Thank you, Mr. Chairman, and members of the committee.
In these submissions, I take no view on the desirability of Bill C-17 in its present form. As Mr. Copeland mentioned, I have written a lengthy paper setting out my support for a limited, carefully restricted form of short-term preventive detention in Canadian law as a last-gasp tool for law enforcement in confronting a reasonable fear of a serious act of terrorist violence, which does not include a fellow walking around with a padded coat on Parliament Hill.
That paper enumerates features designed to render such a system effective while at the same time remaining compliant with civil liberties expectations found in international and Canadian law. I believe the system of preventive detention that is part of Bill C-17's recognizance with conditions power is modest as compared with its closest international analogues. I have doubts that it would prove very useful to law enforcement in practice, but I also believe that efforts to render the provision more effective as a law enforcement tool would have to be buttressed by inclusion of more robust civil rights checks and balances. Such efforts would require reconsideration of the basic architecture of this bill, a task for which I suspect there is little appetite or time in this committee.
I have more acute concerns about the reach of the actual recognizance provisions--that is, the peace bond. Not least, there is very little clear guidance in the bill and in the constitutional jurisprudence on the reach of the conditions that can be imposed via such a peace bond. If the practice under the immigration security certificate regime is any indication, anti-terrorism-related conditions may be quite strict and may be intrusive on liberty.
I have in the past urged parliamentary consideration of the kinds of stricture that may be imposed via a peace bond in the context of both this and predecessor bills and in the parallel provisions in section 810.01 of the Criminal Code. Again, such a review would require sustained scrutiny by this committee. In the absence of such a time-intensive review, I believe there is at least one change that this committee should make to this bill, one related to the investigative hearing provisions.
Bill C-17 is in essence a reimplementation of the original provisions found in the 2001 Anti-terrorism Act. However, developments in constitutional law since 2001 mean that the provisions found both in that original statute and now also in Bill C-17 cannot be read literally. They must be read with an eye to the constitutional jurisprudence of the Supreme Court if they are to be applied in a constitutionally acceptable manner.
Put another way, Parliament is proposing enacting legislation that cannot be read alone. Those applying it must now be expected to have the legislation in one hand and the volumes of the Supreme Court reports in the other. This, in my view, is an invitation to confusion and is fundamentally inconsistent with what I see to be the role of legislation: to provide clear instruction on the applicable law.
Turning specifically to the amendment that seems necessary to satisfy this concern, as you know and as Paul mentioned, in 2004 the Supreme Court examined the 2001 investigative hearing provisions and ultimately concluded that they were constitutional. However, in doing so, the Supreme Court read in certain requirements in the use of investigative hearings, the most important being an expansion of what's known as “derivative use immunity”, guaranteed in the present bill by proposed subsection 82.28(10).
While that clause extends immunity to subsequent criminal proceedings, the Supreme Court said it must go further than that. It cannot be used in any kind of proceeding, including extradition and immigration proceedings. This is a constitutional requirement, and it should be codified right on the face of the bill.
I will stop there. I am happy to address this or any other issues and questions.