Annual Report Concerning Recognizance with Conditions: Arrests without Warrant

December 24, 2004 – December 23, 2005

Table of contents

1. Introduction

Pursuant to section 83.31 (3), the Minister of Public Safety and Emergency Preparedness is required to provide a report to Parliament on a particular aspect of the operation of section 83.3 of the Criminal Code. This section establishes a procedure for obtaining a recognizance order as a means of preventing the carrying out of a terrorist activity. The report must include the following data:

83.31 (3) (a)

83.31 (3) (b)

This document constitutes the annual report of the Minister of Public Safety and Emergency Preparedness covering the fourth year of operation of the Act from December 24, 2004 to December 23, 2005.

The Criminal Code also requires the Minister responsible for policing in every province to publish or otherwise make available to the public an annual report. The data to be included in this report is the same as set out above.

The Attorney General of Canada is required to report annually to Parliament on the operation of sections 83.28 and 83.29, which provide for investigative hearings into terrorism offences. The Attorney General of Canada is also required to report, pursuant to section 83.31 (2), on certain aspects of the operation of section 83.3. The Attorney General of Canada presents this information in a separate report.

The Attorneys General of every province must also publish or otherwise make public an annual report on their use of the investigative hearing and recognizance with conditions. Provincial reports are not included in this document.

2. The Anti-terrorism Act and the recognizance with conditions

The Anti-terrorism Act

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 counter-terrorism approach, including: to prevent terrorists from getting into Canada; to protect Canadians from terrorists 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.

The Recognizance with Conditions (Criminal Code section 83.3)

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 the recognizance with conditions, which came into effect on December 24, 2001. Section 83.3 of the Criminal Code establishes preventive measures against terrorism. A peace officer who believes on reasonable grounds that a terrorist activity will be carried out and suspects on reasonable grounds that imposing conditions for supervision or arresting a person is necessary to prevent the activity from being carried out may lay an information before a provincial court judge. The judge may then compel the person to appear before him or her. In certain limited situations where the peace officer suspects on reasonable grounds that the detention of the person in custody is necessary in order to prevent a terrorist activity, the officer may arrest the person without warrant in order to bring the person before a judge. The judge may, if satisfied on evidence adduced that the peace officer has 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 considers desirable for preventing the carrying out of a terrorist activity. The recognizance can be for a maximum period of twelve months.

Safeguards within the recognizance with conditions provision include:

3. Statistics

Paragraphs 83.31 (3) (a) and 83.31 (3) (b) of the Criminal Code require the Minister of Public Safety and Emergency Preparedness to report on an annual basis information relating to:

83.31 (3) (a)

From December 24, 2004, to December 23, 2005, both the Royal Canadian Mounted Police and the Department of Justice Federal Prosecution Services report that there were no arrests without warrant pursuant to subsection 83.3 (4) of the Criminal Code. As such, there is no data to report in relation to the period of the arrested person's detention. For the purposes of this report, the data herein includes the reporting requirements for the governments of the Yukon, Northwest Territories and Nunavut.

83.31 (3) (b)

Since no arrests without warrant were made under subsection 83.3 (4), there is also no data to report as per paragraph 83.31 (3) (b). This has been confirmed by the Royal Canadian Mounted Police and Department of Justice Federal Prosecution Services. The first three annual reports by the Minister of Public Safety and Emergency Preparedness, taken together, span the period from December 24, 2001 to December 23, 2004. The reports have all indicated no data to report in relation to the above reporting requirements. The 2003/2004 report is available to view on-line.

4. Assessment and the Anti-terrorism Act review

The provisions of the Anti-terrorism Act are intended to provide tools to the police and prosecutors in support of effective identification and investigation of terrorist threats and prosecution of terrorist activities, within the general objective of preventing the occurrence of such activities.

The fact that subsection 83.3 (4) of the Criminal Code was not exercised during the Anti-terrorism Act's four-year existence illustrates several things.

It is an indication that the police view the section 83.3 power of arrest provision as a uniquely preventive measure. It illustrates that law enforcement does not take lightly the carefully circumscribed powers that they have been given by Parliament and that they are sensitive to the implications of exercising such powers.

The result is that this provision within the Anti-terrorism Act is fulfilling its original intent: ensuring the protection of Canadians and the global community, while at the same time respecting Canadian values of fairness and human rights, which includes balancing the rights of security of the person and the protection of civil liberties.

The annual reporting requirements within the Anti-terrorism Act will continue to provide a useful opportunity for assessing the use and impact of the Recognizance with Conditions and Investigative Hearing.

The Review of the Anti-terrorism Act

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 first undertaken in 2004-2005 by two Parliamentary committees. In the House of Commons, the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, tasked its Subcommittee on Public Safety and National Security to conduct the review. The Subcommittee began its review in December 2004 and hearings in the Act ended in November 2005. In the Senate, a Special Committee on the Anti-terrorism Act was created in December 2004 specifically to undertake the review. The Senate committee also ended its hearings in November 2005. With the dissolution of Parliament, the work of the committees was put on hold. Motions have been made in the House of Commons and Senate to strike committees to continue the Parliamentary review of the Act. The Government looks forward to receiving these reports upon their completion.

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