Evidence of meeting #59 for Public Safety and National Security in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was reasonable.
A recording is available from Parliament.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Okay. In this case, if you are brought in for an investigative hearing and you don't cooperate, what are the sanctions?
Counsel, Criminal Law Policy Section, Department of Justice
The sanctions could be, I suppose, contempt of court. If the judge orders the person to answer and he refuses to, he will be dealt with in just the same way as would any other person who refused to answer.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
You mentioned something about three days, which I didn't quite catch. Was it three-day limits on…detention?
Counsel, Criminal Law Policy Section, Department of Justice
I was talking, I think, about section 707 of the Criminal Code.
Counsel, Criminal Law Policy Section, Department of Justice
A witness can be arrested pursuant to a warrant under the Criminal Code. There is a specific power to do that in certain limited cases, such as, for example, where a witness is about to abscond. Under section 707 of the Criminal Code, there's a scheme set out for how long a witness can be detained pursuant to that arrest warrant. The absolute maximum period is 90 days, but, as I said, at least every 30 days the judge has to review whether the witness should continue to be detained.
Liberal
Counsel, Criminal Law Policy Section, Department of Justice
I guess I wasn't as clear in my pronunciation as I should have been.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
There's one part of the bill that I didn't understand when I looked at it a while ago. Maybe you could tell me what it means.
Clause 2 of Bill S-7 proposes to amend subsection 7(2) of the Criminal Code, which describes acts or omissions committed in relation to aircraft, airport, and air navigation facilities, in circumstances where these acts take place outside of Canada. Why are wording changes to section 7(2) of the Criminal Code required?
Also, what does “...act or omission committed...” mean? What would an act or omission be in relation to aircraft, airport, or air navigation facilities?
Counsel, Criminal Law Policy Section, Department of Justice
It could be criminal negligence, for example.
Counsel, Criminal Law Policy Section, Department of Justice
It is failing to do something that is your duty to do.
Counsel, Criminal Law Policy Section, Department of Justice
On the proposed amendments to paragraph 7(2)(b), they're just technical amendments. What they're meant to do is to line up the various parts. At the end of paragraph 7(2)(b), for example, there's a reference to “an offence against any of paragraphs 77(c), (d) or (g)”. There had been drafting errors—I'm not sure if “errors” is quite the right word, but they didn't quite line up properly. The offences were not right, and this is our response, to clarify.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Could we have introduced the notion of a special advocate into this legislation in the way we have a special advocate when security certificates are involved? Is there a possibility, or does it just not fit with this kind of legislation? Technically it just doesn't fit, or could it have been done? I'm not sure, but I thought a committee recommended the notion that a special advocate be introduced.
How could that be done, and why wasn't it done if it could be done?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
I think you answered the question when you said it doesn't fit.
The person is entitled to counsel, so the person has his or her own counsel. Special advocates in immigration proceedings are used in situations when the state has security information it wishes to present before the court but the information is of such sensitive nature that it should not be disclosed to the individual or his or her counsel. That's why the special advocate there is a person who would hear the information and represent the interests and cross-examine information. However, in this situation, the state is not leading any evidence against the individual. It's very much a situation in which the person being investigated provides testimony and that person could have his or her own lawyer if he or she wished.
Conservative
The Chair Conservative Kevin Sorenson
Thank you, sir.
We'll go to Mr. Rafferty first, and then we'll come back to Mr. Payne.
NDP
John Rafferty NDP Thunder Bay—Rainy River, ON
Mr. Piragoff, I wonder if you could explain to us why this bill is coming via the Senate and not through the House of Commons initially?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
I don't know. That's an issue for the government.
NDP
NDP
John Rafferty NDP Thunder Bay—Rainy River, ON
You heard the minister say earlier that he was talking about this bill and the provisions, in particular, being consistent with 200 years of history in terms of law. I think that's what he said—“being consistent”—yet previously, witnesses—and lawyers, I might add—have indicated that these two provisions we're talking about in particular today are a substantial departure from Canadian legal traditions. I don't expect you to say why they have said that. I'm not going to ask you that, because you probably don't know why they said it, but I wonder if you personally think that having these two kinds of provisions in there is a change in Canadian legal traditions.
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
Thank you. I can't give you my personal opinion because my personal opinion is really not that important.
What I can do is explain how these provisions are similar to the existing law and how they are different. The minister said that they are based on tradition and to some extent that is true; the provisions are modelled on the existing precedents in the criminal law. For example, the recognizance with conditions is modelled very much on the peace bond process.
So we do have a jurisprudence, we do have a legislative history that goes back many years dealing with peace bonds. The differences, of course, between the peace bond and this are in the question of the threshold. Arresting a person you believe has committed a criminal offence is one thing; arresting a person you believe will commit a criminal offence requires a higher standard. It requires reasonable grounds to believe that this particular individual will commit an offence.
This has a different standard. If the police have to have reasonable grounds that a terrorism offence will be committed, the threshold is lower in that they have to have reasonable grounds to suspect. It's not that this individual is the one who is going to commit a terrorist activity; it's that putting conditions on this individual will prevent the commission of the activity. It's different—