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ANNUAL REPORT ON THE
USE
OF ARREST WITHOUT WARRANT
PURSUANT TO THE ANTI-TERRORISM ACT
SUBSECTION 83.31(3) OF THE CRIMINAL CODE
2002
TABLE OF CONTENTS
SECTION I - INTRODUCTION
SECTION II - OVERVIEW OF ARREST WITHOUT WARRANT POWERS
SECTION III - STATISTICS
SECTION IV - GENERAL ASSESSMENT
SECTION I - INTRODUCTION
Following the tragic events of September 11, 2001, Canada moved rapidly
to develop a comprehensive Anti-Terrorism Plan. As part of this 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 amendments
introducing the concepts of investigative hearings and preventive
arrests.
Pursuant to subsection 83.3(4) of the Criminal Code, a peace
officer who suspects on reasonable grounds to believe that the detention
of a person is necessary to prevent a terrorist activity, may arrest the
person without a warrant. The Solicitor General of Canada 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 arrest
without warrant1.
The annual report must include: the number of arrests without warrant and
the period of detention; and the number of cases in which the person
arrested was released by either a peace officer under
paragraph 83.3(5)(b) of the Criminal Code, or, was released by a
judge under paragraph 83.3(7)(a) of the Criminal Code.
The legislation 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 arrest without warrant, the period
of detention and the number of cases where a person was arrested without
warrant and subsequently released.
The 2002 annual report of the Solicitor General of Canada is organized in
the following manner:
SECTION II - OVERVIEW OF
ARREST WITHOUT WARRANT POWERS
A key focus of the Government's anti-terrorism strategy is to prevent
terrorist incidents 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. 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
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 Solicitor
General of Canada to report on an annual basis information relating
to:
83.31(3)(a)
From December 24, 2001, to December 24, 2002, 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)
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 were 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 first year of
the Anti-terrorism Act's existence illustrates several things.
It is an indication that the power of arrest provision is seen as a
uniquely preventive measure by the police. It illustrates that law
enforcement do not take lightly the carefully circumscribed powers that
they have been given in the Anti-terrorism Act and are sensitive
to the implications of exercising such powers.
The result is that this provision of 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.
The annual reporting requirements within the Anti-terrorism Act
will continue to provide a useful means of analyzing the utility of these
measures, if and when they are used. The third-year comprehensive review
of the Anti-terrorism Act will provide a further opportunity to
assess the usefulness of the provisions and to hear from stakeholders.
Endnotes
1The 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 arrest with warrant.
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