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House of Commons Hansard #71 of the 40th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was provisions.

Topics

(Return tabled)

Questions Passed as Orders for ReturnsRoutine Proceedings

12:45 p.m.

Conservative

Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK

Madam Speaker, I ask that all remaining questions be allowed to stand.

Questions Passed as Orders for ReturnsRoutine Proceedings

12:45 p.m.

NDP

The Acting Speaker NDP Denise Savoie

Is that agreed?

Questions Passed as Orders for ReturnsRoutine Proceedings

12:45 p.m.

Some hon. members

Agreed.

The House resumed from June 8 consideration of the motion that Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

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12:45 p.m.

NDP

The Acting Speaker NDP Denise Savoie

The hon. Parliamentary Secretary to the Minister of Justice has about nine minutes left for his comments.

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12:45 p.m.

Fundy Royal New Brunswick

Conservative

Rob Moore ConservativeParliamentary Secretary to the Minister of Justice

Madam Speaker, it is a privilege to rise to speak further to Bill C-19, which deals with provisions that had sunsetted under the Anti-terrorism Act.

These important provisions are known as the investigative hearing and recognizance with conditions provisions. They would allow our police officers to take steps that have been considered and steps that have the appropriate safeguards in place to ensure the rights of all concerned, but steps which may be necessary from time to time to prevent or to investigate a serious or imminent attack on Canada and Canadians

When I was last speaking, I was talking about the human rights concerns that had been raised over the course of debate on these provisions. I did want a chance to reflect on those concerns and address them, and assure the House that appropriate safeguards are in place.

Both the investigative hearing and the recognizance with conditions provisions as provided for in this legislation are replete with human rights safeguards.

With respect to the investigative hearing, these safeguards would include the following.

First, there could be no investigative hearing without the consent of the relevant attorney general.

Second, only a judge of the provincial court or of a superior court of criminal jurisdiction could hear a peace officer's application for an information gathering order and could preside over an information gathering proceeding.

Third, there would have to be reasonable grounds to believe that a terrorism offence has been, or will be, committed.

Fourth, the judge would have to be satisfied that reasonable attempts had been made to obtain the information by other means for both future and past terrorism offences. Further, the judge could include any terms and conditions in the order that the judge considered to be desirable to protect the interests of the witness or third parties. The witness would have the right to retain and instruct counsel at any stage of the proceeding.

Finally, the bill would incorporate protections against self-incrimination, including in relation to the derivative use of the evidence in further criminal proceedings against the person testifying, except for perjury or giving contradictory evidence.

Members should also be reminded that the Supreme Court of Canada upheld the investigative hearing in 2004 in application under section 83.28 of the Criminal Code. I would note in this regard that the Supreme Court of Canada stated that the protection against self-incrimination found in the investigative hearing was greater than that afforded to witnesses compelled to testify in other proceedings, such as in a criminal trial.

As to the recognizance with conditions, it too would have many human rights safeguards, such as the following.

First, the consent of the relevant attorney general or solicitor general would be required before a peace officer could lay an information to bring a person before a provincial court judge.

Second, only a provincial court judge could receive an information, and would have the discretion as to whether to cause the person to appear before him or her.

Third, the presiding judge would have to be satisfied by evidence that the suspicion was reasonably based. The judge would have to come to his or her own conclusion about the likelihood that the imposition of a recognizance on the person would be necessary to prevent a terrorist activity.

Finally, the person entering a recognizance would have the right to apply to vary the conditions under the recognizance order.

Experience has also shown that when these tools were part of our law, the investigative hearing was invoked only once, in connection with the Air India inquiry, and the recognizance was never used. This demonstrates the restraint that the law enforcement officials have exercised and would continue to exercise in deciding whether to use these powers.

The government is proposing that both the investigative hearing and the recognizance with conditions provisions be re-enacted for a period of five years.

At the end of five years, the bill would allow for further extension of one or both of these provisions. The task of deciding whether further extension is necessary would be informed, in part, by the mandatory review of the provisions found in the bill.

As well, the mandatory annual reports of the Attorney General of Canada and the Minister of Public Safety would detail the use of the provisions by federal officials and provide the minister's reasons regarding the usefulness of the provisions.

I believe that the investigative hearing and recognizance with conditions powers are necessary, effective, and reasonable. I urge all hon. members to support the bill.

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12:55 p.m.

Liberal

Larry Bagnell Liberal Yukon, YT

Madam Speaker, I would like to thank the member for a very comprehensive explanation of the bill, and of course we are very supportive of the concepts of the bill. He gave a good explanation of one of the elements that the committee had recommended, which the government did not follow up on, in regard to the historical claims.

I wonder if there are any other recommendations from either the House or the Senate committee that were not followed up on and could the member explain the rationale for that?

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12:55 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Madam Speaker, in fact, many of the recommendations that were made both by the parliamentary committee, which studied these provisions, as well as the Senate committee, which studied these provisions, have been adopted. I can mention one of them specifically, which is that the change that would clarify the judicial power to order things into police custody at the investigative hearing would be discretionary rather than mandatory.

As we know and the hon. member is well aware, the investigative hearing provisions had in fact been considered by the Supreme Court in a case and held to be constitutional. This proposed amendment would bring the bill and the provisions further in line with the ruling of the Supreme Court in that regard.

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12:55 p.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Madam Speaker, I think that all Canadians have seen what happens when there is a substantial departure from Canadian legal tradition. In the recent case of Mohamed Harkat, we saw what happens when trials are held in secret, cross-examination is truncated, and evidence is presented to people without the presence of the accused and their lawyer.

This bill proposes amendments to the Criminal Code that deepen these problems. They relate to putting in place investigative hearings where people can be compelled to attend a hearing and to answer questions. In other words, the historic right to remain silent is abridged by this government bill, and preventative arrest, where individuals are detained not because they have committed any act but because they might, which goes against the historic presumption of innocence in this country.

I wonder if my hon. colleague could comment on why the government wants to abridge these two important rights, and I would point out that because something may be constitutional, it does not make it right.

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12:55 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Madam Speaker, honestly, I am actually a little shocked at the question. Who among us in this chamber would not rather prevent an imminent terrorist act than have to deal with the tragic consequences of that act?

These provisions not only have not been abused but they have not been used except in one case, so obviously law enforcement are using extreme discretion on the use of these provisions. Yes, these provisions are new. They came in, under a previous government, under the Anti-terrorism Act, and they are designed to act in a constitutional manner to prevent some of the most serious terrorist acts that could take place right here on Canadian soil.

I will mention, for the hon. member's benefit, the safeguards to which I referred earlier. There can be no investigative hearing without the consent of the Attorney General. Only a judge of a provincial court or of a superior court can hear a peace officer's application. There would have to be reasonable grounds to believe that a terrorism offence has been or will be committed.

I will not enumerate the rest of the safeguards that I had in my speech, but as the member should be aware from having listened to my speech, there are numerous safeguards in place. The investigative hearings have been considered by the Supreme Court of Canada and held to be constitutional. When we have to weigh bringing in legislation like this against protecting Canadians from an imminent terrorist act, we have to take steps to protect Canadians.

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12:55 p.m.

Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, going forward we must ensure there is proper oversight. Would the government consider the possibility of both houses reviewing the bill instead of one house reviewing the bill, as is currently worded in the legislation?

The last time this bill was undertaken, the member said in his speech, quite rightly, that there were important changes and amendments made by the Senate. How would the member feel about further reviews involving both houses to ensure a more rigorous review process and the possibility of a review within three years rather than five years to ensure there is vigilant oversight?

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1 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Madam Speaker, a review of the provisions is part and parcel of the bill. When these provisions were originally included in the Anti-terrorism Act, there were sunset provisions. There was lengthy debate in the House on those provisions. Many good points were raised and responded to.

These provisions have been considered by a Senate committee as well as the House of Commons. Recommendations that flowed from the Senate and recommendations that flowed from the House have been incorporated into this bill. There is a five-year review, whereupon these provisions would have to be reconsidered. There is also mandatory reporting. It is from that mandatory reporting that we know the investigative hearing provisions have only been used once and the provisions on recognizance have not been used.

The provisions themselves are working quite well. In fact, even if this bill passes and these provisions are back in place, we hope that they are never used, but that they are there so that in a case of extreme threat to our country and Canadians, they can be used.

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1 p.m.

NDP

Jack Harris NDP St. John's East, NL

Madam Speaker, I think Canadians' sense of justice is affected by this bill. In fact, I think it is recognized in the bill itself that the bill comes from a previous bill that had a sunset clause. The provisions were deemed, even by the Parliament that passed them years ago, to be of a type that should die unless there was reason brought forward to continue or renew them.

These provisions died a natural death in 2007. As a result, they have not been in force. There has not been any reported problem associated with this. No one in the media or the press has mentioned that this tool was sadly lacking in a particular case. We think that this provision is not necessary. When a bill allows for imprisonment for up to 12 months or strict recognizance conditions on individuals who have not been charged with any crime, it is contrary to the core values of our justice system.

I do not see why the government is bringing this back in. Can the Conservatives give any justification at all for bringing this back in when the bill died without being renewed, as it was intended to?

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1 p.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Madam Speaker, I can give justification as to why we bring them in. We want police to be able to prevent an imminent terrorist attack. Is it that hard to understand? These provisions allow for cases where the police have reason to believe that a terrorist attack on Canadian soil is imminent. That means it has not taken place yet, but it is about to take place. Under the provisions of this bill, there has to be reason to believe that a terrorist attack is imminent. As I mentioned before, our goal should be to prevent that attack. Without these tools in place, the police do not have the appropriate tools to prevent that attack. These provisions allow for the mechanism to prevent an imminent terrorist attack.

I have enumerated the safeguards in the bill a couple of times. The safeguards are numerous. The provisions have been considered by the Supreme Court of Canada and have been found to be constitutional. We have to act to protect Canadians.

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1:05 p.m.

Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, I am pleased to speak to Bill C-19.

One of the most difficult balances we have in dealing with public safety is the balance between collective security on the one hand and individual freedoms and individual civil liberties on the other. It is a difficult balance, particularly in the wake of the events of 9/11, with which we have been challenged, not just our country, but countries in all parts of the world as they have tried to manage a process of ensuring the safety of the general population while at the same time making sure that terrorism does not undermine the very freedoms that define our society.

We have these two balancing interests. On the one hand the government makes the point, and it is well made, that there can be extenuating circumstances, situations where collective security is put in deep peril, where there is an impending terrorist threat that demands immediate action, where police need to be given every tool at their disposal to get answers and to prevent disaster from happening. Canadians would expect nothing less than that.

On the other hand there is an equally important assurance that needs to be made that those tools, those exceptional powers, would only be used in the most extreme circumstances. They would only be used in examples where there was an imminent threat and something that presented a serious risk to public security and public safety and that these powers would not be abused. In this regard, oversight becomes exceptionally important. As a Parliament, we need to look regularly upon this and ensure that the proper balance has been struck.

As we have seen western democracies struggle with this balance, this pull in both directions, we have seen errors made on both sides. There have been some states that have clearly gone too far and have jeopardized individual freedoms far too much for very little gain in terms of public safety. On the other hand there are those that have not taken action, have not given law enforcement officials and those on the front lines stopping terror the tools they need to do their job. That is where we are with this particular bill.

When the government first introduced its legislation after the sunset clause had been completed, it was clear that was greatly deficient. There were a number of problems. The Senate studied it. The Liberal senators did an enormous amount of work, along with others, but it was led particularly by the Liberals in the Senate. They tried to rebalance the bill, to make sure that those two competing priorities were met. I think they did an excellent job in that regard.

I will go over exactly what we are talking about and give an analysis of some of the reasons, at this point, we as a party certainly will be supporting sending the bill to committee. However, because of the sensitive nature of it and the balancing that is required, we will have a lot of work once it gets to committee.

It is important to note that investigative hearing provisions in the Criminal Code allow authorities to compel the testimony of an individual without the right to decline to answer questions on the grounds of self-incrimination. The intent would be to call on those on the periphery of an alleged plot who may have vital information, rather than the core suspects who would have an overwhelming incentive to lie or to protect themselves.

The preventive arrest provisions in the Criminal Code allow police to arrest and hold an individual, in some cases without warrant, provided the police have reasonable grounds to believe the arrest will prevent future terrorist activity.

After 9/11 the Liberal government passed the Anti-terrorism Act, a package of measures, including Criminal Code amendments, to combat terrorism and terrorist activity. The act attempted to balance those measures with respect to the Canadian values of fairness and human rights.

Two new powers in the act, investigative hearings and preventive arrest, were considered sufficiently intrusive and extraordinary that a specific five-year sunset clause was applied to them. The sunset clause was a Liberal caucus priority to ensure that oversight, as I mentioned before is so important, was had.

In October 2006 a subcommittee of the Standing Committee on Public Safety and National Security recommended extending the sunset clause while also amending the Criminal Code to restrict the scope and application of investigative hearings and preventive arrests.

The sunset clauses came due on March 1, 2007. The government introduced a motion to extend the provisions for a further five years, but in February 2007, the Liberal opposition, as well as the Bloc and the NDP, voted to allow the clauses on investigative hearings and preventive arrests contained in the original Anti-terrorism Act, brought forward in the immediate aftermath of September 11, to sunset.

At the time, the Liberal opposition offered to work with the Conservative government to find reasonable and effective improvements in the anti-terrorism laws of Canada to strike an appropriate balance between safety and protection of rights.

After the defeat of the clauses, the government introduced legislation in October 2007 that would have brought back the two clauses with additional safeguards. It required law enforcement officers to satisfy a judge that they had used every other method to get the information that they needed. It also required the attorney general and the minister of public safety and emergency preparedness to report to Parliament on a yearly basis explaining their opinion as to whether or not these provisions should be further extended.

In October 2007, upon the introduction of Bill C-3, on security certificates, and Bill S-3, on investigative hearings and preventive arrest, both the Liberal critic and the Liberal leader in the Senate indicated their support for both pieces of legislation. Bill C-3 eventually did become law. Bill S-3 did not make it through the House before the 2008 election because the government failed to call the bill for debate.

I want to talk about Bill S-3 and some of the changes that were made by the Senate that I think started to move the bill back into a better balance between those two priorities.

Bill S-3 included improvements to the code's terrorism regime, such as an increased emphasis on the need for a judge to be satisfied law enforcement has taken all reasonable steps to obtain information by other legal means prior to resorting to an investigative hearing; the ability for any person ordered to attend an investigative hearing to retain and instruct counsel; new reporting requirements for the attorney general and the minister of public safety who must now both submit annual reports which not only list the uses of these provisions, but also provide an opinion supported by reasons as to whether these powers needed to be maintained; 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 resolve to extend the provisions further.

The former minister of public safety encouraged the Senate special committee on anti-terrorism to continue studying Bill S-3 and related issues even after reporting back to the Senate. The committee suggested key amendments to the bill that were included in the final version passed by the Senate in March 2008. The most significant of these amendments mandated a comprehensive parliamentary committee review at the fifth anniversary of the bill's coming into force.

With all of these things having been said and that balance being moved more toward where it needs to be, we on this side of the House are prepared to see the bill go to committee where obviously it is going to need a lot more work. There are a couple of points I would like to address now for consideration and which we will want to talk about at committee.

We want to ensure there is strong parliamentary oversight. One of the questions I asked the parliamentary secretary not so long ago was the possibility of ensuring that we have a review by both houses of Parliament, not just one. That is something we can work on in a collaborative fashion in committee. The last time the bill was reviewed, the Senate had a lot of important additions to make and important observations that otherwise would have been missed.

The second thing we could discuss at committee is the possibility of the frequency of the review, whether or not three years would be possible as opposed to five years. If we approach it with the philosophy of trying to ensure we have the appropriate amount of oversight, those who are concerned that these powers might in some way be misused would have their fears assuaged.

I do feel the legislation as it stands now has a significant number of safeguards. I think we could consider further ones. However, it is imperative that our law enforcement officers and officials have the tools they need to act in a preventive way against potential terrorist threats in this country. By having sufficient oversight and by taking the proper time to study the bill at committee after it leaves this House, we can strike that appropriate balance and move forward in a productive way.

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1:10 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, my concern with the bill is the sunset clause, which was initially put in the bill when this became legislation. There was a great deal of concern among parliamentarians about the extraordinary powers that were being delivered to the police.

The Conservatives say that this would only be used in the case of an imminent terrorist attack, yet in jurisdiction after jurisdiction police officers can defend all kinds of powers on the basis that it will help stop some kind of nefarious activity.

For many years, a process of internment in Ireland was supposed to be a process to stop the IRA. Ireland also had processes where people were taken and held without trial for long periods of time. Again and again we have seen serious injustices, like the Guildford trials and the Birmingham bombings.

The question I would ask my colleague is on the provision of being hold someone for 12 months without charges. If there is an imminent attack, we want to ensure the provisions are in place to respond. However, police will always say there is a good reason for picking people up and holding them for 12 months.

In the case of Harkat, CSIS provided false information. In the case of Mr. Abdelrazik in Sudan, the government continues to deny his rights. It cannot even bring any kind of claim against him, yet those rights are denied again and again.

Does my hon. colleague think it is good enough to say that we will have parliamentary oversight of a provision that really undermines fundamental due process in our country?

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1:15 p.m.

Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, when the Anti-terrorism Act was originally introduced and the sunset clauses were put into place, it was done specifically so we could take a look at the period that transpired and how these tools worked and how effective they were.

No one is suggesting by any means that somebody can just be picked up without cause. The standard is set extremely high. I go back to some of the points I made that were added by the Senate, which are critical to my support in seeing this go over to the committee.

There are increased emphasis, as I mentioned before, on the judge to be satisfied that law enforcement has taken all other reasonable steps before using this as a mechanism, the ability of people to both retain and instruct counsel, requirements for an annual reporting by the Attorney General and the Minister of Public Safety, the flexibility of a provincial court judge to hear a case on a preventative arrest and so forth.

When we look at the threshold that has been established, it is extremely high. It is not law enforcement officials on their own making a decision to detain somebody. It is them going before a judge, making a case that an individual needs to be detained and needing to prove they have done everything else that they possibly could and that this is the only tool left at their disposal.

When we take a look back over the past five years and the fact that this has only been used once, it shows it has only been deployed in the rarest of circumstances, as would be appropriate. This is the type of tool that we would only expect to be used in very rare circumstances. One would hope that Canada would never again face the kind of threat that would necessitate the deployment of this option.

Nonetheless, in extreme circumstances, it is important we reserve that right. There has been a lot of work to date to ensure this balance is struck. I would submit the balance there is sufficient enough to warrant this going to committee to for further study.

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1:15 p.m.

Liberal

Larry Bagnell Liberal Yukon, YT

Madam Speaker, I commend the member on his comment that the Senate has also reviewed this as well. I cannot imagine the government would be against this, as the parliamentary secretary explained the good ideas he used from the Senate in the drafting of this.

Under a government that treats everyone equally, we expect there would probably not be as many concerns with the bill. However, selectively, the government has not followed policy or government law in dealing with Canadians, in particular on our policy on the death penalty, where it refused to give that protection to some Canadians overseas. There is also the Canadian who has been totally abused, as far as the principles of Canadian law, and the government has refused to bring him home.

Does he have confidence that the government would not abuse such a powerful law?

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1:15 p.m.

Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, I agree with the member and I am very hopeful on the first point that in committee we will be able to work collaboratively. We have a very constructive committee where we can work on these issues. That is an issue on which we can work. I look forward to talking with the Conservative members and other members of the committee to see how we can work on that collaboratively and come up with something that ensures we include the Senate's voice in this process.

On the second point, I would agree with the member if it were simply left up to the government. If it were only the government's choice on when to deploy this and when it would be applied, I would have grave concerns.

One of the things the Senate did, which was so important, was it made sure the courts were involved and that law enforcement officials and the crown had to prove they had exhausted all other measures at their disposal to get at that information and there was an imminent threat that necessitated them moving forward. The courts act in this instance as the arbiter of the use of this power.

By looking over the last number of years and looking at how rarely this has been deployed, we can get a certain degree of assurance that balance will be continued going forward.

However, I take the member's comment, which is a very good one. I again point out the fact that this is just at second reading right. We are going to be going to committee and we are going to be spending a lot of time and work ensuring that balance is respected.

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1:20 p.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Madam Speaker, I listened carefully to the member's comments and I have a couple of questions.

The first concerns the repeated use of the words “imminent threat”. Those words do not appear in the legislation. The infringement of rights that we are talking about, basic fundamental rights, occur when someone has reasonable and probable grounds to suspect that an attack may be coming, not an imminent threat, which is a much loser test. Would the member comment on that?

Also could the member elucidate the House on why his party voted against these provisions two years ago, when there was attempt to reintroduce them in the House, but now appears to support them two years later? What has changed?

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1:20 p.m.

Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, on the member's second point first, an enormous amount has changed. It was one of the things that I really tried to address in my comments. We were initially opposed because the balance that I spoke about simply did not exist. In fact, the Senate, through an enormous amount of work, was able to strike that balance. I commend the Liberal leadership in the Senate, which took hold of this and tried to find that balance. It introduced a number of important measures, which I will not repeat again because I have enumerated them before, but they really changed the nature of the bill.

I think quite rightfully our caucus responded to that and said that now this was a different bill, with a different weight and a different balance.

With respect to the assessment of threat, personally the bill makes it very clear that the standard is exceptionally high. The threat has to be something that poses an immediate and present danger to the security of the nation. I read that with absolute clarity in the legislation.

I look forward to having a debate on that when it goes to committee and ensuring that the threshold is set that high. Having read the legislation, I am convinced it is, but it is something that needs to be there in those circumstances and we need to guard that. I hope the member would agree with it.

Being on committee with the member and having worked with the member on a number of other items, I am sure we can discuss this matter in committee and ensure that the right balance is struck.

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1:20 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Madam Speaker, I think there is great interest that we have set the threshold very high.

We had a pizza delivery guy in Ottawa picked up, brought to court with sensitive information blacked out. The judge held that guy, Mr. Harkat, for three and a half years without bail. We found out later that CSIS did not bother to tell the judge that its evidence was pretty dodgy. This has happened in Canada. It happened under this kind of legislation.

How can the member give us any confidence that this will not happen again if we allow these extraordinary powers?

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1:20 p.m.

Liberal

Mark Holland Liberal Ajax—Pickering, ON

Madam Speaker, it does not matter what the legislation is. There is a fundamental reality that mistakes and errors get made and when they do, we need to pounce on them. I have been as vocal as anybody else when our intelligence and security officials have failed us and to call them out on that.

However, let us not make the mistake and say that by not giving them the tools, there are not going to be mistakes that occur. We have to be ever vigilant. If we are not, then we will have problems.

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1:20 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Madam Speaker, I am sure that anyone listening who does not have a background in law will have a great deal of difficulty in understanding the provisions. There has been much talk on a number of fronts about striking a balance between two necessities: fighting terrorism and respecting human rights.

I will now speak in layman's terms, as I would to a jury, in order to explain what this is all about, since I am sure that anyone listening to the speech of the government representative would not grasp it at all. I will do so as thoroughly as possible, and I believe people will then be able to formulate their own opinions. My opinion is shaped by life experiences: the 1970 October crisis in Quebec and my contacts with police forces and the courts.

Essentially there are two provisions: one that has been more correctly called preventive arrest but is now being called recognizance. The other has to do with testimony. I will focus for the most part on preventive arrest, because I feel this clearly has the greatest potential to cause considerable harm to innocent people, while offering very few advantages as far as fighting terrorism is concerned in the case of guilty parties. I would even go so far as to say the advantages are almost nil.

First of all, the decision is based on a suspicion. The Attorney General must of course give prior consent, and the police officer must have reasonable grounds to believe that the individual is about to commit a terrorism offence, is part of a terrorist plot or is planning an act of terrorism. If there is an immediate danger, the police officer may arrest the individual immediately and bring him before a judge. The judge must then assess whether the police officer's suspicions are reasonable and whether the terrorist plot is significant, in other words he must establish whether it is dangerous, based only on suspicions.

The only thing the judge can do, after a number of procedures have been followed, including detaining the individual but never more than 48 hours at a time, is to agree with the police officer and state that the suspicions are reasonable and the act planned is dangerous. He can then require the individual to sign a recognizance for one year, with certain conditions attached, and send the person back home.

So there are two possibilities: the suspicions are justified, or they are not. I think everyone will admit that when you are acting on the basis of suspicions, you sometimes make mistakes, and people are unfairly suspected. That is why, in our legal system, we generally do not convict people based on suspicions. When I studied law, it was said that a thousand suspicions are not equal to one piece of evidence. But in this case, the decision is to have the person sign a recognizance if the suspicion is reasonable and the act in question is dangerous.

If the person is innocent, they will certainly be eager to sign the recognizance. They will not realize that from then on they will be stigmatized as having been subject to a judicial decision relating to terrorism. Even if they comply with the conditions, when the year is out, the stigma will remain.

Do we imagine that this person will ever again be able to take a plane? Do we imagine they will be able to cross the American border, when they have been compelled to sign a recognizance like that?

The person will probably lose their job, and this will be a considerable barrier to finding another job. That is the harm that can be caused to an innocent person, and it is not insignificant.

If the person suspected is not innocent, however, it will be reassuring to hear that the judge must send them home on a mere recognizance.

Obviously that is what the judge will do. Obviously, as a result, the person is now aware that they are known, that their conspiracy has been uncovered. That in itself may be enough to deter them from going ahead. Do you think this kind of recognizance is very reassuring for a confirmed terrorist? But let us look, instead, at what might happen.

How do we know that a person is preparing to commit a terrorist act? First, most of the time, if not all the time, the person is not all alone. They are part of a conspiracy. These people have agreed to commit a terrorist act. Through surveillance of their movements and the people they meet and, to a large extent, wiretapping, the police reach the conclusion that the person is probably planning a conspiracy. In our law, when two or more people agree to commit a criminal act, known as an indictable offence, that is called conspiracy. They are guilty of conspiracy, even if they do not commit the criminal act they were planning.

If the police in fact have that kind of information, they have enough information to arrest them. The law also says that a police officer can arrest without warrant a person who is about to commit a criminal act. If the ordinary law is applied, a criminal terrorist plan can certainly be interrupted in that way and charges laid.

Now, if the individual were wrongly suspected, after charges were laid, there would be a trial. In the course of the trial, the individual might be acquitted. Not only might they establish their innocence, but it might be determined whether or not there was reasonable proof of the planned plot. This individual will be acquitted. The first individual, however, who is innocent and who agreed to sign a recognizance because they had never thought of carrying out a terrorist act will never be acquitted. They will continue to be stigmatized for having been forced by the court to enter into a recognizance in connection with terrorism.

It is time to look at the balance, weighing what is to be gained on the one hand and the potential for injustice on the other. It is unrealistic to think that hardened terrorists will honour their recognizance. Does the government think that it would have discouraged those who took part in the terrible events of September 11, when they were called on to board the planes and carry out their plot? That is something very important.

In addition, through the regular application of the laws on conspiracy, the court may deny an accused a surety bond if the evidence provided by the Crown, even prima facie, supports the likelihood of a dangerous plot in progress. In the other case, the court is obliged to free the accused underwritten recognizance. What added benefit is there in the fight against terrorism compared with the injustices we are doing to the people wrongly suspected? We have examples of people wrongly suspected in Canada.

Obviously, I find that appalling, no doubt because of my legal training in criminal law and my years of practice. If there is one important feature of the civilized country in which I live and wish to continue living, it is the seriousness we attach to penalizing an innocent person. In our first law courses, we were told it was better that 100 guilty persons escape than that one innocent person suffer. In this case, it is on the basis of mere suspicion that we will stigmatize an individual for a long time. The stigma will remain.

There is nothing in the bill, even though it was clearly explained to them at the time of the study in 2007 that we should consider compensating such a person. That is typical, I think, of the current government. I might have expected better from the Liberals. I know they were the ones who originally conceived this, but the prevailing mood at the time was frightful. It was just after September 11. At least they had the wisdom to say it should be reviewed in five years to see whether it had been effective.

It is much better to enforce the law than to enforce this act. That is why none of its provisions have ever been used. Someone made the argument that the fact it has never been used does not mean it never will be. Others say that the fact it has never been used is proof that it is useless. If we understand what it brings to the fight against terrorism, we will understand why it has never been used: it is useless. It is useless but it is dangerous because it results in innocent victims.

With my training in criminal law, I find that appalling. It is not someone being incarcerated, of course, it is not like prison for a bandit, but restricting someone’s movements, destroying his reputation with his employers, and ensuring many people think he is a terrorist is a horrible stigma. Now that we know it does no good, it is time to get rid of it.

They would rather discuss the theory of it all. They think a balance has been established, but do not say what it is based on. I might tell the House a little later, if I get that far. I had a good quote from Kofi Annan. He is certainly not a terrorist. He was the Secretary General of the United Nations, among other things. He said basically it would be a victory for the terrorists if the legal protections enjoyed by all citizens of civilized societies were reduced. That is exactly what is happening here.

I also have the impression that only certain people are targeted. We had one member with an Arabic name in the last Parliament, Omar Alghabra, I believe. I do not think he was re-elected. He was opposed to renewing this. It is as if we are not so sensitive because it is not people named Smith or Gagnon or Tremblay who are targeted.

I was a young lawyer at the time of the October crisis. I witnessed the way a government can get things totally wrong. Using an antique piece of legislation, the War Measures Act, they arrested in excess of 300 people. Among them: a poet, a popular singer—Pauline Julien; Andrée Ferretti, the staunch independentist; and one man whose brother was a terrorist. What is more, this brother, whose name was Geoffroy, had pled guilty to more terrorist acts than he could possibly have committed, because some of them had taken place in two different places at the same time. He took the rap for the rest of them. Geoffroy's brother and his sister-in-law were arrested. With only one or two exceptions, all the candidates of FRAP, a municipal political party, were arrested and jailed.

The names involved then were familiar to us all: Lemieux, Tremblay, Gagnon and the like, but now the names that come up are Abdoulazik, Albati and so on—those people will now be the targets of these provisions, which can be just as unjust as the War Measures Act—but that is of no concern to the people who are coming up with these fantastic, theoretical ideas.

We need only to take a proper look at the situation. Police forces have been smart enough not to use it, for the good reason that it is useless—not just somewhat useless, but totally useless. The measures have been in place since 2002. They were not used once in 2007. Not used in 2007 of course because they were not renewed. No one has presented us with a single example of a situation in which this arrest and recognizance would have been of use, instead of the usual enforcement of the Criminal Code.

When a terrorist plan is imminent, it is because there are accomplices, conspirators, and the police have evidence. Let them take that evidence and lay charges. At worst, the accused will be acquitted later, but at least they will be prevented from acting. If the evidence satisfies the judge, they will be incarcerated. But if there is a recognizance, the stigma will remain.

Another part is the examination. When a terrorist conspiracy is thought to be underway and someone can give us information about it, we can also summon the person to appear before a judge to be questioned. I acknowledge that this is a very civilized way of questioning someone about criminal conspiracies.

For those who feel like reading the bill, it must be said that it is extremely difficult to understand. The federal government always writes laws the same way. I have always said, and I can never say it enough, that badly written laws are understood badly and then applied badly. We have hundreds of examples. When you read the law, many of the provisions stipulate that the person is obliged to answer, but they may object, and if they object, they will still be obliged to answer. The fact that they object, however, can never be used against them. In the Quebec courts, that is called the protection of the court, or the protection of the law. In other words, once the person has objected, what they say can never be used against them, unless they commit perjury or make another contradictory statement.

In the English law we practise here, people have the right to remain silent. This is an infringement of the right to silence. I will leave it to others who are much more concerned about this to talk about it, but I will say this. We have to look at the reality of the situation. A party to a conspiracy is summoned before a judge, with their counsel. Of course, it is certainly better than interrogating someone under torture to make the person say what we want to know. The police do have interrogation techniques that are not torture, but I assure you that when they are interrupted by an objection from counsel or a decision by a judge, there is a psychological effect. That is why the police do not use it. We can keep it if we want, but it is still contrary to the basic principles of the law that a person should never be compelled to cooperate with the police.

The more serious question relates to the other. In any event, it is inseparable. We can certainly consider it in committee if some people still want to do that, but I hope they will have more solid arguments than last time if they change their minds.

As young people would say, I have been a bit “heavy”, although I do not want to joke about such a serious subject. This is what the order the judge may make says:

Before making an order under paragraph (8)(a), the provincial court judge shall consider whether it is desirable, in the interests of the safety of the person or of any other person, to include as a condition of the recognizance that the person be prohibited from possessing any firearm, cross-bow, prohibited weapon—

I have never heard tell of a crossbow-wielding terrorist, but if we need to cover all the bases, there it is. But if we need to cover all the bases, it is significant that one thing is not included: compensation for those who have been unjustly stigmatized. If their innocence is proven, what will be done to remedy the harm done by stigmatizing them as terrorists or putting them in the category of persons about whom there has been a judicial decision relating to terrorism? It seems to me that the government has had more than two years to remedy this injustice, but it has not done so. This speaks volumes about where its concerns lie.