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

July 15, 2015 – July 14, 2016

1. Introduction

Subsections 83.31 (3) and (3.1) of the Criminal Code require 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, 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), (7.1)(a) or (7.2)(a); and
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 ^Footnote1.

The recognizance with conditions provision and another measure – the investigative hearing – were originally created in the Criminal Code by the Anti-terrorism Act in 2001. These two tools were subject to a five-year sunset clause. As a result, they expired in March 2007, but were then renewed in July 2013, with additional safeguards, when the Combating Terrorism Act came into force.

The recognizance with conditions provision was amended by Bill C-51, the Anti-terrorism Act, 2015, S.C. 2015, c. 20, which received Royal Assent on June 18, 2015. The amendments lowered the threshold to obtain a recognizance with conditions and increased the period of preventative detention to a possible total of up to 7 days. While previously a judge had to consider whether to prohibit a person from possessing a firearm or other kinds of weapons, amendments also required the judge to consider whether to impose a geographic restrictions condition on the person and whether to require the person to surrender their passport(s) or other travel documents. The amendments to the recognizance with conditions came into force thirty days following the date of Royal Assent.

Both the recognizance with conditions and the investigative hearing are subject to a sunset clause. They will expire after the fifth anniversary of their coming into force, in 2018, unless extended by a resolution passed by both Houses of Parliament. Moreover, they are subject to a mandatory Parliamentary review before they are set to expire.

This document constitutes the annual report of the Minister of Public Safety and Emergency Preparedness as required by subsections 83.31 (3) and (3.1) of the Criminal Code. It covers the period from July 15, 2015 to July 14, 2016.

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, as amended by the Anti-terrorism Act, 2015, establishes a measure to assist in disrupting plans to carry out a terrorist activity. A peace officer who believes on reasonable grounds that a terrorist activity may be carried out, and suspects on reasonable grounds that imposing conditions for supervision or arresting a person is likely 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 is likely 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 judge must consider whether to prohibit the person from possessing a firearm or other kinds of weapons, whether to impose a geographic restrictions condition on the person and whether to require the person to surrender their passport(s) or other travel documents. The recognizance has a maximum period of twelve months duration, but, if the person has been previously convicted of a terrorism offence, it has a maximum period of two years duration.

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 may 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 suspects on reasonable grounds that the detention of the person in custody is likely 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 has 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 maximum possible period of detention before a recognizance with conditions hearing is held is seven days, with periodic judicial review;
• At the hearing, the presiding judge must be satisfied by "evidence" that the peace officer has reasonable grounds for the suspicion; and
• The recognizance with condition provision is 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 above (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 the recognizance with conditions and investigative hearing 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, which was July 15, 2013, 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).

Section 83.32 also requires that a comprehensive review of the recognizance with conditions, as well as the investigative hearing, including their operation, must be conducted by a committee of the Senate, House of Commons, or both Houses of Parliament.

5. Statistics

Opinion of the Minister of Public Safety

Today’s national security threats are more complex and diffuse than ever before. Global violent extremist groups, including Daesh and Al Qaida and its affiliates, pose threats to Canada and our allies.

The attacks in Ottawa in 2014, and more recently in places such as Paris, Jakarta, and Ouagadougou, where Canadians were among the victims, underscore the need for effective tools to respond to a changing threat environment and the evolving techniques, tactics and procedures of threat actors.

The Government of Canada has a duty to protect Canadians from terrorism. The harm that terrorism can cause is unique because, aside from resulting in death or serious injury, it constitutes an attack on our democratic values. It is therefore necessary to create special tools to prevent terrorist activity from being committed.

At the same time, in accordance with our democratic values, the government has a duty to protect Canadians’ civil liberties. As such, anti-terrorism measures must be accompanied by safeguards and regular review, in consultation with Parliamentarians, experts, and the Canadian public. In the case of section 83.3 of the Criminal Code, safeguards include prior consent of the appropriate Attorney General and the requirement that the judge be satisfied that the person should be ordered to enter into the recognizance.  Moreover, to help ensure accountability and transparency, these measures are subject to a five-year sunset clause unless renewed by Parliament, and to comprehensive review by Parliament in accordance with subsection 83.31(1.1).

With respect to these and other anti-terrorism measures, the government also released in September 2016 a Green Paper to consult with Canadians on certain aspects of Canada’s national security framework. The Green Paper includes a discussion of the recognizance with conditions and asks whether the threshold for obtaining the recognizance with conditions is appropriate. The aim of the consultation is to help the government develop more informed policies in this complex area.

The government is committed to ensuring that our overall national security framework and procedures are effective at keeping Canadians safe, while safeguarding our values in a free and democratic society.

Although these tools were not used by the RCMP during the period July 15, 2015 to July 14, 2016, they are nonetheless important – with proper safeguards and review – so that they can be used in appropriate circumstances to prevent the carrying out of a terrorist activity.

Date modified:

2017-02-03