Mr. Speaker, I rise today to contribute to the debate on the government's motion to extend for a further three years sections 83.28 to 83.3 of the Criminal Code, which is now part of the Anti-terrorism Act passed by Parliament following the terrible events of September 11, 2001. The events of that day will be forever indelibly stamped into the memories of many Canadians because they watched helplessly as terrorists, using commercial aircraft, deliberately ploughed into the World Trade Center killing hundreds of unsuspecting innocent people.
The Anti-terrorism Act was created after the September 11, 2001 tragedy to meet the United Nations requirements pursuant to the international convention of the suppression of terrorism bombings and the international convention of the financing of terrorism.
In the aftermath of such a tragedy, fear gripped the world. Fear gripped Canada as a nation, the public and its leaders, including the United Nations. As members who have spoken before me have said, Canada, along with other member states around the world, abided by the time limitations imposed by the United Nations in resolution 1373 dated September 28, 2001 requiring member states to adopt anti-terrorism legislation and policies within 90 days.
The obvious end result was to protect our countries and citizens against further acts of terrorism. If that protection meant that citizens might lose some of their rights, it was at that time a small price to pay for that type of security governments began to implement. Polls conducted during that period showed that Canadians were quite happy to sacrifice some of those rights for safety and security.
The Liberal government at that time followed constraints imposed by the UN under the prevailing circumstances and the air of deterrence that existed during that period. Do not misunderstand me. It is not my intent to say that those acts of deterrence may not exist today and that the climate is any different now than it was in 2001. We now live in a world of hyper-surveillance and constant threats to the individual safety and security of our citizens and even leaders. This does not mean that the human rights of our citizens must be taken away with impunity. It is important for us to shift our focus to more preventative intelligence and action.
Our country's law enforcement personnel have been doing an admirable job and they have not had to resort to the heavy-handed use of sections 83.28 to 83.3 of the Criminal Code in the last five years.
Mr. Speaker, in solidarity with my Liberal Party colleagues, I will vote against the government motion to maintain sections 83.28 and 83.3 of the Criminal Code, because not only were these sections not used in the five years they were in force, but our Criminal Code gives our legislation more than enough power to protect the people of Canada against real or imagined acts of terrorism. I am referring here to section 494. Consequently, these sections should cease to exist within the Anti-terrorism Act.
In the meantime, like my colleagues, I await the final report of the Subcommittee on the Review of the Anti-terrorism Act, once it has finished reviewing this extremely complex legislation.
This important legislation was so hastily drafted that it was impossible to conduct the exhaustive review warranted by the complexity of the subject matter. I believe that in 2002, my colleague from Vancouver Quadra called it “a rational, proportional response to the transnational threat of terrorism by suicide bombers”.
Since this legislation received royal assent in 2001, there have been heated, contentious debates not only in the House of Commons, but across the country, involving human rights activists, community representatives and many other organizations.
The Anti-terrorism Act was created to respond to a substantial and emergency need. Although the legislation was necessary and reasonable to protect Canadians against terrorism, concerns have been raised that it violated constitutional rights such as the principle of the presumption of innocence, the principle of freedom of expression, freedom of association, protection against arbitrary detention, and protection against self-incrimination.
These are fundamental provisions enshrined in the Canadian Charter of Rights and Freedoms and in other international instruments signed by Canada.
Fully aware of these inherent problems, Parliament included in the Anti-terrorism Act section 145, the requirement for a comprehensive review of its provisions and operations three years after it received royal assent. Also section 145, paragraph 2, requires a report containing any statement of changes.
Moreover, sunset clauses already found in the Criminal Code, section 83.32, were added again because of concerns stressed by many human rights activists that the provisions of the Anti-terrorism Act could be used in an inappropriate manner.
Pursuant to the Criminal Code subsection 83.32(1), sections 83.27, dealing with investigating hearings, and 83.3 dealing with preventative arrests, which we are dealing with today:
--cease to apply at the end of the fifteenth sitting day of Parliament after December 31, 2006 unless, before the end of that day, the application of those sections is extended by a resolution--
Subsection 83.32(1) of the Criminal Code says that a motion for the adoption of the resolution cannot be amended.
We in the Liberal caucus at that time, of which I was a part, insisted on these safeguards, so members of Parliament could reflect on their decision at that time of crisis, and at a later time ask the question which I now pose to this House today. Can those contested provisions continue to be used in a free and democratic society? The answer is no.
If I may again borrow the words of my hon. colleague from Vancouver Quadra, with which I fully agree, and with which I am sure my colleagues on both sides of the House will also agree:
All provisions should comply with the Charter of Rights and Freedoms without override by the “notwithstanding” clause 33.
This was stated on January 3, 2002.
I want to remind my colleagues that the pillar on which the charter stands is based on sections 1 and 33. In other words, there should be no limitation to the constitutional right of individuals unless this limitation is justified in a free and democratic society, and the test has been set in the leading case of R. v. Oakes - [1986] 1 S.C.R. 103.
The case goes back some 20 years, but it is still relevant today. According to the decision by the Supreme Court of Canada, and its explanation of a limitation to constitutional rights under the charter, section 1, these may be sustained after two conditions have been met, and I read here from paragraph 70 of R. v. Oakes.
First, the objective of the measure—in this case the legislation—must be pressing and substantial.
Second, the means chosen to implement this measure—the legislative purpose—must be reasonable in a free and democratic society.
In order to fulfill the second requirement, three criteria must be met:
First, the impairment of rights must be rationally connected to the objective of the legislation.
Second, the contested provision should impair as little as possible the guarantees of the Charter.
Third, there must be a proportionality between the effects of the measures and its objectives so that achieving the legislative objective does not supersede impairment of the right.
Although the provisions in question fulfill the first condition, I do not believe they fulfill the second, given that they do not meet any of its criteria.
In the wake of 9/11, events were sufficiently pressing and substantial to limit certain provisions of the Charter of Rights at the time and to affirm Canada's commitment to the safety and security of its citizens.
The Liberal government of the time firmly believed that security measures had to be taken, despite the concerns of individual members of the party, including myself, to the effect that citizens' rights could be infringed. It was exactly for this reason that the sunset clause was instituted enabling us to revisit the provisions of the Act and consequently review the anti-terrorist legislation as a whole.
I continue to believe that the provisions are neither necessary nor reasonable in a free and democratic society.
Very recently, in fact, in its October 2006 interim report, the Standing Committee on Public Safety and National Security revealed that there has been no recourse to these provisions. Since Criminal Code subsection 83.31(1) obliges the Attorney General of Canada to publish the usage of subsection 83.28(1), investigating hearings, and section 83.3, preventative arrests, not once in the past five years has there been a need to use these sections.
Why, then, does the government feel the need to extend the sunset clause for another three years? What evidence does the government have that the opposition and other members of the House are not privy to that justifies this law being kept on our books?
It is important that the government come clean and inform the House of why it needs to be overzealous in its approach to law and order. We saw recently the efficiency of our law enforcement agencies in the arrest of 17 young men living in and around Toronto who were suspected of possible acts against the state. Maybe my colleagues on that side of the House can tell me if, in the process of carrying out their duties, the police agencies involved felt it was necessary to invoke these sections of the Criminal Code as it applies to terrorism.
Is there something that members on this side of the House should know? If so, I would impress upon the minister responsible for safety and security the need to inform us. If it must be done behind closed doors for security reasons, I am sure we would all understand. In the meantime, I intend to vote against the government's motion to extend the sunset clause, and I call on all members to repeal these sections of the act completely.
At this point in Canada's development as a nation, measures that are perceived, for all intents and purposes, as violations of human rights cannot and must not survive in our society, unless they satisfy the review of which I spoke earlier. In the opinion of the Supreme Court, reviews are reasonable in a free and democratic society.
I cannot think of any measure that is so pressing as to lead this government to extend the life of these instruments.
Canada has met its international obligations in a time of crisis, as outlined by UN resolution 1373 requiring member states to take pre-emptive action, over and beyond what presently exists in our Criminal Code dealing with indictable offences. Our law enforcement personnel have not been constrained, nor have they had reason to resort to using these sections that govern the Anti-terrorism Act in carrying out their investigative work, which has led to arrests of possible terrorists.
Once again, I will be voting against the government motion to extend the application of sections 83.28, 83.29 and 83.3 of the Criminal Code, as they pertain to the Anti-terrorism Act.
