Use of arrests without warrant pursuant to the Anti-Terrorism Act (2004)
As part of Canada's Anti-Terrorism Plan, the Government introduced the Anti-terrorism Act (Bill C-36) in Parliament on October 15, 2001, which later received Royal Assent on December 18, 2001.
Through amendments to the Criminal Code, the new Act created measures to take enforcement action in order to prevent terrorist incidents from taking place and provided law enforcement agencies with new investigative tools. Examples of such tools are the focus of investigative hearings and preventive arrests.
The Minister of Public Safety and Emergency Preparedness (PSEPC) is required under subsection 83.31(3) of the Criminal Code to prepare and submit to Parliament an annual report pertaining to the use of thearrest without warrant power (preventive arrest).
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 pertaining to the use of thearrest without warrant power, the period of detention and the number of cases where a person was arrested without warrant and subsequently released.
The first two annual reports by the Minister of PSEPC have beentabled in Parliament. During the reporting period for both reports (December 24, 2001 to December 23, 2003), subsection 83.3(4) of the Criminal Code was not exercised by the Royal Canadian Mounted Police, nor was any other provision that related to the arrest without warrant power. These two reports are available on-line:
The Attorney General of Canada is also required, pursuant to subsection 83.31(2) of the Criminal Code, to prepare and submit to Parliament an annual report on the use of the arrest with warrant power.
For the purposes of this report, the data herein includes the reporting requirements for the governments of the Yukon, Northwest Territories and Nunavut.
2. Overview of arrest without warrant power
A key focus of the Government's Anti-Terrorism Plan is to prevent terrorist incidents from occurring by providing the necessary tools to police, prosecutors and the courts. Section 83.28 and 83.29 of the Criminal Code allow a peace officer, "for purposes of an investigation of a terrorism offence", to apply ex parte to a judge for an order to gather information relevant to that investigation. This procedure has parallels in Canadian mutual legal assistance legislation. It authorizes the judge to order the examination of a material witness who may possess information regarding a terrorist offence that has been, or may be, committed. The procedure is not designed to initiate a prosecution against the individual and, in fact, the person is protected by subsection 83.28(10) from his or her statements being used in any criminal proceeding against him or her, except for a prosecution for perjury or giving false evidence. Other safeguards of the individual's rights are built into the procedure.
Section 83.3 of the Criminal Code allows a peace officer to make an arrest, inter alia, where there are reasonable grounds to believe that the person will commit a terrorist act. Subsection 83.3(4) allows a peace officer to arrest without a warrant under exceptional circumstances when it is believed a terrorist act is about to occur, and it is impractical to obtain the necessary warrant in time. The philosophy behind this power is that prevention is the most effective approach to combat terrorism.
The following are the key features of the arrest without warrant regime:
- A peace officer must believe on reasonable grounds that a terrorist activity will be carried out and must suspect on reasonable grounds that an arrest is necessary to prevent the carrying out of a terrorist activity;
- Exigent circumstances make it impracticable to obtain the consent of the Attorney General and to lay an information before a provincial court judge; and,
- A peace officer suspects on reasonable grounds that the detention of a person in custody is necessary to prevent a terrorist activity.
When the above conditions are met, the person may be arrested without warrant.
The following are the key features of the procedural regime:
- The arresting officer is required to lay an information with the consent of the Attorney General of Canada before a provincial court judge with respect to the reasonable grounds for the arrest;
- A person arrested without warrant can be released before being taken before a provincial court judge by the arresting officer or officer in charge;
- A person arrested without warrant and detained in custody shall be taken before a provincial court judge, if the judge is available, within 24 hours. If a provincial court judge is not available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as possible; and,
- Once before the provincial court judge, an order can be made by the judge to release the person if an information has not been laid. Where an information has been laid, the judge can order the person released unless the peace officer can show cause why the detention is necessary. The judge can also adjourn the matter to a hearing that must occur within 48 hours.
Both the investigative hearing and preventive arrest provisions are subject to annual reporting requirements and are sunsetted – they expire at the end of the fifteenth sitting day of Parliament after December 31, 2006, unless, before the end of that day, an extension by resolution is sought and passed by both Houses of Parliament.
Subsection 83.31(4) of the Criminal Code imposes some limitations on the annual report in that the information disclosed shall not compromise or hinder any ongoing investigations or endanger the life or safety of anyone. In addition, the disclosure shall not prejudice any legal proceedings or otherwise be contrary to the public interest.
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:
- The number of arrests without warrant.
- The period of the arrested person's detention in each case.
From December 24, 2003, to December 23, 2004, 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.
- The number of cases where a person arrested without a warrant was released by a peace officer.
- The number of cases where a person arrested without a warrant was released by a judge.
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.
4. General assessment
The provisions in the Anti-terrorism Act for investigative hearings and preventive arrests are intended to provide tools to the police, prosecutors and courts in support of effective identification and investigation of terrorist threats and 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 by the Royal Canadian Mounted Police during the Anti-terrorism Act'sthree year existence illustrates several things.
It is an indication that the power of arrest provision is viewed as a uniquely preventive measure by the police. It illustrates that law enforcement does not take lightly the carefully circumscribed powers that they have been given by Parliament in the Anti-terrorism Act and 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 legislative means of protecting 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 analyzing the utility of these measures, if and when they are used.
The Anti-terrorism Act is also subject to a comprehensive review within three years of receiving royal assent as outlined in section 145 of the Act. On December 14, 2004, the Parliamentary Review of the Ant-terrorism Act was announced.This review will provide a further opportunity to assess the usefulness of the arrest without warrant power under the Act, addressed in this annual report, and of the investigative hearing provisions and other aspects of the recognizance with conditions provisions, addressed in the annual report of the Attorney General of Canada.
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