Debates of April 17th, 2008

Criminal Code

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I have a question for my colleague relating to Bill S-3.

We are watching the erosion of civil liberties. She has really articulated the connection of the individual impact but also how it will relate to their employment and their family, which has greater consequences for us. Living on the border, I deal with that on a regular basis. Even with mistaken identity, where people are often assumed to be someone else, that has affected their clean record to get across the border.

We have been clear on our strategy about this. Why does the member believe the Liberal Party is backing away or splitting on this issue when it really has significant consequences? A lot of time and money has been wasted in the House with regard to failed bills in the past and this one seems to be setting itself up to be a failure.

I would like to hear her comments on that.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I can only speculate. I would hope that some of the Liberals who are in the House today will be standing to speak on behalf of the bill. From the calls I have had to my office, I know they must be getting the same calls from people concerned about the bill.

When bills have failed before around Conservative-Liberal alliances, it may have been because some of those times the Liberals have agreed with the Conservatives. They would applaud that I am sure.

It seems to me that much of this is about strategy. I understand that political strategy is a consideration as we think about voting, although I would hope in the end never the consideration. However, for it to cause an election and to take away basic rights and freedoms that Canadians have always had in order to forestall facing the voters would chop away at the whole underpinning of Canada and Canadians and what people in this Parliament have striven to put in place for a balance between freedom and security.

We have seen quite a bit of political strategy on the part of the Liberal opposition. They are not standing up to vote on matters that seem pretty clear and ones they would normally vote on. I think the public is beginning to understand that is not what their constituents are telling them. They only seem prepared to talk about their right to govern.

[Tony Martin, NDP, Sault Ste. Marie, ON]

Mr. Speaker, I just wonder if the member would share her thoughts on what the Liberals' position is on the bill.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, we will not know their position until the bill comes to a vote.

I was pleased that the Liberals supported it when it was in the House before so I would expect them to support it this time. My understanding, from speaking with people, is that they will not be supporting the bill. Perhaps I will be surprised. They stood before to support it and they may stand again to support it. It will be a busy world.

I will be surprised if the Liberals stand in support of this legislation. Since there has been no change and since they supported before, I expect they will support it again. However, my understanding is that they will not be supporting it, although that is not official as I have not heard it from their leader. We will wait and see. If they supported it before and there is no change, and they do not support it this time, it will be very clear to everybody, including their constituents, why they have not supported it.

Royal Assent

[The Deputy Speaker, NDP, Bill Blaikie]

Order, please. I have the honour to inform the House that a communication has been received as follows:

Rideau Hall

Ottawa

April 17, 2008

Mr. Speaker:

I have the honour to inform you that the Hon. Marshall Rothstein, Puisne Judge of the Supreme Court of Canada, in his capacity as Deputy of the Governor General, signified royal assent by written declaration to the bills listed in the schedule to this letter on the 17th day of April, 2008 at 3:01 p.m.

Yours sincerely,

Sheila-Marie Cook

Secretary to the Governor General and Herald Chancellor

The schedule indicates the bills assented to are Bill S-203, An Act to amend the Criminal Code (cruelty to animals)--Chapter No. 12; Bill C-298, An Act to add perfluorooctane sulfonate (PFOS) and its salts to the Virtual Elimination List under the Canadian Environmental Protection Act, 1999--Chapter No. 13; Bill C-37, An Act to amend the Citizenship Act--Chapter No. 14; and Bill C-40, An Act to amend the Canada Labour Code, the Canada Student Financial Assistance Act, the Canada Student Loans Act and the Public Service Employment Act--Chapter No. 15.

The House resumed consideration of the motion that Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

Criminal Code

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I am very happy to address hon. members in this House on the importance of the powers contained in Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

The investigative hearing and the recognizance with conditions provisions are tools that were designed to assist law enforcement agencies and strengthen their ability to prevent acts of terrorism.

I would also like to note that I chaired the subcommittee of the Standing Committee on Public Safety and National Security which reviewed the anti-terror bill. At this time I propose to describe in some detail what these two provisions achieve. I will then address how this bill responds to the interim report of the House subcommittee that tabled that report in October 2006, and the Senate's special committee report that was tabled in February 2007.

First, I will talk about the investigative hearing.

The investigative hearing provision would allow the courts to compel a witness who may have information about a terrorism offence to testify and provide information about the offence. The process relating to this provision works as follows.

With the prior consent of the Attorney General, a peace officer investigating a terrorism offence that has been or will be committed may apply to a judge for an order requiring a person who is believed to have information concerning the terrorism offence to appear before the judge to answer questions and/or produce something.

If a judge believes there are reasonable grounds that a terrorism offence will be committed in the future, that the person has direct and material information and that reasonable attempts have been made by other means to obtain the information, the judge may make an order for the gathering of information.

It is important to note that this investigative hearing provision and the process were found to be constitutional by the Supreme Court of Canada in 2004. The reason this provision was found to be constitutional lies in the safeguards that are intimately attached to the exercise of this power. I will note those safeguards.

First, only a judge of a provincial court or of a superior court of criminal jurisdiction can issue the order to hold an investigative hearing.

Second, before an application for the investigative hearing order can be made, the Attorney General of Canada, or the Attorney General or Solicitor General of the province, needs to consent to making the application for the order.

Third, the person ordered to attend at the investigative hearing has the right to retain and instruct counsel at any stage of the proceeding.

Fourth, any incriminating evidence given by the person at the investigative hearing cannot be used against him or her in a further criminal proceeding except for prosecutions for perjury and giving contradictory evidence. This prohibition also applies to derivative evidence, that is, evidence that is found or derived from the evidence initially gathered in the context of the investigative hearing.

Fifth, the Supreme Court of Canada has also ruled that through the use of this provision there is a constitutional exemption against self-incrimination that precludes testimonial compulsion where the predominant purpose of the proposed hearing is to obtain evidence for the prosecution of the person. In other words, a person cannot be brought before a judge and be compelled to provide evidence if the predominate purpose is to gather evidence against that person to lay charges against him or her.

Sixth, the Attorney General of Canada and the Attorney General of the provinces were and continue to be required to report annually on the use of the investigative hearing provisions.

Finally, it is to be noted that the Supreme Court of Canada held that the protection against self-incrimination in investigative hearings carried out in the context of criminal investigations also extended to deportation and extradiction matters.

At this time I would like to move on and talk about the recognizance with conditions provision.

This provision would give the court the power to issue an order requiring a person to enter into an undertaking whereby he or she accepts to respect certain conditions imposed upon him or her to prevent the carrying out of a terrorist activity. The purpose of the provision is to create a mechanism that would allow the authorities to disrupt the preparatory phase of terrorist activity rather than act after the fact.

The provision is not designed to detain a person, but rather to release the person under judicially authorized supervision. The process by which the recognizance with conditions operates is as follows:

With the prior consent of the Attorney General, a peace officer who reasonably believes that a terrorist activity will be carried out and who also reasonably suspects that the imposition of a recognizance with conditions or the arrest of a person is necessary to prevent the carrying out of a terrorist activity, may lay an information before a provincial court judge. That judge may then cause that person to appear before him or her or any other provincial court judge. In very limited circumstances the peace officer may arrest that person without a warrant in order to bring him or her before the judge.

In any event, a person will be brought before a judge within 24 hours, or as soon as possible, if a judge is not available within this time period. If the person is detained to protect the public or to ensure his or her attendance at a subsequent hearing, the matter may be adjourned for a maximum of 48 hours. Thus, generally speaking, the person can only be detained for up to 72 hours.

If the judge determines that there is no need for the person to enter into a recognizance, the person will be released.

If the court determines that the person should enter into a recognizance, the person will be bound to keep the peace and respect other specified reasonable conditions for a period not exceeding 12 months.

Only if the person refuses to enter into such a recognizance can the judge order that he or she may be detained for up to 12 months.

As in the case of the investigative hearing, the recognizance with conditions is also subject to numerous safeguards. These are:

The consent of the Attorney General of Canada or the attorney general or solicitor general of the province is required.

The peace officer could also only lay an information before a judge if he or she believes on reasonable grounds that a terrorist activity will be carried out and suspects 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 a terrorist activity.

The judge receiving the information would have a residual discretion not to issue process, for example, where an information is unfounded.

A warrantless arrest of a person could only be made in very limited circumstances, for example, where the grounds to lay an information exist, but by reason of exigent circumstances, it would be impractical to lay the information, and the peace officer suspects on reasonable grounds that the detention of a person is necessary in order to prevent a terrorist activity.

If a person is arrested without warrant, the officer must either lay an information before the judge, generally within 24 hours, or release the person. Before laying the information, the peace officer must obtain the consent of the relevant attorney general.

A person detained in custody must be brought before a provincial court judge without unreasonable delay and in any event, within 24 hours of arrest, unless a judge is not available within that period, in which case the person must be taken before a judge as soon as feasible and the hearing must be held within 48 hours.

A judge must be satisfied on the evidence adduced that the peace officer has a reasonable suspicion that it is necessary to have the person enter into a recognizance with conditions before ordering that the person enter into a recognizance to keep the peace and be of good behaviour, and to comply with any other reasonable conditions for a period of 12 months.

Only if the person refuses or fails to enter into the recognizance can he or she be jailed for up to 12 months.

The person entering into a recognizance has the right to apply to vary the conditions under the recognizance order.

Federal and provincial attorneys general would continue to be required to report annually as appropriate the use of this power, while the Minister of Public Safety and the minister responsible for policing in each province would continue to be required to report annually on the arrest without warrant power.

I have focused my remarks on two well-designed tools that are meant to aid law enforcement agencies in their efforts to prevent the commission of a terrorist activity, tools that are also dressed with robust safeguards. One of the provisions has already been declared constitutional by the Supreme Court of Canada.

How much better can it get? One would think that there is no need to make changes to the wording of the original provisions considering the above, but as always, this government continues to strive to make our laws better and to do so in cooperation with all members of the House and the Senate. For that very reason, our government has responded favourably to a good number of the recommendations of the House subcommittee and the special Senate committee that reviewed the Anti-terrorism Act. Both of these committees made a number of recommendations in relation to these two powers.

Here are the amendments to the original provisions that the government either proposed or accepted, and that are now found in Bill S-3:

Subparagraph 83.28(4)(a)(iii) was modified by adding a safeguard to the section dealing with past terrorism offences. Under the proposed legislation, an order for an investigative hearing may be issued only if the judge to whom the application is made is satisfied that “reasonable attempts have been made to obtain information” by other means. In this context, “reasonable” means that, where possible, police will have tried other sources for obtaining the information they seek before resorting to the use of investigative hearing.

Previously, a similar but narrower provision had applied only to future terrorism offences, not past ones. This new wording also applies to future terrorism offences, as can be seen in subparagraph 83.28(4)(b)(iii).

The bill also caps the maximum detention time for a witness brought in under an investigative hearing order by specifying in subsection 83.29(4) that section 707 of the Criminal Code, which sets out the maximum period of detention for an arrested witness, applies to investigative hearings.This is meant to address the concerns that were expressed by the House subcommittee that it was unclear to what extent release mechanisms elsewhere in the code applied to the investigative hearing process. Technical wording changes were also made to address various recommendations made by the House subcommittee.

Finally, proposed subsection 83.31(1.1) would enhance the reporting requirements by the Attorney General of Canada with respect to the investigative hearing provisions. The Attorney General of Canada would be required to provide his or her opinion, supported by reasons, as to whether these provisions continue to be necessary. This change implements part of recommendation 17 made by the special Senate committee.

As can be noted in regard to the investigative hearing provision, Bill S-3 effectively incorporates many of the recommendations made by the House of Commons and the Senate. The one substantive proposal that the bill did not incorporate was the recommendation of the House of Commons subcommittee that the investigative hearing power be limited to the investigation of imminent terrorism offences and not past terrorism offences.

The government could not respond favourably to this recommendation and there are many reasons why this is so. To begin with, this proposed limitation would forestall entirely the possibility that the investigative hearing could be used in relation to the ongoing Air-India investigation.

This recommendation would also prevent the use of an investigative hearing to gain information about a terrorism offence after the offence has already occurred, even in the very recent past. For example, if a terrorist attack were to occur in Canada similar to the attacks in the U.K. on July 7, 2005, the police, on the day after the attack, would not be able to use this power, since the attack would have already taken place and despite the fact that it may be a prelude to a further terrorist attack.

This recommendation implies that terrorists will only ever commit one terrorist offence. The better view is that after a terrorist group has committed an offence, whether it is participating in a training camp, fundraising, or an act of violence, the justification for the use of the investigative hearing is even more compelling. This is because, aside from the need to bring the perpetrators to justice, there is a requirement to prevent the group from continuing with its activities.

To adopt this recommendation would have the effect of preventing the use of an investigative hearing to gain information about a terrorism offence after the offence has already occurred, even an offence that has occurred in the very recent past.

This government believes that a terrorist activity, be it past or future, unquestionably merits the same tools as they both respond to a specific need expressed by our law enforcement agencies in their fight against terrorism. To do otherwise would be unacceptable.

Moving on with the other amendments that this government agreed to make in response to the committee's recommendations, though largely unchanged from its previous incarnation, the recognizance with conditions provision in Bill S-3 brings about an additional annual reporting requirement that was recommended by the special Senate committee on the Anti-terrorism Act.

As for other changes brought to the original legislation, the House of Commons Subcommittee on the Review of the Anti-terrorism Act recommended that both provisions be extended for five years, while the special Senate committee recommended that they be extended for three years subject, in both instances, to the possibility of a further extension following resolutions passed by both houses of Parliament.

What Bill S-3 proposes is to allow Parliament to extend the existence of one or both provisions for a period of five years. While the original legislation made it clear that a resolution could be tabled to extend both provisions, it was not clear from the wording whether a resolution that would extend only one of the powers could be tabled. The new wording would explicitly permit the extension of either or both of these provisions.

Other changes made by the Senate will be referred to by other hon. members who will also speak.

As has been made clear in my remarks today, there is no question that the government has given proper consideration to the various recommendations made by the House of Commons and the Senate and that, in doing so, we have improved both the investigative hearing and the recognizance with conditions provisions. Given this, I invite all members of the House to support this bill and reinstate these two important tools.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, one thing that has to be addressed is that this is a Senate bill and there is an important element to that. We are talking about a bill that nobody can deny is going to change civil liberties in this country. It is going to create another procedure that is different, that limits rights and limits the ability for people to even defend themselves in the context of our current laws. That is even acknowledged by the Canadian law society and others that have advocated for different amendments, because it deals with things such as personal information that could be exposed not only internally but externally and the legacy that could leave on a person's life.

I would like to ask my colleague how he feels about this bill originating in the Senate. His party has been saying that there needs to be Senate reform, despite the fact that the Conservatives appointed a member to the Senate, a cabinet minister, and the Prime Minister has been critical of the Senate in the past. At the same time, when it comes to seeing significant changes in Canadian democratic law, they come from the Senate, which is not accountable.

I would like the member to address that issue. It is a quandary. This issue which is so important for our democratic rights in Canada is coming about by a group of individuals who are not accountable.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, the member expressed some concerns about the content of the bill. There are safeguards built into this bill. The fact is that members from his party and all parties in the House were members of the subcommittee. There was the special Senate committee as well. They spent many hours working to try to improve these provisions. They were built into the committee reports.

I encourage the hon. member to read both the Senate committee and House subcommittee reports. The fact is there is accountability. The hon. member will have an opportunity to stand in his place and have a say on that. It originated in the other house, but so many of the attempts by this government to get legislation through have been slowed down in committees and have continued to be stonewalled.

In terms of the democratic opportunity, the hon. member will have an opportunity in the House to stand either way on this bill.

[Dave MacKenzie, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I am happy to stand in the House and compliment my colleague, who has had a very active part in a lot of this legislation. He has taken a very active role and has a keen interest in it. I recognize his interest purely as a Canadian to start with, but he certainly has some border crossings in his area and these issues are important to him.

Equally, I know that he is also concerned about the rights and freedoms of Canadians. I would like the member to tell us if it has been tested as far as the constitutional correctness to hold investigative hearings. Have the courts had a look at it?

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, the fact is that back in June 2004, in reference related to the Air India prosecution, the Supreme Court of Canada upheld the constitutionality of this provision. In a companion case, the court held that there was a presumption that investigative hearings should be held in open court. Although upheld as constitutional, a hearing was never convened, but the fact is that this has been tested in court. It has been upheld as being constitutional.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, there are many concerns about this legislation, that this legislation compromises many fundamental and key principles of our justice system.

One of the concerns about investigative hearings is that upsets the usual practice of the courtroom. It upsets the usual role of a judge in those circumstances. It actually puts the judge and prosecutors into the role of investigators, something that is not their normal role in the judicial process in a court hearing, and something for which many people believe they do not have a particular background or training to play that kind of role in our judicial system.

I wonder if the member might comment on that fundamental shift in the role of judge and prosecutor.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I encourage the member to read those reports, but the fact is that these are extraordinary powers. These powers would only be used in extraordinary cases where Canadians' safety was at risk.

I believe that Canadians want to have some protection. They want to know that their law enforcement agencies have the ability to keep them safe in a time of a potential terrorist attack.

We have heard that Osama bin Laden has Canada on the list as a potential target for a terrorist attack. We have seen other countries that he in fact mentioned have been subject to terrorist attacks and many people have been killed.

Does the government believe that it is important? We will see what happens in the vote. The fact was that the majority of members of the subcommittee that I chaired, which ended its work about a year ago, actually recommended that these go ahead and we have seen them upheld in court. Therefore, I think that this is something that Canadians would like to see.

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, I want to ask my hon. colleague about what other countries are doing.

The reason I would like to know this is obviously the world has changed since 9/11 and sometimes countries have to prepare for these eventualities rather than just simply sit around and sift through the rubble, as I have heard the minister say.

I wonder if my hon. colleague, who has in fact done a lot of work on this and I congratulate him for that, could identify or even suggest if there are any other countries that are doing similar work to protect their citizens.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, that fact is that the committee did look at what was going on in other countries. One of the countries that was recently attacked of course was the United Kingdom. In the U.K. the police may arrest without warrant persons whom they reasonably suspect are terrorists.

The maximum time that a person could be held in detention without charge under the power that the U.K. has had since 2000 was from 7 days to 14 days and now it is 28 days. This is quite a bit more than what we have in Canada, but I go back to once again, that Canadians are looking for law enforcement to have the tools to help keep them safe. I will be supporting this. I know members of the government will be supporting this and I know Canadians will be behind them in that.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, in response to my previous question the member said that these were extraordinary measures and that we expected that people would use them judiciously and with caution. I am not quoting him exactly but he implied that this was his feeling about this.

My first response is that we all know which road is well paved with good intentions and I think we have to be cautious, when we extend these kinds of broad powers, and very careful about the potential when they will be used. There is no sense putting a law in place that we do not expect to be used some day.

Right now, under the Criminal Code of Canada every crime that I can think of that would be related to terrorism is already treated as a very serious crime under the Criminal Code.

Can the member tell me of any crime that is not covered by the Criminal Code that might be part of a terrorist activity? Certainly murder would be one as well as conspiracy to commit a terrorist act like exploding a bomb, all those kinds of things would currently be covered under the Criminal Code of Canada. Why is something more than the Criminal Code of Canada necessary to protect us from acts of terrorism?

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I appreciate the hon. member's passion on this.

The fact is that the committee did spend a lot of time considering the importance of human rights and the potential of abuses, and they are addressed. The safeguards are built into this legislation, into investigative hearings, and into recognizance with conditions.

I know that he is concerned about some of the potential offences there, that he was looking for other ones, but the fact is that this is designed to help prevent a terrorist activity or to prevent another one that may be happening after one happens. The fact is that law enforcement has been looking for this and other governments have been looking to have this. We saw that the Air India inquiry was looking for this.

Parliament actually did not extend the provisions back in February of 2007, but the bill is now before us and the member will have an opportunity to have a say on it.

[The Deputy Speaker, NDP, Bill Blaikie]

It is my duty pursuant to Standing Order 38 to inform the House that the question to be raised tonight at the time of adjournment is as follows: the hon. member for Ottawa—Vanier, Telefilm Canada.

Resuming debate, the hon. member for Davenport.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, there is little doubt that the bill we are debating today, Bill S-3, remains a very divisive topic for Canadians and parliamentarians.

We are dealing with a bill which proposes amendments to the Criminal Code that would reinstate anti-terrorism provisions that expired under a sunset clause in February 2007.

These provisions would essentially bring individuals who may have information about a terrorist offence before a judge for an investigative hearing. It would deal with recognizance with conditions and preventive arrest to avert a potential terrorist attack.

These provisions have gained the interest of the general population and many groups have voiced their opinions on these extraordinary measures.

The first measure deals with the provisions to bring a person before a judge by subpoena or by arrest who, perhaps, on reasonable grounds, has knowledge of the whereabouts of someone who may be suspected of being involved in terrorism activity.

The second portion is equally extraordinary because it deals with the detention and recognizance of someone who is suspected of having something to do with a terrorist activity. As we know, to arrest somebody we need reasonable grounds under our current system.

When we look at that provision, which is the most litigated part of the Criminal Code, we see there is a great difference between suspicion and belief. There is a significant line there and this is why this legislation has raised such interest and concern for Canadians.

Since the terrible attack on the U.S. on September 11, 2001, which was a crime against humanity, states throughout the world have changed their domestic laws in order to respond to the new realities of terrorism. Canada of course is no exception.

In the United States, the patriot act was passed with wide margins in both houses of Congress, and has since then been criticized by civil liberties groups as fundamentally weakening human rights. Canada also enacted a legislative response to the events of September 11, 2001, through the Anti-terrorism Act.

Both statutes were speedily enacted and intended to address the threat posed by the attack and designed to give government agencies additional tools and powers to prevent and combat terrorism. However, there are key differences between the Canadian and the American legislative approaches.

Prior to the coming into force of the Anti-terrorism Act, the Canadian Criminal Code did not contain a definition of terrorist activity. To date, the Supreme Court has made several important rulings on the need to balance human rights and national security. One important one that comes to mind is the decision in the case of Cherkaoui and security certificates.

Another very important one is Suresh v. Canada. The Supreme Court of Canada discussed this balancing approach in relation to a decision to deport a suspected terrorist from Canada on assurances that he would not be tortured if returned to Sri Lanka.

The court noted that the balance to be struck in this situation was between Canada's interest in combating terrorism and the deportee's interest in not being deported to torture, taking into account the circumstances or conditions of the potential deportee, the danger that the deportee presents to Canadians or to the country's security and the threat of terrorism to Canada.

The Supreme Court concluded that this balance will usually come down against expelling a person to face torture elsewhere with the result that deportation should generally be declined where on the evidence there is a substantial risk to torture.

As Suresh v. Canada illustrates, the balancing process involved, where removal is contested on human rights grounds, is tested further in the context of state responses to terrorism.

It is important to note that after September 11, the United Nations has, on numerous occasions, called upon states to bring to justice to those involved in terrorist activities through the process of extradition or prosecution while, at the same time, reminding states that any anti-terrorism measures must comply with international human rights law.

If we go back to 2001, the sunset clause, originally introduced in the Anti-terrorism Act, states that these provisions would cease to apply at the end of the 15th sitting day of Parliament after December 31, 2006, unless they were extended by a resolution. As of February 2007, no investigative hearings have been held and no reported use of the provisions on recognizance with conditions.

It is important to note that while the provisions introduced today are similar to those that expired in February 2007, they are not identical. Some of the key changes in the bill include: placing an emphasis on exhausting all reasonable attempts for the collection of information about potential or prior terrorist activity before the ordering of an investigative hearing; and requiring the Attorney General and the Minister of Public Safety and Emergency Preparedness to issue separate annual reports with their opinions as to where these provisions should be extended.

If we look back to the month of February 2007, the government put forward a motion to extend the measures without amendments for three years. This was eventually defeated in the House by a vote of 159 to 124. Even with ominous threats from the Prime Minister to trigger an election if amendments were made to the bill, the Liberals still pushed to have additional safeguards to these provisions. As such, I am pleased to find that these safeguards, which were also recommended by both the House and Senate committees, have been added to the bill.

These provisions include: an increased emphasis on the need to have made reasonable attempts to obtain information with respect to both future potential terrorist activity and such activity in the past; the ability for any person ordered to attend an investigative hearing to retain and instruct counsel; the flexibility to have any provincial court judge hear a case regarding a preventive arrest; and a five year end date unless both Houses of Parliament review and resolve to extend the provisions further.

However, the fact is the Prime Minister still refuses to listen to the democratic majority and, instead, dictates to the House that no amendment should be made to this bill or, once again, it might trigger an election.

Even the Supreme Court of Canada suggests that the bill be amended on a number of issues. I will not go into all the recommendations made by the court, but I must point out that the government has once again chosen to ignore its important recommendations.

As I have already mentioned, these provisions have attracted the interests of academics and the general population alike. This has been evident in both the House of Commons and the Senate committees that have studied this issue. In fact, these committees heard from a broad spectrum of witnesses, who have voiced opinions on these extraordinary measures.

On the one side, some feel that these provisions do not violate rights, that, in fact, they reduce potential threats and address them in a practical manner. Some would also argue, such as Gary Bass, deputy commissioner for the RCMP, that these “renewed provisions will assist with those who might otherwise be reluctant to testify”.

Mr. Bass maintains that with these provisions, witnesses would no longer have any choice but to testify truthfully. On the other side, people have argued against this view and expressed the opinion that such provisions could be counterproductive and detrimental to witnesses.

In fact, Yvon Dandurand, a criminologist at University College of the Fraser Valley, British Columbia, argues that compelled witnesses are still exposed to potential retaliation from those who expect them to lie if compelled to testify.

Also, some have felt that the Anti-terrorism Act represents a substantial departure from Canadian legal traditions and fear that use of these provisions might eventually extend beyond terrorism offences to other more generic Criminal Code offences. Such provisions also make it clear that those who volunteer information to the authorities could find themselves subject to an investigative hearing, preventive arrest or a charge for a terrorism offence.

Canada historically has been a leader in maintaining balance between human rights and public safety. I believe all of us want Canada to remain a safe and secure country. I also believe Bill S-3 could potentially cross an important thin line and violate the rights of Canadians and compromise civil liberties.

I am reminded of the famous words that were uttered, after September 11, by Cardinal Theodore McCarrick, the archbishop of Washington, in a mass on September 12, 2001, for the victims in the immediate aftermath of the terrorist attack on the U.S. He reminded us all that:

We must seek the guilty and not strike out against the innocent, or we become like them who are without moral guidance or direction.

Although Bill S-3 has had attached to it new safeguards in comparison to the original provisions, I feel it must be sent to the House committee again to be thoroughly studied and debated so Parliamentarians can make the right and educated decision on this controversial matter.

[Dave MacKenzie, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I listened to my hon. colleague across. I know he is very passionate about his comments, and I appreciate that.

Has he spent any time talking to his colleagues who were on the committee and who dealt with this over a considerable length of time? I understand his concerns are about the innocent, but has he given consideration to how the police can function in a society when we deal with terrorism?

I believe the rules are in there to protect the innocent and to protect Canadians in the broadest sense, and it has been determined to be constitutional. However, has he directed his mind as to how Canadians can be protected against terrorists using the existing laws? If he has spent time in talking to his colleagues who were on the committee, did he not talk to them about those issues dealing with terrorism and the protection of Canadians?

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I have had an opportunity to speak to my colleagues on this side of the House. Many of them have assured me of some of the provisions within this legislation. I have also have an opportunity to speak with many human rights groups that also have concerns about what could happen.

I have always believed we have to listen to the different groups to ensure the legislation we bring forward is in fact balanced. I am proud to live in Canada, a country where we respect the rule of law. I know the rule of law and the laws that we make here as parliamentarians are extremely important, both in how we assess civil liberties and human rights and how we protect the safety and security of our citizens, which is one of the major responsibilities we have as parliamentarians.

I take that job very seriously. It is one of the reasons why, even though I have some concerns and reservations about the bill, I have asked that we at least send it to committee, have it studied, listen again to the different groups out there and then make a final decision when it comes back. I will make a final decision when it comes back for third reading.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Mr. Speaker, in my opinion, the measures we are being asked to enact require a couple of things.

The first one is that we have complete trust in our judicial system, and I do. I am not questioning the ability and the independence of our judicial system, although there have been murmurs from the government about the meddling of our judicial system and correspondingly, appointments that may reflect a certain bent. However, that is not the question.

Would my colleague agree that the same kind of trust, if we are to adopt these measures, would be required of our national police?

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I appreciate the question of my hon. colleague on the issues of trust, both in our judicial system and in our police.

The Supreme Court has made several rulings, which are worthy to be considered since September 11, and I think I alluded to a couple of them, the Suresh decision and the Charkaoui decision. The court has talked about the balance between human rights and national security. It is always a struggle for parliamentarians to get the legislation right in terms of that equal balance.

I believe very strongly and passionately that our judicial institutions do an amazing job in protecting the human rights of Canadians. I have full respect and confidence in their decisions and rulings, as well as our police forces, which have called for these additional tools as well so they can combat security risks.

There is always a struggle between human rights and national security, but they are not incompatible. There is no question that they can coexist.

Our party, which brought in the Anti-Terrorism Act after September 11, really did try to look at the balance and put in sunset clauses to bring about that balance as well. We have struggled, but we balanced it quite well.

We have done better than most other countries in western European. We certainly have much more broader legislation with respect to rights in Canada than there is in the Patriot Act in the U.S. Our legislations in Canada have been much broader and more respectful toward civil liberties than many of the countries in western Europe.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, one of the problems that different lawyer associations and groups have raised is that some personal information could exit this country and could then be used against individuals. As we know from the enactment of the Patriot Act, Canada has yet to have a privacy agreement. We need a treaty to understand what happens to the Canadian information, where it goes, how it is used and so forth.

This issue has not been addressed in the bill, and I will ask the hon. member about that situation. I know we have had a series of problems in my constituency with regard to tracking the direction of personal information.

Also there are very serious cases, like the Maher Arar case wherein information was shared with another government's officials and departments. We do not know where that information goes. The Patriot Act prevents access to that type of knowledge and also the ability the scrub that information. It also has other consequences, for example, where individuals cannot get themselves taken off a no fly list.

Could my colleague tell us if those issues have been addressed by the bill?

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I quite agree with the hon. member. It is an issue of great concern, and the sharing of information is something I have raised in the House.

As the hon. member is probably aware, I have spoken as well against the no fly list, but the U.S. is demanding it of our country, which is a violation of our sovereignty.

The sharing of personal information is something that greatly disturbs me, specifically how that information is used. I would like to see in committee how this issue could be addressed. The committee stage is a good opportunity to deal with an issue as important as this.

I did not get a chance earlier, but I will take this opportunity to state that Canada is not immune to terrorism. We had a terrible terrorism act in Canada with the Air-India bombing.

Canada has always tried to balance human rights and national security. Getting it right is very important to parliamentarians. It is a struggle I will have to go through as we debate the bill at second reading and at committee stage. When it comes back to the House for third reading, I will make a decision whether I will support it.