The Special Senate Committee on Anti-Terrorism has the honour to present its

SECOND REPORT

Your committee, to which was referred Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, has, in obedience to the order of reference of Thursday, March 8, 2012, examined the said Bill and now reports the same with the following amendments:

1. Clause 10, page 10: Replace line 36 with the following:

“(13) The judge, or any other judge of the same court, may, on application of the”.

2. Clause 12, page 11:

(a) Replace, in the French version, line 27 with the following:

“ 83.28, 83.29 et 83.3 et de leur application doit ”; and

(b) Replace, in the French version, line 31 with the following:

“ cas, désigne ou constitue à cette fin. ”.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

Hugh Segal

Chair

OBSERVATIONS
to the Second Report of the
Special Senate Committee on Anti-Terrorism (Bill S-7)

INTRODUCTION

Bill S-7 represents an important step in Canada’s ongoing efforts to prevent and deter terrorism, both at home and abroad. Your committee notes that the bill responds to many of the recommendations made by the House of Commons Standing Committee on Public Safety and National Security’s Subcommittee on the Review of the Anti-terrorism Act (House Subcommittee), as well as this committee, in their respective reports to Parliament in 2006 and 2007 following their statutory reviews of the Anti-terrorism Act. Bill S-7 also responds to certain court decisions rendered since the Anti-terrorism Act came into force. We support the legislative changes this bill introduces; however, we are of the view that in some future bill, additional changes could be made to strengthen this bill ’s provisions. We also wish to highlight a number of concerns raised by witnesses during our hearings.

A. Investigative Hearings and Recognizance with Conditions/Preventive Arrest (Clauses 10 to 13)

When the Anti-terrorism Act came into force in December of 2001, it contained provisions allowing for investigative hearings and recognizance with conditions/preventive arrest in terrorism cases. These provisions were subject to a sunset clause, and expired on 1 March 2007 because they were not renewed prior to that date, as the sunset clause had required.

By reintroducing provisions that allow for investigative hearings and recognizance with conditions/preventive arrest to the Criminal Code (the Code), the bill puts these procedural tools back into the hands of law enforcement officials and courts, potentially facilitating their ability to stop terrorist acts before they occur. The provisions, as reintroduced by clauses 10 to 13 of the bill, also contain numerous legislative and procedural safeguards, some of which were found in the original provisions contained in the Anti-terrorism Act, and some of which have been added in response to recommendations made by the House Subcommittee and this committee following their statutory reviews of that Act, including:

• the need for a peace office to obtain prior consent of the Attorney General before applying to a judge for an investigative hearing order (subsection 83.28(3));

• explicitly giving those who are compelled to appear at an investigative hearing the ability to retain and instruct counsel at any stage of the proceedings (subsection 83.28(11));
  
• requiring, in the case of an investigative hearing, that reasonable attempts first be made to obtain the information by other means (subparagraphs 83.28(4)(a)(iii) and 83.28(4)(b)(iii)) ;

• ensuring that any information provided by a person in an investigative hearing or evidence derived from it cannot be used in criminal proceedings against him or her, except in a prosecution for perjury or giving contradictory evidence (subsection 83.28(10));
  
• clarifying that, in the case of an investigative hearing, a person may be detained for no more than 30 days before being brought before a court of superior jurisdiction (subsection 83.29(4));

• enacting a new, five-year sunset clause in respect of the investigative hearing and recognizance with conditions/preventive arrest provisions (section 83.32); and
  
• ensuring that the Attorney General of Canada and the Minister of Public Safety shall, in their annual reports to Parliament on the use of the investigative hearings and recognizance with conditions/preventive arrest provisions, include their opinions, supported by reasons, as to whether the operations of the sections allowing for these procedures should be extended (subsections 83.31(1.1) and 83.31(3.1)).

While we note that several of this committee’s, and the House Subcommittee’s, recommendations were taken into consideration when reintroducing these provisions to the Code, it is our view that t hese legislative and procedural safeguards could be strengthened even further.

Although subsection 83.28(10) clarifies that information provided during an investigative hearing, or evidence derived from such information, cannot be used against the one who provided it in any criminal proceeding, except in a prosecution for perjury or giving contradictory evidence, the Supreme Court of Canada, in Re Application under s. 83.28 of the Criminal Code prohibited the use of such information in deportation or extradition proceedings as well. While case law operates to ensure individuals are protected against having information obtained in an investigative hearing, or evidence derived from that information, used against them in the latter two types of proceedings, we believe that Bill S-7 would be improved by amending subsection 83.28(10) to codify this aspect of the Supreme Court of Canada’s decision. This approach would also be consistent with the government’s decision, in Bill S-7, to amend section 83.3 of the Code to reflect the Supreme Court of Canada`s decision in R v. Hall, and to amend certain sections of the Canada Evidence Act to ensure that they reflect the Federal Court’s interpretation of those sections in Toronto Star Newspapers v. Canada.

B. Leaving or Attempting to Leave Canada to Commit Terrorism Offences (Clause 6)

Law enforcement, border and intelligence officials who appeared as witnesses during our hearings on the bill indicated that by making it an offence to leave or attempt to leave Canada to participate in the activities of a terrorist group (section 83.181); facilitate terrorist activity (section 83.191); commit an indictable offence for a terrorist group (section 83.201); or commit an indictable offence that is also terrorist activity (section 83.201), the bill will enable them to stop the activities of prospective terrorists at an earlier stage of their preparations, before they leave Canada to join a terrorist training camp or to do harm elsewhere.

The committee believes that these new offences could indeed allow law enforcement and intelligence officials to accomplish this important goal, and that they accordingly serve an important preventive purpose. However, they will only fulfil this purpose if intelligence gathering and information sharing arrangements are configured to ensure that information necessary to support charges under these new sections of the Code is provided to the right people at the right time. In particular, these new offences appear to contemplate the increased involvement of the Canada Border Services Agency (CBSA) in the interdiction of suspected terrorists. The committee strongly recommends the development of operational protocols and practices between the various agencies who will be involved in the application of these provisions to ensure that they will be used effectively to arrest and charge individuals in accordance with the law.

During their appearance before the committee, CBSA officials confirmed that, at present, there are no exit controls in place to track individuals when they leave Canada. However, they also confirmed that Canada and the United States were working on developing exit controls as part of the Canada-United States Perimeter Security Economic Competitiveness Action Plan. In developing any new systems or agreements, the committee urges the government to ensure that the rights of Canadian citizens to enter, remain in and leave Canada, as guaranteed by section 6(1) of the Canadian Charter of Rights and Freedoms (the Charter) are respected. Such systems or agreements should also be mindful of the sense of marginalization and vulnerability that has been felt by some members of certain racial, religious or ethnic communities in Canada since the coming into force of the Anti-terrorism Act.

C. Changes to the Procedure for Non-Disclosure Hearings held under sections 38.01 to 38.16 of the Canada Evidence Act (Clauses 19 to 24)

As indicated previously in these observations, Bill S-7 amends the Canada Evidence Act in order to reflect the 2007 judgment of the Federal Court in the case of Toronto Star Newspapers Ltd. v. Canada. At issue in that case were subsections 38.11(1), 38.04(4), and 38.12(2) of the Canada Evidence Act, provisions which required all non-disclosure applications under section 38.01 to 38.16 to be held in private, confidentiality to be maintained in respect of all non-disclosure applications, and confidentiality to be maintained with respect to all court records relating to these proceedings. The Federal Court concluded that these provisions were in violation of the right to freedom of expression guaranteed by section 2(b) of the Charter, and took the remedial action of reading down the mandatory confidentiality requirement they contain so that confidentiality applies only to ex parte hearings under the regime, unless a court orders otherwise. Some of the changes made to sections 38.01 to 38.16 of the Canada Evidence Act by Bill S-7 essentially codify the court’s decision in this regard.

Other changes made by Bill S-7 to sections 38.01 to 38.16 of the Canada Evidence Act were made in response to recommendations made by the House Subcommittee in its March 2007 report. Such changes include:

• amending the wording of subsection 38.04(2) to ensure that whenever the Attorney General of Canada refuses to permit full unconditional disclosure of sensitive or potentially injurious information, except by agreement under section 38.031 of the Canada Evidence Act, proceedings should be initiated in Federal Court;

• amending section 38.06 to clarify that an order made by a Federal Court judge authorizing disclosure of information that the Attorney General is seeking to keep confidential under section 38.06 does not take effect until all appeals have been exhausted, and all time limits granted for appeal of the order have expired;

• amending subsection 38.13(9) of the Canada Evidence Act to reduce from 15 to 10 years the period during which a non-disclosure certificate issued by the Attorney General of Canada remains in effect ; and

• introducing section 38.17 into the Canada Evidence Act, requiring the Attorney General of Canada to file annual reports in Parliament respecting the number of section 38.13 prohibition certificates and section 38.15 fiats issued each year.

While the committee believes that altering the relevant provisions of the Canada Evidence Act to reflect the changes made to these provisions by the court adds clarity to the law, and is encouraged to see that many recommendations for change made by the House Subcommittee are reflected in this bill, we urge the government to continue its scrutiny of these provisions, as the Canada Evidence Act amendments made by Bill S-7 begin to be interpreted by the courts. At some future date, the government may wish to introduce further changes to these sections of the Canada Evidence Act, depending on how the changes made by Bill S-7 function in practice, in order to achieve a better balance between the open court principle and the need to safeguard confidential information that is related to or may injure international relations, national security or national defence. Such changes could include, to name but three examples:

• introducing a special advocate to represent the interests of the party who is not present during those parts of the non-disclosure hearing that are held ex parte, as was recommended by both this Committee and the House Subcommittee during their respective reviews of the Anti-terrorism Act;

• giving trial judges, rather than the Federal Court, the jurisdiction to conduct non-disclosure hearings under the Canada Evidence Act, if stays of proceedings in terrorism prosecutions are being frequently issued because the trial judge does not have access to the secret information;

• amending the Security of Information Actto ensure enhanced protection for human intelligence sources.

Several of the witnesses who appeared before the committee highlighted the challenges involved in turning intelligence into evidence. In our view, criminal prosecution, based on solid evidence, is the best way to ensure that terrorist activity is halted and that future acts of terrorism are deterred. While intelligence can provide law enforcement with vital lead information, its use in a court setting will always be problematic. The committee accordingly wishes to emphasize in these observations that, notwithstanding its importance, intelligence cannot replace solid police work that builds a strong body of evidence.

D. Protection of the Rights of Youth

Bill S-7 is a law of general application, and will therefore apply to both adults and young persons under the age of 18. In Canadian criminal proceedings, the Youth Criminal Justice Act (YCJA) applies to protect the rights of individuals between the ages of 12 and 18 who become involved in the criminal justice system. Some witnesses were of the view that Bill S-7 should include specific provisions that would outline how the bill applies to persons under 18, to ensure that it complies with Canada’s obligations under the Convention on the Rights of the Child and other international instruments. The committee recognizes that the YCJA applies to the provisions contained in Bill S-7, as confirmed by the Supreme Court of Canada in R. v. R.C. In that case, the Court stated that any Criminal Code proceedings involving a young person should be conducted in light of the principles of the YCJA. However, in accordance with the views of certain witnesses, the committee endorses a detailed analysis of the bill’s provisions by the Department of Justice to ensure that they are interpreted in accordance with YCJA principles as well as Canada’s international obligations regarding the rights of young persons.

CONCLUSION

Bill S-7 offers essential tools that will enable Canada to respond to a continually evolving threat environment. With respect to investigative hearings and recognizance with conditions/preventive arrest, section 83.32 of the Code explicitly requires Parliament to review these provisions in order to determine their efficacy and necessity, as is proper. During its study, the committee posed questions about parliamentary oversight to various witnesses. Their responses can be found in the committee’s transcripts , and speaks to the need for this democratic instrument of control.  

S.C. 2001, c. 41.

See for example, R. v. Hall, [ 2002] 3 S.C.R. 309 and Toronto Star Newspapers v. Canada, 2007 FC 128, upheld on appeal (2007 FCA 388); Application for leave to appeal to the Supreme Court of Canada refused 3 April 2008.

R.S.C 1985, c. C-46.

[2004] 2 S.C.R. 248.

Ibid. at paras. 78 and 79.

R.S.C. 1985, c. C-5.

See supra note 2.

Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

R.S.C. 1985, c. O-5.

S.C. 2002, c. 1.

20 November 1989, 1577 U.N.T.S. 3.

[2005] 3 S.C.R. 99.