Ms. Alexa McDonough (Halifax, NDP):
Mr. Speaker, I welcome the opportunity today to make some brief remarks. I have only 10 minutes to speak to the Anti-terrorism Act, which was passed by the House. I do not think a single member of Parliament would disagree that at the time we were in a climate of considerable fear and apprehension.
I want to take this opportunity to pay tribute to my colleague, the member for Windsor—Tecumseh. He has provided astounding leadership around the issues with which we have been grappling ever since.
Members who have been following the anti-terrorism debate in the House will know that my colleague from Windsor—Tecumseh has filed a minority report in relation to the two issues principally before us now, those sections of the Anti-terrorism Act that pertain to investigations and preventive arrests.
It will surprise no one that I am in absolute agreement with my colleague, the justice critic for the New Democratic party. In fact, all my colleagues stand together to oppose what we think remain provisions of the act that were clearly recognized at the time to be out of balance with what was necessary to achieve, weighing off security demands against civil liberties and human rights.
The fact that the government is not prepared to allow the sunset clause to apply to these two provisions is a clear and an alarming signal that it has not learned the lessons, lessons well learned by a great many Canadians at a grave expense and a tremendous cost to those victims of the overzealousness of some of these provisions.
No one has said this better than the NDP justice critic. Terrorism cannot be fought with legislation. It must be fought through the efforts of intelligent services, combined with appropriate police action. There is no act of terrorism that is not already a criminal offence, punishable by the most stringent penalties under the Criminal Code. This is obviously the case for premeditated, cold blooded murders. However, it is also true for the destruction of major infrastructures.
It is very much the view of the NDP that if in any respect the Criminal Code is lacking, the legislation is insufficient to deal with the threat of terrorism, then this can be amended. If the police do not have the full legal means needed to deal with terrorism threats, then that legislation should be amended. No one has brought forward the amendments that would address this in the Criminal Code.
In our view, the lessons of post 9/11 absolutely lead to the position we have taken today, and that is we have to learn those lessons and apply them. This means we should let those two overzealous measures expire as the sunset clause indicated.
As we began the debate on the legislation, there was a truly superb coalition effort of Quebec Muslim and Arab organizations. They came to the Hill and sought the opportunity to meet with members in all caucuses. I am not sure if they succeeded in doing that. However, it was an excellent experience for the NDP caucus to hear the presentation of that coalition.
I will briefly quote from what is an excellent brief. I want to ensure that it goes into the record. It was one of the most concise and intelligent analyses of the issues we face. The second point in the recommendations brought forward in their analysis of what happened post-9/11 reads:
|| In Canada, antiterrorism laws...and the applications of the Security Certificates have created a socio-political climate of prejudice fueling Islamophobia and Arabophobia. Canadians and Quebeckers of Muslim faith or Arab heritage are singled out as a threat to national security which is affecting their rights and liberties.
If anyone questions whether that is an accurate description of what has happened to a great many Canadian Muslims and Canadian Arabs post-9/11, simply look back on the disgraceful question period that took place last week. At the sheer mention of the anti-terrorism provisions subject to the sunset clause, the Prime Minister stood in and by reference, by innuendo, spoke about a family member of a member of the House in terms of him being a candidate to come before the secret investigations.
Nothing could more stringently underline why the sunset clause should apply to those investigations. Instead of the Prime Minister creating such innuendoes, he should have been asking, if he has learned any lessons at all about RCMP leaks, why these leaks about someone who may or may not appear before a secret investigation were being given to the public? Why would the Prime Minister participate in referencing what had to be leaks coming from the RCMP? I hope members of the House will reflect on lessons that need to be learned.
I want to briefly quote from the final words of Maher Arar, which he shared with an audience of people across political party lines. However, it was a grave disappointment that only the leader of the Conservative Party, the Prime Minister, chose not to attend the event. The other party leaders were there. Also a large number of representatives from the other caucuses were there, except the government caucus. This again leads us to believe the government has not learned the lessons of the overzealousness post-9/11.
Here are the words of Maher Arar on that evening of tribute to Monia Mazigh and Maher Arar for the work that they had done for Canadians around the issue of the appropriate balance between security and civil liberties:
||—I want to remind you that our rights and freedoms are an inheritance, paid for dearly by countless others before us who saw or experienced injustice, and fought it, often not for themselves, but for those who would come after them. We need to respect this inheritance for its value to us and to our children, as well as for the price others paid for it.
Finally, there was a truly superb address given at the outset of that evening. It was a very fine, insightful, scholarly address by Dr. Tyseer Aboulnasr, who said in part:
|| Friends, let us never forget that nations are not judged by the laws they write up and lock up in libraries, nations are judged by how they act at times when their dedication to these laws are truly tested. Every country that has chosen to sacrifice the liberties of its citizens and hold them in shackles has done that out of belief that this is necessary for its security. We, Canadians, know better. We know that security without liberty is simply imprisonment. Nothing is more secure than a maximum security prison. We deserve better. We cannot let Canada turn into a maximum security prison by imprisoning one Canadian without the presumption of innocence till proven guilty and without the full opportunity to defend themselves.
For that reason I was genuinely shocked. The day after this superb speech was made in tribute to Maher Arar and Monia Mazigh, the former solicitor general, under the Liberal government, stood in the House in answer to a question I raised. He said that as far as he was concerned we had achieved exactly the right balance between security and civil liberties in the post-9/11 era.
I respectfully disagree with him and I urge members to see the wisdom of letting the sunset clause of these two overzealous measures take effect. They are covered in the Criminal Code and can deal with future threats of terrorism, which we all take very seriously.
Mr. Michael Ignatieff (Etobicoke—Lakeshore, Lib.):
Mr. Speaker, I rise to speak to the government's motion relating to extending certain clauses of the Anti-terrorism Act that are subject to sunset at the end of this month.
The Liberal opposition has thought long and hard on this issue. This party, while in government, introduced the Anti-terrorism Act and this House passed certain provisions subject to a five year sunset which we are considering in the House today.
The position of my party is clear. These provisions providing for preventive arrest and investigative hearings should sunset and they should sunset because they are flawed.
The Commons committee and the committee in another House that reviewed these provisions believed that while some of the provisions are worthwhile they were seriously flawed. The committees had made extensive recommendations on how to address these flaws, how to ensure they better contribute to our public safety and how to better safeguard against the potential abuse of human rights.
The Liberal Party is proud of its record on defence and public safety, and I want to stress that this record is in line with civil liberties.
The point is that government has ignored the recommendations of the House and Senate committees. The government has failed to present to this House clear proposals to extend these provisions in a modified form which take into account the concerns of parliamentarians.
In fact, the government has not formally engaged the opposition in any way. It has not submitted any proposals to us. We have known since last October that Canada's Anti-terrorism Act needed a complete review. The government has done nothing.
This has presented the House and the country with an up or down choice. The government seeks to present all parties in Parliament with the following choice: vote to extend these provisions or risk being labelled as soft on terror.
Let me be clear. This party has never been soft on terror. As the leader of my party has repeatedly stated, if the government presented this House with clear proposals to redraft the anti-terrorist legislation to take into account the sensible suggestions made by the House and the Senate committees, the official opposition would act expeditiously and responsibly.
To repeat, the party has never been soft on terror. The House knows and the government knows that after the attacks of 9/11 the Liberal government acted decisively and we will always do so.
The Liberal government at the time also knew something else: measures that may be necessary in an emergency must always be reviewed once the danger has abated. That is why the original legislation included sunset clauses so that, once the immediate danger had passed, Parliament could calmly assess whether those measures should be renewed and, if so, how.
This is where we are today or where we ought to be if this country were led by a responsible government. If this country were led by a government that said, “We are in a minority position in this House. Let us reach out to the opposition. Let us listen to what the committees of the House and the committees in another chamber said. Let us come back with revisions to the legislation that better balance security and liberty”, we would have responded positively. Instead, in the government everything is political. Everything is an opportunity to jam the opposition.
That is fair enough. We are all politicians in the House, but there are some issues on which we should try to put politics aside and put the security of our country first.
Hon. John Baird: I was reading a book of yours. It didn't say that.
Mr. Michael Ignatieff: Now, now. I do not believe the hon. member has read my words correctly, but I continue.
The government has alleged that it is the opposition that is playing politics and is endangering national security by voting to sunset these clauses. However, it well knows that these clauses have not been used once in the entire time they have been on the statute books. The case that we are endangering public safety by our actions is fanciful.
Here we do come to material that I have considered in my previous work. Abridgments of civil liberties can be justified but only if public safety absolutely requires it and then only under strict conditions. If this is the test, the clauses should sunset because they have not proven absolutely necessary to the public safety. The government, in essence, has not proven its case, and, on these questions where our liberties are at stake, the government must prove the case of public necessity beyond a shadow of a doubt.
Sunset clauses are placed in legislation precisely to ensure that temporary and emergency provisions of the law enacted to cope with special circumstances do not anchor themselves permanently in our law and, by so doing, begin moving the equilibrium of the law away from where it should always be: balancing security and liberty, public order and individual freedom.
If we renew these clauses as the government proposes, we risk moving that plumb line of the law. Temporary measures will become permanent and what becomes permanent will become unbalanced. The law will begin to privilege security at the expense of freedom, to the eventual detriment of us all.
Let me go further. If we consider the ruling of the Supreme Court last Friday on the security certificate provisions of the Immigration Act and if we further consider the reports of the parliamentary committees, both in this House and in another place, it is clear that the entire anti-terrorist architecture on the statute books needs comprehensive revision.
That is the main challenge that this government, which has been in power now for 13 months, has refused to face. The Conservatives may say that they need more time, but they have had plenty of time. The parliamentary committee in charge of reviewing the sunset clauses submitted its report last October, five months ago. Has the government been asleep since then?
The foundations were well laid but the building needs revision, that is the point.
While the government was slumbering, the parliamentary committee made recommendations on the investigative hearing provisions to give authorities the powers they need to protect us against forthcoming threats. The government has thus far failed to take into account the conclusions of that committee.
For preventive detention, the other sunset clause at issue in this debate, members of the parliamentary committee pointed out that section 495 of the Criminal Code already gives the police the authority to arrest without warrant a person who, on reasonable grounds, he believes is about to commit an indictable offence. This power is already in the criminal law of Canada and the additional powers sought in preventive detention are, in our judgment, strictly unnecessary.
If such powers exist in the criminal law, the government will need to prove, and it has failed to do so, that the preventive arrest provisions of the ATA have the overriding necessity that it claims.
That is the issue here. A free society can contemplate limited abridgments of the civil liberties of citizens only if the government offers clear public justification in Parliament of its case. It has failed to do so. These clauses must sunset and then the government should come back with redrafted measures and a case to justify them to the House and to the people. Should the government bring back measures that meet the test of public necessity and demonstrate that it has listened to the considered opinions of the committee of the House and the Senate, the opposition will respond.
The government needs to do more than just repair these defective clauses. It needs to give serious consideration to the opinions expressed by the honourable members of the Senate in the recent report entitled “Fundamental Justice in Extraordinary Times”.
This report makes my point. The entire architecture of Canada's anti-terrorism laws require substantial amendment. The foundations laid by the Liberal government are sound but there is room for substantial change if Canadians are to remain safe and have their liberties secure.
The report in the Senate, for example, recommends removal of the motive requirement from the Criminal Code definition of terrorist activity. It also recommends removing the reference to political, religious or ideological objectives from the definition of threats to security to Canada. All this, if done by a careful government, would provide greater protection for the free expression of opinion in Canada and prevent religious or racial profiling in Canada's anti-terrorist policy.
Without committing itself in advance to any specific initiative in this area, the opposition urges the government to listen to these suggestions and come back to this House with legislative amendments that meet public safety objectives while providing greater protection for Canada's minorities against religious and racial profiling.
In this and other areas, the report of the other house makes a convincing case. It states that our laws and policies to prevent and combat terrorism should be reformed to better reflect the objective of ensuring the security of Canadians while protecting the civil liberties that are the basis of our democratic society.
Why will the government not react positively to the sober second thought offered by the other chamber to Canada's anti-terrorism laws? Why will it not come to the House with proposals that reflect in detail these sensible recommendations? Why is it presenting members with a false, up or down, black or white choice to sunset or not to sunset? Sunset or not to sunset is not the question. Why has the government waited six months to take action to fix Canada's legislative framework on anti-terrorism? Why has the government, and it is a minority government after all, failed to reach out to the opposition and work with them to amend the laws we need to protect our citizens? Why has it decided that it is in its interest to jam the opposition rather than to serve the people?
I leave it to the other side to answer those questions but I would suggest that the answers tell us much about the character of the government and the character of the hon. member who leads it. For the government, politics comes first and good public policy comes a very distant last. Canadians deserve better.
The government has had plenty of time to review and improve these clauses, but it has done nothing. As a result, the sunset clauses will expire, if that is the will of this House. Once that happens, the government, which could have avoided that situation at any point in the past six months, will have to repair the damage it will have done itself. If it comes back to this House with reasonable measures that meet the test of public necessity, that protect the public while protecting civil liberties, the official opposition will be ready to do its duty constructively.
Mr. Pierre Lemieux (Glengarry—Prescott—Russell, CPC):
Mr. Speaker, in view of the ongoing debate concerning provisions of the Anti-terrorism Act subject to sunsetting, I felt it my duty to rise in the House to set the record straight. I ask all hon. members to listen with an open mind on what is unquestionably a matter of critical importance to our collective safety.
When speaking about these powers, investigative hearings and recognizance with conditions, we must work by way of comparison to the anti-terrorism powers of other democratic states. They will clearly show that restraint is built into the scope of their application. Let me first discuss the investigative hearing procedure.
The United States has a grand jury system. The grand jury wields significant powers not shared by other investigative agencies. The federal grand jury may compel the cooperation of persons who may have information relevant to the matters it is investigating. Any person may be subpoenaed to appear and testify under oath before a grand jury. If individuals who are subpoenaed fail to appear or refuse to answer questions, they may be held in contempt absent a valid claim of privilege.
The grand jury may subpoena the owner of documents or other evidence to present them to the grand jury, on pain of contempt, absent a valid claim of privilege. If a witness or the custodian of a document asserts a valid privilege, he or she may be provided with use and derivative use immunity and then be required to comply with a subpoena to testify or produce evidence.
The U.S. Patriot Act represented a marked departure from past changes to grand jury secrecy rules. The act permits disclosure without court order to a list of federal agencies with duties unrelated to law enforcement. Although the material disclosed must relate to foreign intelligence or counter-intelligence, the Patriot Act defines those terms with considerable breadth. I would add that there are also equivalent investigative hearing provisions in Australia and South Africa.
By contrast, in the United Kingdom the onus is on the person having relevant information relating to terrorism to disclose the information to the police. A person who fails to disclose to the police information which he or she knows or believes might be of material assistance in preventing an act of terrorism is guilty of an offence and liable to punishment of up to five years' imprisonment.
Let me now turn to the recognizance with conditions power. In Canada the use of the recognizance with conditions provision is dependent on reasonable grounds to believe that a specific terrorist activity will be committed in addition to a reasonable suspicion that the imposition of a recognizance is necessary. Arrest without warrant is limited in scope where, for example, there are exigent circumstances and if the person is detained, the period of detention is limited, generally up to a maximum of 72 hours before the hearing takes place. If the person refuses to enter into the recognizance with conditions, he or she may be jailed for a term not exceeding one year.
Compare the scope of this provision to some of those found in the U.K. In the U.K. the police may arrest without warrant a person whom he or she reasonably suspects is a terrorist. This differs from normal arrest powers in that there is no need for there to be any specific offence in the mind of the arresting officer, thereby allowing for wider discretion in carrying out investigations. The maximum period of time that a person could be held in detention without charge under this power has been extended since 2000 from 7 days to 14 days, to the current 28 days.
There are other powers as well given to the police in the U.K. For example, under section 44 of the Terrorism Act 2000, a constable in uniform, having received an authorization from a police officer having at least the rank of assistant chief constable, may stop a vehicle in the place set out in the authorization and search the vehicle, driver or passenger. It also extends to a pedestrian or anything carried by him or her in the area. The senior official may issue the authorization if it is considered expedient for the prevention of acts of terrorism.
The police are required to inform the secretary of state of the authorization as soon as is reasonably practicable, and to continue, it must be confirmed within 48 hours. An authorization may be up to 28 days and can be renewed.
As well, the U.K. also put in place in 2005 a system of control orders which may be imposed on a person to prevent terrorist attacks. These orders can be imposed on citizens and non-citizens alike. There are two kinds of control orders that may be imposed: those which do not derogate from the European Convention on Human Rights, and those which do derogate from the convention. The latter would arguably apply in cases of house arrest. Some of these control orders have been challenged in the lower courts and their lawfulness will ultimately be decided by the House of Lords.
In Australia, legislation has been enacted creating a system of control orders and preventative arrests of terrorist suspects. With regard to preventative detention, the Australian federal police may apply for an order for preventative detention of a terrorist suspect where there has been a terrorist act or where a terrorist act is imminent.
However, the period of preventative detention is limited to 48 hours. In contrast, and in addition, many Australian states and territories have enacted legislation allowing preventative detention for up to 14 days.
Given this comparison, I would suggest that far from being blunt instruments, these provisions in the Anti-terrorism Act designed to prevent terrorism are modest in scope and finely tuned to their purpose.
At this time, I would like to turn to another major issue that has been raised by opposition parties in deciding, to date, to oppose the recognizance with conditions provision found in section 83.3 of the Criminal Code.
The hon. member for Marc-Aurèle-Fortin has argued that the recognizance with conditions power is not needed because paragraph 495(1)(a) of the Criminal Code has long provided a peace officer with the power to arrest without warrant a person whom he or she believes is about to commit an indictable offence.
It has been further argued that in such a case the person can be brought before a judge and released on recognizance with conditions. The hon. member for Marc-Aurèle-Fortin has also contended that the recognizance with conditions power under the ATA is very different in nature from the peace bond process found in section 810 of the Criminal Code and has very different consequences.
He has argued that in his experience section 810 is often used with regard to apprehended domestic violence or stalking rejected lovers. In contrast, in his view, the recognizance with conditions under the Anti-terrorism Act can catch innocent people who may not be aware of the reasons for which terrorists are soliciting their aid.
He also states that under section 810 a person is subject to a summons to come before a judge and is not arrested, and that the judge cannot commit the person to a prison term unless the person refuses to sign the recognizance after listening to all the parties and being satisfied by the evidence educed that there are reasonable grounds for the fears.
Allow me to reply to these arguments in turn. There are a number of differences between section 495 of the Criminal Code and the provisions setting out the recognizance with conditions contained in the Anti-terrorism Act.
Paragraph 495(1)(a) of the Criminal Code, in part, sets out the power of a peace officer to arrest without warrant a person who is reasonably believed to be about to commit an indictable offence; that is, a serious crime.
The recognizance with conditions provision in the ATA requires, first, that a peace officer have reasonable grounds to believe that a terrorist activity will be committed and suspects on reasonable grounds that the imposition of a recognizance with conditions on a person is necessary to prevent a terrorist activity.
In short, under the recognizance with conditions provision in the ATA the timeframe allowed for preventive intervention is longer than that provided for in section 495. There is no requirement that the terrorist activity be imminent; namely, about to be committed.
This represents a substantial difference that may, in practice, result in the prevention of terrorist activity and in saving lives.
The relevant arrest without warrant power in section 495 is restricted to those persons who, it is reasonably believed, are about to commit an indictable offence. These individuals, in other words, must be on the verge of committing a serious crime.
The recognizance with conditions provision in section 83.3 of the Criminal Code is not as narrow as section 495. It can apply to anyone who fits the statutory criteria set out in section 83.3 of the Anti-terrorism Act. A peace officer requires reasonable grounds to believe that a terrorist activity will be committed and that the imposition of the recognizance with conditions is necessary to prevent a terrorist activity from being carried out.
For example, while the police may suspect on reasonable grounds that particular individuals have contributed to or been associated with certain terrorist activities, they may not yet have the grounds to arrest these individuals and charge them with having committed a provable crime. In other words, they would not have grounds to arrest without warrant for being about to commit an indictable offence under section 495 of the Criminal Code.
They would, however, be able to request a judge to impose a recognizance with conditions under the Anti-terrorism Act and place the person under judicial supervision in an effort to prevent any terrorist activity from actually occurring.
To be fair, the hon. member for Marc-Aurèle-Fortin recognizes that the recognizance with conditions power is broader in scope than section 495 of the Criminal Code. However, he disapproves of this, expressing concern that a person placed under this kind of recognizance with condition can be branded a terrorist without ever being charged with a terrorism offence. He makes an analogy to a robbery about to take place, arguing that police can use section 495 to arrest the accused because he or she is about to commit a crime. The police, he says, can do the same with regard to a terrorist activity being planned.
This argument ignores the fundamental difference between terrorism and other forms of serious crimes, including organized crime. In this regard, the hon. member for Marc-Aurèle-Fortin has chosen to disregard the advice given to him by Lord Carlile, the independent reviewer of the U.K.'s anti-terrorism legislation, who was questioned by the House subcommittee in November 2005.
In response to a suggestion from the hon. member that terrorist investigations are quite similar to those which must be undertaken into organized crime, Lord Carlile disagreed. He said:
|| 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.
|| I could point to a number of operations, if I were able to describe them in detail, in which the police and the security services in the United Kingdom have felt they had to intervene very early because of the risk of frightened or nervous terrorists trying to bring an act to fruition much earlier than was originally intended. This means that a great deal of the evidence gathering has to take place after what is sometimes regarded as a premature arrest.
This reality of the need to intervene at an early stage to disrupt and deter a potential terrorist activity in its nascent stages lies at the heart of the difference between the recognizance with conditions in the Criminal Code and section 495 which, while appropriate for regular crime, including organized crime, is not adequate in order to prevent acts of terrorism most effectively.
Let us carefully examine the differences between section 810 of the Criminal Code from the recognizance with conditions power under the Anti-terrorism Act.
First, under the recognizance with conditions in the Anti-terrorism Act, as in section 810, a judge may issue a summons to a person to appear. The general rule is that a peace officer must lay information before a judge and have the judge compel the person to attend before him to determine if a recognizance with conditions should be imposed.
The arrest without warrant in section 83.3 is very limited in scope. It applies only where exigent circumstances make it impracticable to lay the information, or where a summons has been issued for the person to appear and the peace officer suspects unreasonable grounds that the detention of the person is necessary to prevent a terrorist activity from taking place. This is in sharp contrast with section 495, which is exclusively an arrest without warrant power.
Second, under the recognizance with conditions power in the Anti-terrorism Act, as in section 810, if the person signs the recognizance and abides by the conditions, he or she remains at liberty and will not be sentenced or have a criminal record.
Third, the suggestion has been made that the section 810 peace bond process deals only with cases of domestic assault or stocking that do not really rise to the high level of harm or notoriety that terrorism does.
It should be noted, however, that peace bonds in the Criminal Code can also apply in respect of other serious criminal conduct, such as the cases of fear on reasonable grounds that a person will commit a criminal organization offence. A person placed under a peace bond in these circumstances is also not guilty of any offence, and yet is placed under a severe stigma without necessarily being found guilty of any crime.
Finally, I would point out an important difference between the peace bond set out in section 810 and the recognizance with conditions power in the Anti-terrorism Act. Unlike the section 810 peace bond, the recognizance with conditions under the Criminal Code cannot be used unless the relevant attorney general consents to information being laid by a peace officer before a judge, and this applies in all cases.
This is a key and important safeguard that is curiously not mentioned by the member for Marc-Aurèle-Fortin.
For the benefit of all members of the House, let me summarize the major safeguards found in the recognizance with conditions provision found in the Anti-terrorism Act.
First, the consent of the Attorney General of Canada or the attorney general or solicitor general of the province is required.
Second, a peace officer has limited power to arrest a person without warrant in order to bring him or her before a judge, such as in exigent circumstances.
Third, a peace officer who detains a person must either lay information with the consent of the relevant attorney general or release the person.
Fourth, in order to lay information, a person detained in custody must be brought before a provincial court judge without unreasonable delay, and in any event within 24 hours of arrest or as soon as possible thereafter if a judge is unavailable.
Fifth, only if the judge is convinced that the necessary reasonable grounds exist, may the judge order that the person enter into a recognizance to keep the peace and be of good behaviour, and to comply with any other reasonable conditions for a period of 12 months. Only if the person refuses or fails to enter into the recognizance can the person be committed to prison.
A person subject to a recognizance has the right to apply to vary the conditions under the recognizance order.
Finally, federal and provincial attorneys general are required to report annually on most uses of this power. The Minister of Public Safety and ministers responsible for policing in the provinces are required to report annually on the arrest without warrant power.
Given these safeguards, it is apparent that this provision has numerous safeguards to prevent possible abuse.
Let me end by imploring the members opposite to consider the words of Lord Carlile of Berriew. Yes, there is a difference between organized crime and terrorism. The threat of mass murder is different from the threat of individual violence.
We need to have the tools to prevent these attacks at their nascent stages, not just when the crime is about to be committed, for to wait is to endanger the lives of those we wish to protect. It is a time for foresight, and foresight demands that these provisions be extended.
Mr. Réal Ménard (Hochelaga, BQ):
Mr. Speaker, it is a great privilege for me to rise and speak to this motion. I must say that I feel rather ashamed. I was here in the House in 2001 when we had the debate. I remember very well all the questions raised by the hon. member for Laurier—Sainte-Marie, who was the opposition leader at the time, as well as those of our justice critic, Michel Bellehumeur, the hon. member for Berthier—Montcalm.
We were worried about a number of things. The first was the very definition of terrorism and a terrorist act. I do not want to return to all that because the Supreme Court did not rule on it. The other extremely important questions that we raised had to do with procedural fairness, the right to a full and complete defence, and how best to achieve a laudable objective. We need to remember the situation in 2001 and how concerned we were, especially in view of what had happened in the United States. We know how close the historical bonds have been between Canada and the United States, bonds that led a former Canadian Prime Minister to say of our relationship that geography made us neighbours but history made us friends.
We could not remain unmoved by the collapse of the twin towers and all the information pouring forth about terrorist networks, real or potential. I would like to thank the hon. member for Marc-Aurèle-Fortin, by the way, for all the vigilance he has shown.
The speeches we heard this morning are pretty amazing in some respects. I should say, first, that for me the Liberals and the Conservatives are the same. We need to remember what the Liberals were saying. The Bloc was very clear. Not that we were great seers or prophets, but we did anticipate a few things. Some provisions of the bill that was being introduced, Bill C-36, were obviously incompatible with the basic principles on which our justice system is built.
I remember very well the questions and comments made by the justice minister at the time. They were even more unacceptable in that she was a former professor of constitutional law who had written articles on legal guarantees and procedural fairness, which I had had occasion to read.
The Liberals and Conservatives were animated by a common desire to move as quickly as possible and respond to the emergency because the situation was indeed very worrisome.
I read the Supreme Court ruling from beginning to end. What the Supreme Court told us is that in a democracy, and in a system where the rule of law means something, the end never justifies the means. As parliamentarians, we must respect that. The Conservatives and the Liberals were of one mind; we realize, with hindsight, that their position does not stand up to our most basic principles of justice.
It is demagogy, to some extent, to rise this morning in this House and to make it seem as though there are those who are concerned about the safety of citizens and those who are not. All parliamentarians in this House are concerned about the safety of citizens. However, it may be that, in our work as parliamentarians, we have to propose measures that push the boundaries when it comes to how we perceive the evidence or how we see the process unfolding.
I was in this House when Bill C-95, the first anti-gang bill, was adopted in 1997.
The definition of a criminal organization then was: five individuals who, in the past five years, committed offences punishable by more than five years' imprisonment.
At that time, there was also a sense of urgency. However, I would never have thought about rising in this House and voting for this bill, which was to be revised by Bill C-24, if the principal condition of the law had been to deny the accused access to all the evidence. That is the problem with this bill. I am surprised that no government members have noted this fact.
We will have an opportunity to mention this: the Criminal Code does contain mechanisms for preventive detention. First, common law recognizes this principle and the Supreme Court has recognized it several times. We need not go very far. Section 495 of the Criminal Code—if my memory serves me correctly—allows a police officer to arrest, on reasonable grounds, a person he believes has committed or is about to commit an offence.
Later, of course, the individual will have a trial and can be represented. All legal guarantees will be offered and justice will be served the way it should be in an adversarial system, in other words, the public prosecution lays charges and provides evidence and the accused can defend himself or herself. Getting to the truth is what this confrontation should be all about. That is not what is being proposed in the antiterrorist provisions.
We are not against the fact that measures are needed. I am sure that the hon. member for Marc-Aurèle-Fortin never said anything of the sort. We acknowledge that some individuals may pose a threat to national security. It is true there are terrorist movements.
I remember attending lectures given by researchers from the Raoul Dandurand Chair in strategic and diplomatic studies. We know that terrorist movements have been at work and that they will be in the years to come. We are even told that the largest terrorist movements, which constitute the worst threat to the security of modern states, are those with religious motivations.
We know all that. We are not questioning the fact that in legislation, whether in the Immigration Act or in other legislation, a minister may be asked to review situations where individuals will have to be deemed threats to national security. We recognize that and we agree that in all modern countries, particularly in vast countries and countries where borders are porous, it is acceptable for these provisions to exist.
Nonetheless, there is something quite unbelievable in these provisions. The Supreme Court said that the way in which the antiterrorist provisions are set up, in their wording and the way the courts are called to interpret them, some procedural guarantees are being breached. I will come back to that.
This leads to the following question. Can these terrorist movements be dismantled by using the provisions in sections 83.27, 83.28, 83.29, and 83.3? Why have these provisions not been invoked? Logically speaking, just because they have not been invoked yet does not mean they will not be in the future, but this is nonetheless a measure of their immediate relevance.
Under the existing Criminal Code—as we were reminded—an individual can be arrested without a warrant. It even sets out that in individual can be brought before a judge, compelled to enter into a recognizance to keep the peace and prohibited from contacting certain individuals. This is set out in section 810 of the Criminal Code.
Section 465 even includes a provision that allows for the arrest of individuals on the basis of conspiracy alone and because there is a risk they will commit acts at a later date. It is not as though we are completely without any other legislative recourse, or as though there is nothing in our existing legislation.
Something is very troubling. While we may not agree on how our political system operates, we cannot deny that there is a recognized tradition of respect for human rights. This includes Diefenbaker's Canadian Bill of Rights, the Canadian Human Rights Act adopted in 1977 and, more recently, the Canadian Charter of Rights and Freedoms.
In the National Assembly, in 1982, at the time the Canadian Charter was debated, we did not agree on the management of linguistic rights. Nor did we agree on section 27 pertaining to the enhancement of multicultural heritage. We nevertheless recognize the charter as a tool for the protection of human rights, particularly for judicial guarantees, which, moreover, already exist and were already set out in the Quebec Charter of Human Rights and Freedoms. We recognize that it serves as a tool for the promotion and enhancement of human rights.
As legislators, how could we have let ourselves become distracted? The Bloc Québécois cannot be blamed because, based on the recommendation of the leader of the Bloc and our justice critic, we voted unanimously against BIll C-36.
Why did we vote against Bill C-36? Because we did not believe that an individual could receive a fair trial without access to the evidence, especially the most important pieces of evidence, the ones supporting the charges or leading to a guilty verdict. The Supreme Court spoke of “sensitive information”. That was the main problem with the proposed law.
I would like to quote what the Chief Justice of the Supreme Court said on page 54. A unanimous ruling is significant, after all. In a decision written by Madam Justice McLachlin, the court said:
|| I therefore conclude that the IRPA's procedure for determining whether a certificate is reasonable does not conform to the principles of fundamental justice as embodied in s. 7 of the Charter.
This is serious. Legislators should be very concerned about this paragraph. I have difficulty understanding the government's obstinate refusal to recognize the proposed law. Of course, the Conservatives were not responsible for creating it; the Liberals were.
I hope that all Parliamentarians in this House will acknowledge that things have been taken too far, that due process is not happening and that even though we have a general duty to protect our fellow citizens, we must have safe communities. Specifically, we must protect our fellow citizens from possible terrorist attacks.
The court will explain what it means by the “principles of fundamental justice” embodied in section 7. This section is well known to us all. It concerns life, liberty and security of the person. The Supreme Court will say that those rights cannot be interfered with. First and foremost, we must ensure an impartial hearing.
The Supreme Court considered the question of the evidence being introduced ex parte, that is, the judge reviews the evidence, but not in the presence of both parties, specifically, defence lawyers for the person named in the certificate.
Is it not troubling to know that a person who does not appear before the judge—a judge who has reviewed the evidence, including the sensitive information—cannot refute that information, cannot correct the facts, cannot explain them, cannot respond to the quality of the information provided and the credibility of the informants?
Not only did the Supreme Court say that it was a miscarriage or denial of justice, as must exist for section 7 of the Charter to apply, but it also said that judges hearing the evidence ex parte are placed in a position where they cannot be impartial. Is this not tantamount to asking them to be investigators?
The court said that not allowing a person detained under a certificate to receive all of the evidence and be able to refute, explain and correct it, and to question the source of the evidence infringes section 7.
The court did not say that security certificates are unnecessary. Over the next year, the court invites the legislator to review the way in which certificates are issued. It is interesting to remember that the court gave the United Kingdom as an example. In committee, this was even brought to the attention of parliamentarians. The court even gives Canadian examples where the members of a House of Commons subcommittee, who were hearing from employees of the Canadian Security Intelligence Service, were able to respect the security and confidentiality requirements and still carry out their parliamentary work.
The court also has the following observation, and again I will cite Justice McLachlin. Furthermore, no parliamentarian or minister has provided an explanation for this. I hope they will during our exchanges later. Justice McLachlin said, “—Why the drafters of the legislation did not provide for special counsel to objectively review the material with a view to protecting the named person's interest—as was formerly done for the review of security certificates by the Security Intelligence Review Committee, and is presently done in the United Kingdom...has not been explained”.
The United Kingdom has also passed antiterrorist provisions. The court wonders why we did not take the same route. The court proposes a compromise between complete denial of access to sensitive information about the person named in the security certificate and the possible confidential nature of certain information in thwarting terrorist attacks, in other words a procedural fairness requirement, a requirement for respecting basic justice. The court says that if we want to maintain these balances, these powers that have to be balanced between national security, confidentiality of certain information, but also the rights of those who may be charged—who are in fact charged in some cases—then we need access to information. I hope the government will take this into account during the review it has been given one year to do.
In closing, I cannot believe that people were detained for five or six years. I am running out of time. However, we have to remember that different rules apply depending on whether the person is a permanent resident or a foreign national when it comes to a review of detention. A permanent resident gets this review within 48 hours and every six months. A foreign national can be imprisoned for 120 days without ever having their detention reviewed. As the Supreme Court pointed out, this does not make any sense.
I will stop here, but, once again, I believe there is no reason to be proud today of Bill C-36. In my opinion, this House would have been better advised to listen to the Bloc Québécois when it gave these warnings. Fortunately, the Supreme Court was able to take an informed look at this legislation that offends human dignity and the best we can do is to review it.
Mr. Derek Lee (Scarborough—Rouge River, Lib.):
Mr. Speaker, I am pleased to participate in the debate on the motion to extend the provisions of Section 83 of the Criminal Code, which, if they are not extended by a vote of the House, will lapse and die. Arguably, if there is a need for these types of provisions, new legislation will need to be introduced, thereby creating a gap in our law, if it is the will of the House and the government to proceed in that way.
These particular sunset provisions were added to the Criminal Code by Bill C-36 after extensive justice committee study and public debate. I was very involved in the work of the justice committee and I do have some personal knowledge of those events at that time.
The sunset provisions were inserted at the insistence of a number of people, including members of the House, for two possible scenarios. The first was the possibility that the provisions, which were quite new to the Criminal Code, might be misused in some way. It turns out that the sections have not been used and therefore have not been misused.
The second reason was in the event that the sections were not needed. Over time it was felt that the perceived need for this type of procedure might not be there and if the conspiracy that gave rise to this legislation was to end, diminish or calm, it could be argued that these more robust procedural provisions might not be necessary and that our ordinary laws might prevail and be usable.
In my view, I do not think either of those circumstances have occurred. There has not been a misuse of the provisions and the conspiracy that gave rise to them has not ended or calmed. I will speak to that later in my remarks.
One could say that these provisions were certainly not enacted because they were not needed. If they were not needed, they would not have been enacted. In fact, the public servants and parliamentarians who generated the legislation could see the need at that time and that is why they were enacted. One could argue that circumstances have changed and that is part of the subject of debate here today.
Why were the sections needed five years ago? I think the reason relates to the fact that there was an acknowledged gap in our criminal law, our common law, that simply evolved through the passage of time. Prior to the last century, the subject of security of the state was in the hands of the king. In fact, it was listed among the king's prerogatives and the king actually did take care of that kind of business.
We have all read history books and seen the movies. The king and his forces would actually detain and arrest people who were conspirators against the state. I suppose they did not make fine distinctions in those days whether it involved a conspiracy, a sedition, a subversion or a treason. These were all components of the common law in those days. The king simply would detain the person, perhaps arrest the person and make use of the dungeon and eventually liquidate the conspiracy.
After we entered into the 20th century, with the growth of civil liberties and written constitutions, it became apparent that our citizens needed rule of law. Commonwealth jurisdictions then adopted what were then known as the war measures acts. When the state entered into a serious war conflict, it relied on special legislation called the war measures act. It was used during the first world war and the second world war.
Eventually, in the modern context, those pieces of legislation were seen to be a bit too draconian for peacetime and therefore were dropped. We no longer have a war measures act. As a result, the legislation we relied on through the Korean War and the two world wars up to about the 1960s is no longer there so that the state cannot rely on any special provisions. It must use the criminal law.
We then had the terrible events of 9/11. Roughly 300 or 400 miles from here as the crow flies, we witnessed the events in Washington, New York and Pennsylvania. Following that, other events occurred in Bali, Madrid, Philippines, London and an almost event in Los Angeles. These events have been ugly. They were terrorist attacks, killing and maiming many and creating the maximum in violence, disruption and disorder. That is the nature of the threat.
As I mentioned, we do not have the provisions that used to be contained in the war measures act, and not only do we not have those, but in years gone by the state could rely on conspiracy laws. However, with the evolution of modern evidentiary rules, it becomes very difficult to convict for a conspiracy. As a result, because the sections have fallen into disuse, not many police or crown prosecutors are good at using them and the courts are not comfortable with them.
I would also point out that we no longer have grand jury investigations. These were part of our criminal process. A grand jury would be invoked, put in place and would investigate allegations of a criminal act or a conspiracy before they actually occurred or just after they happened but before criminal charges were laid. Two or three decades ago our jurisdiction stopped using the grand jury procedure.
At the end of the day, our laws have given up on the war measures act, the law of conspiracy and grand juries. My point is that there has been, by happenstance, a gap in our law. In peacetime, our laws work quite well. We are always reforming them but our laws generally are up to the test, but when the state gets into a conflict or it is at risk, it would be my view that the state needs to rely on a different set of provisions. These sunsetted provisions in Bill C-36, the Anti-terrorism Act, were intended to fill the gap.
It is also worth noting that all of our major allies had to do the same thing. This is not just a Canadian story. Our allies in the U.K., the United States of America and Australia all had to legislate to fill this gap in their laws as well. That is a notable thing and we in the House should take note of it. This is not a circumstances peculiar to Canada.
It is important to segregate things which are not politically, legally connected. I have read some of the debates and I have seen some of the media on this. We are not dealing with investigative warrants under the Security of Information Act. We are not dealing with investigative warrants taken out by CSIS to deal with threats to the security of Canada under the CSIS Act. We are not dealing with continued detention under the Immigration Act. We are not dealing with security certificates, which are removal procedures under the Immigration Act. All of those things are outside the envelope of what we are dealing with here.
We are dealing with two sections. The first one, the investigative hearings section, is both retrospective and prospective in its stance. It can look in the rear view mirror at threats and offences and terrorist activities that happened previously, or prospectively or pre-emptively into the future. The second one is the detention with recognizance section and that is pre-emptive in perspective. In other words, it does not look backward. It is there for the purpose of pre-empting an imminent terrorist attack.
I have tried in my own layman's way to conjure up a scenario when these sections would be used. This is one thing that is actually missing from the debate and I am not sure why. I am curious why security professionals or government officials have not offered a scenario which would explain a bit more clearly how and why these sections would be used. I realize that security professionals do not want to alarm the public. They do not want to reveal existing procedures. They are under oath to keep their information inside a security loop. These are probably some of the reasons we have not had that element of this debate.
It is also notable that this country's security apparatus is populated by officials who do not have the power of arrest. This is a very important distinction here. Most people think that CSIS officials can run around and scoop people off the street. The fact is they cannot legally or otherwise. CSIS officials are not even armed. They do not arrest people. The only people who arrest in this country are peace officers, that is, police officers. All the security professionals on the job are not able to make an arrest, whether it is at CSIS or CSE or in transport. They must be peace officers before they can arrest anyone.
As we develop our intelligence data, it is important to realize that if there is going to be any pre-emption of a terrorist attack by an arrest, it would be done by a policeman, not by our security apparatus. Most of the information we get involving security and intelligence comes from the broader security and intelligence apparatus. Some of it comes from police intelligence, but the bulk of it comes from our security and intelligence apparatus and our allies. That is a very important and indispensable function.
Because we do not have a scenario here, I am going to suggest the scenario of a border attack somewhere on the Canadian border. I do not think I am being right off the page here in suggesting there could be an attack. I do not have to go into any gory details; let me just say that an attack is possible and that the attack is imminent. Let me suggest that police and authorities may not have all the data needed to obtain a Criminal Code warrant for any of the existing provisions in the Criminal Code. They may have only one or two persons identified. They may have a possible target identified. They may have detected part of a cell and a likely target. They may not be able technically to connect all of the dots necessary to obtain a Criminal Code warrant. If they can, then they can take out a Criminal Code warrant and make an arrest.
Let me suggest as well that this data has not come from their own sources, but has come from an intelligence agency or an allied intelligence agency. I will assume for the sake of my scenario that the information is credible and real.
Given the potential for massive violence and disorder, pre-emption becomes the order of the day. It becomes a priority. If people are not sure what massive violence and disorder is, they should think about what happened in London, Madrid or New York City, just to get the flavour of what this is.
Under these sections a peace officer using credible data, probably packaged by an intelligence agency, either domestic or ally, would then present the information very quickly to the attorney general of a province. If some members think that is time consuming, some of our constituents have to wait sometimes to see an MP or to see a cabinet minister, but I can say that getting through to the attorney general of a province on a matter of priority happens very quickly. I have had the pleasure of dealing with an attorney general on a matter of that nature, and it was a very prompt and a very quick turnaround time. The information is then packaged for an attorney general, who must provide consent in writing. The information is then taken to a judge, who must also sign off and issue the warrants.
The procedure for the use of these sections is judicially supervised in the beginning. It is consented to by the attorney general representing the government. It is managed by a peace officer, police officer, subject to the Criminal Code. The entire process in both sections has been judicialized. It is totally judicially supervised. There is a warrant, a judge, an attorney general, and a totally judicialized procedure. It looks awfully charter compliant to me.
It has already been mentioned that our courts have agreed that these procedures are charter compliant. An argument that the charter is a reason that these sections should not be renewed, in my view, respectfully to all of those who feel that way, is not on; I do not accept that. There may be other issues involving civil liberties that concern them, but certainly not the charter, at least not in a way that I have heard in this House or in the courts up to now.
There are some side notes worth noting. Both the committee of this House and the committee of the Senate have reviewed these provisions and have reported back confirming their support for the provisions.
Also, there exists, as I pointed out earlier, an arguable symmetry between the provisions that we have enacted here and the provisions enacted by our major allies. They operate on the assumption, and I know there was collaboration back at the time these sections were enacted, that our legislation bears some analogy to their own, that when we deal with our allies, they will have the ability to act quickly, and when they deal with us, we will have a similar ability to act quickly.
If these two sections are to lapse, it is arguable that our legislation will not be so symmetric, will not coincide with the legislation of our allies. Since the threat of conspiracy persists, and I am informed that it does, they may be curious as to why we would allow these two sections to lapse.
I would attribute the argument that the sections have not been used to good intelligence work and good luck. Both of those have contributed to that. Regarding the suggestion that the sections are not needed, one only has to look at weekend reports from the United Kingdom, where public reports are that the threat level there is as high as it has ever been.
With all due respect to many in the House who are concerned about the civil liberties aspects of this, I hope the record will show that these sections are charter compliant and that they are there for the benefit of Canadians as a whole as a protection order. I hope colleagues will take all of that into consideration in the vote.