Thank you very much, Mr. Chair.
You're right: I'm not often before this committee. In fact, I don't remember ever appearing before this committee, but the honour is certainly mine to do so.
Thank you very much for the opportunity to talk about the Combating Terrorism Act, Bill S-7. It proposes to amend the Criminal Code to ensure that Canada has the tools it needs to combat terrorism and to protect its citizens.
The legislation proposes to re-enact the investigative hearing and the recognizance with conditions clauses. In addition, it will create a new offence of leaving or attempting to leave Canada for the purpose of committing certain terrorism offences.
These tools were first created as part of the Anti-terrorism Act. The investigative hearing was intended to help in the investigation of past or future terrorism offences, while recognizance with conditions was intended to disrupt those who were in the planning stages of an attack.
The proposed investigative hearing provision would allow the courts to compel a person who has information regarding a past or future terrorism offence to appear in court and to provide the information under questioning.
The proposed recognizance with conditions provisions would require a person to enter into an agreement, before a judge, to abide by reasonable conditions imposed by the judge in order to prevent the carrying out of a terrorist activity.
The investigative hearing and recognizance with conditions, when enacted, would contain new safeguards in addition to the numerous safeguards originally enacted in 2001. Let me list some of them.
First, for the investigative hearing, the consent of the relevant attorney general would be required. Second, the person compelled to appear in court would have the ability to retain and instruct counsel at any stage of the proceedings.
In all cases, reasonable attempts would first need to be made to obtain the information by other means. The information provided by the person or anything derived from that information would be generally inadmissible against him or her in any criminal proceeding.
If a person were arrested with a warrant to attend the investigative hearing, there would be clear limits, set out in the bill, as to how long the period of detention could be.
The federal and provincial attorneys general would be required to report annually on any use of the investigative hearing provision, and the annual reports of the Attorney General of Canada would include an additional requirement that he or she provide an opinion, supported by reasons, on whether the provision should remain in force.
Now I'll go to recognizance with conditions. Again the consent of the relevant attorney general would be required.
A warrantless arrest of a person could only be made in very limited circumstances, such as where the laying of information before a judge has been rendered impractical by reason of exigent circumstances and the peace officer suspects, on reasonable grounds, that the detention of the person is necessary to prevent a terrorist activity.
If the person were arrested without warrant, the officer would either have to lay information before the judge, generally within 24 hours, or release the person, and before laying the information, the peace officer would have to obtain the consent of the attorney general.
A person detained in custody would have to be brought before a provincial court judge without unreasonable delay, and in any event within 24 hours of arrest, unless a judge was not available within that period of time, in which case a person would have to be taken before a judge as soon as was feasible. The hearing would then have to be held within 48 hours.
The Minister of Public Safety and the minister responsible for policing in each province would be required to report annually on the arrest without warrant power, while federal and provincial attorneys general would be required to report annually on any use of the other elements of this regime.
The annual reports of the Attorney General of Canada and the Minister of Public Safety would include an additional requirement that they provide an opinion, supported by reasons, on whether the provisions should remain in force.
As well, Bill S-7 proposes the creation of new offences for leaving or attempting to leave Canada, or going or attempting to go on board a conveyance with the intent to leave Canada for the purpose of knowingly participating in or contributing to any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to commit a terrorist activity, knowingly facilitating a terrorist activity, committing an indictable offence on behalf of a terrorist group, or committing an indictable offence that constitutes a terrorist activity.
These new offences are intended to strengthen the ability of law enforcement to arrest, and the crown to prosecute, a person who has left Canada or is attempting to leave Canada for the purpose of committing these terrorism offences.
Finally, Bill S-7 also responds to the parliamentary review of the Anti-terrorism Act that was conducted by committees of the House of Commons and the Senate from 2004 to 2007 and proposes some changes to section 38 of the Canada Evidence Act to ensure that it accords with recent jurisprudence in that area.
I would like to address some of the criticisms made regarding investigative hearings and recognizance with conditions.
One criticism has been that the tools are unnecessary because to date the current criminal law provisions designed to combat terrorism have proven to be sufficient.
If we were to approach life based on the assumption that because no harm has actually befallen us there would be no need to prepare for the possibility that harm might arise, ours would be a far different world. That is not the case. That is not the world in which we live. We know that we have to take steps to reduce the possibility of harm that can suddenly arise, and it's only prudent to take steps to try to prevent such a risk from arising. The fact that no harm has yet arisen or that the proposed amendments have not been utilized is insufficient reason to conclude that these measures are not needed.
Some have claimed that investigative hearing offends the right to remain silent. This argument was expressly made in the 2004 constitutional challenge to the investigative hearing and was rejected by the Supreme Court of Canada. The court noted that certain elements of the protections against self-incrimination in the investigative hearing legislation even go—and I quote—“beyond the requirements in the jurisprudence, and provide...absolute derivative use of immunity, such that evidence derived from the evidence provided at the judicial investigative hearing may not be presented against the witness in another prosecution.”
Let me address another criticism made of Bill S-7. The bill proposes to create four new terrorism offences of leaving and attempting to leave Canada for the purpose of committing terrorism offences outside the country. There are those who have expressed the concern that the creation of these offences could violate Canada's international obligations in the event that someone who is charged with any of these crimes is a young person—that is, someone who is under 18 years of age—but, as you know, there is a specific piece of legislation that applies to young persons charged with crimes, and that is, of course, the Youth Criminal Justice Act. Bill S-7 does not change that in any way. In fact, the Youth Criminal Justice Act specifically states that despite any other act of Parliament, other than the Contraventions Act and National Defence Act, it has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a young person.
The Youth Criminal Justice Act recognizes that the youth justice system must be separate from the adult system and be based on the principle of diminished moral blameworthiness of youth. It emphasizes rehabilitation and reintegration, just and proportionate responses to offending, and enhanced procedural protections for youth. It contains a number of significant legal safeguards to ensure that young people are treated fairly and their rights are protected. It also sets out specific youth sentencing principles and options.
Thank you very much. I look forward to any questions you may have.