I would like to thank the committee for the opportunity to present the views of the Canadian Bar Association on this very important legislation.
There is no question that the prevention of terrorist action is vital to preserving our society. This requires effective legislation, but also legislation that respects the traditions of our democracy. Unfortunately, this bill fails to achieve either goal.
I will first deal with the effectiveness of the proposals. I wish to make three points in regard to the amendments proposed to the Criminal Code.
First, investigative hearings have been used once, in relation to the Air India case. Although the constitutionality of the now-lapsed provisions were upheld, there is no evidence that these were effective in detecting, preventing, or assisting in the prosecution of terrorism. Nor from an analysis of the proposals can one expect them to have any positive effect.
Does anyone believe that a person who is uncooperative with investigative authorities and desires to protect those who would commit terrorist acts will suddenly become cooperative and reveal useful information in an investigative hearing before a judge? That is inherently unlikely. That person is likely to maintain silence or lie. Under either scenario, the investigation is not advanced.
Moreover, the subject of the investigative hearing is now fully aware of his or her status as a person of interest and can glean from the interrogation what the authorities may know about possible action. This person, if indeed disposed towards criminal acts, can then relate all this information to confederates and allow them to plan their actions anew so as to avoid detection.
Instead of ineffective legislation, what is needed to conduct effective counterterrorism investigations will be well-trained, properly funded investigators. The use of wiretaps, surveillance, informants, investigation, and other common police techniques are what stop intended crimes. This legislation does nothing of the sort.
Second, the creation of offences of leaving the country to commit terrorist acts or harbouring a person who has committed such an act simply duplicates already existing offences and provisions of the Criminal Code, such as conspiracy to commit an offence, attempting to commit an offence, being a party to an offence, or being an accessory after the fact. The legislation adds nothing to these provisions.
Third, the recognizance to prevent a terrorist offence is nothing other than a peace bond. Does anyone believe that a person bent on committing a terrible crime is going to be deterred by a provincial judge's order that he or she keep the peace on pain of losing the monetary value of the bond? That is illusory. This point was made clear by Mr. Coulombe, the CSIS representative who testified on November 21, 2012. He stated that criminal penalties will not deter those committed to terrorist acts. How much more so must this be in the case of the peace bond?
I would also state that the concept of investigative hearings is contrary to our traditions of not requiring a person to provide evidence against another, except in an open court where a party has the benefit of a fair and public hearing. This is not to be lightly tossed aside.
The standards employed in the legislation are low and would allow it to be used even though any information that could conceivably be gleaned is of little value, and the chance of obtaining information is speculative and based on suspicion of a single peace officer. This is too low a standard upon which to compromise our legal traditions.
As well, a comprehensive and independent mechanism for monitoring the use of such legislation must be in place if it is enacted. This legislation does make some effort to respect the open court principle as dealt with by Chief Justice Lutfy in Toronto Star Newspapers Ltd. v. Canada, and that is a positive development. However, the recommendations of prior committees of both the Commons and the Senate have not been acted upon fully. These should be re-studied.
My final opening comment is that steps must be taken to ensure that information withheld under the Security of Information Act could reasonably endanger security, international relations, or similar situations.
I stress that this is an objective standard. It must not be used as a screen through which any government, whatever may be its political disposition, can conceal information that it may find politically inconvenient for the public to know.
With this, I thank the members of the committee and would be pleased to answer any questions members may have.