moved that Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.
Madam Speaker, I am pleased to rise and speak at second reading to the combating terrorism act, Bill C-17.
In that regard, I have to thank the hon. government House leader for putting justice legislation first on the list. I know that is in accord with his own thoughts and priorities. I just want to tell him how much I appreciate that this is the first bill before Parliament in this session and thank him.
I am pleased to lead off the debate on a vital piece of the government's national security legislative agenda: Bill C-17. This bill, with which many members are familiar, seeks to reinstate, with additional safeguards, the investigative hearing and recognizance with conditions provisions that sunsetted in March 2007.
This government has put national security and, in particular, anti-terrorism at the forefront of its agenda.
In the March 3, 2010, Speech from the Throne, the government committed to taking steps to safeguard Canada's national security, maintaining Canada as a peaceful and prosperous country and one of the safest places in the world in which to live. This is our goal. The proposals in this bill represent one significant step in the right direction.
There is somewhat of a history in this place on these powers. These provisions were first introduced in the Anti-terrorism Act in December 2001 and were subject to a sunset clause. Members will recall that the ATA also contained a mandatory parliamentary review component, which led to two separate reviews: one by a Senate special committee and, in this place, by two subcommittees, the last being the Public Safety and National Security Subcommittee.
As the committees were winding down their review of the ATA, including the investigative hearing and the recognizance with conditions powers, the sunset date on these provisions was fast approaching. As a result, the government introduced a resolution in the House of Commons that proposed to extend these provisions for three years. Unfortunately, the powers were not extended by a vote of 159 to 124 and the provisions, therefore, expired on March 1, 2007.
It is important to recognize that the reports published by the parliamentary committees that reviewed the ATA were generally supportive of the powers contained in Bill C-17 and called for their extension.
Since that time, attempts have been made by this government to reinstate these important tools.
First, Bill S-3 was introduced in the Senate in the 39th Parliament and contained additional safeguards and technical changes to respond to the recommendations of the committees reviewing the ATA.
The Senate passed Bill S-3 on March 6, 2008, with a few amendments, but it died on the order paper when the election of 2008 was called.
More recently, in the last session of Parliament, this government again made efforts at bringing this important piece of legislation back to life, through Bill C-19. Bill C-19 contained the amendments made by the Senate to the former bill.
In summary, these were making mandatory a review of these provisions by a parliamentary committee within five years; deleting some words in the recognizance with conditions provisions to track charter jurisprudence; and making a technical amendment for consistency.
These changes are also now found in Bill C-17. I want to make that very clear. They are all there in this piece of legislation.
With that short history, let me turn to an explanation how the investigative hearing and the recognizance with conditions provisions of this bill would operate.
What will become very clear, as I described these proposals, is that they would achieve the appropriate balance between the respect for human rights without compromising effectiveness and utility.
First, with the investigative hearing provisions, the courts would be empowered to question, as witnesses, those persons who are reasonably believed to have information about a past or future terrorism offence.
The key here is that the person required to attend an investigative hearing is treated as a witness, not someone who is accused of a crime. It is important to note that witnesses could be questioned under this scheme without the commencement of any prosecution.
Earlier, I noted the balance between human rights and security. In this regard, the investigative hearing provision would be equipped with numerous safeguards for witnesses in accordance with the charter of rights and the Canadian Bill of Rights. I would like to set out a few of these safeguards so that all hon. members can get a sense of the careful attention which our government pays to issues of this type.
First, the attorney general must consent before the investigative hearing can be initiated.
Second, an independent judge must agree that an investigative hearing is warranted, finding in particular that it is believed on reasonable grounds that a terrorism offence has been, or will be committed, the information concerning the offence or the location of a suspect is likely to be obtained as a result of the order, and in all cases, reasonable attempts have been made to obtain the information by other means. Previously, this safeguard only applied to future terrorism offences and not past ones.
Third, section 707 of the Criminal Code, which sets out the maximum period of time in relation to which an arrested witnesses can be detained at a criminal trial, would apply to a person arrested to attend an investigative hearing. This is a new safeguard that is added to Bill C-17, something that was not in the original legislation.
Fourth, the person named in the investigative hearing would have the right to retain and instruct counsel at any stage of the proceeding.
Finally, there is a robust prohibition against the state using the information or evidence derived from the information against the person.
It is important for all members of this place to know that in 2004 the Supreme Court of Canada ruled that the investigative hearing was constitutional having regard to the safeguards that existed at that time in a case called “Re: Application under Criminal Code s. 83.28”.
Therefore, I think all members would agree that the safeguards set out in Bill C-17 in relation to the investigative hearing are robust, effective and reasonable.
Now let me return to the recognizance with conditions provisions of the bill. The recognizance with conditions proposal would permit the court to impose on a person such reasonable conditions as the court considers necessary to prevent terrorist activity. This would prove to be a vital tool in efforts at keeping Canadians safe. As I set out in the various components of the recognizance with conditions scheme, I would ask hon. members to take note of the numerous safeguards contained within the proposal.
Under the proposed bill, before a peace officer is able to make an application to a judge for a recognizance order, again the consent of the attorney general would have to be obtained. A peace officer could lay an information before a provincial court judge if the peace officer believed on reasonable grounds that a terrorist activity would be carried out and suspected on reasonable grounds that the imposition of a recognizance with conditions on a person or the arrest of the person would be necessary to prevent the carrying out of the terrorist activity. This would be the legal test to be met in order to obtain the judicial order to compel a person to attend before a judge.
Under this proposal judges would be able to compel a person to attend before them for a hearing to determine if a recognizance would be imposed. Now the bill proposes a very limited power to arrest without warrants, the purpose of which is to bring a person before a judge so that the judge can exercise his or her power of judicially supervised release.
This power can only be exercised in two situations as follows: first, is where a peace officer has the grounds for laying an information before a judge, but by reason of exigent circumstances it would be impractical to lay an information and the peace officer suspects on reasonable grounds that the detention of the person is necessary in order to prevent a terrorist activity.
The second is where and information has already been laid as a summons issued by a judge and the peace officer suspects on reasonable grounds that the detention of the purpose is necessary in order to prevent a terrorist activity.
For example, suppose that a peace officer has the requisite grounds to lay an information before a judge. However,he or she also learns that the terrorist suspects are planning an imminent terrorist attack and the person is about to deliver material that could be useful in making, for instance, an explosive device. In such an example, the peace officer could reasonably suspect that it is necessary to detain the person and bring him or her before the judge in order to prevent the delivery of the material and therefore the carrying out of the terrorist activity.
The bill sets out that in cases where the person has been arrested without a warrant under the recognizance with conditions provisions, that person cannot be detained for more than 72 hours. In the end, if in the opinion the recognizance is not warranted the person will of course be released.
It is important to note that if a person refuses to enter into a recognizance when ordered by the court, the judge can order the person's detention for up to 12 months. This is a significant power but I am sure one that is understandable in the circumstances given the seriousness of the harm that could be caused by the commission of a terrorist offence. Moreover, it is a power found in other peace bond provisions of the Criminal Code.
For both the investigative hearing and the recognizance with conditions powers, the bill would require annual reporting on the use of these provisions. While annual reporting requirements existed in the original legislation, this is an important change that is found in Bill C-17. In response to a recommendation from the Senate committee that reviewed the ATA, the bill proposes that both theAttorney General of Canada and the Minister of Public Safety provide their opinions, supported by reasons, as to whether the operations of these provisions should be extended. This is an open, transparent and sound reporting mechanism that is being proposed.
One of the benefits of having extensive reviews and debates already to have taken place on these provisions is that one is able to anticipate questions or concerns that may be expressed. I will not attempt to address some of those issues.
Some may take the position that these provisions are not necessary since they have been rarely used when they were in force if at all. However, this argument is premised on the view that since these powers were not used in the past that they will not be needed in the future. In the face of continuing terrorist attacks around the world, this logic is, to say the least, questionable. Neither I nor do I suspect the members of the House have the power to predict the future. Therefore it is imperative that we as a country have the mechanisms necessary to respond to a terrorist threat and that we give our law enforcement proper tools to do so. This is what Canadians rightfully expect.
It is certainly true that when these powers were previously in force for five years, to our knowledge the investigative hearing power was invoked only once and never in fact held. On that occasion, the Supreme Court of Canada considered the investigative hearing scheme and found it to be constitutional. To my knowledge, the recognizance provision was not used at all.
I suggest that this is clear proof, not that these powers are not needed, but rather that Canadian law enforcement is prepared to exercise restraints when it comes to using these powerful tools.
I would like to restate that the recognizance provisions cannot be imposed solely on the ground of reasonable suspicion. The bill would require that the police officer believes on reasonable grounds that a terrorist activity will be carried out and that he or she suspects on reasonable grounds that the imposition of a recognizance with conditions is necessary to prevent a terrorist activity. This is a significant threshold and not one based on mere suspicion.
Some have argued that the Criminal Code already contains similar provisions that could be used for terrorism related offences, such as Section 495(1)(a) and Section 810.01, and that accordingly these provisions are unnecessary. Section 495(1)(a) in part allows a police officer to arrest without a warrant a person reasonably believed to have committed an indictable offence or about to commit an indictable offence. What this argument fails to realize is that the arrest powers in that section apply to a much smaller class of persons than those who would be covered under this bill.
Similarly, the peace bond provisions that I talked about earlier target only potential perpetrators of offences themselves, the actual person doing it. Provided the criteria or the recognizance with conditions are met, this bill would apply more broadly to persons who could not be arrested for terrorism offences in order to disrupt the planning of terrorism. I think all members of the House would agree that this is a class of persons who must, in order to save lives, be subject to a form of judicially supervised release.
We all know that terrorism is not a new phenomenon. Since the attacks on the United States in September 2001, the world has witnessed numerous acts of terrorism but, more important, as the recent guilty pleas and convictions in terrorism cases in our country have shown us, Canada is not immune to the threat of terrorism.
We as a government and as parliamentarians have a responsibility to protect our citizens. In doing so, we must provide our law enforcement agencies with the necessary tools to achieve that objective. It is equally our responsibility to do so in a balanced way with due regard for human rights. That was our goal with this reform and I believe that we have achieved it.
The investigative hearing and the recognizance with conditions powers are necessary, effective and reasonable. I call upon all parties to work together to make Canada a safer place to live, work and thrive.