Mr. Speaker, I am pleased to have the opportunity to speak in this debate on the sunsetting of two of the most serious provisions of the anti-terrorism legislation passed in this place a number of years ago after the events of September 11.
The two provisions we are discussing are I think two of the most far-reaching provisions of that anti-terrorism legislation. They call for investigative hearings of material witnesses in terror cases, and also there is the question of preventive arrest without bail for 72 hours. These were two of the most controversial and perhaps most dangerous provisions of the Anti-terrorism Act.
I think it was because of this that parliamentarians of the day, often spurred by representatives of the New Democratic Party, added the sunset provision. In particular, I want to pay tribute to the MP for Elmwood—Transcona, who was key in that debate. Because of the concern about those provisions in particular and how they upset due process and challenged civil liberties in Canada, the provision for a sunset after five years was added. Now we are up against the timing of that sunsetting of these two provisions.
I am pleased that in this corner of the House we remain consistent on these issues. We opposed these provisions at the time they were debated in this House and included in the Anti-terrorism Act and we continue to oppose them today. We see them as fundamentally problematic and cannot support their continuation, even for a shorter period of time.
As I begin, I want to remind members of the House and those who might be watching of the atmosphere that surrounded legislatures in the west after the events of September 11 in New York City and in Washington, D.C. For me, one of the key interventions in that debate was that of representative Barbara Lee, the only American federal politician to vote against the emergency measures introduced in Congress after September 11.
I think it was a very brave stance that representative Lee took at that time. It was very brave to stand in a vote that was 420 to 1 in the House of Representatives. A similar vote in the Senate was 98 to 0. She put herself on the line to say there was another way, to say that draconian measures, and in the case of the United States military action, were not the appropriate response, that they were not the only response to the situation that had presented itself, to the tragedy and the terrible loss of life that happened in the United States.
In her speech on the resolutions before Congress at the time, she quoted a member of the clergy. This has been attributed to her on many occasions, but I think she was actually quoting a clergyperson who said “as we act, let us not become the evil we deplore”. I think that characterizes the atmosphere and the difficulty that all legislators faced after those tragic events on September 11.
How do we keep in perspective the situation that presented itself there? How do we keep in perspective the fundamental values of our society when we are up against the evil of a terrorist act such as we witnessed on that day? I think we have to very careful that we do not let terrorism win by compromising our fundamental values. I fear that in the case of these two particular amendments that are sunsetting shortly, hopefully, that was in some sense what was happening even in this House.
The anti-terrorism legislation and these two particular clauses were I think very difficult in terms of protecting civil liberties in Canada, in terms of respecting the charter. I know that some of them have been tested in the courts, but I think I can still hold the opinion that they are a fundamental affront to civil liberties and the basic principles of fundamental justice in Canada.
I know that in particular communities there has been particular concern about the effect of that legislation and of these clauses, and I want to quote what I believe is another important moment in the discussion around these kinds of measures. I will quote from an address by Dr. Tyseer Aboulnasr from the University of Ottawa, who spoke several weeks ago on here the Hill at an event to mark the contributions of Monia Mazigh and Maher Arar.
Let me quote what she said at that time. I think it is very important and apropos to the current discussion. She stated:
Friends, let us never forget that nations are not judged by the laws they write up and lock up in libraries, nations are judged by how they act at times when their dedication to these laws [is] truly tested. Every country that has chosen to sacrifice the liberties of its citizens and hold them in shackles has done that out of belief that this is necessary for its security. We, Canadians, know better. We know that security without liberty is simply imprisonment. Nothing is more secure than a maximum security prison. We deserve better. We cannot let Canada turn into a maximum security prison by imprisoning one Canadian without the presumption of innocence till proven guilty and without the full opportunity to defend themselves.
That is the end of the quote, but I think it is a very crucial addition to the discussion we are having today.
Do we have ultimate respect for the system we have put in place, for the fundamentals of that system, for the kind of justice that is meted out in Canada, or do we believe we need to suspend those rules in the face of those who would seek to terrorize Canada? I fundamentally believe that we do not need to go down that road and that we can have ultimate respect and faith in the system we have put in place without special measures like the two clauses we are discussing today.
I am glad we have the opportunity to discuss these clauses. They were particularly problematic clauses of the anti-terrorism legislation. I am glad there was consent to include this sunset, but again, I think that shows how deeply parliamentarians were concerned about these two particular provisions and why there was agreement to have this sunset clause included in the anti-terrorism legislation.
Whenever we move to undo civil liberties and the key processes of our justice system, I think we must have, at minimum, that protection. Whereas I do not believe these clauses were necessary and certainly in this corner of the House we argued against them at the time, I am relieved that we have the opportunity to review them in this way today here in the House.
There is a significant question about whether these kinds of clauses are even necessary. I believe they are already covered by the existing Criminal Code of Canada and the Criminal Code amendments made at the time of the Anti-terrorism Act.
I want to quote from a report by the member for Windsor—Tecumseh, the NDP justice and public safety critic, who addressed the issue about the need for these measures. He stated:
There is no act of terrorism that is not already a criminal offence punishable by the most stringent penalties under the Criminal Code. This is obviously the case for premeditated, cold-blooded murders; however, it is also true of the destruction of major infrastructures.
Moreover, when judges exercise their discretion during sentencing, they will consider the terrorists' motive as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high and that deterrence and denunciation are grounds for stiffer sentencing. This is what they have always done in the past and there is no reason to think they will do differently in the future.
My colleague from Windsor—Tecumseh points out very clearly that none of the offences related to terrorism are dealt with lightly by the existing criminal law in Canada. The Criminal Code would treat any matter related to terrorism very severely. There is no doubt about that in our Criminal Code.
I do not think anyone in this place can imagine that anyone in the justice system would look upon those kinds of crimes lightly or that anyone in drafting our Criminal Code would suggest that there would be any light penalty for those kinds of actions. That is already part of our Criminal Code. I do not think that we specifically need these particular provisions.
I fear that when we make for exceptional circumstances, for the suspension of our basic process and basic civil liberties in Canada, we often get to the point where we use those kinds of laws. We may think that we are above doing that, but our own history has shown that we are not above using those kinds of measures at a time of panic and trouble. One of the best examples was the internment of Japanese during the second world war. Hundreds of thousands of people were removed from their homes and sent to the interior of Canada without probably good reason. In fact, we had to apologize appropriately for that and pay compensation for the internments. That was a very sad part of our history, a time when very draconian measures were taken, I believe without cause and inappropriately so, against Canadian citizens.
I worry that when this kind of measure is on the books in Canada, that despite our best intentions, our intentions of respecting civil liberties and due process, that at some point we may opt to exercise those and suspend those liberties inappropriately.
I also look to the experience of the War Measures Act in the early 1970s. Hundreds of people in Quebec were rounded up and detained, never to be charged. We know the extent of what happened at that time in Quebec was limited to a small group of people who could have been charged effectively under provisions of the existing Criminal Code. Yet hundreds of other people were caught up in a moment of panic and concern about what was happening in the country at the time.
A piece of legislation was used that I am sure most Canadians never thought would have to be used. Most Canadians were concerned about the use of that kind of legislation. I am glad the CCF and New Democrats spoke strongly against the imposition of those kinds of measures at the time. Again, it seems that we have attempted to be consistent in our concerns about the suspension of civil liberties and the use of those kinds of draconian measures.
It is crucial to remember that we cannot say we will never use those kinds of measures, that we need them as fail-safe measures. Our own history has shown that too often we have been prepared to sacrifice civil liberties for no appropriately good cause in the end.
I think it is clear that the current Criminal Code has similar provisions to the two clauses we are talking about now. The clause regarding preventive arrest is dealt with in a number of places in our law, particularly in section 495 of the Criminal Code, which states that a peace officer may arrest without warrant a person who on reasonable grounds he believes is about to commit an indictable offence. The provision says that the arrested person must then be brought before a judge who may impose the same conditions as those that could be imposed under the Anti-terrorism Act. The judge may even refuse bail if he believes the person's release might jeopardize public safety.
The current Criminal Code has this kind of provision around preventive arrest, but it does so without suspending civil liberties and due process and remains a part of the tested and honoured traditions of our justice system.
The other clause we are discussing is around investigative hearings. Some people say that section 810 of the Criminal Code also deals with this. This section states:
An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.
The other person is then summoned, and not arrested, before a judge who can then order the person to enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed 12 months, and comply with such other reasonable conditions prescribed in their recognizance. The judge cannot commit that person to a prison term unless the person refuses to sign the recognizance. That is another provision.
In our current Criminal Code such provisions already exist within the given circumstances of the existing law and process. On that basis, I really have even further trouble supporting the extension of these two clauses.
Last Friday, the Supreme Court handed down an important decision that goes to some of the same issues. It was decision on the security certificates. In the unanimous decision the court made it clear that there was a serious problem with the security certificate provisions of the Immigration and Refugee Protection Act in the way they suspended the accused's right to know the evidence against him or her and to test that evidence in court. The court suspended the provisions for a year to give Parliament the opportunity to take action to fix this serious problem. This drives home the problems that exist when these kinds of special measures to deal with perceived problems of terrorism or perhaps organized crime are introduced.
The question of secret evidence goes as a fundamental departure from due process in our justice system. I was pleased to hear that the court recognized this very clearly in its ruling.
The other fundamental problem with the security certificate intention is that deportation to face torture or death can also be contemplated. There is no excuse for ever deporting someone to face torture or death. Canada would be violating many of its international commitments if we ever took that kind of action.
The security certificate process is fundamentally flawed in many ways. This is driven home as well by the fact that three people are presently being held at the Kingston Immigration Holding Center on security certificates. They are participating in a hunger strike. This hunger strike has gone on for 83 days, a very serious length of time. It is about the conditions of detention at Kingston. It is about the lack of an appropriate grievance procedure. It is about the inability to do appropriate religious practice. It is about the inability to have private family visits. This hunger strike is about many important issues relating to the conditions of detention in that place. I am concerned for the condition of the men being held there.
Some of these men have existing health problems that make a hunger strike even more dangerous to their health. Hunger strikes that last over 49 days are considered a risk for permanent damage to one's health or even death. At 83 days, these hunger strikes have gone on well beyond that point. Still there has been no action by the government to find an end to the strikes, or to find a resolution to some of the issues that have been raised.
The Standing Committee on Citizenship and Immigration and ultimately the House have put forward a reasonable solution to the government. We have been calling on the government to appoint the correctional investigator to act as the ombudsperson in this case and to find a solution in exactly the same way he does for anyone incarcerated in a federal penitentiary. Given the majority vote in the House and given the fact that it provides an appropriate way out of this terrible dilemma for the government, I urge it to move on this without any further delay. I fear someone will die on the government's watch if action is not taken.
Indefinite detention without charge or conviction has no place in Canada. Some have suggested that the use of a special advocate would overcome that. It has been proven in the UK that special advocates cannot abide by the process because it is such a fundamental departure from due process and the principles of fundamental justice, and many of them have resigned.
My concerns about these clauses are very significant indeed.