SECU Committee Report
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The terrorist attack on the United States in September 2001 was largely unexpected and had dramatic, long-term consequences. If it did not change everything, as many have said, it clearly changed the way in which the world and geopolitical developments are understood in the post-cold war, early twenty-first century. In the immediate aftermath of the worldwide shock of these extraordinary events, legislative and other steps were taken by the international community and by many countries. These initiatives were taken at a time when the full impact and consequences of these terrorist attacks were not clear.
It is within this broader context and to meet United Nations requirements of member states that Parliament adopted the Anti-terrorism Act, largely in force by the end of December 2001. Although this complex legislation went through the entire law-making process in less than three months, the debate across Canada, in both Houses of Parliament, and within the committees considering the bill was robust and wide-ranging. Underlying this law-making process was widespread, heightened uncertainty felt by all participating in it.
There were serious concerns at that time about the range and complexity of this legislation. While it was agreed that steps had to be taken to protect Canada and Canadians at a time of threat and uncertainty, not all were convinced that this legislation was necessary and that it appropriately balanced community safety and security, and individual rights and freedoms. Concerns were expressed that the new legislation would be used inappropriately and that some elements contained within it would be imported into other parts of Canadian criminal law. There was also a strong belief by others at that time that the Anti-terrorism Act was necessary to allow for the prevention of, and protection against, terrorist activity. Within this context, it was believed by many holding this view that the legislation was reasonable and proportionate, and contained numerous safeguards strong enough to protect constitutional rights and freedoms.
It was within this climate of opinion that Parliament, in considering this legislation in the fall of 2001, determined that, because of its extraordinary nature and the difficult issues with which it dealt, it wanted to revisit the Act. Consequently, in adopting the Anti-terrorism Act, Parliament incorporated within it both a review provision and a sunset clause.
Section 145 of the Act contains a provision requiring a comprehensive parliamentary review of the provisions and operation of the Anti-Terrorism Act (this Act in its entirety) three years after it received royal assent. This review was to be completed within a year after it had been undertaken. The committee(s) was (were) to submit to Parliament a report containing a statement of any recommended changes.
Found in section 4 of the Act, section 83.32 of the Criminal Code contains a sunset clause related to investigative hearings and recognizance with conditions, also known as preventive arrests. This measure will be described in greater detail later in this report. The sunset clause applies to no other part of the Act. It was added to the Act because serious concern was expressed by many during the 2001 law-making process that these measures were largely unprecedented in Canadian law and could be used inappropriately.
The statutorily required review of this legislation was started in December 2004 by the Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety, and Emergency Preparedness. Parliament was dissolved in November 2005 before it could complete its review. This task was then taken up by this Subcommittee.
In continuing the review started by its predecessor, the Subcommittee, established on May 29, 2006 by the Standing Committee on Public Safety and National Security, has considered the evidence and submissions already received, as well as more recent information that had come to its attention.
Because the sunset clause will be triggered on December 31, 2006, the Subcommittee has decided to develop and table an interim report dealing with these two issues. It expects in this way to contribute to the debate later this year and in early 2007 about the reauthorization of these two measures.
Before setting out its findings and recommendations, the next parts of this report describe the necessary background within which they should be understood.
The sunset provision inserted into the Criminal Code by section 4 of the Act can be found at section 83.32 of the Code. This section provides that the investigative hearing and recognizance with conditions provisions of the Code cease to apply at the end of the fifteenth “sitting day” of Parliament after December 31, 2006 unless, before the end of that day, they are extended by a resolution of both Houses of Parliament. A “sitting day” is one on which both Houses of Parliament are sitting. Cabinet is to establish by order the text of such a resolution extending the application of these provisions for a period not to exceed five years in length. Such a resolution is to be debated, but may not be amended, in both Houses of Parliament. If the resolution is concurred in by both Houses of Parliament, the provisions continue to be in effect for the designated period following that date. The same process is to be followed for subsequent extensions of these provisions, if there are any.
Section 83.28 of the Criminal Code, also contained in section 4 of the Anti-terrorism Act, deals with investigative hearings. Under this provision, a peace officer, with the prior consent of the Attorney General, can apply to a superior court or a provincial court judge for an order for the gathering of information. If it is granted, the order compels a person to attend a hearing before a judge, answer questions, and bring along anything in their possession.
Any person ordered to attend such a hearing is entitled to retain and instruct counsel. A person attending is required to answer questions, but may refuse to do so, on the basis of law relating to disclosure or privilege. The presiding judge is to rule on any such refusal. No one attending at such a hearing can refuse to answer a question or to produce a thing on the grounds of self-incrimination. As well, any information or testimony obtained during an investigative hearing cannot be used directly or indirectly in subsequent proceedings except in relation to a prosecution for perjury or providing subsequent contradictory evidence.
Section 83.31(1) of the Criminal Code requires the responsible federal and provincial ministers to publish annual reports on the usage of these provisions. There have so far been no reported uses of investigative hearings. In June 2004, the Supreme Court of Canada in two companion cases related to the Air India trial in Vancouver constitutionally upheld this provision. The investigative hearing in relation to this trial was ordered but not held because the Air India trial was over by the time the Supreme Court of Canada had issued its rulings.
RECOGNIZANCE WITH CONDITIONS (PREVENTIVE ARREST)
Section 83.3 of the Criminal Code, contained in section 4 of the Anti-terrorism Act, deals with recognizance with conditions. With the prior consent of the Attorney General, a peace officer, believing that a terrorist act will be carried out and suspecting that the imposition of a recognizance with conditions or the arrest of a person is required to prevent it, may lay an information before a provincial court judge. That judge may order that person to appear before him or her. A peace officer may arrest without warrant the person who is the object of the information if such apprehension is necessary to prevent the commission of a terrorist activity.
Such a detained person must be brought before a provincial court judge within 24 hours, or as soon as possible thereafter. At that time, a “show cause” hearing must be held to determine if the person should be released or detained for a further period of time. This hearing itself can only be adjourned for a further 48 hours.
If the judge determines there is no need for the person to enter into a recognizance, the person is to be released. If it is determined the person should enter into a recognizance, the person is bound to keep the peace and respect other conditions for up to 12 months, and to not be in possession of a weapon. If the person refuses to enter into such a recognizance, the judge can order that person to be imprisoned for up to 12 months.
Section 83.31(2) and (3) of the Criminal Code require the responsible federal and provincial ministers to publish annual reports on the usage of these provisions. There have so far been no reported uses of them.
EXTEND THE PROVISIONS AND SUBJECT THEM TO A FURTHER PARLIAMENTARY REVIEW
When Parliament considered the Anti-terrorism Act in the fall of 2001, investigative hearings and recognizances with conditions attracted a lot of attention from those who believed a legislative response to the terrorist activity was not necessarily the best approach to take. They argued that these two initiatives were unknown to Canadian law, had insufficient safeguards, and could be used improperly.
More recently, those opposed to these measures have said that since the annual reports on their use have shown that there has been no recourse to either of them, they have proven to be unnecessary. The Subcommittee disagrees with those who hold these views.
Both provisions are known to Canadian law. There are equivalents to investigative hearings, which are investigatory and not intended to determine criminal liability, within the contexts of the law related to public inquiries, competition, income tax, and mutual legal assistance in criminal law matters. As well, there are provisions similar to recognizances with conditions, that do not necessarily adversely affect rights and freedoms within the criminal law related to “peace bonds” issued to deal with anticipated violent offences, sexual offences, and criminal organization offences. Both legislative measures are consistent with, and grow out of, provisions well-known to the criminal law in Canada.
Both provisions have sufficient protections to ensure that rights and freedoms are protected. In relation to both investigative hearings and recognizance with conditions, there has to be prior consent of the Attorney General, judicial authorization is required, and a judge presides over the proceedings themselves, among other protections set out in the Criminal Code.
The mere fact that a legislative measure has not been used does not mean that it is no longer required. The Subcommittee believes they should be retained within the arsenal of tools that should continue to be available to counter terrorist activities. It also believes, however, that legislative amendments are required to this part of the Code to restrict and clarify some elements of this part of the anti-terrorist law adopted by Parliament. These recommendations for change will be set out later in this report.
Canada has only had five years experience with these two measures. This has not been a long enough period of time to fully assess their necessity and effectiveness. The Subcommittee believes that these measures should be renewed for a further period of five years.
However, this conclusion alone is not sufficient. As mentioned earlier in this report, section 145 of the Anti-terrorism Act required that this legislation be comprehensively reviewed after three years experience with its interpretation and implementation. Once the comprehensive review has been completed, section 145 of the Act will become a spent provision. This means there will be no further legislative requirement for review of this Act.
Not only does the Subcommittee believe that these provisions should be retained for another five years, it also has concluded that they should be subject to further parliamentary review prior to Parliament determining if they should be extended or allowed to expire under the sunset clause at that time. At the time of the next parliamentary review proposed by the Subcommittee, Canada will have had 10 years experience with investigative hearings and recognizance with conditions, and Parliament will be in a better position to assess the continued requirement for them.
RECOMMENDATION 1
The Subcommittee recommends that the provisions related to investigative hearings be extended to December 31, 2011.
RECOMMENDATION 2
The Subcommittee recommends that the provisions related to recognizance with conditions be extended to December 31, 2011.
RECOMMENDATION 3
The Subcommittee recommends that any further extension of investigative hearings and recognizance with conditions be subject to a prior comprehensive parliamentary review of the provisions and operation of these two measures.
The fact that the Subcommittee has recommended that the two measures under review in this report be extended, and that any further extension be subjected to a comprehensive parliamentary review, does not mean that there are not changes that can be made at this time to the relevant sections added to the Criminal Code by the Anti-terrorism Act. The fact that they have not been used, have counterparts in Canadian law, and have an array of safeguards in place to protect constitutionally guaranteed rights and freedoms, does not mean that the law does not have to be changed so that it is more precise and that the use of these measures does not have to be further restrained. Quite the contrary.
RESTRICT INVESTIGATIVE HEARINGS
There is a basic difference between investigative hearings and recognizance with conditions. Investigative hearings are intended to be used in relation to terrorist acts that have already been committed and that are already under investigation, and terrorist acts that it is anticipated may be committed. In contrast, recognizances with conditions, as with “peace bonds” elsewhere in the Criminal Code, are preventive, intended to subject people to conditions and supervision so as to constrain their activity.
The Canadian Civil Liberties Association (CCLA) in its brief has expressed concern about the dual nature of investigative hearings. The CCLA accepted the necessity in some circumstances to compel testimony in an adjudicative hearing such as a criminal trial where the issues are clearly circumscribed. It stated that a distinction might be made between misdeeds already committed and perils imminently expected — the power to compel testimony should be limited to the latter situation.
The Subcommittee agrees with the position taken by the CCLA on this issue. There are already a number of investigative powers and techniques available to law enforcement agencies pursuing the perpetrators of criminal activity, which includes terrorism offences. Traditionally, Canadian criminal law has not accepted that testimony be compelled for investigative purposes, in contrast with adjudicative processes.
The Subcommittee believes that investigative hearings should only be available in relation to situations where testimony has to be compelled to prevent activities where there is imminent peril of serious damage being caused as a consequence of their being successfully carried out in whole or in part. This recommendation can be implemented by amending section 83.28(4) of the Criminal Code so as to delete paragraph (a) from it.
RECOMMENDATION 4
The Subcommittee recommends that section 83.28(4) of the Criminal Code be amended to remove paragraph (a) so that investigative hearings are only available when there is reason to believe there is imminent peril that a terrorist offence will be committed.
The rest of this report will set out a number of amendments the Subcommittee believes are necessary to the provisions in the Criminal Code dealing with investigative hearings and recognizance with conditions. Many parts of the Anti-terrorism Act deal with complex issues — this is often reflected in the drafting in many parts of this legislation. The intent of the drafting recommendations in this part of the report is to clarify and simplify certain parts of the legislation. This will tell those applying the Anti-terrorism Act what rules have to be respected in so doing and reassure Canadians that the law is clear and prescriptive of the conditions to be met in doing so.
The Subcommittee will first deal with several provisions in the Code that require redrafting so as to clarify their intent. Section 83.28(2) reads as follows:
(2) Subject to subsection (3), a peace officer may, for the purposes of an investigation of a terrorism offence, apply ex parte to a judge for an order for the gathering of information.
This can be described as the “triggering” provision that sets in motion an application for the ordering of an investigative hearing. It is essential that the language used here be as clear as possible. This provision should tell a peace officer what criteria have to be met to initiate the process. This subsection should be amended so that it is clear that the peace officer may make such an ex parte application where there are reasonable grounds to believe a terrorism offence will be committed. This language is already used in section 83.28(4)(a) and (b) setting out the grounds that must satisfy the judge before an information gathering order is issued.
There is one other issue in relation to this provision. It is not clear that the processes under the investigative hearings provisions are deemed to be proceedings under the Criminal Code. There may be release measures, delays and other procedural requirements that are not dealt with in sections 83.28 and 83.29 of the Code. In an abundance of caution, the Subcommittee believes these measures should be deemed to be proceedings under the Criminal Code.
RECOMMENDATION 5
The Subcommittee recommends that, in conjunction with Recommendation 4, section 83.28(2) of the Criminal Code be amended to add the requirement that before a peace officer makes an ex parte application to a judge, the peace officer has reasonable grounds to believe a terrorism offence will be committed.
RECOMMENDATION 6
The Subcommittee recommends that section 83.28(2) of the Criminal Code be amended so as to deem anything done under sections 83.28 and 83.29 to be proceedings under the Code.
Section 83.28(4)(a)(ii) and (b)(ii) of the Code reads as follows:
(4) A judge to whom an application is made under subsection (2) may make an order for the gathering of information if the judge is satisfied that the consent of the Attorney General was obtained as required by subsection (3) and
(a) that there are reasonable grounds to believe that
(ii) information concerning the offence, or information that may reveal the whereabouts of a person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order; or
(b) that
(ii) there are reasonable grounds to believe that a person has direct and material information that relates to a terrorism offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit a terrorism offence referred to in that subparagraph, and …
These provisions require clarification in such a way as to not restrict the intent of Parliament in respect of seeking the whereabouts of a person who has committed a terrorism offence or is suspected may commit one. This can be done by adding the words “and for greater certainty and so as not to restrict the generality of the foregoing”.
RECOMMENDATION 7
The Subcommittee recommends that the words “and for greater certainty and so as not to restrict the generality of the foregoing” be added immediately before the word “or” in section 83.28(4)(a)(ii) and (b)(ii) of the Criminal Code.
Section 83.28(5) of the Code reads as follows:
(5) An order made under subsection (4) may
(a) order the examination, on oath or not, of a person named in the order;
(b) order the person to attend at the place fixed by the judge, or by the judge designated under paragraph (d), as the case may be, for the examination and to remain in attendance until excused by the presiding judge;
(c) order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge;
(d) designate another judge as the judge before whom the examination is to take place; and
(e) include any other terms or conditions that the judge considers desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the protection of any ongoing investigation.
This provision seems to provide a discretionary power to a judge issuing an order. It is an odd formulation of this power in that prior to the last of the enumerated items, the word “and” is used rather than the more traditional “or”. Quite clearly from our understanding of this provision and the legislative intent behind it, the word “shall” should precede paragraph (a) and the word “may” should precede paragraphs (b) to (e). As well, in paragraph (a) the word “a” is used to refer to the person named in the order. This is quite clearly the wrong word in the context of the intent of this paragraph.
RECOMMENDATION 8
The Subcommittee recommends that section 83.28(5) of the Criminal Code be amended by removing the word “may” at the end of the first line and inserting the word “shall” before paragraph (a) and the word “may” before paragraphs (b) to (e). As well, the word “a” in paragraph (a) should be replaced by the word “the”.
Section 83.3(3) of the Code reads as follows:
(3) A provincial court judge who receives an information under subsection (2) may cause the person to appear before the provincial court judge.
This section, as described earlier in this report, deals with recognizance with conditions which are similar to “peace bonds” issued under other parts of the Code. There are two issues with respect to this subsection. The first relates to the use of the word “may” in this subsection. The parallel provision in section 810(2) of the Code dealing with “peace bonds” uses the word “shall”. For the sake of consistency and since the judge really has no discretion, it makes sense to use the word “shall” here as well. The second issue relates to the use of the word “the” in relation to causing a person to appear before a judge. The current drafting would seem to require that a particular judge deal with the matter. The difficulty comes if that particular judge is not available. The problem can be solved by replacing “the” by the word “a”.
RECOMMENDATION 9
The Subcommittee recommends that section 83.3(3) of the Criminal Code be amended by replacing the word “may” by the word “shall” and the word “the” by the word “a” before “provincial court judge”.
The opening words of section 83.3(8) of the Code read as follows:
(8) The provincial court judge before whom the person appears pursuant to subsection (3)…
The intent here is that the reference be to the section of the Code. Hence, the reference should be to the section in its entirety.
RECOMMENDATION 10
The Subcommittee recommends that the opening words of section 83.3(8) of the Criminal Code be amended by replacing “subsection (3)” by “this section”.