SECU Committee Report

Government Response to the Seventh Report of the Standing Committee on Public Safety and National Security

Subcommittee on the Review of the Anti-Terrorism Act

Rights, Limits, Security: A Comprehensive Review
of the Anti-Terrorism Act and Related Issues

APPENDIX A — RECOMMENDATIONS CONTAINED IN THE FINAL REPORT OF THE HOUSE OF COMMONS STANDING COMMITTEE ON PUBLIC SAFETY AND NATIONAL SECURITY: SUBCOMMITTEE ON THE REVIEW OF THE ANTI-TERRORISM ACT

Recommendation 1

The Subcommittee recommends that the definition of “terrorist activity” contained in section 83.01(1) of the Criminal Code not be amended.

Recommendation 2

The Subcommittee recommends that the Criminal Code be amended to make it an offence to glorify terrorist activity for the purpose of emulation. Any such amendment should require the consent of the provincial attorney general to a prosecution, require the prosecution to prove that the accused intended to encourage emulation by the glorification of terrorist activity, and make available to the accused special defences similar to those included in section 319(3) of the Code.

Recommendation 3

The Subcommittee recommends that section 83.18 of the Criminal Code be amended so as to ensure that counsel providing legal services to those accused of terrorism offences can properly act on their behalf without fear of being charged themselves with terrorism offences.

Recommendation 4

The Subcommittee recommends that, unless the context dictates otherwise, the words “the Government of Canada or of a province” be replaced by the words “any government in Canada” throughout the provisions enacted or amended by the Anti-terrorism Act.

Recommendation 5

The Subcommittee recommends that the words “a person” and “the person” be replaced, respectively, by the words “an entity” and “the entity” in clause (b)(i)(B) of the definition of “terrorist activity” in section 83.01 of the Criminal Code.

Recommendation 6

The Subcommittee recommends that the words “an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes” be removed from paragraph (c) of the definition of “terrorism offence” in section 2 of the Criminal Code.

Recommendation 7

The Subcommittee recommends that the words “an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, where the act or omission constituting the offence also constitutes” be removed from paragraph (c) of the definition of “terrorism offence” in section 2(1) of the National Defence Act.

Recommendation 8

The Subcommittee recommends that the words “commit (i) a terrorism offence, or (ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence” be replaced by “carry out a terrorist activity” in paragraphs 83.18(3)(c) and (e) of the Criminal Code.

Recommendation 9

The Subcommittee recommends that the words “facilitate or” be added before the first instance of the words “carry out” in sections 83.21(1) and 83.22(1) of the Criminal Code.

Recommendation 10

The Subcommittee recommends that the words “Every person” be replaced by the words “Every one” in the English versions of sections 83.21(1) and 83.22(1) of the Criminal Code.

Recommendation 11

The Subcommittee recommends that the words “any person” and “the person” be replaced, respectively, by the words “any entity” and “the entity” in sections 83.21(1), 83.21(2)(c) and (d), 83.22(1), and 83.22(2)(c) and (d) of the Criminal Code.

Recommendation 12

The Subcommittee recommends that section 83.23 of the Criminal Code be replaced by the following: “Every one who knowingly harbours or conceals any person whom he or she knows to be a person who:

Further, the word “cache” should be replaced by the word “recèle” in the French version of the section.

Recommendation 13

The Subcommittee recommends that the Criminal Code be amended to provide that every one who knowingly participates in a terrorist activity is guilty of an indictable offence and liable to imprisonment for up to life.

Recommendation 14

The Subcommittee recommends that the words “in addition to any penalty imposed for the commission of the original indictable offence” be added at the end of section 83.2 of the Criminal Code.

Recommendation 15

The Subcommittee recommends that section 83.25 of the Criminal Code be amended so that the Attorney General of Canada is required to make an application to a court in order to commence proceedings in a territorial division that would not be the one normally used, or continue them in a different territorial division in Canada after they have already been commenced elsewhere in Canada. Any such amendment should set out the acceptable reasons for choosing a different location for the proceedings and the factors to be considered by the court in considering the application.

Recommendation 16

The Subcommittee recommends that section 83.1 of the Criminal Code be amended so as to exempt from its requirements legal counsel or law firms when they are providing legal services and not acting as financial intermediaries.

Recommendation 17

The Subcommittee recommends that section 83.08 of the Criminal Code be amended to allow for a due diligence defence.

Recommendation 18

The Subcommittee recommends that the words “wilfully and” be removed from section 83.02 of the Criminal Code.

Recommendation 19

The Subcommittee recommends that the words “without lawful justification or excuse” be added after the words “directly or indirectly” in section 83.03 and after the word “who” in section 83.04 of the Criminal Code.

Recommendation 20

The Subcommittee recommends that the words “a person” be replaced by the words “an entity” in the opening words of section 83.03 of the Criminal Code, and that the word “person” be replaced by the word “entity” in paragraph (a).

Recommendation 21

The Subcommittee recommends that the words “satisfy themself” be replaced by the words “be satisfied” in the English version of section 83.08(2) of the Criminal Code.

Recommendation 22

The Subcommittee recommends that the second instance of the word “and” be replaced by the word “or” in the opening words of subsection 83.1(1) of the Criminal Code, and that subsection 83.12(2) be repealed.

Recommendation 23

The Subcommittee recommends that consideration be given to further integrating the terrorist entity listing regimes established under the Criminal Code, the Regulations Implementing the United Nations Resolution on the Suppression of Terrorism, and the United Nations Al Qaida and Taliban Regulations insofar as the departmental administration, applicable test for inclusion, and legal consequences of listing are concerned.

Recommendation 24

The Subcommittee recommends that section 83.05 of the Criminal Code be amended so that, when a listed entity wishes to have an initial decision to list reviewed, it is not required to make an application to the Minister of Public Safety and Emergency Preparedness under subsection (2), but may instead apply directly to a court under subsection (5).

Recommendation 25

The Subcommittee recommends that section 83.05 of the Criminal Code be amended so that, when a listed entity applies to no longer be a listed entity in accordance with subsections (2) or (8), the Minister of Public Safety and Emergency Preparedness must make a recommendation within 60 days, failing which he or she is deemed to have decided to recommend that the applicant be removed from the list. Further, any recommendation or deemed recommendation on the part of the Minister should expressly be referred to the Governor in Council, which is to make a final decision within 120 days of the entity's application, failing which the entity is deemed to be removed from the list.

Recommendation 26

The Subcommittee recommends that section 83.05 of the Criminal Code be amended so that, on each two-year review of the list of entities under subsection (9), it is clear that the Governor in Council has the final decision as to whether or not an entity should remain a listed entity. Further, the decision should be made within 120 days of the commencement of the review, failing which the entity is deemed to be removed from the list.

Recommendation 27

The Subcommittee recommends that the Charities Registration (Security Information) Act be amended so that the Federal Court judge, to whom a certificate is referred, shall not find the certificate to be reasonable where an applicant or registered charity has established that it has exercised due diligence to avoid the improper use of its resources under section 4(1).

Recommendation 28

The Subcommittee recommends that, in consultation with the charitable sector, the Canada Revenue Agency develop and put into effect best practice guidelines to provide assistance to applicants for charitable status and registered charities in their due diligence assessment of donees.

Recommendation 29

The Subcommittee recommends that section 8(2) of the Charities Registration (Security Information) Act be amended to allow for an appeal to the Federal Court of Appeal of a decision by a Federal Court judge that a referred certificate is reasonable.

Recommendation 30

The Subcommittee recommends that the words “the applicant or registered charity knew or ought to have known that” be added after the words “Criminal Code and” in paragraphs 4(1)(b) and (c) of the Charities Registration (Security Information) Act.

Recommendation 31

The Subcommittee recommends that the words “terrorist activities” be replaced by the words “a terrorist activity,” and that the words “activities in support of them” be replaced by the words “an activity in support of a terrorist activity”, in paragraphs 4(1)(b) and (c) of the Charities Registration (Security Information) Act.

Recommendation 32

The Subcommittee recommends that the words “at that time, and continues to be,” be removed from section 4(1)(b) of the Charities Registration (Security Information) Act.

Recommendation 33

The Subcommittee recommends that subsections 5(3) and (4) of the Charities Registration (Security Information) Act be repealed and that the Act be amended so that, beginning from the time that an applicant or registered charity is being investigated for allegedly making resources available to a terrorist entity, its identity shall not be published or broadcast, and all documents filed with the Federal Court in connection with the reference of the certificate shall be treated as confidential, unless and until the certificate is found to be reasonable and published under section 8.

Recommendation 34

The Subcommittee recommends that section 11 of the Charities Registration (Security Information) Act be amended to make it clear that an applicant or registered charity may apply for review of a decision made under paragraph 10(5)(b)(i), even if it has already applied for review of a decision made under paragraph 10(5)(a).

Recommendation 35

The Subcommittee recommends that section 38.13(9) of the Canada Evidence Act be amended so that a certificate expires ten years after it has been issued.

Recommendation 36

The Subcommittee recommends that section 38.131(11) of the Canada Evidence Act be repealed and that there be established a right to apply to the Supreme Court of Canada for leave to appeal the decision of a Federal Court of Appeal judge who has conducted a judicial review of a certificate issued by the Attorney General of Canada. Such an appeal should be considered by a reduced panel of three members of the Supreme Court.

Recommendation 37

The Subcommittee recommends that the Canada Evidence Act be amended to require the Attorney General of Canada to table in Parliament an annual report setting out the usage of section 38.13 certificates and section 38.15 fiats.

Recommendation 38

The Subcommittee recommends that section 38.04 of the Canada Evidence Act be amended to require the Attorney General of Canada, with respect to information about which notice was given from a party to proceedings under any of subsection 38.01(1) to (4), to apply to the Federal Court for an order with respect to disclosure of the information in every case where, except by agreement with the party, the Attorney General does not permit full disclosure without conditions.

Recommendation 39

The Subcommittee recommends that the government prepare written guidelines, and implement appropriate review mechanisms, to assist designated entities in fulfilling their duty to prevent the disclosure of sensitive or potentially injurious information and to notify the Attorney General of Canada under section 38.02(1.1) of the Canada Evidence Act.

Recommendation 40

The Subcommittee recommends that the word “may” be replaced by the word “shall” in subsections 37(4.1), 37(5), 38.06(1) and 38.06(2) of the Canada Evidence Act.

Recommendation 41

The Subcommittee recommends that subsection 37(7) of the Canada Evidence Act be replaced by the following: “An order of the court that authorizes disclosure does not take effect until

 

Recommendation 42

The Subcommittee recommends that the Canada Evidence Act be amended so that an order authorizing disclosure under subsections 38.06(1) or (2) does not take effect until (a) the time provided or granted to appeal the order has expired, or (b) a judgment of an appeal court has confirmed the order and the time provided or granted to appeal the judgment has expired, or no further appeal is available.

Recommendation 43

The Subcommittee recommends that section 37.21 of the Canada Evidence Act, which was repealed in 2004, be re-enacted.

Recommendation 44

The Subcommittee recommends that section 273.65(8) of the National Defence Act be amended to require the Commissioner of the Communications Security Establishment to review the private communication interception activities carried out under ministerial authorization to ensure they comply with the requirements of the Canadian Charter of Rights and Freedoms and the Privacy Act, as well as with the authorization itself (as already required).

Recommendation 45

The Subcommittee recommends that section 273.66 of the National Defence Act be amended to require the Communications Security Establishment to only undertake activities consistent with the Canadian Charter of Rights and Freedoms and the Privacy Act, in addition to the restraints on the exercise of its mandate already set out in that section.

Recommendation 46

The Subcommittee recommends that the words “The Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment” be replaced by the words “The Governor in Council may appoint a Commissioner of the Communications Security Establishment, who shall be a supernumerary judge or a retired judge of a superior court,” in section 273.63(1) of the National Defence Act.

Recommendation 47

The Subcommittee recommends that the word “anywhere” be added after the word “Canadians” in paragraph 273.64(2)(a) of the National Defence Act.

Recommendation 48

The Subcommittee recommends that the heading “Offences”, preceding section 3 of Security of Information Act, be removed.

Recommendation 49

The Subcommittee recommends that section 3 of the Security of Information Act be amended, for example through use of the word “includes,” so that the list of what constitutes a purpose prejudicial to the safety or interests of the State is clearly non-exhaustive.

Recommendation 50

The Subcommittee recommends that subsection 21(1) of the Security of Information Act be replaced by the following:

Further, the word “héberge” should be replaced by the word “recèle” in the French version of the section.

Recommendation 51

The Subcommittee recommends that section 78(j) of the Immigration and Refugee Protection Act be amended by adding the words “reliable and” before the word “appropriate”.

Recommendation 52

The Subcommittee recommends that sections 79, 81, 112, and other provisions of the Immigration and Refugee Protection Act be amended so as to allow for an application to the Minister of Citizenship and Immigration for protection only after a security certificate has been found by a Federal Court judge to be reasonable.

Recommendation 53

The Subcommittee recommends that a Panel of Special Counsel be established by the government in consultation with the legal profession and the judiciary. Counsel appointed to the Panel should be security-cleared and have expertise relevant to issues related to the listing of terrorist entities under the Criminal Code, the de-registration of registered charities and denial of charitable status to applicants under the Charities Registration (Security Information) Act, applications for the disclosure of information under the Canada Evidence Act, and the security certificate process under the Immigration and Refugee Protection Act. The functions of Special Counsel should be to test the need for confidentiality and closed hearings, and to test the evidence not disclosed to a party.

Recommendation 54

The Subcommittee recommends that counsel from the Panel should be appointed at the request of a judge presiding over a hearing or by a party excluded from an ex parte, in camera proceeding.

Recommendation 55

The Subcommittee recommends that the Panel should have the capacity to provide counsel appointed to it with the investigative, forensic, and other tools they require to effectively carry out the functions assigned to them.

Recommendation 56

The Subcommittee recommends that counsel appointed to the Panel be provided with the necessary training to allow them to effectively carry out the functions assigned to them.

Recommendation 57

The Subcommittee recommends that section 145 of the Anti-terrorism Act be amended so as to require that there be another comprehensive review of its provisions and operation, to be commenced no later than December 31, 2010 and completed no later than December 31, 2011.

Recommendation 58

The Subcommittee recommends that Bill C-81 from the 38th Parliament, the proposed National Security Committee of Parliamentarians Act, or a variation of it, be introduced in Parliament at the earliest opportunity.

Recommendation 59

The Subcommittee recommends that the mandate of the proposed National Security Committee of Parliamentarians be clarified so as to ensure that in carrying out its activities in relation to departments and agencies in respect of national security, it is empowered to conduct compliance audits in relation to the Anti-terrorism Act.

Recommendation 60

The Subcommittee recommends that the mandate of the proposed National Security Committee of Parliamentarians be clarified so as to ensure that it can carry out the next comprehensive review of the Anti-terrorism Act under an amended section 145 of that Act, failing which the review should be carried out by a committee of Parliament.