Mr. Speaker, I am pleased to contribute to the debate on Bill C-17. This key piece of anti-terrorism legislation seeks to re-enact, but with more safeguards, the provisions having to do with investigative hearing and recognizance with conditions, which we lost because of a sunset clause in March 2007.
The powers set out in the bill attempt to fill a gap in our national security law. Effectively they focus much of their attention on the prevention of a terrorist offence.
I think all members of the House can agree that unlike some other forms of criminality a terrorist who is able to carry out an offence is attempting to injure and kill large numbers of people, making prevention an even more crucial policy goal.
This point, that there is a qualitative difference between terrorism offences and other regular forms of criminal activity, has been made by a number of terrorism experts. In this regard the members of the House may wish to recall the testimony of Lord Carlile of Berriew, the United Kingdom's independent reviewer of its anti-terrorism legislation, before the House of Commons subcommittee that reviewed the anti-terrorism act in November 2005. Lord Carlile was asked whether there was really any difference between investigating terrorism and investigating organized crime. She replied:
If I can I'll just characterize one important difference between terrorist crime and normal organized crime, or what police in Northern Ireland call ODCs, or ordinary decent criminals, in a distinction that they make. With organized crime, it is often possible for the police investigating that crime to leave arrest until very late. Indeed, for example, there was a huge robbery at London Heathrow Airport a couple of years ago—I was involved in the case for a time professionally—in which they allowed the robbery to take place, and they arrested the robbers whilst they were committing the robbery, with the result that in the end most of them pleaded guilty. You can't run that risk with terrorism.
To summarize this relatively short bill, the proposed investigative hearing provisions would create a mechanism for questioning persons before a judge about a past or future terrorist offence. The proposed provision for recognizance with conditions would allow a judge to impose reasonable conditions on a person in order to prevent the commission of a terrorist activity.
Surprisingly, some have maintained that the provisions are not necessary. Various reasons have been advanced in this regard. I would like to use my time to address some of these arguments, as I think it is important to have an informed debate on these matters.
Some say that since the provisions have never been used they must not be a truly necessary law enforcement tool. I cannot disagree more.
This view is based exclusively on hindsight and not on foresight. In the policing world, which I know very well as a member of the Winnipeg Police Service on a leave of absence, foresight is crucial, as is pro-activity. One could just as logically claim that because to date one's house has not burned down or one has never before become seriously ill that there is no need ever to buy fire or life insurance. Given the existence of an ongoing terrorist threat, reliance on past experience alone is an insufficient guarantor of the future security of Canadians.
Another view advanced has been that the recognizance-with-conditions provision is unnecessary because other Criminal Code provisions could be used instead. This view fails to appreciate the purpose of the recognizance-with-conditions provision. This tool is designed to disrupt the planning of terrorist activity at a very early stage. I will give an example. Suppose the police receive intelligence that a foreign head of state visiting Canada will be the target of a terrorist attack. They may therefore have reasonable grounds to believe that a terrorist act will be committed, but they may not have reasonable grounds to believe that a particular person will be the one to carry out the attack, which is the standard required under our existing arrest laws.
As a result, the person could not be arrested for conspiracy or under subsection 495.(1) of the Criminal Code. Similarly paragraph 810.01(1) would not apply, because it is targeted, in part, at those who it is reasonably feared will engage in a terrorist activity.
Bill C-17 seeks to fill this gap by authorizing a peace officer to lay an information before a judge if he or she believes on reasonable grounds that a terrorist activity will be carried out and suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, with the arrest of the person, is necessary to prevent the carrying out of a terrorist act.
Some have also put forward the position that Bill C-17 infringes upon human rights. In rebutting this view, let me begin with the investigative hearing provisions.
In the debates on this bill's predecessor, former Bill C-19, the argument was made that this hearing was an infringement on the right to silence. The answer to this argument was authoritatively given by the Supreme Court of Canada in 2004 in a case called “Application under s. 83.28 of the Criminal Code”, which arose in the context of the Air India prosecution.
The majority of the court rejected the appellant's argument that the investigative hearing violated an individual's absolute right to silence and the right against self-incrimination, noting in part the specific and robust protections governing use and derivative use immunity found in the original legislation. Indeed, the court noted:
Derivative use immunity is provided for in s. 83.28(10)(b). Indeed, the protection in para. (b) goes beyond the requirements in the jurisprudence, and provides absolute derivative use immunity, such that evidence derived from the evidence provided at the judicial investigative hearing may not be presented in evidence against the witness in another prosecution even if the Crown is able to establish, on a balance of probabilities, that it would have inevitably discovered the same evidence through alternative means.
We all need to keep in mind when thinking about possible adverse ramifications of the recognizance with conditions that they have a built-in legal filter. They can only be imposed when two criteria are met: A peace officer must believe on reasonable grounds that a terrorist activity will be committed, and must suspect on reasonable grounds that the imposition of the recognizance is necessary to prevent the carrying out of the terrorist activity.
Moreover, the second criterion is not one of mere suspicion, it is one of reasonable grounds to suspect. In other words, this is a higher bar. This means more than a mere hunch. In this regard, I would note that the concept of reasonable suspicion is not unknown in Canadian criminal law.
By analogy, I note that the Supreme Court approved the standard of reasonable suspicion in the context of the common law police power of investigative detention, the police power to briefly detain a person where the officer has reasonable grounds to suspect the person has committed a crime. In this regard, I refer hon. members who are interested to the case of Regina v. Mann.
Therefore, I think it is fair to say that this will not be applied to a broad range of people in this country. With regard to the view that these powers can unfairly label a person a terrorist without the opportunity to clear oneself, I would call attention to the well-established and often-used peace bonds or recognizance powers in the Criminal Code. In particular, a peace bond could be imposed to prevent a person from inflicting injury on or committing a sexual offence against a young person. These, too, have implications for the defendants who are subject to them, but no one would argue that because of this these provisions should not exist.
Like these existing provisions, the proposed recognizance with conditions is carefully tailored to achieve an overarching critical objective, namely the prevention of a terrorist activity, an objective that I know all members support.
Another criticism of this bill, in its previous incarnation as Bill C-19, was made by the hon. NDP member for St. John's East. It went as far as, in effect, something like this:
When a bill allows for imprisonment for up to 12 months or strict recognizance conditions on individuals who have not been charged with any crime, it is contrary to the core values of our justice system.
I disagree, and I am going to prove that point immediately. I would point out that this accusation of fundamental unfairness cannot only be made of the recognizance with conditions provision found in this bill, it can also be equally made of all the peace bond provisions of the Criminal Code.
Please allow me to set out for consideration and reflection by the hon. members the following peace bond provisions that contain this very same power to order up to 12 months' imprisonment where a person refuses to enter into recognizance.
The first is a recognizance where a person fears on reasonable grounds that another person will cause serious injury to him or her or to his or her spouse or common-law partner or child, or will damage his or her property, under paragraph 810(3)(b) of the Code. Other examples are a recognizance where a person feels on reasonable grounds that another person will commit a terrorism offence or a criminal organization offence, under subsection 810.01(4); a recognizance where a person feels on reasonable grounds that another person will commit one of various sexual offences in respect of a person under 16 years of age, found under subsection 810.1(3.1); or a recognizance where a person feels on reasonable grounds that another person will commit a serious personal injury offence, which is found under subsection 810.2(4).
In all these instances, if a person refuses to enter into a recognizance, the power to order up to 12 months imprisonment exists. My point is that the punishment provision for refusing to enter into a recognizance is not unique to the recognizance with conditions provision found in Bill C-17. It is standard for all peace bond provisions in the Code. It is therefore a good reason to ensure that there is a means whereby a person's refusal to enter into a peace bond has consequences.
Indeed, I would point out that the recognizance with conditions provision found in Bill C-17 is, in one important respect, more limited in scope than some other peace bond provision found in the Code.
Hon. members may recall that where there is a reasonable fear that another person may commit a sexual offence against a person under 16 years of age or that another person may commit a serious personal injury offence, the recognizance can actually be extended from 12 months to two years if the person has been previously convicted of a similar offence. In contrast, in Bill C-17 the maximum period of time that a recognizance can be enforced is in fact 12 months.
Changing gears a little bit, I want to discuss briefly some of the policy decisions that went into the development of the bill. Members may recall that the House of Commons subcommittee interim report on the Anti-terrorism Act, the legislation that originally contained both of these schemes, recommended limiting the investigative hearing power to the investigation of imminent terrorism offences.
The government has, for good reason, decided not to go this route. If this limit were imposed, it would exclude the possibility of holding an investigative hearing in respect of past terrorism offences. For example, if this recommendation were to be accepted and if a terrorist group committed an offence and planned a subsequent offence, or offences, in the investigative hearing no questions could be asked about the offence already committed, even though such questioning could yield information that would be essential to the prevention of the planned subsequent offences. It is clear that this decision makes good policy sense and serves to better protect Canadians.
Another criticism that may be raised is that the bill does not totally reflect the judgments of the Supreme Court of Canada with regard to the investigative hearing provisions. As hon. members may recall, the Supreme Court of Canada in 2004 rendered two decisions with regard to the investigative hearing. In one case, the Supreme Court held that the investigative hearing should presumptively be an open hearing, albeit this is a presumption that could be rebutted, depending on the facts of the case; and in the other, which I have already referred to, the Supreme Court upheld the constitutionality of the investigative hearing.
However, as part of its latter judgment, the Supreme Court extended the protection of use and derivative use immunity beyond the criminal proceeding context to cover extradition and deportation hearings.
In my view, it is unnecessary for Bill C-17 to explicitly propose an amendment to extend the use of derivative use provision to extradition and deportation hearings or to include a provision about the presumption of openness in such cases. It is obvious to me that, if enacted, Bill C-17 will be interpreted in light of the Supreme Court's conclusion on these issues.
I have attempted to address some of the objections to the bill that have been raised in previous discussions. I hope that some of the reasons I have articulated will have resonated with my colleagues in this place and that they begin to view these provisions as minimally intrusive and ones that do not present a threat to the Canadian values but actually protect them.
I want to reiterate that we have heard from police officers as well on this issue. I myself was a police officer when the sunset clause took away these powers, and I am here to say that I represent many police officers across this country who believe this is essential to prevent any kind of terrorism attacks in the future.
I would urge all hon. members in the House to please support Bill C-17 and in doing so contribute once again to the safety and security of all Canadians.
