Annual Report of the Minister of Public Safety Concerning Recognizance with Conditions: Arrests without Warrant

July 15, 2013 – July 14, 2014

1. Introduction

Subsections 83.31 (3) and (3.1) of the Criminal Code requires the Minister of Public Safety and Emergency Preparedness to prepare and present before Parliament an annual report on issues relating to 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).
3. the opinion of the Minister of Public Safety, supported by reasons, on whether the operation of section 83.3 should be extended

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}.

Originally created in the Criminal Code by the Anti-Terrorism Act 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 sunsetted on March 1, 2007. However, these provisions were renewed, with additional safeguards, when the Combatting Terrorism Act (CTA) came into force on July 15, 2013.

This document constitutes the annual report of the Minister of Public Safety and Emergency Preparedness. It covers a period of renewed operation of section 83.3 from July 15, 2013 to July 14, 2014, during which this measure was part of the Criminal Code.

2. The Anti-terrorism Act (ATA) 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 motivations to terrorism. The Act amended a number of federal Acts and included extensive new anti-terrorism measures in the Criminal Code.

3. Recognizance with Conditions provision

Section 83.3 of the Criminal Code establishes a measure to assist in disrupting plans to commit terrorism. A peace officer who believes on reasonable grounds that a terrorist activity would 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, can lay an information before a provincial court judge. The judge can 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 was necessary in order to prevent a terrorist activity, the officer can arrest the person, without warrant, in order to bring the person before a judge. The judge can, 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:

• 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, is required before a peace officer can lay an information to bring a person before a provincial court judge;
• The requirement of reasonable belief that a terrorist activity will be carried out lends objectivity to the standard. In other words, the standard is not solely one of reasonable suspicion;
• Only a provincial court judge can receive an information, and may cause the person to appear before him or her. Thus, the judge receiving the information has the discretion not to issue process where an information is unfounded. As well, the judge may 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 can only be made in limited circumstances, where the grounds for laying an information exists but laying the information has been rendered impracticable by reason of exigent circumstances, or where an information has been laid and a summons issued, and, in either case, a peace officer suspected on reasonable grounds that the detention of the person in custody is necessary in order to prevent a terrorist activity;
• A person detained in custody must be brought before a provincial court judge without unreasonable delay and in any event within 24 hours of arrest, unless a judge is not available within that period in which case the person must be brought before a judge as soon as feasible. If an information has not been laid before a judge with the consent of the relevant Attorney General before the detainee is taken before a judge, the detainee had to be released;
• When a person is detained in custody and taken before a judge, the onus is on the peace officer to show cause why the person should continue to be detained in custody;
• The judge can order the continued detention of the person pending a hearing, but that detention cannot exceed 48 hours; and
• At the hearing, the presiding judge must be satisfied by "evidence" that the peace officer's has reasonable grounds for the suspicion.  
• The recognizance with condition provision is again subject to a five-year sunset clause. Its application can only be extended by resolution of the two Houses of Parliament.

4. Requirements of the Annual Report

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.

Section 83.31(3.1) requires the Attorney General of Canada and the Minister of Public Safety and Emergency Preparedness to include in their annual reports their opinion, supported by reasons, on whether the operation of section 83.3 should be extended.

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 will cease to apply at the end of the fifteenth sitting day of Parliament after the fifth anniversary of the coming into force of this subsection unless, before the end of that day, the application of the relevant sections is extended pursuant to the procedure set out in subsections 83.32(2).

5. Statistics

6. Opinion of the Minister of Public Safety

The Government’s 2014 Public Report on the Terrorist Threat to Canada notes that global violent extremists, particularly by the Islamic State of Iraq and Levant (ISIL), and its sympathizers, have identified Canada as a target for terrorist attacks. Canada is also at risk from violent extremists within Canada acting in small cells or as individuals, or by Canadians who engage in terrorist activity abroad and return to Canada or other countries imbued with knowledge, skills and experience gained in terrorist operations and training camps. Put simply, Canada continues to be at risk of terrorism and recent attacks in Ottawa and Saint-Jean-sur-Richelieu only confirm this unfortunate reality.

The recognizance with condition power provides law enforcement agencies with the much needed ability to act in a timely fashion, should circumstance warrant. The power can be 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.

That the recognizance with conditions had not been used when it was available from 2001 to 2007, or between July 15, 2013 and July 14, 2014 suggests that the police view these provisions as a uniquely preventive measure. It further illustrates that law enforcement agencies do 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 is fulfilling its original intent: i.e., ensuring the protection of Canadians and the global community, while protecting civil liberties, and remains valuable to law enforcement and should remain available.

Date modified:

2016-01-19