The Anti-Terrorism Act

Annual Report concerning Investigative Hearings and Recognizance with Conditions
December 24, 2003 - December 23, 2004

• 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 Minister of Public Safety and Emergency Preparedness (formerly 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 Minister of Public Safety and Emergency Preparedness.

This document constitutes the annual report of the Attorney General of Canada covering the third year of operation of the Act from December 24, 2003 to December 23, 2004.

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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. A key element of this Plan was the introduction of Bill C-36 on October 15, 2001. The Anti-Terrorism Act received Royal Assent on December 18, 2001.

The Anti-Terrorism Act addressed objectives of the Anti-terrorism Plan, including: to prevent terrorists from getting into Canada; to protect Canadians from terrorist acts by activating tools to identify, prosecute, convict and punish terrorists; and to work with the international community to bring terrorists to justice and address root causes of terrorism. The Act amended a number of federal acts and included extensive new anti-terrorist measures in the Criminal Code. These are explained below to the extent they related to the reporting obligations under the Act.

Definition of “terrorist activity”

The Act provides a comprehensive two part definition of “terrorist activity”, which is found in subsection 83.01(1) of the Criminal Code. The first part of the definition, reflecting Canada’s approach to terrorism on the international stage, refers to offences implementing ten global anti-terrorism instruments. These instruments are:

• The Convention for the Suppression of Unlawful Seizure of Aircraft;
• The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation;
• The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents;
• The International Convention against the Taking of Hostages;
• The Convention on the Physical Protection of Nuclear Material;
• The Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation;
• The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation;
• The Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf;
• The International Convention for the Suppression of Terrorist Bombings; and
• The International Convention for the Suppression of the Financing of Terrorism.

The second part of the definition, set out in paragraph 83.01(1)(b) of the Criminal Code, requires that:

• The terrorist activity must be committed in whole or in part for a political, religious or ideological purpose, objective or cause;
• There must also be an intention to intimidate the public, or a segment of the public, with regards to its security, including its economic security, or to compel a person, a government, or a domestic or international organization to do or refrain from doing any act;
• Additionally, there must be an intention to do one of the following harms: cause death or serious bodily harm to a person by the use of violence; endanger a person’s life; cause a serious risk to the health and safety of the public or any segment of it; cause substantial property damage to either public or private property if likely to cause any of the harms set out immediately above; or cause serious interference or disruption of an essential service other than as a result of advocacy, dissent or stoppage of work that is not intended to cause most of the above-mentioned harms.
• Finally, subsection 83.01(1.1) of the Code clarifies that an expression of political, religious or ideological beliefs alone is not a “terrorist activity” unless it is part of larger conduct that meets the requirements of the definition of “terrorist activity”.

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Definition of “terrorist group”

A “terrorist group” is defined in s. 83.01(1) as an entity that has as one of its purposes or activities to facilitate or carry out any terrorist activity or is a listed entity. Section 83.05 provides the regime for listing entities which, once listed, fall within the definition of a “terrorist group”.

Terrorism offences

The Act creates a number of terrorism offences, including:

• Knowingly participating in or contributing to an activity of a terrorist group for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity;
• Knowingly facilitating a terrorist activity;
• Knowingly instructing any person to carry out any activity for the benefit of, at the direction of or in association with a terrorist group for the purpose of enhancing the ability of any such group to facilitate or carry out a terrorist activity;
• Knowingly instructing any person to carry out a terrorist activity;
• Collecting property or providing financial services or other related services intending they be used or knowing they will be used for the purpose of facilitating or carrying out any terrorist activity or knowing that they will be used by or will benefit a terrorist group.

As well, there is a prohibition against knowingly dealing in any property that is owned or controlled by or on behalf of a terrorist group, entering into any transaction in respect of such property, or providing any financial or other related service in respect of such property to, for the benefit of or at the direction of a terrorist group.

The Investigative Hearing and Recognizance with Conditions

A key focus of the government's anti-terrorism strategy is to prevent terrorist incidents by providing the necessary tools to police and prosecutors. This report is concerned with two such measures, the investigative hearing and the recognizance with conditions, which came into effect on December 24, 2001.

The Investigative Hearing

The investigative hearing provisions are found in sections 83.28 and 83.29 of the Criminal Code. Section 83.28 allows a peace officer, for the purposes of an investigation of a terrorism offence, to apply ex parte to a judge for an order for the gathering of information. This procedure has parallels in the Mutual Legal Assistance in Criminal Matters Act. The person named in the order is to attend at a place fixed by the judge for an examination over which a judge presides. 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. Section 83.29 of the Code authorizes the judge who made the order to issue an arrest warrant where the judge is satisfied that the person so ordered is avoiding service of the order, is about to abscond, or did not attend the examination or did not remain in attendance as required by the order.

Safeguards within the investigative hearing provision include:

• Only a judge of the provincial court or of a superior court of criminal jurisdiction can hear a peace officer’s application for an information gathering order and can preside over an information gathering proceeding.
• The prior consent of the Attorney General of Canada or the Attorney General or Solicitor General of the province, or any of their lawful deputies, is needed before a peace officer can apply for an investigative hearing order.
• Where there are reasonable grounds to believe that a terrorism offence has been committed, the judge may make the order only if satisfied that information concerning the offence, or information that may reveal the whereabouts of the person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order.
• Where there are reasonable grounds to believe that a terrorism offence will be committed, the judge may make the order only if satisfied that there are reasonable grounds to believe that a person has direct and material information that relates to that terrorism offence, or that may reveal the whereabouts of an individual who the peace officer suspects may commit that terrorism offence; and that reasonable attempts have been made to obtain the information from the person.
• The judge may include any terms and conditions in the order that the judge considers desirable to protect the interests of the witness or third parties.
• The witness has the right to retain and instruct counsel at any stage of the proceeding.
• A person may refuse to answer a question or produce anything that is protected by Canadian law relating to non-disclosure of information or privilege.
• The rights against self-incrimination protected by the Canadian Charter of Rights and Freedoms have also been incorporated. Incriminating evidence obtained during compelled testimony cannot be used or received against the person in further criminal proceedings, except in prosecutions for perjury and giving contradictory evidence. The Supreme Court of Canada has further extended these protections to deportation and extradition hearings.
• Charter guarantees relating to the derivative use of the evidence in further proceedings against the person testifying are also expressly incorporated.
• The investigative hearing is subject to a five-year sunset clause. Its application can only be extended by parallel resolution of the two Houses of Parliament.

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The Recognizance with Conditions

Section 83.3 of the Criminal Code establishes an additional preventive measure against terrorism. A peace officer who believes on reasonable grounds that a terrorist activity will be carried out and suspects on reasonable grounds that imposing conditions for supervision or arresting a person is necessary to prevent the activity from being carried out may lay an information before a provincial court judge. The judge may then compel the person to appear before him or her. In certain limited situations where the peace officer suspects on reasonable grounds that the detention of the person in custody is necessary in order to prevent a terrorist activity, the officer may arrest the person without warrant in order to bring the person before a judge. The judge may, if satisfied on evidence adduced that the peace officer has reasonable grounds for the suspicion, order the person to enter into a recognizance to keep the peace and to comply with any other reasonable conditions that the judge considers desirable for preventing the carrying out of a terrorist activity. The recognizance can be for a maximum period of twelve months.

Safeguards within the recognizance with conditions provision include:

• The consent of the Attorney General of Canada or his or her lawful deputy, or of the provincial Attorney General or the Minister of Public Safety and Emergency Preparedness or his or her lawful deputy, is required before a peace officer may lay an information to bring a person before a provincial court judge.
• The requirement of reasonable belief that a terrorist activity will be carried out lends objectivity to the standard. In other words, the standard is not solely one of reasonable suspicion.
• Only a provincial court judge can receive an information, and may cause the person to appear before him or her. Thus, the judge receiving the information has a residual discretion not to issue process where an information is unfounded. As well, the judge may decide to issue process by way of a summons rather than by issuing an arrest warrant where the arrest of the person would be excessive and unwarranted.
• A warrantless arrest of a person can only be made in limited circumstances, where the grounds for laying an information exist but laying the information has been rendered impracticable by reason of exigent circumstances, or where an information has been laid and a summons issued, and a peace officer suspects on reasonable grounds that the detention of the person in custody is necessary in order to prevent a terrorist activity.
• A person detained in custody must be brought before a provincial court judge without unreasonable delay and in any event within 24 hours of arrest, unless a judge is not available within that period in which case the person must be brought before a judge as soon as possible thereafter. If an information has not been laid before a judge with the consent of the relevant Attorney General before the detainee is taken before a judge, the detainee must be released.
• When a person is detained in custody and taken before a judge, the onus is on the peace officer to show cause why the person should continue to be detained in custody.
• The judge may order the continued detention of the person pending a hearing, but that detention must not exceed 48 hours.
• At the hearing, the presiding judge must be satisfied by “evidence” that the peace officer’s suspicion is reasonably based. The judge must come to his or her own conclusion about the likelihood that the imposition of a recognizance upon the person is necessary to prevent a terrorist activity.
• The recognizance with conditions provision is subject to a five-year sunset clause. Its application can only be extended by parallel resolution of the two Houses of Parliament.

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 first two Attorney General of Canada's annual reports have been tabled in Parliament. Taken together, during the period of December 24, 2001 to December 23, 2003, 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. These two reports are available to view on-line or download from the following Department of Justice Internet sites:

canada.justice.gc.ca/antiter/annrpt0203-annrap0203-eng.asp and
canada.justice.gc.ca/eng/antiter/rpt/annrpt/rpt02_03.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, 2003, to December 23, 2004, 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, 2003, to December 23, 2004, 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 and prosecutors 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 contain numerous safeguards, such as, for example, the requirement that the relevant Attorney General consent to the use of the procedure. The fact that these provisions were not used by the RCMP or federal prosecutors in the first three years of their existence illustrates that 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 continue to closely monitor the use of these provisions in support of the ongoing reporting requirements 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 also 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. In particular, the Department completed two large focus group studies and a report examining the views of Canadian scholars on the impact of the Act.

The first focus group study examined the views of minority groups on the Anti-Terrorism Act (March 2003). The full copy of this study, entitled Minority Views on the Canadian Anti-Terrorism Act (formerly Bill C-36), can be obtained from canada.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_4/index.html

The second focus group study explored the views of the general public (March 2004). The full copy of this study, entitled Public Views of the Anti-Terrorism Act (Formerly Bill C-36), can be obtained from canada.justice.gc.ca/eng/ps/rs/rep-rap/2005/rr05_3/index.html

The full report examining the views of Canadian scholars, entitled The Views of Canadian Scholars on the Impact of the Anti-Terrorism Act (March 31, 2004), is available at: canada.justice.gc.ca/eng/pi/rs/rep-rap/2005/rr05_1/index.html

The Act requires Parliament to undertake a comprehensive review of the provisions and operation of the Anti-Terrorism Act within three years after the Act received Royal Assent (December 18, 2001). This review is currently being undertaken by two Parliamentary committees. In the House of Commons, the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness has tasked its Subcommittee on Public Safety and National Security to conduct the review. The Subcommittee began its review in December 2004 and hearings on the Act began in February 2005. In the Senate, a Special Committee on the Anti-Terrorism Act was created in December 2004 specifically to undertake the review. The Senate committee began its hearings in February 2005. The Act requires that both committees submit a report to Parliament within one year of the commencement of the review, unless their mandates are extended. The Government looks forward to receiving these reports upon their completion.

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.