Backgrounder: The Combating Terrorism Act – Investigative Hearings and Recognizance with Conditions Provisions

In 2001, the Anti-terrorism Act (ATA) introduced in the Criminal Code two important and necessary provisions in the fight against terrorism - investigative hearings and recognizance with conditions. These were enacted to help prevent terrorist activities from being carried out and to provide law enforcement with assistance in investigating terrorism offences.

Investigative hearings and Recognizance with conditions

1. The Investigative Hearings

   This bill would seek to amend the Criminal Code to reinstate an investigative hearings power. This would give a judge the power, on application by a peace officer, to compel someone with information about a terrorism offence that has been or will be committed to appear before him or her and answer questions.

   Numerous safeguards would be attached to this power. For example: (a) the use of an investigative hearing would require the consent of the Attorney General; (b) the person compelled to appear would have the ability to retain and instruct counsel at any stage of the proceedings; (c) reasonable attempts would first have to be made to obtain the information by other means; and (d) the information provided by the person or anything derived from the information generally could not be used against them in any criminal proceeding.

   The annual reporting requirements for these provisions would 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.

2. Recognizance with Conditions

   Much of 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, which are aimed at creating fear and instability by targeting the general population and where the perpetrator may commit suicide when carrying out the attack. 

   This bill seeks to reinstate in the Criminal Code a recognizance with conditions provision, which is intended to help law enforcement officers disrupt terrorist attacks. 

   If a peace officer has reasonable grounds to believe that a terrorist activity will be carried out and reasonable grounds to suspect that the imposition of a recognizance with conditions on a particular person is necessary to prevent a terrorist activity from being carried out, then the peace officer could apply to a judge to have the person compelled to appear before him or her. 

   Bringing the person before the court allows the judge to consider whether it is desirable to impose reasonable conditions on the person. The court could impose such conditions or could release the person without conditions. The burden would be on the government to show why conditions should be imposed. If the person refuses to accept conditions, the court could commit that person to prison for up to 12 months.

   The use of recognizance with conditions would be available under strictly defined conditions and would be subject to numerous procedural safeguards.

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Department of Justice Canada
April 2010