Debates of Oct. 15th, 2012

Combating Terrorism Act

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I do in fact see it that way. I was struck by various testimony given in the Senate. That testimony will certainly be heard again by the House committee responsible for discussing the issue, whether it be the Standing Committee on Justice and Human Rights or the Standing Committee on Public Safety and National Security.

Kent Roach, the Prichard-Wilson Chair of Law and Public Policy at the University of Toronto Faculty of Law, gave evidence to the committee as an individual in support of the bill. This is another example that will be used by the government to say that all these great scholars, all these great legal minds, all these great defenders of public rights agree with the Conservatives. We are not opposed to motherhood and apple pie, but at the same time some parts of the bill pose huge problems. For instance, the idea of punishing young people instead of rehabilitating them is of enormous concern to Professor Roach.

If the government is serious, then it must ensure that the bill is amended or improved and that the questions that the subject matter experts have about it are cleared up and that these concerns are resolved, so we can say that we are no longer behind the times, because he said that we lag behind many other countries because our official policy is that once a terrorist, always a terrorist.

All the same, I am not naive. I practised law for 25 years. You see all kinds of people. Nevertheless, I am still optimistic that there are good measures that can punish and rehabilitate the same time and take people's unique differences into account. We should not treat a young person or child as we do a 50-year-old terrorist with a 30-year career as a terrorist behind him who works in the terrorism market. They are not the same thing. There are children who have been indoctrinated by their parents, and the parents are authority figures to their children. It is hard for a child to say no to his father or his mother. All of these cases must be studied in depth.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, the member for Gatineau is always very eloquent. She has outlined all of the measures that already exist that deal with issues that Canadians might be concerned about.

I also listened intently to her comments about what the House of Commons rejected five years ago and the fact that these measures have not been used for the last four years. Could the member comment on the timing of this? We have a government now that has shown huge financial incompetence on a wide variety of issues like the F-35s. We have seen government scandal, after government scandal, a big reaction from the public to all of the mean-spirited cuts that have caused problems in food safety and the Coast Guard as the member for Vancouver Kingsway points out. We are seeing a time where the government has made a mess of the governmental structures and yet, instead of bringing forward legislation that addresses all the concerns that ordinary families have, the Conservatives are trying to revive something that they have not used for four years.

Could the member for Gatineau comment on the timing of this and why the government is trying to put up a smokescreen rather than dealing with the fundamental issues Canadians are concerned about?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, my colleague from Burnaby—New Westminster asked an excellent question. As he said himself, it is a smokescreen. Personally, I think the legislation is a government smokescreen.

In other words, if you do not have any ideas, if you do not know what to do and if you do not know how to manage public finances, you try to scare people. You suggest that in Canada there are terrorists on every street corner, or just about. You just scare people.

As I have said before, since 2001, $92 billion has been spent on anti-terrorism measures. That is quite a lot of money. I do not even dare tell the House what could have been done with $92 billion in terms of addressing the inequalities in Canada, without jeopardizing the safety of Canadians. These provisions were not even used. It all costs money.

Thanks to this bill, we will probably have a chance to give in-depth consideration to all the billions of dollars that are being spent. We do not know where all this money is going, because there is no transparency on the government side. We do not know where the money has gone, what it has been used for, what measures required such astronomical amounts, what they prevented or even how they helped make the streets and Canada as a whole even safer than before. I have absolutely no idea where it has all gone.

This is indeed a smokescreen. If you do not know what to do and if you do not know how to manage taxpayers' money, you just scare people. You spend a lot of money and you make people think that you are doing something for them.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I appreciate the response from the member for Gatineau. What we have here is a government that is, because of the debacles we are seeing in a wide variety of areas, the cutbacks in a whole variety of services, food safety, the Coast Guard, all of those things that protect Canadians and Canadian families, essentially trying to turn the channel.

Does she think it is appropriate that the government uses legislation from the Senate in order to do that?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, no, it is not appropriate. My whole speech is on this. If it is that serious and that important, we do not start it in the Senate. We start it in the House with the representatives of the people of Canada.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I am pleased to rise in this House today to speak about terrorism. As everyone is aware, it is an extremely important issue. Terrorism is a very complex and also quite a modern scourge that has afflicted the world for the past 50 years.

Before September 11, 2001, North Americans regarded terrorism primarily as someone else's problem. During the 1970s and 1980s, we watched what happened from time to time in Europe, the Middle East or Asia, on other continents primarily, and we thought we were immune to terrorism. Even when the horrible terrorist act happened in Oklahoma City, in the United States, for us it felt a little bit surreal and random. We told ourselves it was the act of a half-wit, a lunatic, an extremist who was not in touch with the real world; we told ourselves it was a one-time act. We did not expect this sort of thing ever to happen again.

Here in Canada, we thought it was perhaps also because in the United States, there were people with extremist opinions, and we thought that Canada was in many ways a more moderate country, a country that had no history of violence or political extremism.

The events of September 11 totally changed our perspective, which was rather simplistic and perhaps a little naïve. On September 11, the people of North America suffered a massive and profound crisis of conscience. Suddenly, we became aware in a way that deeply transformed us both individually and as a society. For the first time, we understood what it was to be the target of international terrorists and to experience a terrorist act, in broad daylight, in our own backyard.

We understood how the threat of terrorism is real for us as well, and no less real than it is for those living in countries where, so often in the past, we have seen terrorist acts, unfortunately. As I mentioned at the beginning of my speech, it was often something that affected Europe or the Middle East more than North America. We learned that it is not solely someone else's problem and that we must also protect ourselves, by tightening and strengthening our legislation and our public safety infrastructure to defend against terrorism.

I would like to take this opportunity to point out that the Conservative government does not have a monopoly on concern for public safety, despite the image that it has so carefully cultivated over the past few years. In other words, the Conservatives are not any more concerned about the safety of Canadians than are the other parties in this House. They are not more fiercely opposed to terrorism than are the other parties in this House. This needs to be said.

Let us take the example of the bill passed by this House in 2001, before I was elected and before many of the other members here were elected. I am talking of course about Canada's Anti-terrorism Act, which was passed by a Liberal government. Bill S-7, which we are debating in this House today, can be seen as an amendment to Canada's Anti-terrorism Act.

The Chrétien government’s Anti-terrorism Act added new provisions to the Criminal Code, in particular part II.1 and sections 83.01 to 83.33, which specifically covered terrorism offences and made the following activities crimes: collecting property for a terrorism offence or participating in terrorist activities; facilitating terrorist activities; and instructing to carry out terrorist activities.

This means that the bulk of the work of updating the Canadian criminal justice system to reflect the new terrorist threats was done in 2001 by a Liberal government. It is worth pointing this out. As I said, when we listen to this government, we often get the impression that those on the other side of the House are the only ones who worry about the safety of Canadians, and no other government before them has done anything to try to protect the Canadian public better against terrorist acts.

The 2001 act introduced two specific provisions that my colleagues in the other parties referred to earlier, and it is worth reiterating them. The first provision allowed for investigative hearings: it allowed a person suspected of having information about a terrorism offence that has been or will be committed to be compelled to appear before a judge and answer questions where the answers would make it possible to intercept a terrorist act or find the person or persons guilty of committing a terrorist act.

The second provision of the 2001 Anti-terrorism Act gave authorities the power to require a recognizance with conditions, allowing a peace officer who believes that a terrorist act will be committed and who believes that the imposition of a recognizance with conditions will prevent that act, to bring the person before a judge within 24 hours so that a show cause hearing can be held to determine whether the person should be released or should be detained longer in certain circumstances.

Of course those new provisions were controversial. Naturally, they generated debate and prompted questions relating to the principles in the Canadian Constitution, and more specifically in the Canadian Charter of Rights and Freedoms. It is to be expected, in a democratic society, that questions will be raised when measures of that nature, relatively harsh as they in fact were, are introduced.

In response to the concerns expressed both by the Canadian public and by legal experts, who were very knowledgeable about the Constitution and concerned that it be adhered to, the Liberal government of the day came up with two quite creative responses. It included what is called a sunset clause in the Anti-terrorism Act, which provided that the two provisions I have just described would cease to be in force five years after the act was enacted, along with a clause requiring that the law be reviewed by Parliament three years after it received royal assent.

The sunset clause idea is well worth considering. The two contexts are different, but this clause does bear some similarity to the notwithstanding provision in the Canadian Constitution. In other words, this is not something that can be used indefinitely; its existence must be justified periodically. This is quite a creative response to a thorny and difficult situation in terms of protecting the rights of Canadians under the Canadian Charter of Rights and Freedoms.

That is why the Liberal government included this sunset clause—so that these two provisions would come to an end after five years. As we know, the Conservative government tried to extend them, unsuccessfully, in 2007 and it lost a vote on this matter, as other members have pointed out.

At the time, the opposition voted against extending those two provisions, because the government had not taken into account the recommendations made by the House of Commons subcommittee that had thoroughly scrutinized those provisions.

I would like to quote the House of Commons legislative summary regarding the situation at the time of the vote:

For example, the subcommittee had also recommended that the revised investigative hearing provision limit its scope to deal only with imminent terrorism offences, and that section 83.28(2) be amended to make it clear that a peace officer must have reasonable grounds to believe that a terrorism offence will be committed before making an ex parte application and to make it explicitly clear that anything done under sections 83.28 and 83.29 is a “proceeding” under the code.

We also wanted to ensure that these provisions would apply only to anticipated terrorist activity. The Conservative government failed to take those two recommendations into account in 2007 when it wanted to extend those two provisions of the Anti-terrorism Act. This brings us to Bill S-7, which reintroduces the two provisions that disappeared after five years, as set out by the legislation in 2001.

From what I understand, once again, this government still has not taken into account the recommendations made by the House subcommittee that had expressed some reservations. I just read one a moment ago. So we are no further ahead in that regard.

I think this government needs to be a little more open to what Parliament recommends. We will have an opportunity to discuss this in committee.

It is important to point out that these two provisions, which are rather controversial—I am talking about investigative hearings and recognizance with conditions—already exist in Canadian law. Yes, they are controversial, but these principles can already be found in Canadian legislation.

For example, laws concerning public inquiries, competition, income tax and mutual legal assistance in criminal law matters provide for procedures similar to investigative hearings. They are investigative procedures that do not seek to determine criminal liability. Furthermore, criminal law provides for peace bonds similar to recognizance with conditions, which are imposed to prevent anticipated violent offences, sexual offences and criminal organization offences. The principle of investigative hearings already exists, to some extent, in Canadian law.

I must also point out that, in my opinion, these two measures, investigative hearings and recognizance with conditions, respect the charter. For example, in 2004, the Supreme Court of Canada ruled that investigative hearings were constitutional and stated that they must generally take place in public. There must be as much transparency as possible in the circumstances.

The court handed down this ruling in connection with an application for an investigative hearing order for the Air India investigation. The person who was the subject of the order challenged it under the charter, citing the right to remain silent and protection against self-incrimination. The B.C. Supreme Court held that the legislative provision was valid and that the witness's rights could be protected through conditions in the order.

The Supreme Court of Canada granted leave to appeal based on section 40 of the Supreme Court Act and in Re: Application under s. 83.28 of the Criminal Code, concluded that the investigative hearing was constitutional.

Mr. Speaker, how much time do I have left?

[The Acting Speaker, Conservative, Bruce Stanton]

There are three minutes left.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, the court ruled that section 83.28 of the Criminal Code did not violate section 7 of the charter—that is, the right to life, liberty, and security of the person—nor did it infringe the right against self-incrimination; that subsection 83.28(10) provided that evidence obtained during an investigative hearing, and evidence derived from such evidence, could not be used in criminal proceedings against the person who provided the evidence; and that paragraph 11(d) of the charter did not apply, because the subject of the investigative hearing order was not an accused. Moreover, the Supreme Court extended these protections to future extradition or deportation hearings, where warranted.

However, this does not mean that the bill is perfect. Certain specific elements could be added that would provide greater respect for the rights set out in the Canadian Charter of Rights and Freedoms. I am thinking of the idea of introducing a special advocate for ex parte hearings, which are conducted in the absence of the accused, as in the case of hearings for security certificates.

Special advocates are lawyers who are independent of government and, in the case of security certificates, are appointed by the court to protect the interests of persons named in security certificates during hearings from which those persons and their own lawyers are excluded. This is an idea that should perhaps be discussed in committee. A provision could perhaps be added to introduce this kind of special advocate for public hearings.

Secondly—and I do not think I will have the time to raise any other points—some members rose in this House to say that these provisions were not used, which means that we are not in danger and that there are no terrorist threats in Canada. In fact, we do not know one way or the other, because parliamentarians do not have access to this protected and privileged information to which the government has access. In my view, this is why we should strike a parliamentary committee, whose members would be sworn in, to hear the evidence in order to appreciate the information that is available to the RCMP and CSIS intelligence services.

At this point in time, we do not have access to this information. It is therefore difficult for us to judge the extent to which a threat exists and continues to exists, and so on. That is what I would propose.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, as it is mostly members of the official opposition who have spoken to the bill, I think it is important to make a correction: no one in the House said that the fact that this provision has not been used is proof that there was no terrorism. It is very important to add that the existing provisions seem to have been enough.

I would like to ask the representative of the party that often wraps itself in the charter if we are to understand that the members of his party are voting in favour of Bill S-7 or whether, on the contrary, the fact that the committee's recommendations were not taken into account, including in the two cases he mentioned, indicates that they are not voting in favour of this bill.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I want to apologize to the hon. member because that is not what I was trying to say.

We do not know whether the provisions are necessary because we do not have access to the data to which the government has access. It is therefore hard for us, as members of the opposition and even as members of the government, to fully understand the threat level that might exist for Canada and to therefore draw any valid conclusions. Still, we can draw some conclusions. We can debate the issue, but it is hard to know for certain whether these provisions are necessary.

We will refer the bill to committee. What is more, the issues I raised and that my colleague just mentioned in her question will be raised in committee. We will have the opportunity to see to what extent it is possible to take into account the House subcommittee's recommendations and include them in the bill through amendments in committee.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, it was a previous Liberal government that brought in the provisions in the wake of 9/11 and sunset them. We have had those provisions for extreme and unusual measures to deal with terrorism, which contravened our normal practice of criminal law. We have plenty of existing criminal law, as my colleague mentioned, to deal with these issues.

Why then would we bring back measures that we have not had for a number of years and that did not cause any trouble by their absence but could now become part of the fabric of Canadian law-making and creep into other areas of criminal investigation? I think it is dangerous. I would appreciate my colleague's comments on that.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, those measures have already been in the fabric of Canadian law and they will become part of that fabric again but only on a temporary basis because they will sunset.

This is obviously a complex issue. It is important to keep in mind that these measures do seem to be charter-proof based on what I understand of court decisions. We have to take that into account. We often get up in the House and say we cannot vote for this or that because it is against the charter, and that is all very well and good. That is the way it should be. However, when something is charter-proof, it becomes difficult to argue that we are tearing the fabric of Canadian society in an irreparable way.

I understand that these are serious questions and they have to be studied in committee.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I am extremely concerned about the last thing my Liberal colleague said in response to the question asked by the member from the Green Party of Canada. This type of response is worrisome because it suggests that the provisions that need to be reviewed are actually charter-proof. This is no small claim because the provisions must still be justifiable in a fair and democratic society. These provisions were never used, so it does not seem as though not having had them at all would have been a problem. However, we are talking about doing away with rights, such as the presumption of innocence and people's right to be quickly made aware of the charges against them.

It seems that the hon. member is making quite the claim. I would like him to retract that claim or explain himself better so that we are not left with the impression that representatives of a supposedly pro-Charter party are cheerfully setting it aside.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I quoted a decision of the Supreme Court of British Columbia, and it is important to note that the purpose of the investigative hearing is not to determine guilt. Strictly speaking, it is not a matter of presumption of guilt, because the person who could be guilty is not being targeted. I think this is a nuance that must be understood.

I know that my colleague, who is an experienced lawyer, is aware that distinctions must be made. It seems the court also made the same distinction.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I was particularly intrigued by my hon. colleague's suggestion that the House of Commons may need a committee of sworn MPs to hear intelligence matters so that we could be better informed about the state of threats to the country. Such a committee does not exist, apart from an external committee for overseeing CSIS, the Security Intelligence Review Committee.

Could you elaborate on how you see this connecting with the issues in the bill. Are you suggesting that without such a committee we will never have enough information to be able to determine whether these provisions are needed? I would like to hear a bit more.

[The Acting Speaker, Conservative, Bruce Stanton]

I just remind hon. members to direct their questions and comments through the Chair.

The hon. member for Lac-Saint-Louis.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, there can never be too much information to inform point of view. I believe that firmly. There is always new information that comes forward and it is our duty as parliamentarians, and indeed as citizens, to access the greatest amount of information possible. Sometimes when we access that information, we change our minds. That is certainly how a democracy should work.

There was a bill before the House in 2005, Bill C-81, An Act to establish the National Security Committee of Parliamentarians. The intent of the bill was to create this kind of committee. SIRC, the Security Intelligence Review Committee, is not made up of parliamentarians so it is not directly connected to us here in the House, to the elected representatives of the people. It would benefit all parties if some of our representatives, under oath of course, could have access to a clearer picture of what is really going on.

Are we overreacting? Are we under-reacting? It is very hard for us to know. We read the papers. I have been sitting on the public safety committee now for over a year and I have not had an in-camera briefing on security matters.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, my remarks today will be on a series of clauses in Bill S-7, clauses 4 through 8, which would add a number of sections dealing with the question of leaving or attempting to leave the country for purposes related to terrorism.

These proposed provisions that will make it a crime to leave or attempt to leave Canada to join a terrorist group or participate in a terrorist activity respond to very real concerns. Assuming the accuracy of testimony before the Senate, there are worries about a non-trivial number, even if a proportionately small number, of citizens or permanent residents contemplating leaving Canada for this reason or having already done so. There is reason to believe that male youth under age 18 or young men over age 18 in some diasporic communities are targeted, especially for recruitment to join in terrorist activities abroad. There is very much reason to be concerned.

All that noted, we are led, as we must always be when youth are highly likely to be the main subject of criminal law measures, to wonder if criminalization will be as productive a measure as its proponents hope. Let us assume that we all believe in preventive measures of a social, educational, mentoring sort alongside addressing root causes of alienation that lead to the kind of radicalization we are concerned about in this context. The question then becomes what the value would be of criminal charges against youth arrested at airports or other borders seeking to leave Canada.

At least for those under age 18, it is true that the Youth Criminal Justice Act will apply and that the act allows for holistic education-centred sentences, for example. That is a good thing, although everyone needs to be reminded of two caveats: one, that youth still receive criminal records; and two, that the Crown can always seek to apply for adult sentences. However, once one reaches that magic number of 18, we are left with the full-blown application of the criminal law. At minimum, we need to know that the approach of government is more multifaceted than reliance on these new Criminal Code provisions alone.

In this respect, there is one thing proponents have in common with those of us who are concerned about promoting non-criminal measures to divert people, especially youth, from radicalization of the sort that embraces violence, and that is prevention. If prevention could be achieved in ways short of the cumbersome and often clumsy invocation of the criminal law, I suspect that some productive consensus could be arrived at. The problem, however, is that it is very hard to design coercive measures to prevent a person's departure shy of using the criminal law while still remaining faithful to principles related to liberty and the rule of law that we cherish.

It might be thought that one way to use the criminal law in a way that falls short of full-scale criminalization would be for these new provisions to be used as the basis for detention by the Canada Border Services Agency and then arrest and charge by the RCMP, but then have the Crown decide not to prosecute. Keep in mind that when I say the Crown, I mean the Attorney General because these new provisions are among those in the Criminal Code that require the Attorney General's consent to prosecute.

When one reads the Senate committee records for Bill S-7, one gets the impression that there may be in part some who may mean, by the new provisions, this kind of idea in terms of the preventive purpose. If these new provisions allowed the state to prevent people, for example, youth, from joining terrorist enterprises while not resulting in criminal convictions and sentences, would this not be a defensible result? The answer seems clear. Criminal law will not be able to function within acceptable limits if it becomes a tool for disruption, whereby arrest is the end goal, but not prosecution. The more a system can be used with no real intention of prosecuting, the more it will over time be used in exactly that way.

For the Criminal Code to maintain its integrity, its implication must only ever be on the basis of good faith that each stage of decision-making is relevant, good faith that there is adequate evidence to sustain a prosecution. All this leads to the question of whether we actually do have a prosecution system in Canada that is willing and able to prosecute, considering that much of the evidence for the new offences will be produced from intelligence that CSIS and perhaps other agencies may well not be prepared to allow to go to court for fear of revealing sources and methods.

We know from the Air India inquiry how such considerations can inhibit effective prosecution. We have no reason to believe that the prosecution capacity has changed since the 2010 Air India report. Therefore, we may end up with a system that theoretically allows for proof of intention to leave the country for these purposes. We can all imagine the kinds of proof, ranging from emails, parents or community members, provision of information, information from foreign intelligence and so on. Therefore, a system that theoretically allows for proof of intention is possible but in practice may lead to charges being dropped because intelligence agencies will not want evidence made public. If so, we may inadvertently end up with the criminal law being used, in the way I talked about earlier, as a means to disrupt behaviour with limited prospect for use for its prescribed purpose of criminal prosecution. Therefore, in committee this may be an issue worth probing. Will the sort of evidence available actually usable before the courts?

Let us now look at another challenge, which is the interface of acquiring evidence of intent to leave the country for this purpose and logistics. This is the issue of how all of this will work at the point of exit from Canada.

At the moment, we all know there are no exit controls at all the borders, notably at airports, other than no-fly lists for those deemed to be a threat to aviation. Testimony before the Senate made it clear that co-operation protocols or memorandums of understanding would be needed among CSIS, the RCMP and the CBSA.

Mr. Fadden, the director of CSIS, went further and noted that would have to extend likely to CATSA, the agency of the Department of Transport that regulates security. How these protocols will be developed and what kind of accountability there will be for their operation remains a concern especially because the RCMP, a key link in the inter-agency collaboration that will be needed here, has been shown by both the Arar and the Air India inquiries to be an agency that suffers from lack of accountability and inappropriate oversight mechanisms. Yet, with the government's Bill C-42, we see that it has no intention of acting on the Arar commission's carefully thought through recommendations for RCMP accountability and oversight.

However, there are two comments by Director Fadden that most definitely will need to be followed up in the House of Commons committee after second reading.

I will turn to the first one. He said:

—I emphasize that we have not developed the protocols yet. What we will need to do is work closely with the Mounties and make sure [that] we are communicating at all times with border services.

The other complicating factor...is that Canada has no system for controlling exits. We do not even have a system to be aware when people are leaving. This will involve more than the CBSA; it may well involve CATSA, the agency of the Department of Transport that regulates security.

I should not say much more because I will get myself into a situation I will not be able to get myself out of.

We will need to better understand what is being considered, what is being referred to here by the director of CSIS. Is some form of cross the border surveillance system to clock everyone's exits being contemplated? That seems to be hinted at within the statement, especially the sentence, “We do not even have a system to be aware when people are leaving”. The suggestion is that such a system of awareness is some sort of requirement, a sine qua non for the protocols to be implemented to give effect to these new Criminal Code provisions.

One way to be aware of someone exiting the country is to already have identified them as having the intention that this criminal provision talks about and then to track them to the airport. However, that kind of specificity may not be what Mr. Fadden is actually alluding to.

To return to the question I have already asked once, are we looking at a more general surveillance system that CATSA, for example, would operate? We need clear answers on this in committee.

It might also be that a revision of the no-fly list is part of what is being contemplated as a general surveillance mechanism.

At another point in his testimony before the Senate, Mr. Fadden discussed why no-fly lists would not currently provide the mechanism: (a) for being aware of when someone is seeking to leave; and (b) for preventing that person from boarding the aircraft. Here is his observation:

The current structure of the no-fly list program is such that you have to be a threat to aviation....My understanding is that officials are preparing a series of proposals for ministers to try to make this list a little more subtle, but I do not know where they are on it.

Is it possible that the government is considering a mechanism to put people on a no-fly list based on evidence, at whatever standard of proof, that the person intends to leave Canada in a way that would violate one of these new leaving the country provisions? If so, we need to know much more about how this would work in relation to enforcement of these new provisions in the code, how people would be put on this list and how they could get off.

Would this be an alternative to arrest and possible prosecution under the criminal law provisions? If so, is this possibly preferable to direct intervention of the RCMP to arrest, followed by possible prosecution? I think in particular of how this would avoid criminalization of youth where the primary concern with respect to the kind of radicalization that leads them to want to leave Canada to get involved with terrorism.

At the same time, however, what we know about how no-fly lists currently operate in a zone of non-accountability leaves me deeply doubtful that this approach would provide a preferable preventive mechanism.

Just for example, the experience of Maher Arar and other Canadians like Mr. Almalki, Mr. Elmaati and Mr. Nureddin create real worries about what could happen to a Canadian who ends up on a no-fly list for reasons related to CSIS or RCMP speculation about intentions to engage in terrorism.

The Canadian government's purpose might be to stop the person from leaving Canada. Perhaps the purpose is to get youth to think twice before trying to leave Canada by another means. However, foreign intelligence agencies that might get access to our no-fly list might act very differently on that very same information if the person in question ever did leave Canada and then showed up on the radar screen of some country when seeking to use that country's airport.

The reason this is of such concern is that the connection between a person and terrorism within this new leaving the country criminal law provision can be very attenuated. Intentionally attempting to leave becomes itself a terrorism offence and the evidentiary basis for being put on a no-fly list as opposed to being brought forward for prosecution may be far below the standard of beyond a reasonable doubt within our criminal law system. Yet on such a possible thin basis, someone's name could enter into the interconnected global system of surveillance that could lead to preventive arrest or worse in other countries on that basis alone.

I emphasize that those are concerns prompted by an admittedly very brief reference from Mr. Fadden, but in the context it is potentially a very telling reference. We must be aware how collaboration and information-sharing works between intelligence agencies between countries. This is something I have had the chance to study in some depth several years ago when preparing a report for the settlement process in Mr. Arar's lawsuit against Canada.

Unless we have confidence in how people would get on this new, more subtle, to use Mr. Fadden's language, no-fly list and confidence in whether, how and with whom the names on that list and the reasons for being on that list are shared, there is much to be worried about with respect to Mr. Fadden's revelation about a more subtle no-fly list.

In any event, I think the point is clear that, based upon the testimony of the director of CSIS before the Senate, this needs to have detailed testimony and scrutiny in committee after second reading in this House.

I will now turn to a few comments, one, in particular, made by Minister of Justice when he was testifying before the Senate. He talked about how investigative hearings could produce the evidence to discern the intent of a person to leave the country for purposes of terrorism. However, we know that investigative hearing provisions, which are being proposed to be restored in the Criminal Code by this bill, state that testimony cannot be used as evidence in court against the person giving that testimony.

This leaves us with one of two possibilities with respect to what the minister was referring to.

The first is that he is actually thinking about using this mechanism as a mode of detention and arrest but not necessarily going to prosecution. We return, therefore, to the problem of use of the criminal law system to allow for disruption with no real prospect for prosecution.

More likely, however, the minister could not have meant that. He must have meant that investigative hearings will be used to question people about other people's intentions and, thereby, use that as evidence for the attempt to leave provisions of the Criminal Code. If so, this would have profound implications with respect to how often and to which people these investigative hearings would be used as evidence-gathering tools. We need to discuss this in committee.

The minister also suggests evidence of intention to leave the country could come out of the hearings that deal with preventive recognizance with conditions. Presumably, again he means someone else is brought to such a hearing about some impending terrorist act and information is then revealed about another person and that evidence is then used to prove that person intends to leave the country for purposes of terrorism.

We need to ask the minister and his officials what he meant by reference to those two sunsetted provisions, if they come back into law, as being mechanisms to gather evidence of intention to leave the country.

That raises another question. Would the proposed new clause 83.3, resurrected from the 2001 Anti-terrorism Act, allow for recognizance with conditions if someone can be shown to be on the point of leaving? Because this would be a terrorist act, when people attempt to leave, they are now engaging in a terrorist act according to the new provisions. They can then be required to stay and their passport taken away for up to 12 months. Is this scenario possible? Is this in fact a planned sequence? Does the government have this in mind?

Keeping in mind how the United Kingdom actually uses control orders to prevent departures from the country, the question has to be asked whether or not this is something the government contemplates. This is a question to pursue, again in committee.

I will conclude with the overall comment that there is much to look at in committee if we are to fully appreciate and make judgments about the utility of these new attempting to leave or leaving the country Criminal Code provisions.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, although my colleague from Toronto—Danforth claims to be a rookie, he gave an excellent speech. Judging from the content of his speech, he is far from being a rookie.

A number of witnesses appeared before the Senate committee, including Kathy Vandergrift, chairperson of the board of directors for the Canadian Coalition for the Rights of Children. She indicated the need to amend the bill to include mechanisms for people under the age of 18, given the Convention on the Rights of the Child and other international agreements signed by Canada.

She said that she was concerned about the impact of detaining young people accused of going abroad to participate in terrorist activities. She said:

The Paris Principles emphasize using detention only as a last resort, not as the primary response to evidence of unlawful recruitment activities. Recent research in Australia documents the negative impacts of even short times in detention for the healthy development of young people.

I would like the hon. member to expand on this and to tell us whether or not he agrees with this point of view.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, that is an excellent question and it includes a number of premises that I would endorse about the problem that appears to be part of the new bill.

The whole question of using detention as the absolute last resort with respect to youth is a principle certainly within the Convention of the Rights of the Child and within other principles of international law that have been developed to give a bit more content to children's rights. Last resort detention is a bottom line requirement.

To give the government its due, there is some reference in the bill to preventive detention, itself being a last recourse.

We need to ensure that these two things line up and the easiest way to do that would be to have specific and clear amendments that address the concern that my hon. colleague has just raised.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I thank my hon. friend from Toronto—Danforth for raising some very specific and ongoing implications of the legislation.

It also occurred to me that the process of intending to leave the country could become a terrorist act. In conjunction with that, if we look at clause 83.23, we then have by association others drawn in, “A person who knowingly harbours or conceals any person who they know to be a person who has carried out a terrorist act or facilitates it”.

By extension, if planning to leave the country to go overseas for what is alleged to be a terrorist activity, such as camp training, would this sweep bring in others who, in normal context, would be seen to be doing an innocent activity?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, that, in fact, was discussed a little in the Senate hearings.

The general principles of the Criminal Code that connect one offence to other acts, such as complicity, various forms of aiding and abetting, they all apply. The question of a broader circle of people being drawn into the criminality that these new provisions would enact is very real.

The official government witnesses before the Senate committee tiptoed around this. They acknowledged that it was a real issue but there was a sense that we did not really want to criminalize other's assistance.

Now, of course, all the intention standards would have to be there. If one innocently helps a person leave the country by helping out with the person's passport but does not know why the person is leaving, then there is no connection. However, the moment one knows why, one would absolutely be drawn into the orbit.

One of the witnesses, I believe it was Mr. Fadden but it might have been another witness, commented along the lines that we should not be naive about how many people actually do assist others to leave for this purpose.

The idea of a wider circle beyond the person leaving does appear to be in contemplation.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I thank my hon. colleague for his great contribution to this debate.

I would like to focus on the principle of the presumption of innocence, which is a foundational principle of our legal system. Does the member share some of my concerns about how this may question this fundamental principle?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, confining myself to the leaving or attempting to leave the country provisions is not so much a question of presumption of innocence but the problem of proving intention in these circumstances to something that will be quite far removed in time. The underlying concerns for the principle of the presumption of innocence within our procedural criminal law system do circle back on concerns about what kind of evidence would be adequate to actually effect the detention at the border, then an arrest and then a prosecution. Would there be some kind of slippage toward less and less onerous standards of proof that might in the end not lead to prosecution but would certainly lead to detention and arrest? That would be my concern.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I would like to thank my colleague for his speech. In his view, does the Criminal Code currently contain the necessary provisions to investigate individuals who engage in criminal activities and to detain anyone who might pose an immediate threat to Canadians?