The Anti-Terrorism Act

Annual Report concerning
Investigative Hearings and Recognizance with Conditions
December 24, 2006 - March 1, 2007

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 provided 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 established 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.¹

The Minister of Public Safety and Emergency Preparedness 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 sixth year of operation of the Act, from December 24, 2006 to March 1, 2007, after which these measures ceased to exist because of the decision made by the House of Commons in February 2007 not to extend them.

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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 approach to counter-terrorism. A key element of this approach 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 Canada’s anti-terrorism approach, 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".

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 that they be used or knowing that 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;
• Knowingly dealing directly or indirectly in any property that is owned or controlled by or on behalf of a terrorist group, entering into or facilitating directly or indirectly any transaction in respect of such property, or providing any financial or other related services 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. These measures were also subject to a sunset clause, which required them to be extended by a resolution passed through both Houses of Parliament by the end of the fifteenth sitting day after December 31, 2006. The House of Commons voted in February 2007 not to extend these measures. As a result, they ceased to apply at the end of the day on March 1, 2007. However, this does not affect the annual reporting requirements for these measures. This report covers the period from December 24, 2006 to March 1, 2007, during which period these measures were part of the Criminal Code.

The Investigative Hearing

The investigative hearing provisions were found in sections 83.28 and 83.29 of the Criminal Code. Section 83.28 allowed 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 and/or the production of any thing in his or her possession or control. This procedure had a parallel in the Mutual Legal Assistance in Criminal Matters Act. The person named in the order was to attend at a place fixed by the judge for an examination over which a judge presided. Section 83.29 of the Code authorized the judge who made the order to issue an arrest warrant where the judge was satisfied that the person so ordered was avoiding service of the order, was 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 included:

• Only a judge of the provincial court or of a superior court of criminal jurisdiction could hear a peace officer’s application for an information gathering order and could 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, was needed before a peace officer could apply for an investigative hearing order.
• Where there were reasonable grounds to believe that a terrorism offence had been committed, the judge could make the order only if satisfied that information concerning the offence, or information that could reveal the whereabouts of the person suspected by the peace officer of having committed the offence, was likely to be obtained as a result of the order.
• Where there were reasonable grounds to believe that a terrorism offence would be committed, the judge could make the order only if satisfied that there were reasonable grounds to believe that a person had direct and material information that related to that terrorism offence, or that could reveal the whereabouts of an individual who the peace officer suspected could commit that terrorism offence; and that reasonable attempts had been made to obtain the information from the person.
• The judge could include any terms and conditions in the order that the judge considered desirable to protect the interests of the witness or third parties.
• The witness had the right to retain and instruct counsel at any stage of the proceeding.
• A person could 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 had also been incorporated. Incriminating evidence obtained during compelled testimony could not 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 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 were also expressly incorporated.
• The investigative hearing was subject to a five-year sunset clause. Its application could only be extended by resolution of the two Houses of Parliament.

The Recognizance with Conditions

Section 83.3 of the Criminal Code established an additional preventive measure against terrorism. A peace officer who believed on reasonable grounds that a terrorist activity would be carried out and suspected on reasonable grounds that imposing conditions for supervision or arresting a person was necessary to prevent the activity from being carried out could lay an information before a provincial court judge. The judge could then compel the person to appear before him or her. In certain limited situations where the peace officer suspected on reasonable grounds that the detention of the person in custody was necessary in order to prevent a terrorist activity, the officer could arrest the person without warrant in order to bring the person before a judge. The judge could, if satisfied on evidence adduced that the peace officer had 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 considered desirable for preventing the carrying out of a terrorist activity. The recognizance could be for a maximum period of twelve months.

Safeguards within the recognizance with conditions provision included:

• The consent of the Attorney General of Canada or his or her lawful deputy, or of the Attorney General or Solicitor General of the province or his or her lawful deputy, was required before a peace officer could lay an information to bring a person before a provincial court judge.
• The requirement of reasonable belief that a terrorist activity would be carried out lent objectivity to the standard. In other words, the standard was not solely one of reasonable suspicion.
• Only a provincial court judge could receive an information, and could cause the person to appear before him or her. Thus, the judge receiving the information had a discretion not to issue process where an information was unfounded. As well, the judge could 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 could only be made in limited circumstances, where the grounds for laying an information existed but laying the information had been rendered impracticable by reason of exigent circumstances, or where an information had been laid and a summons issued, and a peace officer suspected on reasonable grounds that the detention of the person in custody was necessary in order to prevent a terrorist activity.
• A person detained in custody had to be brought before a provincial court judge without unreasonable delay and in any event within 24 hours of arrest, unless a judge was not available within that period in which case the person had to be brought before a judge as soon as possible thereafter. If an information had not been laid before a judge with the consent of the relevant Attorney General before the detainee was taken before a judge, the detainee had to be released.
• When a person was detained in custody and taken before a judge, the onus was on the peace officer to show cause why the person should continue to be detained in custody.
• The judge could order the continued detention of the person pending a hearing, but that detention could not exceed 48 hours.
• At the hearing, the presiding judge had to be satisfied by "evidence" that the peace officer’s suspicion was reasonably based. The judge had to come to his or her own conclusion about the likelihood that the imposition of a recognizance upon the person was necessary to prevent a terrorist activity.
• The recognizance with conditions provision was subject to a five-year sunset clause. Its application could only be extended by 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.

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 five Attorney General of Canada's annual reports have been tabled in Parliament. Taken together, during the period of December 24, 2001 to December 23, 2006, both the Royal Canadian Mounted Police and the Department of Justice (Public Prosecution Service of Canada, where applicable) had no data to report in relation to these reporting requirements. These five reports are available to view on-line or download at the following Department of Justice Internet site:

canada.justice.gc.ca/antiter

Section 83.32 contains a "sunset" clause whereby these powers ceased to apply (i.e. would 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 was extended pursuant to the procedure set out in subsections 83.32(2) to (5). As previously mentioned, in February 2007, the House of Commons voted against extending these measures, with the result that they ceased to apply at the end of day on March 1, 2007.

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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 (Investigative Hearing)

From December 24, 2006, to March 1, 2007, both the Royal Canadian Mounted Police and the Public Prosecution Service of Canada 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, 2006, to March 1, 2007, both the Royal Canadian Mounted Police and the Public Prosecution Service of Canada 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 were 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 contained 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 five years and two months of their existence illustrates that officials were proceeding cautiously in using these powers.

These provisions sunsetted at the end of day on March 1, 2007. This report covers the period of time from December 24, 2006 until they ceased to apply. However, the Government of Canada continues to believe that the investigative hearing and recognizance provisions are necessary preventive measures that should be part of the Criminal Code.

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 was completed earlier this year by two Parliamentary Committees, the Special Senate Committee on the Anti-terrorism Act, and the House of Commons Subcommittee on the Review of the Anti-terrorism Act, which was a Subcommittee of the Standing Committee on Public Safety and National Security. The Special Senate Committee called for the extension of the investigative hearing and the recognizance with conditions for three years, with the possibility of further extension. It also recommended that the annual reports on the use of these measures should include a clear statement and explanation from the Attorney General of Canada indicating whether or not these measures remain warranted. The majority of the House Subcommittee recommended that the investigative hearing should apply only to imminent terrorism offences - not past ones -, and that the modified investigative hearing provisions and the recognizance with conditions provision should be renewed for five years, subject to a mandatory Parliamentary review, with the possibility of further extension. However, there was also a dissenting opinion which argued that the recognizance with conditions provision should be abolished.

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

Updated to April 1, 2008.