Backgrounder

Investigative Hearing and the Recognizance with Conditions in the Criminal Code

The Anti-terrorism Act (ATA) is one of several pieces of legislation that forms the Government of Canada’s overall anti-terrorism strategy. The legislation is intended to protect the safety, security and fundamental rights of Canadians.

In 2001, the ATA introduced in the Criminal Code two very important and necessary tools in the fight against terrorism – the investigative hearing and the recognizance with conditions. These tools were enacted to help prevent terrorist activities from being carried out and to assist in investigating terrorism offences.

Sunsetting of the provisions

The investigative hearings and recognizance with conditions provisions were subject to a sunset clause which provided that they would cease to apply at the end of the 15th sitting day of Parliament following December 31, 2006 unless they were extended by a resolution passed by both Houses of Parliament.

In February 2007, the Government introduced motions in the House of Commons and Senate to renew these provisions for three more years. However, on February 27, 2007, the House of Commons voted 159 to 124 against the resolution. The result was that these provisions expired on March 1, 2007.

Parliamentary review of the Anti-terrorism Act

The Anti-terrorism Act contains numerous safeguards, which include an important requirement that Parliament comprehensively review the provisions and operation of the ATA after three years.

On October 23, 2006, the House of Commons Subcommittee reviewing the ATA tabled an interim report addressing the sunset provisions in the Criminal Code. The Committee recommended a five-year extension of the recognizance with conditions and investigative hearing provisions, but called on the Government to amend the investigative hearing provision - to limit the scope of this provision to imminent terrorism offences, not past ones – and to make other technical amendments.

On February 28, 2007, the Special Senate Committee on the Anti-terrorism Act released its final report on the review of the ATA. The report recommended that the provisions be extended until the end of the fifteenth sitting day of Parliament after December 31, 2009. The Committee did not suggest limiting the investigative hearing to future terrorist activity, but supported continuing the powers in their existing form while requiring that the annual report of the Attorney General of Canada contain a clear statement and explanation indicating whether or not the provisions remain warranted.

Investigative hearings

Investigative hearings gave the police a new tool to apply to a judge for an order to compel someone with information or materials about a past or future terrorism offence to appear before a judge and answer questions or produce an item of real evidence.

The purpose of the investigative hearing was to gather information relevant to the investigation of terrorism offences, not to prosecute an individual with a Criminal Code offence. The tool was limited to cases where there were reasonable grounds to believe that a terrorism offence had been or would be committed. The information given or evidence derived from the information could not be used against the person who was the subject of the investigative hearing in any criminal proceeding, except for a prosecution for perjury or giving contradictory evidence.

This tool could not be used arbitrarily. The consent of the Attorney General was required before it could be used. A peace officer needed to apply to a provincial court judge or a judge of a superior court of criminal jurisdiction for an order for the gathering of information. The person compelled to appear had the ability to retain and instruct counsel at any stage of the proceedings. Other safeguards existed as well.

In 2004, the Supreme Court of Canada upheld the investigative hearing provisions as constitutional.

Recognizance with conditions

Much of the existing criminal law is designed to find and punish those responsible for acts that have already occurred. This approach is often inadequate for terrorist crimes, where the goal is to create fear and instability by targeting the general population. The catastrophic nature of such an attack, which, as past terrorist attacks have demonstrably shown, could result in mass murder, requires that the law provide for preventive measures to prevent such attacks from taking place.

The Criminal Code amendments enacted by the ATA created a new tool permitting the courts to impose a "recognizance with conditions" on a person in order to disrupt nascent terrorist activity and prevent a terrorist attack.

Under the previous legislation, with the prior consent of the Attorney General, a peace officer who reasonably believed that a terrorist activity would be carried out and who also reasonably suspected that the imposition of a recognizance with conditions or the arrest of a person was necessary to prevent the carrying out of the terrorist activity, could lay an information before a provincial court judge. The judge could then cause the person to appear before him or her to determine if the person should enter into a recognizance with conditions. The judge could do this by issuing a summons or an arrest warrant.

This tool was often described as "preventive arrest". However, the power of a peace officer to arrest without warrant applied only in very limited circumstances, such as exigent circumstances. For example, if an attack was imminent, there might not be enough time to go before a judge to get a summons issued. After arresting a person without a warrant, a peace officer had to obtain the consent of the relevant Attorney General before laying the information before the judge.

A detained person had to be brought before a provincial court judge "without unreasonable delay", and, in any event, within 24 hours of his or her arrest. If a provincial court judge was not available within those 24 hours, the person had to be taken before such a judge "as soon as possible". Once before the judge, if, for whatever reason, the recognizance hearing could not take place at the same time, the hearing could only be adjourned by the judge for a maximum of 48 hours. As such, the period of detention before a hearing was generally 72 hours.

If the judge was satisfied by the evidence that there were reasonable grounds for the suspicion, the person could be required to enter into a recognizance with conditions, such as having no contact or communication with certain other persons. If the person failed or refused to enter into the recognizance, the judge could commit the person to a term in prison not to exceed 12 months. As with other forms of judicial release (or "bail"), breaching any condition of release was an offence in itself. This recognizance tool was specifically tailored for the purpose of preventing the carrying out of any terrorist activity.

Legislative Proposals

Legislative proposals have been introduced in the Senate with the intention to reinstate a modified version of the investigative hearing and the recognizance with conditions provisions, which respond to recommendations made by the House of Commons Subcommittee and the Special Senate Committee that reviewed the Anti-terrorism Act, while adding to the list of safeguards found in the previous legislation.

The legislation would reinstate the powers in much the same form as they previously existed, with the following changes:

• When applying for an order for an investigative hearing relating to a past terrorism offence, the peace officer must satisfy the judge that reasonable attempts have been made to obtain the information by other means. This was a requirement for investigative hearings relating to future terrorism offences under the ATA, but this safeguard would also be applicable to past terrorism offences.
• The Bill clarifies that section 707 of the Criminal Code, which sets out the maximum period of time that a witness may be detained, applies as well to the investigative hearing process. This responds, in part, to concerns expressed by the House of Commons Subcommittee.
• A new five year sunset clause is included and the Bill makes clear that the resolution may extend either or both of the provisions.
• As recommended by the Senate Committee, the Bill contains enhanced reporting requirements. The Attorney General of Canada would have to provide an opinion, supported by reasons, as to whether the investigative hearing power should be maintained. Both the Attorney General of Canada and the Minister of Public Safety would have to do the same for the recognizance with conditions power.
• Further parliamentary review is provided for but is not made mandatory. This respects the autonomy of Parliamentary Committees to set their own agenda.
• Other amendments are technical in nature. Some of these technical amendments reflect recommendations made by the House Subcommittee.

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Department of Justice Canada
October 2007