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House of Commons Hansard #118 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was provisions.

Topics

Anti-terrorism ActOrders of the Day

4:25 p.m.

Liberal

Jim Karygiannis Liberal Scarborough—Agincourt, ON

Mr. Speaker, I am not sure if my colleague said he was from the Conservative, Reform or Alliance Party, CRAP. I was really confused.

However, terrorism is still among us. I stated in my opening speech that we needed to fight terrorism wherever we can. However, we have to do away with draconian measures.

Anti-terrorism ActOrders of the Day

4:25 p.m.

Conservative

Blaine Calkins Conservative Wetaskiwin, AB

Mr. Speaker, when this issue was last debated, a number of negative comments were made with regard to the fact that the motion did not address the House of Commons subcommittee's recommendations contained in its October 2006 report. I will take this opportunity to explain, particularly for the benefit of the members of that subcommittee who have worked so hard on this issue, the government's intentions when tabling the motion.

First, it is important to mention that the government fully endorses and has supported at every opportunity the reviews being undertaken by the House and the Senate committees. The subcommittee's report of last October on the sunset provisions, which was adopted by the Standing Committee on Public Safety and National Security, was an important first step in the review process. However, allow me to clarify exactly what the majority recommended in that report.

The majority made six technical recommendations regarding the drafting of the legislation, but there were three key recommendations: first, that the sunset provisions be extended to December 31, 2011; second, that there be further parliamentary review before any additional extensions beyond the first extension; and third, that the investigative hearing provision be amended to make it available only when a peace officer has reason to believe there is imminent peril that a terrorist offence will be committed.

What must be understood is that given the time constraints established by the Anti-terrorism Act, it has become necessary to proceed with the debate on the joint resolution on the sunset provisions before the parliamentary committees have concluded their reviews of the Anti-terrorism Act. To be sure, it is not the ideal situation, but the government has had to introduce the resolution without having received and without being able to respond to the final reports of the parliamentary committees currently reviewing the act.

Not to advance the motion would allow the provisions to expire by default. This is why we are proposing a three year extension as opposed to the five years as recommended by the House of Commons committee. There is a compromise here. Three years is enough. It will give the government the necessary time to receive and review the final reports of both committees and to design an appropriate response.

Do not get me wrong. I do not fault the House or the Senate committee for the delays that have been encountered with respect to the review of the Anti-terrorism Act. The legislation provides that the review was to begin within three years after the act received royal assent. As royal assent came in December 2001, the review started in December 2004. That was in the 38th Parliament whereby both committees undertook extensive and thorough studies of the act and its operations together with reviewing other related issues.

The Senate special committee held almost 50 meetings over the 2005 spring and fall sessions and heard from a variety of witnesses, including not only a number of ministers and government officials, but also from a wide variety of academics, non-governmental organizations, including many from different ethnocultural groups and civil liberties groups.

For its part, the House committee held almost 30 meetings over generally the same period of time and, as was the case with the Senate committee, heard from a variety of witnesses. The last witnesses heard were the former minister of justice and the former minister of public safety and emergency preparedness. At that point, in November 2005, both committees had retired to write their reports. Then the reviews were interrupted by the fall of the government in November 2005. Dissolution of Parliament meant the halt of the Anti-terrorism Act reviews.

Following the election of January 2006 and the installation of the new government, the reviews were recommenced. However, a lot of time was lost. The Senate committee was not re-established until May 2006 and the House of Commons subcommittee did not get going again until June. As a result of the summer break, the committee's work was almost immediately put on hold again, this time until late September 2006. At that time, the reports of both committees were anticipated to be tabled by December 2006. Both committees, however, recognized the difficulty with this. The House of Commons subcommittee has now moved its final deadline to the end of this month. The Senate committee has pushed its deadline to March 31.

The Anti-terrorism Act envisaged a certain timeline. The legislation would receive royal assent. Three years later, parliamentary reviews would be undertaken. The review in committees would report within a year and the government would then have a full year to respond to the committees before facing the sunsetting of the powers we are discussing today. For reasons beyond the control of the committees, this timeline has been abandoned.

As mentioned, the government is now in the position where it has no input from the Senate committee and only the recent recommendations from the House of Commons subcommittee pertaining to this issue.

I appreciate the fact that the House of Commons subcommittee tabled an interim report in October 2006, understanding full well how tight the timeline was and I appreciate their diligence and hard work. However, the government continues to await the final reports of both committees.

Because of delays in the parliamentary review of the Anti-terrorism Act, the committee had asked their respective Houses for more time to report. The government also needs more time.

In asking members of the House to support the extension of these provisions, the government is simply saying that it does not want these powers to expire while it is considering the House of Commons subcommittee's recommendations and awaiting its final report, hopefully soon, and the Senate's suggestions and final report.

Voting to extend the provisions is not a vote for the status quo. It is a temporary extension that will allow for the proper governmental analysis and the preparation of an appropriate government response and subsequent parliamentary debate. I want to make it abundantly clear that this motion is worded so as to comply with the statutory provision for renewing these provisions found in the legislation.

Some in the chamber have been asking why the motion simply extends the current powers. Why does it not take into account recommendations that have already been made? The answer lies in the wording of section 83.32 of the Criminal Code. That statutory provision only allows for a resolution to extend the application of the investigative hearing and the recognizance with conditions clauses. It does not allow for a resolution to be passed that changes these provisions in any way.

The only flexibility allowed by section 83.32 of the Criminal Code is that the period of extension may not exceed five years. Thus the resolution may provide for a period of extension which is less than five years. This is the case today, for the period of extension that the government seeks is for three years only, not for the full five year maximum.

Those who argue that the government is somehow disrespecting the subcommittee's intentions by proposing a three year extension must realize our limited options at this late stage. They should also consider that the effect of voting against the extension is to strike down and completely countermand what the committee recommended. The subcommittee recommended that the provisions continue in their effect, but with alterations. Voting against the motion means that the powers will disappear completely.

Some have suggested that these powers were meant to expire all along. This is simply false. There is no best before date on this legislation. If that were true, then there would have been no procedure built into the act that would provide for the possible renewal of these provisions. We all know that the act did provide such a procedure.

It is likely that one would have expected, as indicated earlier, that the act contemplated that the parliamentary review would have been completed, and that the parliamentary debate surrounding a motion to extend the sunsetted provisions would have been fully informed by the parliamentary recommendations and the government's response to them. We have seen that things have not quite turned out as planned.

While the House of Commons subcommittee has issued an interim report, we have not heard from the Senate yet nor had the final report from the House committee, and the government has not had the opportunity to provide its response to a completed parliamentary review of the act. To approve the motion to extend these provisions another three years would allow the original intent of Parliament to be realized. To defeat this motion, however, would be to defeat Parliament's original intent.

What we do know is that these powers have not been abused and that Canadians would be able to benefit from having these provisions in place by having these provisions renewed for another three years. I cannot, however, say that allowing them to sunset will not have serious consequences.

Anti-terrorism ActOrders of the Day

4:35 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, my friend's comments were reasoned and they were, after some emotion in the chamber, welcome.

I do want to pick his brains somewhat on what I consider to be the crux of the issue. When most of us were handling red hot copies of the decision on Friday around 9 or 10 o'clock we saw that there are provisions in other acts that deal with the war on terror Canadian style, which is much more deliberative cooperation between the judiciary, the investigative and the legislative branches.

There is a growth in terror legislation and how it is being interpreted. We have talked a lot about the 2004 Vancouver Sun case on section 83.28 vis-à-vis investigative hearings. We are up in the air with respect to preventive arrests. We saw on Friday that legislation was attacked successfully in part.

I can tell from my colleague's speech that this debate is very important to him. Does my colleague concede that we need, in addition to this debate, to take a holistic approach to anti-terrorism legislation in this country as the Senate report says?

Anti-terrorism ActOrders of the Day

4:35 p.m.

Conservative

Blaine Calkins Conservative Wetaskiwin, AB

Mr. Speaker, I have been hearing some good questions and some good debate, but the reality is when the rubber hits the road, there is one party in the House that actually means what it says and does what it says it is going to do with respect to providing security to the citizens of this country. Some pretty hefty words have been bandied about here today, and I do not want to drag the conversation down in any way.

When it comes to arming our border guards, the reality is that there is one party in the House that actually thinks our border officers have the capability to defend our borders. We are providing them with the capability to do their jobs even better.

To answer his question indirectly, I would put it back to the member. With respect to a holistic approach, or an approach that encompasses not just the clauses in the Anti-terrorism Act that are about to expire, but all other aspects of government responsibility for providing security, whether it is through airport security, whether it is gathering intelligence by CSIS, or whatever the case might be, the important thing is that we have mechanisms in place to prevent terrorist acts. For example, law enforcement officers should have the ability to intervene through a court order in the presence of a judge and stop or prevent a terrorist act from occurring. Is that not really important? That is what is at stake.

We are no safer today than we were five years ago when the bill was originally drafted and presented to the House. It was a Liberal government then and it is a Conservative government now. Members from all parties recognized the serious threat of terrorism and its impact on society. It happened in the United States, but we have had acts of terrorism in the past. There is the Air-India inquiry. The allegation is that failing to let these clauses continue will actually jeopardize this inquiry and jeopardize finding out who was accountable and what problems occurred in protecting the security of our citizens. We can only learn information from that inquiry.

The hon. member, if I remember correctly, is trained in the field of law. He knows this legislation has held up. These clauses that are about to sunset have held up to the scrutiny of the Supreme Court of Canada.

I would ask the hon. member to support the extension of the Anti-terrorism Act clauses and do the right thing for all Canadians when the opportunity presents itself.

Anti-terrorism ActOrders of the Day

4:40 p.m.

Liberal

Tom Wappel Liberal Scarborough Southwest, ON

Mr. Speaker, I am a member of the subcommittee that has been considering this legislation for over two years. I listened very carefully to my hon. friend's chronology. I want to say that for the most part of his chronology I agree with it completely. I think he has set it out correctly. I think he has set out the conundrum that we have found ourselves in, where the clock has continued to run, notwithstanding the fact that there have been intervening events, such as a general election, which prevented the subcommittee from in fact concluding its work. I wonder if the hon. member would agree with a couple of factual corrections.

In more than one occasion in his speech he mentioned that we have not yet heard from the Senate. In fact, the Senate issued its final report last week, I am sure he would agree.

I am also sure the member knows that the subcommittee concluded its work on the main portion of the Anti-terrorism Act last week and referred its report to the main committee. The House gave an extension of time on Friday to the main committee requiring it to deliver its final verdict on the Anti-terrorism Act by March 27. The reason for that is, as the hon. member said, time just keeps on going and yet there is not enough time for us to deal with this given the nature of the time limits within the legislation.

Would the hon. member agree that his recitation of the chronology would be more accurate if he agreed with what I just said?

Anti-terrorism ActOrders of the Day

4:40 p.m.

Conservative

Blaine Calkins Conservative Wetaskiwin, AB

Mr. Speaker, my colleague has asked a very good question. I do apologize. As a matter of fact, the Senate report has been released. I apologize if my speech did not get that completely accurate.

Regardless of the chronology of what report was released when and what the subcommittee did or did not do, the reality is that even if I have 95% of it right, which I think the hon. member would agree, the recommendations have been that we extend the sunset clauses for up to five years.

The government's position is that we would like to extend them for three years. We believe that would give enough time for the committees to finish their work appropriately and to report back to the House. This is very important work. As a matter of fact, I cannot think of more important work before the House than the legislation that looks after the safety and security of our citizens here in Canada.

I thank my colleague for pointing out a small error in my speech. I hope I have satisfied him with my answer. I appreciate the member's pointing that out to make sure that the record is correct. I certainly am looking forward to seeing how the hon. member votes on this motion.

Anti-terrorism ActOrders of the Day

4:45 p.m.

Conservative

The Acting Speaker Conservative Andrew Scheer

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Pickering—Scarborough East, Foreign Affairs; the hon. member for Gatineau, Government Appointments; the hon. member for Acadie—Bathurst, Employment Insurance.

Anti-terrorism ActOrders of the Day

4:45 p.m.

Conservative

Patricia Davidson Conservative Sarnia—Lambton, ON

Mr. Speaker, I am proud to stand in the House to speak in support of the resolution to extend the Anti-terrorism Act sunset clauses.

I would like to respond to what we have heard from some other hon. members during the course of this debate. For me, the most important point is that the threat of terrorism has not gone away since we last debated the Anti-terrorism Act.

In 2001 there was sufficient concern in the House about the potentially damaging effects of investigative hearings and recognizance powers that we would return to them after five years and see if they had been misused and if they were still justified.

Let us consider then where we are today. Have the powers been abused or caused any great harm to our system of tolerance, democracy and the rule of law? Quite the contrary, in the past five years recognizance powers have not been used at all.

In the one case where an investigative agency sought to use an investigative hearing, the result was litigation all the way to the Supreme Court which held that the power to conduct hearings and the related legislative scheme not only meets charter requirements, it exceeds them in at least one aspect.

The court did not just uphold the provisions; it told us how best to use them in practice. Its judgment has provided very helpful direction on how cases should be conducted in the future to ensure conformity with the charter and the appropriate balance of security, investigation, human rights and transparency issues.

I suggest that the record of the previous five years speaks for itself. What it says very clearly in my view is that the powers are not a threat to our human rights and civil liberties. The most, and worst, opponents of the powers can say is that they might be abused somehow, someday. That is precisely what they said in December 2001 and the result was the five year deferral we see today.

Why should our decision today be any different? They are no more a threat now than they were in 2001. If anything, the record should reassure those who have concerns that they will be used, if at all, only when absolutely necessary and only then with restraint. If abuses ever were to occur, we have in place the same judicial and other safeguards in the future that we have had in the past, reinforced by developments since 2001. Those protections will become even stronger with the passage of time.

Minimum impairment of human rights is one of the principles under which the charter is applied and by which any use of these powers has been and will be tested by the courts. We should be reassured by this. It is also a very practical requirement and one reason the powers are only used as a last resort.

It is hard to use these powers. Investigators will not use investigative hearings if lesser means will work, because they are difficult and complex to arrange and they make it impossible to use anything the subject says as evidence if that person later turns out to be involved as a terrorist.

Recognizance orders have always been limited to scenarios such as domestic violence where we know that a crime is likely and we believe it necessary as a society to intervene before the crime is committed to prevent harm to the victims. These are also scenarios where the conventional powers of the criminal law, especially deterrence and the threat of punishment have proven not to be effective.

Law enforcement agencies use these powers when they must, but will always find it easier to investigate and prosecute past crimes rather than to predict and prevent future ones. Unfortunately, some crimes are sufficiently horrific that we have a moral obligation to Canadians and to anyone else who may be victimized to do everything in our power to prevent them.

If the threat posed to Canadians by the investigative and recognizance powers has not increased in the past five years, what of the threat of terrorism itself? In 2001 we adopted the powers with the sunset clause in the hope that in 2006, looking at terrorism with more experience and a greater perspective, we might conclude that they are not necessary because the threat of terrorism has gone away. Can anyone in the House make such a claim? I certainly cannot.

I want to review what we have learned since the act took effect at the end of 2001. There have been horrific attacks on innocent civilians in Colombia, India, Indonesia, Iraq, Israel, Pakistan, Peru, the Philippines, the Russian Federation, Saudi Arabia, Spain, Tunisia, Turkey and the United Kingdom. Canada and Canadians have been publicly identified by leaders of al-Qaeda as targets of future terrorist attacks.

Our engagement in Afghanistan has cost the lives of 44 Canadian soldiers, including a very brave young man from my riding of Sarnia—Lambton, Private William Cushley, who fought alongside his comrades of the 1st Battalion of the Royal Canadian Regiment. Their great work to free millions from the oppression of these terrorists has unquestionably brought us to the attention of international terrorists.

An even more disturbing trend has been attacks on those involved in development and reconstruction. Peacekeepers, humanitarian workers, UN staff members and one of Canada's own diplomats have been murdered, people whose mission was nothing more than to improve the lives of the world's poor and marginalized and address the social conditions that breed hatred. This is work to which Canadians have always been committed and from which we cannot and will not be deterred.

There have also been a number of cases in which the vigilance of officials, using the legal powers provided to them by governments, have detected and foiled plots. These include plots that would unquestionably have killed and maimed Canadians.

I cannot, in view of the evidence, suggest that the threat of terrorism has gone away. It clearly has not. If anything, we stand today at greater risk than we did when these powers were first enacted. We have stood by our principles abroad in the global fight against terrorism and we have much to be proud of but there are costs.

Having fought terrorism abroad, we must also fight it at home, both for our own sake and because we made this commitment as a member of the international community. Our most fundamental principle in fighting terrorism is that we must do it in ways that respect the rule of law and which accord with our values as Canadians. We have not seen these values eroded in the past five years. We have seen them strengthened as our courts have upheld the legislation and as other states have used it as an example.

The power to conduct investigative hearings and to obtain and impose recognizance conditions is an important part of Canada's anti-terrorism legislation. I wish I could say that they were not but I do not think that I or any member of the House can reasonably conclude that Canada is not exposed to the threat or risk of terrorism or that we will never need powers such as these if and when such a threat materializes.

Others have said that they are not needed or justified because we have not been attacked or that we have rarely or never used these powers. My house has never yet caught fire and I hope it never will but I still expect the fire department to come if it does and to have the tools to put out the fire when they get there. Just as I expect my city to protect me from fire, Canadians expect the government to do all it can to protect them from terrorism.

I do not think we in this country can say that we live in such fireproof houses that we can start selling off our fire trucks just yet. There is no doubt that these are strong measures. I do not see the fact that they are seldom used as evidence that they are not needed. I see it as evidence that our law enforcement officials are exercising restraint in not using them unless absolutely necessary.

Our first commitment must be to the safety and security of Canadians but we also have other obligations. As an ally and as member state of the United Nations, we also have obligations to prevent and suppress international terrorism.

There are many such obligations. For example, in resolution 1373 of the UN Security Council, which was adopted in the wake of the September 2001 attacks against the United States, we are directed not only to refrain from supporting terrorism but “to take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other states”.

This is binding on Canada as a party to the charter of the United Nations and we are regularly called upon to report to the Security Council's counter-terrorism committee on what we have done to implement the requirement. Can we truly say that we have done all we can to detect pending terrorist attacks and warn our friends, neighbours and allies if we allow these power to lapse?

We are also party to treaties against terrorism, including the 1997 and 1999 conventions for the suppression of terrorist bombing and terrorist financing. Both of those require us to criminalize specific terrorist activities, as we have done, but they also call on us to provide all other states or parties with the widest measures of legal assistance in relation to their own criminal investigation. They also oblige us to investigate offences in Canada and to alert other interested states.

The treaties do not specifically require us to impose recognizance or conduct investigative hearings but we are obliged to have effective powers to prevent and suppress terrorism and to assist other states. There is no question that our capacity to meet these obligations will be weakened if these powers are allowed to lapse.

That in turn has other implications. Canada has taken a very strong position against international terrorism. We have supported strong and effective measures in international law and we have engaged all of our military development and reconstruction capacity in an effort to ameliorate and redress the conditions in Afghanistan, which spawned the worst acts of terrorism the world has ever seen, in the hope that they are also the worst the world will ever see.

The world allowed Afghanistan to become a failed state which paved the way for extremist groups like al-Qaeda to create a home base in which to launch their war of terror. Canada reacted by going to Afghanistan to meet the needs of this failed state. Canada also reacted at home for the need to strengthen our own laws. When there is need, Canada has responded. If we find ourselves in need, we expect our allies to respond in kind.

What will other states make of this weakening of resolve? How will they react if we allow these provisions to lapse? Canada has not just taken a strong position. We have also taken a balanced and nuanced one. We understand that, as a threat to human rights and the rule of law, terrorism must also and always be fought from within the frameworks of human rights and the rule of law.

While others may have succumbed to the temptation to take direct action, Canada has not and we should all be proud of this. Our own Supreme Court said as much when it upheld the power to conduct investigative hearings under the charter. It said:

--the challenge for a democratic state’s answer to terrorism calls for a balancing of what is required for an effective response to terrorism in a way that appropriately recognizes the fundamental values of the rule of law. In a democracy, not every response is available to meet the challenge of terrorism. At first blush, this may appear to be a disadvantage, but in reality, it is not. A response to terrorism within the rule of law preserves and enhances the cherished liberties that are essential to democracy.

The court did not just find that the power in issue met this test but that it exceeded it, especially in the protection against self-incrimination that was embedded in the legislation. It also set out conditions for the use of the provisions and ground rules for media access and transparency that ensure continuing conformity with the charter and fundamental Canadian values and safeguard human rights while ensuring the effectiveness of anti-terrorism measures.

One of the justices who wrote that opinion saw first-hand what can occur when the rule of law breaks down. Not long before that judgment, Madam Justice Louise Arbour was prosecuting offenders before the International Criminal Tribunal for Yugoslavia. Not long after that, she was appointed to one of the most important positions in the United Nations, that of high commissioner for human rights. In that capacity, she has continued to strongly advocate the need to fight terrorism from within the framework of the rule of law and she has cited this legislation in a Supreme Court decision on it as an example of how this can be done.

In my view, we have a duty to Canadians to be vigilant and that includes an obligation to protect and defend human rights. It also includes an obligation to protect and defend human security. We have pursued the goals of human security in the international community. Our obligation is to do no less at home here in Canada. Human security includes the security of Canadians. We have sought ways to protect ourselves and, in these measures, we have found a path that is effective and balanced.

The Supreme Court has said that it is demonstrably justified in a free and democratic society, and I agree. As long as the threat of international terrorism remains, so will our obligation to counter that threat and to protect Canadians.

We enacted these provisions on that basis in 2001. No member of this House can say that the threat has gone away. The threat to our basic rights and values does not lie in these investigative and preventive powers. It lies with those who would kill and maim Canadians in an attempt to shake our faith in those values.

That is why I will vote to extend these powers and why I urge all hon. members of this House to do the same.

Anti-terrorism ActOrders of the Day

5 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Mr. Speaker, I am pleased for the opportunity to speak to this issue. I wrote this speech a week and a half ago when the debate was first before the House and I needed an opportunity to speak.

As they say in politics, a week is a long time. We have had an extraordinary set of events over the course of that week. We heard the decision of the Supreme Court last Friday, a 9-0 decision, which is certainly a significant decision. We also had the attack on a member of Parliament by thePrime Minister of Canada in the House.

I know it came as a shock to the government members that the Liberal Party was prepared to embrace all of Bill C-36, not just the parts we wanted to tiptoe around. Unlike the Conservative Party, we voted for the entire bill. I sat on the justice committee five years ago when that bill was being considered. I was quite skeptical of those sections, the impugned sections that we are talking about today, and I was not very shy about saying so, both inside and outside of caucus.

In my view, on the evidence that was presented to us in the months following September 11, the evidence simply did not warrant the inclusion of these provisions in Bill C-36. There was quite an animated discussion both inside and outside of caucus on this and, indeed, on the Hill as well.

Hansard has me saying this on October 17, 2001, about a month after September 11:

Watching television last night I was struck by the eagerness of some Canadians to trade their rights and freedoms for security. It was both surprising and disheartening to me to hear caller after caller be prepared to give the government and parliament a blank cheque. It was also disheartening to hear Canadians make wild and outrageous links between immigrants, refugees and security. When people are afraid they say things that they would never otherwise say. They think things that they would never otherwise think, and they do things that they would never otherwise do.

It will be a test of our nation that has a reputation for stability and tolerance to deal with these fears. Otherwise the terrorists win. They win because neighbours turn on neighbours. Instead of reaching out we turn inward. We walk away from our rights for which previous generations have fought and died. The challenge is not to let terrorism win and to break this cycle of victimization where victims in turn victimize. I am hopeful that the justice committee will carefully scrutinize the bill.

We did in fact scrutinize the bill. Some of us argued long and hard that these sections were flawed and had the potential, and I emphasize potential, for abuse and would be used in ways, if they were to be used at all, that we would not otherwise have anticipated. Quite a number of caucus members spoke against these provisions and the prime minister and minister of justice of the day agreed to put a term limit on these sections of the bill.

After third reading, a reporter put a microphone underneath my nose and asked me how I could have voted for Bill C-36. I said it was very difficult. Again I quote myself from Hansard:

None of us will be enthusiastically voting tonight. Possibly after the work of the committee we are somewhat less unhappy, but no one would introduce this kind of bill unless the circumstances justify it.

There are three conditions which erode civil rights: unanimity of purpose, just cause and great uncertainty. We have unanimity of purpose. Canadians want something done. We have a just cause in the fight against terrorism. We have great uncertainty. The population is quite nervous. We have eroded civil liberties, but will our Faustian bargain give us greater security?

We now have five years of experience under our collective belts and with one notable exception, the provisions have never been used. The Air-India inquiry is the notable exception, but at the committee, in caucus and on the floor of the House, I cannot recall any member, any minister or any official ever saying that this could have a retrospective application. Therefore, in some respects, the Air-India inquiry comes to me as a surprise.

It was sold to us on the basis that it would have only a prospective application; that is, the police, or the RCMP or CSIS would have reason to believe that something bad was about to happen. Then they would use the provisions, which we are talking about, to prevent that bad thing from happening.

Using the section for an inquiry like Air-India was certainly something that did not cross my mind and possibly did not cross the minds of many of those who voted in favour of Bill C-36.

No legislation is proposed in an isolated environment. Laws are proclaimed and laws are withdrawn on the basis of experience. What is our experience thus far?

On the security side of the ledger, clearly we are much better prepared than ever. We have had arrests and incidents which have thus far been contained by good intelligence and good police work. On the funding side, we have built up the capability of our intelligence, police, security and military services over the past five years with very significant resources. I dare say that those budgets have possibly grown the most of any budget passed in the House in the last five years.

On the human rights side of the equation, however, the record is somewhat less clear and not nearly as sterling. We just had a Supreme Court of Canada decision, which was a unanimous decision, that detention certificates were unconstitutional. Taking away the liberty of the citizen and others without trial, without access to the evidence and without counsel is an anathema in a free and democratic society. I thought the court's comments were balanced, reasoned, fair and respectful to Parliament and the government's foremost obligation to protect its citizens.

Mr. Arar could have used some of that protection. I cannot recall a case of any Canadian citizen in all of our history where the rights of a citizen have been so abused. Supplying dubious intelligence, cooperating in the extraordinary rendition by a foreign country, knowing that he would be tortured or having reasonable apprehension that he might be tortured is about as bad as it gets. The result is the resignation of the RCMP commissioner, an apology from the Prime Minister and compensation in excess of $10 million.

Apparently, Justice O'Connor's inquiry is even having effects in European nations, where European nations are reconsidering their willingness to allow airplanes for the CIA to land on European soil in order to complete these renditions to other countries. In those countries there has been a great deal of soul-searching going on as to what laws and what cooperation they will offer in the future. Unfortunately, soul-searching does not appear to be the strong suit of the Prime Minister or the government.

What was the Prime Minister thinking about when he attacked the member for Mississauga—Brampton South? Did he really think that a scurrilous attack on a fellow member, who happens to be a Sikh, would somehow enhance the debate between security and rights? Did he really think that this was going to be a contribution to the two major tasks of government: the right of citizens to expect that their government provide security and the right of all citizens to live freely and face their accusers in an open trial with all the evidence? What was he thinking about?

Does he really believe that baseless allegations contribute to an atmosphere of reasoned debate or is this feeding some other agenda, that thePrime Minister really will do anything, absolutely anything, to get his majority? Does this not play into his pandering to fear in Canadians, much like I read out in my quote from Hansard of five years ago, playing to the fears in the population?

The respective merits of whether to sunset or not sunset are irrelevant to the tactics narrative, tough on crime, tough on terrorism. The reality is that security, citizen's rights, reasoned debate and just plain common decency give way to the tactics narrative in pursuit of a majority. Destroy a live, who cares? Destroy a family, who cares? Destroy a nation, who cares? “I have got my majority”.

The Prime Minister, and I do not know whether it is advertently or inadvertently, gave a classic display of the abuses that those of us who sat on the committee five years ago were most worried about. He took a newspaper article and tied it to a member's family and the Liberal position on these clauses.

Surely, it was fundamental to ask questions like these, after all he is the senior political officer in our country. How did the newspapers secure a secret list of potential witnesses? If someone handed him an article just before question period, is that not a fundamental question? It seems fundamental to me. How did that newspaper receive that secret list? Would it not be perfectly ordinary for any prime minister to ask, who would leak such a thing? Why would they leak such a thing? What is the motive?

If for no other reason but simply to protect his own government, would he not ask, “Could my government have been involved in such a leak?” Would he not ask that kind of a question? Is that not a straightforward question to ask before he would engage in a long term smear, knowing full well that these sections on sunsetting or not sunsetting were going to be implicated in some way?

If he is not worried about his own government and he wants to get in his tactical narratives, et cetera, surely to goodness he would have the victims of the Air-India inquiry in mind. These people have been seeking a form of justice for literally years now. Would this not be a fundamental question to ask? “Is my attack on the hon. member going to compromise the integrity of that inquiry?” Is that not a fundamental question?

I do not even know whether he does not care. I think he will do absolutely anything to get a majority and he really does not care how he gets there.

Are witness lists not to be held in the strictest confidence? What little association I have had with inquiries is that they are guarded like Fort Knox, so how does one get those kinds of witness lists?

Using his bully pulpit as the Prime Minister of Canada, the biggest bully pulpit there is in the country, using his bully pulpit to undermine the integrity of the commission of inquiry, what was he thinking about?

Finally, there are the victims of Air-India. As I say, these people have sought justice for years. Surely to goodness a scurrilous and baseless allegation such as this will only lead to the undermining of the quality of that inquiry.

As I look back on my time here and my time on the justice committee, I feel some justification for my skepticism. I do not think that we can deal with terrorism lightly. I do not think we can just join hands, sing Kumbaya and hope that terrorism will somehow or another go away. Terrorism is real. There are indeed those who wish to do us harm. Some even live among us. And threat assessment is not an exact science.

However, as legislators we must only create laws that are proportionate to the reality of the threat. In my view, these provisions are an overreach, disproportionate to the threat, and cannot be justified in a free and democratic state.

Part of Justice O'Connor's report dealt with the policy review of the RCMP's national security activities. He said at page 22:

The national security landscape in Canada is constantly evolving to keep abreast of threats to our national security. It is vital that review and accountability mechanisms keep pace with operational changes. A review in five years' time should assist in this respect.

We have now had five years with Bill C-36. The evidence of the need for these sections was sketchy at the time. The government of that day felt sufficient discomfort to build in an exit ramp. No evidence in these five years has come forward to justify the retention of these sections. This continues to be a significant intrusion into the rights of all Canadians. Therefore, it is my view that these provisions should sunset.

Mr. Speaker, I put it to you that actually the government had been offered a couple of other alternatives. I see the hon. member for Scarborough Southwest sitting down there, and I know that he and his colleagues have worked diligently on this particular section of Bill C-36. I am somewhat disappointed not to see the government coming forward with legislation that reflects the hard work of that committee. I am also disappointed that the government has not come forward with legislation that reflects the work of the Senate.

I have heard arguments in the House that the election intervened and things of that nature. What I have read of the reports is that there are certain decisions that could be taken, that could have been presented by the government, and which would have addressed a number of the significant human rights concerns that have been raised over the course of this period of time, while still addressing the security concerns, those twin responsibilities of government.

I know that our leader has offered cooperation to the government in the event that the government could present comprehensive legislation such as this, but, for whatever reason, the government has chosen a straight up, straight down vote. Unfortunately, I therefore find myself in a position where my skepticism over this period of time has been justified, and my view is that these impugned sections should be allowed to sunset.

Anti-terrorism ActOrders of the Day

5:20 p.m.

Conservative

James Lunney Conservative Nanaimo—Alberni, BC

Mr. Speaker, I have a couple of questions for the hon. member.

First of all, he stated that the Supreme Court ruled that the security certificates are unconstitutional. I believe the hon. member knows full well that the Supreme Court ruled that some aspects of the application process are problematic, and the court provided some guidance, and a year, to Parliament to implement such provisions. So I wonder why the hon. member would make such a statement when he knows that in fact this is not the case. In fact, when the changes are made and the government does respond, I hope the member will support those changes.

Second, I heard the member refer to a scurrilous attack on a member of this House. I presume he is referring to an attack that did not happen. We saw that members on the Liberal side were in a frenzy the other day when there was a reference to an article in a newspaper, but I did not hear any of these members taking exception to the journalist who wrote the article or to the newspaper which published the article that linked a member of this House to the matter before the House right now, and as far as the Air-India inquiry is concerned, and to the provisions we are discussing today. Now I hear the member alleging that somehow the government might be responsible for the newspaper article itself. I wonder where he gets that from.

The fact is that the provisions of the Anti-terrorism Act that we are discussing today are necessary to sorting out and getting to the bottom of the Air-India inquiry. It was the worst terrorist incident in the history of this country, with 329 Canadians dead, and I think the question of a bungled investigation is part of what Canadians would like an answer to. I wonder why the member and his party are not supporting those provisions so that we can go ahead and get to bottom of it.

Finally, he stated just recently that these provisions are not justifiable in a free and democratic country. He knows full well that the Supreme Court itself ruled that the investigative hearings are justifiable. Is the member disagreeing with the Supreme Court?

Anti-terrorism ActOrders of the Day

5:25 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Mr. Speaker, had the scurrilous allegations against the member for Mississauga—Brampton South been simply left as a Vancouver Sun article, it would have just simply meant absolutely nothing to anybody here; I mean, Vancouver Sun, really.

What happened is that the Prime Minister brought it up. The Prime Minister brings it up and he incorporates the article by reference onto the floor of the House. It would not have meant anything had The Vancouver Sun just simply been The Vancouver Sun, and who pays much attention, but no, the Prime Minister of Canada brought it forward and gave it the full force of the authority that he has here.

It strikes one as extraordinary that he incorporates by reference an article he has not investigated, which I presume is true, and he therefore does not know whether the basic facts are true. He uses that in a partisan way to achieve an end and, in the process, raises the whole question of the validity of the Air-India inquiry. He jeopardizes the entire inquiry for partisan advantage. What could he possibly have been thinking when he did that? I just do not understand. What seems to me to be the truth is that the Prime Minister just does not understand the dignity of his office and the responsibility of his office.

As to whether it was pre-orchestrated on this side, not one of us anticipated that the Prime Minister would raise this in a question period.

Anti-terrorism ActOrders of the Day

5:25 p.m.

Liberal

Tom Wappel Liberal Scarborough Southwest, ON

Mr. Speaker, I have a comment and then a question for my hon. colleague.

My comment pertains to something my hon. colleague mentioned. In looking at the act with respect to recognizance with conditions, section 83.3, otherwise known as preventative arrest, that section deals with “reasonable grounds” to believe “that a terrorist activity will be carried out” or “to prevent the carrying out of the terrorist activity”. So indeed, that is in fact forward looking.

On the other hand, for investigative hearings the act states, “A judge to whom an application is made under subsection (2) may make an order for the gathering of information” if he or she believes “there are reasonable grounds to believe that...a terrorism offence has been committed”. That is the past. Then it goes on to also talk about future terrorist offences.

It is clearly within the purview of the investigative hearing that it can be used for the prospective, for the future, and this is one of the reasons that the subcommittee in its report, which it presented to the main committee and which the main committee adopted, recommended that the investigative hearing provision be amended so that it may deal only with the future. Because clearly it can deal with the past, and the committees were of the view that once an offence has been committed there are sufficient investigative tools in the arsenal of the police that they do not need investigative hearings.

My question for the hon. member pertains to his historical recollection. The hon. member and I are in neighbouring ridings. I recall very specifically his passionate concern about these two sections. In fact, I remember us having public hearings in Scarborough with affected communities, where we talked about these very issues and about the perception that certain communities were being targeted. In his speech, the hon. member said there was a lot of worry that these sections might be used in such a way as to abuse citizens' rights. I want to know if that is in fact the main reason he recalls that--

Anti-terrorism ActOrders of the Day

5:25 p.m.

Conservative

The Acting Speaker Conservative Andrew Scheer

The hon. member for Scarborough—Guildwood.

Anti-terrorism ActOrders of the Day

5:25 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Mr. Speaker, I appreciate the hon. member identifying the distinction between prospective and retrospective. I am glad to see that the committee report picked up on that very point.

Certainly in the environment of the time we did not talk about retrospective application of investigative hearings. Possibly we should have, but we did not. I do not recollect any debate either in the House or in committee about that very point.

I also agree with my colleague with respect to those communities that felt they might be affected and aggrieved by these particular sections. I have no concrete evidence that this in fact has happened. Nevertheless, it is a significant and worrisome intrusion on people's civil liberties and there is some justification in some communities to feel that they are targets of this particular legislation. I wish that were not so, but I am afraid it is.

Anti-terrorism ActOrders of the Day

5:30 p.m.

Conservative

Ken Epp Conservative Edmonton—Sherwood Park, AB

Mr. Speaker, I have great respect for the member. I appreciate his good, calm way of presenting his arguments today. I contrast that sharply with a member who spoke previously and who made all sorts of scurrilous and untrue accusations against me and my colleagues.

I wonder, when the member talks about this attack on one of their members, presumably by our Prime Minister, whether perhaps he would be ready to admit that there is some evidence, and there have been some occasions, where the Liberal government at the time did in fact use its position in order to protect some of its own, and perhaps that was the reason.

We on this side I think are very puzzled at the flip-flop of the Liberal Party on this particular issue. In a way, I regret that it has become so highly emotional and so politicized. I really wish that we would be able to pass the legislation to prevent the sunsetting at this time and that we could carry on with the finest tradition of protecting our citizens.

Those are my comments. Perhaps the member has a response.

Anti-terrorism ActOrders of the Day

5:30 p.m.

Liberal

John McKay Liberal Scarborough—Guildwood, ON

Mr. Speaker, scurrilous seems to be the word of the day and hopefully the hon. member will help us with the definition.

I agree with him that it has become emotional and politicized. I regret that very much. These are very serious issues and I regret very much that the Prime Minister chose to take that route. I regret that he chose to attack the hon. member and therefore put into play the validity of the investigative section of Bill C-36 and to raise the very fears that my hon. colleague from Scarborough Southwest and I were talking about just a moment ago, that these kinds of hearings can be used, frankly, as fishing expeditions and in the process, people's reputations and lives are compromised.

I find that very regrettable on the part of the Prime Minister.

Anti-terrorism ActOrders of the Day

February 26th, 2007 / 5:30 p.m.

Liberal

Tom Wappel Liberal Scarborough Southwest, ON

Mr. Speaker, I will be splitting my time with the hon. member for Mount Royal.

In the brief 10 minutes that I have to speak on this very important topic, I want to say what my interest in the subject matter is.

In December 2004 I was appointed as one of three representatives of the Liberal Party to review the Anti-terrorism Act. We worked long and hard from December 2004 until approximately October 2005. When we were about to begin drafting our report, it became obvious that an election was looming and we were unable to complete that report.

In the new Parliament, the subcommittee was reconstituted under the aegis of the public safety and national security committee. I was again appointed by my party as one of the Liberal representatives on the subcommittee, the other one being the hon. member for Etobicoke North. We worked from the time the subcommittee was constituted literally until last Tuesday to complete our final report which was then sent to the public safety and national security committee for its full review. That committee will review it and report no later than March 27. A tremendous amount of work has gone on in that time.

I want to point out to people who might be watching what we are debating today. We are debating a statutory order and it is very specific. It is very specific because it is proscribed by the language of section 83.32 of the Criminal Code. There is no wiggle room. We either extend these sections or we do not. That is what the section says and that is what the statutory order has to follow. Unfortunately, that is a major problem.

Both Houses of Parliament have been studying this legislation and have heard from a tremendous number of witnesses as to what is or is not good or bad about it and what should or should not be tweaked. Unfortunately, the Senate only reported last Thursday and as I said, the House of Commons Standing Committee on Public Safety and National Security will not even be able to report until more or less the end of this month, long past the time these sections will sunset unless they are extended.

These sections talk of two things. The first is investigative hearings. Under this provision, a peace officer, with the prior consent of the attorney general, can apply to a superior court or a provincial court judge for an order for the gathering of information. If it is granted, the order compels a person to attend a hearing before a judge, answer questions, and bring along anything in his or her possession.

The second deals with recognizance with conditions which is otherwise known as preventive arrest. With the prior consent of the attorney general, a peace officer, believing that a terrorist act will be carried out and suspecting that the imposition of a recognizance with conditions or the arrest of a person is required to prevent it, may lay an information before a provincial court judge. That judge may order that person to appear before him or her. A peace officer may arrest, without warrant, the person who is the object of the information, if such apprehension is necessary to prevent the commission of a terrorist activity.

This is what we are talking about. Both of these provisions are known to Canadian law. There are equivalents to investigative hearings which are investigatory and not intended to determine criminal liability within the context of the law related to public inquiries, competition, income tax, and mutual legal assistance in criminal law matters.

As well, there are provisions similar to recognizance with conditions that do not necessarily adversely affect rights and freedoms within the criminal law related to peace bonds issued to deal with anticipated violent offences, sexual offences, and criminal organization offences.

Both legislative measures are consistent with and grow out of provisions well known to Canadian law. Both provisions have sufficient protections to ensure that rights and freedoms are protected.

In relation to both investigative hearings and recognizance with conditions, there has to be prior consent of the attorney general. Judicial authorization is required, and a judge presides over the proceedings themselves among other protections set out in the Criminal Code.

The mere fact that a legislative measure has not been used, and these have not been used, does not mean that it is no longer required.

The committee which reported to this House believes they should be retained within the arsenal of tools that should continue to be available to counter terrorist activities. It also believes, however, that legislative amendments are required to this part of the code to restrict and clarify some elements of this part of the anti-terrorist law adopted by Parliament. The committee advised Parliament of six or seven specific amendments that it suggests.

This is Liberal legislation. I voted for it. On March 22, 2005, Anne McLellan, the then minister of public safety and emergency preparedness, appeared before our subcommittee. On March 23, 2005 the then minister of justice appeared before our subcommittee. In both cases they indicated that there was nothing wrong with these provisions and they urged the committee to recommend that they be continued.

In the new Parliament on November 16, 2005, the then minister of justice and the then minister of public safety Anne McLellan, appeared and advised us again that we should extend these provisions. On June 21, 2006 the minister of justice and the minister of public safety of the current Conservative government appeared and said the same thing. In fact, one would have thought they were reading the same speech prepared by the same bureaucrats notwithstanding that they were different governments.

This is the evidence that we heard. Given that, we have four arguments, as I see it, not to extend. Some would argue that these provisions are contrary to the charter. I simply dismiss that argument. It is simply not a valid argument. The provisions have been found to be constitutional. In fact that is what the ministers of justice told us. We have been told that they are not used. If these are sunsetted, then they are gone.

My recollection of history is that the sunsetting clauses were put in because there was great fear that these sections might be abused. Not only have they not been abused, they have not even been used, but that does not mean that they might not be used in the future. As one of my colleagues said in caucus last week, just because he has not had an accident and deployed his airbags does not mean that he is going to take the airbags out of his car. I could not agree with him more.

Some would say that the provisions are not needed any more. I would ask on what basis does someone make that statement? All of the people who have access to top secret information in this country, law enforcement officers, the ministers of the Crown of both the Liberal and Conservative governments, top bureaucrats dealing with CSIS and CSE and all of those organizations, urged us not to sunset these clauses. They are the people with the knowledge that we do not have. They are the people who have top secret clearance and get to see things that we do not.

I ask those who say that these provisions are no longer needed, what is the evidence upon which they base that argument, especially in the face of our committee specifically hearing time and again from people with the highest clearance possible that in order to protect this country, these clauses should not be allowed to sunset.

I do not say they are perfect and that is why our committee issued an interim report urging the government to consider certain amendments. These sections are going to sunset. If they sunset, they cannot be fixed. Yes, we can bring back legislation later on; to try to bring them back in a fixed form is entirely possible, but it is very difficult for me to comprehend why we would be told by those who have information to which we can only possibly guess that these sections should not sunsetted. It is difficult for me to understand why we would allow them to sunset.

It is a very difficult area. Someone else in my caucus said that this is an issue where reasonable people can reasonably disagree on an issue. I agree with that, but I have to look at the people who have the knowledge. They are the people who have top secret information and they have told us that these sections are required to protect our country.

What else can I say in contributing to the debate other than those observations.

Anti-terrorism ActOrders of the Day

5:40 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, first of all, I would like to point out that I sat on the same committee as the hon. member for Scarborough Southwest. He has worked exceptionally hard, which must be recognized. The other committee members also recognize his hard work. At long last, there was a committee that managed to work beyond party politics, and that tried to find the best possible balance between respecting rights and the effectiveness of measures taken.

However, that is precisely one area on which we could not agree. I will nevertheless ask my hon. colleague the following.

Is it not surprising that, not only were these measures not used, but that no one could give us an example of a case in which they could have been used? No one was able to explain to us how these measures could have prevented terrorist acts that have already been committed.

In my opinion, when new legislation is proposed, as this was in 2005, the burden of proof lies with those who are proposing new measures that go against the Charter, for example, or at least against current judicial rules. It is up to them to demonstrate that those measures can in fact be useful.

As I was saying earlier, this legislation is so poorly written and so complicated that no one has the knowledge or the time to study it and pass judgment. In fact, the debate is precisely on a matter of trust, as the hon. member for Scarborough Southwest pointed out.

Do we trust those who are saying they need it or do we trust those who are defending individual rights, such as the university professors who have studied this and who are saying it is dangerous? Again, I believe the onus should be on those who are proposing to maintain an exceptional measure in our law.

Anti-terrorism ActOrders of the Day

5:45 p.m.

Liberal

Tom Wappel Liberal Scarborough Southwest, ON

Mr. Speaker, the hon. member, who was a member of the original committee in December 2004, has been on the committee throughout that time. In my opinion, he has contributed invaluable work, not only for the positive suggestions that he has made but for asking questions just as he did. If we do not have questions like that, then we do not advance the debate, dig deeper or burrow down and find out the answers.

Contrary to what he says, one of the examples that was given of the potential use of investigative hearings was in the context of the Air-India debate. I am not talking about what has transpired in the last couple of weeks. I am talking about long ago when the RCMP was still investigating. We were told that it was contemplated but that for a variety of reasons it was decided it would not be used. That would be a example of the kind of technique that would have been put in place at that time and a concrete example of what it could have been used for.

However, the answer we have been given is along the lines of what my colleague from Scarborough—Guildwood was talking about, and that is to try to prevent something from occurring as opposed to doing something about something that has occurred. The whole idea is to have a range of tools that the police can use in a situation where there are reasonable grounds to believe that something has happened but not enough perhaps to get a warrant or enough to pull someone off the street.

One of the arguments that was advanced by the previous Liberal minister of public safety was that just because it has not been used, who is to say that it has not been effective. Perhaps simply because it is on the books it has been effective.

Anti-terrorism ActOrders of the Day

5:45 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

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.

Anti-terrorism ActOrders of the Day

5:55 p.m.

Conservative

Ken Epp Conservative Edmonton—Sherwood Park, AB

Mr. Speaker, I have a very short question for the member.

He used the word principled on a number of occasions. I think that we all agree in this place that when one acts on principle, one acts unselfishly and to the best of his or her ability for the benefit of others in our society, especially those of us who are working in this place.

The member, earlier in his speech, said that he believed these provisions should be retained. Now he is saying that on principle he will be abstaining. To me, that is sort of an internal contradiction. I would like him to explain that, please.

Anti-terrorism ActOrders of the Day

5:55 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, as I said, I initially proposed that these provisions be sunsetted and subject to parliamentary review. I will quote from that article, which I did not wish to do in my opening remarks. It states:

It would appear, therefore, that an important oversight mechanism to determine both a justification for, and efficacy of, this novel procedure--

--i.e. preventive arrests and investigative hearings--

--is to subject it to a full sunset clause, thereby allowing for reassessment—and re-enactment where it has proven itself—after some three years time; as well, the federal Attorney General...and their provincial counterparts—are required to report annually on these enforcement mechanisms. The Committee on Justice and Human Rights should exercise its oversight capacity respecting these annual reports and make appropriate recommendations where necessary.

I wrote that close to five years ago. I still maintain that exact same position. The only change is that with the experience of the last five years, I am now prepared to support an extension, pending parliamentary review and pending the safeguards. I am exactly where I was initially. I proposed that they be sunsetted subject to parliamentary review and appropriate safeguards. I say now that I would support them pursuant to parliamentary review and appropriate safeguards.

My position remains the same as it was then. I believe it is a principled expression as set forth in the article and as I have tried to demonstrate today.

Anti-terrorism ActOrders of the Day

5:55 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, we know about the previous speaker's past. The hon. member for Mount Royal and I were very idealistic in our youth. We associated with people who fought against injustice. Some of the people I associated with may have chosen to embrace not a peaceful solution, but a violent solution. When it comes to obtaining security information, relationships between people can be reasonable grounds to think that we may have been their accomplices once, when nothing could be further from the truth. This could happen to our children.

If one of children were suspected of this and was compelled to testify before a judge, he would probably agree to sign the recognizance in question. What would happen to his travel opportunities, now that he is labelled by a legal ruling for signing a recognizance under antiterrorist legislation? Could he travel by plane to the United States? Could he cross many borders? Will this help or hinder him when he looks for a job? Perhaps his talents would allow him, as was the case for the previous speaker and me, to succeed in private practice. You can see how dangerous this can be. Compared to the real risk that a government would abuse this, let us look at the benefits of these measures. No one can say—

Anti-terrorism ActOrders of the Day

6 p.m.

Conservative

The Acting Speaker Conservative Andrew Scheer

The hon. member for Mount Royal has the floor.

Anti-terrorism ActOrders of the Day

6 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, as the member said, we were all working towards a common goal, which I would define as the pursuit of justice.

Regarding the relationship between protecting security and protecting human rights, I think the relationship must be based on the principle of protecting human security. There are two approaches to this. The first is to see terrorist attacks—particularly those committed by international terrorists—as attacks on the security of our democracy and on our individual and collective rights to life, security and protection of freedom. However, the application of the Anti-terrorism Act and of anti-terrorism policy must still work with the rule of law, with the Canadian Charter of Rights and Freedoms, and with the principles of human rights.