Annual Report Concerning Recognizance with Conditions: Arrests without Warrant

December 24, 2006 – March 1, 2007

1. Introduction

Subsection 83.31 (3) of the Criminal Code requires the Minister of Public Safety and Emergency Preparedness to prepare and present before Parliament an annual report on the operation of section 83.3 of the Criminal Code, referring to the recognizance with conditions provision. The report must include:

1. the number of arrests without warrant that were made under subsection 83.3(4) and the period of the arrested person's detention in custody in each case; and
2. the number of cases in which a person was arrested without warrant under subsection 83.3(4) and was released
   1. by a peace officer under paragraph 83.3(5)(b), or
   2. by a judge under paragraph 83.3.(7)(a).

The Minister responsible for policing in every province must also publish or otherwise make available to the public an annual report on the use of this provision. Provincial reports are not included in this document ^{Footnote 1}.

Upon its creation in 2001, the recognizance with conditions provision (along with the investigative hearing provision) was subject to a five-year sunset clause whereby the measure would cease to apply at the end of the fifteenth sitting day of Parliament after December 31, 2006, unless a resolution to extend it was passed by both Houses of Parliament. The House of Commons voted in February 2007 not to extend these provisions. As a result, they ceased to apply at the end of day on March 1, 2007. However, this does not affect the requirement for an annual report.

This document constitutes the annual report of the Minister of Public Safety and Emergency Preparedness. It covers the sixth year of operation of the Anti-terrorism Act (ATA) from December 24, 2006 to March 1, 2007, during which this measure was part of the Criminal Code.

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

In the aftermath of the terrorist attacks of September 11, 2001 in the United States, 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 ATA received Royal Assent on December 18, 2001.

The ATA addressed objectives of Canada's counter-terrorism approach, including: to prevent terrorists from getting into Canada; to protect Canadians from acts of terrorism 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-terrorism measures in the Criminal Code.

Recognizance with Conditions provision

Section 83.3 of the Criminal Code established further preventive measures against terrorism. A peace officer who believed on reasonable grounds that a terrorist activity would be carried out, and suspected on reasonable grounds that imposing conditions for supervision or arresting a person was necessary to prevent the activity from being carried out, could lay an information before a provincial court judge. The judge could then compel the person to appear before him or her. In certain limited situations where the peace officer suspected on reasonable grounds that the detention of the person in custody was necessary in order to prevent a terrorist activity, the officer could arrest the person, without warrant, in order to bring the person before a judge. The judge could, if satisfied on evidence adduced that the peace officer had reasonable grounds for suspicion, order the person to enter into a recognizance to keep the peace and to comply with any other reasonable conditions that the judge considered desirable for preventing the carrying out of a terrorist activity. The recognizance could be for a maximum period of twelve months.

Safeguards within the recognizance with conditions provision included:

• The consent of the Attorney General of Canada or his or her lawful deputy, or of the Attorney General or Solicitor General of the province or his or her lawful deputy, was required before a peace officer could lay an information to bring a person before a provincial court judge.
• The requirement of reasonable belief that a terrorist activity would be carried out lent objectivity to the standard. In other words, the standard was not solely one of reasonable suspicion.
• Only a provincial court judge could receive an information, and could cause the person to appear before him or her. Thus, the judge receiving the information had a discretion not to issue process where an information was unfounded. As well, the judge could decide to issue process by way of a summons rather than by issuing an arrest warrant where the arrest of the person would be excessive and unwarranted.
• A warrantless arrest of a person could only be made in limited circumstances, where the grounds for laying an information existed but laying the information had been rendered impracticable by reason of exigent circumstances, or where an information had been laid and a summons issued, and a peace officer suspected on reasonable grounds that the detention of the person in custody was necessary in order to prevent a terrorist activity.
• A person detained in custody had to be brought before a provincial court judge without unreasonable delay and in any event within 24 hours of arrest, unless a judge was not available within that period in which case the person had to be brought before a judge as soon as possible hereafter. If an information had not been laid before a judge with the consent of the relevant Attorney General before the detainee was taken before a judge, the detainee had to be released.
• When a person was detained in custody and taken before a judge, the onus was on the peace officer to show cause why the person should continue to be detained in custody.
• The judge could order the continued detention of the person pending a hearing, but that detention could not exceed 48 hours.
• At the hearing, the presiding judge had to be satisfied by "evidence" that the peace officer's suspicion was reasonably based. The judge had to come to his or her own conclusion about the likelihood that the imposition of a recognizance upon the person was necessary to prevent a terrorist activity.
• The recognizance with condition provision was subject to a five-year sunset clause. Its application could only be extended by resolution of the two Houses of Parliament.

Section 83.31(3) requires the Minister of Public Safety and Emergency Preparedness to present an annual report to Parliament on the operation of the arrest-without-warrant power, as set out in the Introduction.

Subsection 83.31(4) requires that these annual reports shall not contain any information the disclosure of which would compromise or hinder an ongoing investigation of an offence under an Act of Parliament. The reports must also not release information that would endanger the life or safety or any person, prejudice a legal proceeding or otherwise be contrary to the public interest.

Section 83.32 contains a "sunset" clause whereby these powers ceased to apply at the end of the fifteenth sitting day of Parliament after December 31, 2006, unless the application of the relevant sections was extended pursuant to the procedure set out in subsections 83.32(2) to (5). As previously mentioned, in February 2007, the House of Commons voted against extending these measures, with the result that they ceased to apply at the end of day on March 1, 2007.

3. Statistics

Paragraph 83.31(3)(a)
The number of arrests without warrant that were made under subsection 83.3(4) and the period of the arrested person's detention in custody in each case; and

Paragraph 83.31(3)(b)
The number of cases in which a person was arrested without warrant under subsection 83.3(4) and was released

1. by a peace officer under paragraph 83.3(5)(b), or
2. by a judge under paragraph 83.3(7)(a).

From December 24, 2006 to March, 1, 2007, the Royal Canadian Mounted Police reports 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.

Since no arrests without warrant were made under subsection 83.3 (4), there is also no data to report under paragraph 83.31(3)(b). This has been confirmed by the Royal Canadian Mounted Police.

The first five annual reports by the Minister of Public Safety and Emergency Preparedness have been tabled in Parliament. Taken together, during the period of December 24, 2001 to December 23, 2006, the Royal Canadian Mounted Police had no data to report in relation to this reporting requirement. These five reports are available to view on-line or download at the following Public Safety Internet site.

4. Assessment

The ATA's provisions provided tools to the police and prosecutors to effectively identify and investigate and prosecute terrorist threats.

The potential of the recognizance with condition power to save lives was real. It provided law enforcement agencies with the much needed ability to act in a timely fashion, should circumstance warrant. The power could have been used for the prevention, disruption and deterrence of a terrorist incident. Contrary to other measures already present in the Criminal Code, it was tailored to the nature of terrorist structure and type of activities.

The fact that subsection 83.3 (4) of the Criminal Code was not exercised for the five years and two months that it was in force suggests that the police viewed section 83.3 arrest-without-warrant power as a uniquely preventive measure. It further illustrates that law enforcement agencies did not take lightly the carefully circumscribed powers that they were given by Parliament and that they were sensitive to the implications of exercising such powers.

The overall assessment is that this provision was fulfilling its original intent; i.e., ensuring the protection of Canadians and the global community, while respecting human rights and protecting civil liberties.

Review of the Anti-terrorism Act

The ATA required Parliament to undertake a comprehensive review of the provisions and operation of the ATA within three years after it received Royal Assent (December 18, 2001). The review was completed in early 2007 by two Parliamentary Committees, the Special Senate Committee on Anti-terrorism Act, and the House of Commons Subcommittee on the Review of the Anti-terrorism Act, which was a subcommittee of the Standing Committee on Public Safety and National Security. The Special Committee called for the extension of the investigative hearing and the recognizance with conditions for three years, with the possibility of further extension. It also recommended that the annual reports on the use of these measures should include a clear statement and explanation from the Attorney General of Canada indicating whether or not these measures remain warranted. The majority of the House Subcommittee recommended that the investigative hearing should apply only to imminent terrorism offences – not past ones – and that the modified investigative hearing and recognizance with conditions provisions should be renewed for five years, subject to a mandatory Parliamentary review, with the possibility of further extension. However, there was also a dissenting opinion which argued that the recognizance with conditions provision should be abolished.

On February 27, 2007, the House of Commons defeated by a vote of 154-129 a motion to extend by three years the application of the investigative hearing and recognizance with conditions provisions. As a result, these provisions ceased to apply as of March 1, 2007.

The Government continues to be committed to providing law enforcement agencies with the powers necessary in the fight against terrorism.

Date modified:

2018-01-31