83.27

Punishment for terrorist activity

83.27 (1) Notwithstanding anything in this Act, a person convicted of an indictable offence, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.

Offender must be notified

(2) Subsection (1) does not apply unless the prosecutor satisfies the court that the offender, before making a plea, was notified that the application of that subsection would be sought.

Annotations

• Part II

83.28

Definition of judge

83.28 (1) In this section and section 83.29, judge means a provincial court judge or a judge of a superior court of criminal jurisdiction.

Order for gathering information

(2) Subject to subsection (3), a peace officer may, for the purposes of an investigation of a terrorism offence, apply ex parte to a judge for an order for the gathering of information.

Attorney General’s consent

(3) A peace officer may make an application under subsection (2) only if the Attorney General’s prior consent was obtained.

Making of order

(4) The judge to whom the application is made may make an order for the gathering of information if they are satisfied that the Attorney General’s consent was obtained as required by subsection (3), and

(a) that there are reasonable grounds to believe that

(i) a terrorism offence has been committed,

(ii) information concerning the offence, or information that may reveal the whereabouts of a person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order, and

(iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means; or

(b) that

(i) there are reasonable grounds to believe that a terrorism offence will be committed,

(ii) there are reasonable grounds to believe that a person has direct and material information that relates to the offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit the offence referred to in that subparagraph, and

(iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) by other means.

Contents of order

(5) An order made under subsection (4) shall order the examination, on oath or not, of the person named in the order and require the person to attend at the place fixed by the judge, or by the judge designated under paragraph (b), as the case may be, for the examination and to remain in attendance until excused by the presiding judge, and may

(a) order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge;

(b) designate another judge as the judge before whom the examination is to take place; and

(c) include any other terms or conditions that the judge considers desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the protection of any ongoing investigation.

Execution of order

(6) The order may be executed anywhere in Canada.

Variation of order

(7) The judge who made the order, or another judge of the same court, may vary its terms and conditions.

Obligation to answer questions and produce things

(8) A person named in an order made under subsection (4) shall answer questions put to them by the Attorney General or the Attorney General’s agent, and shall produce to the presiding judge things that the person was ordered to bring, but may refuse if answering a question or producing a thing would disclose information that is protected by any law relating to privilege or to disclosure of information.

Judge to rule

(9) The presiding judge shall rule on any objection or other issue relating to a refusal to answer a question or to produce a thing.

No person excused from complying with subsection (8)

(10) No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate them or subject them to any proceeding or penalty, but

(a) no answer given or thing produced under subsection (8) shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136; and

(b) no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136.

Right to counsel

(11) A person has the right to retain and instruct counsel at any stage of the proceedings.

Order for custody of thing

(12) The presiding judge, if satisfied that any thing produced during the course of the examination will likely be relevant to the investigation of any terrorism offence, may order that the thing be given into the custody of the peace officer or someone acting on the peace officer’s behalf.

Annotations

• Part II

83.29

Arrest warrant

83.29 (1) The judge who made the order under subsection 83.28(4), or another judge of the same court, may issue a warrant for the arrest of the person named in the order if the judge is satisfied, on an information in writing and under oath, that the person

(a) is evading service of the order;

(b) is about to abscond; or

(c) did not attend the examination, or did not remain in attendance, as required by the order.

Execution of warrant

(2) The warrant may be executed at any place in Canada by any peace officer having jurisdiction in that place.

Person to be brought before judge

(3) A peace officer who arrests a person in the execution of the warrant shall, without delay, bring the person, or cause them to be brought, before the judge who issued the warrant or another judge of the same court. The judge in question may, to ensure compliance with the order, order that the person be detained in custody or released on recognizance, with or without sureties.

Application of section 707

(4) Section 707 applies, with any necessary modifications, to persons detained in custody under this section.

Annotations

• Part II

83.3

Attorney General’s consent

83.3 (1) The Attorney General’s consent is required before a peace officer may lay an information under subsection (2).

Marginal note:Terrorist activity

(2) Subject to subsection (1), a peace officer may lay an information before a provincial court judge if the peace officer

(a) believes on reasonable grounds that a terrorist activity may be carried out; and

(b) suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is likely to prevent the carrying out of the terrorist activity.

Appearance

(3) The judge who receives the information may cause the person to appear before any provincial court judge.

Arrest without warrant

(4) Despite subsections (2) and (3), a peace officer may arrest a person without a warrant and cause the person to be detained in custody, in order to bring them before a provincial court judge in accordance with subsection (6), if

(a) either

(i) the grounds for laying an information referred to in paragraphs (2)(a) and (b) exist but, by reason of exigent circumstances, it would be impracticable to lay an information under subsection (2), or

(ii) an information has been laid under subsection (2) and a summons has been issued; and

(b) the peace officer suspects on reasonable grounds that the detention of the person in custody is likely to prevent a terrorist activity.

Duty of peace officer

(5) If a peace officer arrests a person without a warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),

(a) lay an information in accordance with subsection (2); or

(b) release the person.

When person to be taken before judge

(6) Unless a peace officer is satisfied that a person should be released from custody without conditions before their appearance before a provincial court judge in accordance with the rules in paragraph (a) or (b), and so releases the person, the person detained in custody shall be taken before a provincial court judge in accordance with the following rules:

(a) if a provincial court judge is available within 24 hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period; and

(b) 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 feasible.

How person dealt with

(7) When a person is taken before a provincial court judge under subsection (6),

(a) if an information has not been laid under subsection (2), the judge shall order that the person be released; or

(b) if an information has been laid under subsection (2),

(i) the judge shall order that the person be released unless the peace officer who laid the information shows cause why the person’s detention in custody is justified on one or more of the following grounds:

(A) the detention is necessary to ensure the person’s appearance before a provincial court judge in order to be dealt with in accordance with subsection (8),

(B) the detention is necessary for the protection or safety of the public, including any witness, having regard to all the circumstances including

(I) the likelihood that, if the person is released from custody, a terrorist activity will be carried out, and

(II) any substantial likelihood that the person will, if released from custody, interfere with the administration of justice, and

(C) the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the peace officer’s grounds under subsection (2), and the gravity of any terrorist activity that may be carried out, and

(ii) the judge may adjourn the matter for a hearing under subsection (8) but, if the person is not released under subparagraph (i), the adjournment may not exceed 48 hours.

Adjournment under subparagraph (7)(b)(ii)

(7.1) If a judge has adjourned the matter under subparagraph (7)(b)(ii) and the person remains in custody at the end of the period of adjournment, the person shall be taken before a provincial court judge who

(a) shall order that the person be released unless a peace officer shows cause why the person’s detention in custody is justified on one or more of the grounds set out in clauses (7)(b)(i)(A) to (C) and satisfies the judge that the investigation in relation to which the person is detained is being conducted diligently and expeditiously; and

(b) may adjourn the matter for a hearing under subsection (8) but, if the person is not released under paragraph (a), the adjournment may not exceed 48 hours.

Adjournment under paragraph (7.1)(b)

(7.2) If a judge has adjourned the matter under paragraph (7.1)(b) and the person remains in custody at the end of the period of adjournment, the person shall be taken before a provincial court judge who

(a) shall order that the person be released unless a peace officer shows cause why the person’s detention in custody is justified on one or more of the grounds set out in clauses (7)(b)(i)(A) to (C) and satisfies the judge that the investigation in relation to which the person is detained is being conducted diligently and expeditiously; and

(b) may adjourn the matter for a hearing under subsection (8) but, if the person is not released under paragraph (a), the adjournment may not exceed 48 hours.

Hearing before judge

(8) The judge before whom the person appears in accordance with subsection (3)

(a) may, if the judge is satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion, order that the person enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (10), (11.1) and (11.2), that the judge considers desirable for preventing the carrying out of a terrorist activity; and

(b) if the person was not released under subparagraph (7)(b)(i) or paragraph (7.1)(a) or (7.2)(a), shall order that the person be released, subject to the recognizance, if any, ordered under paragraph (a).

Duration extended

(8.1) However, if the judge is also satisfied that the person was convicted previously of a terrorism offence, the judge may order that the person enter into the recognizance for a period of not more than two years.

Refusal to enter into recognizance

(9) The judge may commit the person to prison for a term not exceeding 12 months if the person fails or refuses to enter into the recognizance.

Conditions — firearms

(10) Before making an order under paragraph (8)(a), the judge shall consider whether it is desirable, in the interests of the safety of the person or of any other person, to include as a condition of the recognizance that the person be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things, for any period specified in the recognizance, and if the judge decides that it is so desirable, they shall add the condition to the recognizance.

Surrender, etc.

(11) If the judge adds the condition described in subsection (10) to a recognizance, they shall specify in it the manner and method by which

(a) the things referred to in that subsection that are in the person’s possession shall be surrendered, disposed of, detained, stored or dealt with; and

(b) the authorizations, licences and registration certificates that are held by the person shall be surrendered.

Condition — passport

(11.1) The judge shall consider whether it is desirable, to prevent the carrying out of a terrorist activity, to include in the recognizance a condition that the person deposit, in the specified manner, any passport or other travel document issued in their name that is in their possession or control. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies.

Condition — specified geographic area

(11.2) The judge shall consider whether it is desirable, to prevent the carrying out of a terrorist activity, to include in the recognizance a condition that the person remain within a specified geographic area unless written permission to leave that area is obtained from the judge or any individual designated by the judge. If the judge decides that it is desirable, the judge shall add the condition to the recognizance and specify the period during which it applies.

Reasons

(12) If the judge does not add a condition described in subsection (10), (11.1) or (11.2) to a recognizance, the judge shall include in the record a statement of the reasons for not adding it.

Variance of conditions

(13) The judge, or any other judge of the same court, may, on application of the peace officer, the Attorney General or the person, vary the conditions fixed in the recognizance.

Other provisions to apply

(14) Subsections 810(4) and (5) apply, with any necessary modifications, to proceedings under this section.

Annotations

• Part II

83.31

Annual report (sections 83.28 and 83.29)

83.31 (1) The Attorney General of Canada shall prepare and cause to be laid before Parliament and the Attorney General of every province shall publish or otherwise make available to the public an annual report for the previous year on the operation of sections 83.28 and 83.29 that includes

(a) the number of consents to make an application that were sought, and the number that were obtained, by virtue of subsections 83.28(2) and (3);

(b) the number of orders for the gathering of information that were made under subsection 83.28(4); and

(c) the number of arrests that were made with a warrant issued under section 83.29.

Attorney General’s opinion

(1.1) The Attorney General of Canada shall include in the annual report under subsection (1) his or her opinion, supported by reasons, on whether the operation of sections 83.28 and 83.29 should be extended.

Annual report (section 83.3)

(2) The Attorney General of Canada shall prepare and cause to be laid before Parliament and the Attorney General of every province shall publish or otherwise make available to the public an annual report for the previous year on the operation of section 83.3 that includes

(a) the number of consents to lay an information that were sought, and the number that were obtained, by virtue of subsections 83.3(1) and (2);

(b) the number of cases in which a summons or a warrant of arrest was issued for the purposes of subsection 83.3(3);

(c) the number of cases in which a person was not released under subsection 83.3(7), (7.1) or (7.2) pending a hearing;

(d) the number of cases in which an order to enter into a recognizance was made under paragraph 83.3(8)(a), and the types of conditions that were imposed;

(e) the number of times that a person failed or refused to enter into a recognizance, and the term of imprisonment imposed under subsection 83.3(9) in each case; and

(f) the number of cases in which the conditions fixed in a recognizance were varied under subsection 83.3(13).

Annual report (section 83.3)

(3) The Minister of Public Safety and Emergency Preparedness shall prepare and cause to be laid before Parliament and the Minister responsible for policing in every province shall publish or otherwise make available to the public an annual report for the previous year on the operation of section 83.3 that includes

(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

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

(i) by a peace officer under paragraph 83.3(5)(b), or

(ii) by a judge under paragraph 83.3(7)(a), (7.1)(a) or (7.2)(a).

Opinions

(3.1) The Attorney General of Canada and the Minister of Public Safety and Emergency Preparedness shall include in their annual reports under subsections (2) and (3), respectively, their opinion, supported by reasons, on whether the operation of section 83.3 should be extended.

Limitation

(4) The annual report shall not contain any information the disclosure of which would

(a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament;

(b) endanger the life or safety of any person;

(c) prejudice a legal proceeding; or

(d) otherwise be contrary to the public interest.

Annotations

• Part II

83.32

Sunset provision

83.32 (1) Sections 83.28, 83.29 and 83.3 cease to have effect at the end of the 15th sitting day of Parliament after the fifth anniversary of the coming into force of this subsection unless, before the end of that day, the operation of those sections is extended by resolution — whose text is established under subsection (2) — passed by both Houses of Parliament in accordance with the rules set out in subsection (3).

Review

(1.1) A comprehensive review of sections 83.28, 83.29 and 83.3 and their operation shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.

Report

(1.2) The committee referred to in subsection (1.1) shall, within a year after a review is undertaken under that subsection or within any further time that may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including its recommendation with respect to extending the operation of section 83.28, 83.29 or 83.3.

Order in council

(2) The Governor in Council may, by order, establish the text of a resolution that provides for the extension of the operation of section 83.28, 83.29 or 83.3 and that specifies the period of the extension, which may not exceed five years from the first day on which the resolution has been passed by both Houses of Parliament.

Rules

(3) A motion for the adoption of the resolution may be debated in both Houses of Parliament but may not be amended. At the conclusion of the debate, the Speaker of the House of Parliament shall immediately put every question necessary to determine whether or not the motion is concurred in.

Subsequent extensions

(4) The operation of section 83.28, 83.29 or 83.3 may be further extended in accordance with the procedure set out in this section, but the reference to “the fifth anniversary of the coming into force of this subsection” in subsection (1) is to be read as a reference to “the expiry of the most recent extension under this section”.

Definition of sitting day of Parliament

(5) In subsection (1), sitting day of Parliament means a day on which both Houses of Parliament sit.

Annotations

• Part II

83.33

Transitional provision — sections 83.28 and 83.29

83.33 (1) In the event that sections 83.28 and 83.29 cease to have effect in accordance with section 83.32, proceedings commenced under those sections shall be completed if the hearing before the judge of the application made under subsection 83.28(2) began before those sections ceased to have effect.

Transitional provision — section 83.3

(2) In the event that section 83.3 ceases to have effect in accordance with section 83.32, a person detained in custody under section 83.3 shall be released when that section ceases to have effect, except that subsections 83.3(7) to (14) continue to apply to a person who was taken before a judge under subsection 83.3(6) before section 83.3 ceased to have effect.

2001, c. 41, s. 4; 2013, c. 9, s. 13.

Annotations

• Part II