Vol. 147, No. 13 — June 19, 2013
SI/2013-67 June 19, 2013
COMBATING TERRORISM ACT
Order Fixing July 15, 2013 as the Day on which the Act Comes into Force
P.C. 2013-644 June 6, 2013
His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 30 of the Combating Terrorism Act, chapter 9 of the Statutes of Canada, 2013, fixes July 15, 2013 as the day on which that Act comes into force.
(This note is not part of the Order.)
This Order fixes July 15, 2013, as the date of the coming into force of An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act,also known as the Combating Terrorism Act, assented to on April 25, 2013. This Order is made pursuant to section 30 of this Act.
The Combating Terrorism Act, formerly referred to as Bill S-7, re-enacts, with additional safeguards, the investigative hearing and recognizance with conditions provisions in the Criminal Code, two measures that expired in 2007 after being originally created in 2001 by the Anti-terrorism Act. It also creates four new Criminal Code offences of leaving or attempting to leave Canada to commit certain terrorism offences. For example, section 83.181 creates the offence of leaving or attempting to leave Canada for the purpose of participating in any activity of a terrorist group contrary to section 83.18 of the Criminal Code. The maximum penalty for this offence is 10 years’ imprisonment. In addition, the Combating Terrorism Act increases the maximum penalty from 10 to 14 years for the section 83.23 offence of knowingly harbouring or concealing a person who carried out a terrorist activity, where the terrorist activity is a terrorism offence punishable by a maximum penalty of life imprisonment. In all other cases, the maximum penalty of 10 years remains the same.
The Combating Terrorism Act also amends the Canada Evidence Act (CEA)to allow the Federal Court to order that applications for the disclosure of sensitive or potentially injurious information be made public and that hearings related to those applications be heard in private. In addition, the Combating Terrorism Act provides for the annual reporting on the operation of the provisions of that Act that relate to the issuance of certificates and fiats.
In addition, the Combating Terrorism Act amends the English definition of “special operational information” in the Security of Information Act (SOIA). It also increases the maximum penalty from 10 to 14 years for the offence of knowingly harbouring or concealing a person who committed a SOIA offence, where the individual being harboured or concealed has committed an offence under the SOIA that is punishable by a maximum penalty of life imprisonment. For example, a person who unlawfully communicates information to a foreign entity or to a terrorist group, which is information that the Government of Canada or of a province is taking measures to safeguard, is liable to a maximum penalty of life imprisonment (section 16 of the SOIA).
Lastly, the Combating Terrorism Act makes technical amendments in response to a parliamentary review of the Anti-terrorism Act.
The Combating Terrorism Act re-enacts the investigative hearings and the recognizance with conditions provisions of the Criminal Code. These tools are designed to help disrupt plans and preparations for terrorist attacks and investigate past or future terrorism offences. Numerous safeguards are provided to prevent the abuse of these powers.
New offences of leaving or attempting to leave Canada to commit certain terrorism offences are also being created in order to deter persons from leaving Canada to attend terrorist training camps or engage in other terrorist activity abroad.
A number of amendments to sections 38 of the CEA are made in order to reflect the 2007 decision of the Federal Court in the case of Toronto Star Newspapers Ltd. v. Canada. In that decision, the court found that the mandatory confidentiality requirements set out in subsections 38.04(4), 38.11(1) and 38.12(2) of the CEA offend the open court principle. As a consequence, the Act makes the necessary amendments.
Other amendments made to the CEA respond to some recommendations made in the Final Report of the House of Commons Subcommittee on the Review of the Anti-terrorism Act, such as clarifying when an order of the court that authorizes the disclosure of information takes effect.
Finally, the amendments to the SOIA are made in part to increase the penalty for the offence of knowingly harbouring or concealing a person who committed a SOIA offence that is punishable by a maximum penalty of life imprisonment. This amendment reflects the same increase in penalty made in relation to the Criminal Code harbouring and concealing offence.
The investigative hearing and the recognizance with conditions were first created as part of Bill C-36, the Anti-terrorism Act that was enacted in 2001. The purpose of the Anti-Terrorism Act was largely, although not exclusively, to prevent terrorist attacks from taking place. The investigative hearing was intended to help in the investigation of past and future terrorism offences, while the recognizance with conditions was intended to interfere with and destabilize those who are in the planning stages of an attack. The federal and provincial governments were required to report annually on the use of these powers. These provisions were subject to a five-year sunset clause unless Parliament voted in favour of a resolution to extend them further. When the House of Commons voted in February 2007 not to extend these provisions, they expired in March 2007. Subsequent bills that were introduced to re-enact these provisions died on the Order Paper at the dissolution or prorogation of Parliament.
The Combating Terrorism Act re-enacts the investigative hearing (sections 83.28 and 83.29) to allow the courts, when certain criteria are met, to compel a witness who may have information regarding a past or future terrorism offence to appear in court and provide information, or produce a thing in their possession or control (e.g. a backpack left by a terrorist suspect). When certain criteria are met, the re-enacted recognizance with conditions provision (section 83.3) requires a person to enter into an agreement before a judge to abide by certain conditions in order to prevent the carrying out of a terrorist activity.
The investigative hearing and recognizance with conditions provisions of the Combating Terrorism Act are scheduled to expire or “sunset” after five years, subject to renewal by Parliament. Under subsection 83.31(1.1) of the Criminal Code, the Attorney General of Canada is required to include, in the annual report on the operation of sections 83.28 and 83.29 (investigative hearing), his or her opinion, supported by reasons, on whether the operation of sections 83.28 and 83.29 of the Criminal Code should be extended.
Finally, under subsection 83.31(3.1) of the Criminal Code, both the Attorney General of Canada and the Minister of Public Safety are required to include in their annual reports made under subsections 83.31(2) and 83.31(3), respectively, their opinion, supported by reasons, on whether the operation of section 83.3 (recognizance with conditions) of the Criminal Code should be extended.
The coming into force of the Combating Terrorism Act affects the provinces. The investigative hearing and the recognizance with conditions could be tools used by provincial law enforcement and prosecutorial authorities to assist them in the investigation of terrorism offences or to prevent the carrying out of terrorist activity. In addition, the new Criminal Code offences could be investigated and prosecuted by provincial authorities.
In developing various aspects of the legislation, consultations were held at the federal level with partners such as the Royal Canadian Mounted Police and the Public Prosecution Service of Canada, who were supportive of the measures, as well as within the Department of Justice.
Criminal Law Policy Section
Department of Justice Canada