Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 1 - Evidence - Meeting of December 3, 2007
OTTAWA, Monday, December 3, 2007
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), met this day at 1 p.m. to give consideration to the bill.
Senator David P. Smith (Chair) in the chair.
[English]
The Chair: Honourable senators, before hearing from our witnesses, I want to introduce Laura Barnett, our new adviser and researcher from the Library of Parliament. Wade Riordan Raaflaub, who was with us previously, has moved to Alberta.
Honourable senators, over the last two sessions, members of this committee conducted a comprehensive examination of the Anti-terrorism Act. In the course of our examination we heard from more than 140 witnesses. We tabled a report earlier this year that included 40 recommendations with respect to Canada's anti-terrorism framework.
The subject matter of that report was a little broader than only Bill S-3, because the legislation has been divided into Bill S-3 and Bill C-3, so that part of the legislation started in the House of Commons and part started here. That report included both subject matters.
When it was adopted, the Anti-terrorism Act included a sunset clause for provisions relating to investigative hearings and recognizance with conditions, and these provisions expired in March of this year.
The government has introduced legislation to re-implement these provisions, which is why we are here today. Our goal is not to reconsider the whole of the Anti-terrorism Act or to redo the work that has already been accomplished; our goal is to consider this piece of legislation and, should we believe it necessary, to amend it accordingly.
We welcomed having Bill S-3 introduced in the Senate, and we are delighted that our first witness will be the Honourable Robert Douglas Nicholson, Minister of Justice and Attorney General of Canada. He is accompanied by Yves Parent, Senior Counsel and Glenn Gilmour, Counsel, both of the Criminal Law Policy Section of the Department of Justice.
Honourable senators, our time is limited as the minister must leave by 2 p.m. for Question Period in the House of Commons. I therefore ask that questions be succinct and to the point.
Welcome, Minister. It is nice of you to come on short notice. We look forward to your submissions.
Hon. Robert Douglas Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much, Mr. Chair. It is a pleasure to be here to speak to Bill S-3. I wish to thank this committee for all the work that you have done on this subject in the last two parliamentary sessions in examining the issues of the Anti-terrorism Act. Your committee's exhaustive review of the ATA and its operation was an important undertaking that produced a thoughtful, well-balanced and substantive report in February of this year.
You did not request a government response, but you can rest assured that my department, the Minister of Public Safety and many other government departments and agencies across the government have been reviewing and analyzing your recommendations in detail.
We are here today to discuss Bill S-3, which, as you pointed out in your opening remarks, relates to one aspect of your comprehensive study. Bill S-3 introduces, in modified form, the sunsetted powers of the Anti-terrorism Act, the investigative hearing and recognizance with conditions.
Bill C-3 permits the compelled testimony of a witness — not an accused; and there is sometimes confusion on that — when a judge is convinced that there are reasonable grounds to believe that a terrorism offence has been or will be committed and that the witness has relevant information.
Bill S-3 allows a police officer to apply to the court for what is, in essence, a peace bond. Generally, a peace officer may lay an information before a provincial court judge for a recognizance with conditions where the police officer believes, on reasonable grounds, that a terrorist activity will be carried out and suspects, on reasonable ground, that the imposition of a recognizance with conditions is necessary to prevent the carrying out of the terrorist activity. The judge can then compel the appearance of the person, for example, by summons.
The judge may order the person to enter into the recognizance with conditions if satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion. In limited circumstances, such as where the grounds for laying the information exists but, for reasons of exigent circumstances, it would be impractical to lay the information, the peace officer may arrest the person without warrant to bring him or her before a judge, generally within 24 hours.
In discussing these powers in your main report of February 2007, the committee recognized "the very difficult task of balancing national security interests against individual rights and freedoms in the context of anti-terrorism.''
It is indeed a complex balance, but I think that it is one that has been achieved in Bill S-3.
These powers are not extraordinary, either in Canadian law or in respect of the anti-terrorism powers that exist in other developed democratic countries. The recognizance with conditions power, for example, was inspired by the existing provisions in the Criminal Code such as the peace bond power in section 810.(1) that is often used to impose conditions on a person to prevent personal injury. It is perhaps most often used in domestic violence situations. Section 810.(1) of the code provides for a similar recognizance with conditions to protect children from sexual offences.
For its part, Bill S-3 permits a judge to make such an order to prevent the carrying out of terrorist activity.
As the recognizance with conditions provisions permit the arrest of the individual and also contain a limited power to arrest without a warrant, it is often referred to as "preventive arrest.'' I remind the committee that the power does not have as its ultimate goal the detention of persons but rather their release with conditions that are intended to prevent terrorist activity.
In any event, the power to arrest without warrant is strictly circumscribed, and any detention would be generally for a maximum of 72 hours, generally, the 24 hours to bring the person before a judge, and a possible adjournment of up to 48 hours. Only if the person fails or refuses to enter into the recognizance can the person be committed to prison for up to 12 months.
Other countries, as you know from your examination, go significantly further. In Britain, for instance, a police officer may arrest without warrant a person the police officer reasonably suspects is a terrorist, and that person can be held without charge for up to 28 days. I know this committee travelled to London during its study and during the course of the debates in the House of Commons on whether to extend the previous detention period of 14 days. As you know, the government's proposed extension to 90 days was defeated and a 28-day detention period was accepted instead. However, Prime Minister Brown is now suggesting that the legislation will be introduced to extend this period beyond the 28 days to possibly 56 days. Bill S-3 would maintain Canada's 72-hour limit on such detention.
I also want to address a point raised in the course of the second reading debate in the Senate, namely, the release provisions related to the power of arrest for recognizance with conditions power in section 83.3(7) or, when drafted in late 2001, based on the judicial interim release or bail provisions in section 515 of the Criminal Code. Now, as Senator Baker noted at second reading in his discourse, without notes, one part of section 515 was found to be overbroad by the Supreme Court of Canada decision in 2002, Regina v. Hall. To properly implement the Hall decision, I can confirm that the government will introduce an amendment to the recognizance with conditions powers that will address this concern.
Turning to the investigative hearing, while compelled testimony at the investigative stage is new to Canadian criminal law, witnesses have always been compellable at trial. As well, a procedure under the Mutual Legal Assistance in Criminal Matters Act, which predates the ATA, permits Canadian authorities to perform such a function for other countries. Among our allies, Australia and South Africa have created similar regimes. The United States has its long- standing grand jury system. In the United Kingdom, they have criminalized withholding, from a police officer, material information relating to terrorism, arguably a much more severe method of approaching the problem of the reluctant witness.
In addition, in 2005, the United Kingdom extended to terrorism investigations the disclosure notice provisions of the Serious Organised Crime and Police Act, which requires that those served with such a notice provide the information required in the notice to the investigating authority. For example, the director of public prosecution refusing to provide this information is an offence.
Now that I have positioned these powers in the Canadian and the international legal context, I want to discuss the human rights safeguards that are contained in this bill, beginning first with the investigative hearing power.
As you are aware from your study of the ATA, the use of investigative hearing is strictly circumscribed. Investigative hearings are judicially controlled. Only a judge of the Provincial Court or the Superior Court of criminal jurisdiction can hear a peace officer's application for an investigative hearing. The prior consent of the Attorney General of Canada or the Attorney General or Solicitor General of the province is required. The judge must be satisfied that reasonable attempts have been made to obtain the information by other means. The judge may include any terms and conditions in the order that the judge considers desirable to protect the interests of the witness or third parties. The witness has the right to retain and instruct counsel at any stage of the proceeding. A person may refuse to answer a question or produce anything that is protected by Canadian law relating to non-disclosure of information or privilege. Perhaps, most important, incriminating evidence obtained during compelled testimony, including derivative evidence, cannot be used or received against the person in further criminal proceedings except in the prosecution for perjury and giving contradictory evidence.
This last fact clearly demonstrates what the investigative hearing is really about. It is about obtaining important, potentially life-saving information from a witness, not an accused. In fact, the Supreme Court of Canada, in upholding the investigative hearing as constitutional in 2004, read in a constitutional exemption that an investigative hearing cannot be held where the predominant purpose is the determination of the penal liability of the person being questioned.
I understand that this committee heard many witnesses about the issue of self-incrimination in the context of investigative hearings. However, the Supreme Court of Canada has confirmed clearly that human rights protections are fully respected stating that, in fact, the law goes beyond the requirements in Charter jurisprudence.
The recognizance with conditions power offers many similar safeguards. For example, the consent of the Attorney General of Canada or the Attorney General or Solicitor General of the province is required.
I also ask the committee to note that a person detained in custody must be brought before a provincial judge without reasonable delay and, in any event, within 24 hours unless a judge is not available within that period, in which case the person must be taken before a judge as soon as possible. The hearing, if adjourned must be held within 48 hours.
Only a person who refuses or fails to enter into the recognizance can be incarcerated. The person has the right to be represented by counsel in the proceedings and enjoys the Charter protections that have always applied in the context of recognizance proceedings.
As I have mentioned, these provisions have been modified in response to the recommendations by this committee and the subcommittee in the House of Commons. Specifically, the government has agreed to implement the Senate recommendation that "the Attorney General of Canada include, in each annual report on the use of investigative hearings and recognizance with conditions/preventive arrest, a clear statement and explanation indicating whether or not the provisions remain warranted.''
In fact, we have extended this obligation to the Minister of Public Safety as well in respect of arrest without warrant power relating to recognizance with conditions.
This committee also recommended that the provisions be extended for three years with the possibility of a further extension by a resolution passed by both Houses. Bill S-3 provides that these powers will sunset unless extended by a resolution after five years.
The government thus agrees that there should be further parliamentary scrutiny of these years, but we think that a five-year period would be appropriate.
The committee should also note the wording of subclause 83.32(2) with respect to the resolution to be tabled in Parliament to extend the provisions. We have amended this provision to explicitly provide that only one of the powers may be extended and that the other one could be allowed to sunset, so they do not necessarily need to be connected. If the further parliamentary review, recommended by this committee, were to take place, it would inform the government's decision in this regard.
The House of Commons subcommittee made various recommendations in an interim report that dealt only with these provisions. Most of these recommendations by the subcommittee to clarify the law, in other words, technical amendments, have been implemented in the bill.
The House of Commons also expressed concerns about the possible detention of witnesses in the investigative hearing process, and in response, we have added subclause 83.29(4), which clarifies that the general Criminal Code provisions regarding the detention of witnesses applies to the investigative hearing process. While the House subcommittee also called for a mandatory review of these provisions, the bill instead proposes that Parliament itself determine whether and when to conduct the review.
Bill S-3 also introduces an additional safeguard to the investigative hearing process that was not requested by either committee, which, I am sure you will agree, further enhances legislation. The original legislation required that the judge be satisfied that reasonable attempts had been made to obtain the information from the person when the peace officer was investigating a terrorism act that had yet to be committed.
Bill S-3 expands the obligation on the peace officer in two ways. First, the officer must now demonstrate that reasonable attempts have been made to obtain the information by other means, not only from the person concerned.
Second, Bill S-3 extends this requirement to the application for an investigative hearing in respect of a past terrorism offence. Thus, we ensure that the use of the investigative hearing is limited to situations where reasonable efforts have been made to obtain the information by other means and these efforts were unsuccessful.
This committee, in its supplementary report of March 28, 2007, called on the government to consider anti-terrorism reform as a comprehensive package. The committee asked that we address the Zarqawi decision of the Supreme Court at the same time as other recommendations flowing from your review, including the powers contained in Bill S-3.
I am pleased that we have been able to table this bill at the same time as Bill C-3, which will amend the Immigration and Refugee Protection Act to introduce a special advocate into the security certificate process and to make other necessary modifications that will protect our national security while respecting human rights.
I also want to assure you that we are working on other possible changes to Canada's anti-terrorism framework, bearing in mind, for example, recommendations made by this committee and by the subcommittee from the House of Commons. That said, related processes prevent us from addressing these various issues simultaneously. For instance, the Air India inquiry is under way and we would not want to pre-empt Mr. Justice Major's examinations and possible recommendations. I accept as wholly reasonable this committee's desire to address national security issues in a comprehensive fashion and we are attempting to do that by tabling Bill C-3 and Bill S-3 at the beginning of the session.
However, as I mentioned, we cannot address all the concerns raised in the course of the ATA review at this time. You are well aware, as well, of the pressing deadline imposed by the Supreme Court of Canada in respect of security certificates. The government also feels that the reintroduction of these sunsetted clauses is equally important. We have heard that these powers are necessary from law enforcement, our provincial counterparts and the families of the victims of the Air India bombing. I am sure the members of the committee will also recall the testimony of the Air India families who appeared before this committee in the fall of 2005. They called for enhancing our law enforcement capacity, particularly in respect of investigative powers to address the problem of reluctant witnesses.
In closing, I thank you for your kind invitation and for your attention to these important matters. I am prepared to answer, with my officials, any questions, and I am prepared to receive any comments you may have.
The Chair: Thank you very much, minister. I have only one question and I want to get it out of the way first because it relates to the first recommendation.
You said you could not address everything that was in the reports, but the first recommendation we made related to the definition of terrorism activity, which requires that for an act or omission to be a terrorist activity, it must be committed "in whole or in part for a political, religious or ideological purpose, objective or cause.''
We heard many people who objected to that definition, in part because they felt that definition puts an obligation on the Crown to prove that it is for an ideological, religious or political reason and to establish the motive. Many felt that the definition encouraged racial profiling. It seemed to us — and we were unanimous on this point — that if it is a terrorist activity, the motive is irrelevant.
I am curious whether there is a reason why you decided not to deal with that point, or would this be on the list of things that might be dealt with in due course? Is there some rationale as to why, when you reopened the lid on the box, you did not feel the need to deal with that issue now?
Mr. Nicholson: Hopefully, there is a rational reason for why we do everything, senator, or for why we do not do something. As you correctly pointed out, in some instances we did not go as far as we might have gone because of the Air India inquiry. This particular section, as you may know, is before the court now. Again, I hesitate to become too involved until such time as we see a pronouncement from the courts. That was part of reason for the hesitation, senator. Perhaps Mr. Parent would like to comment on that.
Yves Parent, Senior Counsel, Criminal Law Policy Section, Department of Justice canada: I reiterate what our minister said, essentially. Since the matter is before the courts, it is preferable that we do not comment on it, as you are all aware.
The Chair: I wanted to register that this matter is important for us.
Senator Baker: First, I congratulate the minister here today for taking the suggestion from the Senate only two weeks ago, when senators made the suggestion on the floor of the Senate that a rather significant change be made to this bill, with the removal of the words "for any other just cause and, without limiting the generality of the foregoing . . . " This suggestion did not come from the House of Commons; it came from the Senate some two weeks ago, and it is a substantial change to this legislation.
Minister, another suggestion was made on the floor of the Senate, again in keeping with the decisions of the Supreme Court of Canada, since this bill was enacted in December of 2001 originally. There were three decisions of the Supreme Court of Canada, as I recall. One decision was to verify that the investigative hearing did not violate section 7 of the Charter, which the minister referenced a moment ago. However, that vote was five to four. I wanted to point that out to the minister.
Mr. Nicholson: The decision was still upheld.
Senator Baker: Absolutely, there is no doubt about that. It is the law.
One of the other two decisions was referenced by the minister a moment ago in following through on the Senate's suggestion to remove these offending words from this bill, which he will do.
The other decision relates to the open court principle, in the case of Vancouver Sun (Re).
Paragraph 57 of the decision by the Supreme Court of Canada — and I have the decision here — makes a suggestion for an amendment.
It is clear what the Supreme Court of Canada has said. It says the following:
That the name of the Named Person be made public.
That the proposed judicial investigative hearing be held in public, subject to any order of the presiding judge that the public be excluded and/or that a publication ban be put in place regarding aspects of the anticipated evidence to be given by the Named Person.
Mr. Minister, that suggestion was the second one made on the floor of the Senate two weeks ago to improve the bill. What do you have to say about that?
Mr. Nicholson: Thank you very much, Senator Baker. You have covered a couple of the areas. We pay attention to what you and others say in the Senate with respect to these bills. As I think I took pains to point out, you have done a lot of work in this area and in a number of areas, so I think it only makes sense that we look at the suggestions you make and pay attention to what you say. As I indicated as well when I was here last week on a bill before the Senate, we try to look at these suggestions.
You referenced the Supreme Court of Canada and its pronouncement on a number of areas, one of them upholding the investigative hearing five to four; nonetheless, it was five to four. That is a decision upholding the investigative hearings. Again, I referenced those hearings in my opening remarks.
You asked as well about another suggestion you made with respect to the Vancouver Sun (Re) case, and again, you quoted from the Supreme Court of Canada, senator. However, in our opinion, and we must make decisions on these issues, we believe that to codify those recommendations was not necessary because of the guidelines that were given and set out by the Supreme Court of Canada. I believe they indicated the parameters under which this activity should be carried out. We believe that decision was sufficient in terms of setting out the guidelines.
My colleague, Mr. Parent, is also familiar with that case. Would you make any further comments?
Mr. Parent: Yes, I will be pleased to make further comments. Thank you, Minister Nicholson.
Essentially, as you are aware, the openness of the hearing is the principle. That principle is well accepted. Every court hearing is held publicly. The public has access and there is no reason, per se, to hold a hearing ex parte or in camera.
In the Vancouver Sun, the judges said they split their decision into three different sections: the pre-hearing, the hearing, and the post-hearing. The court stated that, in the pre-hearing case, what happens when a peace officer requests that an information be laid before the judge, what happens in these circumstances, is much akin to a search warrant. These issues are normally dealt with, as it is with the search warrant that is currently provided for in the Criminal Code: That is, these proceedings normally take place ex parte, in camera. There is nothing new under those circumstances.
When it comes to the hearing part, of course there is an issue as to whether the hearing will take place publicly if there is a motion that is filed in order to hold it ex parte or in camera.
The reason there is a motion is because the principle is its openness. When a motion is so filed, the decision of the Supreme Court basically says that the test to be made is the Dagenais/Mentuck test, which states the parameters as our minister has indicated. Those parameters are well set out in those decisions.
Third, when it comes to the post hearing, assuming that the decision of the judge to a motion is to say, "No, it is going public, I refuse the motion,'' there would be no problem. However, what happens if the judge says, "Yes, there is a reason here to hold this ex parte''?
Consequently, everybody goes out and this hearing is heard in camera. What happens then and what the Supreme Court judges have said is even when the hearing is over the judge still has an obligation to look at the evidence that was presented to see if any part of that evidence can be made public. If it is the case that evidence can be made public, consequently the judge should ensure that evidence is made public.
I agree with the wording of Senator Baker because he quoted the Supreme Court of Canada accurately. However, the Supreme Court also stated this:
It may very well be that by necessity large parts of judicial investigative hearings will be held in secret. It may also very well be that the very existence of these hearings will at times have to be kept secret.
One must understand why this secrecy is necessary. If we carry out an investigation involving something as important as the commission of a terrorist act, it is important that the elements of the investigation be preserved in order that we do not tell whoever is planning the terrorist activity, that this person be warned, and that warning would kill the investigation.
There are elements, and the elements that are being protected and that are being talked about in the Dagenais/ Mentuck case are no stranger to the current criminal law proceedings. Section 47.3 prescribes areas where a judge will ban publication because under a search warrant, then they want to protect the name of the individual. They may protect the name of witnesses, of an informant. They want to protect the information in relation to the investigation.
Therefore, essentially, as our minister has pointed out, it would not be appropriate and it could be complicated to try to enact a section in the Criminal Code to try to deal with this issue while we currently have specific parameters set out by the Supreme Court.
The Chair: What we might do, Senator Baker, is come back to this item because we have only 22 more minutes with the minister, and we can pursue that issue with Mr. Parent after the minister must leave. We want to give senators an opportunity to ask questions of the minister, if that is agreeable.
Senator Baker: As long as the chair understands that the official did not answer my question. He referenced my question, but did not give a substantive answer.
Senator Segal: I want to associate myself with Senator Baker's congratulations to the government for having attempted to respond to Supreme Court decisions and advice from this committee. I have no stake in the advice from this committee because I have recently joined it, and so I am not as nuanced in my questions as colleagues who have more experience will no doubt be.
Minister, anti-terrorism legislation usually comes about because the police and the security agencies request it. They say they need it. They cannot do their job without it. We are in extreme peril unless that legislation is in place. Is that your view as to where we are now as a society?
I think back to the War Measures Act and the arrest of hundreds of people in the middle of the night who were never charged, on the advice of officials and police.
Mr. Nicholson: That is a whole can of worms that we could get into, I suppose, senator.
It seems to me that what we have here, and indeed the initial anti-terrorism legislation that was brought in, is a response to a growing problem in the world. Part of the job that we have had — and I have said this before — is to try and stay on top of the emerging issues that confront us. I think I mentioned to some of you when I introduced proposed changes to the ID theft, a reporter asked me if this was our attempt to stay ahead of the bad guys? I said I am only trying to catch up to the bad guys in many cases. That is what we are trying to do. We are trying to stay on top of these things. We see developing trends and we see the challenges we face as a society and those involved with law enforcement. Therefore we try to come forward with measures that will respond to those trends and challenges.
These measures, with some modifications, by and large, were part of the legislation and, of course, they were sunsetted. We brought them back, despite the fact that some complain that some of these powers have not been in use. That does not mean we should not have them. We need these tools. As I indicated in my opening remarks, the feedback we received from law enforcement agencies, the provinces, those who study this matter and indeed this committee, is that these powers are a reasonable response to the challenges we face.
On the other hand, I want to ensure, as I am sure you and your colleagues do, that safeguards are adequate. I look for that balance. As a society, we are entitled to protect ourselves and to obtain information about terrorist activity, but at the same time we want to do everything possible to protect the human rights of the individuals involved with this matter.
It is always difficult to strike that balance. In my opening remarks I indicated that your committee said that balancing these powers and safeguards is the challenge that we face. I am satisfied that we have struck that balance. I have satisfied myself, through working with some outstanding people who are knowledgeable on this subject and looking at reports such as the one from this committee, that we have achieved that balance.
Senator Segal: Because I do not have legal training, can you help me with the distinction between the decision of a peace officer to recommend the arrest of someone because they are involved in a conspiracy and the decision of a peace officer to file an information so that someone can be held for the purpose of giving information about a potential conspiracy?
Mr. Parent: The distinction is that one is an accused and the other is a witness.
Senator Segal: So I am clear about this bill, do we give the accused more rights than the witness?
Mr. Parent: No, because all the rights with regard to the witness under the investigative proceeding or under the recognizance with conditions are guaranteed. The individual who is the object of the investigation or the object of a recognizance has the right to remain silent until that individual has consulted counsel. When the individual appears before the judge, that person is a compellable witness.
Let us not forget that this person is not an accused. That scenario is different. Once individuals decide to speak, because they are compelled, they protected. As Minister Nicholson said in his preliminary remarks, nothing that individuals say in the context of this hearing can be held against them, neither direct nor indirect nor derivative evidence that is gathered by the judge sitting on the investigative hearing. Consequently, the witness is protected.
The purpose of this tool is to enable law enforcement to obtain the witnesses who may have knowledge of terrorist activity in order to prevent its occurrence, which is the ultimate goal. Having witnesses such as that would be useful even when an activity has taken place, in order that we can glean evidence to stop another activity from taking place. The rights are the same.
Senator Segal: When the first ATA was brought in by the previous administration, they were convinced they had drafted legislation that was absolutely Charter-proof, and they ended up not being correct. I asked the question at the time in another context.
Are you comfortable that the actual wording is Charter-proof, to the extent one can be before a challenge?
Mr. Nicholson: We are careful. Obviously we looked closely at the 2004 decision of the Supreme Court of Canada, and, of course, we are guided by that decision. This legislation has been in effect for a number of years, so there are many comments on it. I refer to the Supreme Court of Canada decision.
Senator Segal, I believe that this legislation complies with both the Charter and the Canadian Bill of Rights. It is my obligation, as Minister of Justice, to satisfy myself of that before introducing the legislation. We believe it meets both those tests.
Senator Andreychuk: I will pick up on some of the points of the three previous questioners.
On the Hall decision, we could either make an amendment or deal with the matter with policy. I understand you to say that the series of cases that preceded it and the interpretation from the Hall case will be followed. As I understand it, you will need to send out interpretive bulletins to police forces, the judiciary, et cetera. Will that happen? I believe that if we make an amendment, we re-create a section that brings all kinds of other questions about the drafting, the wording, et cetera. I believe that if we pick up on all the decisions made to this point and the statements of the Supreme Court, we will be better off.
However, it breaks down in the field if those involved in the administration of justice do not understand that is what you are doing. Is there a process for bringing that information to the judiciary, the prosecutors and the police?
Mr. Nicholson: In my most recent answer I referred to the Hall decision of 2004. It was actually 2002. I want to correct the record on that.
You refer to the challenge of all legislation we put forward. Part of the process of getting that message out is hearings, the work this committee has done and the publicity it has brought to these issues. We do our best to keep provincial attorneys general informed because of their role in the administration and enforcement of justice. We try to get that message out.
Mr. Parent: With regard to the Hall case, as Senator Baker pointed out, we will move an amendment to remove those words from the legislation. Those words are "on any other just cause being shown and, without limiting the generality of the foregoing,'' which is what was declared by the Supreme Court to be overly broad. No addition will be made to the legislation. That wording will also be eliminated in the French version.
Senator Andreychuk: I am sorry. I said the Hall decision; I meant the Vancouver Sun.
Senator Baker says there should be an amendment. I take it that you have not agreed to such an amendment, although you have in the Hall case. Is that because you believe there is a line of precedence that you want to follow, adding the case comments, and that you will transmit those comments as the government position?
Mr. Parent: As I pointed out earlier, the principle is the openness of the hearing. We could amend the legislation and say that the principle is that these hearings will be held openly, with certain listed exceptions. Going into that territory could be problematic because how many scenarios could go into ex parte or in camera?
Another thing that could be problematic is, if we make this amendment for this legislation, are we saying that the principle has changed and all legislation must indicate that the principle is to have closed hearings unless otherwise stipulated in the legislation? We want to keep the principle as it has always been, that is, a hearing is open except under the circumstances set out in Dagenais/Mentuck. The criteria elaborated by the Supreme Court under that case sets out all the elements that must be considered by the judge to determine whether the hearing should be in camera or in public.
Again, trying to put in these elements that have been laid out by the Supreme Court of Canada could be problematic, to say the least.
Senator Andreychuk: You have put on the record, minister, that 72 hours will remain in the legislation. I, for one, thought that was a lengthy period of time in Canadian law.
As I study similar jurisdictions around the world, however, I find that our time provision is at the low end. When we talk about hours, others seem to talk about days. I am not sure I have much merit in that area, although we continue to track whether it is necessary for investigative processes.
This committee struggled with whether these two sections should be extended. When the majority of the group came to the conclusion that we should extend them, it was a question of how long. We knew that we did not want them there because they would become too routine. We wanted some sort of sunset clause. The discussion was from three years to five years.
Previously, it was three, based on post 9/11 and the time that we have had since then. We have had three years. You are coming in with five years. Are you telling us there is a heightened risk for Canadians now to suggest five years as opposed to the post 9/11 period, when we had three years as the agreed time limit? Is there a heightened risk in Canada that we should be aware of? Is there a different risk? Is it a management issue? Why are we going from three years to five years, from a policy perspective?
Mr. Nicholson: You touched on a couple of issues, senator. First, there is the power to arrest without warrant in terms of the Canadian experience and the Canadian decision. I thought it was important to point out that we are at the low end in terms of countries with somewhat similar systems to our own. I indicated in my opening remarks that Prime Minister Brown has mused about doubling the time from 28 days to 56 days — we are not talking hours. I think that proposal helps put the Canadian provision in the context. I think most people would agree that it is reasonable.
In terms of three years or five years, it seems to me the original legislation had five years, did it not?
Glenn Gilmour, Counsel, Criminal Law Policy Section, Department of Justice Canada: Yes, it was a three-year review but a five-year sunset clause.
Mr. Nicholson: We were suggesting that, and you made reference to the five-year provisions. It seems to me that period of time is a good one in which to review any provisions we have. It seems to be a reasonable amount of time, if these provisions are used, for them to work their way through the courts and the appeal system and the Supreme Court of Canada.
We like to have a body of evidence. There is not a huge body of cases on this legislation. Obviously, these powers are extraordinary. It is our hope that we will not be targeted by terrorist activity, but, again, that is not the world in which we live. We must be prepared, but we are more likely to have a body of evidence to look at if we have a five-year period as opposed to three. Again, it is a judgment call.
Senator Andreychuk: Am I to interpret that, more or less because these things change from day-to-day, the terrorist risk in Canada stays within a certain level? That is, it has neither increased sharply nor do we see a decline? We still face the same difficulties as we did some years ago?
Mr. Nicholson: I do not think there is any question about that. I suppose my colleague, the Minister of Public Safety, and others who are fully engaged in these matters could also comment. However, it is a risky world in which we live. We must be prepared to the extent possible.
Senator Andreychuk: The witness spoke about preventive arrest, and my colleague pointed out the difference between being an accused and being a witness. How does the witness protection program work in that situation? Does it work at all?
Mr. Nicholson: Whether it would apply to someone in these circumstances?
Senator Andreychuk: One reason people have said they do not come forward, particularly in terrorism, is the fear of intimidation and retribution. These people they may comment on will use nefarious means to suppress that evidence.
What do we do in these cases, if we subject these people to risk?
Mr. Nicholson: As you know, the witness protection program is used on a case-by-case basis. Any witness is eligible for that program. I hear the point you are trying to make, senator. I appreciate that point, but the program would be available to them.
Mr. Gilmour: I believe that issue is also one that the Air India inquiry is currently engaged in, namely, how to prevent witness intimidation. Obviously, we are looking forward to the report of the Air India inquiry to help inform the government.
Senator Day: I would like you to look at clause 1 of the bill, proposed subsection 83.28(4), paragraph (b).
I do not know if this is a problem or not, but paragraph (b) talks about a terrorism offence will be committed. Then, subparagraph (ii) talks about terrorism offence. It references back. It talks about the terrorism offence in subparagraph (i) and then the terrorism offence in subparagraph (ii).
If we look at the similar tracking of wording with respect to the paragraph (a) of proposed section 83.28(4), subparagraph (i) states that "a terrorism offence has been committed'', but if we go to subparagraph (ii), it does not talk about a terrorism offence but about "the offence.'' When we leave the word "terrorism'' off in one portion and we have "terrorism'' as a modifier in the other, will that pose some problems for us in interpretation?
It would be easy to add "terrorism offence'' in front of "offence'' under paragraph (a), subparagraph (ii). Are you with me?
Mr. Parent: Yes, you raise a good point. It is in reference to subparagraph (i). I note, of course, that the drafters here have taken, again, the word "terrorism'' in front of "offence'' in paragraph (b), subparagraph (ii) as opposed to paragraph (a), subparagraph (ii) where it does not appear. The French translation uses the same wording, although it is obvious in my reading that we are referring to a terrorism offence also.
That is something we could bring to the drafters and something that is technical in nature, per se, but an interesting comment that we had not noticed. We will be pleased to put it to the drafters.
Senator Day: Thank you.
Mr. Nicholson: Senator Day, I will give you that undertaking. We will check that out. Obviously, the English version must comply and be comparable to the French version. We will look at that.
Senator Day: Thank you, Mr. Minister.
Senator Baker: If I understand the answer correctly, the Supreme Court of Canada made a decision in Vancouver Sun, and Global Television and several media were involved in that decision. The decision was that the judge was ordered to do several things. The judge was ordered to separate the ex parte beginning of the process and then a public process will take place. A judge, in this particular case, shall release publicly any part of the information gathering at the hearing that can be made public without unduly jeopardizing the interests of various people.
The court ordered that this process be in public. However, it was subject to any order of a presiding judge that the public be excluded or a publication ban be put in place, which, as you say, Mr. Parent, is the normal procedure in any court.
What you are saying is that you do not want to put that decision in law in this bill because this principle has its own scheme. You do not want to include that provision as part of this bill. What you are saying is that in the future, you believe that the judges will go back to this decision of the Supreme Court of Canada under the previous legislation, which is not exactly the same as this legislation, and apply the same principles. Is that correct?
I have one final question. You say that nothing can be used in an investigative hearing against the person from whom it is taken, either directly or in derivative form.
Mr. Nicholson: Unless there was perjury.
Senator Baker: Yes, unless there was perjury or obstruction of justice. That provision is another section, between section 132 and section 133 of the Criminal Code. However, would you not accept the fact that the evidence can be used in a future proceeding to judge the truthfulness of, or to compare the credibility of, the person being examined in an investigative hearing?
The final question is, at what point does one have the right to counsel? This bill says at any point during the proceeding, but the proceeding referenced is the investigative hearing. Under normal circumstances, someone who is detained for any purpose has an immediate right to consult and to instruct counsel.
Are you saying that, by putting that decision in this bill, you have a right to counsel during any part of the proceeding, meaning the investigative hearing, and that you then foreclose that right at any point prior to the proceeding?
I am sorry for making the question so long.
Mr. Parent: I will try to address the points you raised, one by one.
The Chair: Allow me to clarify something. Minister, I know you must leave. If you wanted to say anything on this subject, we might have a two-minute break to facilitate your going to Question Period. Is there anything you wish to say in answer to that question?
Mr. Nicholson: First, you are facilitating my going to the memorial service for Mr. Justice Antonio Lamer this afternoon. I am preparing to go to that service.
Again, I appreciate the insight. I was saying to Senator Day that we appreciate your analysis of this bill. You have lived with this legislation for some time as a committee. As I indicated to Senator Baker, and to my colleague Senator Segal and others, we are listening carefully to what you say, and I think this bill strikes a reasonable balance. I know there are a number of technical questions and I am pleased to have the assistance of the departmental officials, who can continue on my behalf.
Mr. Parent: If I have forgotten any part of Senator Baker's question, I am sure he will reiterate it. The first point I believe he raised was whether judges are bound by the Supreme Court decision, if I can paraphrase what he said.
Senator Baker: No, I did not say that. What I said was that you are allowing the Supreme Court of Canada decision to be followed, which would see a departure from the ex parte nature of the beginning of this proceeding. You would assume, as the Department of Justice, that a judge who hears such a proceeding will go to this particular decision of the Supreme Court of Canada and apply the judgment of the Supreme Court of Canada vis-à-vis an open court procedure to the process immediately following the ex parte proceeding; in other words, to make it inter partes. The question was not whether the judges must follow decisions of the Supreme Court of Canada; of course they do. Is the Department of Justice saying that they hope judges will follow the open court procedure as laid down by the Supreme Court and that is why it does not need to put the provision into legislation?
Mr. Parent: Absolutely: We are not hoping; we are positive that the judges will respect the openness of the hearing. That principle is applicable in any hearing before the court, and the judge would respect that principle.
Senator Nolin: Why have you agreed to amend because of the Supreme Court decision in Hall?
Mr. Parent: Because they have read it out.
[Translation]
Senator Nolin: It is the same reasoning. If the Supreme Court has already decided that these words are of no force or effect because they violate sections 7 and 11 of the Charter, why amend the Act?
Mr. Parent: For the simple reason that, in Hall, the specific words to which the Supreme Court of Canada was alluding, that is:
[English]
on any other just cause being shown, and without limiting the generality of the foregoing . . .
[Translation]
These are the specific words that were identified as going beyond the terms under which the provision would remain constitutional. When it is that specific, it is easy for us, after Senator Baker's recommendation during the second reading, to follow it and say that he is right; we should eliminate that part of the provision because this removes any possible confusion as to the interpretation.
[English]
With regard to the second part, which is the point Senator Baker is raising, it is not exactly the same thing. We are dealing with a number of criteria upon which the judge must base a decision. It is not a single, identifiable issue. A number of criteria have been mentioned by the court with regard to the Dagenais/Mentuck case. Each case will be dealt with on a case-by-case basis. It is at that point, when the judge is faced with a situation that the judge must decide.
I will reiterate the three-part process. The pre-hearing is akin to the search warrant, whereby the judge will hear the peace officer's information as to whether this person should be brought in, and lay down the information ex parte. That is currently done under the process of the search warrant. This situation is similar.
When it comes to the hearing part, again, the principle of openness applies unless there is a motion asking that the hearing be held in secret. I should not say "secret''; it is ex parte. I will not say "secret'' because there is the possibility that the judge at the end of that hearing will decide to publish or order that a certain portion of the hearing be made public because, in the view of the judge, it would not have met the Dagenais/Mentuck case with regard to that particular part.
In the context of an investigative hearing being held whereby they bring in a witness to try to elucidate the possible commission of a terrorist activity, that information would be paramount to trying to prevent the act in question. They would want to ensure that whatever comes out from that witness will not defuse everything — if it defuses the terrorist activity, that would be great, but if the perpetrators were told through the process, because it is a public hearing, that everything is now known, we would want to protect that. It is currently protected under the legislation in the Criminal Code. We are simply saying we want to continue to consider the principle as being openness; the exception will be the secret or the ex parte hearing.
To respond to your question, Senator Baker, I am confident that the judges will rely on the parameters that have been set by the Supreme Court in trying to determine whether the hearing should be held in public or ex parte.
Senator Baker: It did not answer Senator Nolin's question, as I understood it to be. The reason it did not answer the question is that judges, under the previous legislation, held these hearings in secret, without anyone knowing it. That is why the media brought this matter to the attention of the Supreme Court of Canada. It is different from the previous bill, and it will be substantially different after you move the amendment you are planning to move. The problem is that an extraordinary measure starts off ex parte. The other side does not know what is going on at this point; it is not inter parte. At no point in this legislation does it say that the ex parte nature of the proceeding changes. That is why the judges did what they did in the past, and that is why the media went to the Supreme Court of Canada.
The question to you was the following: Is it now the opinion of the Department of Justice that all judges confronted with this kind of procedure will go to the decision of the Supreme Court of Canada in Vancouver Sun (Re) and say that it is a similar bill, similar scheme, so therefore the judges will have now a public hearing, contrary to what the judges did before under the previous legislation?
Senator Nolin's question was the following: If you change the whole section of the bill that deals with the decision of the Supreme Court of Canada in Hall, why would you not do the same thing for Vancouver Sun (Re) so that it is there and explicit, for simplicity and clarity?
I am not objecting to your position; I am only trying to understand it. Your position is, "Look, judges, go to the Supreme Court decision and see what the law is. We do not have it here in this bill, but you treat it the same way as the old bill. Judges in the past made mistakes, but we do not want you to make the same mistake.''
Mr. Parent: When the case of the Air India investigation took place, that was the basis upon which in section 83.28 came before the court in Vancouver Sun (Re). An Air India witness that had been brought in based on an information that this witness could provide information. With respect to the judge that heard that case, again, it is a case-by-case basis. It will have to be determined when the judge actually hears the motion as to whether the information that that person is about to tell the judge warrants an ex parte hearing.
In the case of Air India, the judges have said, no, the basis upon which the judge at the trial level decided that the information should be kept secret or ex parte from the public, and the test that he put to make that decision was not the appropriate test. The test that he had to use was the Dagenais/Mentuck case, and I will not go into the details because you probably have read them as well. The Supreme Court has said that the trial judge made an error in his evaluation of the elements that would be put before the judge when the information was laid and the hearing started taking place.
Case-by-case, the judge will decide whether the information we are trying to elicit warrants ex parte. With respect to which test to use, it should be the case drawn in Dagenais/Mentuck.
The legislation with regard to that particular issue has not changed. We are still talking about an investigative hearing. We are still talking about a proceeding and the same thing as we were prior to what is before you now. Nothing has changed because this principle is unchanged, and we do not want it to change. We want openness to remain the principle. Only upon a motion by a Crown Attorney will a hearing be held ex parte.
Senator Baker: The decision in Vancouver Sun (Re) was an elaborate history of the concept and the principle of open court. It was quite a decision by the Supreme Court of Canada. It did not say any particular nature of a particular hearing was at stake. It laid down a principle in exact terms, which one could easily take as an amendment.
You have answered our questions so far by saying, "They may need a publication ban. They may need to exclude the public.'' Yes, they can do that now under, as you point out, the existing order of things. What distinguishes the decision of the Supreme Court of Canada in Vancouver Sun (Re) and the media is that it says, this bill was not the interpretation of this bill by the judges, starting off with an ex parte, at no point after that. It is extraordinary in that the people who would be called to an investigative hearing need not be connected with any offence; only someone who may know the whereabouts of someone who might be connected with an offence. It is an extraordinary piece of legislation.
Therefore, the judges interpreted it as they did, and they were not at fault. The legislation was at fault, as far as the Supreme Court of Canada was concerned, in that judgment. They did not say that the legislation was wrong, but they said here is what should happen in similar cases.
Let me go on because we can be all day talking about this, Mr. Parent. Answer the remaining two questions I asked you concerning right to counsel, to which you have given some specificity in this bill, and it would start at any point during the proceedings. There is a lot of case law on the commencement of proceedings, but I presume the proceeding you are talking about is the investigative hearing. Does that preclude the right to counsel prior to that, which is a requirement of section 10(b) of the Charter; the right to consult and instruct counsel upon detention, which detention is done ex parte under this bill.
The other part was simply to clarify. You said nobody's evidence can be used either in the first instance or by derivative use in a future proceeding. This bill says "criminal proceedings.'' I do not know why you have done that because normally no matter what we look at in law, it says any future proceeding. You have said criminal proceeding, but you must admit that the evidence can be used to compare someone's words that are given in that investigative hearing with someone's words that are given in a future criminal proceeding. Do you agree?
Mr. Parent: It may be a professional bias to use "criminal proceeding'' because I was a prosecutor for so many years. Yes, it is applicable to any proceeding. Let us take the first question, which has to do with the right to counsel. The principles applicable, which are the Charter rights, where the Charter right is triggered is the same in this case as it would be in any other case. From the moment a witness is brought in, the witness is under detention, if you want. The minute that happens, my read of the legislation is that this individual has a right to counsel and is allowed to speak to counsel.
The Chair: The right to counsel from which the witness has a choice from a panel and counsel is paid for; is that your definition?
Mr. Parent: You are going into special advocate issues. That is not exactly what I am talking about.
The Chair: For clarity.
Mr. Parent: The individual would have the right to counsel as accorded in the general principles laid out in the courts: individuals choose their own counsel, the one they want, basically. The only thing is, the minute the hearing starts, at that point even the counsel cannot tell the individual that the individual cannot speak or cannot answer the question. It is a compellable proceeding, whereby the witness must speak, the reason being that we want to elicit the information we need to prevent this terrorist activity.
Do not forget, with the terrorist offence that is being looked at, there must be reasonable grounds to believe that there will be a terrorist offence. There is that standard burden. The standard that must be met is that we must show indications that there is a likelihood that this offence will happen. The reasonable grounds are there. That criterion is the first one. If it is not present there is no need to go on.
Senator Baker: The chair asked you a question though, which is a key question at this particular point. He asked you if that person who is detained had the right not only to counsel of their choice, but the right to receive free legal advice prior to talking to the police. That is in section 10(b) of the Charter, as you know. That is a given in section10(b). The chair asked you if that person has a right to free legal advice under the provincial standard and that person does not have to answer a question, and the police will cease questioning that person until the person has exercised that right in a meaningful way. Does that still apply? You have said compellable.
Mr. Parent: We are trying to draw a parallel between the right of an accused and the right of this type of individual who is a witness.
Senator Baker: Section 10(b) does not apply then?
Mr. Parent: That is not what I said. If the person becomes detained automatically, the Charter rights are triggered and the person is allowed counsel. Again, in the course of an investigation, and let us try to do that in a practical way, the police officer would interrogate a person, believing that person could be a witness or believing that person could hold information that could be helpful in trying to stop or prevent the commission of a terrorist act.
Senator Baker: Are you talking about investigative detention?
Mr. Parent: The witness has two options: either to answer the question of the police during the course of an investigation or not to answer the question. If the witness does not answer the question and the police officer has reason to believe that that person has the information required, the police officer brings the witness in and lays an information on the basis of what the officer knows.
Senator Baker: Yes, but the police officer already has the ex parte order to bring the person in. The officer has already said there are reasonable grounds to believe that the person knows something. The question to you again is: Does section 10(b) of the Charter apply? You are saying this is only a part of the investigation and it does not apply.
Mr. Parent: I am saying that the minute a person becomes detained, the Charter rights are triggered and consequently the individual has a right to counsel. Does the individual have a right to free advice? The same principles apply again as apply for an accused. Does the individual have the right to free advice? Individuals will choose the lawyer they want. There is an obligation for police officers and police stations to have a 1-800 number to make sure individuals have access to a lawyer so they can speak to a lawyer. All of that obligation remains the same. That obligation remains unchanged.
Senator Baker: Individuals do not have to answer a question until they have consulted a lawyer.
Mr. Parent: Unless they are before the judge.
Senator Baker: No, the individual is at home now and the police come with an ex parte order.
Mr. Parent: No witness has to talk. The individual is a witness. The individual does not have to talk. If that person does not want to volunteer the information there is no obligation.
The Chair: We still do not put them on the rack in this country, Senator Baker.
Senator Day: Sometimes they make a decision not to talk after consulting with a lawyer.
[Translation]
Senator Nolin: The discussion we are having, Mr. Parent, is shedding a bit more light on a discussion we once had on why we should repeat rights already provided for in the Charter. I understand that paragraph 10(b) does not apply because the person is not being detained within the meaning of the Charter. You want the person to have access to counsel at every step of this process, whether the person is detained or not.
Mr. Parent: That is certain.
Senator Nolin: That is the answer, is it not?
Mr. Parent: The way you are saying it, I am not sure that I quite understand. What I mean is that, if we have a witness who does not want to co-operate with the police when the police have all the necessary evidence to believe that that person can provide valid information that could prevent a terrorist act from being committed, under such circumstances, the police officer should go before the judge. There is a moral obligation; it is part of the officer's duties to appear before the judge to ask that the information be laid so as to force that individual to answer. Charter rights automatically kick in the moment a detention proceeding begins.
Therefore, in my opinion, the answer is that paragraph 10(b) goes into effect for this witness the moment when the individual in question is detained. It is not unusual to see an individual being detained without having been formally charged. The moment that an individual is detained, he or she has a right to counsel.
We are in a similar situation, here. It does not necessarily mean that the individual will be charged. The idea is to try to obtain the individual's co-operation in order to prevent a terrorist act.
Senator Nolin: For the person named in the order under section 83.28, subsection 5, it is not an order to arrest the person, but rather, an order for that person to appear and to answer questions.
Mr. Parent: Yes.
Senator Nolin: So, what you are saying is that, from the moment when individuals are served with this order, they can consider themselves as detained.
Mr. Parent: Be careful, because the order can be made in different ways. A police officer could take the order, make the arrest and bring the person before the judge. That is one way; that is an arrest with a warrant. In other words, the judge has considered the police officer's statements and has decided that it is important to arrest the individual with a warrant, under the circumstances. That is the extreme.
The other way of doing it is through a summons or an appearance notice. These are two other formulas. It is certain that, when it is through an appearance notice, you will appear on a given date before the judge, and the judge will want to hear you regarding a given thing. It will all depend on the circumstances of the case, because if the situation is imminent, it is obvious that the person will not be given a notice to appear before a judge a month later when we know that there is a danger, that an act will be committed at any moment. The procedure will be different, probably an arrest, to bring the person directly before the judge so that he or she can answer questions.
Whether one mechanism or the other is used, from the moment individuals are confronted with this court application, from the moment the process is initiated, the individuals have a right to seek legal advice; that is clear. They may, at any time, consult with counsel to find out their rights and whether or not they are obliged to answer questions. Obviously, we have to admit that we acknowledge that this legislation is nevertheless quite draconian, given that we are forcing an individual to answer questions about an event that may be tragic.
Under the circumstances, in Canadian law, this is something that is unknown.
[English]
The exception is the Treaty of Mutual Legal Assistance in Criminal Matters regarding compellability of a witness coming from outside of Canada.
That legislation is the only legislation I know of in Canada that forces an individual to appear to respond to questions. Other than that, this requirement is totally unknown in Canadian law.
Mr. Gilmour: The investigative hearing is actually two sections, one of which sets out the procedure for the investigative hearing itself. There is also a separate section in section 83.29 of the Criminal Code that allows a judge who makes an order for an investigative hearing to issue a warrant for the arrest of the person in certain limited circumstances. For example, where it is believed that the person is evading service of the order or is about to abscond, an arrest warrant can be obtained and the person can be arrested pursuant to the warrant and brought in for the investigative hearing.
Obviously, a person who receives that sort of arrest warrant will be detained. It is my belief that Charter rights would kick in immediately because the person is detained pursuant to the arrest warrant.
If you are asking what happens if the person is not detained pursuant to an arrest warrant but, instead, the police officer turns up at their house with the order and a summons to attend, in my view the person would not be detained but would have the freedom to consult a lawyer at that point and bring the lawyer with them. Of course, as the specific provision states, once the investigative hearing and the proceedings are underway, the person has the right to consult. It is set out specifically in relation to the procedure.
Again, the distinction here is someone who is a witness not charged with any criminal offence but is being compelled to answer certain questions in accordance with this procedure.
With regard to your question about proceedings, Senator Baker, you are right that in section 83.28(10) it says:
No answer given or thing produced under subsection (8) shall be used or received against the person in any criminal proceedings against that person, other than a prosecution under section 132 or 136;
which are offences of perjury and giving contradictory evidence.
Senator Baker: Or obstructing justice.
Mr. Gilmour: It is only those two offences. Section 132 is perjury and section 136 is, I think, giving contradictory evidence, so I do not think it covers obstruction of justice.
If you give me a second, I will check 136.
Senator Baker: It goes back to section 118. It says this is a judicial proceeding.
Mr. Gilmour: Giving contradictory evidence is covered in this section. It also covers derivative evidence.
You pointed out there were the two cases: the Vancouver Sun (Re) case which dealt with presumptive openness of the proceeding, and the other case which dealt with whether the investigative hearing was constitutional. The Supreme Court of Canada expanded the protection against the use of derivative evidence to two other procedures, which were deportation or extradition proceedings. That protection would also apply to those procedures, so that any evidence that the person gave in the investigative hearing could not be used against the person in an extradition or deportation hearing. That is what the Supreme Court of Canada determined in that case.
Senator Nolin: My question is technical.
[Translation]
Senator Nolin: Mr. Parent, the minister has stated that he agrees to making an amendment to the fourth subparagraph of subsection 83.3(7). In principle, when will you table this amendment?
Mr. Parent: As soon as possible.
Senator Nolin: Are you planning to table it in the Senate or the House of Commons?
Mr. Parent: As far as I know, it should be tabled in the Senate, because this is where the bill is.
Senator Nolin: That is why I started by saying that this was a technical question. I did not want to spark a debate.
Mr. Parent: We want to be sure that it may please the Senate.
Senator Nolin: You read my mind.
[English]
Senator Joyal: If they introduce amendments in the House of Commons, the bill will come back to us, which is why I do not understand why it would not be introduced here.
Senator Andreychuk: The minister indicated that there would be an amendment. I do not think we would pass the bill until we see the amendment. I presume the department is feverishly working on it.
Senator Segal: I want to ensure I fully understand the prerogatives of the police before any legal proceeding begins. In terms of the interaction with the citizen who becomes the object of police interest, to some extent the way in which the police govern themselves before the provisions of the law become operative becomes the reality in the face of that person or family as they might exist.
For hypothetical purposes let us assume that the Communications Security Establishment, CSE, and other sources provide information to the police that leads them to believe that I might be a witness of some interest with respect to preventing terrorism, and I am invited, under the provisions of this legislation, to be helpful as a witness.
Can you share with me on a comparable basis, as law officers of the Crown, the difference between the kind of information a police officer needs to file with the Crown attorney to have me charged with an offence, if it was the police officer's view that I was guilty of an offence and there was evidentiary support for that proposition, versus the kind of information that police officer needs to file for the purpose of having me governed by this act with respect to being a designated witness under the provisions thereof?
I made only passing reference to CSE, not because I am troubled by what they do. They operate in a lawful fashion and are governed by legislation but, as I understand the governing frame for them, they are not directed to begin their activities at the explicit direction of a judge but, rather, with ministerial approval only. As you know, ministerial approval has been a problem that our colleagues in the House of Lords have had some difficulty with in related areas. Can you help me understand the modalities of those two kinds of informations that a peace officer might put before either a judge or a Crown attorney?
Mr. Parent: In the first instance, if, following an investigation, a police office has reasonable grounds to believe that a person has committed, or is about to commit, the offence, there is no question that the officer can arrest the individual and charge the individual based on the evidence gathered. All the essential elements of the infraction for which this individual would be indicted must be present. "Reasonable grounds to believe'' is the standard to reach.
With regard to the other aspect, I again revert to the point that this individual is a witness. As an example, a person has a business through which they sell all kinds of garden products, including fertilizer. An investigation is ongoing and as a result of the investigation, the police, through information they receive from the CSE and so on, have all the reasons to believe that a terrorist activity will be committed.
They learn that this individual goes often to the same person to buy fertilizer. They do not know whether the second person is involved in the activity, but they want to stop this activity from happening. In such a case, a recognizance would be useful. That person could be brought in.
Due to the fact they are aware that this fertilizer is likely being used for the purpose of committing a terrorist activity, they could put that person under a recognizance order if that person does not want to cooperate. Again, it is all a matter of cooperation. When an individual cooperates who is faced with a situation where a recognizance order or a compelling order to appear will be imposed to answer in an investigative hearing, there is no problem. If the witness does not cooperate, then there could be an issue.
Senator Segal: When talking about someone who might be, for example, in the fertilizer business, clearly the materiality of that situation to any potential risk to the public is something that would be self-evident in some respects.
I worry about a situation of this sort: One of our fellow citizens may run a coffee shop and people gather there to chat. All this gentleman has ever done is run a coffee shop. We do not suggest for one moment, and nobody has any reason to believe, that he has never done anything worse than run a coffee shop. However, if certain other people of interest choose to gather in this coffee shop on a regular basis, a peace officer who is only trying to do their job and protect the public might want the owner to come in as a witness to give advice and counsel about who frequents his coffee shop.
As I understand the premise, he would be subject to the same kinds of potential constraints and potential imprisonment as the person in the fertilizer business, except that protections are built into the act so that people are not unduly treated in an arbitrary fashion. Are you saying that police need that range of authority and power to protect us appropriately?
Mr. Parent: To answer your question, if I were the Crown attorney counsel looking at the specific example you gave me, I would not recommend that an information be laid against the coffee shop owner. I do not think the grounds are there to establish the necessity to bring the person in; there would need to be something more than that. The first step a police officer would take is to find out if the owner knows anything, or if he can cooperate. There are material elements that the officer may try to elicit from there.
This time, the legislation goes further in the sense that we are saying the police officer also has another obligation. Under this legislation, the police officer cannot simply ask this man questions and, should this man not cooperate, the officer stops and goes away. The first question the judge would ask is: "What other means have you used to try and find the information? You are talking about a terrorist offence that is likely to take place. Granted, you have reasonable grounds, but you want me to bring in here, lay an information against, an individual and all you have is this?''
No question, the judge would rule it out. The situation does not meet the standard required by the legislation. Not only is there no connection to the individual other than the fact that the man serves coffee and collects money for the service, but there has been no follow-up with the compulsory or mandatory requirement that other means be used.
Senator Segal: Let me ask one final, brief question. It is about the memorandum of enforcement or the administrative procedures that would govern how peace officers in the federal-provincial-municipal jurisdiction discharge their obligations relative to some rational basis upon which the pieces of this legislation might be invoked.
We all know we have a speed limit of 100 kilometres per hour, but a memorandum of enforcement suggests to the police that there is a range within which they must show some judgment relative to what is transpiring. We know that when the police officers from different forces gathered in the planning for the Summit of the Americas, they went through a detailed briefing about various things they needed to prepare for in the event of a worst-case scenario. That preparation included the Canadian Charter of Rights and Freedoms, the Quebec Charter of Human Rights and Freedoms, the right of free assembly, et cetera, along with other procedural issues.
Peace officers often act as first responders to the risk of terrorism in various communities. From the point of view of the federal Department of Justice, both its instruments available and instruments not available in other jurisdictions, what activity will ensue to ensure that peace officers act along the lines that you have most helpfully described for us this afternoon? What process or instruction would ensue? What comfort can you give this committee that we are doing our best as a system to ensure that potential mistakes can be minimized? This question, of course, accepts that there is never total consistency as mistakes will be made and everybody is human.
Mr. Parent: I am afraid my answer will not be satisfactory because this issue is much more an operational one than a legislative one.
Senator Segal: I understand.
Mr. Parent: Consequently, I am aware that courses are provided to inform the police officers, and an outreach program also with the various communities to inform them of the anti-terrorism legislation. The Integrated National Security Enforcement Teams, INSET, program has also been put in place. It enables police officers and law agencies to work together with their communities to address the issue of anti-terrorism and other matters, as well.
On that basis, I am positive that public safety has been integrated. Programs are in place whereby police officers are informed of their duties and given the courses that are required to make sure they address the issue of the anti- terrorism legislation in due fashion.
Mr. Parent: As pointed out by my colleague, the consent of the Attorney General or the Minister of Public Safety is also required. At that point, it must have gone through scrutiny, if you will.
Senator Andreychuk: That evidence was before us, so Senator Segal can be reassured that we have covered those concerns.
Senator Joyal: My question focuses more on the review of those two sections after five years. Please look at proposed subsection 83.32(1.1) at the bottom of page 8 of the bill. I quote:
A comprehensive review of section 83.28, 83.29 and 83.3 and their operation may be undertaken by any committee of the Senate or the House of Commons, or of both Houses of Parliament that may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.
Both of you will remember that subsection 145(1), of the anti-terrorist bill contained mention of an obligation by both Houses to undertake such a review. I quote:
Within three years after this act receives Royal Assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the Senate . . .
and so on.
Recommendation 40 in our own report in February 2007 reads:
That the Anti-terrorism Act be amended to require, within eight years of royal assent (i.e., by December 2009) and within every five years thereafter, another comprehensive review of the provisions and operation of the Act to be undertaken by a parliamentary committee or committees. . . .
Why did you choose not to give effect to the unanimous recommendation of this committee that those two provisions should be reviewed? Considering your own statement that the exact meanings are unknown in our criminal law textbooks up to now, the difficulty in defining exactly what they will mean in practical terms remains. One day, any court of Canada will have to give effect to one or the other provisions after five years.
Mr. Parent: Essentially, we discussed the recommendation you made. It was felt it would be better for us to leave the discretion to the senators or to the House of Commons as to whether and when they wanted a review. Instead of imposing upon the two Houses a statutory obligation to review the act within a certain time frame, we wanted to leave it to them to decide. It is within their inherent power to review the act and there is no obligation to force it upon them.
In view also of the fact that different recommendations were made by the House and the Senate with regard to the extension of the provisions in question, when we considered all of that information, we decided that it was preferable to leave the decision up to the Houses as to whether they wanted the review in question, and when they wanted it.
You might want it prior to the five-year term that we would have suggested, or you might want it at a later date. It would depend on the circumstances as things unfold between now and the time you would want a review. We do not know. Will there be terrorist acts in the next two years? Will there be no terrorist acts within the next five years? At that point, will you want to impose a review, and find out whether these provisions should go on?
Upon this basis, we decided to leave it, to change the word "shall'' to "may,'' so you are accorded total discretion as to how you want to approach the issue.
Senator Joyal: If we should decide in our wisdom to re-establish section 145 of the anti-terrorist legislation and change the word "may'' to "shall,'' — in French from "peut'' to "doit'' — you would not object in principle? It is up to us to decide how we tackle the issue. Is that correct?
[Translation]
Mr. Parent: That is your prerogative, of course.
[English]
You have a comment?
Senator Joyal: Same comment.
[Translation]
Mr. Parent: Absolutely, as I mentioned, it is an inherent power of Parliament to determine the fate of this legislation, that is, whether they want to review it or not.
[English]
Senator Joyal: I will take it a step further. In the Department of Justice, have you considered the difference between when Parliament acted upon a review when there was an obligation to review versus when there was a possibility to review? I am thinking here of the DNA Act, which contained such a possibility to review but was not acted upon.
My own experience is that when you only open the possibility, there are so many other compelling situations and political circumstances that most of the time, Parliament will go to another public policy agenda for the agenda of the day. I believe that if that obligation to review after three years is not compelling, there is a chance that other competing issues might draw the attention of parliamentarians.
When there is an obligation in a statute, especially one as important as the anti-terrorism legislation, Parliament — and especially this house of Parliament —will consider its obligation as inescapable and will act upon it.
Mr. Parent: I understand that. I am not familiar, though, with what you have raised as comparative legislation, and the fact that this legislation is reviewed on an optional basis instead of a mandatory basis. Again, we believe that the decision rests with the inherent power of both Houses to determine whether they want a review and when to hold such a review.
Senator Joyal: Let me make another argument. Did you read the study by Professor Kent Roach, who you will know is a professor of law at the University of Toronto? Professor Roach published a long study in Choices, the magazine of the Independent Research in Public Policy, IRIPP.
Senator Segal: An outstanding organization.
Senator Joyal: My colleague across the table will certainly praise that study, which was published in September of this year. In it, Professor Roach compared at length the way that the Senate and the House of Commons went through their respective obligations under section 145.
If I may quote it for the benefit of our records:
Although this may change with Senate reform, the relative stability of the Senate is an advantage. The steep learning curve with respect to the complexity of security policy-making suggests that there is a need for continuity on parliamentary committees in this area.
The 2004 and 2006 election meant that only four of the seven members of the Commons subcommittee remained constant, even during the time of the delayed three-year review of the ATA; whereas the majority of the Senate committee members came to their task familiar with the issues because they had been part of the Senate committee that reviewed the ATA in 2001.
It is clear in my mind that when the Senate has an obligation to review legislation — for instance, those two provisions within five years — if you look at the life span of the senators around this table, God willing, we will all be around this table in five years time. We will remember the answers you gave us today on the questions of my colleagues, Senator Baker, Senator Nolin and the like. Therefore, we are in a better position to reassess the impact of those two provisions on the criminal system of Canada.
It seems to me that it is common sense when dealing with such exceptional provisions in our criminal law that Parliament has an obligation to review them and not to put those obligations in competition with other demands that the politics of the day might put on parliamentarians. In dealing with exceptional legislation, we must put obligations on parliamentarians in respect for the state of the rule of law and the service of the Canadian Charter of Right and Freedoms. Those obligations seem to me good policy.
Mr. Parent: We have no objections, per se. We wanted to leave the possibility for you to decide upon the manner to do this — whether you wanted it and when you wanted it.
If it is the desire of the Senate to amend this bill, we will live by the rules that will be applied afterwards. Consequently, it is your prerogative. Whether it is in the context of the main bill, subsequent to the enactment, or in the context of an amendment that you want to bring forward, we will accept your decision as to the way you wish this matter to be dealt with in future.
Senator Baker: This hearing has been interesting, chair, because the minister and the officials said they are amending the bill as recommended by the Senate two weeks ago, and it needs to be amended to bring it into line with the law.
The second amendment suggested by the Senate, which was the decision of the Supreme Court of Canada in Vancouver Sun (Re), the department is saying: No, this amendment is not necessary. It is perhaps unduly complicated in that the wording would have to be done carefully; and perhaps the Senate could look at the wording as given by the Chief Justice in Vancouver Sun (Re) and determine whether that is suitable for an appropriate amendment.
Finally, I find the exchange interesting in that Mr. Gilmour and Mr. Parent are at odds on one particular question raised by the chair and Senator Segal, as it relates to the difference in reasonable grounds and who would be subjected to detention. Mr. Gilmour has expressed the opinion that a detention would not take place upon a visit from the police officer with the ex parte order. The ex parte order is issued by the judge, as Senator Segal has pointed out — and I tend to agree with him if he was suggesting it — that the coffee shop owner would be captured under the section of this bill, which says if one has reasonable grounds that this person may reveal the whereabouts of an individual who the police officer "suspects'' may commit a terrorism act — "suspects'' not "believes.'' However, the person who is issued the order is the person who would have the information about the whereabouts of someone. That person would include the coffee shop owner. That would include their priest, lawyer, doctor and family members, and that person is the person who would be then the subject of this ex parte order.
Mr. Gilmour said that the person is not being detained for purposes of section 10(b) of the Charter, that is, the right to counsel, as the chair points out, a panel of free legal advice and so on. Mr. Parent gives the impression that perhaps they are being detained under — but he is indicating to me right now by shaking his head that he is not giving that impression.
We have an interesting situation here. I can understand the confusion because that section has never been adjudicated or litigated. I would call it a detention if someone has sworn reasonable grounds that the individual knows the whereabouts of someone who is a suspect, when they have already sworn the grounds and they have tried other means to obtain the information from the individual or the individual's lawyer, doctor, mother, father, politician, chair of this committee or whomever.
Is that person is detained within the meaning of section 10(b) of the Charter, does he or she have a right to consult a lawyer? We are told today that perhaps they do not have that right, and that question probably would be adjudicated by the courts.
The witnesses are talking in the form of an investigative detention. The term is used often, but the Supreme Court of Canada has ruled many times on how long a detention could be that would violate an individual's rights but is saved by section 1 of the Charter because the length of the detention is reasonable.
A major question arises in this legislation, and the question revolves around the fact that I conclude, from listening to the witnesses, that a person does not have rights to a lawyer upon presentation of the ex parte order of a judge to appear and be compellable to answer questions, which raises an interesting question for future proceedings, Mr. Chair.
The Chair: Do you want to reply?
Senator Andreychuk: If I understand Senator Baker, he is saying all of this not because of the sections that we are amending but by virtue of the initial act that we passed, the Anti-terrorism Act.
Senator Baker: I am saying it in view of the evidence given to the committee today.
Senator Andreychuk: However, it embraces both.
Senator Baker: Yes.
The Chair: Witness, did you want to comment?
Mr. Parent: One short comment: two scenarios are possible. One is where the individual is arrested, and, consequently, we are not in the realm of this legislation when the individual is arrested.
The second scenario is where the individual is a witness that may be helpful in eliciting information for the investigation going on. Under that scenario, there are three possibilities. One is where the individual is brought in under an actual warrant for arrest because the individual is not cooperating or there is an issue of exigent circumstances and so forth. That element would be a clear indication that the person is being detained. Being detained means Charter rights are triggered.
The other two possibilities under that scenario are either an order to appear or a summons. I agree with my colleague, Mr. Gilmour, when he says under those two scenarios he does not believe that the individual is detained. The individual is only being served a document whereby they are required to appear before a judge at a certain time. In the meantime, what can the individual do? That person can call a lawyer, or simply say, "I do not need a lawyer. I will participate and freely give all the testimony that I can give to try to help this matter, and go forward.''
As you appropriately point out, Senator Baker, these issues likely will be litigated at one point in time. We hope not because that lack of litigation would indicate we are not having any problems with terrorism, but in the event there are problems, it will be litigated.
Detention aspects, as they have been litigated in other cases in criminal law matters, will to be looked upon and evaluated as to where exactly the individual is being detained and whether the individual has these rights.
As well, even in the current Criminal Code there is no definition as to when a person starts to be detained. It is a matter of case-by-case basis, and it is determined as the judge hears the evidence presented.
Senator Baker: It is pretty much established in case law when someone is detained.
Mr. Parent: Correct, and that is why I say also in regard to Vancouver Sun(Re), the case law rules.
Senator Day: I am still into the investigative hearings. Mr. Parent, you said in answering Senator Baker that if someone is not cooperating, then there could be a warrant issued, and that is what I have been wondering about. I look at section 83.29, and failure to cooperate is not one of the bases upon which a warrant can issue under that section.
Explain to me the process: When the person comes, the person is not absconding but is coming pursuant to the order that issued saying, "We want to answer some questions; bring some documents; we want to ask you some questions,'' and the individual refuses to answer.
Mr. Parent: Clearly, you are looking at section 83.29(c).
Senator Day: That section says, "did not attend.'' I said the individual attended, and did not answer. The individual refused to answer you.
Mr. Parent: Section 707 will then apply. The individual will be sent into detention until the individual decides to cooperate.
Senator Day: It applies to persons detained in custody under this section. The individual has not been detained yet according to everything we have said here. Subsection (4) says section 707 applies where a person has been detained.
Mr. Parent: Or can be put into detention. Section 707 is all about a witness being brought to court to testify in a case. The witness is not the accused. That section applies even in civil matters. A person who does not want to answer questions under criminal law can be sent into detention until such time as that person decides to answer the questions. Once the person is before the court, the person has been subpoenaed, and must answer the questions. Maybe that person does not know about the issue; then they must answer that they do not know, and the Crown counsel will deal with that matter as they see fit. However, if the person does know, then that individual commits perjury if the individual says he or she does not know.
Senator Day: That situation is different.
Mr. Parent: Right, let us assume we have a case where we simply give a summons to an individual, and the individual does not show up. A warrant for their arrest can then be issued.
Senator Day: That is under section 83.29.
Mr. Parent: That is one of them. Basically, the person is brought in, and, of course, at that point the person is detained. There is the criterion of being required to appear within 24 hours, and if the court cannot proceed by then, then it will be remanded and no more than 72 hours before the hearing starts.
Senator Day: I was trying to get at why you did not list failure to cooperate or failure to answer the question, even though the witness appeared. You list all the other criteria, such as evading service, absconding, did not attend the examination, did not remain in attendance after coming, and leaving, but you did not say anything about failing to answer the questions.
Mr. Gilmour: I believe that criterion is dealt with in section 83.28, where the person refuses to answer.
Senator Day: Which number?
Mr. Gilmour: I am trying to find it here now.
Senator Day: Help me with that, and we are all done.
Mr. Parent: Section 83.28(8) says:
A person named in an order made under subsection (4) shall answer questions put to them by the Attorney General. . . and shall produce to the presiding judge things that the person was ordered to bring. . . .
and such other things to disclose the information that is protected and so on.
Senator Day: What if witness does not? What happens when the witness comes but does not answer the questions?
Mr. Parent: Then section 707 is automatically triggered.
Senator Day: Is it not in this legislation?
Mr. Parent: Yes, it is subsection 83.29(4).
Senator Day: That provision is for persons detained in custody.
Mr. Parent: It applies with any necessary modifications to persons detained in custody.
Senator Day: The person has not been detained in custody yet. You have said that several times to Senator Baker.
Mr. Parent: I might point out that "with any necessary modifications'' would apply.
Senator Day: I am not doing an end run on you here.
Mr. Parent: This instance might be one where "with any necessary modifications'' would be used to fit section 707 case of the Criminal Code.
Senator Day: You may want to think about that issue, because you have said the individual is not detained. Subsection 83.29(4) refers to section 707 applying to persons who are detained. I am talking about someone who is not detained, who is there, who is cooperating by attending but not answering these questions because the person says, "If I do I am done, I will be killed.''
Mr. Parent: Under those circumstances, that is exactly what section 707 is talking about. The individual is there, has not been detained, was brought in, came in voluntarily, but is sent into detention by virtue of section 707 because the individual is not cooperating. The individual fails to answer the questions. Then the individual becomes a detainee and it says section 707 applies.
Senator Day: Then the individual has the right to a lawyer, who will say, "You did a good job not answering those questions.''
The Chair: Thank you, witnesses for well over two hours of cross-examination. They held up well and I thank them for their cooperation. You may now go. You will not be detained.
Honourable senators, we need to discuss our next meeting. It is not possible for reasons beyond my control to be here next week, nor can Senator Nolin be here. I believe Senator Fairbairn can. I had heard that. Our plan for the next round was to try to hear from both the police associations and the academics we were bringing in. We have had only one response and that one is confirmed, and I am wondering whether we might be better to give it two weeks to make sure that we have two good panels assembled. If we meet the full three hours, we might have one and a half hours on each of those two panels. To date, we have only had one positive response.
Senator Andreychuk: You said the next round. How many rounds are you contemplating?
The Chair: Not a huge number. We had a meeting of the steering committee, with Senator Nolin, and the approach we took was not to go back to all the ones who have appeared before because what they said is on the record and we have had an opportunity to look at that. However, there were a few obvious ones and we narrowed them down to a short list. If you wish us to go over that list with you we could.
Senator Andreychuk: No, you said the next round and I did not know if you planned five more rounds or two more rounds. I hope that we act expeditiously on this study. Are you saying you think you can wrap up not next week but the week after?
The Chair: No, not exactly. Let me speak to that. I do not think we have enough witnesses confirmed to commit to next week at the moment, given how many we inquired from. However, I am totally satisfied that we will have two good panels for the week following. We anticipate that we may well need to set aside Bill S-3 for a while and go to Bill C-3, because Bill C-3 is under the deadline. There is no deadline for Bill S-3, but Bill C-3 has a deadline that was imposed by the Supreme Court of Canada, which is approximately that everything must be tidied up before the end of February because of their decision a year ago. We are anticipating that sequence. We have not received Bill C-3 yet, but when we do, if there is time pressure we will set aside Bill S-3 under which there is no time pressure and deal with Bill C-3 until it is finished so it can meet the deadline.
Senator Andreychuk: Are you contemplating finishing this bill before Christmas?
The Chair: No, that is not contemplated, but we will keep plugging away. Is that agreeable?
Senator Joyal: Agreed.
The Chair: Thank you again, witnesses.
The committee adjourned.