Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 2 - Evidence - Meeting of January 28, 2008
OTTAWA, Monday, January 28, 2008
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: Welcome. Today's meeting will be taped by CPAC for a later broadcast.
We will hear from three different witness groups. The first group represents the three levels of police in Canada and is led by Assistant Commissioner Mike McDonell, National Security Criminal Investigations, Royal Canadian Mounted Police. Representing the Canadian Association of Chiefs of Police is William Blair, Chief, Toronto Police Service. Representing the Ontario Provincial Police is Vince Hawkes, Provincial Commander, Ontario Provincial Police.
We will hear from Assistant Commissioner McDonell first, after which the others will have an opportunity to comment.
Assistant Commissioner Mike McDonell, National Security Criminal Investigations, Royal Canadian Mounted Police: I want to thank honourable senators of this Special Senate Committee on Anti-terrorism for giving us the opportunity to speak today. I am here in two roles, not only as the RCMP officer responsible for National Security Criminal Investigations across Canada but also as Co-chair of the Canadian Association of Chiefs of Police Counter-terrorism and National Security Committee. I am joined in that capacity by Chief William Blair, the other co-chair, and Provincial Commander Vince Hawkes, a member of our committee.
I hope to use our time here today to share with you not only the perspective of the RCMP but also, and more importantly, the perspective of the Canadian Association of Chiefs of Police, on Bill S-3 and why we support it. The RCMP has always had a role in protecting Canada's national security. While the legislative framework surrounding the RCMP's role has evolved over time, we have always had a responsibility to investigate national security offences as reflected in the Security Offences Act. Today, we conduct those investigations in an integrated manner with our municipal and provincial policing partners, as witnessed by this panel before you today.
The threat of terrorism did not begin with the attacks of September 11, 2001. Canada suffered its worst terrorist attack with the bombing of Air India Flight 182 on June 23, 1985. The threat has always been there. The question has been how best to deal with it.
[Translation]
Allow me to reiterate a well-used refrain: It is not a matter of if, it is a matter of when. The threat is there, casting a shadow at the heart of our society. Local level radicalization is happening in Canada. We saw it when the 18 individuals were arrested in Toronto in June 2006 and we saw it in Momin Khawaja who was arrested in Ottawa in 2004.
[English]
The Anti-terrorism Act, 2001, did not change the RCMP's national security responsibilities. The Anti-terrorism Act simply expanded the range of options available to police to deal with terrorist threats. Among those options were the tools known as the investigative hearing and recognizance with conditions. The RCMP participated in the review of the Anti-terrorism Act and read the interim report of the House Subcommittee on the review of the Anti-terrorism Act that recommended extending the investigating hearing and recognizance with conditions tools.
We were disappointed when the provisions were not renewed by Parliament after receiving that recommendation for extension. Canada is still at threat from terrorism as evidenced most recently by the arrests in Toronto, which I mentioned. The threat that we face is evolving and ever-changing. No one can predict the precise nature of the threat that we will face tomorrow or in five years so it is important to have as many practical tools as possible available to deal capably with present and future threats. When Minister of Justice Robert Nicholson appeared before the committee last December, he mentioned that these provisions were modelled in part on analogous powers in other countries, such as the grand jury process in the United States and the Terrorism Act 2000 in the United Kingdom. However, the mechanisms of Canada's investigative hearing and recognizance with conditions are much more restricted in scope and application. Further, they contain more safeguards because they require Attorney General authorization before they can be used, and they are subject to judicial review.
Much has been made of the fact that the RCMP has never used either of these provisions. There are several reasons for that. First, and most importantly, the RCMP recognizes that these provisions were intended for extraordinary situations and, as such, we approach them with restraint. When there is another way to deal with the terrorist threat without using these provisions, then, of course, that method is, and will be, chosen. The RCMP takes the use of these provisions seriously so we have not requested to use them more frequently.
Second, we have never used these provisions because, in our view, they are highly specialized and intended for specific circumstances where no other viable option will work. It was never our intent to make use of them in every national security criminal investigation or treat them as routine procedures. We have not found ourselves in many situations where we form the opinion that these provisions are the only remaining option.
Third, these provisions have never been used because the Attorney General of Canada must consent before either provision can be invoked. In practice, there is extensive dialogue between the police and Crown counsel when the use of one of those provisions is contemplated. Ultimately, the final decision rests with the Attorney General of Canada, not with the police.
While the provisions have not been used to date, that lack of use does not mean we have not considered using them. In our national security criminal investigations, the question of whether to use them was considered regularly. The provisions were among the options weighed on merits along with other investigative avenues. As honourable senators might know, an order for an investigative hearing was sought as part of the ongoing Air India investigation but, ultimately, the hearing did not take place. Investigative hearings in particular are important to police because they might assist us in encouraging uncooperative witnesses to come forward. Since no investigative hearings have taken place, it is too early to conclude either that investigative hearings will always be effective or to conclude they will never work. We will not know until they have been used.
During the debate over the extension of the provisions, much was made of the fact that investigative hearings should be used only for preventive purposes. From our perspective, things are not so clear-cut. If an investigator has reason to believe that an individual knows something about a previous terrorist event, and during an investigative hearing the witness implicates several individuals who are actively planning a future event, then the hearing serves both an investigative and preventive purpose. Investigating previous terrorist incidents can assist us in preventing future incidents.
The RCMP and the Canadian Association of Chiefs of Police support the provisions in their modified form as contained in Bill S-3. As I stated earlier, I am confident that we would never request an investigative hearing if we thought we could obtain this information in some other way. As such, this new requirement in the bill is consistent with our approach to the investigative hearing.
The most fundamental duty of the government is the security of its citizens. These provisions are only some of the tools that police will use to deal with the terrorist threat, but they are important tools. As I stated, because we have not needed to use them yet does not mean we will not need to use them in the future. Without these tools we have less flexibility to respond to existing and emerging threats.
I turn now to my colleagues for further comments.
William Blair, Chief, Toronto Police Service, Canadian Association of Chiefs of Police: In Canada, certainly in Ontario and in Toronto, the police services at the federal, provincial and municipal levels work closely together in an integrated model response that is led by the RCMP in our integrated national security enforcement teams. The position we take in municipal services — and I will not speak for my colleagues in the province — is that we present a united position because our response to the terrorist threat in our society is also a united one.
The Chair: Mr. Hawkes, would you like to add any comments?
Vince Hawkes, Provincial Commander, Ontario Provincial Police, Canadian Association of Chiefs of Police: I totally agree with the previous comments and we do operate in a totally integrated fashion. None of these national security investigations are run independent of the RCMP and the integrated national security enforcement team. We fully support Bill S-3, from the OPP and provincial perspective.
The Chair: Our first questioner is Senator Baker, from Newfoundland.
Senator Baker: My question is directed toward Mr. McDonell, in view of his statement a moment ago that he supports this new legislation with the change that is incorporated in this legislation that includes the words "by other means'' in the amendment to section 83.28(4)(a)(iii). It says, and it is brief, "reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means.''
Then Mr. McDonell said that the reason he supports this amendment is because police would not apply for an order from a judge to hold an investigative hearing if police had been able to obtain the information by other means.
Inserting "by other means'' in the bill, which was not there in the previous legislation, forces policing authorities to try other means. The phrase also requires, as Mr. McDonell would know from his previous experience with prosecutions under the Controlled Drugs and Substance Act and the Narcotics Act, that to obtain an order from a judge for an investigative hearing, police will be required to prove in their affidavit, in their application for the order, that they have indeed tried other means and it is not possible to obtain the information by other means.
The original legislation said the information could not be obtained from the person. Now it is completely different. It says the information could not be obtained not only from the person but by other means.
My question is twofold: Is this new requirement under the legislation onerous, in view of the fact that much case law exists on these very words under the Controlled Drugs and Substances Act and under other sections of the Criminal Code dealing with authorizations that are sought, for example, to search the offices of lawyers?
How onerous is this requirement, "by other means,'' and how can you support such a limitation that could lead to appeals to the order given by the justice?
Mr. McDonell: Senator, you mentioned the word "onerous.'' As you were constructing your question, that was the term that came to my mind. If I place myself as an investigator, which I still like to think of myself as being, I do not see it as onerous because that practice is standard in policing. Before we go to any intrusive measure, if you will, even our own policy dictates that requirement, and practice dictates it as well that we go to the avenue of the least resistance we can to obtain the information. For years, when attempting to obtain authorization to intercept private communications — wiretapping — we always needed to prove to the judges that other means had been tried and failed, and then the law changed that other means are likely to fail as well.
With any specialized technique, and especially any law such as this one, we make a practice of safeguarding that law by wrapping policy around it that ensures that we use it only on the warranted case.
In the terrorism realm, we want to ensure there is an exact need for it. The wording of this law helps us articulate that need, if you will, and demonstrate the need to the courts. We must demonstrate eventually before the court all our reasonable and probable grounds in the whole investigation. If nothing else, this need forms another step in the decision log as to how we arrived at that point in the investigation. We are extremely careful with all the challenges this day and, especially, with the Anti-terrorism Act, we have not been that far down the road at large that all our actions would be covered and we are able to explain every decision we made. I see this provision as articulating a decision- making process that we had in place in the first instance.
Senator Baker: In the case of exigent circumstances, you will now need to prove to a judge in a sworn affidavit, as you pointed out a moment ago — and this is why I ask the question. I see by your history with the RCMP, and you said it, that you have great experience with authorizations under the Controlled Drugs and Substances Act and the Narcotics Act. You said that you must prove not only that other means are not possible, but that other means have been tried. In other words, in that instance, you had to prove that you followed the person, that you perhaps had an RCMP officer act as a bit of a decoy or go in and ask someone whether they would purchase drugs and so on. In other words, there needed to be concrete measures. That is what that wording imposes upon you as a police force: to use specific measures and identify them in your application for authorization to the judge. You did not have that requirement before in this legislation.
Now you have it in exigent circumstances. What do you envision as the other means that you will need to identify? Under the Controlled Drugs and Substances Act, you can identify what you do prior to an interception of private communications, but what do you expect to do additionally under this legislation to obtain an authorization from a judge for an investigative hearing?
Mr. McDonell: Respectfully, I do not see that I would need to do anything more than my standard practice now. I would need to explain the decision that would be made, especially in exigent circumstances, on my knowledge of the threat, my knowledge of previous threats, my experience in the terrorism community and my experience investigating terrorism. I would need to articulate and lay out my analysis of the situation and why I seek authorization to use investigative hearing in exigent circumstances, except now I lay it out in an affidavit. That is the only change, in my mind.
Mr. Blair: I consider this responsibility an onerous one. As my colleague has said, the legislation as it is framed reflects our investigative practice now, but it now places an obligation upon us. The legislation I am familiar with and have used frequently is the criminal legislation and the narcotic legislation that you referenced. The requirement there is that we be able to demonstrate that other investigative methods have been tried and failed, or are unlikely to succeed. We are familiar with this obligation and it reflects our investigative practice, as my colleague has said. However, I believe this responsibility is an onerous one and an appropriate one to place upon law enforcement to demonstrate that less intrusive means have been tried and either have failed or are not likely to succeed. Those other methods of investigation can include many of the things you have said, such as use of undercover agents, other lawful access and intercepts of communication and the execution of search warrants. There are other means of gathering evidence that would be the responsibility of law enforcement to explore and articulate as fulsomely as possible in our grounds to obtain this authorization. However, this legislation as currently framed reflects our investigative practice. We would do those things in any event before going down this road.
The Chair: Commander Hawkes, do you want to add anything?
Mr. Hawkes: No, I agree totally.
Senator Baker: As you go down this road of supporting the inclusion of "by other means'' in legislation in which an invasion of privacy is taking place, or extraordinary —
The Chair: It is "other legal means.''
Senator Nolin: No, it is "other means.''
An Hon. Senator: It does not say "legal.''
The Chair: I know it does not say it, but —
Senator Baker: In other words, if the person is in jail, you could post an officer there to chat to the person, not explaining that the officer is an officer of the law. Here is my question to you: As you go further up, what is the most intrusive circumstance that warrants the proof of other means? You referenced the Controlled Drugs and Substances Act and before that, the Narcotics Act, that contain these exact same words. You explained in detail how the act has been interpreted by the courts: not only that you tried other means but that other means were not likely to work anyway.
By inserting the words here in this rather extraordinary piece of legislation, even more extraordinary as far as human rights are concerned than the Controlled Drugs and Substances Act, are you then assuming that the other means referenced down below would include, for example, the tapping of their telephones?
You see where I am going with this?
The Chair: Are you referring to unauthorized tapping?
Senator Baker: No, I refer to authorized tapping. In other words, by inserting this wording in the legislation, do you believe that this provision will place a requirement upon the police forces to use what other means there are, including the extraordinary means identified in the Criminal Code and in other legislation such as the Controlled Drugs and Substances Act, in which the same requirement is there because they are extraordinary? In other words, do you believe that you must prove to a justice that you went the whole distance — you tapped the person's telephone, and you did whatever other thing you could do within the law to obtain this information — because that is what this new section states. It erases the person and it supplants the information for the person.
Mr. McDonell: I will need to articulate my decision at one point or another, and I will have done that anyway. What we are not taking into consideration is the time. What is my time limit on this? When do I see that threat as actually taking place? That would be explained. As I go through the means that I have tried, I would be able to explain that, yes, if I had time to obtain an authorization to intercept private communications I would have done it. Then, I would report in that affidavit as to the fruits of that investigative activity.
Again, cases take time to build. That is why this particular bill also speaks to exigent circumstances and the police officer's powers in exigent circumstances. I see that it says being able to meet the possibilities I have run through my mind in countering a terrorism threat to Canada, with this as a tool. To me, explaining to a judge prior to using the tool is no different than having to do it before. If anything, when I go to court to explain my intent and my justification, it takes the burden off me with respect to some of the proof and it places it on the court. It was the judge who gave the authorization to use this tool. I am tested in the first instance.
Senator Baker: In other words, if your authorization is to obtain information from, say, a schoolteacher of the person that you have reasonable grounds to believe is involved in the terrorist activity, or the parish priest, or someone who, on reasonable grounds, you believe would know the whereabouts of someone, as this bill says, then does this requirement now force the police to tap the teacher's telephone or the priest's telephone prior to taking this extraordinary measure and prior to you having to prove to the justice that you used every other means to obtain the information?
Mr. McDonell: This person is a witness, so I would not tap a witness's —
Senator Baker: This was my original question.
Mr. McDonell: It is case by case. I would need to prove to the judge that I have tried every legal means within my toolbox to obtain that information, and have been unable to do so. Therefore, I have concluded that this investigative hearing would be fruitful in obtaining the information that I believe is possessed or in the mind.
Senator Joyal: You will remember that the members of this committee spent many hours reviewing those two sections of the Criminal Code that the government is now asking Parliament to re-establish to give you, as Senator Baker mentioned, extraordinary power in exceptional circumstances after a certain procedure is followed.
However, our committee recommended last year that we re-establish those two sections, but attach a certain number of conditions to it. One of the conditions — I am addressing you, Mr. McDonell — relates to the RCMP. It is recommendation 38 on page 118. If you have our report, I ask that you to take a look at it. I will read it. Do you have it, sir?
Mr. McDonell: I do not.
Senator Joyal: I will read it slowly. It is three lines.
That the government implement more effective oversight of the RCMP, akin to the level and nature of oversight that SIRC performs in relation to CSIS, particularly in terms of access to information and the capacity to audit day-to-day national security functions.
When we made that recommendation, we were not aware that our commission, presided over by Justice O'Connor, would make a similar recommendation in its December 2006 report. That report of Justice O'Connor recommended the creation of an independent complaints and national security review agency to oversee the national security functions of the RCMP that presently are not the object of any oversight role or responsibility. The commissioner testified at this committee previously when we introduced the first anti-terrorism bill, and it was clear that there is a gap in the RCMP Act.
We are concerned. I quote our report on page 117.
In our view, it is clear that the RCMP requires more comprehensive oversight of its anti-terrorism-related powers and national security activities.
Now we are giving back responsibility to you to implement two extraordinary sections of the Criminal Code. What kind of initiative has been taken by the RCMP since the recommendation of the Arar report and since the publication of our recommendation to convince us today that we are justified in giving back those extraordinary powers because you are implementing or recommending to the government a plan to have better oversight of your activities in relation to anti-terrorism?
Mr. McDonell: That question deals specifically with part II of Justice O'Connor's recommendations, and that lies in the hands of government. We cannot oversee ourselves. We have checks and balances, and the courts act in that regard. Our commissioner has stated that we fully support, and will fully support, any oversight and review body that the government puts in place. I know, not first-hand, that the government is working on and discussing particularly the oversight mechanisms for the RCMP and the security intelligence community at large to include other agencies.
Senator Joyal: In other words, you have been consulted or are in the process of working with a working group at this moment involving a certain number of bodies related to or interested in a national security capacity of oversight over the anti-terrorism activities of the RCMP?
Mr. McDonell: That is correct.
Senator Joyal: Do you have any idea when we can expect the conclusions of the working groups to come forward?
Mr. McDonell: No, I do not.
Senator Joyal: In other words, you cannot tell us today that if we adopt this bill as is — we might see fit to amend it if we decide to — we can expect that within a reasonable period of time, you in your capacity expect Parliament to be involved in adopting legislation to enhance the oversight capacity of the RCMP?
Mr. McDonell: I cannot speak to any of that question. That oversight is within government purview. We have only been consulted and allowed to provide input.
Senator Joyal: Therefore, you have no idea about any kind of rough deadline; this year, next year or anything down the road?
Mr. McDonell: I do not have any idea of that matter.
Senator Joyal: What do you suggest in relation to the section of recommendations in our report? I make a link between that section of the report and the objective of this bill, especially the section that suggests that Parliament might conduct a review, when it sees fit, after the fifth anniversary of the coming into force of those two powers.
If you tell me today that you are not in a position to inform us of a reasonable deadline to implement a better mechanism of oversight, as a parliamentarian, I will ask myself if we should recommend to Parliament the exercise of a more stringent capacity to review the implementation of those two sections if we cannot rely on any other mechanism that, in fact, would oversee your own mandate in relation to those two specific powers.
Mr. McDonell: I suggest that the first review mechanism be the justice system itself when we go before a judge and ask for these powers. I see that requirement as a review in and of itself, and we will need to answer to that judge.
Senator Joyal: The anti-terrorism activities of the RCMP are much wider than the use of those two extraordinary powers, as you mentioned earlier. As my colleague, Senator Baker, mentioned, you might conclude that you can obtain the information you are seeking by other means than those two extraordinary powers. The manner in which you have conducted yourself as a police body in obtaining that information should be as much the objective of monitoring as those two extraordinary powers.
Mr. McDonell: Yes; we must also consider that before we go to the courts, the Attorney General has given us authorization to go to the courts. Those requirements are two checks and balances. Then, at the end, there is the ultimate court case that we present.
Senator Joyal: I understand that. You are describing the procedure you must to follow to use those two extraordinary powers. However, the recommendation that we made according to our own review, and the recommendation made by Justice O'Connor, is that there is a need for enhanced capacity of oversight of the anti- terrorism activities of the RCMP.
I think those two extraordinary powers are two specific tools in your toolbox, as you have stated. However, many other tools in your toolbox equipment should also be the object of oversight by the proper body. The proper body must be established according to an act of Parliament and according to your own experience and cooperation with the other investigative bodies responsible for security within the federal government.
That context is essentially the one in which I view those two powers in the overall context of your responsibility in relation to national security.
Mr. McDonell: I agree with what you are saying. However, it is the responsibility of Parliament — I am aware they are acting on it — to examine an appropriate review mechanism for the RCMP. I am but a public servant. I do not dictate timelines.
Senator Joyal: I understand that. I am not asking you to dictate anything, but as a person responsible for general operations in relation to national security, I see you in a decision-making capacity. You are Assistant Commissioner, National Security Criminal Investigations — you are not low on the scale. I think that if you want to maintain the credibility of the RCMP and the good relations and trust of Canadian citizens in relation to the RCMP, you would be concerned about the conviction of Canadians that your activities are conducted with the proper oversight mechanism, especially when following an investigation like the Justice O'Connor investigation. The report on that investigation concluded that it is generally accepted there is a need for improved oversight in the RCMP.
I do not think you can detach yourself from this conclusion and say it belongs to someone else when you are the object of such an important recommendation from two sources: one that has led an investigation after a specific case, and our body, which has a general mandate to review how those activities are conducted.
Mr. McDonell: I am not divorcing myself from the issue. I welcome it. We are anxious for it. However, we are not the ones to make the decision or to put it in place. I truly believe that our actions are done with full integrity, and any review body would serve as a champion of our efforts.
Senator Joyal: I do not doubt your integrity. A commission of inquiry has concluded that after you conducted a certain number of operations, a certain number of corrections needed to be included in the day-to-day operations of the system. That is essentially how I read the general trust of the O'Connor report and how I read our own report.
If honourable senators around this table have recommended clearly and plainly that improvements should be made to the oversight capacity of your national security investigation mandate, that recommendation must be implemented some time soon, especially when you sit in front of us and say that you concur with the additional powers that this bill will provide to you.
Mr. McDonell: That is correct. I concur with oversight. I provide neither the additional powers nor the oversight.
Senator Joyal: Let me come back to one part of your opening statement. It is not numbered, but it is at the bottom of the second last page. I have the English version. I will read it to you:
During the debate over the extension of the provisions, much was made of the fact that investigative hearings should only be used for preventive purposes.
I turn the page:
From our perspective, things are not so clear cut. If an investigator has reason to believe that an individual knows something about a previous terrorist event, and during an investigative hearing the witness implicates several individuals who are actively planning a future event, then the hearing serves both an investigative and preventive purpose.
From that quote, I understand that you have read the debate. From which source do you conclude that the interpretation we gave of a preventive purpose was too narrow?
Is it a general observation that you make of the various debates that took place around those two sections in the other place and in this place in the first incarnation of those two sections, or is it the objective analysis that you make yourself of the legal implications of those two provisions?
Mr. McDonell: It is both: knowledge from the debates that I have read and looked into and then my own analysis thereafter of the need to apply the provisions for past events as well.
Senator Joyal: In other words, they serve not only to prevent a terrorist activity from taking place, but also to go into past terrorism activities where you conclude that the person was involved?
Mr. McDonell: That is correct. With respect to the past, I also see it as preventative. Today's threat consists of networks within networks, organizations within organizations, and it is global. It is continuing. If anything, in my view, it is escalating.
Therefore, if a terrorist event goes without investigation and without conclusion as to who the suspects are and who committed this event, it encourages others within that organization and within other organizations to commit other terrorist events as well. The organizations must be identified, they must be stopped and we must prevent. The best way to do that, with respect to a terrorist organization, is to identify, arrest and prosecute those who committed the offences in the hope that these actions serve as an example to deter others and to weaken the organization. However, more than anything else, we can use the knowledge that we gain with respect to modus operandi and networks to prevent another attack.
Senator Joyal: In other words, when you take a suspect, or rather, a witness, before a judge for an investigative hearing, according to your reading of the section, that suspect could be the object of interrogation in relation to a previous terrorist event, reading your words here, for which you might not have been able to identify the authors or the responsible persons.
Mr. McDonell: That witness, not the suspect, would be taken before an investigative hearing. I doubt I would bring a suspect before an investigative hearing.
Senator Joyal: That is why I corrected myself by saying witness. In other words, interrogators would have two sets of questions. They would have a set of questions in relation to a previous terrorist event that you would not have elucidated, and of course, questions about the activities or preparation that you suspect the person is linked to in relation to a potential forthcoming terrorist event.
Mr. McDonell: Senator, the hearing would be on a case-by-case basis, and the questions would be built around the affidavit that I presented to the judge as to the information I was seeking. In the Canadian legal system, I doubt that I or the Crown would be allowed to go on a fishing trip. In my view and from my experience, we would need to set out exactly the type of information or the evidence that we wanted and go directly for that information or evidence in the investigative hearing. I doubt that there is a judge or defence counsel that would allow us to go on a fishing trip.
Senator Joyal: So, only from the answers that the witness gives to your question could you ask questions in relation to a previous terrorist event?
Mr. McDonell: My experience dictates that is how it would play out.
Senator Joyal: Mr. Blair, do you want to add something?
Mr. Blair: If I may offer, the purpose is to enable us to obtain witnesses who may have knowledge of terrorist activity in order to prevent its occurrence. Our ultimate goal is to prevent the occurrence of terrorist activity.
We contemplate that there may be some circumstances where it would be useful to ask about previous activities to glean evidence to stop a reoccurrence of those earlier activities. That is our intent here. Our ultimate goal is the prevention of further acts. That is what we contemplate, and I think that is what Parliament contemplates in this legislation, but we also recognize that it may be appropriate to gather information about previous acts inasmuch as that knowledge may assist us in preventing future acts.
Senator Joyal: The line is thin within a set of questions put to a witness that serves the purpose of elucidating a previous terrorist event and the potentiality of another terrorist event linked to other kinds of witnesses or other kinds of potential suspects. That is essentially where I find difficulty in understanding how the investigative hearing would operate in practice.
Mr. McDonell: It would be to disrupt the network, senator.
Senator Joyal: I understand that if you bring a person in front of a judge for an investigative hearing, it is for the disruption or the prevention, to put it in clear terms, of a further terrorist attack.
Mr. McDonell: I can draw the example of July 7, 2005, and the almost identical attacks that followed two weeks later on July 21, or the attempted attacks. The bombs did not go off that day. The chemists were not as sharp as the chemists on July 7. Perhaps, knowledge of how that attack took place, the thinking that had gone forward, would have prevented the second one. The network continued. My point is that what happened on July 7 in London was copied on July 21, only it did not go "boom.''
The Chair: We are down to the last 15 minutes.
Senator Andreychuk: I had two basic questions, but I want to follow up on a point that now troubles me. Are you saying that if you utilize the tool of the investigative hearing and you find evidence of a previous charge, that you would only use the evidence as a preventive tool? Would you not use that evidence to lay a charge for the previous incident also? The way you answered the question, I understood you to say that you could use it only for a future attempt and you would not pursue the alleged crime that you believe to have been committed previously, arising out of that testimony.
Mr. McDonell: I apologize for any confusion. The ultimate goal is always to prevent another terrorism act. However, if we were looking to gain information with respect to a past terrorist event, our intent would be to harvest evidence or information that could lead us to evidence in that past event, but then also use that information and that evidence to prevent future attacks. Definitely, we would use any information, evidence or information that led to evidence about a previous attack. We would seek to use it.
Senator Andreychuk: Several of us have been around this table on this committee since 2001, and six weeks later when the legislation was introduced. These two sections were introduced because the terrorist threats as we know them today were so horrific that they demanded this kind of tool. It was a tool that had not been fully employed before in our criminal law or elsewhere. I think we were all hesitant about it. I think I continue to be hesitant about it. At that time, we were told that it was almost the last resort, or you would use it as a last resort. I now hear that it is not a last resort but a significant resource that you might use before you have exhausted all other possibilities. When you go to court, you must prove that you have tried other means, which is difficult, I am sure, but are you taking the other step that other means available would not be timely and therefore not available to you, hence the investigative hearing? In other words, I see two kinds of evidence. One is that you have tried other methods and you did not succeed, so you are turning to the investigative hearing. The other is, if you tried other tools, it would take too long and the risk of the terrorist attack occurring would be too great. It is a different weighing that the judge would need to do. Do you believe you would need to point out to the judge all the possibilities and either discount them as not timely or that you pursued them and they did not produce?
Mr. McDonell: Senator, you have answered my question. It is case-by-case and driven by timeline. There may be a case where we do not try to intercept private communications because we believe the event will happen tomorrow. By the time we receive authorization to intercept private communications, we would be four or five days down the road. There is the possibility where we would go and say it is an exigent circumstance, an emergency, and we need to do it right away. There could be a case where we believe it could happen seven months down the road on another continent, so therefore we have time to investigate: However, we face these barriers, and this is why it would not work. The availability of the investigative technique would be case-by-case and would relying on the experience of the Crown, the Attorney General's judgment, and then the judge thereafter.
Senator Andreychuk: That was to be my point. We will rely on judges to understand what the tools might be. I recall trying to decide, when we brought in all these drug cases, et cetera, what might be possible avenues of evidence. The judge needs to be made aware, or he or she should make themselves aware, of all possible tools.
Mr. McDonell: That is correct.
Senator Andreychuk: We are putting a heavy onus on the judge.
Mr. McDonell: Yes: However, the act identifies which judges we can go to and, in my view, defines their experience.
Senator Andreychuk: You indicated that you have not used the tools of investigative hearing and recognizance with conditions. Correct me if I am wrong but perhaps the fact that they were available to you had some impact on your national security investigations. We received evidence from some witnesses throughout the course of these hearings that the clout of these tools was used on certain people to say, either cooperate or find yourselves in an investigative hearing, so you better tell us now.
Do you use the tool to intimidate or do you use the tool as an investigative technique?
Mr. McDonell: I have no knowledge of what you are saying about using the tool as clout, but that is not to say it did not happen. I have no knowledge of that whatsoever. I see it as an investigative tool for what it is. That is my experience from my position within the RCMP.
Senator Andreychuk: These comments were made before this committee but you have no knowledge of them.
Mr. McDonell: I have no knowledge of those particular statements.
Senator Andreychuk: You mentioned that this technique is new and needs to be reintroduced so that it can continue. Are you keeping an open mind and will you do an evaluation in five years to determine whether you need this tool? It might be a proper tool to prevent the kinds of horrific losses due to terrorism that other countries have suffered but if the tool becomes too common, it might have a tendency to slide into other areas of criminal law. Will you have some means within the RCMP to assess, in five years' time, whether the tool is an adequate and necessary one to prevent terrorism?
Mr. McDonell: Yes, such means are built into my area of responsibility, an office of investigative standards and practices. Every major investigation is reviewed on an ongoing basis to ensure that nothing is slipping, that we are adhering to policy and the law and that we are working as best we can to prevent any terrorism offence. They would conduct a review almost immediately as we go along. We will not wait until a later date to conduct such a review. The threat is so real and so ominous that we stay not only on top of the threat but also on top of our own actions to ensure that they can be presented to the court with as much integrity as possible. We brought seasoned senior criminal investigators to the office from across the various Canadian police forces to stay on top of all files.
We review first-hand the day after it is used and we continue to conduct that review as the case proceeds.
Senator Andreychuk: You require the consent of the Attorney General to proceed with an investigative hearing but before it lands on that desk, it goes by the prosecution and other lawyers in some ministries. Are you aware of any policy manuals or information tools for those people?
Mr. McDonell: I am not aware of any, senator.
Senator Baker: Mr. Chair, it was pointed out by members of this committee that a portion of Bill S-3 mirrors section 515 of the Criminal Code in respect of bail provisions commonly referred to as the judicial interim release provisions of the Criminal Code: specifically, under Recognizance With Conditions, proposed section 83.3(7).
Senator Andreychuk: Could you clarify which section?
Senator Baker: At page 6 in the bill, proposed section 83.3(7) states: "When a person is taken before a provincial court judge under subsection (6), . . . .'' I do not understand why it is restricted to a provincial court judge in this instance because it includes a Superior Court judge in the definition at the beginning. Be that as it may, everything in the ensuing paragraphs mirrors the bail provisions as set out in the Criminal Code.
We are looking at a person who is taken before a judge for purposes of a recognizance if the person is not released. Under the recognizance requirements, a police officer would show cause that if the person were released, a terrorism activity would be carried out, public safety would be threatened and substantial likelihood would exist that the person would interfere with the administration of justice. These are the three provisions of bail requirements — absconding, threat to the safety of society and the strength of the reasonable grounds as presented by the police. Mr. McDonell, you said that you agree with the provisions of Bill S-3, totally. However, does it not seem strange to you that after an assessment and after the judge agrees that real dangers exist, a person would be released automatically after 48 hours? The section following says that if the person is not released under subparagraph (7)(b)(i), it will be ordered that the person be released subject to the recognizance, if any, ordered under proposed paragraph (A). Now, I read that to mean everyone must be released, whether they are under a recognizance.
The strangeness is that thousands of Canadians held in jail pending trial for various offences are not released for such reasons. Yet, for a terrorism offence, you agree that they should be released after 48 hours. It struck me as strange when I read it and thought that in your support of the proposed legislation, you would have considered this scenario and, perhaps, can justify it in some way.
Mr. McDonell: I have discussed it with my counterparts in other countries who have similar legislation. I cannot speak for each individual case of the thousands in jails awaiting their day in court but I suggest that all of them have had information laid before a court and they are charged with an offence. In this particular case of 48-hour release, no one has been charged.
Senator Baker: However, you have the sworn affidavit, and the same wording is used in the bill as is used in section 515 of the Criminal Code. Surely the Department of Justice could have been more inventive and suggested different wording. You are talking about the likelihood that a terrorist activity will be carried out, which is why the person is in custody. Yet, if those things prove true to the justice, the person is released in 48 hours.
You said that the difference is that under section 515 of the Criminal Code, the person is charged with an offence. The person might have a rap sheet a mile long and is held in custody because they might commit another criminal offence if they are released. In the case of the affidavit, the police have reasonable grounds to believe that a terrorist activity will take place. The key words are "to believe.'' Yet the person is released in 48 hours. I thought it strange that wording would be used and that, perhaps, different wording would have been used in view of the fact the person is being released in 48 hours, or do you see it differently?
Mr. McDonell: I have not turned my mind to the wording, but what it tells me is that I have 72 hours to prove it.
Senator Baker: Yes, that is true, but the person is released in 48 hours. That is the maximum.
Mr. McDonell: I have 24 hours to bring him before the court.
Senator Baker: Yes, but you have already sworn that you have reasonable grounds to believe.
Mr. McDonell: However, I do not have the evidence to prove it, to obtain the information.
Senator Baker: Then you should not swear reasonable grounds to believe if you do not have the evidence.
Mr. McDonell: Reasonable and probable grounds to believe.
The Chair: It is a question of faith.
Mr. Blair: I am not a criminal lawyer, but it is not the same. What they are swearing to here is reasonable grounds to believe it is necessary to prevent a terrorist activity. I would liken it then to other provisions of the Criminal Code regarding breaches of the peace, for example, where a police officer may arrest for a breach of the peace, but when the breach is no longer imminent, the threat no longer exists and that individual is released without charges laid. I believe there is a closer parallel in these circumstances because this measure is preventative as opposed to bringing an information of an offence that has, in fact, taken place.
Senator Oliver: In response to the question from Senator Baker, Mr. McDonell said that he was familiar with the issue and that he had discussed the issue with some of his international colleagues in other countries. I was wondering if any of those colleagues had the 48-hour clause that the senator talked about.
Mr. McDonell: They had longer. I worked with Specialist Operations Counter-Terrorism Command, also known as SO15, in Great Britain. They have 28 days.
Senator Oliver: That is really the essence of the senator's point.
Mr. McDonell: I can cite a case where they used 27 of them.
Senator Joyal: In relation to the answer given by the witness to our colleague Senator Oliver, I read a couple of weeks ago that they were even contemplating extending that period.
The Chair: Yes, I recall reading that as well.
Honourable senators, on behalf of all of us, I thank our three panellists for appearing before us. It has been a worthwhile session.
We have as our next witness, Craig Forcese, of the University of Ottawa. He has appeared before us and these matters are something in which he has developed an expertise. Thank you, professor, for coming and I will turn the floor over to you.
Craig Forcese, Professor, University of Ottawa, as an individual: Thank you for inviting me today. I will take five minutes to lay out some thoughts on Bill S-3. I will begin by acknowledging that I am rather agnostic on Bill S-3. On the one hand, I understand the civil liberties implications of Bill S-3 and the extent to which the bill proposes two measures that are alien to our legal tradition. On the other hand, I am conscious that in those jurisdictions where preventive measures were not part of the law at the time that crises emerged, those jurisdictions have deployed standard rules of law in a way that contorts their reach. I am thinking here about the American practice of using, for example, material witness laws and immigration laws in a manner that goes well beyond their original design to detain individuals for purposes of anti-terrorism.
The peril of using regular law like that for a preventive purpose is that when you design a preventive law, you have checks and balances. When you design a regular law, you do not necessarily insert the same checks and balances, so I fear that in times of crisis, if we resort to equivalent provisions in our Canadian law we will not have the checks and balances that are part of Bill S-3.
I will confine my remarks to four observations. The first series of observations concern proposed section 83.3, which I will follow the tradition of calling preventive detention — of course, it is really called recognizance for conditions — and then a few remarks about investigative hearings.
In relation to section 83.3, as we heard moments ago, the ultimate purpose of this provision is to allow law enforcement to disrupt imminent and perhaps nascent terrorist plots and networks. Section 83.3, as you know, has two aspects — the front-end preventive detention and the back-end recognizance with conditions, or what we colloquially call a peace bond. I will comment about both.
First, in relation to preventive detention, as you know, in the right circumstances, law enforcement could detain an individual for up to 72 hours. That provision has influenced similar provision in Australia.
In Australia, their federal law allows a detention of up to 48 hours, but when read with Australian state law, up to 14 days of detention can be obtained, so it is not as modest as it sounds on its face. What is notable about the Australian law is that there is a prohibition in the Australian law during the period of preventive detention of interrogation; that is, the Australian law enforcement intelligence authorities cannot interrogate the individual when they are subject to preventive detention. The purpose of that bar on interrogation is to circumvent the possibility that preventive detention will be converted into investigative detention; that is, detention for the purpose of conducting an investigation.
I think that is a notable innovation on the Australian front. It sounds better than it is because under Australian equivalent to our investigative hearings, they can detain anyway. The Australians have given with one hand and taken away with the other, but it is an interesting idea.
I commend that idea to your consideration as a committee, that is, to have rules on preventive detention that do not amount to investigative detention. In Australia, they are legislatively barred. In fact, it is an offence for law enforcement to question individuals while they are subject to preventive detention. To question them, the individuals must be released from preventive detention prior to being questioned.
In relation to the peace bond, the back-end portion of section 83.3, some people ridiculed the idea of a peace bond; that is, release on conditions being effective as an anti-terrorism device. I am not persuaded by that. One imagines that a peace bond is likely to be ineffectual in relation to a suicide bomber. On the other hand, it is important to appreciate the reach of the peace bond provision; that is, because it is tied to the definition of terrorist activity, a broad concept, we are talking about possibly imposing peace bonds on individuals far removed from actual acts of violence. Again, the purpose is to disrupt nascent or existing terrorist networks.
It is important to recognize that peace bonds could constitute an important and notable constraint on liberty. The only outer limit on the conditions I am aware of in our conventional criminal law or case law — peace bonds are found elsewhere in our Criminal Code — is that a peace bond cannot amount to detention or imprisonment. Anything short of detention or imprisonment has not yet been adjudicated as inconsistent with our legal tradition in Canada.
I think here of the conditions imposed on those individuals released subject to condition under our immigration security certificate process. Those individuals have been released subject to stringent conditions, more stringent than any other bail or peace bond provision that I am aware of in Canadian practice. If that process is the indicator of the sort of measures we would impose on suspected terrorists, it is a dramatic constraint on liberty.
Two observations stem from this conclusion. The first is that the statutory language found in proposed section 83.3 is sparse in terms of the sort of conditions a judge can impose as part of this peace bond. If we compare that to the closest analogous instrument in the United Kingdom, which is their control order system, their control order system includes a large number of enumerated restraints on liberty that can be imposed. Their parliamentarians have turned their mind to the question as to what can be done to an individual as part of their equivalent to a peace bond. We do not have that here in our statute. The constraints on liberty remain to be determined by a judge to impose, as persuaded on a case-by-case basis by a prosecutor. I think it would be useful for parliamentarians to turn their mind to exactly what they anticipate these measures will be used to do.
The second and perhaps graver implication, conclusion or observation I will make is that the Criminal Code includes belts and suspenders. By that I mean that proposed section 83.3 allows the imposition of a peace bond in relation to feared terrorist activity. Section 810.01 of the Criminal Code includes an equivalent provision.
It is possible under section 810.01 of the Criminal Code to impose a peace bond, and not only in relation to a person connected to terrorist activity but in relation to a person connected to a terrorism offence. I emphasize that a terrorism offence is a much broader concept than a terrorist activity under the definition of the Criminal Code. According to my calculation, under section 810.01, it would be possible to impose a peace bond on a person where there are reasonable grounds to fear that a person is counselling a person to instruct another person to enhance a terrorist group's ability to counsel yet another person to engage in one of the acts listed in the definition of terrorist activity. It is inchoate offence piled upon inchoate offence piled upon inchoate offence, to use the terminology of the criminal law.
This broad universe of persons could be swept up by section 810.01. I am more concerned about section 810.01 than proposed section 83.3 because there is no sunsetting of section 810.01, and no reporting requirement for section 810.01, which means it could have been used a hundred times and we would never know.
Let me make one last point about preventive detention. I am less persuaded that preventive detention could be used in the same manner as control orders have been used in the United Kingdom. Control orders are essentially serious constraints on liberty that can be used in the United Kingdom, but the rules for control orders allow the use of secret evidence. Our rules do not. In circumstances where the Crown or law enforcement would be obliged to prove to a judge the reasonable fear or reasonable grounds to fear terrorist activity on the basis of information provided by an allied security service or on the basis of other sensitive secret information, they could not necessarily preserve that information from disclosure to the other side in an open court environment. I imagine that aspect would be a deterrent for regular use of the preventive detention and peace bond provisions.
I will conclude with one or two observations on investigative hearings. As you know, in 2004 the Supreme Court took a close look at investigative hearings and ultimately concluded that they were constitutional. In doing so, the Supreme Court read in certain requirements to the use of investigative hearings, the most important being that the derivative use immunity, which is guaranteed by subsection 10, that is, evidence or information adduced in these proceedings cannot be used against the individual themselves. The language right now in subsection 10 says it cannot be used in a criminal proceeding.
The Supreme Court said it must go further than that. It cannot be used in any kind of proceeding, including extradition and immigration proceedings. Why was that not written into the new bill? It is a constitutional requirement so why not simply codify it in the bill so it is more transparent in the legislation. The rule of law depends on transparency in our legislative provisions. Here is an opportunity to bring the legislation in line with what our Charter requires, and it was not done.
The other aspect is a related one. In a parallel case in 2004 called Vancouver Sun (Re), the Supreme Court said investigative hearings themselves are presumptively open. They can be closed in the right circumstances, and to close those proceedings, the courts are supposed to apply a test, but they are presumptively open. Once again, this new bill does not codify that presumptive openness; it is silent on the issue. I find myself wondering why these two aspects were not added to the bill.
The Chair: On your point on belts and suspenders, I do wear suspenders but no belt.
Senator Baker: Mr. Chairman, before I ask my questions of the witness, it is interesting testimony he has given. It seems to me that the witness before us today had his definition of national security used in a recent judgement of the Federal Court that saw the Attorney General of Canada versus the Commission of Inquiry into the Arar affair. The witness is nodding his head. The judge resorted to Black's Law Dictionary for definitions under the National Defence Act, until he reached the section dealing with national security and what is meant by national security. For that definition, he said he needed to go to a legal expert, and he went to the writings of our witness today. This decision is recent, I think within the last six months or so. I see the witness nodding his head.
Can the witness elaborate on his making of new law in this particular area regarding the subject under discussion here today?
Mr. Forcese: I cannot take much credit for being influential in that case. The passage cited from one of my articles was, in turn, cited from yet another article in good academic tradition. It is not as if I invented anything new.
The reason why Justice Simon Noël felt obliged perhaps to spend time weighing what national security might mean is because the concept is an incredibly amorphous one. It is in the eye of the beholder. Depending on who you speak to at any given time, it may or may not engage in national security preoccupation.
That decision concerned section 38 of the Canada Evidence Act, which is essentially our core secrecy law when it comes to judicial proceedings. It invokes the concept of national security without defining it. I know this committee, in its report on Bill C-36, looked at the question of section 38 and expressed concerns, not only in relation to the definition of national security or lack of definition, but also in relation to the meaning of international relations, which is other grounds for imposing secrecy in a court proceeding.
Justice Noël felt obliged to canvass his thinking on what national security might mean. Ultimately, he rendered an important decision, in my view, which saw the release of about 1,000 of the 1,500 words the government wished to have excised from the Arar commission report. As you know, those words precipitated a stern editorial from The Globe and Mail about whether they engaged a national security interest. Those words dealt with whether the RCMP had apprised decision makers of the providence of information they used; namely, that the information came from Syria and could well have been extracted under torture.
Those words also suggested that the Canadian Security Intelligence Service, CSIS, knew full well what the implications were of Mr. Arar's removal to Syria. To quote what was revealed in those 1,000 words, the Americans sent Mr. Arar to Syria so the Syrians could "have their way with him,'' which again showed that CSIS was aware of the implications.
Senator Baker: With respect to your suggested amendments to the bill — and you have made two suggested amendments — members of this committee over the years have referenced those same two amendments that you have suggested after the Supreme Court of Canada judgment in Vancouver Sun (Re). Members of this committee suggested that the final decision, the decision of the majority, which was in a neat paragraph, went something to the effect that the principle of open court would apply to these proceedings, that proceedings would not continue to be ex parte after the original order is given and that any appeals that were heard therefrom on the order would be in open court. Principles of natural procedures that apply to all cases before a court would apply in this particular case.
That is one judgment of the Supreme Court of Canada that you say should be in this legislation. The other judgment of the Supreme Court of Canada is being incorporated in this legislation by the government, and that is the removal of the words "for any other just cause'' in a section that deals with a detention. It is the tertiary ground of bail under section 515, which is incorporated under this legislation. The government has announced that they will take that out because of the decision of the Supreme Court of Canada in Hall.
The other recommendation you made is that the Supreme Court of Canada said that evidence derived from, or is derivative from, evidence given at this hearing under discussion cannot be used in a future proceeding. Yet, in this legislation, it is restricted to a criminal proceeding.
Do you have any thoughts as to why the Department of Justice would restrict it to a criminal proceeding?
Mr. Forcese: I have no idea. First, it is clear that the law goes beyond criminal proceedings because of the judgment of the Supreme Court. There is no question of law at issue here. They are not re-legislating something that would be interpreted as narrowly as the legislation suggested it should be, based on its wording. The Supreme Court has spoken on this issue.
From my transparency of legislation or law perspective, it would have been nice to see the derivative use of immunity, which we know extends past criminal proceedings, to be codified firmly in this legislation so one does not have to be an expert in this area and know that one cannot read this law literally when one picks up the statute book. This bill provided an opportunity to do so because the bill must be re-enacted anyway. For one reason or another, a decision was made not to do that. I am in no position to answer the question as to why that would be. It does not make sense to me.
Senator Baker: Can you suggest a reason why the government would not incorporate the decision of the Supreme Court of Canada in Vancouver Sun (Re) in this legislation as far as the principle of open court is concerned?
Mr. Forcese: I assume that the assumption is that what is currently found in the discretionary power the court possesses to make whatever orders are necessary to preserve the fairness of the process, that provision is sufficient to allow the court to engage in weighing of whether to keep the court open or not.
My view is that may well be, but it would be nice to have a bill that was transparent on that issue and that gave clear instructions in keeping with the Supreme Court's decision, providing that courts are presumptively open during these investigative hearings. If they will be closed, then they must meet the test the Supreme Court enunciated most recently in Vancouver Sun (Re).
It is part and parcel of the importance to the rule of law to have that law spelled out as clearly as possible for those who pick up legislation and hope to interpret it.
Senator Baker: I noticed recently that the courts are still struggling with the problem of whether the sworn affidavit and any challenge to the sworn affidavit would be kept secret; in other words, similar to a sealed packet, as in other authorizations in which information is contained that the police authorities do not want released.
The question is still being debated as to whether that original sworn affidavit should be made public. Perhaps your suggestion of incorporating in the legislation what the Supreme Court of Canada had judged in Vancouver Sun (Re) would alleviate that.
Mr. Forcese: Possibly it would, although there are two stages to the investigative hearing. The first is more like obtaining a warrant, the initiation of the process, where one goes in on an ex parte basis and initiates the process by persuading the judge there is some basis to do so. The second portion is the actual hearing itself.
The court, as I understand it, was talking about whether that hearing itself should be open and it pronounced on that issue. As to the issue of whether the supporting information that initiates the process in the first place and is analogous to a warrant should be disclosed is a fractious issue in our law at present. In only the rarest circumstances, as far as I am aware, have courts compelled the disclosure of supporting affidavits in such circumstances.
Senator Baker: Do you agree that even under conditions of invasion of privacy in its various forms, the normal procedure is to seal the warrant but during a trial, the information to obtain is released to the court in which a blackening out procedure would be followed to give the protections that are needed?
The reason I bring up this matter is because this new bill in which officers must show that other means were sought to obtain the information but it was not obtained allows more area for challenge from the defence attorney. The defence attorney can say that the authorization never should have been given and the order never should have been issued by the judge. The more complicated the procedure is, the more grounds there are to try to strike down the order.
All this information is not blackened out in a sealed packet to be released to the defence at any point in the future, it is only sealed. It is not available for public consumption. However, we will certainly take notice of your suggestion to put the Vancouver Sun (Re) decision by the Supreme Court of Canada in the legislation.
Senator Joyal: I consulted a report that one of your colleagues, Professor Kent Roach, issued in September 2007. Are you familiar with that report? I want to quote from the report on page 16, dealing with investigative hearings and preventive arrests, which are essentially the issues you raised this afternoon. Professor Roach wrote the following:
Neither committee —
— referring to the House of Commons and the Senate —
— examined the case for reforming preventive arrest and recognizance with conditions provisions, despite arguments that there should be statutory guidance as there is under Australian law with respect to the conditions of detention and whether a person subject to a preventive arrest can be interrogated during the maximum 72 hours of judicially approved detention. . . .
Do I take from your first point that you suggest we add stricter conditions provisions in relation to preventive arrest than we have in this bill, which is open ended?
Mr. Forcese: That is my preference. Again, we have two tools here. One is investigative hearings, and one is preventive detention. I would not want preventive detention used as a proxy for investigative hearings. Preventive detention allows detention at a much lower threshold than would investigative hearing. If you preclude questioning of witnesses or detainees during the preventive detention portion, you circumvent the possibility that it might be used as an underhanded way to allow police to hold someone in custody in circumstances where, under the regular Criminal Code, they could not be held in custody, and interrogate them for 72 hours, which is a long period of time to be interrogated. I am sympathetic to the Australian law. It is a wise addition to their preventive detention provisions.
Senator Joyal: You suggest that we provide specifically that preventive arrest cannot be used to open interrogative activities by the police of a person in a way that the police can compel persons to answer questions that otherwise would be asked if the person was the object of an investigative hearing.
Mr. Forcese: At present, if someone is detained under preventive detention, there is no compulsion to answer the questions, but one is detained for 72 hours. During that time, presumably the police can continue to question you. That is a long time potentially to be subjected to interrogation, so the safeguard is to limit the law enforcement's capacity to ask questions during those 72 hours. One way is to bar all questioning whatsoever, which the Australians have done. Alternatively, at the very least, limit the total sum period during which an individual could be interrogated. Maybe they can be detained for 72 hours, but during that 72 hours, they cannot be questioned for more than 12 hours in total, or place some constraint on what can be done during those 72 hours that reflects civil libertarian concerns.
Senator Joyal: Another point was raised in Professor Roach's report:
There was also no discussion of the fact that the Supreme Court found one of the grounds provided in the law for a judge to deny release to a person, namely the "just cause'' provision, to be unconstitutionally vague in the regular bail context.
Can you comment on that?
Mr. Forcese: That was Senator Baker's comment. The Supreme Court has evolved its thinking on the circumstances in which bail can be denied, and asked for greater specificity. This bill reflects the evolution of the law since 2001. I assume that Professor Roach was talking about the deliberations of the parliamentary committees and the extent to which that issue had arisen. That point is probably reflected in this current iteration of the bill.
Senator Joyal: Senator Baker referred to The Vancouver Sun (Re) case, and Professor Roach referred to the Hall case, 2002. I understand that those two cases must be read in the context of determining the scope of what is just cause in relation to bail.
Mr. Forcese: My propensity is to read the two Supreme Court cases that came down in 2004 on investigative hearings; that is, Application under s. 83.28 of the Criminal Code (Re) and Vancouver Sun, in conjunction. Hall has an impact in relation to preventive detention, but it does not engage questions surrounding investigative hearings.
Senator Joyal: My third question is also in relation to a point raised by Professor Roach:
Both reports also ignored the fact that the ATA amended the regular peace bond provisions in the Criminal Code to allow conditions to be placed on individuals on the basis of reasonable fears that they will commit a terrorism offence. These regular peace bond provisions were not subject to the five-year sunset or the special reporting requirements for preventive arrests. Although peace bonds have been found to be consistent with the Charter when used with respect to reasonable fears. . .
— for instance —
— that a person will commit a sexual offence, their effects or utility in the terrorism context are not known.
Can you comment on the fact that we have stretched the issue of peace bonds in relation to terrorism activities that goes way beyond what has been the normal procedure under the Criminal Code?
Mr. Forcese: Professor Roach in that passage refers to section 810.01 of the Criminal Code, which I mentioned before. Section 810.01 deals not only with terrorism offences but also criminal organization offences. This relatively new provision deals with these two fairly unique categories in our Criminal Code.
What is unique about the prospect of a peace bond in the context of section 810.01 or section 83.3 is that it tends to be not as discreet a subject as is dealt with by conventional peace bonds, which deal with, for example, an individual who they have reason to fear might be a sexual predator, in which case they restrict their access or proximity to schoolyards. The limitations on their liberty are focused on the fears for safety.
In relation to terrorism offences, the fears can be much more amorphous and much less readily defined, so the constraints on liberty that the government might impose through a peace bond could be more sweeping and less focused. As evidence of that, I look to the conditions that have been imposed on those individuals released subject to conditions under our immigration security certificate system. Conditions there are draconian, to the point that it is impermissible to enter a room with an Internet connection in their own home, and all sorts of obligations in terms of informing the Canada Border Services Agency, CBSA, when one leaves the house, and receiving permission to move around outside a designated zone. These stringent limitations on liberty go well beyond the much more narrowly tailored limitations that have been imposed in other peace bond circumstances, such as in relation to sexual offences.
Senator Joyal: Do you suggest that we review that section of the code in relation to terrorism activities to take into account the normal limits the court has put on peace bonds?
Mr. Forcese: Absolutely: My recommendations are twofold. My recommendation for both section 83.3 and section 810.01 is for this committee and Parliament in general to turn their minds to the conditions they think are appropriate, much like the United Kingdom has with their control orders. The United Kingdom's legislation has a list of things that can be done. I do not agree with everything on that list, but at least their Parliament has turned their mind to the question. In our system, it is an open invitation for a judge to impose conditions, the outer limit of which have not been tested in our courts, subject to being persuaded to do so by the Crown.
The other recommendation is that, unlike section 83.3, there is no reporting requirement or sunsetting requirement for section 810.01, so the checks and balances which are so important for section 83.3, reporting and sunsetting, are not present in section 810.01. I invite this committee, if possible, to impose the same sort of requirements on section 810.01 as have been imposed on section 83.3 in terms of reporting. I have no idea if section 810.01 has been used. There is no way for me to know.
Incidentally, an individual can be arrested pending adjudication of a peace bond. If the Crown wished to proceed using section 810.01, there is case law that says an individual can be picked up with warrant, but cannot be picked up on an exigent warrant basis, and detained pending adjudication of the peace bond. There are detention aspects to section 810.01. I find it a concerning provision.
Senator Baker: When did we pass that?
Mr. Forcese: At the same time you passed the Anti-terrorism Act.
Senator Joyal: The minimum we should request is a reporting mechanism so that we would be aware of it.
Mr. Forcese: Certainly, that would be my minimum.
Senator Joyal: Under the two sections on preventive arrest and investigative hearing, a mechanism exists through reporting to provide a capacity for oversight at a point in time, especially if we review after five years as proposed by the government. It should be compulsory but that is for another discussion. If we need the capacity to review the use of those two sections, then we should have the capacity for all information on other aspects of the act. They cannot be isolated from the other aspects of the act. If peace bonds are used in the context of terrorism activity, then Parliament should be made aware as part of that same approach to provide a capacity for information. As you have heard from previous witnesses, we are extremely preoccupied with that aspect, and public knowledge is one way to monitor the use of the exceptional powers provided under the act to police forces and other bodies responsible for maintaining security in Canada.
Mr. Forcese: I agree completely.
Senator Andreychuk: I have a short intervention on bonds and conditions. I am aware that the British have such conditions owing to their history in respect of the IRA, related hearings and who should be released, and the dilemma in starting a list of those conditions. They might hold someone who could be released in a newer, more innovative way that we have not thought of. Listing the conditions takes away the philosophy of the why and how of the release because a person is released pending something, usually. There is sufficient sense that someone being released who complies with the conditions will not be a threat, whether under the Criminal Code or the Anti-terrorism Act. I do not find it onerous to say an individual cannot use a computer when technology is the way of the world's communication these days. It is not the telephone or the mail, and that has been the whole problem with terrorism. We know that they contact each other in nefarious ways because anyone can move from server to server, or do anything they want. In a particular case, the condition not to use a computer might make sense. However, when others in the house use the computer, they cannot suggest removing it from the house, although they could say the person cannot go into that room. Is that an unreasonable condition to gain one's freedom? Some people will say they want their freedom and therefore agree to live by the conditions but once they are released, they find the conditions difficult. Is that not the weighing of all issues between both parties before a judge and how reasonable the conditions are?
Mr. Forcese: I use the example of the computer simply to demonstrate how diffuse the conditions can be, as compared to the conventional use of peace bonds in some circumstances. I am not in a position to say definitively one way or another that the condition is unreasonable. I want to see Parliament turn its mind to the outer limit. In other words, what is the outer limit in terms of using a peace bond and imposing constraints on the liberty of an individual? Even if it were not a question of enumerating what an individual can do, I can see the argument against minimizing the flexibility available to the judge. An outer limit should be enunciated clearly, and I have my own ideas as to where that limit might be. I agree with jurisprudence such that a peace bond cannot be an underhanded way of detaining someone using a house- arrest provision. Constraints on liberty should be less dramatic than that in part because these constraints on liberty are imposed on the basis of suspicion, in essence, without the adjudication of the merits on any kind of standard of proof that we would recognize in the criminal context. I want to see language included where Parliament prescribes that one cannot cross a certain line using a peace bond or house arrest. That would be useful. It would not be the most important addition to this bill but it is worth pondering.
Senator Baker: In other words, you are asking Parliament to provide specificity to the authority. Of course, the range of that use could be found in existing case law if one were to examine enough cases. Conditions of release are dictated by existing provisions in case law. Your other suggestion in respect of detention and holding off any investigative means is firmly entrenched in section 515(10)(b) of the Criminal Code and in case law, R. v. Prosper, of the Supreme Court of Canada, whereby officers cannot question a person who has said they will wait to consult a lawyer. You are suggesting that Parliament provide the guidelines so that a judicial decision cannot be completely out of whack in respect of just cause as it relates to the bail provisions.
Mr. Forcese: Yes, in large measure that is right. I am also motivated by the current problem of tracking this use. It is not always easy to determine what conditions are imposed as part of a peace bond. For example, it is only if there is a constitutional challenge to the peace bond provision writ large that there is some resolution on what those peace bonds include. Absent greater disclosure of what these conditions are, the existing open invitation in the Criminal Code in terms of the imposition of conditions is unmanageable. There is no check and balance so it is difficult to monitor exactly what is happening. It remains in the hands of individual judges across the country to develop measures that seem reasonable in the circumstances. Given the extraordinary nature of these provisions, I want to see more guaranteed continuity.
Senator Baker: You asked us to apply that provision to section 810 of the Criminal Code, which is not under discussion. This matter appears to be of great concern to you. Are you also concerned about people held prior to trial who are not released?
Mr. Forcese: First, I want to see it applied to section 810.01 and proposed section 83.3. In a regular Criminal Code proceeding, one is detained pending an actual prosecution in which the Crown must prove beyond a reasonable doubt that an individual has committed a criminal offence. In such cases, the checks and balances that exist in a criminal process are available. However, in this case we are talking about what could be significant impositions on liberty on the basis of a suspicion, essentially. The language is more intricate than that but essentially it is based on suspicion. Keep in mind that the failure to abide by those conditions is an offence that carries a sentence of incarceration for 12 months. To set up a condition that is essentially a hair trigger, the effect is to convert a pre-emptive mechanism — a condition that avoids or mitigates the chances that an individual will be a threat — to an actual prosecution for an activity that, otherwise, is considered banal, such as walking into a room with the requisite intent when that room happens to have a computer connection. That condition might be necessary and I understand circumstances where that condition could be necessary. I want to see more transparency in respect of the kinds of conditions that can be imposed, the reporting of the conditions imposed and the circumstances.
Senator Joyal: I have one question on the language to be used that will place limits on the use and scope of peace bonds. Would a suitable approach be to give an example of what is not contemplated as a constraint when we want to impose "guidelines.'' For example, you said earlier, "equivalent to house arrest.'' Then we could say the limit in the section such as house arrest or equivalent to house arrest. In other words, we would signal to the courts a limit that the court could not go beyond that would ring a bell to a judge that there are limits to what the judge can impose to a person who is the object of that section of the code.
Mr. Forcese: There are two possible courses of action. The first is to enumerate everything that can be done, which is essentially what the U.K. has done. This action is difficult for the reasons that have been expressed here. The second course is to draw the box, that is, set the outer limit beyond which they cannot cross, and that might be a little easier to do.
Senator Joyal: That is what I thought. That is why I propose it to you as something that meets your objective but avoids the trap that Senator Andreychuk has raised with the issue of enumerating them.
Senator Andreychuk: There is also the trust in the judge to take into account the facts in a particular case. Otherwise, we are trying to anticipate what that scenario might be and I do not think we have the skills to do that in Parliament.
Senator Joyal: No one can foresee everything.
The Chair: Are you okay, Senator Nolin?
Senator Nolin: Yes, you answered my question. You said we enumerate everything or we do not do it. That would have been my question.
Mr. Forcese: Or you draw the box. You set the outer limits.
Senator Nolin: That is not our tradition. Give us an example of where we have drawn a box like that: "not more than or less than''? Our tradition is much more to give the judges the authority to use their judgement and to make a reasonable decision.
Mr. Forcese: I am a believer of judicial discretion. However, I am also a believer in parliamentary sovereignty and I think it is important for this body to turn its mind to what the outer limit should be in terms of a power that it has accorded law enforcement essentially to constrain liberty in circumstances where there is a mere suspicion essentially against an individual. Therefore I do not have difficulty with the idea of Parliament turning its mind to the limit and sending signals. Some of those signals are probably part of the law already. For example, detaining someone to the point of house arrest is probably unconstitutional anyway. However, I believe it would be helpful to have this body or other bodies bring witnesses before them and address this question, whether in this context or another.
The Chair: On behalf of our committee, I thank you, professor, for making a contribution to the review of this bill for this committee.
We will now hear our final witness for today, Denis Barrette, Legal Counsel, Spokesperson for the International Civil Liberties Monitoring Group and the Ligue des droits et libertés. Welcome, Mr. Barrette, and the floor is yours.
[Translation]
Denis Barrette, Legal Counsel, Spokesperson for the International Civil Liberties Monitoring Group and the Ligue des droits et libertés: Mr. Chair, unfortunately, our organization, the International Civil Liberties Monitoring Group, did not have time to prepare a brief for you, although we may send you one in support of our presentation at a later date.
I would like to begin by saying that we have already appeared before both the House and the Senate committees and our position on the Antiterrorism Act, including the two clauses at issue today, has not changed.
The International Civil Liberties Monitoring Group and the Ligue des droits et libertés believe the provisions relating to investigative hearings and recognizance with conditions to be both dangerous and misleading.
Parliamentary debate of this matter ought to be based on a rational and informed review of the Anti-terrorism Act, a piece of legislation that was rushed through Parliament after the events of September 11, 2001 in a climate of fear and in response to considerable pressure from the United States.
Six years later, the spectre of terrorism is still with us; it is not, however, the only, or indeed the most important, threat with which humanity is confronted.
Furthermore, it has become obvious that the provisions of the Anti-terrorism Act are not necessary to combat terrorism. The standard provisions of the Criminal Code have proven to be amply sufficient thus far to allow police to lead inquiries into cases of presumed terrorist conspiracies. This assertion has been substantiated in dozens of briefs tabled as part of the various parliamentary reviews of the Anti-terrorism Act.
The two provisions at issue use a very broad definition of terrorist activity and involvement in terrorist activity. They therefore allow for the preventive arrest and compelled testimony of individuals involved in protest or dissidence entirely unrelated to our everyday understanding of terrorism.
The first provision allows for an individual to be compelled to appear before a judge and give testimony if the judge believes that he or she possesses information concerning a terrorist act that has been committed or is going to be committed. Failure to cooperate may result in arrest and imprisonment for a period of up to one year. Furthermore, even if the information obtained during the course of the hearing cannot be used to incriminate the witness in a subsequent trial, it can be used by the police to find derivative evidence which could be used at a subsequent trial.
The provision on investigative hearings gives the state a search power exempt from the constraints normally attached to such a tool. Furthermore, it introduces an inquisitorial approach, thus creating a new paradigm between the state, the police, the judiciary and the public. However, in Canada, as in all common law countries, criminal law is governed by the adversarial system, unlike France where the inquisitorial approach is favoured.
I would now to focus on some specific problems, because I do not want to take up too much of your time. As senator Joyal reminded us, it is very important to have a means of monitoring RCMP activities; however, no such mechanism currently exists in Canada, a dangerous oversight in light of two provisions.
The Arar inquiry taught us that a simple investigation can destroy the reputation, career and future of an innocent person against whom no charge has been made. To our minds, these provisions could be used in an abusive manner — take for example, the Air India case.
We also believe that the investigative hearing provision risks undermining the independence of the judiciary and, by extension, our justice system. Investigative hearings do away with the system whereby two sides put forth competing arguments.
I would also remind you that, as a professor Forcese said earlier, these two provisions strengthen the strand of taking action against the individual on the basis of suspicion.
Furthermore, the recognizance with conditions provision is an indirect means of opining a file on innocent parties.
You should also bear in mind that the new search powers that investigative hearings gave to the police undermine traditional privacy protection measures.
To conclude, we believe that Canadians would be better served and better protected if the authorities rely on the standard provisions of the Criminal Code. The use of arbitrary powers and the lowering of the standard of proof are no substitute for police work carried out in compliance with the rules. Indeed, these powers open the door to miscarriage of justice and the significant likelihood of damaging the reputation of individual citizens such as Maher Arar.
I am now ready for any questions you may have.
[English]
Senator Baker: We welcome the witness and his testimony. The witness says that the present provisions of the Criminal Code are adequate to address this particular problem, or perceived problem, that is addressed in this legislation.
Can the witness think of anything that cannot be done under the provisions of the Criminal Code in the area of investigative procedures? I think he is perhaps right that little is left that is protected by the present provisions of the Criminal Code from investigation by the police. Do you agree?
[Translation]
Mr. Barrette: If I understand you correctly, you are asking which Criminal Code provisions allow the police to carry out inquiries into terrorist activity. The first that springs to mind is conspiracy — it is a formidable tool both for the police and for the Crown prosecutor. As you know, the crime of conspiracy has existed under common law for a very long time and serves to stem planned criminal activity. All that is required is a plan, an agreement; no actual crime has to be committed for conspiracy charges to be laid.
It is a formidable tool as not only does it allow the authorities to charge individuals with planning to commit a crime that has not actually being committed, but in addition, in certain cases, the testimony of co-conspirators is admissible as rules of evidence are different. It is a formidable weapon in the Crown's arsenal and one which is often used in criminal cases.
Another commonly used tool is section 21 on parties to an offence. With regard to investigations, I would remind you that the police already have a number of tools available to carry out investigations. With regard to provisions to deal with people feared likely to commit a terrorist act, we have section 810.2 of the Criminal Code which provides for the imposition of fairly wide-ranging conditions upon somebody who represents a serious threat to public safety. It is another example of a fairly strong Criminal Code provision already available to us out with the Anti-terrorism Act. I am not sure whether I have answered your question.
[English]
Senator Baker: Yes, you certainly have. You have given specific examples in the area of conspiracy and co- conspirators in an alleged offence. The co-conspirator is compelled to give testimony against the other person charged in the offence.
Your other point relating to this one is that it is not exactly correct that one is protected under this bill from the use of the person's testimony in a future criminal proceeding. As you pointed out, that testimony can be used in a future proceeding to compare what someone said in the former proceeding with what one says in a future proceeding. Information can be derived from the evidence given under compelled testimony to pursue allegations down the road.
There is no real protection. Your point is that when this bill says that evidence given at this hearing cannot be used in a criminal proceeding against the person, that information is not exactly correct.
[Translation]
Mr. Barrette: Indeed. I appreciate that testimony provided in the investigative hearing will not be used. The primary derivative evidence is set aside. However, the investigation continues and, as you said, other means can be used to extract derivative evidence leading to more derivative evidence, and so on and so forth. The end result is that a file is built up on the individual in question and some of the evidence can be used against him. Protection against derivative evidence is limited.
The Supreme Court established a limit to avoid derivative evidence following a violation of rights, for example. There could be a snowballing effect brought on by derivative evidence. This is an inquisitorial system without the safeguards of an inquisitorial system. We do not appear before an examining magistrate who is respected for his independence, as is the case in France, but before a common law judge, who asks questions at the request of the police. This is not an adversarial debate; it is the judge — and with all due respect to judges, pardon the expression — who "pursues'' police officers' questions, in other words, who lends weight to police questions. In a certain sense, he is echoing the views of the police force.
Indeed, that was something Justice Fish alluded to in the Supreme Court ruling. The independence of the judicial system is at play here.
[English]
Senator Baker: Let me ask you if you are concerned about wording in the proposed section 83.28(11) in the English version of this bill on page 3 in my version. In English, the side note says: "Right to counsel.'' Paragraph (11) says, "A person has the right to retain and instruct counsel at any stage of the proceedings.''
I do not know whether the witness can tell us if he has ever seen such a sentence in a piece of legislation. This sentence could mean the restriction of counsel prior to the start of the proceedings. The proceedings in this case are defined as the investigative hearing.
Have you turned your mind to that section? Are you concerned that perhaps this sentence could be taken to mean that someone does not have a right to counsel prior to the proceeding taking place, namely, immediately during the swearing of the affidavit and during its delivery?
[Translation]
Mr. Barrette: This is perhaps similar to a situation involving search warrants. When police officers enter someone's place with a search warrant and are looking for a computer, for instance, the person in question has obviously not attended the debate before the judge allowing the search warrant to be issued. However, if the person contacts a lawyer, he could definitely challenge the soundness or legality of the search warrant.
According to provision 11, counsel has little means to challenge the judicial investigation warrant issued against his client especially since this is a matter of national security. A large part of the evidence remains secret. The problems are similar to those caused by security certificates, as was the case with the Arar inquiry where a good number of hearings were held in camera. Several representations had to be made before the Federal Court in order to obtain part of the evidence available to Mr. Arar's lawyers. Counsel have very few means in such situations.
Counsel can be retained, except this is not an adversarial debate but an inquisitorial debate. Therefore, counsel have only as much leeway as they do when representing a witness during a commission of inquiry. Counsel can file objections during the verbal testimony, but their mandate is very limited.
[English]
Senator Baker: In conclusion, you made reference at various points in your testimony to the rights of an individual. Of course, during this entire proceeding, one thinks about the challenging of the authorization and whether it violates a Charter right.
As a litigator, is it difficult to win a Charter argument on, let us take a section of the Charter under legal rights, section 11(b), for example, or section 11 of the Charter. You have litigated some of these sections in the past. When you question legislation like this, is it difficult to meet the standards, say, to get a stay entered because of a violation of someone's Charter rights?
[Translation]
Mr. Barrette: Of course, the Supreme Court has overturned legislative provisions. There is even a ruling on the section dealing with judicial investigations, however, while the Supreme Court considers the constitutionality of a provision and whether to overturn a decision, victims are left waiting at various stages of the lengthy process. There are many victims who will not challenge provisions that could later be deemed unconstitutional.
That is why I often advise parliamentarians, whether they be senators or MPs, to avoid delegating their parliamentary responsibilities to the Supreme Court with regard to respecting the fundamental principles of the Charter of Rights and Freedoms. The Supreme Court will issue rulings and rescind provisions that do not comply with the Charter of Rights and Freedoms, but that is not in line with the objective of the Charter, i.e., to protect people before their rights are violated and allow politicians to arrive at an understanding of respect as it pertains to fundamental human rights.
There is also another important aspect that we must never forget, namely, access to justice. Currently, in Quebec, the judge increasingly has to appoint lawyers to cross-examine victims of sexual assault or domestic violence because these individuals do not have the means to pay for a lawyer and they are not eligible for legal aid. Because of this eligibility problem, we see more and more such cases in Quebec. This is a serious obstacle for individuals who want to challenge the constitutionality of a provision.
[English]
Senator Baker: I know that the witness has brought many Charter arguments before the court on behalf of clients in the past. My direct question is, does he find it extremely difficult to prove a Charter violation in the clearest of cases?
[Translation]
This is very difficult because the courts must use judicial restraint with respect to legislation and regulations adopted by parliaments. Because of this obligation to use judicial restraint, the act or regulation that is being challenged is at the outset presumed to be constitutional and to be in compliance with the Charter of Rights and Freedoms because it is presumed that the provincial or federal members of Parliament or the senators considered compliance with fundamental rights. The burden of proof to demonstrate that there has been a violation lies with the individual challenging the constitutionality. In many cases, the violation does not comply with section 1, namely that it is not reasonable in a democratic society.
Senator Joyal: Am I to understand from your comments that, in your opinion, the general provisions of the Criminal Code, as they are currently drafted, do give the police the tools they need to ensure the safety of Canadians without having to resort to use of these two escape clauses?
Mr. Barrette: Yes, I strongly believe that this is the case. Moreover, the simple fact that these clauses have been used but rarely constitutes, to some extent, evidence of this. This judicial investigation tool was used in the Air India case. We know under which circumstances this clause was used. The Crown begins a trial, one of the witnesses is reluctant to talk, so before having this individual testify at the trial, he or she is tested using this judicial investigation clause. It is done in secrecy. We only find out by accident whether or not a witness connected to the case is being tested. The reporters get involved and there is a series of decisions and the case winds up in Supreme Court.
In the final analysis, we also have to remember two things; despite the fact that this clause was found to be constitutional and despite its use in the Air India case, the main individuals accused were acquitted. So we cannot say, even under these circumstances, that this clause was useful.
Unfortunately, as far as the Air India terrorist act is concerned, there were deficiencies in the way that CSIS, the RCMP and even the Sûreté du Québec operated, because we recently found out that the plane had landed in Montreal and that a dog handler had been called to check out whether or not there was a bomb on board, but the plane did not wait for the dog handler to arrive and took off.
Because of several weaknesses in the investigative methods used at that time, which was prior to the Anti-terrorism Act, the unfortunate incident occurred. This is a sad and unfortunate example demonstrating how useless these two clauses are.
Before you arrived, I was talking about conspiracy and also about section 810.2 of the Criminal Code and the importance of allowing the judiciary to fulfil its role of issuing search warrants under very strict conditions.
I do understand that a search warrant is issued in camera, but when a person testifies, this must not be done as an inquisitorial proceeding and the judge must not be the spokesperson for the police department. Unfortunately, this is more or less how I view the judicial investigation. I believe that the police can investigate quite effectively without that measure.
If Mr. Arar had not been sent to Syria, because we recall that he was a subject of interest, he could have been drawn into a judicial investigation, and he would have had a great deal of difficulty restoring his reputation. That is one of the impacts of a judicial investigation: the person is innocent and is subsequently freed. The fact remains that Mr. Arar's reputation is sullied for life, because everyone will see him as a person who has terrorist connections. And it is because he was imprisoned in Syria, and thanks to a campaign in his favour in Canada and a public inquiry that we were able to discover the truth about him. If that had not been the case, we would never have known.
I was very pleased to hear you talk about a monitoring system earlier on. I believe that this is a necessity nowadays, in order to monitor the behaviour of the RCMP and the intelligence services in the various departments we have in Canada. Still, the debate is yet to come because we have no bill before us, we have no legislation despite the commissioner's conclusions. With all due respect, I believe that a monitoring mechanism would not enable us to minimize the damage done to the administration of justice when the police can use judges to advance their investigations.
But I do nevertheless find it important that within the framework of any provision or inquiry on terrorism there be a monitoring mechanism that provides for a follow-up on police actions.
Senator Joyal: If I understand you correctly, there are several components to your argument asking us to defeat this bill. I will not repeat them in seriatim, as we used to say in Latin, that is to say one by one, but at the outset, you said that there are already enough powers in the Criminal Code that are as effective as these provisions.
Second, you said — and I am remembering from previous answers you gave to Senator Baker — that the Charter of Rights and Freedoms offers minimal protection. But in a way, even if a provision respects the principles of the Charter of Rights and Freedoms, it does not take into account all the implications of what a person caught up in the justice system has to deal with, and the subsequent consequences which result in that person not being able to restore their reputation or reverse what they lost in the process.
Third, you said for legal policy reasons, making judges play a role that defines them as police is a poor policy and criminal justice principle.
Does that pretty well sum up the way in which you interpret the implications of this bill for the Canadian justice system?
Mr. Barrette: In a way, yes. But I would add that we must always take into account the very broad definition of terrorist activities given in the Anti-terrorism Act, which is still in effect. This allows for investigations to be undertaken on religious, political or ideological grounds. Because it was the beginning — and Kent Roach said it at the time, and we have all repeated it — of motive as grounds for police investigation.
We must remember that a judicial investigation is on par with a police investigation and not on the level of a person being charged. It is on that level that a person could be forced to participate in an investigation or obliged to submit to limitations on their freedom.
Your Latin is better than mine, but I wonder whether you are talking about the onion principle that they describe so well. For us, at the heart of the matter, is the fact that there are already provisions in the Criminal Code and each time we add more provisions just for the sake of adding some more, there is a risk of violating rights and freedoms. We must always be careful about changing the Criminal Code at that level. The other thing at the heart of this matter is the very broad definition of terrorist activity. Unfortunately, we believe that this dynamic will make things worse and not better.
Senator Joyal: Perhaps you remember that when we made recommendations following our review of the antiterrorism legislation, we recommended very specifically with recommendation 3 that terrorist activity must be redefined for the purposes of this legislation.
Obviously, the government has not finished it yet and it seems to us that this is a basic defect to be revised in this legislation with regard to granting exceptional powers. As you heard earlier today, we do not, at this time, have enough information to conclude that the principle of civil surveillance the RCMP's security activities will be sufficient to effectively prevent the kind of abuse that we have witnessed in the past years.
This applies just as much to the Arar affair as to the Air India investigation. I do not want to go over the details of the inquiry, but you are all aware of the eligible loss of magnetic tapes by the RCMP, for no known reasons. I imagine that if there had been strict surveillance of the RCMP's security activities, there would probably have been less of a risk of loosing documents that are as crucial for the closure of this inquiry as those magnetic tapes are. This is just one example among others I could cite.
However, at this stage, the objective is not to draw up a list, rather, we must clearly understand that effective surveillance of RCMP antiterrorism activities can safeguard the effectiveness of the RCMP itself. I do not see any contradiction between the two; we could proceed as do the disciplinary organizations in professional orders that ensure a more effective delivery of professional services.
I am trying to understand the essential elements we must retain from the testimony that we are hearing to ensure that we could somehow close the loopholes in this bill either in good time or through other proposed legislation. I want to understand what guarantees or commitments we need to obtain to make sure that we can avoid problems like the one you described this afternoon.
Mr. Barrette: Once again, I am glad to note that the Senate is taking an interest in the definition of terrorist activity. At the time, I do not know whether some concerns of the 2006 Human Rights Committee were submitted to you.
When the United Nations Human Rights Committee studied the 2006 report on Canada, it noted, and I quote:
The Committee, while noting the existence of a social protection clause, expresses concerns about the wide definition of terrorism under the Anti-terrorism Act. The state party should adopt a more precise definition of terrorist offences, so as to ensure that individuals are not to be targeted on political, religious or ideological grounds, in connexion with measures of prevention, investigation or detention.
I could have this quote sent to your committee. As for improving the bill, I should say that I have noticed many deficiencies in it. Earlier, I quoted clause 82.28, which I noticed rather late in the day. I am talking about subsection 5, which I will read to you in French:
An order made under subsection 4 shall order the examination, on oath or not, of the person named in the order and require the person to attend at the place fixed by the judge, or by the judge designated under paragraph (b), as the case may be, for the examination. . .
I will continue with paragraph (a):
Order the person to bring to the examination anything in their position or control, and produce it to the presiding judge.
Right after that, I would invite you to read paragraph 12, on page 3, because that is where we get to seizure:
The presiding judge, if satisfied that anything produced during the course of the examination will likely be relevant to the investigation of any terrorism offence, shall order that the thing be given into the custody of the peace officer or someone acting on the peace officer's behalf.
When I read "will likely be relevant to the investigation'', I understand that I could be told this: "Denis Barrette, you are required to come before the judge and to bring your computer.'' Then, after two or three miner questions, I could be told that my computer was likely to be relevant to the examination, and that it would be kept so that the investigation could be continued. My computer would have been seized.
That is fairly striking. There is no description of the thing, there is nothing to state what events followed or what is done with the thing, there is no reporting requirement, and there is no maximum period during which the thing may be kept.
We end up with a seizure that could turn out to be a fishing expedition. In English, the phrase is "would likely be relevant,'' something which is really quite broad. The 72-hour provision worries me, and as professor Forcese was saying earlier, questioning someone for 72 hours is very long.
Moreover, the two provisions might be used at the same time. There is nothing to prevent police officers from applying both the preventive provision and conducting a judicial investigation. Fortunately this has not been done, but as the bill stands it could be done.
Ultimately, the issue of national security will mean the debate will take place primarily in camera and will be prolonged when it comes to anyone who wants to defend his rights.
There is another provision I have not mentioned. In section 83.33(2) which concerns preventive conditions, there is a transitional provision that provides for retrospective application of conditions that might restrict freedom. It states:
In the event that section 83.3 ceases to have effect in accordance with section 83.32, a person detained in custody under section 83.3 shall be released when that section ceases to have effect.''
Except that the subsections setting out conditions continue to apply to a person who was taken before a judge under section 83.3. In other words, the provision was supplied retrospectively, even if it is no longer in effect.
I would like to point out a further problem. Unlike section 810, which professor Forcese was talking about, when a person is summoned before the court under an order to keep the peace pursuant sections 810, 810.1 and 810.2, there is no fingerprinting. When you look at the Identification of Criminals Act, there is a provision in the case of 83.33, which means that a person subject to a recognizance under 83.33 has a record established and is required to give his fingerprints. The exemption under the Identification of Criminals Act continues to exist.
I repeat once again that this is a person who has not been charged, who is innocent and who has found him or herself on a list. It is an indirect way of registering someone. I think I have touched on all of the technical difficulties that I see with what I was saying earlier on.
Senator Joyal: These comments are in addition to the points you raised earlier?
Mr. Barrette: Yes.
Senator Joyal: I would like to reiterate the position that the committee took concerning the definition of terrorist activity. I will read you recommendation number 2:
That the government legislate a single definition of terrorism for federal purposes;
and recommendation number 3:
That paragraph (c) of the definition of "threats to the security of Canada'' in section 2 of the Canadian Security and Intelligence Service Act be amended by removing the reference to a political, religious or ideological objective and replacing it with alternate wording to indicate the type of violent activities against person or property that constitute threats to the security of Canada.
So the committee had adopted a very precise recommendation on a single definition, then removing the reference to "a political, religious or ideological objective''. The government has not yet studied a bill to that effect, but that was the position of the committee as far as the definition of terrorist activity is concerned.
Mr. Barrette: I would say that is significant progress in comparison with the current provision and that goes a long way toward answering the concerns expressed by the Human Rights Committee in Geneva in 2006 that I was reading earlier.
Senator Joyal: As far as the judicial investigation into the Supreme Court decision is concerned following the complaints that had been filed, in your opinion, are the conditions defined by the Supreme Court similar to those in the text we are studying today, as far as Bill S-3 is concerned?
Mr. Barrette: In some measure, yes, but I think that Professor Forcese's criticisms on this issue are quite relevant regarding the majority decision of the Supreme Court. There are criticisms to be made regarding the judicial investigation. Obviously, the rules have not been established regarding the in camera and public portions. I must say that nothing is clear for the moment on that issue.
Personally, I share the dissenting opinion. At the time, Mr. Justice Morris Fish addressed the matter. He felt that this provision undermined the independence of the judiciary.
As far as conformity is concerned, there are indeed clarifications required.
[English]
Senator Andreychuk: I want to be clear on one thing. I think much of what you have said today is your concern about terrorism legislation, per se. You said the Criminal Code could have handled many provisions — we did not need special provisions. Much of what you said is very much what I did — and I presume most of the committee — when we first started. It was a question of determining whether we needed legislation. The government of the day at that time expressly said it needed all these provisions. We have been struck with trying to see whether we have the right balance between the rights of the individual and the right to security for the society.
If I understand you, you continue to weigh those concerns and whether we have the right balance. If I understand, you think we have taken away some rights from the individual and some processes that we should not have. Is that correct?
[Translation]
Mr. Barrette: I would not necessarily speak in terms of taking away rights. It is rather an issue of the increased risk for victims of the abuse of rights. Furthermore, clause 83.33 has never been used. As for 83.28, it was used in a file retrospectively. The Air India disaster, for example, happened before the coming into effect of the Anti-terrorism Act, and the trial happened afterwards. So there are very few tangible applications of these two provisions. However, there remains a risk. My concern, like that of the International Civil Liberties Monitoring Group, lies with the abuse of rights and the inherent dangers of these two provisions on that issue.
You will recall the testimony heard by the committee in 2001 or 2002, within the framework of the study on Bill C- 36. The fact that police would be given powers that would not be used does not seem, at the outset, to constitute a breach of rights. The representatives from the police forces are honest people and I do not doubt their integrity. They indicated their intention to be very careful in the use of this legislation. It would not be used frequently, so there would be no danger.
I always find that kind of reasoning dangerous. Once the legislation is passed, despite sunsetting clauses and others, it nevertheless remains in effect. And even though it can be used during a given period of time, the public knows that the law exists. Remember that this gives ancillary powers of persuasion to the police in situations where they are questioning people in the street, as was dealt with in the Hall decision.
The police always work within a legal framework. However, during investigations, and with the objective of protecting the interests of the people, the natural tendency is always to go a little further than what is provided for in the legal provisions. There is another danger for rights and freedoms.
I do not know if I have answered your question. Despite the fact that for the moment, there have been few victims of these two provisions, I would say it would be best to do without them, given the risks they involve.
These laws are used in emergencies, where fear and panic are at the forefront — somewhat like what happened at the time of September 11, 2001. Fear is never a good adviser. It is rather in moments of peace and quiet that the importance of preserving rights and freedoms should be rationally assessed. It is obviously important to defend them in difficult times, but we must plan for how to protect them in difficult times.
It is easy to protect rights and freedoms in peaceful times. We must provide for the unpredictable and ensure that, in a moment of panic, legislation does not result in innocent victims because it was poorly conceived or because it was dangerous or useless.
[English]
Senator Andreychuk: You referred to the Arar case and pointed out certain situations there. The Arar case is not part of Bill S-3, correct? Or do you see that case having impact on Bill S-3?
[Translation]
Mr. Barrette: In fact, the Arar case has no direct connection to Bill S-3. However, it has had a direct impact on all matters concerning national security and the investigations that flow from that. It is one of the rare investigations, since the Mackenzie Commission and the MacDonald Commission, to deal with national security. This type of inquiry only occurs every 20 or 40 years. They are rare and have long-term repercussions.
In one sense, the Arar case will have a positive impact, we hope, on issues of national security. At the same time, it opens our eyes — and I hope it will open them for a long time — to the dangers of overly abusive legislation and methods of investigation, or to tools that seem useless but that could be dangerous.
Earlier on, I was listening to the police testimony. Once again, I am not questioning their integrity. However, I would tell you that they are always saying the same thing. The rights and freedoms advocates also have their own positions on the protection of rights. The police have told us that they do not hesitate to let it be known when they need more flexibility, more tools and more flexibility in the use of those tools. When events occur like those of September 2001, they sense the urgency more acutely and the pressure, and they want to obtain results as quickly as possible.
In that regard, the Arar case will have been a lesson on the ethics to be respected in an investigation. Another lesson we can draw from the Arar case concerns national security.
Mr. Justice O'Connor, let us remember, is a judge of the Ontario Court of Appeal and is highly respected. At the time, he had decided to make a large part of the inquiry public. The government, for its part, after months of negotiation with the Attorney General of Canada with the goal of producing a common text, objected to the tabling of the Arar report. The case was referred to the Federal Court which produced another agreement.
At the time, Maher Arar had the support of a large part of the Canadian public.
We might wonder what happens to a person who is called to a judicial investigation hearing, does not enjoy the incredible public support that Maher Arar had, is facing a difficult situation and, ultimately, cannot access the evidence because it is secret and the hearing is held in camera. This is how the proceedings will unfold and why the person's counsel will have great difficulty challenging the "reasonableness'' of his presence before the judge in order to answer questions.
[English]
The Chair: Thank you very much, Mr. Barrette.
That completes the evidence for today. Before we adjourn, one item has been circulated to you. It is a modest and minimal budget relating to provision for dinners and a modest amount for miscellaneous items; in total, $6,000.
We have a motion from Senator Fairbairn to pass the budget. Any questions? All in favour of the motion?
Hon. Senators: Agreed.
The Chair: We will meet next week at the same time. We cannot give you a precise list of witnesses. We have sent out a number of invitations, and the clerk has advised me that we should know soon. You can plan on meeting next week.
The Commons is on a tight timetable on Bill C-3. We might receive it and be asked to deal with it before the end of February because of the Supreme Court deadline, so we might have to move from one to the other.
Senator Joyal: I personally have no objection to stand Bill S-3 if we receive Bill C-3. To move on to Bill C-3 on the basis of —
Senator Andreychuk: I hope we could handle this expeditiously and move it on.
The Chair: We do not need to complete this review before we go to Bill C-3.
Senator Andreychuk: I think, in efficiency, we should try to complete this bill if we can.
The Chair: We all agree with that.
Senator Andreychuk: Good.
The Chair: Thank you very much.
The committee adjourned.