Mr. Speaker, I am pleased to speak to this debate on Bill S-3. I will start by saying that the Bloc Québécois is opposed in principle to Bill S-3.
The Bloc Québécois has a responsible approach to analyzing such bills, because we believe that any anti-terrorism legislation must strike a balance between maintaining safety, which is very important, and respecting the other fundamental rights.
With this in mind, the Bloc Québécois became very involved in the review process of the Anti-terrorism Act and its application, a review which is provided for in the act itself. From December 2004 to March 2007, the Bloc Québécois listened to witnesses, read submissions and interviewed specialists, members of civil society and law enforcement officials. As usual, the Bloc Québécois was passionate, professional and thorough in its work.
During the specific review of the two provisions in Bill S-3 by the Subcommittee on the Review of the Anti-terrorism Act, the Bloc Québécois clearly stated its position on the investigative hearings and on recognizance with conditions. The Bloc Québécois thought better guidelines for the investigative process were needed.
It is clear to us that 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.
The Bloc Québécois also firmly opposed section 83.3 dealing with preventive arrest and recognizance with conditions. Not only does this mechanism appear to us to be of little, if any, use in the fight against terrorism, but also, we believe that there is a very real danger of this provision being used against honest citizens.
The Bloc Québécois believes that terrorist activity deemed dangerous can be disrupted just as effectively, and in fact more effectively, by the regular application of the Criminal Code, and without the potentially harmful consequences of preventive arrest.
As a result, we recommended the abolition of this mechanism and we won on February 27, 2007. Today, as always, the Bloc is consistent, and our position on the issue has not changed.
I would add that the investigation process should not be reinstated unless major changes are made to it, which Bill S-3 does not do. Moreover, preventive arrests have no place in Canada's justice system because of the potential consequences and the fact that other, equally effective, provisions are already in place.
As we all know, Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), was read for the first time in the Senate on October 23, 2007. The purpose of the bill is to reinstate two provisions of the Anti-terrorism Act that were abolished when the sunset clause was allowed to expire. The vote on the sunset clause was held on February 27, and parliamentarians did not extend the provisions. That was the will of the House as voted.
I am surprised that the government is bringing back in this bill two clauses that have already been debated and defeated in a vote right here in the House of Commons.
Perhaps we could look at what section 83.28 of the Criminal Code, on investigative hearings, was all about. Under this provision, a peace officer could, with the prior consent of the Attorney General, apply to a provincial court or superior court judge for an order for the gathering of information. The order, if made, required the named person to appear before a judge for examination and to bring any thing in his or her possession.
The person named in the order had the right to counsel and was required to answer questions, but could refuse to do so in order to avoid disclosing information protected by any law relating to privilege or disclosure. The presiding judge was to rule on any refusal. The person was not excused from answering a question or producing a thing on the ground that that could incriminate him or her. In fact, the person simply lost the right to remain silent. However, no information or testimony obtained during an investigative hearing could subsequently be used directly or indirectly in other proceedings, other than a prosecution for perjury or contradictory evidence.
In our opinion, investigative hearings were not useful. Moreover, they were never used. In the normal course of an investigation, the police can already question witnesses and conduct searches to obtain documents. This is possible under the current law, which means that, in a way, Bill S-3 is seeking to reintroduce almost exactly the same provisions we refused to extend.
If we look more carefully at recognizances, arrests and preventive detentions, section 83.3 of the Criminal Code dealt with recognizance with conditions. A peace officer who believed that a terrorist activity was going to be carried out and who suspected that the imposition of a recognizance with conditions or the arrest of a person was necessary to prevent the terrorist activity could, with the prior consent of the Attorney General, lay an information before a provincial court judge. That judge could order that the person appear before him or her. A peace officer could arrest the person named in the information without a warrant if the arrest was necessary in order to prevent a terrorist activity from being committed.
The person detained in custody had to be taken before a provincial court judge within 24 hours or as soon as feasible. A hearing known as a show-cause hearing was then to be held to determine whether the person should be released or held longer. This hearing could not be adjourned for more than 48 hours.
If the judge determined that there was no need for the person to enter into a recognizance, the person had to be released. If the judge determined that the person should enter into a recognizance, the person was bound to keep the peace and respect other conditions for up to 12 months. If the person refused to enter into such a recognizance, the judge could order that person to be imprisoned for up to 12 months.
I will repeat, this provision had never been invoked before it was abolished. That is not surprising because police officers could, and still do, use the other provisions of the Criminal Code to arrest someone about to commit an offence.
Section 495 of the Criminal Code states:
(1) A peace officer may arrest without warrant
( a) a person ... who, on reasonable grounds, he believes ... is about to commit an indictable offence;
The person arrested must then be brought before a judge who can impose the same conditions as those in the Anti-terrorism Act. The judge can even refuse bail if he believes that the person's release would endanger public safety.
If the police believe that an individual is about to commit a terrorist act, it is because they are aware of a plot. They probably know, based on wiretap or other surveillance information, that a criminal 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.
They will eventually go to trial, at which time that person will have the opportunity to present 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 apprehended terrorist activity would have been disrupted just as easily as if section 83.3 had been used. However, it is this provision that is most likely to give rise to abuse and this concerns the Bloc Québécois greatly.
It may be used to brand someone a terrorist on grounds of proof that are not sufficient to actually accuse 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. These are serious consequences for the person affected by this provision.
One could compare this situation to that of Maher Arar upon his return from Syria, before he was exonerated by Justice O'Connor. If this new, temporary provision of the Criminal Code had been used, a judicial decision could have imposed 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. A parallel fight against these injustices is often conducted by those who want to correct them through democratic means. Such people have made a positive contribution to the transformation of the societies in which we live today. They have often been the source of many of the rights that we enjoy.
It is inevitable that political activity will bring terrorists and non terrorists together. Very often, the latter will not even be aware that the former are involved in terrorism. The planning of terrorist activity is by its nature secret, of course. In order to determine whether a person is part of a terrorist network, as we saw in the Arar case, security organizations will monitor a person's contacts. For a judge to be able to order incarceration and, subsequently, the imposition of bail conditions, 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 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.
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.
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 that a person can be summoned, not arrested, before a judge, who can order that person to be of good behaviour.
After listening to all the parties and being satisfied by the evidence adduced that there are reasonable grounds for the fears, the judge cannot commit that person to a prison term unless the person refuses to sign the recognizance.
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 provision and section 83.3 that we rejected 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 decided not to support the extension of this measure. For one thing, it is of little, if any, use in the fight against terrorism, and second, there is a very real danger of its being used against honest citizens. In addition, 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 we mentioned on several occasions, Bill S-3 is virtually identical to the two measures that were abolished, namely the investigative hearing, under sections 83.28 and 83.29 of the Criminal Code, and the recognizance with conditions, under section 83.3 of the Criminal Code. Except for a number of technical amendments, such as the rewriting of some parts to make minor clarifications, there are only three substantive changes.
Let us take the change made to the investigative procedure. As regards the standardization of that procedure, the “old” investigative process made a distinction based on whether the terrorism offence had already been committed, or was going to be committed.
In a case where the terrorism offence had not yet been committed, the judge had to be convinced—in addition to meeting other criteria—that “reasonable attempts have been made to obtain the information”—