Bill S-3

2nd Session, 39th Parliament,

56-57 Elizabeth II, 2007-2008

senate of canada

BILL S-3

An Act to amend the Criminal Code (investigative hearing and recognizance with conditions)

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. The heading before section 83.28 and sections 83.28 to 83.3 of the Criminal Code are replaced by the following:

Investigative Hearing

83.28 (1) In this section and section 83.29, “judge” means a provincial court judge or a judge of a superior court of criminal jurisdiction.

(2) Subject to subsection (3), a peace officer may, for the purposes of an investigation of a terrorism offence, apply ex parte to a judge for an order for the gathering of information.

(3) A peace officer may make an application under subsection (2) only if the Attorney General’s prior consent was obtained.

(4) The judge to whom the application is made may make an order for the gathering of information if they are satisfied that the Attorney General’s consent was obtained as required by subsection (3), and

(a) that there are reasonable grounds to believe that

(i) a terrorism offence has been committed,

(ii) information concerning the offence, or information that may reveal the whereabouts of a person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order, and

(iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means; or

(b) that

(i) there are reasonable grounds to believe that a terrorism offence will be committed,

(ii) there are reasonable grounds to believe that a person has direct and material information that relates to the offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit the offence referred to in that subparagraph, and

(iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means.

(5) An order made under subsection (4) shall order the examination, on oath or not, of the person named in the order and require the person to attend at the place fixed by the judge, or by the judge designated under paragraph (b), as the case may be, for the examination and to remain in attendance until excused by the presiding judge, and may

(a) order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge;

(b) designate another judge as the judge before whom the examination is to take place; and

(c) include any other terms or conditions that the judge considers desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the protection of any ongoing investigation.

(6) The order may be executed anywhere in Canada.

(7) The judge who made the order, or another judge of the same court, may vary its terms and conditions.

(8) A person named in an order made under subsection (4) shall answer questions put to them by the Attorney General or the Attorney General’s agent, and shall produce to the presiding judge things that the person was ordered to bring, but may refuse if answering a question or producing a thing would disclose information that is protected by any law relating to privilege or to disclosure of information.

(9) The presiding judge shall rule on any objection or other issue relating to a refusal to answer a question or to produce a thing.

(10) No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate them or subject them to any proceeding or penalty, but

(a) no answer given or thing produced under subsection (8) shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136; and

(b) no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136.

(11) A person has the right to retain and instruct counsel at any stage of the proceedings.

(12) The presiding judge, if satisfied that any thing produced during the course of the examination will likely be relevant to the investigation of any terrorism offence, shall order that the thing be given into the custody of the peace officer or someone acting on the peace officer’s behalf.

83.29 (1) The judge who made the order under subsection 83.28(4), or another judge of the same court, may issue a warrant for the arrest of the person named in the order if the judge is satisfied, on an information in writing and under oath, that the person

(a) is evading service of the order;

(b) is about to abscond; or

(c) did not attend the examination, or did not remain in attendance, as required by the order.

(2) The warrant may be executed at any place in Canada by any peace officer having jurisdiction in that place.

(3) A peace officer who arrests a person in the execution of the warrant shall, without delay, bring the person, or cause them to be brought, before the judge who issued the warrant or another judge of the same court. The judge in question may, to ensure compliance with the order, order that the person be detained in custody or released on recognizance, with or without sureties.

(4) Section 707 applies, with any necessary modifications, to persons detained in custody under this section.

Recognizance with Conditions

83.3 (1) The Attorney General’s consent is required before a peace officer may lay an information under subsection (2).

(2) Subject to subsection (1), a peace officer may lay an information before a provincial court judge if the peace officer

(a) believes on reasonable grounds that a terrorist activity will be carried out; and

(b) suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity.

(3) The judge who receives the information may cause the person to appear before any provincial court judge.

(4) Despite subsections (2) and (3), a peace officer may arrest a person without a warrant and cause the person to be detained in custody, to be taken before a provincial court judge in accordance with subsection (6), if

(a) either

(i) the grounds for laying an information referred to in paragraphs (2)(a) and (b) exist but, by reason of exigent circumstances, it would be impracticable to lay an information under subsection (2), or

(ii) an information has been laid under subsection (2) and a summons has been issued; and

(b) the peace officer suspects on reasonable grounds that the detention of the person in custody is necessary in order to prevent a terrorist activity.

(5) If a peace officer arrests a person without a warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),

(a) lay an information in accordance with subsection (2); or

(b) release the person.

(6) Unless a peace officer, or an officer in charge within the meaning of Part XV, is satisfied that a person should be released from custody unconditionally before their appearance before a provincial court judge in accordance with the rules in paragraph (a) or (b), and so releases the person, the person detained in custody shall be taken before a provincial court judge in accordance with the following rules:

(a) if a provincial court judge is available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period; and

(b) if a provincial court judge is not available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as feasible.

(7) When a person is taken before a provincial court judge under subsection (6),

(a) if an information has not been laid under subsection (2), the judge shall order that the person be released; or

(b) if an information has been laid under subsection (2),

(i) the judge shall order that the person be released unless the peace officer who laid the information shows cause why the person’s detention in custody is justified on one or more of the following grounds:

(A) the detention is necessary to ensure the person’s appearance before a provincial court judge in order to be dealt with in accordance with subsection (8),

(B) the detention is necessary for the protection or safety of the public, including any witness, having regard to all the circumstances including

(I) the likelihood that, if the person is released from custody, a terrorist activity will be carried out, and

(II) any substantial likelihood that the person will, if released from custody, interfere with the administration of justice, and

(C) the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the peace officer’s grounds under subsection (2), and the gravity of any terrorist activity that may be carried out, and

(ii) the judge may adjourn the matter for a hearing under subsection (8) but, if the person is not released under subparagraph (i), the adjournment may not exceed 48 hours.

(8) The judge before whom the person appears in accordance with subsection (3)

(a) may, if satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion, order that the person enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed 12 months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsection (10), that the judge considers desirable for preventing the carrying out of a terrorist activity; and

(b) if the person was not released under subparagraph (7)(b)(i), shall order that the person be released, subject to the recognizance, if any, ordered under paragraph (a).

(9) The judge may commit the person to prison for a term not exceeding 12 months if the person fails or refuses to enter into the recognizance.

(10) Before making an order under paragraph (8)(a), the judge shall consider whether it is desirable, in the interests of the safety of the person or of any other person, to include as a condition of the recognizance that the person be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things, for any period specified in the recognizance, and if the judge decides that it is so desirable, they shall add the condition to the recognizance.

(11) If the judge adds the condition described in subsection (10) to a recognizance, they shall specify in it the manner and method by which

(a) the things referred to in that subsection that are in the person’s possession shall be surrendered, disposed of, detained, stored or dealt with; and

(b) the authorizations, licences and registration certificates that are held by the person shall be surrendered.

(12) If the judge does not add the condition to a recognizance, they shall include in the record a statement of the reasons for not adding it.

(13) The judge may, on application of the peace officer, the Attorney General or the person, vary the conditions fixed in the recognizance.

(14) Subsections 810(4) and (5) apply, with any necessary modifications, to proceedings under this section.

2. (1) Section 83.31 of the Act is amended by adding the following after subsection (1):

(1.1) The Attorney General of Canada shall include in the annual report under subsection (1) his or her opinion, supported by reasons, on whether the operation of sections 83.28 and 83.29 should be extended.

(2) Section 83.31 of the Act is amended by adding the following after subsection (3):

(3.1) The Attorney General of Canada and the Minister of Public Safety and Emergency Preparedness shall include in their annual reports under subsections (2) and (3), respectively, their opinion, supported by reasons, on whether the operation of section 83.3 should be extended.

3. (1) Subsections 83.32(1) and (2) of the Act are replaced by the following:

83.32 (1) Sections 83.28, 83.29 and 83.3 cease to have effect at the end of the 15th sitting day of Parliament after the fifth anniversary of the coming into force of this subsection unless, before the end of that day, the operation of those sections is extended by resolution — whose text is established under subsection (2) — passed by both Houses of Parliament in accordance with the rules set out in subsection (3).

(1.1) A comprehensive review of sections 83.28, 83.29 and 83.3 and their operation shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.

(1.2) The committee referred to in subsection (1.1) shall, within a year after a review is undertaken under that subsection or within any further time that may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including its recommendation with respect to extending the operation of those sections.

(2) The Governor in Council may, by order, establish the text of a resolution that provides for the extension of the operation of any of sections 83.28, 83.29 and 83.3 and that specifies the period of the extension, which may not exceed five years from the first day on which the resolution has been passed by both Houses of Parliament.

(2) Subsection 83.32(4) of the Act is replaced by the following:

(4) The operation of any of sections 83.28, 83.29 and 83.3 may be further extended in accordance with the procedure set out in this section, but the reference to “the fifth anniversary of the coming into force of this subsection” in subsection (1) is to be read as a reference to “the expiry of the most recent extension under this section”.

4. Section 83.33 of the Act is replaced by the following:

83.33 (1) In the event that sections 83.28 and 83.29 cease to have effect in accordance with section 83.32, proceedings commenced under those sections shall be completed if the hearing before the judge of the application made under subsection 83.28(2) began before those sections ceased to have effect.

(2) In the event that section 83.3 ceases to have effect in accordance with section 83.32, a person detained in custody under section 83.3 shall be released when that section ceases to have effect, except that subsections 83.3(7) to (14) continue to apply to a person who was taken before a judge under subsection 83.3(6) before section 83.3 ceased to have effect.

5. This Act comes into force on a day to be fixed by order of the Governor in Council.