:
I call the meeting to order.
Good afternoon everyone. This is meeting number 59 of the Standing Committee on Public Safety and National Security, on Monday, November 19, 2012.
Today our committee is commencing our study of Bill
Our first witness is the Hon. Rob Nicholson, Minister of Justice. He is accompanied by Mr. Donald Piragoff, senior assistant deputy minister of the policy sector at the Department of Justice. I see Mr. Glenn Gilmour of the criminal law policy section will also be with us.
We want to thank the minister for coming to the public safety and national security committee. It's an honour. We are frequented by the Minister of Public Safety here, but a special welcome to you today, sir. We thank you for assisting us with our study of this bill and providing us with the appropriate officials from your department to help us understand it better.
I also understand you will be with us for one hour. You have an introductory statement on Bill and then you will take some questions.
Welcome. We look forward to your comments.
:
Thank you very much, Mr. Chair.
You're right: I'm not often before this committee. In fact, I don't remember ever appearing before this committee, but the honour is certainly mine to do so.
Thank you very much for the opportunity to talk about the Combating Terrorism Act, Bill . It proposes to amend the Criminal Code to ensure that Canada has the tools it needs to combat terrorism and to protect its citizens.
The legislation proposes to re-enact the investigative hearing and the recognizance with conditions clauses. In addition, it will create a new offence of leaving or attempting to leave Canada for the purpose of committing certain terrorism offences.
These tools were first created as part of the Anti-terrorism Act. The investigative hearing was intended to help in the investigation of past or future terrorism offences, while recognizance with conditions was intended to disrupt those who were in the planning stages of an attack.
The proposed investigative hearing provision would allow the courts to compel a person who has information regarding a past or future terrorism offence to appear in court and to provide the information under questioning.
The proposed recognizance with conditions provisions would require a person to enter into an agreement, before a judge, to abide by reasonable conditions imposed by the judge in order to prevent the carrying out of a terrorist activity.
The investigative hearing and recognizance with conditions, when enacted, would contain new safeguards in addition to the numerous safeguards originally enacted in 2001. Let me list some of them.
First, for the investigative hearing, the consent of the relevant attorney general would be required. Second, the person compelled to appear in court would have the ability to retain and instruct counsel at any stage of the proceedings.
In all cases, reasonable attempts would first need to be made to obtain the information by other means. The information provided by the person or anything derived from that information would be generally inadmissible against him or her in any criminal proceeding.
If a person were arrested with a warrant to attend the investigative hearing, there would be clear limits, set out in the bill, as to how long the period of detention could be.
The federal and provincial attorneys general would be required to report annually on any use of the investigative hearing provision, and the annual reports of the Attorney General of Canada would include an additional requirement that he or she provide an opinion, supported by reasons, on whether the provision should remain in force.
Now I'll go to recognizance with conditions. Again the consent of the relevant attorney general would be required.
A warrantless arrest of a person could only be made in very limited circumstances, such as where the laying of information before a judge has been rendered impractical by reason of exigent circumstances and the peace officer suspects, on reasonable grounds, that the detention of the person is necessary to prevent a terrorist activity.
If the person were arrested without warrant, the officer would either have to lay information before the judge, generally within 24 hours, or release the person, and before laying the information, the peace officer would have to obtain the consent of the attorney general.
A person detained in custody would have to be brought before a provincial court judge without unreasonable delay, and in any event within 24 hours of arrest, unless a judge was not available within that period of time, in which case a person would have to be taken before a judge as soon as was feasible. The hearing would then have to be held within 48 hours.
The Minister of Public Safety and the minister responsible for policing in each province would be required to report annually on the arrest without warrant power, while federal and provincial attorneys general would be required to report annually on any use of the other elements of this regime.
The annual reports of the Attorney General of Canada and the Minister of Public Safety would include an additional requirement that they provide an opinion, supported by reasons, on whether the provisions should remain in force.
As well, Bill proposes the creation of new offences for leaving or attempting to leave Canada, or going or attempting to go on board a conveyance with the intent to leave Canada for the purpose of knowingly participating in or contributing to any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to commit a terrorist activity, knowingly facilitating a terrorist activity, committing an indictable offence on behalf of a terrorist group, or committing an indictable offence that constitutes a terrorist activity.
These new offences are intended to strengthen the ability of law enforcement to arrest, and the crown to prosecute, a person who has left Canada or is attempting to leave Canada for the purpose of committing these terrorism offences.
Finally, Bill also responds to the parliamentary review of the Anti-terrorism Act that was conducted by committees of the House of Commons and the Senate from 2004 to 2007 and proposes some changes to section 38 of the Canada Evidence Act to ensure that it accords with recent jurisprudence in that area.
I would like to address some of the criticisms made regarding investigative hearings and recognizance with conditions.
One criticism has been that the tools are unnecessary because to date the current criminal law provisions designed to combat terrorism have proven to be sufficient.
If we were to approach life based on the assumption that because no harm has actually befallen us there would be no need to prepare for the possibility that harm might arise, ours would be a far different world. That is not the case. That is not the world in which we live. We know that we have to take steps to reduce the possibility of harm that can suddenly arise, and it's only prudent to take steps to try to prevent such a risk from arising. The fact that no harm has yet arisen or that the proposed amendments have not been utilized is insufficient reason to conclude that these measures are not needed.
Some have claimed that investigative hearing offends the right to remain silent. This argument was expressly made in the 2004 constitutional challenge to the investigative hearing and was rejected by the Supreme Court of Canada. The court noted that certain elements of the protections against self-incrimination in the investigative hearing legislation even go—and I quote—“beyond the requirements in the jurisprudence, and provide...absolute derivative use of immunity, such that evidence derived from the evidence provided at the judicial investigative hearing may not be presented against the witness in another prosecution.”
Let me address another criticism made of Bill . The bill proposes to create four new terrorism offences of leaving and attempting to leave Canada for the purpose of committing terrorism offences outside the country. There are those who have expressed the concern that the creation of these offences could violate Canada's international obligations in the event that someone who is charged with any of these crimes is a young person—that is, someone who is under 18 years of age—but, as you know, there is a specific piece of legislation that applies to young persons charged with crimes, and that is, of course, the Youth Criminal Justice Act. Bill S-7 does not change that in any way. In fact, the Youth Criminal Justice Act specifically states that despite any other act of Parliament, other than the Contraventions Act and National Defence Act, it has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a young person.
The Youth Criminal Justice Act recognizes that the youth justice system must be separate from the adult system and be based on the principle of diminished moral blameworthiness of youth. It emphasizes rehabilitation and reintegration, just and proportionate responses to offending, and enhanced procedural protections for youth. It contains a number of significant legal safeguards to ensure that young people are treated fairly and their rights are protected. It also sets out specific youth sentencing principles and options.
Thank you very much. I look forward to any questions you may have.
:
The “recognizance with conditions” provisions require an individual to enter into an agreement before a judge to abide by reasonable conditions imposed by the judge in order to prevent the carrying out of a terrorist activity.
This, along with the investigative hearings and the new provisions with respect to intercepting someone leaving the country for the purpose of participating or assisting in terrorist activities, is part of the preventative measures. These are measures put in place to stop the kind of activity that can terrorize a community or a country. They are put in place to prevent other very serious crime from happening.
I think they're important. That's why they were placed in there, in the original legislation, approximately 10 years ago now. They were there so that the police would have the tools to break up the kind of activity that we have witnessed in the world. I think they're important measures. I know those in the law enforcement community are very interested in making sure they have this measure. People involved with fighting terrorism are supportive of it.
As you quite correctly pointed out, they did lapse in 2007. The legislation provided that unless Parliament renewed them or extended them.... I was justice minister at the time, and my understanding was that we were going to be able to at that time, but that wasn't the case.
We continue to believe in the importance of them, Mr. Chair, so I'm pleased that they've now been passed by the Senate. Certainly it's my hope that we will continue, that they'll be passed completely by Parliament, and that they'll be part of the tools that law enforcement agents will have to break up terrorist activity.
:
There is. That is one of the issues that will be before the courts: to see whether in fact this was reasonable and other tools were investigated and other attempts looked at.
It's a question not just of the investigative officer but also, as I indicated, with the consent of either the provincial or the federal attorney general. As I pointed out in my opening remarks, a number of safeguards have been put in place in addition to the ones that were there 10 years ago, when this was brought before Parliament.
I think these are reasonable measures, because ultimately we all have a stake in trying to prevent and break up possible terrorist activity. That's the world in which we live. We understand that. The tools have to be there. However, as you've pointed out, there's a requirement to look at these acts in a reasonable manner; that will be overseen by the court. It will need the consent of the Attorney General.
As I pointed out as well, these won't be operating in a complete vacuum, in the sense that there will be no oversight. No: the attorneys general will make annual reports and assessments; Parliament can, on a regular basis, have a look; and the public will know when and if these measures have been used, and their usefulness.
Again, I think these are important tools to have.
:
These measures were enacted to meet the challenges that the world faced in the early part of the 2000s. As you know, these were looked at and a number of people came forward in 2007. You might want to have a look at this. It was proposed by the government at the time that we would continue. We had a look at them ourselves and we had discussions, as I do when I go across this country. I always meet with law enforcement agencies, I meet with attorneys general, I meet with people who are concerned about terrorism or crime in this country.
What we have done is strike that balance that you mentioned in your question to me. You'll see the safeguards are there throughout. There are more safeguards with respect to this provision than there are to ordinary criminal law provisions, quite frankly. You can be charged under the Criminal Code, and the consent of the federal attorney general or the provincial attorney general or the agents of the attorney general isn't needed. Here you need that consent, so this is an added protection over and above what might normally be considered.
So have we struck the right balance? Yes, I believe we have, and I think your investigation will confirm that. I've pointed out half a dozen of them to you, and when you have a look at the legislation, I think you'll come to the same conclusion that I and my colleagues have, which is that this is very reasonable and these tools are good to have.
The fact that they're not necessary does not dissuade me that these are important tools. If we were the subject of a terrorist attack that could have been prevented had tools like these been there, we would be subject to criticism, as you can imagine, and the horror of the Canadian public, saying that every step has to be taken to prevent such things.
I'm very interested in changes to our laws that help prevent tragedy and crime. You perhaps had a look at the provisions with respect to protecting children. The two new offences we put in there were designed to break up any kind of activity before the child gets molested, in terms of two adults conspiring with each other or if the individual gives sexually explicit material to a child. Again, people ask, “Why is this necessary?” Well, we want to stop the activity before the child is actually abused. This is in that same line. We want to have the tools in place to break up and investigate possible terrorist activity before it actually happens.
Again, I think these measures are very reasonable. They were reasonable 10 years ago when the then government introduced them, and this is our fourth attempt, as you may know, Mr. Chair, to introduce them. I think these are important tools to have, and with respect to the balance you indicated, I outlined half a dozen in my initial comments to you. I think your analysis and study of this will confirm that.
:
Again, these are additional powers that are given to the court. They are in direct response to the terrorist threat that we face.
Indeed, that was the rationale back 10 years ago, when a previous government enacted these measures. The rationale was that special powers are necessary to deal with what we have to face in the world.
At that time there was a five-year sunset clause on it. I have no problem with that, if you're proposing an amendment to get rid of—
Mr. Francis Scarpaleggia: No—
Hon. Rob Nicholson: I was just finding some clarification, Mr. Scarpaleggia, but I think it's reasonable to put in a five-year sunset clause.
Not only that, but as I indicated in my opening comments, as Attorney General of Canada I will give an annual report on this, and for provisions specific to the public safety minister, there will be an annual report on that.
I think that's appropriate and fair, but if, five years from now, you think without question that these measures continue to be necessary, you might want to have a private member's bill to say that we don't need to be looking at these provisions every five years. We would certainly look carefully at that.
:
Thank you, Chair, and thank you, Minister, and your officials, for being here.
Some people suggest it's not needed because it hasn't been used—and Mr. Scarpaleggia's airbag analogy was very apt, I thought—or that this is aimed at the U.S., that there is no threat to Canada, that 9/11 didn't happen here. Well, there are 24 Canadian families who might disagree with that.
Let's talk about absolutes. There's an absolute certainty, in my view, that there is a terrorist threat alive in the world today. One of my other hats is as the Canadian co-chair of the Canada-U.S. Permanent Joint Board on Defence, and one of the things we look at is critical infrastructure. Canada and the U.S. are basically one grid of critical infrastructure, whether it's pipelines, power grids, telecom, media, Internet, whatever. Somebody could get at the U.S. by getting at Canada, very easily, so if we leave ourselves vulnerable by not having these kinds of safeguards in place, are we not posing a threat, in fact, to the U.S. because they can get at those kinds of critical infrastructures by attacking Canada and not necessarily directly attacking the U.S.?
:
That is very correct, and thank you, Ms. Findlay, for setting that out. I think that's important. I'm often asked this question whenever we have changes to the criminal law of this country: yes, but in some other jurisdiction, here is what they're doing.
I appreciate that. Each country, each jurisdiction, has to have a look at these issues and come up with a plan. Countries with legal systems similar to our own are continuously looking at these things, and you pointed out that in the British example an individual can be detained for 14 days; up until very recently that was 28 days. They're having a look at it themselves.
That said, it's a little bit like bail hearings. We want to get people before the criminal justice system. We want to get them into court. We want them to have that opportunity to make sure their rights are protected. Again, I pointed out to you that the individual has the right to counsel. I think that's only appropriate and fair in our judicial system.
Getting somebody before a judge in an expeditious manner is critically important. I think that's fair on every level. We want to have information. We want to protect Canadians against terrorist activity, and at the same time we want to make sure this is a reasonable process that protects the rights of an individual and at the same time protects the rights of Canadians.
In that sense, it's dissimilar to what's taking place in Great Britain and Australia, but nonetheless this is a very reasonable response with considerable safeguards. Your analysis, Mr. Chair and committee members, will confirm, I believe, the comments that I have made: that this measure can and should be brought back into the laws of this country.
It was on the books for five years after it was passed, and not by this government. I wish we were in power for the last 10 years, but that wasn't the case. We didn't bring it in, but that said, I think these were important measures to have and I wish you and committee every success on that. However, I believe your analysis will confirm that these measures are very reasonable and are just what this country can and should have on its books.
:
Thank you, Mr. Chairman.
As the minister indicated, all the rights in the Canadian Charter of Rights and Freedoms are subject to section 1 of the charter, which provides that the rights are guaranteed, subject to reasonable limits imposed by a free and democratic society. The view of the government is that it is a reasonable limit upon Canadians' constitutional rights to enter, remain in, or leave the country if they are leaving the country for the purposes of facilitating, participating in, or actually committing a terrorist offence.
This is not simply a question of people leaving to go to a foreign country to commit terrorist acts. It may be that they're going there to obtain training and then coming back to Canada and actually threatening the lives and safety of Canadians. They are trained by a terrorist group, and then they're able to use that training to threaten the safety of Canadians.
In the context of public safety there's a strong case to be made that it is a reasonable limit to prevent people who are intentionally leaving the country not for a holiday and not for personal purposes, but for terrorist purposes. We should be able to stop them.
We stop people from coming into the country if they have criminal designs or criminal purposes. We stop people from coming into the country if they have terrorist purposes. Our immigration law provides that. The government believes it's also a reasonable limit on people who leave this country for terrorist purposes, and even come back to this country. That is also a reasonable limit. It's a balance, as the minister indicated.
:
The types of conditions are very much contextual to the circumstances. You gave examples of misuse of a computer. Parliament has dealt previously with situations of imposing conditions on people who use computers to communicate with children for the purposes of luring, for example, and part of that was actually a power enacted by Parliament to provide conditions or prohibitions on people's use of computers.
Likewise, if the activity involves supporting terrorist groups by distributing material, etc., or being involved on the Internet, if it's reasonable that the person not go on the Internet or only go on the Internet with supervision, that could be a reasonable condition. It really depends on the circumstance: if the conduct of an activity has nothing to do with the computer, then prohibiting someone from communicating on the computer would not be reasonable. It really comes down to that question.
The other question you asked me was about the purpose of the recognizance with conditions. As the minister indicated, the purpose of that provision is not to detain a person. It's not preventative arrest. It is recognizance with conditions.
The purpose is to put a person under judicial control. It's to put some conditions on the individual. It is not to detain them for a long period of time, hoping that in that period of 14 days you'll put your case together and get enough evidence such that you can actually lay charges. That's not the purpose of this measure. It's very much, as the minister said, a provision to disrupt activity for people who have not yet committed a crime, or for whom there is not enough evidence to charge them or others. It's a means of putting some judicial control on the individual.
Of course, once you put judicial control on this individual, you've also indicated to others that the authorities are essentially investigating, and they will know that something is up. It may deter others from actually participating and going further with their ideas.
:
With regard to the recognizance with conditions, it was the special Senate committee that recommended that the annual report for both the investigative hearing and the recognizance with conditions be an expanded annual report and that the Minister of Justice, or in this case the Attorney General of Canada, should be required to provide a statement along with reasons as to why he considers these two powers need to be renewed. We've taken that recommendation, and it's now in Bill .
The House of Commons report recommended that the powers be extended for five years, and that recommendation is found in Bill . As a result of the initial first attempt to bring back these provisions as they expired, when it was in the former iteration of Bill S-7, the Senate amended the legislation to make sure that there was a mandatory parliamentary review of these two powers before the powers expired. That amendment was made to Bill when it passed through the Senate, and that amendment continues to be part of this bill as well.
With regard to the investigative hearing, as you know, substantial safeguards were already in existence when the original legislation was passed in 2001, including the very robust use and derivative use immunity provision that the minister talked about earlier.
In addition, in order to respond to the recommendations of the House of Commons committee, which issued its own special report on these two powers in 2005 or 2006, I believe, we made a couple of extra changes.
The first was in relation to the requirement that had previously been existing in relation to using the investigative hearing to obtain information about a future terrorism offence. The condition was that you had to use reasonable attempts to get the information by other means; we decided to expand that not only to future terrorism offences but also to past terrorism offences, so for every case in which you want to use the investigative hearing, whether for a past or future terrorism offence, there would have to be an effort made by the police to obtain that information by other means. Reasonable attempts must have been made to obtain that information by other means.
Another change we made was because of the concern that was expressed before the House of Commons committee that was examining these two powers in the Anti-Terrorism Act in particular. There was a concern in relation to the investigative hearing. There is a power to arrest with warrant someone who is about to abscond, for example, before attending the investigative hearing. The question was raised that if you arrest that person by means of a warrant, how long can you detain that person under that warrant before the person can be released?
We wanted to make absolutely certain that the limit on detention was very clear in the code, so we put in the same time limit for detention for witnesses before a criminal trial. We plugged that into the investigative hearing provision, and that's the section 707 of the Criminal Code under which a witness can be detained. For example, if a witness is served with a summons to testify at a criminal trial and there is evidence that the person is about to leave without testifying, the person can be arrested by means of a warrant or arrest. The maximum period of time, though, that the witness can be detained is for a total of 90 days--30 days basically, and subject to judicial review, up to a total of 90 days. There is now that additional protection.
:
If you don't mind, I'll try my hand at answering that question.
With regard to the comparative aspect first, I think it is fair to say we are either equivalent or more restrained in our scope in terms of investigative hearing procedure.
The United States, of course, has the grand jury system, whereby a person could be compelled to testify in order to determine whether a criminal charge would be laid.
Australia has the equivalent of an investigative hearing system, which to some degree is similar to ours but in some respects is also different from ours. Their investigative hearing process is set out in their security intelligence legislation, but they have something equivalent to ours.
A major difference is in the United Kingdom. Mr. Piragoff mentioned that our investigative hearing process does not entail any criminal penalty relating to any offence at all. It's just to have someone come before the judge and answer questions posed to them by the crown. In the United Kingdom there is a specific offence of failing to disclose information about a possible terrorism offence, or for that matter even a past terrorism offence, to a police constable. Failure to provide that information is itself a criminal offence that's set out in an amendment to their Terrorism Act 2000. To that extent, it's fair to say that the United Kingdom goes even more strongly towards punishment and criminalization than we do.
I'm sorry; I forgot the first part of your question.
:
Well, this is probably akin to the U.K. offence in that it's part of an attempt to deal with the issue of youth being radicalized and leaving Canada either to obtain further training somewhere by attending a terrorist training camp or to go to other countries to engage in terrorist activity of some kind.
As has been mentioned, four new terrorism offences are suggested by this bill.
One is the offence of leaving Canada or attempting to leave Canada for the purpose of committing the offence in section 83.18 of the Criminal Code, which is the offence of knowingly participating in or contributing to any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to commit a terrorist activity.
The second is leaving or attempting to leave Canada for the purpose of knowingly facilitating a terrorist activity.
The third is attempting to leave Canada or leaving Canada for the purpose of committing an indictable offence outside of Canada for the benefit of, in association with, or at the direction of a terrorist group.
The final one is attempting to leave Canada or leaving Canada for the purpose of committing an indictable offence that constitutes, in the particular facts of the case at hand, a terrorist activity. In other words, the indictable offence is one that would fall within the definition of terrorist activity found in section 83.01 of the code.
What these offences do is provide an appropriate punishment for trying to leave Canada in order to commit those various terrorism offences. As I believe the minister mentioned, one of the concerns—certainly it's mentioned as well in the most recent CSIS annual report—is the issue of persons leaving Canada to go elsewhere in order to engage in terrorist activity, such as persons leaving to join al-Shabaab in Somalia. These cases help to focus law enforcement on these particular offences, and hopefully it will have a denunciatory effect in making it clear that Canadians see this conduct as something that should be clearly criminalized, with a suitable punishment.