ANNUAL REPORT ON THE USE OF ARRESTS WITHOUT WARRANT
PURSUANT TO THE ANTI-TERRORISM ACT
SUBSECTION 83.31(3) OF THE CRIMINAL CODE
2004
TABLE OF CONTENTS
SECTION I - INTRODUCTION
SECTION II - OVERVIEW OF ARREST WITHOUT WARRANT POWER
SECTION III - STATISTICS
SECTION IV - GENERAL ASSESSMENT
SECTION I – INTRODUCTION As part of Canada’s Anti-Terrorism Plan, the Government introduced
the Anti-terrorism Act (Bill C-36) in Parliament on October 15,
2001, which later received Royal Assent on December 18, 2001.
Through amendments to the Criminal Code, the new Act created
measures to take enforcement action in order to prevent terrorist incidents
from taking place and provided law enforcement agencies with new investigative
tools. Examples of such tools are the focus of investigative hearings and
preventive arrests.
The Minister of Public Safety and Emergency Preparedness (PSEPC) is required
under subsection 83.31(3) of the Criminal Code to prepare and submit
to Parliament an annual report pertaining to the use of thearrest
without warrant power (preventive arrest).
The Criminal Code also requires the Minister responsible for policing
in every province to publish or otherwise make available to the public an
annual report pertaining to the use of thearrest without
warrant power, the period of detention and the number of cases where a person
was arrested without warrant and subsequently released.
The first two annual reports by the Minister of PSEPC have beentabled
in Parliament. During the reporting period for both reports (December
24, 2001 to December 23, 2003), subsection 83.3(4) of the Criminal Code was
not exercised by the Royal Canadian Mounted Police, nor was any
other provision that related to the arrest without warrant power.
These two reports are available to view on-line or download from the following
Public Safety and Emergency Preparedness Canada Web pages: http://www.psepc.gc.ca/publications/national_security/ARC36_2002_e.asp and http://www.psepc.gc.ca/publications/national_security/ARC36_2003_e.asp
The Attorney General of Canada is
also required, pursuant to subsection 83.31(2) of the Criminal Code,
to prepare and submit to Parliament an annual report on the use of the arrest
with warrant power.
For the purposes of this report,
the data herein includes the reporting requirements for the governments
of the Yukon, Northwest Territories and Nunavut.
SECTION II – OVERVIEW OF ARREST
WITHOUT WARRANT POWER
A key focus of the Government’s Anti-Terrorism Plan is to prevent
terrorist incidents from occurring by providing the necessary tools to police,
prosecutors and the courts. Section 83.28 and 83.29 of the Criminal
Code allow a peace officer, “for purposes of an investigation
of a terrorism offence”, to apply ex parte to a judge for
an order to gather information relevant to that investigation. This procedure
has parallels in Canadian mutual legal assistance legislation. It authorizes
the judge to order the examination of a material witness who may possess
information regarding a terrorist offence that has been, or may be, committed.
The procedure is not designed to initiate a prosecution against the individual
and, in fact, the person is protected by subsection 83.28(10) from his or
her statements being used in any criminal proceeding against him or her,
except for a prosecution for perjury or giving false evidence. Other safeguards
of the individual’s rights are built into the procedure.
Section 83.3 of the Criminal Code allows a peace officer to make
an arrest, inter alia, where there are reasonable grounds to believe that
the person will commit a terrorist act. Subsection 83.3(4) allows a peace
officer to arrest without a warrant under exceptional circumstances when
it is believed a terrorist act is about to occur, and it is impractical
to obtain the necessary warrant in time. The philosophy behind this power
is that prevention is the most effective approach to combat terrorism.
The following are the key features of the arrest without warrant regime:
- A peace officer must believe on reasonable grounds that a terrorist
activity will be carried out and must suspect on reasonable grounds
that an arrest is necessary to prevent the carrying out of a
terrorist activity;
- Exigent circumstances make it impracticable to obtain the consent
of the Attorney General and to lay an information before a provincial
court judge; and,
- A peace officer suspects on reasonable grounds that the detention
of a person in custody is necessary to prevent a terrorist activity.
When the above conditions are met, the person may be arrested without warrant.
The following are the key features of the procedural regime:
- The arresting officer is required to lay an information with
the consent of the Attorney General of Canada before a provincial
court judge with respect to the reasonable grounds for the arrest;
- A person arrested without warrant can be released before being
taken before a provincial court judge by the arresting officer
or officer in charge;
- A person arrested without warrant and detained in custody
shall be taken before a provincial court judge, if the judge
is available, within 24 hours. If a provincial court judge is
not available within 24 hours after the person has been arrested,
the person shall be taken before a provincial court judge as
soon as possible; and,
- Once before the provincial court judge, an order can be made
by the judge to release the person if an information has not
been laid. Where an information has been laid, the judge can
order the person released unless the peace officer can show cause
why the detention is necessary. The judge can also adjourn the
matter to a hearing that must occur within 48 hours.
Both the investigative hearing and preventive arrest provisions are subject
to annual reporting requirements and are sunsetted - they expire at the
end of the fifteenth sitting day of Parliament after December 31, 2006,
unless, before the end of that day, an extension by resolution is sought
and passed by both Houses of Parliament.
Subsection 83.31(4) of the Criminal Code imposes some limitations
on the annual report in that the information disclosed shall not compromise
or hinder any ongoing investigations or endanger the life or safety of anyone.
In addition, the disclosure shall not prejudice any legal proceedings or
otherwise be contrary to the public interest.
SECTION III – STATISTICS
Paragraphs 83.31(3)(a) and 83.31(3)(b) of the Criminal Code require
the Minister of Public Safety and Emergency Preparedness to report on an
annual basis information relating to:
83.31(3)(a)
- The number of arrests without warrant.
- The period of the arrested person’s detention in each
case.
From December 24, 2003, to December 23, 2004, both the Royal Canadian Mounted
Police and the Department of Justice Federal Prosecution Services report
that there were no arrests without warrant pursuant to subsection 83.3(4)
of the Criminal Code. As such, there is no data to report in relation
to the period of the arrested person’s detention.
83.31(3)(b)
- The number of cases where a person arrested without a warrant
was released by a peace officer.
- The number of cases where a person arrested without a warrant
was released by a judge.
Since no arrests without warrant were made under subsection 83.3(4), there
is also no data to report as per paragraph 83.31(3)(b). This has been confirmed
by the Royal Canadian Mounted Police and Department of Justice Federal Prosecution
Services.
SECTION IV – GENERAL ASSESSMENT
The provisions in the Anti-terrorism Act for investigative hearings
and preventive arrests are intended to provide tools to the police, prosecutors
and courts in support of effective identification and investigation of terrorist
threats and activities, within the general objective of preventing the occurrence
of such activities.
The fact that subsection 83.3(4) of the Criminal Code was not
exercised by the Royal Canadian Mounted Police during the Anti-terrorism
Act’sthree year existence illustrates several
things.
It is an indication that the power of arrest provision is viewed as a uniquely
preventive measure by the police. It illustrates that law enforcement does
not take lightly the carefully circumscribed powers that they have been
given by Parliament in the
Anti-terrorism Act and are sensitive to the implications of exercising
such powers.
The result is that this provision within the Anti-terrorism Act is
fulfilling its original intent: ensuring the legislative means of protecting
Canadians and the global community, while at the same time respecting Canadian
values of fairness and human rights, which includes balancing the rights
of security of the person and the protection of civil liberties.
The annual reporting requirements within the Anti-terrorism Act will
continue to provide a useful opportunity for analyzing the utility of these
measures, if and when they are used.
The Anti-terrorism Act is also subject to a comprehensive review
within three years of receiving royal assent as outlined in section 145
of the Act. On December 14, 2004, the Parliamentary Review of the Ant-terrorism
Act was announced.This review will provide a further
opportunity to assess the usefulness of the arrest without warrant power
under the Act, addressed in this annual report, and of the investigative
hearing provisions and other aspects of the recognizance with conditions
provisions, addressed in the annual report of the Attorney General of Canada.
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