Among the provisions of that legislation were the investigative hearing and recognizance with conditions powers that are now reintroduced in Bill C-17. This time the war-on-terror hysteria has largely dissipated.
With regard to investigative hearings, this provision bears strong resemblance to the Star Chamber of old. Although the present legislation conveys an air of protection from self-incrimination for individuals compelled to appear, this protection is easily lost when two or more persons are so rounded up. For example, two or more persons may find themselves prosecuted not on the basis of information they gave but on the basis of information they gave about each other.
To avoid an end run on the centuries-old right of persons to remain silent and to be protected from self-incrimination, the investigative hearing powers should include the granting of immunity from prosecution for compelled persons on matters about which they provide only truthful information. In short, persons would then be strongly motivated to tell the truth, the whole truth, and nothing but the truth. What more do we legitimately want?
We also need to bear in mind that not everyone who chooses to remain silent in such circumstances is guilty, and that choosing to remain silent is not an admission of guilt or a proof of guilt. People may, for example, have legitimate concerns for themselves, their families, and their communities.
Such an extraordinary measure as investigative hearings should only be used for the purpose of preventing an imminent act of terrorism. It should never be used as an investigative tool for past acts. The present text of Bill C-17 allows for investigative hearings for past events, for which the imperative of safeguarding of innocent life from imminent attack is wholly absent. This is, in itself, an escalation from the previous form of this provision. Such an escalation shows that we are already witnessing creep in the use of such provisions before the court.
In addition, the investigative hearing provision fundamentally alters and distorts our system of justice in that it places prosecutors in the role of investigators and places the judiciary in a position of presiding over a criminal investigation.
With regard to recognizance with conditions, Professor Craig Forcese's paper, entitled “Catch and Release”, quotes justice laws of the English Court of Appeal as stating that the most fundamental, and probably the oldest, most hardly won, and most universally recognized of human rights is freedom from executive detention, yet it is this very right that is being negated by Bill C-17. Recognizance with conditions allows a peace officer, with prior consent of the Attorney General, to lay an information before a provincial court judge if he or she believes that a terrorist act will be carried out and suspects that the imposition of a recognizance with conditions or the arrest of a person is required to prevent it.
This provision allows for the arrest and detention of people without ever proving any allegation against them. It could also make people subject to conditions on release with severe limitations on their personal freedom, even if they have never been convicted of any crime. Anyone refusing to accept and comply with the terms of the recognizance may be imprisoned for up to 12 months. The legislation does not limit the number of times this provision may be reapplied.
How is this consistent with our Canadian values and the principles upon which our system of justice is founded? Canadians have the example of security certificates to understand the impact that this kind of provision can have. The most recent cases of five men who were detained for up to eight years without ever being charged or convicted of a crime should give us all cause for concern.
Bill C-17 creates a legal regime in which all Canadians will be subject to measures indistinguishable from those of the now largely discredited security certificates that were limited for use only against immigrants and refugee applicants.