Bill S-3 (Historical)

An Act to amend the Criminal Code (investigative hearing and recognizance with conditions)

This enactment replaces sections 83.28 to 83.3 of the Criminal Code to provide for an investigative hearing to gather information for the purposes of an investigation of a terrorism offence and to provide for the imposition of a recognizance with conditions on a person to prevent them from carrying out a terrorist activity. It also provides for those sections to cease to have effect or for the possible extension of their operation.

Criminal Code

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, the hon. member raises a very good point. In fact, he is not mistaken. Regarding the Ambassador Bridge, I have heard numbers indicating that $1 million a minute of trade goes across that privately owned bridge. I cannot account for how that bridge ever became private. I suspect that it was done before I was born, which was not that long ago, just to be clear.

With all due respect, though, the fact is that the member is looking at this single bill as the be-all and end-all of this government's agenda to fight terrorism and to make Canadians safe. The truth is that this is only part of the government's anti-terrorism efforts. I know that there is a front away on our infrastructure funding of $33 billion to improve that border crossing. Part of that will obviously include increased border security.

I would like to suggest that the previous government had an idea of putting an inspection ground on the American side. Of course the Americans said that not in their lifetimes were they going to have our vehicles come into the country and then be inspected.

I know that our government is looking at putting inspection 15 miles away from that bridge, for example, so that we can in fact increase the security of that border, which in my opinion is actually an economic security as well. I appreciate the hon. member's question, but I want the hon. member to rest assured that this is only one piece of this government's anti-terrorism actions.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, I listened intently to my good friend and colleague speak on this important amendment and bill. I would like him to expand a bit, but it is important to understand why we need anti-terrorism laws, why we need this legislation and where this began.

We know about 9/11 and we know that the United Nations passed a resolution requiring all its member nations, thus most of the world, to begin to enact measures to defeat terrorism or to protect their citizenry and the world against terrorism. Canada, of course, being the good member of the United Nations that it is, took upon itself the need to have anti-terrorism legislation.

I wonder if the hon. member might expand a bit on that and other items concerning this legislation.

[The Acting Speaker, Conservative, Royal Galipeau]

The hon. member cannot expand very much because there are only 20 seconds left.

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, I will be very brief. The sad truth is that terrorism is still alive and well in the world and we cannot sit back, put our heads in the sand and deny that it exists. We have to step up to the plate.

The number one job of a government is to keep its citizens safe. We will do what we have to do and that is what we are doing.

The House resumed consideration of the motion that Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I am pleased to speak to Bill S-3, an act to amend the Criminal Code (investigative hearing and recognizance with conditions).

Today I will focus my remarks regarding Bill S-3 on these provisions and how they compare with the provisions found in the anti-terrorism legislation of other major democratic countries. I will do so in order to show that the provisions in this bill are either similar to or in some cases narrower than those of other countries.

Let us first turn to the proposed investigative hearing procedure. Other democratic countries have similar procedures.

The United States has a grand jury procedure. A federal grand jury can compel the cooperation of persons who may have information relevant to the matters it is investigating. It can subpoena any person to testify under oath. If the individual fails to appear or refuses to answer, or fails to produce evidence or documents in his or her possession, he or she may be held in contempt absent a valid claim of privilege. If a witness or the custodian of a document asserts a valid privilege, he or she may be provided with use and derivative use immunity and then be required to comply with the subpoena to testify or produce evidence.

Investigative hearing provisions roughly equivalent to those proposed in this bill are also found in Australia and South Africa. The United Kingdom goes even further.

In 2001, the U.K. amended its Terrorism Act 2000 to create a crime of withholding information relating to a terrorism act. Specifically, a person commits a crime who fails to disclose information to the police which he or she knows or believes might be of material assistance in preventing an act of terrorism or in securing the apprehension, prosecution or conviction of someone for an offence involving the commission, preparation or instigation of a terrorist act. Punishment for this crime is up to five years' imprisonment.

Also, the U.K., through the Terrorism Act 2006, applied to terrorism investigations the disclosure notice procedure that was created by the Serious Organised Crime and Police Act 2005. Under that legislation, an investigating authority such as the director of public prosecutions, can have a disclosure notice issued to a person. The notice could require the person to answer questions relevant to the investigation, provide information or produce documents.

Let me now turn to the recognizance with conditions provision. First, the arrest without warrant power found in this provision would be, as before, very limited in scope, for example, where pressing exigent circumstances make it impractical for a peace officer to go before a judge and have the judge compel a person to attend before him or her. Where the person is arrested without warrant, the peace officer would have to bring that person before a judge within 24 hours or, if not feasible, as soon as possible thereafter.

If the judge decided to adjourn the hearing and detain the person until then, the adjournment would be for no more than 48 hours. Thus, under the recognizance with conditions power, the maximum period of time for which a person could be detained until the hearing takes place would generally be for no more than 72 hours.

However, the United Kingdom has a much broader arrest without warrant and detention power. Under section 41 of the Terrorism Act 2000, the police may arrest without warrant a person whom he or she reasonably suspects is a terrorist. The maximum period of time that a person can be held in detention without charge under this power was extended from seven days in 2000 to 14 days in 2003 and was increased again to 28 days in 2006. In January 2008, the United Kingdom government introduced a new counterterrorism bill which, if passed, would extend this period of detention, in extraordinary cases, for up to 42 days.

The U.K.'s Terrorism Act 2000 also contains other police powers not found in our Criminal Code, such as the power of a senior police officer to designate a cordoned area where considered “expedient for the purposes of a terrorist investigation”. This allows the police to, for example, order a person to leave the area or not enter the area, and failure to obey the order is an offence. The police may also be authorized to search premises in the area.

There is another power that allows a senior police officer to authorize a uniformed constable to stop and search a vehicle or pedestrian in an area set out in the authorization where the officer “considers it expedient for the prevention of acts of terrorism”.

As well, in 2005, the U.K. put in place a system of control orders which may be imposed on a person, citizen or non-citizen alike, to prevent terrorist attacks. There are two kinds of control orders that may be imposed, those that do not derogate from the European Convention on Human Rights and those which do derogate from the convention. The latter would, arguably, apply in cases of house arrest.

Some of those non-derogating control orders that had imposed lengthy, daily curfew periods were successfully challenged in the lower courts and these decisions were appealed to the House of Lords.

In the fall of 2007, the House of Lords ruled that a number of control orders that had imposed an 18 hour curfew violated the right to liberty under the European Convention on Human Rights, rendering these orders null. However, it upheld control orders that imposed 12 or 14 hour curfews.

Australia has also enacted legislation that creates a system of control orders and preventive arrests of terrorist suspects. The Australian federal police may apply for an order for preventive detention for up to 48 hours of a terrorist suspect where there has been a terrorist act or where a terrorist act is imminent. Additionally, Australian states and territories have enacted legislation allowing preventive detention for up to 14 days.

To summarize, Bill S-3 proposes a maximum period of detention of generally 72 hours in relation to the recognizance with conditions power. In contrast, a suspected terrorist in the United Kingdom may currently be detained without charge for up to 28 days. In Australia, states and territories allow for preventive detention for up to 14 days.

It is obvious that in contrast to the United Kingdom and Australia, the power to detain persons in Canada to prevent terrorist activity is far more narrow in scope. The investigative hearing and the recognizance with conditions were drafted with due regard for the Canadian Charter of Rights and Freedoms. They help to protect Canadians from the scourge of terrorism in a manner consistent with human rights. As the comparison with other democratic countries show, they have been crafted with restraint.

We must also not forget that these powers can serve to respond to our international obligations to prevent and suppress terrorism. In this regard, it should be noted that United Nations Security Council resolution 1373 states in part that state parties are to “take the necessary steps to prevent the commission of terrorist acts”.

These provisions are necessary to prevent the commission of terrorist acts and therefore they respond to the international obligation set out in resolution 1373.

For these reasons, I will be supporting this bill and I urge all hon. members in the chamber to do likewise.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, I want to thank the member for Selkirk—Interlake for enlightening us on the law that is being debated here today. In particular I want to expand on what he mentioned a few moments ago with regard to the United Nations requiring its member nations to begin to enact the anti-terrorism laws and to begin to fight the global war on terror.

Some high school students were in to see me last weekend. With regard to human rights and what is occurring around the world vis-à-vis countries using children to do some very improper things, such as strapping ammunition or explosives to their bodies and sending them into places where people are shopping, et cetera, I reminded them of what a late great world leader said. She said that this war between us and our foes will end when the enemy begins to love their children more than they hate us.

However, we are discussing the Anti-terrorism Act today and in particular some of the issues surrounding it. I want to ask my friend, the member for Selkirk—Interlake, what are some of the safeguards in respect to investigative hearings that are currently in this law?

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I agree 100% with what the member said about the need to protect our citizens in Canada, that we have some international obligations to carry this out. Definitely, Canadians right across the country expect the government and this Parliament to initiate these types of measures to ensure that terrorism can be disrupted.

When we know a terrorism undertaking may be happening, we need our police officers and our judges to have the tools they need to execute the necessary measures to disrupt the planning process. We need to be able to hold people, investigate what they are doing and, hopefully, charge them under the Criminal Code for their activities.

We need to remember there are a number of safeguards to protect the rights of these citizens we are so concerned about, especially when we talk about investigative hearings. We need to remember that this does not just involve the federal government. It also involves the provincial jurisdictions. The peace officers, of course, will be the ones carrying out the investigations, looking at the situation and then making their recommendations to the court but they will need to come forward with a pretty strong case.

First, they will need to get the consent of the attorney general of either Canada or of the respective provinces to go ahead with the application. A judge will then need to look at the information that is presented, weigh it off against the rights of the individual, along with the information as presented, and then will need to exercise his or her authority as to whether an order will be provided for the investigative hearing. Therefore there is that safeguard.

It also is important to note that both federal and provincial crown attorneys general would be required to report annually on the use of any of these investigative hearings.

This is a five year process that we are undertaking here right now with the legislation, with the review after 2011, and these annual reports will help set the tone, I believe, on ensuring the process does work, that it does protect Canadians, and that it looks at the overall scope of how this whole process was applied through the investigative hearing.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I am pleased to participate in this debate on Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) or, as I prefer to call it, the investigative hearings and preventive arrest.

This bill is a follow-up to Bill C-36, which went through the House of Commons and through the Senate in time for the provisions of investigative hearing and preventive arrest to be continued because they were sunsetted and were about to end in February 2007.

At that time there were some discussions and agreement that perhaps some enhancements could be made. The Senate has considered some enhancements to what was Bill C-36. At least the bill was passed in time for these provisions not to lapse. Now we have before us an improved former Bill C-36 in the form of Bill S-3.

I will comment in a moment on the enhanced provisions, but I would like to set the stage for a moment. It is my own view, and I think largely the view of this side of the House and our caucus, that this bill is needed for a few reasons.

First, the threat of terrorism is still with us. The threat of terrorism has not subsided. We saw not too long ago in the newspapers and other media a case in the United Kingdom where a cell of alleged terrorists had been plotting to blow up aircraft that were destined for Canada and the United States. Admittedly, they will be facing those charges in court, but there have been terrorist events preceding that.

I think we need to be ever vigilant. In fact, in Canada we should be somewhat proud that we have had a regime in place that perhaps has been successful in thwarting any attempts to compromise our national security. Having said that, we need to be ever vigilant because the terrorists do not sit idly by. It is known that al-Qaeda has Canada on its list of targets. It is no secret that our troops are in Afghanistan and that causes some consternation among certain parties. I believe this anti-terrorism regime and these provisions are still needed because terrorism is still around us and still a threat.

I also believe these provisions are needed because I do not subscribe to the argument that because we have not had a terrorist event in Canada since the original Anti-Terrorism Act was enacted that we do not need these provisions any more. To me, it is sort of tantamount to saying that if one's house has not burned down one does not need fire insurance. I think that is folly for an argument and we need to have these provisions in place to ensure we do not have a fire in our home.

Third, I think the concerns of some, when these original provisions were enacted, that they would be used in a less than judicious way by the law enforcement agencies, has proven to be wrong. The fact is that they have never been used but that should not mean that we do not need them because we do. We need to have this tool in the toolkit of our law enforcement people in Canada so that if the day comes, and hopefully it will not, they can resort to it.

There is no greater responsibility of a government than to protect and safeguard its citizens. This always needs to be carefully balanced with the civil rights of its citizens. It is a very delicate balance. I do not think anyone would be as naive or as vain to think that we always have the balance right. It is never an easy task but we need e to deal with it and that is why this bill is before this Parliament. As parliamentarians, we need to wrestle with these issues and deal with them.

We have a group in Toronto that was rounded up a couple of years ago, the Toronto 15. There is some confusion I think among Canadians about how these people were charged and rounded up. The fact is that provisions of the Criminal Code were used to arrest these people.

One could argue that if we used the provisions of the Criminal Code there, why could we not always use provisions of the Criminal Code? It is a good point but it is not a compelling argument because in this particular case the police had informants. They had information and certain evidence.

At the end of the day, of course, these people are being tried and dealt with by the prosecutors, the courts and the police. Some of them have already been released. If they were completely innocent, it is unfortunate that they had to be incarcerated for a period of time. I am not sure if some of them got out on bail but it is always an unfortunate event if people are arrested and then not subsequently charged. However, in this particular case, the police had sufficient evidence and arrested them under the provisions of the Criminal Code.

This type of situation does not always exist. We know that terrorists communicate, sometimes in encoded ways, sometimes electronically, sometimes in various shapes and forms, and our investigative forces, law enforcement and other security forces in Canada, have ways of tracking this type of communication traffic. There will be a time, and perhaps there has been already one that we are not aware of, when the law enforcement agencies will pick up something that indicates that perhaps a terrorist event is about to be committed but they do not have sufficient evidence to lay a charge or to have these people arrested.

I had the good fortune and honour to serve on the subcommittee of the Standing Committee on Public Safety and National Security. We investigated, exhaustively, the anti-terrorism legislation in Canada when it was up for review after five years. I will never forget the testimony of a gentleman who came from the United Kingdom. I forget his exact title but he was responsible for overseeing the anti-terrorism provisions in the United Kingdom.

The analogy he used was that if the police pick up information that a bank is about to be robbed, what they can do in a case like that, and they often do, is stake out that particular site. If the crime is perpetrated, then the police are there, they arrest the criminals and that is it. However, we cannot do this with a terrorist attack.

People move, and we see it all the time in various shapes and forms, different guises, perhaps with munitions strapped to them and it is often impossible to stake out. We could stake it out but then the terrorist event could happen and innocent people could lose their lives. Therefore, it is not really susceptible to that same type of action by law enforcement agencies.

I want to talk briefly about what the Senate has done to improve these provisions of preventive arrests and investigative hearings.

First, the Senate amendment calls on law enforcement to convince a judge that all reasonable attempts for the collection of information about potential or prior terrorist activity has been done before an investigative hearing is ordered.

An investigative hearing would be when the police bring together a group of people to seek out information about a possible terrorist activity. In my own judgment, I am more interested in the proactive view of how these provisions would be applied. I am not that interested in how they could be applied retroactively because I think the whole idea of the anti-terrorism legislation is to prevent a terrorist event, not go back in time, but, nonetheless, I know there are others in this House who feel differently about it. However, we need to at least have the provisions that would look forward to any proposed or possible terrorist event in the future.

What these amendments do is say that law enforcement must have to convince a judge that all other reasonable efforts have been made to deal with this, without having an investigative hearing. At an investigative hearing people are rounded up and asked to come before a judge and there are questions, and it is somewhat of an infringement on civil rights.

Nonetheless, a judge is involved within 24 hours. In other words, a hearing has to be conducted in a very swift fashion, and the same applies to preventative arrests. In fact, the people under the provisions of our law have to be released within 24 hours, and as others in this House have pointed out, these provisions are actually less onerous than those in countries like United States, United Kingdom and Australia. These amendments in the Senate call for that.

Also, another important change is that the bill now has narrower wording stipulating the grounds on which an individual may be detained. It is useful and responsible for legislators to be precise and to not leave it open to misuse. This bill and the amendments that are placed in it allow for that.

There are other provisions that call for the review of this legislation, in fact, making it mandatory to review these provisions. Rather than as an elective, Parliament is required to review these provisions at the appropriate time and interval.

These enhancements improve these measures. We never like to infringe on the civil liberties of our citizens, but at the same time we have to have measures in place that adequately safeguard our citizens. We are blessed in this country that, although I know some would argue the other way, our law enforcement people act responsibly and we have to have continuous oversight.

The RCMP has been under the public microscope lately and I am sure it has some improvements to make. This is not a police state, and we want to make sure it never even comes close to that, but our law enforcement people generally will use these tools only when they have to.

I recall at the subcommittee we had a panel. We looked at the provisions of the former Bill C-36, and this was particularly in the context of the security certificates. Even though security certificates are outside the scope of the anti-terrorism legislation, the subcommittee was tasked with looking at the provisions of the security certificates.

There was an official who came from the Department of Public Safety and National Security with a brief and a dossier on an individual who was an alleged Iranian assassin and who was being detained under a security certificate. Of course, some of the material in the dossier had to be whited out to protect allies who had provided various information and sources of information, on the grounds that it would compromise our national security. The dossier was nonetheless a very thick dossier and the official took the subcommittee through this file, indicating why this person was being detained under a security certificate.

On that same panel, there was a representative from the B.C. Civil Liberties Association. I remember turning to him at that point in time and asking whether, after hearing the profile of this particular gentleman who is being detained under a security certificate, would he like to have this person as a next door neighbour. It was kind of a risky question, but I thought it was a reasonable question to ask. In response, he said that he would not. If anyone heard this dossier, they would say that no reasonable person would want this person as a next door neighbour.

He was opposed to these kinds of provisions. I asked what the problem was and he replied that it was the process. We agreed that the process needed improvement and that is why, with respect to security certificates, that was enhanced.

We need to understand that citizens of this country want their government to have a balanced set of measures that would keep their families and themselves safe and secure in their neighbourhoods, and would have the optimal balance between those requirements while protecting the civil liberties of Canadians, which is equally important. Balance is something that we must continue to strive for in the House.

Bill S-3 provides a very good balance between those two competing elements and I certainly will be supporting it.

[The Acting Speaker, Conservative, Royal Galipeau]

It being 5:30 p.m. the House will now proceed to the consideration of private members' business as listed on today's order paper.

When we return to the study of Bill S-3, there will be four minutes left for debate for the hon. member for Etobicoke North and 10 minutes of questions and comments.

The House resumed from April 17 consideration of the motion that Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), be read the second time and referred to a committee.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am pleased to have this opportunity to speak to Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions). This bill raises some very important issues and fundamental questions about our justice system and our respect for civil liberties and human rights. I believe that this legislation compromises key principles of our justice system.

I want to begin with a quotation cited by Yusra Siddiquee, a representative of the Canadian Muslim Lawyers Association, when he appeared before the Senate committee studying this bill. He quoted Justice Binnie of the Supreme Court of Canada, who said:

The danger in the “war on terrorism” lies not only in the actual damage the terrorists can do to us but what we can do to our own legal and political institutions by way of shock, anger, anticipation, opportunism or overreaction.

It is important to keep this in mind. We have to remember that these provisions and ones similar to them in many other countries grew out of the period immediately following the September 11, 2001 attacks on New York and Washington, a period when all of us were concerned for our security and anxious and fearful.

There are two major provisions in the bill before us, one for investigative hearings and the other for preventive detention. These were part of the Anti-terrorism Act that was passed in the period immediately following September 11, 2001. In that original legislation, these particular provisions sunsetted after five years.

Under the terms of the sunset clause, the provisions of the Anti-terrorism Act relating to investigative hearings and recognizance with conditions were set to expire on March 1, 2007 unless extended by a resolution passed by both Houses of Parliament. A government motion to extend the measures without amendment for three years was defeated in the House of Commons on February 27, 2007 by a vote of 159 to 124, and the provisions ceased to have any force or effect.

That was the right decision. I am glad that the House took that decision. Now the government has reintroduced these provisions in this new legislation and that is the wrong decision. Both of these measures fundamentally compromise key principles of our justice system.

Let us consider first the provisions for investigative hearings. These provisions force someone to testify before a judge if he or she is suspected of having information about terrorist activity that has already occurred or that might occur. This provision directly compromises the right to remain silent, one of those fundamental principles of our justice system.

The refusal to testify at an investigative hearing can lead to one year of jail time. This can also reduce the right to silence for persons who are questioned by the RCMP or CSIS, in that if they are uncooperative with a police investigation, the possibility of having to go to an investigative hearing can be used to compel cooperation and compromise their right to remain silent.

Not everyone who chooses to remain silent is guilty. People may have very legitimate fears and concerns, such as fears and concerns about their own personal safety, for instance. Given the broad definition of terrorism in the Anti-terrorism Act, this provision is a problem, and the definition has come in for criticism over the years as well.

Many members who support this bill have said in debate that these are extraordinary measures that will be used in only the most serious of circumstances. I appreciate what RCMP Assistant Commissioner Mike McDonell said before the Senate committee. He stated:

First, and most importantly, the RCMP recognizes that these provisions were intended for extraordinary situations and, as such, we approach them with restraint.

My preference would be to not go down that road until it is proven clearly that the measures already at our disposal are not effective in dealing with the challenges of terrorism faced in our country. Those good intentions are noble, and I believe the commitment made by the assistant commissioner is sincere, but as the expression goes, the road to hell is paved with good intentions.

These provisions represent a very serious departure and in reality could be used against people who are legitimately protesting or are viewed as dissidents by our society. They could be used to harass or even imprison such people.

This provision also puts a judge in the position of having to oversee an investigation. This is not the practice of our justice system and is not something that most judges have any experience with. This is a major departure, since investigations in our system are undertaken by police authorities.

Jason Gratl, the president of the B.C. Civil Liberties Association, put the concern this way:

The primary difficulty with investigative hearings is that they distort the functions of the judiciary and the Crown. In essence, the course of order-making power of the judiciary is brought to bear on an investigation. That power places prosecutors in the role of investigators, which is unlike their usual role. It also places the judiciary in the position of presiding over a criminal investigation.

The other provision, preventive detention or recognizance with conditions, is the other key part of this bill. Again, this compromises a key principle of our justice system: that one should be charged, convicted and sentenced in order to be jailed.

This provision would allow the arrest and detention of people without ever proving any allegation against them. It could make people subject to conditions on release, with severe limitations on their personal freedom, and again, even if they have never been convicted of any crime.

Jailing people because we think they might do something criminal is very problematic, to say the very least, and it is easily apparent how such a measure can be easily abused. It is very similar to the provisions of the security certificate legislation in our Immigration and Refugee Protection Act. Under that legislation, five men remain either in jail or subject to incredibly strict release conditions, house arrest conditions, even though they have never been convicted of any crime in Canada.

Hassan Almrei remains in jail at the Kingston Immigration Holding Centre, a double maximum security prison. He has been there for almost seven years now, ever since just immediately after September 11, even though he has never been charged with, let alone convicted of, any crime.

Adil Charkaoui, Mohamed Harkat, Mahmoud Jaballah and Mohammad Mahjoub are prisoners in their own homes, guarded by their spouses and others. These situations are very unjust. It is wrong for this to be included in the immigration legislation. It is wrong to include this same kind of measure in our anti-terrorism legislation.

These measures open very serious files on individuals, files alleging that they have some connection to terrorism. These files are opened on people who have never been convicted of any crime. They can be based on allegations that have never been proven. How do they defend themselves in such circumstances?

In this corner of the House, we believe that the Criminal Code is the best way to deal with issues of terrorism. The NDP justice critic, the member for Windsor—Tecumseh, in his minority report on the Anti-terrorism Act review, said the following:

There is no act of terrorism that is not already a criminal offence punishable by the most stringent penalties under the Criminal Code. This is obviously the case for premeditated, cold-blooded murders; however, it is also true of the destruction of major infrastructures.

Moreover, when judges exercise their discretion during sentencing, they will consider the terrorist motive as an aggravating factor. They will find that the potential for rehabilitation is very low, that the risk of recidivism is very high and that deterrence and denunciation are grounds for stiffer sentencing. This is what they have always done in the past and there is no reason to think they will do differently in the future.

I can think of no offence related to terrorism that is not already included in the Criminal Code. I can think of no circumstance of a crime committed as part of an act of terrorism that would not be dealt with in the strictest, toughest way by our courts.

For instance, counselling to commit murder is already an offence under the Criminal Code. Being party to an offence is also a crime.

The crime of conspiracy is well established under the Criminal Code and deals with the planning of criminal activity. Let us be clear. In the conspiracy category, no crime actually has to be committed for someone to be found guilty of conspiracy under the Criminal Code.

We also have hate crime legislation that outlaws the promotion of hatred against a particular group.

It should also be noted that peace bond provisions already exist in the Criminal Code and can be exercised when there are reasonable grounds to believe that a person's life or well-being is threatened by another person. This provision has similar power to preventive detention, but more significant safeguards are built into the Criminal Code provision. No one has demonstrated to my satisfaction that this existing provision will not meet the needs of dealing with terrorist activity.

As Denis Barrette, spokesperson for the International Civil Liberties Monitoring Group and la Ligue des droits et libertes has said:

—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...

If our police and intelligence authorities do not have the resources they need to investigate potential terrorist acts and to charge those responsible, then we should review their needs immediately.

We cannot consider the bill without considering the question of racial and religious profiling. Racial and religious profiling is a problem in terrorism related investigations and prosecutions. It is a reality for many Canadians, especially those in the Arab and Muslim communities, but also to other people in other racial minority groups.

The provisions of Bill S-3 do nothing to reduce such concerns or to protect Canadian citizens from such profiling. We have to struggle with the experience of Arab and Muslim communities in Canada in the post-September 11 period.

Imam Zijad Delic, the national executive director of the Canadian Islamic Congress, and formerly the Iman of the mosque in my community, brought some of the concerns of Canadian Muslims before the Senate committee. He noted their position that the Criminal Code could deal fully with terrorism-related crimes and that it best balanced security with human rights. He also noted that ensuring all Canadians participated fully in our society without having to be regarded with suspicion was very important. He said:

Education, engagement, participation and institutional integration through inclusion are far better alternatives....moving forward with good faith will create the atmosphere of trust, cooperation and engagement we need to make progress.

He also made a very direct plea at the committee when he said:

On policies and practices, profiling Canadian Muslims is an issue on which the Government of Canada and Canadian Muslims differ significantly. Muslims cannot accept that we are profiled as a security threat to our own country. If government policy is not engaged in profiling, its actual operational practices speak differently, as evidenced by many cases in Canada. Please do not give our law-and-order people more power without appropriate accountability....Canada does not need laws that will prevent its citizens from feeling accepted, embraced, safe and secure. Canada needs to rethink its approach toward this bill and to focus on bridge-building between government and the many communities and groups that make us the unique mosaic we are.

There is an important message in his statement. We must pay clear attention to the effect that legislation like Bill S-3 and its extraordinary provisions have in our communities, the effect that it will have on some law-abiding, honourable Canadians. If the legislation increases their insecurity, if it does not promote their safety, how can we believe that somehow it adds to the overall protection of Canadian society?

J.S. Woodsworth, the first leader of the CCF, once said, “What we desire for ourselves we wish for all”. We would be well advised to struggle with the meaning of that in the context of developing anti-terrorism and security measures that are experienced positively by all those Canadians who seek peace and justice, respect the law, promote values of equality and oppose terrorism.

I should point out that the NDP has a proposal to address racial and religious profiling in Canada in Bill C-493, which I tabled in the House. The original version of this bill was tabled by the member for Vancouver East and after consultations with members of the Arab, Muslim, black, aboriginal and South Asian communities, it was revised and re-tabled as Bill C-493.

That bill states that enforcement officers from the RCMP, Canada Customs, Canada Revenue Agency, the immigration department, Canada Border Security Agency, those operating under the Aeronautics Act or CSIS must not engage in racial or religious profiling. Those agencies must collect data to ensure this practice is not engaged and must put in place explicit policies and procedures to prevent it and to respond to complaints. They must also undertake an analysis of racism and how it functions in the context of the particular agency.

Racial and religious profiling is hugely detrimental to the stability and success of Canadian society. It must not be tolerated in any form. We must be explicit in our condemnation of it and ensure it is prohibited in law.

Denis Barrette also stated at the Senate hearings on Bill S-3:

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.

I say clearly that I am opposed to Bill S-3 and the revisions it makes to the Anti-Terrorism Act, to reintroduce investigative hearings and preventive detention. We should instead let the Criminal Code of Canada do the job, a job it is fully capable of doing. We must also ensure that our police and intelligence authorities have the resources they need to carry out their investigations effectively and with respect for all Canadian citizens for human rights and for civil liberties.

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

Mr. Speaker, my question is for my colleague across the way.

What happens when an individual is a suspect and then ends up being found not guilty? What happens then? Does the bill provide for any compensation or anything else? What happens to that person who was labelled and whose reputation was tarnished by accusations that turned out to be untrue?

Could the member tell me, and everyone listening today, whether there are any provisions in this bill that provide something for those individuals who were suspected and turned out to be innocent?

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am not sure the legislation provides anything in that regard, and this is a serious problem. The legislation opens the door to people being subjected to extreme penalties, like detention, like having severe limitations put on their everyday activities, based on allegations that have never been proven in a court of law. That is one of the most unjust things a society can do to anyone.

The fact one can have allegations that are never tested by our rules of evidence, that are never tested in a court of law and that this can determine whether a person is free to move in society is extremely unjust.

Yesterday during the debate, we heard one member talk about his experience in a standing committee. I believe a representative of CSIS brought in an example of the kinds of dossiers it had on some people who were of concern to it. The member described this as being a very significant document, which outlined many very serious concerns. He said that he found it very disturbing.

He said that he put a question to a representative from the Civil Liberties Organization. He asked if the person wanted to live next door to a person like that. He said that the answer was no, that the person did not want to next door. I would have to look at the context of that discussion and question.

However, if I were to answer that question, I would consider the document provided to be a large dossier of allegations and until the day it was proven beyond a reasonable doubt in a court of law, that person deserved to live in my neighbourhood, or anybody else's neighbourhood. When we begin to make judgments about our fellow citizens, based on unproven allegations, we have gone down a very slippery slope to a place where I think most Canadians would have very serious concerns about human rights and civil liberties in our country.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I congratulate the member for Burnaby—Douglas on his speech. I know that he is a parliamentarian who always prepares his speeches carefully.

This bill raises a number of concerns. In fact, it is giving grey hair to all the parliamentarians in this House who are concerned about human rights.

We are discussing provisions that the House did not vote for and that someone is trying to bring back to life. I would like our colleague to tell us how many objectionable provisions there are in this bill in terms of the major constitutional guarantees provided by the charter, for example, the presumption of innocence and the right to remain silent.