Evidence of meeting #47 for Public Safety and National Security in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was provisions.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Denis Barrette  spokesperson, International Civil Liberties Monitoring Group
Ihsaan Gardee  Executive Director, Canadian Council on American-Islamic Relations
Paul Copeland  Lawyer, Law Union of Ontario
Craig Forcese  Associate Professor, Faculty of Law, University of Ottawa
James Kafieh  Legal Counsel, Canadian Islamic Congress
Khalid Elgazzar  Member of the Board of Directors, Canadian Council on American-Islamic Relations

4:20 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

I really struggle, and I think we all do a bit, with the reintroduction of this bill, especially when we consider that the provisions have never been used to combat terrorism. Perhaps they have been used to penalize or punish terrorists after something has happened, but not to combat or to prevent it.

If I may address the question to you, Mr. Forcese, through the chair, am I correct in understanding that you are an expert on anti-terrorism law? Is that your area of expertise?

4:20 p.m.

Associate Professor, Faculty of Law, University of Ottawa

Prof. Craig Forcese

I teach national security law.

4:20 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

Thank you.

You note on page 1 that you have doubts that Bill C-17 would prove very useful to law enforcement in practice. Could you elaborate a bit on your doubts as to whether this bill would really change very much about how law enforcement operates?

December 13th, 2010 / 4:20 p.m.

Associate Professor, Faculty of Law, University of Ottawa

Prof. Craig Forcese

My comments on that issue relate to the recognizance with conditions provision, known colloquially as preventive detention. My assessment of this provision, which I think has been more or less confirmed through conversations with law enforcement, is that if this provision were used--that is, to detain someone pending the imposition of a peace bond--then the investigation would have come to an end. You have alerted the terrorist cell you're investigating that they've been discovered, all for the benefit of up to 72 hours of preventive detention and a peace bond, which doesn't amount to full-out incarceration.

It would be unpopular in relation to an ongoing investigation and perhaps very damaging to an ongoing investigation to use this provision. At best it would be used as a last-gasp measure. The law enforcement community, when it appeared in front of the Senate on Bill S-3, which is a prior iteration of this bill, indicated that it can't anticipate and foresee every eventuality and that it is possible that there would be circumstances in which this bill and the preventive detention provision might actually be useful. I can't exclude that possibility; it may well arise, but I think it would be a very unusual circumstance.

The other consideration, of course, is that once this matter comes to court, as it inevitably will, this is an open court process, so law enforcement would have to be prepared to disclose the evidence or information upon which it depends to justify the standard for the detention to begin with. That means it would be unwilling to use security intelligence or intelligence sources of any sort. We're talking about a range of circumstances in which law enforcement has given up on an investigation and is prepared to use potentially confidential information in an open forum. Because of that, for those two reasons, I think that this provision would be used very infrequently.

4:20 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

Would it even undermine our objective of combatting or preventing terrorism?

4:20 p.m.

Associate Professor, Faculty of Law, University of Ottawa

Prof. Craig Forcese

It would undermine the anti-terrorism investigation if it were used uncritically. Because law enforcement would not, I assume, generally wish to undermine their investigations, this would not be the first tool they would turn to. It would be a very uncommon tool, I would think.

4:25 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

Do you think that law enforcement at the moment has enough appropriate tools to combat terrorism?

4:25 p.m.

Associate Professor, Faculty of Law, University of Ottawa

Prof. Craig Forcese

Yes and no. For the most part, I think some of the statements that have been made about the extent to which we need a pre-emptive mechanism discounts the extent to which our criminal law now actually encompasses, as terrorism offences, actions which are very far removed from acts of violence. There are mere acts of preparation that are now criminalized, so that broadens the scope of law enforcement activity and the prospects for arrest in conventional criminal prosecutions.

However, as Paul suggested and as was indicated before, I actually think there is a gap, a very narrow gap. In my paper I set out a series of hypotheticals in which this gap may arise. It's a very small gap, but I accept the argument made by law enforcement that such a gap exists.

4:25 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

What would be the best tool that would close that gap?

4:25 p.m.

Associate Professor, Faculty of Law, University of Ottawa

Prof. Craig Forcese

Essentially, I accept that there are circumstances in which conventional criminal arrest would be unavailable, in which the conventional rules on search and seizure would not necessarily mitigate the security risk, and in which in which law enforcement may actually have a bona fide reason to want to do something. The law does not provide for any avenue at present for them to do anything. That's the gap in which I think a system of carefully tailored preventive attention might be usefully deployed.

I leave open the question as to whether Bill C-17 is the best way of filling that narrow gap. I've already outlined some of my concerns about the practical implications of using it. I do accept the argument, however, that there is a very narrow, slender gap that right now is not filled by conventional law enforcement tools.

4:25 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

The recommendation made by the House of Commons subcommittee on the review of the Anti-terrorism Act was that this investigative hearing provision only be used when there's imminent peril. Would that be a way of circumscribing the use of this provision?

4:25 p.m.

Associate Professor, Faculty of Law, University of Ottawa

Prof. Craig Forcese

I was speaking about preventive detention. On investigative hearings, I don't have any difficulty with the idea of narrowing its scope. My understanding of the committee proceedings in the review of the Anti-terrorism Act was that they wanted it to be used prospectively rather than retrospectively; that is, they wanted it focused on upcoming events as opposed to being used as a tool to investigate what happened in the past.

I see some sense to that, in the sense that it is an extraordinary provision for retrospective investigations when conventional criminal investigation tools are available to you. Given the possible outcomes of mass-casualty terrorism events, prospective investigations seem to be the only type of circumstance in which the extraordinary powers of investigative hearings might be reasonable. I don't have any difficulty with that idea.

4:25 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you very much, Mr. Forcese and Madam Mendes.

We'll move to Madame Mourani.

4:25 p.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

Thank you, Mr. Chairman.

I would like to begin by thanking all the witnesses for being here today to give us the benefit of their expertise.

One question has intrigued me from the very beginning. Has this legislation been used since it was introduced? My question is addressed to all of you.

4:25 p.m.

Lawyer, Law Union of Ontario

Paul Copeland

I will say that at the outset that the only time it's been used was to have an investigative hearing in regard to Mrs. Reyat to see what she would say in the Air India trial.

4:25 p.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

And was it effective?

4:25 p.m.

Lawyer, Law Union of Ontario

Paul Copeland

No, it was totally ineffective. They never got past going to the Supreme Court of Canada to determine whether it was constitutional. As far as I know, she never testified at an investigative hearing. They tried to do it in the middle of the trial, and that was one of the reasons. Not having had a preliminary hearing and a direct indictment, they didn't know what she was going to say. If they'd had a preliminary hearing, they could have called her as a witness and found out in advance what she was going to say at the trial.

4:25 p.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

So, there have been attempts to use the legislation but, in the end, it proved to be useless. That is what I understood you to say.

4:25 p.m.

Lawyer, Law Union of Ontario

Paul Copeland

It was useless and it was used in a manner that nobody contemplated it would be used. Nobody ever talked about being in the middle of a trial and not knowing what a witness was going to say, so they held an investigative hearing to find out what she was going to say.

4:30 p.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

If I'm not mistaken, Mr. Copeland, according to what you and others have said, under the current code, authorities would be perfectly capable of controlling a potential terrorist attack or conspiracy. In fact, conspiracies are already covered under the Criminal Code; so, we don't need to reinvent the wheel and we don't really need a special provision to cover terrorism.

4:30 p.m.

Lawyer, Law Union of Ontario

Paul Copeland

For me to answer that question, you'll have to tell me where you are in the process. If you're talking about a bunch of people who are charged with conspiracy to commit a terrorist act, I don't see why you're going to need it. Presumably you would have the evidence before you arrest them.

I haven't seen a circumstance in which the investigative hearing would help. As Professor Forcese says, you are revealing your investigation as soon as you grab somebody. Presumably, everybody who might have been involved is going to either take off or stop—probably both.

4:30 p.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

It seems to me that there is already enough in the Criminal Code that we can use.

Mr. Forcese, earlier you talked about a gap in the law. Could you be more specific, please? What exactly do you mean by that?

4:30 p.m.

Associate Professor, Faculty of Law, University of Ottawa

Prof. Craig Forcese

This is the narrow gap that I was speaking about.

The way Bill C-17 is crafted for preventive detention allows law enforcement, when they have reasonable grounds to believe there is going to be a terrorist attack, to detain persons if they have reasonable suspicion to believe detaining them will forestall that terrorism attack. Conventional criminal law usually allows a person to be detained only when there are reasonable grounds, so the virtue from a law enforcement perspective is that it lowers the threshold for when someone can be detained for this finite period of time.

In my paper I speculate on when a situation may arise in which law enforcement believes there might be an imminent terrorist attack but may not have enough concrete evidence to single out an individual and to rise to the level of reasonable grounds to detain that person. They just have a suspicion about that person.

4:30 p.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

A suspicion. Yes. Exactly.

4:30 p.m.

Associate Professor, Faculty of Law, University of Ottawa

Prof. Craig Forcese

In my view, that seems to fill a gap, and I gave some facts to imagine a scenario in which that situation that might arise.

Does that answer your question?