The Anti-terrorism Act

Annual Report concerning Investigative Hearings and Recognizance with Conditions

December 24, 2002 - December 23, 2003

• SECTION I - INTRODUCTION
• SECTION II - OVERVIEW OF PART II.1 OF THE CRIMINAL CODE
• SECTION III - STATISTICS
• SECTION IV - ASSESSMENT

SECTION I - INTRODUCTION

The Attorney General of Canada is required under section 83.31 of the Criminal Code to prepare and present to Parliament an annual report on the operation of sections 83.28 and 83.29, which provide for investigative hearings into terrorism offences. This report is to contain data on items listed in paragraphs 83.31(1)(a) to (c), namely :

• The number of consents to make an application that were sought, and the number that were obtained by virtue of subsections 83.28(2) and (3);
• The number of orders for the gathering of information that were made under subsection 83.28(4); and
• The number of arrests that were made with a warrant issued under section 83.29.

Similarly, the Attorney General of Canada must provide a report to Parliament on the operation of section 83.3, which establishes a procedure for obtaining a recognizance order as a means of preventing the carrying out of a terrorist activity. This report must include the following data:

• The number of consents to lay an information that were sought, and the number that were obtained, by virtue of subsections 83.3(1) and (2);
• The number of cases in which a summons or a warrant of arrest was issued for the purposes of subsection 83.3(3);
• The number of cases where a person was not released under subsection 83.3(7) pending a hearing;
• The number of cases in which an order to enter into a recognizance was made under paragraph 83.3(8)(a), and the types of conditions that were imposed;
• The number of times a person failed or refused to enter into a recognizance, and the term of imprisonment imposed under subsection 83.3(9) in each case; and
• The number of cases in which the conditions fixed in a recognizance were varied under subsection 83.3(13).

The Attorneys General of every province must also publish or otherwise make public an annual report on their use of these two provisions. Provincial reports are not included in this document.

The Solicitor General of Canada is required to report annually to Parliament on the number of arrests without a warrant made under the recognizance procedure. This information is presented in a separate report by the Solicitor General.

This document constitutes the annual report of the Attorney General of Canada covering the second year of operation of the Act from December 24, 2002 to December 23, 2003.

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SECTION II - OVERVIEW OF PART II.1 OF THE CRIMINAL CODE

In the aftermath of the terrorist attacks of September 11, 2001, Canada moved quickly to put into place a comprehensive anti-terrorism plan. An early and important element of this plan was the implementation of United Nations Security Council Resolution 1373. Part of this plan was the introduction of the Anti-terrorism Act (Bill C-36) (S.C. 2001, c. 41) on October 15, 2001. The Act received Royal Assent on December 18, 2001, with most sections coming into force on December 24 of that year.

Bill C-36 addressed two major objectives of the anti-terrorism plan: to prevent terrorists from getting into Canada and to protect Canadians from terrorist acts, by activating tools to identify, prosecute, convict and punish terrorists. The Anti-terrorism Act amended a number of federal acts and included extensive new anti-terrorist measures in the Criminal Code. These include a definition of terrorist activity and terrorist group, the latter defined as an entity that has as one of its purposes or activities to facilitate or carry out any terrorist activity or as a listed entity.

The Act effectively adopts, in the definition of "terrorist activity", the offences contained in several United Nations anti-terrorism instruments to which Canada is a signatory. It further creates a number of new offences, including participating in or contributing to an activity of a terrorist group to enhance the ability of a terrorist group to facilitate or carry out a terrorist activity. Recruiting a person to receive training, facilitating a terrorist activity, instructing a person to carry out such activities, and acting for the benefit of or at the direction of a terrorist group are new offences as well. The Act also creates offences that target the financing of terrorism, including collecting or using property for the purpose of facilitating or carrying out a terrorist activity. Moreover, there are prohibitions against dealing with property that is owned or controlled by a terrorist group.

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. This report is concerned with two such measures. The investigative hearing provisions in section 83.28 and 83.29 allow a police 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 terrorism offence that has been or may be committed. These witnesses are protected by subsection 83.28(10) from their statements being used in any criminal proceedings against them, except for a prosecution for perjury or giving contradictory evidence. Other safeguards of the individual's rights are built into the procedure.

Section 83.3 of the Criminal Code establishes an additional preventive measure against terrorism. To make use of this provision, a peace officer must believe on reasonable grounds that a terrorist activity will be carried out and suspect on reasonable grounds that imposing conditions for supervision or arresting a person is necessary to prevent this activity from being carried out. If these conditions are met, the peace officer can bring the person before a court, with a summons or alternatively by arrest with or without a warrant, so that a judge may determine whether or not to order a recognizance to keep the peace. The recognizance, which requires the person to adhere to certain imposed conditions, can be for a maximum period of twelve months.

These two preventive measures came into effect on December 24, 2001.

Investigative Hearing

The following are the key features of the procedure found in sections 83.28 and 83.29:

• The investigative hearing may be held where a judge is satisfied that there are reasonable grounds to believe that a terrorism offence has been or will be committed;
• The consent of the Attorney General is required to initiate the process and the hearing must be held before a judge;
• Charges need not be laid against any suspects at the time that the investigative hearing is held;
• The order may include a requirement that a person attend to be examined under oath and produce any thing in his/her possession or control;
• The witness is provided with legal safeguards, including one against the disclosure of information protected by Canadian laws related to privilege or non-disclosure of information. Other safeguards include protections against self-incrimination in relation to other criminal proceedings and the right to retain and instruct counsel;
• A power of arrest is provided in respect of a person who is evading the order or is about to abscond.

Recognizance with Conditions

The following are the key features of the procedure found in section 83.3:

• The police, upon receiving the consent of the Attorney General, may lay an information and have a court place restrictions upon a person. It must be believed, based on reasonable grounds, that a terrorist activity will be committed, and suspected, based on reasonable grounds, that imposing conditions for supervision or arresting a person is required to prevent a terrorist act;
• In exigent circumstances, where it was suspected on reasonable grounds that an arrest is necessary to prevent the commission of the terrorist activity, a peace officer may arrest a person without a warrant and detain him or her in custody;
• The person shall be taken within 24 hours before a provincial court if available, or, if unavailable, as soon as possible;
• The judge may order the continued detention of the person pending a hearing, but that detention must not exceed 48 hours;
• The onus is on the peace officer to demonstrate why the person should have conditions imposed upon him as part of his release.

Other Features

Section 83.31 requires the Attorney General of Canada to present an annual report to Parliament on the operation of these two powers (investigative hearing and recognizance with conditions), as set out in the Introduction.¹

Subsection 83.31(4) requires that these annual reports shall not contain any information the disclosure of which would compromise or hinder an ongoing investigation of an offence under an Act of Parliament. The reports must also not release information that would endanger the life or safety of any person, prejudice a legal proceeding or otherwise be contrary to the public interest.

The Attorney General of Canada's first annual report was tabled in Parliament on May 1, 2003. During the reporting period of December 24, 2001 to December 23, 2002, both the Royal Canadian Mounted Police and the Department of Justice (Federal Prosecution Service) had no data to report in relation to these reporting requirements. This report is available to view on-line or download from the following Department of Justice Internet site: canada.justice.gc.ca/eng/antiter/rpt/annrpt/rpt01_02.html

Section 83.32 contains a "sunset" clause whereby these powers shall cease to apply (i.e. will no longer be in force) as of the end of the fifteenth sitting day of Parliament after December 31, 2006, unless the application of the relevant sections is extended pursuant to the procedure set out in subsections 83.32(2) to (5).

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SECTION III - STATISTICS

Reporting requirements under subsection 83.31(1) (Investigative hearing)

• The number of consents to make an application that were sought, and the number that were obtained by virtue of subsections 83.28(2) and (3);
• The number of orders for the gathering of information that were made under subsection 83.28(4); and
• The number of arrests that were made with a warrant issued under section 83.29.

Report on the operation of sections 83.28 and 83.29 (Investigate Hearing)

From December 24, 2002, to December 23, 2003, both the Royal Canadian Mounted Police and the Department of Justice (Federal Prosecution Service) report that there were no applications initiated under these sections of the Criminal Code. As such, there are no data to report in relation to the reporting requirements in paragraphs 83.31(1) (a) to (c), concerning the investigative hearing provisions.

Reporting requirements under subsection 83.31(2) (Recognizance with conditions)

• The number of consents to lay an information that were sought, and the number that were obtained, by virtue of subsections 83.3(1) and (2);
• The number of cases in which a summons or a warrant of arrest was issued for the purposes of subsection 83.3(3);
• The number of cases where a person was not released under subsection 83.3(7) pending a hearing;
• The number of cases in which an order to enter into a recognizance was made under paragraph 83.3(8)(a), and the types of conditions that were imposed;
• The number of times a person failed or refused to enter into a recognizance, and the term of imprisonment imposed under subsection 83.3(9) in each case; and
• The number of cases in which the conditions fixed in a recognizance were varied under subsection 83.3(13).

Report on the operation of section 83.3 (Recognizance with Conditions)

From December 24, 2002, to December 23, 2003, both the Royal Canadian Mounted Police and the Department of Justice (Federal Prosecution Service) report that there were no cases initiated under this section of the Criminal Code. As such, there are no data to report in relation to the reporting requirements in paragraphs 83.31(2)(a) to (f), concerning the recognizance provisions.

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SECTION IV - ASSESSMENT

The special provisions in the Anti-terrorism Act for investigative hearings and recognizance orders are intended to provide tools to police, prosecutors and the courts in support of the identification of terrorist threats and the investigation of terrorist activity, within the general objective of preventing the occurrence of terrorist activity. These tools are outlined by the procedural steps and safeguards set out in detail in sections 83.28, 83.29 and 83.3. The fact that these provisions were not used by the RCMP or federal prosecutors in the first two years of their existence illustrates that these measures are not being abused and that these officials are proceeding cautiously in using these powers.

The Government of Canada continues to support the investigative hearing and recognizance provisions as necessary preventive measures.

The Department of Justice will closely monitor the use of these provisions in support of the ongoing reporting requirement in the Anti-terrorism Act and the process that will flow from the "sunsetting" provision for these measures at the end of 2006. The Department will continue to coordinate and facilitate monitoring and data collection with other federal departments and provincial/territorial counterparts.

The Department of Justice is continuing its program of research to monitor the use and impact of the Anti-terrorism Act. This research will help inform the upcoming Parliamentary review of the legislation, which is to be undertaken within three years after the legislation received royal assent (December 18, 2001). As part of this research program, the results of a national focus group study on the impact of the Act with ethno-cultural groups, completed last year, is available to view on-line or download from the following Department of Justice Internet site canada.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_4.pdf. The Department also monitors public opinion polls that gauge the views of the public concerning Canada's effort to combat terrorism and the Anti-terrorism Act. It is also preparing to publish a focus group study with the general public on the Anti-terrorism Act. In addition, the Department is completing a report that contains the views of Canadian scholars on the impact of the Anti-terrorism Act. Once completed, these and future reports will also be posted on the Department of Justice Internet site located at canada.justice.gc.ca/eng/pi/rs/index.html.

1 For the purposes of this report, the data herein includes the reporting requirements for the governments of the Yukon, Northwest Territories and Nunavut.

Updated to April 1, 2008.