Mr. Speaker, with respect to the motion to renew two provisions of the Anti-terrorism Act that are subject to a sunset clause, I suggest we are not faced with a difficult choice today.
As the House knows, the investigative hearing and recognizance with conditions provisions introduced by the act are due to expire very soon. I respectfully submit to the House that the way forward is clear. These provisions should be extended.
Some may remember last May when the Hon. John Howard addressed a joint session of Parliament. The Prime Minister of Australia reminded us that:
Terrorism will not be defeated by rolling ourselves into a small ball, going into a corner and imagining that somehow or other we will escape notice.
He went on to say that wishful thinking was not a policy and failure to act was not an option. He said that combating terrorism requires that we have tools that are appropriate to defend ourselves.
The investigative hearing and recognizance with conditions provisions provide police and prosecutors with those essential and appropriate tools.
At the same time, we should also remember our own history and experience with terrorism. Twenty-five years ago, the McDonald Commission said something that was reiterated by Justice O'Connor in his recent report:
Canada must meet both the requirements of security and the requirements of democracy; we must never forget that the fundamental purpose of the former is to secure the latter.
As parliamentarians, we are responsible for ensuring the safety and security of Canadians in the face of known threats. Canadians look to the federal government to protect them from terrorist violence.
When it comes to the terrorist threat, one thing is crystal clear: prosecution after the fact is simply not an adequate response. We need strategies that differ from the traditional reactive approach of ordinary criminal law investigation and enforcement.
The underlying principle of the Anti-terrorism Act is the prevention of terrorist activity.
It is worth noting that preventive legal mechanisms are used regularly in this country to protect our citizens and those mechanisms are absolutely essential in order to preserve our right in a free and democratic society.
For example, the Minister of Justicedescribed section 810 of the Criminal Code, which authorizes the use of a mechanism known as a peace bond. These are used in dealing with domestic violence, organized crime and serious sexual offences where the risk of particularly abhorrent forms of violence is such that we as a society have decided that it is preferable to take preventive measures rather than wait to prosecute after extreme violence has occurred.
Every free and democratic society must retain an appropriate legal power properly supervised by the judiciary to investigate and to take preventive steps before criminal violence occurs. These provisions have consistently been found to comply with the Canadian Charter of Rights and Freedoms.
I will briefly outline the provisions of the Anti-terrorism Act at issue today if only to demonstrate why they are appropriate and necessary.
The investigative hearing is available when necessary to assist in the investigation of terrorism offences that have been or will be committed. Where there are reasonable grounds to believe that a terrorism offence has been or will be committed, a court may issue an order for the gathering of information. A peace officer may only apply for this order after obtaining the consent of the attorney general at the federal or provincial level, as the case may be.
Then the judge hearing the application must be satisfied that there are reasonable grounds to believe that a terrorism offence has been or will be committed and that information about the offence is likely to be obtained as a result of the order.
The investigative hearing power is unusual in some respects but it is not unique in Canadian law. There are investigations by coroners in Canada where this type of thing happens quite regularly. Someone who has been or may be accused takes the stand and gives evidence in open court.
There is another procedure under the Mutual Legal Assistance in Criminal Matters Act that allows for an order for the gathering of evidence.
At an investigative hearing, the charter right against self-incrimination is fully enforced. The subject may be compelled to answer questions but anything entered into evidence or evidence derived from testimony given by the person cannot be used to prosecute the person for any offence except perjury or the giving of contradictory evidence.
The investigative hearing of the Anti-terrorism Act is a well-balanced measure that does not in any way diminish the liberties of witnesses. Compelled witness testimony at the investigative stage is new to Canadian criminal law but witnesses have always been compellable at trial.
Let me stress that investigative hearings are not criminal prosecutions. The person compelled to appear is not an accused but a witness. In that sense, it is very similar to the American grand jury system, which has been found to be constitutional over and over again.
In fact, if we were to put our own legislation alongside the anti-terrorism laws made in other free and democratic societies, such as the U.K., Australia or the United States, I think we would find that Canadian legislation is probably the least stringent. The measures we have taken are well within any constitutionally appropriate response.
Our legislation is replete with various safeguards to ensure an open and transparent process. I believe these safeguards demonstrate that Parliament has given due and proportionate recognition to the unique setting in which investigative hearings would take place.
For example, the provision explicitly states that the person appearing has the right to retain and instruct counsel at any stage of the proceeding. The judge can impose any conditions on the hearing to protect the witness, third parties and the integrity of the investigation.
The Supreme Court of Canada in June 2004 upheld the constitutional validity of the investigative hearing provision. The court noted the important role played by the judge and counsel in the hearing procedure, to ensure appropriate regard for due process and to uphold constitutional rights.
In a companion case, the Supreme Court held that there was a presumption that investigative hearings should be held in open court. The burden of demonstrating a need for secrecy in such proceedings rests with the government. The court also noted that the protection against self-incrimination afforded to witnesses at their hearings actually went beyond charter requirements.
The final safeguard that Parliament put in place with respect to this provision was to make it subject to a five year sunset clause. The five years are almost up and I respectfully submit that we are not able to take the position that it would be prudent to dispense with this provision.
this is well-designed legislation. It is uniquely Canadian. Canadians should take comfort that restraint and careful judgment have characterized the approach taken to these measures.
The other provision subject to the sunset clause of the Anti-terrorism Act is the recognizance with conditions. This has sometimes been called preventative arrest but in fact a more accurate term might be preventive release.
The purpose of this provision is not to arrest a person but to put that person under judicial supervision in order to prevent the carrying out of a terrorist activity. It is designed to assist law enforcement officers in disrupting terrorist attacks and the onus is always on the state to justify keeping a person in custody or imposing conditions. If a judge determines that there is no need for the person to enter into recognizance, the person will be released.
This provision is only available under strictly defined conditions and is also subject to numerous safeguards to ensure that individual rights are protected to the greatest extent possible.
Generally, the prior consent of the relevant attorney general is required before the person can become compelled to appear before a judge and a provincial court judge must be satisfied by the evidence presented that the police officer has reasonable grounds to believe that a terrorist activity will be carried out and suspects, on reasonable grounds, that the imposition of a recognizance with conditions is necessary to prevent the carrying out of a terrorist activity.
Once the hearing is complete, the judge may order that the person should enter into a recognizance, in which case the person will be bound to keep the peace and be of good behaviour and respect any other reasonable conditions for up to 12 months. Only if the person refuses or fails to enter into the recognizance can he or she be detained for up to 12 months.
Parliament has also provided for the possibility of arrest without warrant in certain circumstances. There has been a great deal of comment about this provision. I will only remind the House that it was designed to prevent a terrorist attack and save innocent lives.
If arrested without warrant, a person detained must be brought before a provincial court judge within 24 hours or as soon as possible if a judge is not available within that period. The consent of the relevant attorney general must be obtained by then. The presumption is always that the person will be released as soon as possible.
Upon being brought before a judge, there are four possible outcomes for the person for whom a recognizance is sought: First, the hearing takes place and the person is released without signing a recognizance; second, the hearing takes place and the person is released under a recognizance with various conditions as determined by the judge; third, the hearing is remanded to a later date and, under no circumstances can that be more than 48 hours later, however, the person can be detained in the interim; and fourth, the hearing takes place and the person can be detained for up to 12 months because of his or her refusal to sign the recognizance.
Finally, the sunset clause referred to earlier, providing for the expiry after five years, also applies to the recognizance with conditions. It can only be extended by parallel resolution of the two Houses of Parliament.
These are not radically new powers. A similar capability is afforded by section 495 of the Criminal Code which permits a peace officer to arrest without warrant anyone he or she believes on reasonable grounds is about to commit an indictable offence. Some have asked how useful this power is. Can a peace bond for terrorists really prevent terrorist activity? Of course, it is unlikely to stop suicide bombers but that misses the point. The recognizance with conditions is designed to disrupt preparations for terrorist activity and prevent attacks from being carried out.
As chair of the subcommittee reviewing the Anti-terrorism Act, I have had the opportunity to review the complex public policy issues involved in formulating an appropriate response to a terrorist threat. I believe I speak for the majority of my colleagues on the subcommittee when I say that these provisions are important tools in support of the prevention and prosecution of terrorism.
Others have argued that they should not be renewed because they have hardly been used at all. While neither provision has been used to date, this should not suggest that they are not important or may not be needed in the future. We should not gauge the importance of these tools by how often we use them. Certain offences in our criminal law are rarely prosecuted, such as treason. Should we jettison those as well? I should think not.
I will now turn to the question of the sunset clause which applies only to the provisions of the Anti-terrorism Act at issue today.
We now face the very real prospect that these essential devices will be taken out of our hands. We have only a few days left to ensure that we are not left with a hole in our safety net or, as Prime Minister Howard put it, to ensure that we have the appropriate tools to defend ourselves.
To deprive the government and the people of Canada of these tools would not be prudent. I could compare it with an insurance policy. We would not cancel our insurance policy because we have not had any problems in our neighbourhood. Some day someone might break into our house and we would like to have an insurance policy in place at the time.
I share the Minister of Justice's desire to ensure that we as a country have the necessary legislative tools to protect the safety and security of all Canadians and to prevent, disrupt and deter terrorist activity in Canada. In fact, I believe Canada can do more and that we can play a stronger role in the global effort to defeat terrorism. By strengthening our own national security, we can contribute to the international fight against terrorism.
The House of Commons subcommittee on the review of the Anti-terrorism Act, of which I am the chair, released an interim report on these two provisions on October 23 last year. The recommendations in the majority report called for a five year extension as well as amendments to the investigate hearing power so that it could only be used to investigate imminent attacks and not past terrorist activity.
The Bloc Québécois and NDP members of the subcommittee issued a dissenting opinion in which they called for the abolition of the recognizance with conditions, but otherwise supported the recommendations of the majority. No government decision has yet been made with respect to the subcommittee's suggestions.
A three year extension, two years shorter than recommended, would provide the necessary time to consider the subcommittee's proposed changes and to introduce legislative amendments, if the government decides to do so.
In addition, the government has not yet received the recommendations of the subcommittee with regard to the other provisions of the Anti-terrorism Act. We expect a report to be adopted in the very near future. A three year extension would provide the necessary window of opportunity for adequate study and to table and pass legislation, if necessary.
As I mentioned a moment ago, the appropriate response to terrorism involves complex public policy issues. I believe the government would also benefit from a three year renewal of these provisions in the sense that it would provide adequate time to consider the outcome of other related reviews, such as the recommendations of Justice O'Connor in the Arar inquiry, the ongoing Air-India inquiry, and the Supreme Court's decision on the process used for security certificates. All of these other processes are related to and will, in some way, bear on the government's course of action on counter-terrorism.
It is no secret that Canada, like other democratic societies around the world, introduced these kinds of preventive measures in response to the 9/11 terror attacks. Five years later we unfortunately see that the threat of terrorism is more complex, extreme, sophisticated and more global than ever before.
Canada and Canadians are not immune from terrorist activity. We cannot roll ourselves up into a ball and hope it will all go away. Twenty-four Canadians died in the September 11 attacks. Two Canadians were victims in the bombings in 2002 and most of the 329 victims of the Air-India bombing were Canadians. Let us not forget that Ahmed Ressam, the so-called millennium bomber, was arrested as he left Canada on his way to bomb the Los Angeles airport.
Our intelligence services tell us that there are active terrorist cells in Canada and they provide information about their contacts around the world. Recent arrests in Canada and elsewhere suggest that there is an ongoing willingness on the part of groups and individuals to use violence in support of political, ideological and religious agendas. The pervasive nature of terrorist activities in the world today means we will continue to need the provisions of the act for some time to come.
I respectfully submit that the recognizance with conditions and the investigative hearing provisions enable Canada to continue to respond to the threat posed by terrorism. These two provisions should, at a minimum, be extended by resolution for another three years. I urge all hon. members to support these extension of these provisions.
