Mr. Speaker, I can think of no greater duty for a government than to provide for the safety and security of its citizens. The government has clearly demonstrated its commitment to that duty since taking office.
In the aftermath of the September 11 terrorist attacks, Canada put in place the Anti-terrorism Act. Canada's new government continues to support the need to provide the necessary tools to police and prosecutors to prevent, disrupt and deter terrorist incidents.
The motion put before the House today concerns two measures which came into effect five years ago. First, the investigative hearing power in the Anti-terrorism Act. This enables law enforcement officials to investigate and obtain information about terrorism offences.
Second, the recognizance with conditions provision is designed to disrupt emerging terrorist activity by putting a person under judicial supervision. These provisions are designed to prevent the carrying out of terrorist activities and make Canada a more difficult environment for terrorists to operate in. Because terrorism can result in mass destruction and death, punishment after the event is not enough. We must adopt a preventive approach.
Therefore, the key aspect of the provisions under consideration today is prevention, and that is something I believe all Canadians can support. They would also agree that preventing terrorism is not only a Canadian responsibility, but a global responsibility, and prevention of terrorism is an essential goal that we should all share.
Our legislation must be consistent with the Charter of Rights and Freedoms. It must respect human rights. It must be proportional to the threat. It must, at appropriate points, involve the judiciary and it must have effective procedural safeguards.
The investigative hearing and the recognizance with conditions meet those high standards. They are core elements of an appropriate legislative response to terrorism.
The investigative hearing provision has been upheld by our nation's highest court. It allows a peace officer investigating a terrorist offence to ask a judge to require a witness to answer questions before a judge or produce evidence, such as documents or recordings.
When the procedure was scrutinized and affirmed by the Supreme Court of Canada, the court had this to say about the safeguards built into this legislation:
It is clear from the above discussion that the procedural protections available to the appellant in relation to the judicial investigative hearing are equal to and, in the case of derivative use immunity, greater than the protections afforded to witnesses compelled to testify in other proceedings, such as criminal trials, preliminary inquiries or commission hearings.
It is important to remember that these hearings are not meant to punish, but to obtain information that can help prevent a terrorist offence. Not only can they be used to gather information in respect of potential future attacks, but they can also be used to assist in finding the perpetrator of a past attack, who could thereafter be prosecuted and convicted and, most important, prevented from carrying out additional attacks.
A person appearing at an investigative hearing appears as a witness, not as an accused person. The advantage of such a hearing is that a person may be asked questions in a judicial forum where information can be properly received and evaluated.
These hearings, from an investigative standpoint, would likely be more often used to garner information from a peripheral person rather than the actual target of a terrorist investigation. This individual could be brought in and questioned in order to gather information to open up new leads and move the investigation forward. It could also conceivably assist in possible cases where a person may want to come forward, but would be reluctant to be seen to volunteer information in aid of an investigation.
This is an exceptional power. For that reason I emphasize that it can only be used with the proper authorizations. Parliament clearly recognized that it should only be used in very particular circumstances. This House attached many safeguards to its use, including the following: first, requiring the prior consent of the relevant Attorney General; second, giving witnesses the right to retain and instruct counsel and protecting them against self-incrimination; third, requiring federal and provincial attorneys general to report annually to Parliament on the use of these powers; and fourth, making it subject to a five year sunset clause.
The investigative hearing provision has been invoked just once in 2003 in connection with the Air-India case, and even then the hearing was never held. As I said earlier, the Supreme Court of Canada held in 2004, in connection with the same case, that the investigative hearing process was, in fact, constitutionally valid.
The investigative hearing procedure is not without precedent. Indeed, this type of procedure is well known in Canadian law. It parallels procedures employed in the Mutual Legal Assistance in Criminal Matters Act, public inquiries, and coroners' inquests. In addition, section 11 of the Competition Act incorporates court ordered investigative hearings, which are generally held to determine how markets operate and how companies compete with each other.
This type of procedure is also well known in other countries. Australia and South Africa employ a similar legal measure to help investigate terrorist threats to their citizens. The United States has a longstanding grand jury system, and the United Kingdom has a regime under which failure to disclose material information to a constable in relation to a terrorism investigation is a criminal offence.
We are at the five year deadline. We would be neglecting our duty if we allowed these important tools for investigating and preventing terrorist acts to simply expire. Allowing this provision to sunset is not a reasonable option. While some critics of the act would no doubt welcome this option, failing to renew this and the recognizance provision would deprive all Canadians, including the police, prosecutors and the judiciary, of the tools needed to prevent terrorist activities.
Another essential measure in the Anti-terrorism Act is the recognizance with conditions provision. This provision is sometimes known as preventative arrest, which is a very misleading term I should say. Its purpose is not to arrest a person, but to put that person under judicial supervision in order to prevent a terrorist incident.
This provision is meant to be used to allow a person to be released under his or her own recognizance to keep the peace and be of good behaviour, and where warranted, to submit to certain other reasonable release conditions. Such measures are not new in Canadian law. For example, judges have long had the power to require a person to enter into what is sometimes called a peace bond. Such recognizances are used in relation to personal injury and child sex offences as well as criminal organization offences.
The recognizance with conditions in the Anti-terrorism Act is a version of a peace bond. It is designed to prevent, restrict, or disrupt preparations for terrorist activity. For example, these provisions could be useful against individuals who are raising funds or otherwise facilitating the activities of terrorist organizations.
To employ this procedure, the police must obtain the prior consent of the appropriate attorney general. They can only obtain this consent if they believe on reasonable grounds that a terrorist activity will be carried out and suspect on reasonable grounds that the imposition of a recognizance with conditions on a person or the arrest of a person is necessary to prevent the carrying out of the terrorist activity.
In certain limited circumstances, the police may arrest a person without a warrant in order to bring him or her before a judge. A person detained in these circumstances must be brought before a judge within 24 hours, or if no judge is available, as soon as possible thereafter. A hearing is then held with all parties present, including the person's counsel.
At this hearing the judge evaluates the evidence and determines whether the police officer has reasonable grounds for the suspicion. If so, the judge then decides whether it would be advisable to order the individual to enter into a recognizance obliging that person to comply with certain conditions before being released. These conditions might include a curfew, restrictions on the use of telephones or computers, or travel restrictions. Should the person not agree to comply with those conditions the judge may order that the person be detained for up to 12 months.
As with the investigative hearing power, this provision contains robust legal safeguards to protect the rights of the individual, including reporting requirements for federal and provincial attorneys general, the Minister of Public Safety and provincial ministers responsible for policing. It is important to understand that while the police may make an arrest without warrant, they must still subsequently obtain the consent of the relevant attorney general. Also, under these provisions, it falls to the judiciary to determine whether conditions affecting a person's liberty will be imposed. It is not for the police to do so.
Both the investigative hearing and the recognizance with conditions provisions are preventive in nature. In each case, their intended use is to bring a person before a judge, either to advance the investigation of a terrorist offence or to prevent an act of terrorism.
Some would argue that we should eliminate these provisions because they are so seldom required. That would be akin to getting rid of our fire extinguisher because we have never had a fire.
Justice Canada monitors the use of these Anti-terrorism Act provisions in cooperation with other federal departments and our provincial and territorial counterparts. Frankly, we should take great comfort from the restraint shown in their use thus far.
Parliament clearly recognized in 2001 that these safeguards were appropriate and that they were necessary. Parliament just as clearly recognized that we needed new powers to deal with the exceptional new threat posed by international terrorism. That threat continues as we all know.
This can be demonstrated, for example, by recalling the terrorist attacks on mass transportation in Mumbai this past August, in London in July 2005, and in Madrid in March 2004. We should also recollect that Osama bin Laden and the al-Qaeda movement have not retracted their threats against our country of Canada. We should also bear in mind that reports last summer of a plot to bomb trans-Atlantic airliners.
We have also seen on numerous occasions around the world the deliberate mass murder of civilians in public places. Suicide bombings have sadly become commonplace in our daily news reports. Yet, we may be facing an even more devastating threat if terrorist groups gain access to weapons of mass destruction. Cyber terrorism that would seek to paralyze our infrastructure could also have devastating effects. Societies that, like Canada, are open, democratic and technologically advanced could easily be subject to attack in these areas.
Canada's own recent history demonstrates that we are not immune from terrorist incidents. Whether we choose to acknowledge it or not, international terrorism threatens our peaceful communities and our way of life and, regrettably, is likely to be part of our world for years to come.
The investigative hearing and recognizance with condition provisions provide law enforcement agencies with the much needed ability to act quickly when necessary, and potentially save lives. And they can only be activated under special circumstances.
As I said, both of these powers will cease to apply on the 15th day of 2007 on which both Houses of Parliament sit, unless both Houses pass a resolution to extend it.
A sunset clause was inserted in 2001 to allow us to review the powers, with the benefit of five years experience and determine whether they are still desirable and necessary.
These provisions do not exist just for the sake of having them or because the government wants to have them. In a perfect world, there would be no need for such procedures. As we have seen, however, in the real world threats do exist, not just south of the border or in some far off corner of the globe, but right here in Canada, as we discovered last year with the unravelling of an apparent plot to cause violence and destruction in our largest city, Toronto, and right here at our very doorstep in Ottawa. These powers are something we need, not something we want, and they are absolutely necessary.
The House of Commons subcommittee reviewing the act released an interim report on these provisions in October. The majority of the subcommittee recommended that both provisions be extended to December 31, 2011, in other words for five more years, and that Parliament review any further extension beyond that date.
Other recommendations will be addressed by the government in its response to the parliamentary review of the Anti-terrorism Act. This resolution before the House is, necessarily, limited to the issue of whether these existing provisions should sunset or should be extended.
I thank the subcommittee for its timely interim report and excellent work. We look forward to receiving the findings of the subcommittee on the entire review, as well as those advanced in a report by the Senate.
The government believes that the investigative hearing and recognizance with conditions will continue to be important tools for our domestic law enforcement agencies as they act to prevent, disrupt and investigate terrorism.
Both the Minister of Public Safety and the former minister of justice argued before the parliamentary committees reviewing the Anti-terrorism Act that these tools are still needed.
Accordingly, today a motion has been put before this House in an effort to ensure that these powers continue to be available to investigate and prevent acts of terror.
I want to be sure that we as a country have the legislative tools to protect the safety and security of Canadians and to prevent, disrupt and deter terrorist activity here in Canada.
Law enforcement agencies have expressed their support for the continuation of these measures.
For these and other reasons, Parliament should resolve to extend the sunsetting provisions for three years to enable Canada to continue to have the tools necessary to respond effectively to the threat of terrorism.
Why three years? Because this extension would allow Parliament to further consider the issue in depth. It will also give the government enough time to consider recommendations proposed by the parliamentary committees reviewing the Anti-terrorism Act and introduce any changes deemed appropriate.
This is certainly a prudent course to follow. Allowing these powers to lapse would needlessly eliminate a vital tool for ensuring Canadians' safety and security. We need the benefit of several more years of experience with these provisions before we take such a step as allowing them to sunset.
Only Parliament can renew these powers. I believe it is not only a responsibility but a profound duty for us to do so.
I urge all hon. members to support this motion.