Library of Parliament Summary of Proposed Anti-Terror Provisions

On March 12 of this year, the Canadian government introduced a bill to reinstate Criminal Code anti-terrorism provisions relating to recognizance with conditions (up to and including preventive detention) and investigative hearings (compelling testimony).

Those provisions had expired in 2007 under a sunset clause in anti-terrorism legislation.

The Library of Parliament has prepared a legislative summary of the issues involved:

"Bill C-19 essentially reintroduces provisions relating to investigative hearings and recognizance with conditions that first came into force in December 2001 with Bill C-36, the Anti-terrorism Act. A sunset clause contained in that Act stated that the provisions in question would cease to apply at the end of the 15th sitting day of Parliament after 31 December 2006, unless they were extended by a resolution passed by both houses of Parliament. As of February 2007, no investigative hearings had been held and there was no reported use of the provisions on recognizance with conditions."

"Before the provisions were set to expire, they were reviewed by the Supreme Court of Canada and by Parliament. The Supreme Court reviewed the investigative hearings portion of the Anti-terrorism Act in the context of the Air India trial. The Crown had brought an ex parte application seeking an order that a Crown witness attend an investigative hearing pursuant to section 83.28 of the Code ... That order was appealed to the Supreme Court. The Court released companion decisions upholding the constitutionality of these provisions, stating that investigative hearings do not violate an individual’s section 7 Canadian Charter of Rights and Freedoms right against self-incrimination, as evidence derived from such hearings cannot be used against the person except in perjury prosecutions."

"In Parliament, two special committees were charged with review of the Anti‑terrorism Act ... The House of Commons Subcommittee on the Review of the Anti-terrorism Act heard a wide variety of testimony on the provisions and released an interim report in October 2006 dealing specifically with investigative hearings and recognizance with conditions. The Subcommittee stated that it felt these provisions were in accord with Canadian legal tradition and that sufficient safeguards were built into the process, but that there still remained some need for clarification. It suggested a number of technical amendments to the provisions, as well as some broader substantive ones."

"In the Senate, a Special Committee on the Anti-terrorism Act was convened in December 2004 to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act. Again, this Committee heard from a broad spectrum of witnesses, some of whom felt that the Anti-terrorism Act represented a substantial departure from Canadian legal traditions and feared that use of these provisions might eventually extend beyond terrorism offences to other more generic Criminal Code offences, and others who felt that these provisions were not new, did not violate rights, and allowed threats to be addressed proactively. The Committee released its final report on 22 February 2007, making two recommendations for amendment with respect to the provisions for investigative hearings and recognizance with conditions."