Mr. Speaker, we are talking about two Criminal Code provisions introduced in the Anti-Terrorism Act. I would just like to say that nobody, not even me, is denying that the terrorist threat is real and that we must use appropriate measures to fight it.
At the outset, it must be understood that this vote addresses only two provisions of the Anti-Terrorism Act, namely, those pertaining to investigations and preventive arrests as provided for in sections 83.28, 83.29 and 83.3 of the Criminal Code, as amended by section 4 of the Anti-Terrorism Act. We agree with the committee's majority report with respect to investigative hearings. However, we do not agree with the majority report of the committee regarding the preventive arrests provided for in section 83.3 of the Criminal Code, as introduced by the Anti-Terrorism Act.
This is a delicate and important subject, and we are all seeking to strike a balance between fighting terrorism effectively and respecting rights. Some preliminary remarks are in order. Terrorism cannot be fought with legislation; it must be fought through the efforts of intelligence services combined with appropriate police action. There is no act of terrorism that is not already a criminal offence punishable by the most stringent penalties under the Criminal Code. This is obviously the case for premeditated, cold-blooded murders and also true of the destruction of major infrastructures.
Moreover, when judges exercise their discretion during sentencing, they will consider the terrorists’ motives as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high and that deterrence and denunciation are grounds for stiffer sentencing. This is what they have always done in the past and there is no reason to think they will do differently in the future.
We must also consider that, when it comes to terrorism, deterrence has limitations. First, it would be unrealistic to believe that it will deter someone considering a suicide bombing. Second, those who decide to join a terrorist group generally believe that they are taking part in an historic movement that will have a triumphant outcome in the near future and that will see them emerge as heroes. Nowadays, there are even some who believe that they will be rewarded in the afterlife. Therefore, one cannot expect that new legislation will provide the tools needed to effectively fight terrorism.
Legislation can, however, be amended if police do not seem to have the legal means needed to deal with the new threat of terrorism. Consequently, we must ensure that the proposed measure does not unduly disturb the fine balance that must exist between respect for the values of fairness, justice and respect for human rights, which are characteristic of our societies, while also ensuring better protection for Canadians, Quebeckers and the entire world community. Section 83.3, which provides for preventive arrests and the imposition of conditions, was advanced as such a measure when it was adopted. This measure has been painted as necessary to allow the police to act to prevent a terrorist act from being committed or to put an end to a terrorist activity. Now, this provision has gone unused. That is not surprising, given that police officers can use existing Criminal Code provisions to arrest someone who is about to commit an indictable offence.
Section 495 of the Criminal Code provides that a peace officer may arrest without warrant a person who, on reasonable grounds, he believes is about to commit an indictable offence. The arrested person must then be brought before a judge, who may impose the same conditions as those imposable under the Anti-terrorism Act. The judge may even refuse bail if he believes that the person’s release might jeopardize public safety.
If police officers believe that a person is about to commit an act of terrorism, then they have knowledge of a plot. They probably know, based on wiretap or surveillance information, that an indictable offence, a terrorist act, is about to be committed. Therefore, they have proof of a plot or attempt and need only lay a charge in order to arrest the person in question.
Do people think, for example, that under the current system, the police let thieves who are planning to rob a bank commit the robbery before they arrest them? No, they act in accordance with the legislation as it currently stands. They could do the same thing when faced with a terrorist act that is about to be committed.
However, the person who is arrested and charged will eventually go to trial, at which time that person will have the opportunity to make a full answer and defence. The person will be acquitted if the suspicions are not justified or if there is insufficient proof to support a conviction.
It seems obvious to us that the terrorist activity thus apprehended would have been disrupted just as easily as it would have been had new section 83.3 of the Criminal Code been used.
However, it is this provision that is most likely to give rise to abuse.
It may be used to brand someone a terrorist on grounds of proof that are not sufficient to condemn him but against which he will never be able to fully defend himself. This will prevent him from travelling by plane, crossing the border into the United States and probably entering many other countries. It is very likely that he will lose his job and be unable to find another.
One could compare this situation to that of Maher Arar upon his return from Syria, before he was exonerated by Justice O’Connor. In fact, it will probably be worse, because it was the suspicions passed on by the RCMP that harmed Mr. Arar.
If this new and temporary provision of the Criminal Code were used, it would be a judicial decision to impose conditions because of apprehended terrorist activity. The general public would see that person as almost certainly, if not definitely, a terrorist.
Terrorist movements often spring from and are nourished by profound feelings of injustice among a segment of the population. The fight against these injustices is often conducted in parallel by those who want to correct the injustices through democratic means and those who believe it is necessary to use terrorism.
The former have made a positive contribution to the transformation of the societies in which we live today. They are often the source of many of the rights that we enjoy.
It is inevitable that political activity will bring the first and second groups together. Very often, the former—those who rely on non-violent and democratic means—will not even be aware that the latter—those who plan terrorist activities—are involved in terrorism. The planning of terrorist activity is by its nature secret.
The ease with which a person who has neither the inclination nor the intention to commit terrorist acts can be labelled a terrorist is thus disconcerting.
In order to determine whether a person is part of a terrorist network, security officers make use of electronic surveillance, but, as we saw in the Arar case, they also monitor the contacts of someone who they know or believe is connected to a terrorist network.
Now, to be able to order incarceration and, subsequently, the imposition of conditions of release, it is sufficient that the judge be convinced, and I quote:
that the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the peace officer’s grounds under subsection (2), and the gravity of any terrorist activity that may be carried out.
In other words, the apprehension of serious terrorist activity and grounds that appear founded will suffice. Proof that these grounds are well founded is not necessary. It should also be noted that the person arrested need not be the one that is thought likely to commit a terrorist act, but only and simply a person whose arrest “is necessary to prevent the carrying out of the terrorist activity”.
There is an important nuance there that is both astonishing and disturbing. It can include innocent people who are unaware of the reasons for which terrorists are soliciting their aid in a planned activity while concealing the real reasons they are asking for aid. Secrecy is the very essence of a terrorist activity.
Let us just say that innocent people can be suspected of a serious activity. These suspicions seem founded, but they are not. These people are innocent, and we can arrest them under these provisions. This is the type of abuse that can occur.
Some see in the reference to section 810 of the Criminal Code an indication that our criminal law already uses a procedure similar to that set out in section 83.3. While there is a similarity in the procedure followed in these two sections, there is a very big difference in the consequences of applying these two sections.
Section 810 states:
An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.
That other person is then summoned, and not arrested, before a judge, who can then order that person to enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed 12 months, and comply with such other reasonable conditions prescribed in the recognizance.
The judge cannot commit that person to a prison term unless the person refuses to sign the recognizance, after listening to all the parties and being satisfied by the evidence adduced that there are reasonable grounds for the fears.
If the person signs the recognizance and respects the conditions, he or she remains at liberty, will not be sentenced and will thus have no criminal record.
This section is often used in the case of apprehended domestic violence or when there is enmity between two people that one of them fears may turn violent. In my practice as a lawyer, I have often seen this section used successfully against rejected lovers, who repeatedly stalk the person they love who has abandoned them.
This provision of section 310 and section 83.3 that we are currently studying are very different in nature and have radically different consequences. There is also no comparison between the impact that the use of section 83.3 and section 810 would have on someone’s reputation.
When the decision is made to depart from the fundamental principles underlying our system of criminal law, there is always a risk that these measures will later be applied in a manner totally different from those foreseen. That was the case with the imposition of the War Measures Act in 1970, which saw the incarceration, among others, of a great poet, a pop singer, numerous relatives of people charged with terrorist activities and almost all the candidates of a municipal political party.
In light of this analysis, we feel that Parliament should not renew section 83.3, which was introduced into the Criminal Code by the Anti-terrorism Act, for two fundamental reasons: one, it is of little, if any, use in the fight against terrorism, and two, there is a very real danger of its being used against honest citizens.
A terrorist activity deemed dangerous can be disrupted just as effectively, and in fact more effectively, by the regular application of the Criminal Code.
As a result, we recommend the abolition of section 83.3 of the Criminal Code.
We concur with the majority on section 83.28, the other measure concerning investigative hearings.
We concur with the description of the specific historical context that led to the adoption of the Anti-terrorism Act. We also agree with most of the recommendations made in the majority report of the Committee, which aim to provide better guidelines for the investigation process. This exceptional measure should be used only in specific cases in which it is necessary to prohibit activities where there is imminent peril of serious damage, and not in the case of misdeeds already committed.
We, like other members of the Committee, are also of the opinion that another review of the provisions 10 years after their coming into force is needed and would make it possible to better assess whether the provisions should be extended or allowed to expire.
We would have preferred a three-year period; however, I note that the majority supported a longer period, as is now being proposed. However, we were willing to support the majority opinion in favour of a 10-year period from the introduction of the measure five years ago. That should be the maximum amount of time allowed to pass before a final review of these exceptional measures is completed.
I hope to make it clear that, just because we are against these provisions does not mean that we are for terrorism—that goes without saying. However, we see that they have not been used. And if they have not been used, it is because they are not useful. Indeed, other provisions of the Criminal Code are perfectly applicable.
In the case of the second provision, concerning preventive arrests, I urge caution. Of course, I do not expect the current government, in the next few years, to use it unduly, but there is always that possibility.
As for the risk of labelling, I would like to give you a concrete example. I had a wonderful political attaché. At one point, he decided to stand for election. During that time, his wife told him she wanted to separate and he was very disappointed. They had a very serious discussion at home. During that conversation, his wife said, “I was afraid that he would lose control”.
He did not lose control. He did not hit anything or break anything in the house, but his wife was afraid he was going to lose control. She therefore called the police, who enforced section 810, which I mentioned. He therefore agreed to sign an undertaking to not meet with his wife after their separation, and he was happy to comply because he had no intention of hurting her. However, this was interpreted as a conviction for spousal abuse and people were saying that a judge had imposed the conditions.
That labelling ruined his budding political career. Fortunately, his talents have since been put to good use as a senior civil servant. Imagine the same labelling of someone who has merely associated with terrorists. The grounds would thus appear founded. That is the type of danger that can be found in this bill and that must be avoided. That is why we are disrupting the balance; it is an pointless provision that is not being used to address any real danger.