Madam Speaker, I am pleased to take part in the second reading debate in relation to Bill C-17.
It is perhaps timely that this debate begins only days after the only man convicted in the Air India bombing, Inderjit Singh Reyat, was found guilty of committing perjury during the 2003 trial of Ajaib Singh Bagri and Ripudaman Singh Malik, who were ultimately acquitted of criminal charges arising from the Air India bombing. It is a sober reminder that terrorism has caused the death of hundreds of Canadians. Let us not forget the tragic total resulting from that mass murder, 329 passengers and crew, when Air India flight 182 was blown up in mid-flight, and two baggage handlers were killed at Tokyo's Narita Airport.
The hon. members of this House may recall that in November 2005, the Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness heard testimony from Maureen Basnicki, whose husband died at the World Trade Centre on 9/11, and from Mr. Bal Gupta, chair of the Air India Victims Families' Association. Their testimony was given as part of the parliamentary review of the Anti-terrorism Act. In his testimony, Mr. Gupta read into the record the following recommendations:
The Anti-terrorism Act should not be repealed or softened, and its provisions should be strengthened by closing loopholes...There will be more legal tools to compel witnesses to testify in terrorism-related cases.
At that time, the two powers that Bill C-17 proposes to reinstate, the investigative hearing and the recognizance with conditions, were part of the Anti-terrorism Act. They had yet to sunset. Later, according to newspaper reports, Mr. Gupta supported extending the life of these tools when Parliament was debating whether to extend them or to have them sunset in early 2007. As members know, they did sunset in 2007.
The Air India tragedy and the events of 9/11 remind us that when enacting anti-terrorism legislation for combating terrorism in a manner that has due regard for fundamental human rights, we must consider not only the rights and freedoms of those that may be accused of terrorism, but also the tragic human cost to terrorism itself, not only the deaths of or harm done to the victims, but also the harm done to their families.
I recently came across a study written by Professor Craig Forcese, which included the following quote from Mr. Justice Laws of the English Court of Appeal. It eloquently describes the difficult task facing legislators in this area. It is a long quote, but an important one, so I hope members will please bear with me. He wrote:
This grave and present threat [of terrorism] cannot be neutralised by the processes of investigation and trial pursuant to the general criminal law. The reach of those processes is marked by what can be proved beyond reasonable doubt...In these circumstances the state faces a dilemma. If it limits the means by which the citizens are protected against the threat of terrorist outrage to the ordinary measures of the criminal law, it leaves a yawning gap. It exposes its people to the possibility of indiscriminate murder committed by extremists who for want of evidence could not be brought to book in the criminal courts. But if it fills the gap by confining them without trial it affronts “the most fundamental and probably the oldest, most hardly won and the most universally recognised of human rights”: freedom from executive detention.
In light of these concerns, it is appropriate that any proposal to reinstate the powers of the investigative hearing and the recognizance with conditions should be subjected to rigorous review. It is right and proper that this bill should now be reviewed by this Parliament. In doing so, however, I would remind hon. members that this bill does not appear out of the blue. It is a culmination of efforts by previous Parliaments to seek to improve this legislation, including the parliamentary committees that reviewed the Anti-terrorism Act.
Bill C-17 was carefully drafted to respond to many of the recommendations made by both the Senate and the House of Commons committees that reviewed the Anti-terrorism Act. Not all recommendations were accepted but many were. In addition, a previous version of the Bill, Bill S-3, was reviewed by the Senate special committee on anti-terrorism, and as a result, further amendments were made. These are all incorporated into Bill C-17.
Further, I would add, there has also been a judicial review by the highest court of the land, the Supreme Court of Canada, of one of the two key tools found in this bill, the investigative hearing.
I wish to address much of the remainder of this speech to a number of criticisms made in the investigative hearing during that legal challenge and the court's response to them. Hopefully, this will give all hon. members a better understanding of the complex issues raised by this tool and how it was fashioned in a manner to protect fundamental human rights.
Perhaps the major argument against the investigative hearing was that it denied a person the right to silence and/or the right of self-incrimination. However, the court rejected this argument. After examining the robust protection against self-incrimination found in the then existing legislation, the court noted:
--the procedural protections available to the appellant in relation to the judicial investigative hearing are equal to and, in the case of derivative use immunity, greater than the protections afforded to witnesses compelled to testify in other proceedings, such as criminal trials, preliminary inquiries or commission hearings.
As well, in order to prevent possible future abuse, the court expanded the use and derivative use immunity protections beyond the scope of criminal proceedings to include deportation and extradition proceedings.
Another major argument was that the investigative hearing compromised the independence of the judiciary because it co-opted the judiciary into performing executive investigatory functions in place of its usual adjudicative role. However, the majority of the Supreme Court rejected this claim, arguing that:
The function of the judge in a judicial investigative hearing is not to act as “an agent of the state”, but rather, to protect the integrity of the investigation and, in particular, the interests of the named person vis-à-vis the state.
Another argument made was that the independence of Crown counsel was compromised because the Crown counsel's role became impermissibly intertwined with the police task of investigation. Again, the Supreme Court rejected this argument, pointing out that, in part:
--one may assume that by bringing Crown counsel into the judicial investigative hearing process, the legislature intended that the Crown would conduct itself according to its proper role as an officer of the court and its duty of impartiality in the public interest...The mere fact of their involvement in the investigation need not compromise Crown counsel’s objectivity, as the critical component is their own “necessary vigilance”--
Another argument was that the investigative hearing in the court challenge was that the judicial investigative hearing in the circumstances of this case served the improper purpose of obtaining pretrial discovery for the Air India trial. However, the majority of the Supreme Court of Canada rejected this argument, agreeing with the trial judge that its purpose had been predominantly investigative.
As well, in a companion case issued the same day, the Supreme Court held that the open court principle applies to an investigative hearing. It held that while the application for an investigative hearing should not be held in public, akin to the application for a search warrant where it comes to the investigative hearing itself, there should be a presumption of openness.
In reaching this conclusion, the court adapted the Dagenais/Mentuck test which had been developed in case law in relation to publication bans to the investigative hearing. The court acknowledged, however, that there could be circumstances where the presumption could be rebutted. It stated:
It may very well be that by necessity large parts of judicial investigative hearings will be held in secret. It may also very well be that the very existence of these hearings will at times have to be kept secret. It is too early to determine, in reality, how many hearings will be resorted to and what form they will take. This is an entirely novel procedure, and this is the first case — to our knowledge — in which it has been used.
To summarize, Bill C-17 builds upon the original provisions governing the investigative hearing. It builds upon them by adding additional safeguards, but the foundation remains the same. This foundation was examined by the Supreme Court of Canada in 2004 and was upheld to be constitutional. In our future deliberations about this bill, we should not forget that the investigative hearing has already passed the test of compliance with the Canadian Charter of Rights and Freedoms.
Let me now proceed to the recognizance with conditions provision. Unlike the investigative hearing provision, the recognizance with conditions power created in 2001 by the Anti-terrorism Act was never tested in the courts. However, it is based on the peace bond provisions found in other parts of the Criminal Code, albeit with modifications so that it can be used to disrupt nascent terrorist activity.
It is particularly with regard to the recognizance with conditions that the quotation from Lord Justice Laws that I used at the beginning of my speech is apt.
This is because it can be used in circumstances where the information obtained by the police gives rise to a reasonable belief that a terrorist activity will be committed, where there is insufficient information that could allow the police to arrest the person for involvement in a terrorism offence, but there are reasonable grounds to suspect that it is necessary to impose a recognizance with conditions on the person to prevent the carrying out of the terrorist activity.
Some have argued that this is too great an extension of the criminal law power. Let regular police powers apply, they argue, in which case they mean that the police already have the power to arrest someone who they believe on reasonable grounds is about to commit an indictable offence. However, the difficulty with this proposal is that it would severely restrict the ability of the state to prevent terrorism because it requires an “about to commit test” which reports the concept of imminent harm.
In contrast, the recognizance with conditions provisions found in Bill C-17 increases the ability of the state to take preventative measures to protect persons from terrorism, but it does so, in my mind, in a way that is consistent with the rule of law. Hence the need for a two-pronged test to be satisfied: a reasonable grounds to belief test, and a reasonable grounds to suspect test. Reasonable suspicion alone is not enough.
Moreover, I also point out that important accountability mechanisms are built into the provisions of this bill. Some of these are carried forward from the original legislation. First and foremost, the investigative hearing and the recognizance with conditions would be subject to a sunset clause which would result in their expiry after five years unless renewed by parliamentary resolution. As well, there would be annual reporting requirements by the federal government and the provinces on the use of these provisions. Although, in the case of the federal government, there would be an expanded reporting requirement.
In addition, these provisions would not be able to be used unless the consent of the appropriate attorney general is first obtained. This is true even in the case of a person who is arrested without warrant under the recognizance with conditions tool. While the peace officer in such a case would be able to arrest the person to bring the individual before a judge, he or she would still have to obtain the consent of the appropriate attorney general in order to lay any information before such a judge. This is a condition that must be satisfied before a hearing can take place to decide if a recognizance should be imposed.
Also provided for in the bill is a provision inserted by the Senate when it was reviewing a previous version of Bill S-3. Parliament must review these provisions prior to the date that they sunset. As part of this review process Parliament would be able to examine the degree to which these provisions had been used, successfully or unsuccessfully, and would be able to make a determination based on the available evidence as to whether or not these provisions would continue to be needed.
I believe all of us in this House believe that terrorism should be combated. For those who believe that the existing criminal law is sufficient to combat terrorism, I respectfully disagree. I believe events both outside and inside Canada, such as the recent convictions in the Toronto 18 case and the recent arrests in Toronto, show that the threat of terrorism is an ongoing concern and that there is a need for the tools of the investigative hearing and the recognizance with conditions.
However, I also recognize that in order to combat terrorism successfully these measures must be crafted so as to ensure adequate protection of fundamental rights. By examining the decisions of the Supreme Court of Canada in relation to the investigative hearing, I hope I have dispelled the concerns that it violates fundamental human rights and basic notions of fairness. Indeed, I would ask all hon. members to reflect on the fact that Bill C-17 improves upon the safeguards found in the original legislation. I urge all members to support the passage of this bill.