Mr. Speaker, I am pleased to participate in the debate on the motion to extend the provisions of Section 83 of the Criminal Code, which, if they are not extended by a vote of the House, will lapse and die. Arguably, if there is a need for these types of provisions, new legislation will need to be introduced, thereby creating a gap in our law, if it is the will of the House and the government to proceed in that way.
These particular sunset provisions were added to the Criminal Code by Bill C-36 after extensive justice committee study and public debate. I was very involved in the work of the justice committee and I do have some personal knowledge of those events at that time.
The sunset provisions were inserted at the insistence of a number of people, including members of the House, for two possible scenarios. The first was the possibility that the provisions, which were quite new to the Criminal Code, might be misused in some way. It turns out that the sections have not been used and therefore have not been misused.
The second reason was in the event that the sections were not needed. Over time it was felt that the perceived need for this type of procedure might not be there and if the conspiracy that gave rise to this legislation was to end, diminish or calm, it could be argued that these more robust procedural provisions might not be necessary and that our ordinary laws might prevail and be usable.
In my view, I do not think either of those circumstances have occurred. There has not been a misuse of the provisions and the conspiracy that gave rise to them has not ended or calmed. I will speak to that later in my remarks.
One could say that these provisions were certainly not enacted because they were not needed. If they were not needed, they would not have been enacted. In fact, the public servants and parliamentarians who generated the legislation could see the need at that time and that is why they were enacted. One could argue that circumstances have changed and that is part of the subject of debate here today.
Why were the sections needed five years ago? I think the reason relates to the fact that there was an acknowledged gap in our criminal law, our common law, that simply evolved through the passage of time. Prior to the last century, the subject of security of the state was in the hands of the king. In fact, it was listed among the king's prerogatives and the king actually did take care of that kind of business.
We have all read history books and seen the movies. The king and his forces would actually detain and arrest people who were conspirators against the state. I suppose they did not make fine distinctions in those days whether it involved a conspiracy, a sedition, a subversion or a treason. These were all components of the common law in those days. The king simply would detain the person, perhaps arrest the person and make use of the dungeon and eventually liquidate the conspiracy.
After we entered into the 20th century, with the growth of civil liberties and written constitutions, it became apparent that our citizens needed rule of law. Commonwealth jurisdictions then adopted what were then known as the war measures acts. When the state entered into a serious war conflict, it relied on special legislation called the war measures act. It was used during the first world war and the second world war.
Eventually, in the modern context, those pieces of legislation were seen to be a bit too draconian for peacetime and therefore were dropped. We no longer have a war measures act. As a result, the legislation we relied on through the Korean War and the two world wars up to about the 1960s is no longer there so that the state cannot rely on any special provisions. It must use the criminal law.
We then had the terrible events of 9/11. Roughly 300 or 400 miles from here as the crow flies, we witnessed the events in Washington, New York and Pennsylvania. Following that, other events occurred in Bali, Madrid, Philippines, London and an almost event in Los Angeles. These events have been ugly. They were terrorist attacks, killing and maiming many and creating the maximum in violence, disruption and disorder. That is the nature of the threat.
As I mentioned, we do not have the provisions that used to be contained in the war measures act, and not only do we not have those, but in years gone by the state could rely on conspiracy laws. However, with the evolution of modern evidentiary rules, it becomes very difficult to convict for a conspiracy. As a result, because the sections have fallen into disuse, not many police or crown prosecutors are good at using them and the courts are not comfortable with them.
I would also point out that we no longer have grand jury investigations. These were part of our criminal process. A grand jury would be invoked, put in place and would investigate allegations of a criminal act or a conspiracy before they actually occurred or just after they happened but before criminal charges were laid. Two or three decades ago our jurisdiction stopped using the grand jury procedure.
At the end of the day, our laws have given up on the war measures act, the law of conspiracy and grand juries. My point is that there has been, by happenstance, a gap in our law. In peacetime, our laws work quite well. We are always reforming them but our laws generally are up to the test, but when the state gets into a conflict or it is at risk, it would be my view that the state needs to rely on a different set of provisions. These sunsetted provisions in Bill C-36, the Anti-terrorism Act, were intended to fill the gap.
It is also worth noting that all of our major allies had to do the same thing. This is not just a Canadian story. Our allies in the U.K., the United States of America and Australia all had to legislate to fill this gap in their laws as well. That is a notable thing and we in the House should take note of it. This is not a circumstances peculiar to Canada.
It is important to segregate things which are not politically, legally connected. I have read some of the debates and I have seen some of the media on this. We are not dealing with investigative warrants under the Security of Information Act. We are not dealing with investigative warrants taken out by CSIS to deal with threats to the security of Canada under the CSIS Act. We are not dealing with continued detention under the Immigration Act. We are not dealing with security certificates, which are removal procedures under the Immigration Act. All of those things are outside the envelope of what we are dealing with here.
We are dealing with two sections. The first one, the investigative hearings section, is both retrospective and prospective in its stance. It can look in the rear view mirror at threats and offences and terrorist activities that happened previously, or prospectively or pre-emptively into the future. The second one is the detention with recognizance section and that is pre-emptive in perspective. In other words, it does not look backward. It is there for the purpose of pre-empting an imminent terrorist attack.
I have tried in my own layman's way to conjure up a scenario when these sections would be used. This is one thing that is actually missing from the debate and I am not sure why. I am curious why security professionals or government officials have not offered a scenario which would explain a bit more clearly how and why these sections would be used. I realize that security professionals do not want to alarm the public. They do not want to reveal existing procedures. They are under oath to keep their information inside a security loop. These are probably some of the reasons we have not had that element of this debate.
It is also notable that this country's security apparatus is populated by officials who do not have the power of arrest. This is a very important distinction here. Most people think that CSIS officials can run around and scoop people off the street. The fact is they cannot legally or otherwise. CSIS officials are not even armed. They do not arrest people. The only people who arrest in this country are peace officers, that is, police officers. All the security professionals on the job are not able to make an arrest, whether it is at CSIS or CSE or in transport. They must be peace officers before they can arrest anyone.
As we develop our intelligence data, it is important to realize that if there is going to be any pre-emption of a terrorist attack by an arrest, it would be done by a policeman, not by our security apparatus. Most of the information we get involving security and intelligence comes from the broader security and intelligence apparatus. Some of it comes from police intelligence, but the bulk of it comes from our security and intelligence apparatus and our allies. That is a very important and indispensable function.
Because we do not have a scenario here, I am going to suggest the scenario of a border attack somewhere on the Canadian border. I do not think I am being right off the page here in suggesting there could be an attack. I do not have to go into any gory details; let me just say that an attack is possible and that the attack is imminent. Let me suggest that police and authorities may not have all the data needed to obtain a Criminal Code warrant for any of the existing provisions in the Criminal Code. They may have only one or two persons identified. They may have a possible target identified. They may have detected part of a cell and a likely target. They may not be able technically to connect all of the dots necessary to obtain a Criminal Code warrant. If they can, then they can take out a Criminal Code warrant and make an arrest.
Let me suggest as well that this data has not come from their own sources, but has come from an intelligence agency or an allied intelligence agency. I will assume for the sake of my scenario that the information is credible and real.
Given the potential for massive violence and disorder, pre-emption becomes the order of the day. It becomes a priority. If people are not sure what massive violence and disorder is, they should think about what happened in London, Madrid or New York City, just to get the flavour of what this is.
Under these sections a peace officer using credible data, probably packaged by an intelligence agency, either domestic or ally, would then present the information very quickly to the attorney general of a province. If some members think that is time consuming, some of our constituents have to wait sometimes to see an MP or to see a cabinet minister, but I can say that getting through to the attorney general of a province on a matter of priority happens very quickly. I have had the pleasure of dealing with an attorney general on a matter of that nature, and it was a very prompt and a very quick turnaround time. The information is then packaged for an attorney general, who must provide consent in writing. The information is then taken to a judge, who must also sign off and issue the warrants.
The procedure for the use of these sections is judicially supervised in the beginning. It is consented to by the attorney general representing the government. It is managed by a peace officer, police officer, subject to the Criminal Code. The entire process in both sections has been judicialized. It is totally judicially supervised. There is a warrant, a judge, an attorney general, and a totally judicialized procedure. It looks awfully charter compliant to me.
It has already been mentioned that our courts have agreed that these procedures are charter compliant. An argument that the charter is a reason that these sections should not be renewed, in my view, respectfully to all of those who feel that way, is not on; I do not accept that. There may be other issues involving civil liberties that concern them, but certainly not the charter, at least not in a way that I have heard in this House or in the courts up to now.
There are some side notes worth noting. Both the committee of this House and the committee of the Senate have reviewed these provisions and have reported back confirming their support for the provisions.
Also, there exists, as I pointed out earlier, an arguable symmetry between the provisions that we have enacted here and the provisions enacted by our major allies. They operate on the assumption, and I know there was collaboration back at the time these sections were enacted, that our legislation bears some analogy to their own, that when we deal with our allies, they will have the ability to act quickly, and when they deal with us, we will have a similar ability to act quickly.
If these two sections are to lapse, it is arguable that our legislation will not be so symmetric, will not coincide with the legislation of our allies. Since the threat of conspiracy persists, and I am informed that it does, they may be curious as to why we would allow these two sections to lapse.
I would attribute the argument that the sections have not been used to good intelligence work and good luck. Both of those have contributed to that. Regarding the suggestion that the sections are not needed, one only has to look at weekend reports from the United Kingdom, where public reports are that the threat level there is as high as it has ever been.
With all due respect to many in the House who are concerned about the civil liberties aspects of this, I hope the record will show that these sections are charter compliant and that they are there for the benefit of Canadians as a whole as a protection order. I hope colleagues will take all of that into consideration in the vote.