:
Good afternoon, everyone. This is meeting number 49 of the Standing Committee on Public Safety and National Security on Wednesday, December 15, 2010.
I remind everyone here today that we are being televised. Today we are continuing our study of Bill C-17, an act to amend the Criminal Code, investigative hearing and recognizance with conditions.
We're pleased to have appearing before us today the Honourable Rob Nicholson, Minister of Justice. Appearing along with the minister are his officials from the Department of Justice: Donald Piragoff, senior assistant deputy minister, policy sector, and Douglas Breithaupt, director and general counsel, criminal law policy section.
In the second hour we will have others from the department--Glenn Gilmour, counsel, criminal law policy section. Some of them will be in here for our second hour today. We apologize to our minister and to others. As you know, we had votes in the House a little earlier.
We look forward to your comments, Minister, and we will give the floor to you. Then we will move into rounds of questioning.
:
Thank you very much, Mr. Chairman.
I'm pleased to appear before this committee. My memory may not serve me correctly, but I think it's been quite some time since I've been before this particular committee.
I'm here, of course, on Bill , a bill that will re-enact the investigative hearings and the recognizance with conditions provisions of the Criminal Code. As you will know, these were part of the Criminal Code from late 2001, and they sunsetted, unfortunately, on March 1, 2007. They've been the subject of considerable review as part of the mandatory review of the Anti-terrorism Act, as well as in the form of Bill C-17's predecessor bill in the previous Parliament. Our government believes that this bill responds to the issues raised in those reviews and those debates.
Mr. Chair, let me outline what Bill C-17 proposes.
First, the investigative hearing provision would give a judge, on application from a peace officer, the power to compel someone with information about a terrorism offence that has been or will be committed to appear before him or her to answer questions and/or produce anything in their possession or control. The person would be attending as a witness and not as an accused.
Second, the recognizance with conditions provisions would allow a peace officer—one who has reasonable grounds to believe that a terrorist activity will be carried out and has reasonable grounds to suspect that the imposition of recognizance with conditions on a particular person is necessary to prevent a terrorist activity from being carried out—to apply to a judge to have that person compelled to appear before the judge, where it will be determined if reasonable conditions should be imposed on the person in order to prevent the terrorist activity.
Third, in addition to the annual reporting requirements, Bill contains a requirement that both these tools should be subject to a mandatory parliamentary review. During the second reading debate, it was suggested that a review of both houses of Parliament would be appropriate. I wish to point out that the bill provides that the review may be undertaken by a committee established by either house of Parliament, or both houses. That, ultimately, is for Parliament to decide.
Mr. Chair, I think it's essential that we outline some of the key safeguards that have in fact been added to the original investigative hearings provisions.
First, the bill provides that in all cases a judge would have to be satisfied that an investigative hearing is warranted, on the basis that reasonable attempts had already been undertaken to obtain the information by other means. Previously, the safeguard only applied to future terrorism offences, not past ones.
Second, the original 2001 legislation imposed annual reporting requirements on the use of the investigative hearing and recognizance with conditions by provincial and federal officials, including the Attorney General of Canada. However, the special Senate committee reviewing the Anti-terrorism Act recommended that the Attorney General of Canada also include, in the annual report, a clear statement and explanation indicating whether or not the provisions remained warranted. The bill would implement this recommendation, while also requiring the Minister of Public Safety to make a similar statement in his annual report.
Third, in 2006, the House of Commons Subcommittee on the Review of the Anti-terrorism Act expressed some concern about whether a person detained for an investigative hearing would be entitled to existing avenues of release under the Criminal Code. In response to this, Bill would propose, through the application of section 707 of the Criminal code, putting a cap on the period in relation to which an arrested person could be detained for an investigative hearing.
Mr. Chair, I think it's important to note that Bill would continue to allow for the holding of an investigative hearing concerning a past terrorism offence. The government believes that the past offences, in and of themselves, merit investigation. Without a doubt, they may provide crucial information with regard to the planning of future ones.
I will turn now to some of the key provisions that have been added to the original recognizance with conditions provision.
First, during the Senate committee review of former Bill S-3, the government agreed with Senator Baker's recommendation to bring the recognizance with conditions provision in line with the Supreme Court of Canada's decision in R. v. Hall, where a phrase found in one of the grounds of detention in the bail provisions of the Criminal Code was found to be unconstitutional. We agreed then and we agree now. Bill C-17 includes this change to be consistent with the Hall decision.
There were a few issues raised in previous debates, of course, that I must address. Some have argued that these provisions are not necessary because they have been rarely used. However, the fact that something has been rarely used is very different from saying that circumstances will never arise that could require its use in the future. The tools in C-17 are modest and restrained compared to anti-terrorism measures that exist in other major democracies.
Mr. Chair, in relation to the investigative hearing, some have argued that it does away with the right to remain silent, but as you know, the original legislation contains strong protections against self-incrimination in covering both use and derivative use of immunity. These protections continue in this bill, you'll be pleased to know.
It's important to note that a majority of the Supreme Court of Canada, in a 2004 constitutional challenge to the investigative hearing scheme that arose during the Air India prosecution, emphasized the strong protections against self-incrimination it provided, in fact going beyond the requirements and the jurisprudence to protect against self-incrimination.
The final issue, Mr. Chair, is whether the Criminal Code already contains provisions that could be used for terrorism-related offences such as sections 495 and 810.01. Subsection 495(1) allows a peace officer to arrest without a warrant a person who it is reasonably believed is about to commit an indictable offence. However, a police officer may, at the time of the possible arrest, not reach this threshold. Given the grave nature of the harm posed by terrorist activity, there is a need to be able to act quickly to address the threat.
In my remarks today I have attempted to highlight a few of the safeguards and improvements made to the investigative hearing and recognizance with conditions proposals while at the same time addressing some of the issues that have been raised.
This proposed legislation, in my view, is balanced, fair, and necessary.
Thank you very much.
:
Thank you very much, Mr. Chair.
Thank you, Minister, for appearing before our committee today.
Minister, one of the things I'm concerned about is the issue of oversight. If we were to continue these provisions, we'd be doing so without the government having moved at all on a series of recommendations going all the way back to Justice O'Connor, of course reinforced by Justice Iacobucci, and then reiterated in the Brown report on the RCMP pension scandal, repeated by the public safety and national security committee, and repeated by Paul Kennedy when he was then the RCMP public complaints commissioner.
Minister, where are we on this? We were told that the reason the government wasn't acting upon these recommendations that pertained to oversight.... As you should be aware, there are many departments, including Immigration, that have no oversight whatsoever. We were told the reason you were not acting was because of Justice Major's report. It's now been longer than six months since Justice Major's report has been out, and yet this government is still not acting on these recommendations, many of which are five years old.
Can you first of all inform us where we are on these oversight provisions?
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But I think my point is that for five years we've been getting vague aspirational statements that you're going to do something in this regard with respect to oversight and it has not been done.
Let me be very specific in another area. Justice Iacobucci's inquiry on Mr. El Maati, Mr. Almalki, and Mr. Nureddin, who, as a result of security and intelligence failures, faced horrific ordeals abroad, where they were detained and tortured.... Yet this government has yet to issue an apology to them and has yet to act on the conclusions of Justice Iacobucci. We know that these gentlemen still, to this day, find themselves not able to fly or to move freely in many different instances because this government refuses to act on those recommendations.
The question is, Minister, if for years now the government has not acted either on those recommendations or on the abuses contained in those cases, how can we have confidence to move forward with these measures, particularly when we're only given vague assurances that someday, somewhere, and sometime we're going to get the oversight that has been asked for during more than five years?
:
Thank you, Mr. Chairman.
Thank you, Mr. Minister, for appearing today.
One of the major parts of this bill is the part that surrounds compelling testimony. I'll read from proposed subsection 83.28(10) of the bill:
No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate them or subject them to any proceeding or penalty, but
Then proposed paragraph 83.28(10)(b) says:
no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136
which I think is perjury.
We heard testimony on Monday from Professor Craig Forcese. This is what he said to this committee, Mr. Minister:
...the Supreme Court read in certain requirements to the use of investigative hearings, the most important being an expansion of what's known as “derivative use immunity”, guaranteed in the present bill by proposed subsection 83.28(10).
While that clause extends immunity to subsequent criminal proceedings, the Supreme Court said it must go further than that. It cannot be used in any kind of proceeding, including extradition and immigration proceedings. This is a constitutional requirement, and it should be codified right on the face of the bill.
Mr. Minister, you've talked about judicial oversight. You mentioned it a number of times. We've already had some judicial oversight from the Supreme Court of Canada telling us that in this section we need to codify protection against derivative evidence being used in immigration or extradition proceedings, yet that's not in the bill.
Would you be in favour of amending the bill, Mr. Minister, to comply with the Supreme Court of Canada directions?
:
Mr. Lobb, thank you very much for that, and thank you for your interest and dedication to protecting Canadians and standing up for victims in this country. I've told you this before. I make no bones about it; I've been very appreciative of it.
You point out a very good point, that there are safeguards built into this process all the way through. I indicated to Ms. Mourani that others—the prior consent of the Attorney General of Canada or of the provinces and the fact that there is judicial oversight on these—are very important, and they form an integral component of what we are trying to do. As I indicated to them, there's a cooperation between all levels: between law enforcement agencies, the judiciary, and even the political oversight. I don't think it gets much better than that.
I would ask, when you're having a look at this legislation, that you have a look at what other—I mentioned major democracies.... And I appreciate that the Bloc had quite a bit of criticism of the way the Americans have done this, but you can go beyond the United States. Look at what the United Kingdom has done.
I believe the United Kingdom has a much tougher regime in place. Again, when we go back to the criminal law, much of our criminal law was modelled on British precedents, but if you have a look at where Great Britain is on these things, they're way ahead of us on that. That's before I even get into what takes place on the European continent.
In terms of where Canada stands, I think you will find that when you compare Canada.... And even those people who do not like the United States or the way they do business—I don't want to even get into that.... I'm not getting into that; I'm saying, look at other major democracies around the world, and I think you will be quite impressed. You'll say, yes, the Canadian approach is a very balanced, reasonable approach to a problem that we all face, and that's the problem of terrorism.
Those countries that are victims of terrorism, that are targeted by terrorist groups...I think you should have a look at what they do, and I'm pretty sure the conclusion that all members will come to, consistent with their previous recommendation to move forward on these provisions, is to say that these are a reasonable, balanced approach.
:
Yes. You've made a very good point.
Very often, in discussions, everyone refers to 9/11. But Mr. MacKenzie, you're quite correct. The recent Air India report underscores the fact that this country was targeted for terrorist activity, major terrorist activity, years before September 11, 2001. And again, in terms of our response, we have to have tools like the tools you have before you.
As I say, it's not just your government or me or the Prime Minister who believes this. There's widespread support to get these tools on the books. They were written by the previous government, who knew and understood that we had to have these tools on the books. Law enforcement agencies support them. We have received judicial approval for part of these particular proposals that we have.
It's my hope, and certainly the hope of everybody, that we don't have to use these. Of course, I would hope that would be the case, but we live in a world that is subject to terrorist activity. No country is immune from it. The laws have to be on the books.
I asked people who were looking at this to check what other major democracies were doing, that they would came back and say, yes, the Canadian approach is very reasonable. Those safeguards are very important; they're very reasonable as well, and this is exactly the kind of legislation we have to have on the books in Canada to protect Canadians.
Under the existing law, section 495, which entitles a police officer to arrest a person who is “about to commit” an offence, the police officer has to have reasonable grounds to believe two things: one, that an offence will be committed, so that an offence is “about” to be committed; and two, that the person who is to be arrested is the person who is going to commit the offence. It's a high standard: there are reasonable grounds to believe both criteria, both facts, that the offence will be committed and, secondly, that the person is the potential perpetrator.
Under the peace bond provision, the standard is, again, reasonable fear that a particular person will commit a terrorist offence or will commit other 810 provisions: a sexual offence or an organized crime offence. Again, there are reasonable grounds to fear or to believe that the particular person will engage in particular conduct.
Under the proposed bill—
:
Under the bill, the test with respect to the preventative arrest for the purposes of attendance before a judge is that the police officer has to believe “on reasonable grounds”--again--“that a terrorist activity will be carried out”. But what's different from the current law is that there may not be reasonable grounds to believe who the perpetrator is. So that's why this fills a gap.
With respect to the second stage, the bill provides that the police officer has to have reasonable grounds to suspect that arresting a person will “prevent” the activity. That doesn't mean that the person who's arrested is the perpetrator. It may be other individuals who are involved.
For example, the scenario that has been asked about before is where this provision would be used. One can imagine a situation where, say, there's a demonstration, the police have reasonable grounds to believe that a bomb is going to be detonated during the course of the demonstration—not by the demonstrators, but by other persons—and the actual perpetrators are not known. They know it's going to happen as a result of intelligence. But they also suspect a number of individuals who have been agitating, who have been making statements, and they may have reasonable grounds to suspect that these individuals know something, that they have assisted others, and by bringing them before a judge, that does two things: one, it puts them under the judicial control of the judge; and two, it also sends a clear message to others that the police are aware of a conspiracy or possible attempt. It's a way of publicly indicating that they know something is about to happen.
:
Thank you very much, Mr. Chair.
I always begin by letting the folks at home know what we're doing and why we're doing it. Having been on the subcommittee on anti-terrorism subsequent to the sunset clause and our government taking power, I can tell you, for those folks who don't know, that the reason we have an anti-terrorism act is a direct result of a United Nations resolution. I believe it was resolution 1373, which was in 2001. It responded directly to the 9/11 act of terrorism that the whole world responded to.
That resolution demanded that member nations take certain steps within 90 days to prevent the financing of terrorism, to protect their citizens, to make their borders more difficult to be infiltrated by terrorists, etc. As a result, Parliament subsequently passed the Anti-terrorism Act under the previous government.
My question flows from some of those regulations. Part of that Anti-terrorism Act gave certain powers that had never been used before or had never even been contemplated before, powers that some folks thought ran contrary to the Canadian Charter of Rights and Freedoms. Subsequent to that, the Supreme Court ruled--I believe it was prior to 2007--that this section needed some improvement, and it gave the government a certain amount of time.
As a result of that time to correct--and you can correct me if I'm wrong, and there may be some adjustments to my process--the reason you're here today is that the Government of Canada is responding to the directives of the Supreme Court to ensure that the part of the law we're dealing with, the Anti-terrorism Act, does indeed comply. The Supreme Court did mention--and feel free to elaborate on that--that while it does contravene the Canadian Charter of Rights and Freedoms, there's a certain allowance for it because of the history and nature of terrorism.
There are provisions and protections, and the minister went into some of them. I suppose I'm saying that the proposed provisions were crafted with due regard to the Charter of Rights and Freedoms.
Would you, once again, let us know some of the balances or checks on the state to ensure that a person who has been detained or is subject to recognizance with conditions or investigative hearings has protections that were built in as a result of that Supreme Court dictum?
Let me first start by answering the last question, Ms. Mourani's question, because it leads into yours.
Have the provisions ever been used? Yes, one of the provisions was used. That was the investigative hearing provision. It was used in the course of the Air India trial; an investigative hearing was commenced. During the course of the hearing, a challenge was made that the provision was unconstitutional. The issue went all the way up to the Supreme Court of Canada. The Supreme Court of Canada held that the provisions concerning investigative hearings were constitutional.
I believe the case that you were referring to was dealing with security certificates. It was the Supreme Court, on security certificates, that said that the law was unconstitutional, but it gave Parliament some time.
The Supreme Court said that the provision in this bill concerning investigative hearings is constitutional. They did make some suggestions—which I think Mr. Davies indicated—concerning interpretation, which are the law. They could be codified, but they are the law whether codified or not.
In terms of the protections, the minister reiterated a number of them.
Of the protections prior to the use of the powers, first, there's political control: requiring the consent of the Attorney General of Canada or of a province. These powers have judicial control; they need the consent of a judge, either before or after the power is exercised. And all these powers are subject to a sunset clause.
But they're also subject to a review being undertaken by a committee of the House of Commons or of the Senate at any time within the five-year period. The minister also indicated that there must be an annual report tabled with Parliament with respect to the use of these powers, and because it's a report made to Parliament, any parliamentary committee then could examine one of the ministers with respect to the use of those powers.
So those are the judicial safeguards as well as the accountability safeguards.
:
Thank you, Mr. Chairman. We're in good hands, then.
I too want to explain a bit of our position to the Canadian public. I think it's quite clear to everybody looking at this bill that it proposes to make two substantive changes to what Canadians have come to expect from our legal system, which are the right not to be forced to give evidence and have that evidence used against the person, and second, the right not to be detained by the state for a period of time that in this case, I'm going to show you, can be at least four days, and then be let go without any arrest or charge.
I'm going to deal with the latter one first.
Mr. Piragoff, I believe you have said several times that a person has to be brought before a provincial court judge within 24 hours, but that, I put to you, sir, is not true. The legislation says that a person must be brought before a provincial court judge in 24 hours or as soon as feasible thereafter, if a provincial court judge is not available.
So my first question is this. It is possible, is it not, sir, that a person might not be brought in front of a provincial court judge for more than 24 hours? That's possible, is it not?
I have several questions, but first I want to say that my background is construction, not law.
Across the table we've seen an aggressive labour lawyer trying to pin you down on certain things that may or may not be included in existing legislation. I'd like to take the approach of asking you some questions that were brought up in testimony from our last group of witnesses. Professor Forcese, from the University of Ottawa, has done a paper and some extensive study on the subject of whether or not this bill covers off some of the eventualities that could happen with the threat of terrorism. He admits there is a gap in the current legal law enforcement tools that this bill would address. He says it's a gap, albeit a small gap, but it's gap. Then, when the rest of the panel was surveyed on whether there was a gap based on his analysis, all disagreed that there was a gap.
As another side note, when asked if they thought terrorism was a real threat in Canada, all but one agreed that it was. Often the threat that we've seen--for example, with the Toronto 18--is that people are already committing acts. The police were aware of those acts as a result of that, but had they had some prior knowledge and been able to investigate prior, they might have stopped those acts.
That said, as the government and as your department, we've obviously looked at the laws of the other major countries in the world that have experienced real terrorist attacks, including Great Britain and the like, and the United States. Great Britain has 28 days, as you know, in terms of detention time.
I'd like your general comments, sir, on our law as it compares to those of other modern western democracies in terms of whether it gives the police the tools they need to close the gap that was talked about by one of our last witnesses. Also, when the department came to the determination of the types of clauses that would be included, were they evaluated against other countries and their existing laws?
:
As you indicated, the U.K. legislation provides for preventive detention of up to 28 days. Australian criminal law is a state issue as opposed to a federal issue. It varies from state to state, but in many states in Australia, preventive detention can be for up to 14 days.
Our bill is not focused on detention. It's focused on arresting the person, bringing them before a judge, and then releasing them with or without conditions. It's not presupposed that a person will be detained for a long period of time, so that's a major difference.
With respect to the investigative hearing, the United States has the grand jury system. Canada had the grand jury system up until the mid-1960s. It permits a person to be brought before a judge in order to be examined under oath to provide testimony prior to a charge. That does not exist in Canadian law anymore, although it did under the grand jury when we had it.
The one exception where it does exist under Canadian law is under the Mutual Legal Assistance in Criminal Matters Act. That act provides for a judge to order a person to attend before him or her to testify under oath for the purposes of obtaining evidence to send to a foreign country pursuant to their judicial request to provide mutual legal assistance.
Those are the comparisons to other legislation, as well as some other past or current precedents that we have in Canada.