Backgrounder: Strengthening Counter-Terrorism Legislation
Canada’s counter-terrorism framework will be strengthened by these Criminal Code amendments that provide needed tools to fight terrorism and safeguard Canada’s national security.
Criminal law is largely designed to prosecute those responsible for acts that have already occurred. This approach is often inadequate when dealing with acts of terrorism, which are aimed at creating fear and social instability by targeting the general population and institutions. The focus of these amendments is largely on the prevention of terrorist attacks before they occur.
The Combating Terrorism Act re-enacts the investigative hearing and recognizance with conditions provisions, with additional safeguards. These two provisions expired in 2007 and subsequent bills that were introduced to re-enact these provisions died on the Order Paper at the dissolution of Parliament. The Act also includes four new offences of leaving, or attempting to leave, Canada to commit certain terrorism offences.
Investigative Hearings
This provision re-enacts the power to hold investigative hearings. The investigative hearing provision is not designed to charge or convict an individual with a criminal offence, but rather to facilitate the gathering of information that may be relevant to the investigation of past or future terrorism offences. It gives a judge the power, on application by a peace officer, to require someone who is believed on reasonable grounds to have information about a past or future terrorism offence, to appear before the court to answer questions. If the person does not comply with the order, a judge may issue a warrant for their arrest.
Recognizance with Conditions
The new recognizance with conditions will assist law enforcement in disrupting terrorist attacks. If a peace officer believes on reasonable grounds that a terrorist activity will be carried out and suspects on reasonable grounds that the imposition of a recognizance with conditions on a particular person is necessary to prevent that from happening, the officer will be able to apply to a judge to have the person appear before the court.
Once the person is before the court, the judge must then consider whether it is desirable to impose reasonable conditions on him or her. The court could impose such conditions or could release the person without conditions. The burden would be on the peace officer to show why conditions should be imposed. If the person refuses to accept conditions, the court could commit him or her to prison for up to 12 months.
Procedural Safeguards
The use of investigative hearings and recognizance with conditions will be available under strictly defined conditions and subject to numerous procedural safeguards. For example, the investigative hearing will (a) require the consent of the relevant Attorney General; (b) provide the person compelled to appear in court with the ability to retain and instruct counsel at any stage of the proceedings; (c) require that reasonable attempts first be made to obtain the information by other means; and (d) make the information provided by the person, or anything derived from that information, generally inadmissible against them in any criminal proceeding.
The Supreme Court of Canada has ruled that (d) also applies to extradition and deportation proceedings.
In addition, the legislation sets out clear limits on how long a judge can detain an uncooperative witness.
The investigative hearing and recognizance with conditions provisions are scheduled to expire or “sunset” five years after coming into force, subject to renewal by Parliament. The annual reporting requirements for both of these provisions will also require the Attorney General of Canada and the Minister of Public Safety to provide their opinion, supported by reasons, on whether these provisions should be extended.
Leaving Canada to Commit a Terrorism Offence
The Combating Terrorism Act creates four new offences of leaving or attempting to leave Canada for the purpose of committing certain terrorism offences. For example, leaving or attempting to leave Canada to participate in any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to commit a terrorist activity, such as receiving training at a terrorist training camp, will become a specific criminal offence. The maximum penalty for this offence, or an attempt to commit this offence, is 10 years imprisonment.
The other new offences of leaving or attempting to leave Canada to facilitate a terrorist activity, leaving or attempting to leave Canada to commit an offence for the benefit of a terrorist group and leaving or attempting to leave Canada to commit an offence that also constitutes a terrorist activity impose a maximum penalty of 14 years imprisonment.
The Combating Terrorism Act will come into force on a day or days to be fixed by order of the Governor in Council.
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Department of Justice Canada
April 2013
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