Mr. Robert Goguen (Parliamentary Secretary to the Minister of Justice, CPC):
Mr. Speaker, I am pleased to take part in this debate and to speak in favour of Bill S-7, the combatting terrorism act.
The Standing Committee on Public Safety and National Security considered the bill and heard a variety of witnesses. It was a wide-ranging and rich debate with important considerations and contributions from the witnesses who appeared before the committee. Several themes have emerged in the course of the consideration of Bill S-7 that I would like to address in my remarks today. I will first speak to the nature of the Bill S-7 initiative.
First and foremost, Bill S-7 is targeted criminal law reform. A variety of issues outside the scope of the bill have been raised in connection with it. Bill S-7 cannot address all concerns that arise in the context of national security, nor is it designed to do so. The government is working on many fronts to address other national security issues, utilizing the best means suited to the goal, whether it is through programs, training or other legislative initiatives. Rather, Bill S-7 is designed to re-enact the investigative hearings and recognizance with conditions in the Criminal Code that expired in March 2007, with additional safeguards over those that existed in the original legislation.
The bill would also create new offences of leaving or attempting to leave Canada for the purpose of committing certain terrorist offences, would respond to recommendations made during the parliamentary review of the Anti-terrorism Act and includes further improvements to the Criminal Code, the Canada Evidence Act and the Security of Information Act.
The investigative hearing is designed to facilitate the gathering of information by a judge, which may be relevant to the investigation of past or future terrorist offences following an application made by a peace officer.
The recognizance with conditions would allow a peace officer to apply to a judge to have a person appear before the court for the judge to consider whether it is necessary to impose reasonable conditions on a person to prevent a terrorist activity. The burden would be on the state to meet the grounds to make an application and to satisfy the judge that conditions ought to be imposed on the person.
There has been a debate about whether these tools are indeed needed and there has been compelling testimony from various witnesses supporting their reinstatement. For example, Assistant Commissioner James Malizia of the RCMP national security criminal investigations program's protective policing branch spoke of the need for these measures to assist law enforcement, while noting that they would be approached with cautious restraint.
The committee had the benefit of hearing from Maureen Basnicki, a co-founder of the Canadian Coalition Against Terror. She disagreed with those who characterized the original introduction of the investigative hearing and recognizance provisions of 2001 as an example of legislators having hit the panic button after 9/11. Instead, she stated, “Far from being an overreaction to 9/11, these provisions were, in fact, a sober and responsible recognition of the danger posed by terrorism to the future of the international community”. As a result, she urged all members to have in mind the security of Canadians when considering and voting on Bill S-7.
As Ms. Basnicki put it:
|| Canada should not be removing reasonable tools for fighting terrorism while terrorists are busy sharpening their tools for use against Canadians and other innocent victims. While the provisions of Bill S-7 can always be revisited at a later date, the lives shattered by a future terrorist attack that may have been prevented cannot be reconstituted by any act of Parliament.
The bill also proposes the creation of new offences for leaving or attempting to leave Canada for the purpose of committing certain terrorist offences. These offences are specifically designed to prevent persons from leaving Canada in order to participate abroad in the activity of a terrorist group, for example, receiving training, or to commit certain other terrorist acts abroad.
These offences have received the support of certain witnesses. For example, Mr. Rob Alexander, a member of and spokesman for the Air India 182 Victims Families Association, asserted during the hearing that the proposed new offences are necessitated by the globalization of terrorism-related activities, given reports of persons leaving Canada to receive terrorist training abroad. He argued that these potential Canadian offenders may pose a potentially mortal threat and danger to members of the Canadian armed forces on duty abroad. In his view, these proposed offences would help minimize this dilemma.
The horrific nature of terrorism requires a proactive and preventive approach. These new offences would allow law enforcement to intervene at an early stage in the planning process to prevent terrorist acts from being carried out. The proposed new offences would send a strong deterrent message potentially to assist in mitigating the threat of terrorism and would provide an appropriate maximum penalty.
In the course of debates on Bill S-7, some have alleged that the bill fails to protect human rights. To the contrary, the bill contains numerous human rights safeguards. I think we can all agree that counterterrorism measures must protect security, while respecting human rights.
Consider, for example, the investigative hearings. Under the investigative hearing provisions, the court would be empowered to compel persons who are reasonably believed to have information about past or future terrorism offences to appear in court and provide information. Without a doubt, the government has gone to great lengths to ensure that witnesses would be protected during the hearing from unintended consequences.
First, the Attorney General must consent before the investigative hearing process could be initiated. This is an important procedural step consistent with other areas of the Criminal Code.
Second, a judge would have to agree that an investigative hearing is in fact warranted for it to be held. Bill S-7 proposes, in particular, that to make an order for gathering of information the judge must be satisfied that the Attorney General's consent was obtained and that there are reasonable grounds to believe that a terrorism offence has been or will be committed; certain information concerning the offence, or the location of a suspect, is likely to be obtained as a result of the order; and reasonable attempts have been made to obtain the information by other means.
Under the provisions in the previous iterations of the bill, the last safeguard only applied to future terrorism offences and not to past ones. This safeguard would now apply to both past and future terrorism offences to further ensure that investigative hearings are only used in appropriate circumstances.
As a third safeguard, I direct the members' attention to the fact that under the original 2001 legislation, there was the power to arrest a person without warrant in certain limited circumstances, such as when the person was about to abscond, in order to ensure his or her attendance before a judge. However, the original legislation was silent as to how long the period of detention could be after such an arrest. Bill S-7 would remedy this defect by stating that section 707 of the Criminal Code, which sets out the maximum period of time an arrested person can be detained at a criminal trial, would also apply to a person arrested to attend an investigative hearing. Section 707 allows the detention of a witness for up to a maximum of 90 days, with judicial review for the detentions within each 30-day period.
Fourth, as a fundamental principle of our legal system in this country, the person named in the investigative hearing order would have the right to retain and instruct counsel at any stage of the proceedings. It is important that we all recognize that there is also a robust prohibition built into the investigative hearing proposal against the state using information or evidence derived from the information against a person who testified. An obvious and a logical exception to this is for prosecutions related to allegations of perjury or giving of contradictory evidence by the investigative hearing witness. Of course, this is an exception that is warranted.
In 2004, the Supreme Court of Canada took note of this robust provision and rejected the argument that the investigative hearing violated an individual's right to silence and the right against self-incrimination. The court also extended the use and derivative use immunity procedural safeguards found in section 83.28 of the Criminal Code to extradition and deportation proceedings.
On this last point, members may be reminded that Bill S-7 would be read in the context of the judgment of the Supreme Court of Canada to ensure that protections built into this section for use and derivative use immunity would be extended to extradition or deportation hearings. In summary, Bill S-7 incorporates appropriate and balanced safeguards.
The issue of review and accountability also arose during the debate and discussion of the bill. Let there be no mistake; Bill S-7 contains multiple reporting, parliamentary review and sunset provisions. The bill requires that Parliament review the investigative hearing and recognizance with conditions provisions prior to the date they sunset. These measures would be subject to another sunset clause, which would result in their expiry after five years, unless they were renewed by parliamentary resolution.
The proposals in the bill also include, as was the case with the original legislation, annual reporting requirements by the federal government and the provinces on the use of these provisions.
However, Bill S-7 would strengthen the annual reporting requirements, because the annual report of the Attorney General and the public safety minister would include an additional requirement to provide an opinion supported by reasons on why the provision should remain in force. The accountability processes built into the bill are both extensive and robust.
To conclude, the measures proposed in the Bill S-7 are necessary, proportionate and balanced, and they are replete with safeguards. I urge all members to support and vote for the bill.
Mr. Craig Scott (Toronto—Danforth, NDP):
Mr. Speaker, I rise today to speak to Bill S-7, the combating terrorism act, which my NDP colleagues and I opposed at second reading and continue to oppose based on the fact that the hearings in the House of Commons public safety committee, or SECU, revealed some serious hidden agendas on the government's part.
There are other problems we have with the re-enactment of provisions, albeit with some safeguards from the 2001 Anti-terrorism Act. My colleagues will address those in the third reading debate.
I will address how the hearings before the committee confirmed that Bill S-7 creates serious concerns with respect to the rule of law and human rights, notwithstanding the additional safeguards just outlined by the parliamentary secretary.
During the committee hearings on Bill S-7, my NDP colleagues and I raised several issues related to new offences created by the bill, but our questions were never fully answered by the government.
Many of our concerns related to these new “attempting to leave the country” offences remain, especially—and this is key—how they are linked to the re-enacted counter-terrorism measures from the Anti-terrorism Act of 2001, namely preventive detention, recognizance with conditions and investigative hearings.
For starters, it is clear as day from RCMP and CSIS testimony that the concerns I voiced in my speech at second reading are very well founded. There is a real potential that attempting to leave the country offences would serve as the trigger, first, for investigative hearings that would question friends, families and community members who know a suspect.
Second, once evidence arises through that investigative hearing method, that evidence would then be used to engage in up to 72 hours of preventive detention and then up to 12 months' recognizance with conditions, and indeed, it is important to note, up to 12 months of imprisonment without trial or conviction if one refuses to accept those conditions that are imposed or if one is deemed to have not complied with those conditions.
Such conditions could, and almost certainly would, involve confiscating passports so as to create a veiled, backdoor, de facto control order system, such as the U.K. explicitly uses to prohibit leaving the country. The key here is that all of this would occur implicitly, without it having been debated or structured in a proper way.
In this way, the new leaving the country offences need never be actually prosecuted, and that may well be ultimately the government's intention. They are just as likely, if not more likely, to serve as the reference point for disrupting a person's movement by using these re-enacted, extraordinary procedures of investigative hearings plus the recognizance with conditions provisions in tandem.
Before the bill came to the House, it was before the Senate. It started in the Senate. In committee there, the Minister of Justice said clearly that investigative hearings could be used to seek and get evidence of intent to leave the country for illicit purposes. As the bill itself states, evidence from investigative hearings cannot be used in criminal proceedings against a person questioned in the hearings.
This clearly points to the intention to use investigative hearings to interrogate family, neighbours, friends and others from a suspect's community, with attendant implications for discriminatory profiling, the potential for that discriminatory profiling and for instilling a feeling of harassment in a community that is the target of counter-terrorism surveillance.
CSIS and the RCMP effectively said, “Trust us”. They say that these provisions were not used before they sunsetted, so they will not be used much now. One wonders why there is the insistence of the government to re-enact them, but in any case, we should not believe it. Attempting to leave the country is a new offence of wide-ranging impact, and with respect to that offence or the series of offences that go under that label, the government has every intention of using investigative hearings.
The Minister of Justice, in that same testimony before the Senate, also linked recognizance with conditions orders to the new offence.
In the public security committee, government witnesses were presented with the scenario whereby evidence from investigative hearings is used not only as a basis for arrest of someone before leaving the country but also as the basis for securing recognizance with conditions without the need to actually prosecute.
Keep in mind this fancy term “recognizance with conditions” basically means limiting the liberty of citizens without trial or conviction. No witness denied that this trajectory was possible. It must be borne in mind, and I want to reiterate this, that any refusal to abide by conditions can lead to up to 12 months imprisonment, again without ever having been tried or convicted.
This is obviously a serious chain of state action and it is for this reason that the NDP not only is against the return of the sunset provisions that I have talked about, but also the reason why we have pushed for a range of additional safeguards to heighten monitoring and accountability in relation to how these provisions will operate in practice.
At committee, we concentrated at the amendment stage on such safeguards as it was a given, frankly, that the intrusive provisions would be accepted by the Conservative majority on committee. In committee we moved something like 18 amendments and not one was passed, either because the government majority voted them down or because they were ruled beyond the scope of the bill by the chair. In one case it was because the bill had originated in the Senate, to which I hope to get.
All the amendments were designed to enhance accountability as the government brought back these sunset anti-terrorism law provisions, while adding a new series of leaving the country offences and beefing up, from the Conservatives' point of view, a harbouring a terrorist offence. Half were ruled out of order. I argued unsuccessfully that such rulings misunderstood the legislative purposes of the bill and did not take into account a recent Speaker's ruling on when a bill should be deemed to be a money bill. Those are technical matters that we can leave for the moment.
What is important to note, and it was revealed in the parliamentary secretary's speech, is that this is a bill with three purposes. When a number of our amendments were ruled beyond the scope of the bill, the chair was not taking into account more than one purpose.
One purpose is terrorism repression. The second is rights' protections. We grant to the government that there are some elements in this that are a bit more protective of rights than the measures in 2001, including, for example, the right to counsel before an investigative hearing. We just feel they do not go nearly far enough. Third, separate from this, is institutional oversight and accountability and transparency mechanisms. These are all interconnected but have separate purposes. In our view, every amendment we proposed fit into one or other of these three purposes and thus none were beyond the scope of the bill.
The New Democratic Party believes we must seriously address the issue of terrorism. There is no doubt about that. However, we have to ensure respect for rights and freedoms.
That is why we introduced the amendments to heighten oversight, transparency and reporting in the bill in order to lessen the negative impacts on civil liberties, which the bill is bound to have. These amendments drew on testimony at committee and they also reflected the values that we believe were important to Canadians.
Let me describe some of the amendments that were attempted.
The first amendment would have provided for an inter-agency co-operation protocol between CSIS, the RCMP, CBSA and the Canadian Air Transport Security Authority to be put in place before the leaving the country offences could come into effect. Our rationale was that the exceptional state powers should be carefully circumscribed and accompanied by equally rigorous independent oversight which a protocol would have to build in. This amendment was deemed inadmissible as being beyond the scope.
However, the reason we believed the amendment was both necessary and within the scope of the bill was that in the Senate the director of CSIS drew particular attention to the fact that no protocols existed between these agencies for the kind of co-operation that he said would be needed in order to give effect to the leaving the country offences. He made it clear that such protocols were necessary.
Testimony before committee also indicated this, so we took it seriously by proposing a protocol for collaboration and that SIRC, the Security Intelligence Review Committee, which is the only relevant existing oversight committee in this field, must endorse it and only then, once the protocol was in place, would the provisions enter into force. We felt this was a reasonable provision. Now, because it was ruled out of order and adopted, we can only hope that the various relevant agencies will develop a protocol before these new offences enter into force.
The second amendment related to conditions for people to be charged with an offence related to harbouring terrorists. What the government wants is a provision that says everyone who knowingly harbours or conceals any person whom they know to be a person who is likely to carry out a terrorist activity for the purpose of enabling the person to facilitate or carry out any terrorist activities is guilty of an indictable offence liable to 10 years of imprisonment.
We wanted to change the words “likely to carry out a terrorist activity” to “intends to carry out a terrorist activity”. Our view, bolstered by the testimony and submissions, for example, from the Canadian Bar Association, is that likelihood is far too lax a standard, especially when we are asking somebody to think through to the mens rea state of another person. The term “likely” is far too speculative, but the amendment was defeated.
The third amendment we proposed was to ensure that testimony gathered from investigative hearings could not be used against the individual in any extradition and deportation proceedings, not only criminal proceedings. We heard from the parliamentary secretary that this was implicit. The Supreme Court ruled on this almost 10 years ago and said that in order to be compatible with the charter, that evidence could not be used in extradition and deportation proceedings. The Conservatives acknowledged this in committee and yet refused to write in the words that said this and made it clear.
We wanted this in bill simply because we believed that criminal law should be as clear as possible and that reasons of certainty, caution and respect for the rulings of the Supreme Court necessitated it. At the same time, it was specifically resisted. One can only ask whether the government is literally hoping that a newly-composed Supreme Court will eventually revisit that jurisprudence and that the only prohibition will be on using that evidence in criminal proceedings. Otherwise, it is impossible to fathom why it would have resisted including that amendment.
We also proposed that the right to counsel, which is written in Bill S-7, be extended to include a right to state-funded counsel, that is legal aid, if a person were dragged before an investigative hearing. Keep in mind that witnesses are brought before investigative hearings with no necessary, and definitely no suspicion of, wrongdoing on their own part. We felt that in this kind of context, it was important to ensure that people were not having to pay the costs of state investigation.
We also felt it was especially important to say that the right to counsel was a negative right. Those who can afford it will obviously be able to bring their lawyers and will have much greater protection in investigative hearings. For people who do not have the resources and cannot afford it, there is nothing in Bill S-7 that would allow them access to lawyers, despite the fact that elsewhere in the Criminal Code there is provision for federally-appointed, state-funded legal aid.
Another amendment revealed more information on the government's intent with the bill. We tried amending the provision on recognizance with conditions to ensure it was clear, and I want to emphasize this, that only persons determined to be potential participants in a terrorist activity could be subject to recognizance with conditions. Our concern was that people who were not themselves suspected of terrorist activity should not be the subject of the restrictions of liberty that were part of the recognizance with conditions regime. We thought this was a friendly amendment on a badly-written provision and were bowled over in the clause-by-clause process when what we thought was a friendly amendment was resisted. To our shock, the parliamentary secretary said that the government actually wanted to keep it broad precisely so recognizance with conditions could be imposed on someone who may not be suspected of any potential criminality themselves. The parliamentary secretary said:
|| The recognizance with conditions in its present form would provide the potential for a recognizance with conditions to be imposed to disrupt the nascent phase of a terrorist activity, even where the person who would be subject to the recognizance with conditions is not necessarily the person carrying out a terrorist activity.
|| The proposed amendment would seek to restrict the application of this measure.
That was the NDP-proposed amendment. She went on to say:
|| Because that is inconsistent with the policy intent underpinning the provision, we are opposed to it.
The government is on record as wishing to permit conditions to be imposed on perfectly innocent people. Failure to comply can lead to 12 months of imprisonment. Is that a regime we want in our country?
There was a whole series of amendments we then proposed that dealt with trying to ensure that the reporting procedures in Bill S-7 were more robust and less general than found in the bill. We wanted detailed information on the statistical use of the provisions, for example. A lot of testimony suggested we needed to have clarity and standards with respect to what the reviews of the operation and the provisions would entail, and we were seeking to assist with that.
We also wanted information specifically written into the review that would talk about exit control and exit information systems. The reason for that was, before the Senate, the director of CSIS indicated that there were no such comprehensive systems in place in Canada. However, there was every sign during the committee hearings that the government intended one way or the other to move toward more comprehensive exit information which could lead to exit control systems.
It was very clear that, not in Bill S-7 but in other legislation, the Conservatives had created enabling conditions to enable exit information to be accessed earlier than was currently possible in the process so before a plane left the country, it would be known who was on the plane and Canadian officers could go onboard and arrest people. However, this was not put in Bill S-7, but in Bill C-45, which is a budget bill.
We were simply taking the cue from the director of CSIS who had indicated that, before the cabinet, our proposals to strengthen the no-fly list were precisely because of the new leaving-the-country offences, yet no information was presented to us on the nature of the debates going on. We felt it was extremely important to ensure that the review mechanisms down the road would ensure that exit information and exit control were taken into account.
I believe I am nearly finished my time, although I have had to talk over an incredible hubbub and ruckus on the other side of the House.
Amendments also sought to ensure that a comprehensive review procedure expressly included the operation of the four leaving the country offences—
Some hon. members: Oh, oh!