Public Safety Committee on Nov. 19th, 2012

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much, Mr. Chair, and through you to the witnesses, thanks for appearing today.

I'd like to start with a couple of questions, if we have time to go through them, and I would like you to be comprehensive in your answer, if possible.

The first one has to do with some of the recommendations made in previous hearings and suggestions from House of Commons and Senate committees in relation to the investigative hearing and recognizance with conditions, and how they have been incorporated into this bill. I believe there were some in 2006 as a result of the House of Commons Subcommittee on the Review of the Anti-terrorism Act that I happened to be a part of, and the February 2007 special Senate committee hearing, if you can recall.

[Glenn Gilmour, Counsel, Criminal Law Policy Section, Department of Justice]

With regard to the recognizance with conditions, it was the special Senate committee that recommended that the annual report for both the investigative hearing and the recognizance with conditions be an expanded annual report and that the Minister of Justice, or in this case the Attorney General of Canada, should be required to provide a statement along with reasons as to why he considers these two powers need to be renewed. We've taken that recommendation, and it's now in Bill S-7.

The House of Commons report recommended that the powers be extended for five years, and that recommendation is found in Bill S-7. As a result of the initial first attempt to bring back these provisions as they expired, when it was in the former iteration of Bill S-7, the Senate amended the legislation to make sure that there was a mandatory parliamentary review of these two powers before the powers expired. That amendment was made to Bill S-7 when it passed through the Senate, and that amendment continues to be part of this bill as well.

With regard to the investigative hearing, as you know, substantial safeguards were already in existence when the original legislation was passed in 2001, including the very robust use and derivative use immunity provision that the minister talked about earlier.

In addition, in order to respond to the recommendations of the House of Commons committee, which issued its own special report on these two powers in 2005 or 2006, I believe, we made a couple of extra changes.

The first was in relation to the requirement that had previously been existing in relation to using the investigative hearing to obtain information about a future terrorism offence. The condition was that you had to use reasonable attempts to get the information by other means; we decided to expand that not only to future terrorism offences but also to past terrorism offences, so for every case in which you want to use the investigative hearing, whether for a past or future terrorism offence, there would have to be an effort made by the police to obtain that information by other means. Reasonable attempts must have been made to obtain that information by other means.

Another change we made was because of the concern that was expressed before the House of Commons committee that was examining these two powers in the Anti-Terrorism Act in particular. There was a concern in relation to the investigative hearing. There is a power to arrest with warrant someone who is about to abscond, for example, before attending the investigative hearing. The question was raised that if you arrest that person by means of a warrant, how long can you detain that person under that warrant before the person can be released?

We wanted to make absolutely certain that the limit on detention was very clear in the code, so we put in the same time limit for detention for witnesses before a criminal trial. We plugged that into the investigative hearing provision, and that's the section 707 of the Criminal Code under which a witness can be detained. For example, if a witness is served with a summons to testify at a criminal trial and there is evidence that the person is about to leave without testifying, the person can be arrested by means of a warrant or arrest. The maximum period of time, though, that the witness can be detained is for a total of 90 days--30 days basically, and subject to judicial review, up to a total of 90 days. There is now that additional protection.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Gilmour.

We'll move back to Mr. Garrison, please, for five minutes.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair.

To the officials, thank you for staying on with us to answer some more detailed questions.

I'll go back to the recognizance with conditions. I think both the minister and you referred to the period of 12 months. After my quick reading of the law, can that recognizance with conditions be renewed, and if so, how many times can it be renewed? Can it be renewed indefinitely? I don't see anything in the bill that addresses that aspect.

[Donald Piragoff]

It would have to be a new one. The recognizance with conditions can be a maximum of 12 months, and at the expiry of 12 months that recognizance would end, unless, of course, the authorities made an application for a new one. However, it would have to be a new application.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

If there was a perception that the situation had not significantly changed, there would be the likelihood that there would be a reapplication and a new recognizance with conditions ordered.

[Donald Piragoff]

Yes, if the situation had not changed. Again, it really depends on what the facts are. It's not simply a renewal process; it's an actual new application. A full application would have to be made.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

The distinction, then, is that there would have to be another hearing where someone would be entitled to legal counsel and go through the entire process again, but there's nothing to prevent it from happening on a repeated basis; the 12 months is not a maximum for an individual.

[Donald Piragoff]

If the judge is still of the opinion, or a second judge or another judge is of the opinion, that the conditions are necessary in order to prevent a terrorist activity, then that situation still exists. Just because 12 months or 11 months have expired doesn't all of a sudden mean the person is no longer a threat or the person should not be kept under conditions. It really becomes a factual situation. One would hope that over a period of time the threat would have lessened as a result of the imposition of the conditions.

Remember, the recognizance may not necessarily mean that this individual is the threat or the major perpetrator. These may be individuals who were involved in providing material support. By this period of time, other things may have happened. The police may have actually gained enough evidence to arrest the principal perpetrators in the interim.

It's geared toward prevention. It's not geared toward prosecution or investigation.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Then the same thing, I presume, would be true if someone refused the conditions. They could be jailed for up to a year; if they came back and a new application was made, essentially they could be maintained in jail indefinitely in Canada without being convicted of anything.

[Donald Piragoff]

That's the existing law with the peace bonds. The only way a person can be detained under a peace bond or under these proposed provisions is if they refuse to accept the conditions, in which case the judges say they shall be detained. That's based on parallels with the existing law for peace bonds right now. What I'm trying to say is that it's not a new concept.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

I'm not an expert, but it would seem to be a big difference in that most peace bonds are entered into voluntarily in the Canadian court system. In other words, when someone asks for a peace bond, the other party comes into court and usually voluntarily agrees to it. In my experience with them, they are not always the result of an order that someone has refused to accept but are entered into voluntarily.

[Donald Piragoff]

I can't comment on the practice of how often the person is voluntarily.... And what does “voluntarily” mean, when the alternative is detention?

[The Chair, Conservative, Kevin Sorenson]

You have about half a minute.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

There's a great deal of concern, which I'll come back to if I get another chance, in some of the minority communities that in all the discussions around terrorism there's a focus on only one kind of terrorism, and normally that's associated with Islamic extremism or Islamic fundamentalism.

It seems in the community that often members of the Muslim community, for instance, have been the ones subject to security certificates, and no one else has been. There's a fear that this will be, as Mr. Rousseau raised earlier, subject to a kind of racial profiling, so that a certain group of Canadians become subject to penalties and restrictions that others are not subject to, because of events that take place outside the country.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Garrison. Unfortunately there's no time for the answer on that one, but you may want to incorporate it into another question.

Mr. Payne is next, please.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair, and thanks to the witnesses for coming.

This is a really important study on this bill. I recently had a town hall meeting, and certainly one of the issues was terrorism.

I want to follow up on my colleague's comments in terms of investigative hearings.

Mr. Gilmour, first of all, you talked about the 90 days being under the Criminal Code section 707. I'm wondering if that is sufficient time to get the hearing done or to ensure they will be able to get the results they are looking for.

[Glenn Gilmour]

I would hope there would be sufficient time. Remember, this is an area into which we've built additional safeguards to add to the multiplicity of safeguards that were already part of the original legislation back in 2001. I wouldn't want to expand it beyond 90 days. We're trying to achieve consistency in treatment between a person who is arrested in order to testify, essentially as a witness at an investigative hearing, and a person who is compelled to testify before a criminal trial, and 90 days is the maximum for the latter. It seemed reasonable and logical to apply the same limit to someone who is detained as a witness pursuant to a warrant for an investigative hearing.

[Donald Piragoff]

It was also a recommendation of the committee.

[Glenn Gilmour]

It was also, as I mentioned, our effort to fulfill a recommendation made by the House of Commons committee that originally reviewed these two powers. They were concerned that the law was unclear as to how long a period of detention there would be for someone who was arrested pursuant to a warrant to attend that investigative hearing. Now the law, under Bill S-7, will be very clear that the maximum period of detention can't be any more than 90 days, and I stress “maximum” period of detention. Under section 707, if I recall correctly, every 30 days the judge has to determine whether the witness should continue to be detained.

[LaVar Payne, Conservative, Medicine Hat, AB]

When the minister was here, I believe I heard him say that the investigative hearings are constitutional. I just want to make sure you confirm that, so that Canadians understand that what we're doing here in this proposed law is constitutional and is not infringing on anybody's particular rights.

Second, do other countries have investigative hearings? If so, are they any different from what we're doing, or are we very similar in that process?

[Glenn Gilmour]

If you don't mind, I'll try my hand at answering that question.

With regard to the comparative aspect first, I think it is fair to say we are either equivalent or more restrained in our scope in terms of investigative hearing procedure.

The United States, of course, has the grand jury system, whereby a person could be compelled to testify in order to determine whether a criminal charge would be laid.

Australia has the equivalent of an investigative hearing system, which to some degree is similar to ours but in some respects is also different from ours. Their investigative hearing process is set out in their security intelligence legislation, but they have something equivalent to ours.

A major difference is in the United Kingdom. Mr. Piragoff mentioned that our investigative hearing process does not entail any criminal penalty relating to any offence at all. It's just to have someone come before the judge and answer questions posed to them by the crown. In the United Kingdom there is a specific offence of failing to disclose information about a possible terrorism offence, or for that matter even a past terrorism offence, to a police constable. Failure to provide that information is itself a criminal offence that's set out in an amendment to their Terrorism Act 2000. To that extent, it's fair to say that the United Kingdom goes even more strongly towards punishment and criminalization than we do.

I'm sorry; I forgot the first part of your question.

[The Chair, Conservative, Kevin Sorenson]

The first part will have to be dealt with another time as well.

I'll go to Mr. Scarpaleggia, please.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

In some countries, such as the U.K., failure to testify is punishable by...what were you saying?

[Glenn Gilmour]

It's a crime. It's not so much failure to testify; it's failure to report to a police constable if you have information.