Thank you very much, Mr. Chair.
I would like to thank the subcommittee for inviting me to appear to discuss this important legislation. I'd also like to indicate that I have two officials here, Bill Pentney and Doug Breithaupt, who are both officials in my department and who perhaps can answer some of the more technical issues that I cannot address.
I know that some of you were involved in the review of the Anti-terrorism Act in the last Parliament, a review that was interrupted by the election. Others among you are new to this particular study, although I've no doubt that your experience and expertise will contribute significantly. The Minister of Public Safety and I both look forward to your comments and recommendations.
The Anti-terrorism Act is divided into various parts that deal with the Criminal Code, the Security of Information Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, amendments to other acts, and the enactment of the Charities Registration (Security Information) Act. The act includes comprehensive measures to prevent and suppress terrorism. It permitted Canada to become a party to UN treaties against terrorist bombings and terrorist financing, as well as the Convention on the Safety of the United Nations and Associated Personnel. It has also allowed Canada to comply with various UN Security Council resolutions and with other international commitments. So it's very important in that international context.
We need to be sensitive to the concerns raised by various communities in Canada, and I want to make it clear that it is terrorism that is the target of this legislation, and not any particular ethnic or religious group.
The Anti-terrorism Act includes key provisions of the Criminal Code to address acts of hatred, and it clarifies that the communication of hate messages using new technologies, such as the Internet, is a discriminatory practice under the Canadian Human Rights Act. The act is a key element of our legislative framework for combating terrorism. It represents an effective, measured, and proportionate response to the terrorist threat.
Some may suggest that the Anti-terrorism Act is unnecessary. I strongly disagree. The emphasis on preventing and pre-empting terrorism attacks is an important feature of the act. Evidence of this preventative approach can be seen in the range of offences, which aim at dismantling and disabling the terrorist network itself, as well as in tools such as recognizance with conditions and investigative hearings. As I have stated elsewhere, the act's emphasis on prevention continues to be necessary. For example, for those persons who are willing to kill themselves in order to commit terrorist crimes, after-the-fact deterrence is no punishment whatsoever.
In addition, as to the importance to be accorded to the prevention of terrorism and how it differs from organized crime, I refer you to the testimony of Lord Carlile, the independent reviewer of the U.K. anti-terrorism laws, given to your predecessor committee last year.
Let me briefly address one aspect of the Anti-terrorism Act that I commented on last week: the motive requirement of the “terrorist activity” definition. As I've said elsewhere, the motive requirement is an additional element that must be proven by the prosecution. I recognize that some previous witnesses have expressed concern that the motive requirement could be perceived as singling out particular groups in our society. Indeed, I stated that on prior occasions while I was in opposition.
The motive requirement narrows the definition of terrorist activity and prevents the terrorism offences from expanding into other areas of the Criminal Code. I would be interested in the committee's comments on the elimination of that motivation requirement, or indeed on redefining terrorist activity, perhaps along the lines of what the French, the Americans, or the Germans have done, without reference to political, religious, or ideological motivation. But the law's approach to this issue--and I'm speaking about this specific law as opposed to this issue--has included a great deal of caution against laws that are overly broad.
I do, however, note the RCMP commissioner's very recent comments in respect of the motivation requirement, and I would commend his testimony to you in that respect.
I will now turn to two provisions of the Anti-terrorism Act that will cease to apply in early 2007 unless their application is extended by a resolution passed by both Houses of Parliament. I respectfully submit to this subcommittee that both provisions should be extended.
First, the act provides for the imposition of recognizance orders. This has sometimes been called preventative arrest, but in fact the power of the police to arrest a person without warrant, and to bring him or her before a judge to have conditions imposed, is quite limited in scope. Generally, before this provision may be used, the relevant Attorney General must first consent to its use. After obtaining this consent, a peace officer then lays information before a provincial court judge.
The peace officer may only do this if two conditions are met. First, he or she must believe on reasonable grounds that a terrorist activity will be carried out. Second, he or she must suspect on reasonable grounds that the imposition of a recognizance with conditions, or the arrest of the person, is necessary to prevent the carrying out of the terrorist activity. The judge then causes the person to attend before him or her, for example, by issuing a summons.
This provision is only available under strictly defined conditions, and is subject to numerous procedural safeguards. The object of this provision is to assist law enforcement officers in disrupting terrorist attacks, and the onus is always on the state to justify the imposition of conditions. If the court is not satisfied that conditions are necessary, the subject is released.
The imposition of conditions to prevent offences before they occur is not exceptional in Canadian law. Conditions are imposed when a person charged with an offence is released on bail. The recognizance provision of the Anti-terrorism Act are based on the recognizance powers of section 810 of the Criminal Code, which are intended for use in dealing with domestic violence, organized crime, and serious sexual offences. Those provisions have consistently been found to comply with the Charter of Rights and Freedoms.
The other provision that needs to be extended before next year is the power to hold investigative hearings under the Criminal Code. Where there are reasonable grounds to believe that a terrorism offence has been or will be committed, a court may issue an order for the gathering of information. A peace officer may only apply for this order after obtaining the consent of the relevant Attorney General. If the order is granted, the judge may order a person to attend a hearing before a judge, answer questions, and bring along any relevant documents or items in their possession.
An investigative hearing is not a criminal prosecution. The person compelled to appear is not an accused, but a witness. In that sense, it's very similar to the American grand jury proceeding. The provision explicitly states that the person appearing has the right to counsel. The process is for the purpose of gathering information that may assist the investigation and prevention of terrorism offences.
At such a hearing the charter right against self-incrimination is fully enforced. The subject may be compelled to answer questions, but any information or thing entered into evidence, or evidence derived from the evidence obtained from the person, cannot be used to prosecute the person for any offence except perjury or the giving of contradictory evidence. There is also protection from the disclosure of privileged information.
As you know, the Supreme Court of Canada in June 2004 upheld the constitutional validity of the investigative hearing provisions. The Supreme Court has noted that the protection against self-incrimination actually goes beyond charter requirements. This is not an unprecedented procedure, and other jurisdictions have more extensive or similar procedures.
Some witnesses before this committee's predecessor argued that these two powers should not be renewed because they have hardly been used at all. However, the frequency of the use of these provisions is not the measure of their importance. Numerous provisions in our Criminal Code are infrequently employed. The hate crimes provisions and the offences of hijacking or treason come to mind. They are nevertheless still an essential part of our criminal legislative framework.
As the Supreme Court of Canada has stated, the challenge for a democratic state's answer to terrorism calls for a balancing of what is required for an effective response to terrorism in a way that appropriately recognizes the fundamental value of the rule of law. A response to terrorism within the rule of law preserves and enhances the cherished liberties that are essential to democracy.
The Anti-terrorism Act was carefully constructed to protect Canadians against national security threats, while continuing to respect and promote the values reflected in the rights and freedoms guaranteed in the Charter of Rights and Freedoms. It is a complex balance, but one that I believe is effectively accomplished in the Anti-terrorism Act. This legislation is part of a sophisticated tapestry designed with the express goal of protecting our fundamental freedoms and preserving our democratic values.
The importance of this law cannot be stressed enough. We need tools to fight acts of terrorism when they occur. We have seen that the likelihood of such acts is indeed real. Canadians must feel certain their government has done all that is necessary to protect them from terrorism, while respecting their individual freedoms.
We look forward to your recommendations as we continue to look for ways to improve the operation of the Anti-terrorism Act. I wish you every success in the completion of the important work before you. I would be pleased to receive your comments and questions.
Thank you.