Backgrounder: Strengthening Counter-Terrorism Legislation

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Canada’s counter-terrorism framework will be strengthened by amending the Criminal Code to provide strong judicial tools that will help 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 on helping law enforcement officers disrupt planned terrorist attacks before they occur.

The proposed legislation will reintroduce provisions from the Combating Terrorism Act (Bill C-17 from the previous Parliament) to re-enact the investigative hearing and recognizance-with-conditions measures. 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. Also being proposed are new offences of leaving, or attempting to leave, Canada to commit a terrorism offence.

Investigative Hearings

This provision seeks to re-enact the power to hold investigative hearings. The investigative hearing provision is not designed to charge or convict an individual with a criminal offence, but to facilitate the gathering of information that may be relevant to the investigation of past or future terrorism offences. This would give a judge the power, on application by a peace officer, to require someone who is believed to have information about a terrorism offence that has been, or may be, committed, to appear before the court to answer questions. If the person does not comply with the order, the same judge may issue a warrant for their arrest.

Recognizance with Conditions

The recognizance-with-conditions measure would assist law enforcement in disrupting terrorist attacks. For example, 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 recognizance with conditions on a particular person would be necessary to prevent that from happening, then the officer could apply to a judge to have the person appear before the court.

Bringing the person before the court allows the judge to 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 government 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 would be available under strictly defined conditions and subject to numerous procedural safeguards. For example, the investigative hearing would (a) require the consent of the 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. By applying the jurisprudence of the Supreme Court of Canada, the last safeguard would also apply to extradition and deportation proceedings. In addition, the proposed legislation would set out clear limits on how long a judge could detain an uncooperative witness.

The use of the recognizance-with-conditions provision would also be available under strictly defined conditions and would be subject to numerous procedural safeguards, including requiring the consent of the Attorney General.

The investigative hearing and recognizance-with-conditions provision would be scheduled to expire or "sunset" after five years, subject to renewal by Parliament. The annual reporting requirements for both of 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.

Leaving Canada to Commit a Terrorism Offence

The bill proposes the creation of new offences for leaving or attempting to leave Canada for the purpose of committing a terrorism offence. For example, leaving Canada to participate in the activity of a terrorist group, such as attending a terrorist training camp, would become a specific criminal offence. The proposed maximum penalty for this offence, or an attempt to commit this offence, would be 10 years imprisonment.

Other offences of leaving Canada to facilitate a terrorist activity, leaving Canada to commit an offence for the benefit of a terrorist group and leaving Canada to commit an offence that is also a terrorist activity would all carry a maximum penalty of 14 years.

These new measures are intended to prevent a person from leaving the country to participate in terrorist activities or to commit an offence for a terrorist group.

Department of Justice Canada
February 2012