Annual Report of the Minister of Public Safety and Emergency Preparedness Concerning section 83.3 of the Criminal Code — Recognizance with Conditions - July 15, 2019 – July 14, 2020

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, 2019 to July 14, 2020. 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.

Bill C-59 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 provided 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 provision. 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, 2019 to July 14, 2020. During this entire period, 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.

Opinion of the Minister of Public Safety

The Government of Canada has a duty to protect Canadians from terrorism. Aside from resulting in death or serious injury, terrorism constitutes an attack on our democratic values. It is therefore necessary to have effective preventative tools.

The National Security Act, 2017 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, 2020, 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.

Date modified:

2021-06-29