Public Safety Committee on Dec. 15th, 2010

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Minister.

We have about two more minutes. The minister has to leave at 4:30.

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you again, Chair.

Minister, one of the things I think that always comes up is the whole idea that so much of this has something to do with 9/11, but at the same time, radicalization and homegrown terrorism has certainly changed since 2001.

[Rob Nicholson, Conservative, Niagara Falls, ON]

There's no question about it.

[Dave MacKenzie, Conservative, Oxford, ON]

The fact is that society in our own country is different. These are the kinds of tools going forward...and I think you've talked about the future.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes. You've made a very good point.

Very often, in discussions, everyone refers to 9/11. But Mr. MacKenzie, you're quite correct. The recent Air India report underscores the fact that this country was targeted for terrorist activity, major terrorist activity, years before September 11, 2001. And again, in terms of our response, we have to have tools like the tools you have before you.

As I say, it's not just your government or me or the Prime Minister who believes this. There's widespread support to get these tools on the books. They were written by the previous government, who knew and understood that we had to have these tools on the books. Law enforcement agencies support them. We have received judicial approval for part of these particular proposals that we have.

It's my hope, and certainly the hope of everybody, that we don't have to use these. Of course, I would hope that would be the case, but we live in a world that is subject to terrorist activity. No country is immune from it. The laws have to be on the books.

I asked people who were looking at this to check what other major democracies were doing, that they would came back and say, yes, the Canadian approach is very reasonable. Those safeguards are very important; they're very reasonable as well, and this is exactly the kind of legislation we have to have on the books in Canada to protect Canadians.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

I want to thank the minister for attending here today.

We certainly look forward. We have a number of pieces of legislation before our committee. Hopefully we'll be able to report some of this back fairly soon, after the Christmas break.

We do thank you for your attendance and for your testimony and also for letting the officials stay for our next hour. We look forward to what they have, should there be other questions—

[Rob Nicholson, Conservative, Niagara Falls, ON]

I've just been thanked by the officials. That's very good, Mr. Chairman.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Minister.

We will suspend just for a moment to allow him to make his exit and then we'll continue.

We'll call this meeting back to order, and I will just pick this up from where we left it off. It seems to me that we wouldn't go back to a first round, second round, third round, but we'll just kind of keep going, if that's all right with the committee.

Mr. MacKenzie was wrapping up, so Mr. Rathgeber will go, and then we'll just continue on our second round.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you to all of the justice department officials for your attendance here today and for your expertise on this quest as we try to balance the civil liberties of Canadians with our bona fide security interests to protect ourselves against terrorism.

At our last meeting, we talked about the existing provisions of the Criminal Code. I know that my friends on the other side of the table believe that sections 810 and 495 of the Criminal Code adequately protect Canadians from terrorist attacks, both domestic and abroad. I'm skeptical of that position.

I was wondering if any of you could help the committee understand why section 810 of the existing Criminal Code is inadequate and why we need the provisions in Bill C-17. If you don't know, section 810 says if that a person who fears on reasonable grounds that another person will intimidate a justice system participant or commit a criminal organization offence, you can apply to a judge to have a recognizance.

[Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice]

Thank you.

Under the existing law, section 495, which entitles a police officer to arrest a person who is “about to commit” an offence, the police officer has to have reasonable grounds to believe two things: one, that an offence will be committed, so that an offence is “about” to be committed; and two, that the person who is to be arrested is the person who is going to commit the offence. It's a high standard: there are reasonable grounds to believe both criteria, both facts, that the offence will be committed and, secondly, that the person is the potential perpetrator.

Under the peace bond provision, the standard is, again, reasonable fear that a particular person will commit a terrorist offence or will commit other 810 provisions: a sexual offence or an organized crime offence. Again, there are reasonable grounds to fear or to believe that the particular person will engage in particular conduct.

Under the proposed bill—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Just for clarification, section 810 is the peace bond, right?

[Donald Piragoff]

Yes, section 810 is the peace bond. Section 495 is the existing provision that deals with the powers of a police officer to arrest without warrant.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Please go on.

[Donald Piragoff]

Under the bill, the test with respect to the preventative arrest for the purposes of attendance before a judge is that the police officer has to believe “on reasonable grounds”--again--“that a terrorist activity will be carried out”. But what's different from the current law is that there may not be reasonable grounds to believe who the perpetrator is. So that's why this fills a gap.

With respect to the second stage, the bill provides that the police officer has to have reasonable grounds to suspect that arresting a person will “prevent” the activity. That doesn't mean that the person who's arrested is the perpetrator. It may be other individuals who are involved.

For example, the scenario that has been asked about before is where this provision would be used. One can imagine a situation where, say, there's a demonstration, the police have reasonable grounds to believe that a bomb is going to be detonated during the course of the demonstration—not by the demonstrators, but by other persons—and the actual perpetrators are not known. They know it's going to happen as a result of intelligence. But they also suspect a number of individuals who have been agitating, who have been making statements, and they may have reasonable grounds to suspect that these individuals know something, that they have assisted others, and by bringing them before a judge, that does two things: one, it puts them under the judicial control of the judge; and two, it also sends a clear message to others that the police are aware of a conspiracy or possible attempt. It's a way of publicly indicating that they know something is about to happen.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

[The Chair, Conservative, Kevin Sorenson]

We'll go back to Madame Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chair.

Mr. Piragoff, I would like to continue discussing what you talked about earlier. So we can make people testify before a judge, but are those people protected? Let's consider people who are not involved in a plot, but could perhaps have been witness to discussions regarding a terrorist plot, for instance. Are there any measures that will protect those people if they talk about the infamous terrorists before a judge?

[Donald Piragoff]

Merci. The purpose of bringing them before the judge is for the judge to determine whether he or she should release the person with conditions or without conditions. So unlike some countries, where the purpose of the arrest is for the purpose of detention, the presumption in this bill is that it is very much to release the individual. As Professor Forcese said, it's catch and release. The purpose is that they will be released on condition. It is not for the purposes of detention; it really is for the purpose of disrupting preparatory conduct.

With respect to the protections, once a person is detained, then all of the existing safeguards that exist under the charter or the Criminal Code apply to these individuals because they are persons under detention. So they have the right to seek counsel, they have the right to remain silent, and all the charter protections apply to them because they are detained.

[Maria Mourani, Bloc, Ahuntsic, QC]

Are charges levelled against that person?

[Donald Piragoff]

No, no charges are levelled.

[Maria Mourani, Bloc, Ahuntsic, QC]

I will give you an example. During our tour for Correctional Services Canada regarding mental health, we went to the Whitemoor prison in England. This is a maximum security prison, it's very well monitored. If I remember correctly, 60% to 70% of the prison population was Muslim. Supposedly, these were terrorists.

Are we heading towards a higher prison population? Will we be creating prisons through preventive measures with this kind of a bill? I was so stunned by what we saw in England. Earlier, the minister actually talked about stricter measures in England.

[Donald Piragoff]

I think what the minister may have been referring to in the U.K. is that the U.K. law provides for preventive detention for up to 28 days before laying a charge. So a person can be arrested and not charged, but they can be detained up to 28 days without charge. Under our law a person cannot be detained, arrested, and held longer than 24 hours without seeing a judge, and then the police have to lay charges. This bill is based on the same types of safeguards that exist for people who are charged with an offence. They have to be brought before a judge within 24 hours. Under an offence the judge has to determine whether they should be released or given bail. Under this provision the judge has to release the person, so there's a presumption of release unless the police and the crown can convince the judge that conditions should be imposed. There's no possibility of detention here unless the individual refuses to abide by the conditions.

[Maria Mourani, Bloc, Ahuntsic, QC]

There is something that worries me. If my memory serves me right, almost all our witnesses from last Monday—except for one person, while lawyers were present—told us that this law had not been useful. However, it has been in force since the 2001 terrorist attacks in the United States. The Criminal Code provides for taking the actions you mentioned, whether it is sending someone before a judge, getting a warrant or getting someone to testify. All that can currently be done through the Criminal Code, but it cannot be done in a preventive way, since charges have to be laid.

If the police have good intelligence, why can't they use the Criminal Code to charge people with conspiracy? Why not work with the Criminal Code? This law has never been used. The only time it was used in an investigation, it was struck down. I do not understand why we would get into that again.

[Donald Piragoff]

Under the existing law, there is no power to compel a witness to provide any evidence, and the investigative hearing is separate from the preventive arrest powers. Under the current law, people do not have to answer questions posed to them by the police or posed to them by any official. Everyone has the right to close the door and say, “I don't want to answer any questions.”

In other countries, such as the United Sates, they have a grand jury. Witnesses--not the accused, but witnesses--can be compelled to testify before a judge and a grand jury in the United States to provide testimony prior to charges being laid. In Canada, the only time witnesses can be compelled to testify before a court is when a charge has already been laid by the police and someone has been charged. You can force a witness to come only when there's a preliminary inquiry or a trial. This would provide Canada with the power to have--