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.
