Mr. Speaker, on October 15, 2001, in the immediate aftermath of 9/11, the Liberal government at the time introduced Bill C-36. The then minister of justice and attorney general, Anne McLellan spoke in support of that legislation, including the two provisions that were not then but are now the subject of sunsetting clauses.
I rose in the House at the time and expressed the view that I had 10 civil libertarian areas of concern with the proposed legislation and which included the two provisions at issue, on which I elaborated subsequently in speeches and in an article thereafter in the 14 National Journal of Constitutional Law entitled, “Terrorism, Security and Rights: the Dilemma of Democracy”.
In discussions with the minister and government at the time, I made certain recommendations regarding these areas of concern. While I remain still concerned about certain provisions of the bill, such as the definition of terrorism itself, an aspect of which was recently invalidated by the courts, citing, as it happens, my article at the time, I ended up supporting the bill because the government amended the proposed legislation in many of these area of concern, though I still maintained certain reservations about it as set forth in the article.
Among the amendments I proposed and which the government accepted was that these two provisions at issue be sunsetted after three years, which has now stretched into five, and pending parliamentary review of these provisions.
I am of the view today that these provisions do have provision for executive oversight, as in the requirement for consent of the attorney general, for parliamentary oversight, as in the requirement for annual reports from both the federal and provincial ministers concerned at Parliament and the provincial legislatures, and a judicial oversight to judicial review. The Supreme Court, as has been mentioned before in the House in the matter of investigative hearings, has held these provisions to be constitutional.
Indeed, the sunset provisions may be said to comply with the charter and are not otherwise unknown in Canadian law. For example, preventive arrest is effectively the invocation of a peace bond process set forth in section 810 of the Criminal Code, which has been used to protect against criminal violence, such as domestic violence, sexual violence and organized crime, and extends it now to suspected terrorist activities.
Similarly, the investigative hearings are not unknown in Canadian law. We can find it under the Coroners Act, the Inquiries Act, in section 545 of the Criminal Code and I can go on. All that is also set forth at length in my article respecting those two provisions at the time.
It is not surprising then that five years later reasonable people can and do reasonably agree on the import and impact of these provisions. We can take the view to agree or disagree. We can take the view, as many in my party do, that since the provisions were not used, they are therefore not needed. Or, we can take the position, as I have, that since they have not been used this demonstrates that they have not been abused and that they in fact may be needed.
That is why, while I initially proposed that these clauses be sunsetted subject to parliamentary review, following the experience of the last five years, as I have just summarized, and my own experience as minister of justice and attorney general, I now favour their extension. However, as I have said, this is a position on which reasonable people can and do reasonably disagree.
I regret, therefore, that the government is proposing the extension without taking the views of these parliamentary committees into account in the House and the Senate. I regret that reference was made to a prospective investigative hearing impugning thereby the reputation of a member of the House and undermining thereby the integrity and the independence of that very inquiry itself, and seeking to link it to a debate on the sunsetting of these provisions.
Indeed, even if we support the extension of these provisions, as I do with certain safeguards and after parliamentary review, this prejudicial invocation was inappropriate, irrelevant to this debate and wrong. I regret the references made by ministers of the crown that our party is “soft on terrorism”. That is to politicize the debate, which should be addressed on the merits, and convert a debate on which reasonable people can and do reasonably disagree into one of bumper sticker slogans and smears.
Accordingly, for those reasons I cannot support the government's motion. It has been proposed without the benefit of parliamentary review on appropriate safeguards and it has been advanced in a politicized and prejudicial fashion.
At the same time, I would support the extension of these provisions with appropriate safeguards after parliamentary review at the appropriate time. My position for now and for those who will now follow is that of a principled abstention.
Since the court's decisions regarding the definition of the Anti-terrorism Act need to be revisited; since the Security of Information Act has also had provisions quashed; since the Supreme Court of Canada has now unanimously invalidated the provisions of the Immigration and Refugee Protection Act that deny the named person on a security certificate the right to due process, the right to a fair hearing, the right to know the information against him or her and be able to answer and rebut the charges; since the Supreme Court has suspended the impugned provisions for a year; since the question of deportation to a country where there is a substantial risk of torture is otherwise before the court; since, elsewhere and during the period that I was minister of justice, the whole question of the security certificate regime puts us in a Hobson's choice of having to either deport to a country where there is a substantial risk of torture on the one hand, which I said as minister that I would never support, or prolong detention on the other, aspects of which have now been invalidated by the court; and since the security certificate regime scheme needs to be revisited because of this Hobson's choice; therefore, given the need for a comprehensive look at the entirety of our anti-terrorism law and policy, which includes not only Bill C-36 but the Security of Information Act, the Immigration and Refugee Protection Act, the provisions in the Canada Evidence Act and a whole holistic approach to anti-terrorism law and policy review, I cannot support the government's motion at this time.
However, I trust that we can have a principled discussion and debate with respect to the whole question of anti-terrorism law and policy that does not end up being a politicized and prejudicial debate, but one in which we can arrive at an all party agreement, both as a matter of principle and as a matter of policy.