Annual Report Concerning Criminal Code section 83.3 Recognizance with Conditions

Annual Report of the Minister of Public Safety and Emergency Preparedness
Concerning Criminal Code section 83.3 Recognizance with Conditions
July 15, 2018 – July 14, 2019

Introduction

This document constitutes the annual report of the Minister of Public Safety and Emergency Preparedness (Minister of Public Safety) on the arrest without warrant power found in section 83.3 of the Criminal Code, the recognizance with conditions provision. The Minister is required, under subsections 83.31 (3) and (3.1) of the Criminal Code, to prepare and present this report before Parliament, which covers the reporting period of July 15, 2018 to July 14, 2019. The Attorney General of Canada reports on other issues relating to the recognizance with conditions power pursuant to subsections 83.31(2) and 83.31(3.1) of the Criminal Code.

Requirements of the Annual Report

Subsections 83.31(3) and (3.1) of the Criminal Code state that the Minister must report on:

  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;
  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, a similar annual report on the use of this provision. These provincial reports are separate from, and are not included in, this report.

Background on s. 83.3: Recognizance with Conditions

The recognizance with conditions provisions were originally created in the Criminal Code by the Anti-terrorism Act of 2001. This measure expired in March 2007, but was renewed in July 2013 for an initial five-year period when the Combating Terrorism Act came into force. The Anti-terrorism Act, 2015 made additional amendments to the recognizance with conditions provisions. This measure was subject to a sunset clause, and it sunsetted on October 25, 2018.

Bill C-59 (National Security Act, 2017) received Royal Assent on June 21, 2019. It re-enacted the recognizance with conditions, with amendments, and enacted a new sunset clause, such that the recognizance with conditions would cease to have effect at the end of the fifth anniversary of the day on which Bill C-59 received Royal Assent unless, before that date, it is extended by resolution passed by both Houses of Parliament.

Recognizance with Conditions – the Law Prior to Sunsetting

Before the recognizance with conditions sunsetted on October 25, 2018, but within the period of review, a peace officer could, with the consent of the appropriate Attorney General, apply to a provincial court judge to have a recognizance with conditions imposed on a person where the peace officer believed on reasonable grounds that a terrorist activity may be carried out and suspected on reasonable grounds that the imposition of the recognizance with conditions on a person, or the arrest of a person, was likely to prevent the carrying out of the terrorist activity. If the judge was satisfied that the peace officer had reasonable grounds for the suspicion, the judge could have ordered the person to enter into the recognizance with conditions.

While a judge could have compelled the person to appear before him or her by means of a summons or warrant of arrest, this provision also provided for a limited arrest without warrant power that could have been used by a peace officer to cause the person to be detained in custody in order to bring the person before a judge to decide if a recognizance with conditions should be imposed on the person. Specifically, this limited arrest without warrant power applied in cases where there were exigent circumstances or a summons had been issued and where, in either case, the peace officer suspected on reasonable grounds that the detention of the person was likely to prevent a terrorist activity.

Recognizance with Conditions Amendments (Bill C-59)

Bill C-59 renewed the recognizance with conditions with amendments. It restored one of the thresholds for obtaining the recognizance with conditions to what it was before the Anti-terrorism Act, 2015 came into effect. Specifically, it amended paragraph 83.3(2)(b) of the Criminal Code to require that a peace officer must suspect on reasonable grounds that the imposition of a recognizance on a person, or the arrest of a person, "is necessary to prevent" the carrying out of a terrorist activity, rather than the previous threshold of "is likely to prevent" the carrying out of a terrorist activity. This change is also reflected in paragraph 83.3(4)(b), which relates to the limited police power of arrest without warrant that I am required to report on.

Bill C-59 provided that the recognizance with conditions would sunset at the end of the fifth anniversary of the day that Bill C-59 received Royal Assent, unless, before that date, Parliament extends its operation.

As in the previous sunset clause in section 83.32 of the Criminal Code, Bill C-59 provides that a committee of the Senate, House of Commons, or of both Houses of Parliament would comprehensively review the operation of the recognizance with conditions. However, unlike the previous section, the amendment requires that the report of the committee be completed no later than one year before the recognizance with conditions is to sunset. This will allow sufficient time for the Government to seek to have the recognizance with conditions extended, should it choose to do so, before the recognizance with conditions sunsets.

This report covers the operation of the arrest without warrant power found in section 83.3 during the period from July 15, 2018 to July 14, 2019. From July 15, 2018 to October 25, 2018, the recognizance with conditions provision was operational under the Anti-terrorism Act, 2015 thresholds. The provision expired on October 25, 2018, and ceased to be in effect from that date until June 21, 2019, when Bill C-59 re-enacted the measure. During the period from June 21, 2019 to July 14, 2019, the recognizance with conditions provision was in effect and subject to the thresholds enacted by Bill C-59.

Statistics

The RCMP did not use the arrest without warrant power, found in section 83.3 of the Criminal Code, during the current reporting period.

Paragraph 83.31(3)(a): number of arrests without warrant and period of detention. 0

Paragraph 83.31(3)(b): number of cases in which a person was arrested without warrant, and 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).
0

Opinion of the Minister of Public Safety

National security threats continue to be complex and diffuse. While Canada is fundamentally a safe, secure and peaceful country, we are not immune from the threats posed by terrorist groups and violent extremists.

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 have effective tools to prevent terrorist activity from being committed.

After consulting extensively with Canadians during the previous Parliamentary session, the Government proposed comprehensive reforms to its national security legislative framework with the introduction of the National Security Act, 2017. The Act significantly advanced the causes of ensuring that our security and intelligence agencies are equipped to address the most severe threats to our national security, while simultaneously ensuring that the fundamental rights and freedoms enjoyed by all Canadians are protected.

In this manner, the Act amended the recognizance with conditions threshold to one of "necessity" to ensure that the tool was not only effective but better reflected the rights and freedoms that are fundamental to our democracy. When the Act received Royal Assent on June 21, 2019, Parliament affirmed its desire to ensure that our law enforcement agencies continue to be equipped with the tools that are necessary to combat the most serious threats to our national security in a manner that upholds our rights.

I can report that the recognizance with conditions was not used by the RCMP while it was in operation from July 15, 2018 to October 25, 2018 under the Anti-terrorism Act, 2015 threshold, nor from June 21, 2019 to July 14, 2019, under the amended threshold of the National Security Act, 2017. However, it remains an important tool available to law enforcement to use in appropriate circumstances to prevent the carrying out of a terrorist activity.

I would like to assure Canadians that the Government remains 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.

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