Evidence of meeting #49 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.
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
It could be used to obtain information from potential witnesses who might be reluctant to provide information to the police or to the authorities voluntarily, or who may be afraid to provide information voluntarily but would be willing do so if they were compelled to do so.
Bloc
Maria Mourani Bloc Ahuntsic, QC
I asked you a question: why were these powers not used, if they're so important? The gentleman explained to me the whole procedure again. My question is simple: if they are so important, why have the powers never been used?
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
Thank you very much, Mr. Chair.
I always begin by letting the folks at home know what we're doing and why we're doing it. Having been on the subcommittee on anti-terrorism subsequent to the sunset clause and our government taking power, I can tell you, for those folks who don't know, that the reason we have an anti-terrorism act is a direct result of a United Nations resolution. I believe it was resolution 1373, which was in 2001. It responded directly to the 9/11 act of terrorism that the whole world responded to.
That resolution demanded that member nations take certain steps within 90 days to prevent the financing of terrorism, to protect their citizens, to make their borders more difficult to be infiltrated by terrorists, etc. As a result, Parliament subsequently passed the Anti-terrorism Act under the previous government.
My question flows from some of those regulations. Part of that Anti-terrorism Act gave certain powers that had never been used before or had never even been contemplated before, powers that some folks thought ran contrary to the Canadian Charter of Rights and Freedoms. Subsequent to that, the Supreme Court ruled--I believe it was prior to 2007--that this section needed some improvement, and it gave the government a certain amount of time.
As a result of that time to correct--and you can correct me if I'm wrong, and there may be some adjustments to my process--the reason you're here today is that the Government of Canada is responding to the directives of the Supreme Court to ensure that the part of the law we're dealing with, the Anti-terrorism Act, does indeed comply. The Supreme Court did mention--and feel free to elaborate on that--that while it does contravene the Canadian Charter of Rights and Freedoms, there's a certain allowance for it because of the history and nature of terrorism.
There are provisions and protections, and the minister went into some of them. I suppose I'm saying that the proposed provisions were crafted with due regard to the Charter of Rights and Freedoms.
Would you, once again, let us know some of the balances or checks on the state to ensure that a person who has been detained or is subject to recognizance with conditions or investigative hearings has protections that were built in as a result of that Supreme Court dictum?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
Thank you.
Let me first start by answering the last question, Ms. Mourani's question, because it leads into yours.
Have the provisions ever been used? Yes, one of the provisions was used. That was the investigative hearing provision. It was used in the course of the Air India trial; an investigative hearing was commenced. During the course of the hearing, a challenge was made that the provision was unconstitutional. The issue went all the way up to the Supreme Court of Canada. The Supreme Court of Canada held that the provisions concerning investigative hearings were constitutional.
I believe the case that you were referring to was dealing with security certificates. It was the Supreme Court, on security certificates, that said that the law was unconstitutional, but it gave Parliament some time.
The Supreme Court said that the provision in this bill concerning investigative hearings is constitutional. They did make some suggestions—which I think Mr. Davies indicated—concerning interpretation, which are the law. They could be codified, but they are the law whether codified or not.
In terms of the protections, the minister reiterated a number of them.
Of the protections prior to the use of the powers, first, there's political control: requiring the consent of the Attorney General of Canada or of a province. These powers have judicial control; they need the consent of a judge, either before or after the power is exercised. And all these powers are subject to a sunset clause.
But they're also subject to a review being undertaken by a committee of the House of Commons or of the Senate at any time within the five-year period. The minister also indicated that there must be an annual report tabled with Parliament with respect to the use of these powers, and because it's a report made to Parliament, any parliamentary committee then could examine one of the ministers with respect to the use of those powers.
So those are the judicial safeguards as well as the accountability safeguards.
Conservative
Conservative
The Chair Conservative Kevin Sorenson
Thank you, Mr. Norlock.
I'm going to change the schedule a little, because I think we cheated Mr. Davies and the NDP.
Of course, I'll always be here to protect your rights for a question, Mr. Davies, so continue.
NDP
Don Davies NDP Vancouver Kingsway, BC
Thank you, Mr. Chairman. We're in good hands, then.
I too want to explain a bit of our position to the Canadian public. I think it's quite clear to everybody looking at this bill that it proposes to make two substantive changes to what Canadians have come to expect from our legal system, which are the right not to be forced to give evidence and have that evidence used against the person, and second, the right not to be detained by the state for a period of time that in this case, I'm going to show you, can be at least four days, and then be let go without any arrest or charge.
I'm going to deal with the latter one first.
Mr. Piragoff, I believe you have said several times that a person has to be brought before a provincial court judge within 24 hours, but that, I put to you, sir, is not true. The legislation says that a person must be brought before a provincial court judge in 24 hours or as soon as feasible thereafter, if a provincial court judge is not available.
So my first question is this. It is possible, is it not, sir, that a person might not be brought in front of a provincial court judge for more than 24 hours? That's possible, is it not?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
The provision mirrors the existing law for arrest.
NDP
Don Davies NDP Vancouver Kingsway, BC
I didn't ask you whether it mirrored that. I asked you to make it clear. I want to clear it up. You said 24 hours.
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
Well, wait. Yes, but—
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
If you can't find a judge because you're up in the Arctic, then there is a provision, yes.
NDP
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
It could be 25, it could 30 hours, because a judge is not there—
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
—but that is the existing law; that is not new. That is not the new law. You said—
NDP
Don Davies NDP Vancouver Kingsway, BC
Sir, I'm not asking whether it's new; I'm clearing up the time period.
You said within 24 hours. It could be longer. Isn't that correct?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
As under the existing law.
NDP
Don Davies NDP Vancouver Kingsway, BC
That's fair enough. I hear your point on that—three times.
Second, after that it also says that a show cause hearing must be held to determine whether the person should be released or detained for a further period of time, and that hearing itself can be adjourned for a further 48 hours. Is that correct?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
As under the existing law.