill must be passed by both houses. Once again, incidentally, I am convinced that my colleagues opposite will tell me that it is of little importance whether it starts in the Senate or in the House of Commons; it has to be submitted to one place or the other. This time, it started in the Senate. However, this is a substantive bill, these are substantive decisions, and the views of the elected representatives of the people are more important in this matter than those of appointees and friends of the regime.

This bill has been under review since 2007. All kinds of attempts have been made to reactivate the provisions in question. To extend or reactivate those provisions that expired in 2007, both houses of Parliament must pass a resolution. Such a resolution was defeated by a vote of 159 to 124 in the House of Commons in February 2007 because the controversial provisions had never been used.

In my view, this is the second most important question in this matter. Why have provisions that have not been used suddenly become a necessity, without us even receiving the slightest answer from the government about why we need them in specific cases? Perhaps there is a lack of trust when it comes to sharing information, but they share it with no one in any case. Then they talk amongst themselves and count on us to give them carte blanche so they can do virtually anything. I think that is a major problem. That is why it was defeated by a vote of 159 to 124 in the House of Commons in 2007.

In addition, both Houses were supposed to conduct a full parliamentary review, either jointly or independently. The House of Comments and Senate reports were submitted in 2006 and 2007 respectively. The original aim of the Anti-terrorism Act was to update Canadian laws to meet international standards, particularly UN requirements, and to provide a legislative response to the events of September 11, 2001, as I said earlier. All the provisions of the Anti-terrorist Act, except for that concerning investigative hearings and recognizance with conditions, remain in effect today.

Consequently, we must not believe our colleagues opposite when they tell us that it is as though we have nothing to protect Canadians against terrorism. I repeat, there is an entire section in the Criminal Code, not to mention other acts of Parliament, that applies to terrorism. The sunset clause was added to the original bill because serious concerns had been raised during the legislative process in 2011. Those provisions were the most controversial. A great deal of wisdom was expressed in this House regarding concerns raised about the need to adopt such amendments to the Criminal Code.

I carefully read the evidence of the various witnesses who appeared before the Senate. I repeat that no witness said, based on any facts, that it was necessary to adopt the provisions in question. Some witnesses clearly told the Senate committee that there were major problems with regard to the protection of children's rights.

What will we do about minors living in these kinds of situations? Who will have precedence? Will it be the youth courts, which usually have exclusive jurisdiction over children under the age of 18? Will those provisions take precedence? There is a great deal of concern here. What rights are there? What do we do about the right not to incriminate oneself? What need is there for us to impose this kind of direction on a system in which we have no evidence of this kind of need? That is my major concern in this matter.

I already know what comments we will hear in and outside the House: that the official opposition is in favour of terrorists, against Canadians and against protection and public safety. That is false.

The Criminal Code, which I wholly support, already contains a section that protects Canadians. The message I am sending to Canadians listening to us is this: you must not believe that there is no protection. We have a system that protects Canadians. We can definitely give our specialized anti-terror police forces authority to gather evidence in order to establish a case. However, that does not mean we must set aside concepts as fundamental as the presumption of innocence, the right not to incriminate oneself, the right to be told quickly what we are accused of and the right to defend ourselves against those charges. We are not living in a military or police state in Canada. We have a system in which the rule of law prevails and in which the presumption of innocence is central to our values. That is important.

Coming back to my basic message, there is no balance in this bill between security and the fundamental rights of Canadians. As such, we cannot support this bill since it is unnecessary and full of holes, it introduces concepts foreign to our Canadian values, and it risks causing many more problems than it solves.

[Kerry-Lynne Findlay, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to participate in the second reading debate of Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.

This bill, among other things, seeks to re-enact the investigative hearing and recognizance with conditions provisions that were created in the Criminal Code by the Anti-terrorism Act in 2001, but that expired in March 2007 because of the operation of a sunset clause.

The proposed bill also responds to recommendations of the parliamentary review of the Anti-terrorism Act which took place between 2004 and 2007 and includes additional improvements to the Criminal Code, the Canada Evidence Act and the Security of Information Act.

Terrorism is an ongoing phenomenon that is rooted in deeply held hatred and insecurity. It is characterized by conduct which seeks not only to kill or harm, but also to commit acts for the deliberate purpose of instilling terror in the general population thereby destabilizing it.

Terrorism targets not only the individual but society generally and is an ongoing dangerous presence that every democratic society must continue to combat. Since the horrific events of 9/11, the absence of terrorist violence on Canadian territory does not preclude the possibility of a terrorist attack. Canada's solidarity with the international community of nations in the fight against terrorism has rendered Canada a potential target.

The first line of any response to terrorism must come from Parliament. It is our responsibility to lay down the rules by which terrorism is fought. We are responsible for tracing the difficult line between combatting terrorism and preserving liberties in a way that is effective and gives clear guidance to those charged with combatting terrorism on the ground.

Terrorism confronts democratic societies with a formidable challenge. On the one hand, terrorism must be prevented, fought and contained and those who commit terrorism offences must be brought to justice. On the other hand, states combatting and prosecuting terrorists must remain true to the fundamental principles upon which democracy and a free society are based.

In enacting the Anti-terrorism Act in 2001, Parliament showed due regard to the Canadian Charter of Rights and Freedoms. As a result, Canada's anti-terrorism provisions are notable for their safeguards and protecting fundamental human rights. These include the high mental fault or mens rea requirements that need to be proved beyond a reasonable doubt before a person can be convicted of a terrorism offence, such as knowledge or purpose. To date, these laws have led to several successful prosecutions in Canada, all the while preserving our fundamental values and the rule of law.

Bill S-7 continues in the same tradition. Bill S-7 seeks to re-enact, with some additional safeguards, the investigative hearing and recognizance with conditions provisions that expired in March 2007. These proposals incorporate some recommendations of the 2006 interim report of a House of Commons Subcommittee on the Review of the Anti-terrorism Act and the 2007 special Senate committee report on the Anti-terrorism Act, and include the Senate amendments made to former Bill C-17's predecessor, Bill S-3 in the 39th Parliament.

The investigative hearing provisions give a judge the power on application by a peace officer with the prior approval of the attorney general to require a person to appear before a judge and to answer questions about a past or future terrorism offence and to bring along anything in his or her possession. In order for the investigative hearing to take place, the peace officer must have reasonable grounds to believe that a terrorism offence has been or will be committed and reasonable grounds to believe that information concerning the offence or the whereabouts of a suspect is likely to be obtained or may be obtained, as the case may be, as a result of the order.

The objective of the hearing is to gather information from the person or to produce anything in the person's possession or control to assist in a terrorism investigation. Reasonable attempts must be made to obtain the information by other means and an individual has the right to retain and instruct counsel at any stage of the proceedings. Any information or testimony obtained during the investigative hearing or evidence derived from such information cannot be used in subsequent proceedings against the individual except in relation to a prosecution for perjury or for giving contradictory evidence.

Moreover, the Supreme Court of Canada has extended this last protection to extradition and deportation hearings. The provisions state that a person who is evading service of the order, is about to abscond or fails to attend an examination may be subject to arrest with a warrant.

However, subsection 83.29(4) incorporates section 707 of the Criminal Code, which sets out the maximum period of detention for an arrested witness so that there will now be clear limits as to how long a person arrested in such a case may be detained. Section 707 imposes 30-day detention periods up to a maximum of 90 days' detention for a witness who has been arrested and detained to ensure his or her appearance and giving of evidence.

The recognizance with conditions provision gives a judge the power, when certain criteria are met, to impose reasonable conditions on a person to prevent the carrying out of a terrorist activity. These criteria are that a peace officer believes on reasonable grounds that a terrorist activity will be committed and suspects on reasonable grounds that the imposition of the recognizance with conditions on a person is necessary to prevent that person or anyone else from carrying out a terrorist activity. A person who is ordered into a recognizance is required to keep the peace and to respect other reasonable conditions for up to 12 months. If the person fails or refuses to abide by the conditions, the judge can order that person to be imprisoned for up to 12 months. This penalty is comparable to the penalty for other peace bonds.

The recognizance with condition provision allows for a peace officer to arrest a person without a warrant in two circumstances: first, where the grounds to lay an information exist but there are exigent circumstances, or second, where an information has been laid and a summons has already been issued but the person has not yet appeared before the court. In both cases the peace officer must suspect on reasonable grounds that the detention of the person in custody is necessary to prevent a terrorist activity.

Once arrested, the presumption is that the person will be released once he or she appears before a judge. The person must be brought before a judge within 24 hours after arrest if a judge is available, or if a judge is not available, as soon as feasible thereafter. The onus is on the Crown to demonstrate why the person cannot be released pending the hearing, based on the specific grounds of detention set out in the provision. If the person is ordered detained by the judge, the hearing itself can be adjourned only for a further 48 hours. In his testimony before the Special Senate Committee on Anti-terrorism, Professor Kent Roach of the Faculty of Law at the University of Toronto stated that this 72-hour maximum period of detention is “restrained by comparative standards”.

Professor Roach also testified that he was pleased that the government had included reporting, parliamentary review and sunset provisions in the bill. I would like to talk for a few moments about these important safeguards.

Bill S-7 requires that Parliament review these provisions prior to the date they sunset. As part of this review process, Parliament would be able to examine the degree to which these provisions had been used successfully or unsuccessfully and would be able to make a determination, based on the available evidence, as to whether or not these provisions would continue to be needed. As well, the investigative hearing and the recognizance with conditions provisions are also subject to another sunset clause, which would result in their expiry after five years unless they were renewed by parliamentary resolution.

Finally, the proposals in the bill include annual reporting requirements by the federal government and the provinces on the use of these provisions, and the annual reports of the Attorney General of Canada and the Minister of Public Safety would include an additional requirement that they provide an opinion, supported by reasons, on whether the provisions should remain in force.

The special Senate committee noted in its observations in its final report the importance of Bill S-7 to Canada's ongoing efforts to prevent and deter terrorism both at home and abroad. The re-enactment of these important provisions would be an integral part of these efforts.

The Senate committee also adopted amendments to these two provisions. The first relates to the mandatory parliamentary review of the investigative hearing and the recognizance with conditions provisions. Whereas the English version had made it clear that the review was mandatory, the French version did not. As such, an amendment was adopted by the Senate committee to fix this.

The second amendment addresses the power to vary conditions imposed in a recognizance with conditions. The bill originally allowed only the judge who imposed conditions in the original recognizance to vary its conditions. The amendment now also allows any other judge of the same court to vary the conditions. This is in keeping with the scheme for investigative hearings and in other recognizance with conditions provisions in the Criminal Code.

While the terrorism threat continues, it is also evolving and transforming in ways that present new challenges. Another area of increasing concern and focus for this government is the recruitment of Canadians by terrorist groups, who urge them to travel overseas to fight and engage in terrorist activity, or these people may not have any links or connections to terrorist groups or activities and may in fact be acting alone.

The government recognizes that the complex nature of the problem necessitates a shared and comprehensive response. A primary responsibility of government is to protect all Canadians by detecting and countering the work of terrorists. We do this through intelligence gathering, criminal investigation and prosecutions, and our efforts in this area are guided by respect for fundamental human rights.

During the hearings of the Special Senate Committee on Anti-terrorism, witnesses from the Royal Canadian Mounted Police, the RCMP, and the Canadian Security Intelligence Service, CSIS, confirmed that their organizations were engaging communities in various ways to continuously build positive relationships in an effort to prevent radicalization leading to violence.

RCMP Assistant Commissioner Gilles Michaud testified that in the last year and a half there had been significant changes to the threat environment. He observed that it was increasingly complex and that political conflicts in other countries such as Libya and Syria might affect the security of Canadians both here and abroad.

CSIS Director Richard Fadden testified that CSIS was aware of at least 45 Canadians, possibly as many as 60, who had travelled or attempted to travel from Canada to Somalia, Afghanistan, Pakistan and Yemen to join al-Qaeda-affiliated organizations and engage in terrorism-related activities. He indicated that those people represent a threat both to the international community and Canada.

Bill S-7 responds to this threat by proposing to create new substantive offences, those of leaving Canada or attempting to leave Canada to commit various existing terrorism offences. The bill seeks to put in place specific offences to leave Canada or to attempt to leave Canada to knowingly participate in any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to carry out or facilitate a terrorist activity; to knowingly facilitate a terrorist activity; to commit an indictable offence for the benefit of, at the direction of, or in association with a terrorist group; or to commit an indictable offence that also constitutes a terrorist activity.

The offence of leaving Canada or attempting to leave Canada to participate in any activity of a terrorist group would carry a maximum penalty of 10 years' imprisonment. The other new offences would carry maximum penalties of 14 years' imprisonment.

These new offences would allow for the persons who go abroad either to receive training in terrorism or who wish to go abroad for such or to commit crimes in furtherance of terrorism to be charged with offences specifically tailored to catch this kind of harm. Moreover, these offences would provide for an appropriate level of punishment to be given for such conduct. In my view, these proposed new offences would help to strengthen the ability of our criminal law to combat terrorism and would send a strong deterrent message.

In addition, this bill proposes amendments to the Canada Evidence Act to reflect the 2007 judgment of the Federal Court in the case of Toronto Star Newspapers Ltd. v. Canada. The amendments would allow the Federal Court to order that the applications it hears with respect to the disclosure of sensitive or potentially injurious information could be made either in public or in private. This amendment would increase the flexibility in the court process as well as enhance transparency.

Also, Bill S-7 responds to the final report of the House of Commons Subcommittee on the Review of the Anti-terrorism Act by reducing the duration of a certificate prohibiting the disclosure of information from 15 to 10 years. Pursuant to section 38.18 of the Canada Evidence Act, the Attorney General of Canada can personally issue a certificate prohibiting the disclosure of information for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or for the purpose of protecting national defence or national security. After expiry, the certificate may be reissued by the Attorney General of Canada if the requirements under the Canada Evidence Act are met.

As well, under the Canada Evidence Act the Attorney General of Canada may issue a fiat to take over any prosecution where sensitive or potentially injurious information, as defined in the Canada Evidence Act, may be disclosed. This bill would also implement the House of Commons subcommittee's recommendation to require the Attorney General of Canada to table an annual report in Parliament on the usage of the fiat and certificate provisions. I would note that neither the certificate nor the fiat has been used to date.

Canadians expect their government to have in place the appropriate legal framework to prevent and deal effectively with terrorism and those who threaten our safety. Bill S-7 would be an important enhancement to Canada's counter-terrorism efforts and I urge speedy passage of this valuable piece of anti-terrorism legislation.

[Gail Shea, Conservative, Egmont, PE]

moved 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.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I will begin by addressing Bill S-11, the food safety bill. It was introduced by this government in the Senate to bring about changes that would strengthen our food safety system further following the implementation of the 57 recommendations of the Weatherill report, which further strengthened our system.

I believe the comments, to which the member referred, by the Conservative caucus were not about the NDP obstructing the bill in the Senate but rather about statements that had been made by NDP members previously following the introduction of the bill that the NDP would oppose the bill. Of course, the issue we are looking forward to is having it pass successfully in the Senate. We hope that people will see the urgency more clearly, that we will get the support of the Liberals and that we will see its rapid passage here in the House. We would be delighted if we had support to do that very quickly from the NDP and other parties.

Now for the business ahead of us.

This afternoon, we will continue our safe streets and communities week with second reading debate on Bill C-43, Faster Removal of Foreign Criminals Act.

In last year's election, the Conservative Party promised to put a stop to foreign criminals relying on endless appeals in order to delay their removal. This bill follows through on our commitment to Canadians.

We will resume debate tomorrow, when I am optimistic, based on discussions, that debate will end—and, then, we will have concluded the first three weeks of our hard-working, productive and orderly fall sitting.

On our constituency week, I hope all members of Parliament and staff in this place will have an opportunity relax. Many of our pages will have their first opportunity to go home since they started the year here. I hope on our return we will all be ready to be productive and work hard because we have much to do.

On Monday, October 15, before question period, the House will start the second reading of Bill S-7, the combating terrorism act. We will also debate this bill on Wednesday and Friday of that week. This, of course, is designed to continue to make Canada and, in fact, the whole world, a safer place.

After question period on October 15, we will kick-off debate on Bill S-9, the nuclear terrorism act, which shares the same objectives. It would implement Canada's international obligations under the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Acts of Nuclear Terrorism.

Tuesday, October 16, shall be the fifth allotted day, which will see the House debate a Liberal motion. We eagerly await the content of that motion.

Thursday, October 18, shall be the sixth allotted day when we will consider the New Democratic proposal.

It is my personal hope that having given the NDP three chances already this fall to articulate to the House and to all Canadians how it will implement its $21.5 billion job killing carbon tax that it will finally choose this as its subject for debate. I hope the NDP members will seize that opportunity and let Canadians know once and for all the fine details of their scheme to raise the price of gas, groceries, electricity and winter heat.

Should we have additional time that week upon our return, or even this week if we move quickly, the House will also consider second reading of Bill C-37, the increasing offenders' accountability for victims act; Bill C-15, the strengthening military justice in the defence of Canada act; Bill S-2, the family homes on reserves and matrimonial interests or rights act; and Bill S-8, the safe drinking water for first nations act.

Of course, I am always open to suggestions from the opposition. If they are willing to accelerate any of those bills for quick passage, I will call them.

Finally, I wish everyone here a happy Thanksgiving. I hope that everyone has a productive and hard-working week working with their constituents.

Extension of Sitting Hours

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

moved:

That, pursuant to Standing Order 27, the ordinary hour of daily adjournment shall be 12 midnight, commencing on Monday, June 11, 2012, and concluding on Friday, June 22, 2012, but not including Friday, June 15, 2012.

Today I rise to make the case for the government's motion to extend the working hours of this House until midnight for the next two weeks. This is of course a motion made in the context of the Standing Orders, which expressly provide for such a motion to be made on this particular day once a year.

Over the past year, our government's top priority has remained creating jobs and economic growth.

Job creation and economic growth have remained important priorities for our government.

Under the government's economic action plan, Canada's deficits and taxes are going down; investments in education, skills training, and research and innovation are going up; and excessive red tape and regulations are being eliminated.

As the global economic recovery remains fragile, especially in Europe, Canadians want their government to focus on what matters most: jobs, economic growth and long-term prosperity. This is what our Conservative government has been doing.

On March 29, the Minister of Finance delivered economic action plan 2012, a comprehensive budget that coupled our low-tax policy with new actions to promote jobs and economic growth.

The 2012 budget proposed measures aimed at putting our finances in order, increasing innovation and creating suitable and applicable legislation in the area of resource development in order to promote a good, stable investment climate.

The budget was debated for four days and was adopted by the House on April 4. The Minister of Finance then introduced Bill C-38, Jobs, Growth and Long-term Prosperity Act, the 2012 budget implementation bill. The debate at second reading of Bill C-38 was the longest debate on a budget implementation bill in at least two decades, and probably the longest ever.

On May 14, after seven days of debate, Bill C-38 was passed at second reading.

The bill has also undergone extensive study in committee. The Standing Committee on Finance held in-depth hearings on the bill. The committee also created a special subcommittee for detailed examination of the bill's responsible resource development provisions. All told, this was the longest committee study of any budget implementation bill for at least the last two decades, and probably ever.

We need to pass Bill C-38 to implement the urgent provisions of economic action plan 2012. In addition to our economic measures, our government has brought forward and passed bills that keep the commitments we made to Canadians in the last election.

In a productive, hard-working and orderly way, we fulfilled long-standing commitments to give marketing freedom to western Canadian grain farmers, to end the wasteful and ineffective long gun registry, and to improve our democracy by moving every province closer to the principle of representation by population in the House of Commons.

However, in the past year our efforts to focus on the priorities of Canadians have been met with nothing but delay and obstruction tactics by the opposition. In some cases, opposition stalling and delaying tactics have meant that important bills are still not yet law. That is indeed regrettable.

In the case of Bill C-11, the copyright modernization act, a bill that will help to create good, high-paying jobs in Canada's creative and high-tech sectors, this House has debated the bill on 10 days. We heard 79 speeches on it before it was even sent to committee. This is, of course, on top of similar debate that occurred in previous Parliaments on similar bills.

It is important for us to get on with it and pass this bill for the sake of those sectors of our economy, to ensure that Canada remains competitive in a very dynamic, changing high-tech sector in the world, so that we can have Canadian jobs and Canadian leadership in that sector.

Bill C-24 is the bill to implement the Canada-Panama free trade agreement. It has also been the subject of numerous days of debate, in fact dozens and dozens of speeches in the House, and it has not even made it to committee yet.

Bill C-23 is the Canada-Jordan economic growth and prosperity act. It also implements another important job-creating free trade agreement.

All three of these bills have actually been before this place longer than for just the last year. As I indicated, they were originally introduced in previous Parliaments. Even then, they were supported by a majority of members of this House and were adopted and sent to committee. However, they are still not law.

We are here to work hard for Canadians. Adopting today's motion would give the House sufficient time to make progress on each of these bills prior to the summer recess. Adopting today's motion would also give us time to pass Bill C-25, the pooled registered pension plans act. It is a much-needed piece of legislation that would give Canadians in small businesses and self-employed workers yet another option to help support them in saving for their retirement. Our government is committed to giving Canadians as many options as possible to secure their retirement and to have that income security our seniors need. This is another example of how we can work to give them those options.

In addition to these bills that have been obstructed, opposed or delayed one way or another by the opposition, there are numerous bills that potentially have support from the opposition side but still have not yet come to a vote. By adding hours to each working day in the House over the next two weeks, we would allow time for these bills to come before members of Parliament for a vote. These include: Bill C-12, safeguarding Canadians' personal information act; and Bill C-15, strengthening military justice in the defence of Canada act. I might add, that bill is long overdue as our military justice system is in need of these proposed changes. It has been looking for them for some time. It is a fairly small and discrete bill and taking so long to pass this House is not a testament to our productivity and efficiency. I hope we will be able to proceed with that.

Bill C-27 is the first nations financial transparency act, another step forward in accountability. Bill C-28 is the financial literacy leader act. At a time when we are concerned about people's financial circumstances, not just countries' but individuals', this is a positive step forward to help people improve their financial literacy so all Canadians can face a more secure financial future. Bill C-36 is the protecting Canada's seniors act which aims to prevent elder abuse. Does it not make sense that we move forward on that to provide Canadian seniors the protection they need from those very heinous crimes and offences which have become increasingly common in news reports in recent years?

Bill C-37 is the increasing offenders' accountability for victims act. This is another major step forward for readjusting our justice system which has been seen by most Canadians as being for too long concerned only about the rights and privileges of the criminals who are appearing in it, with insufficient consideration for the needs of victims and the impact of those criminal acts on them. We want to see a rebalancing of the system and that is why Bill C-37 is so important.

Of course, we have bills that have already been through the Senate, and are waiting on us to deal with them. Bill S-2, which deals with matrimonial real property, which would give fairness and equality to women on reserve, long overdue in this country. Let us get on with it and give first nations women the real property rights they deserve. Then there is Bill S-6, first nations electoral reform, a provision we want to see in place to advance democracy. Bill S-8 is the safe drinking water for first nations act; and Bill S-7 is the combatting terrorism act.

As members can see, there is plenty more work for this House to do. As members of Parliament, the least we can do is put in a bit of overtime and get these important measures passed.

In conclusion, Canada's economic strength, our advantage in these uncertain times, and our stability also depend on political stability and strong leadership. Across the world, political gridlock and indecision have led to economic uncertainty and they continue to threaten the world economy. That is not what Canadians want for their government. Our government is taking action to manage the country's business in a productive, hard-working and orderly fashion. That is why all members need to work together in a time of global economic uncertainty to advance the important bills I have identified, before we adjourn for the summer.

I call on all members to support today's motion to extend the working hours of this House by a few hours for the next two weeks. For the members opposite, not only do I hope for their support in this motion, I also hope I can count on them to put the interests of Canadians first and work with this government to pass the important bills that remain before us.

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

I'm sorry, but I haven't read Bill S-7, to be quite honest. Is there a provision for review of decisions on restricting freedom to travel in that legislation?

[John Davies]

I believe that's under Bill S-7, which is updating the Anti-terrorism Act. There's a provision for travelling for the purpose of terrorism, which is clarifying the legal—

Combating Terrorism Act

[Gordon O'Connor, Conservative, Carleton—Mississippi Mills, ON]

moved for leave to introduce Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.

(Motion agreed to and bill read the first time)