Annual Report of the Minister of Public Safety and Emergency Preparedness Concerning Criminal Code section 83.3 Recognizance with Conditions, July 15, 2022, to July 14, 2023

On this page

• Introduction
• Requirements of the annual report
• Background on 83.3: Recognizance with conditions
• Statistics
• Minister’s opinon

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, 2022 to July 14, 2023. The Attorney General of Canada reports on other issues relating to the recognizance with conditions provision 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 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 provision, with amendments, and enacted a new sunset clause.

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 provision 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 required that the report of the committee be completed no later than one year before the recognizance with conditions is to sunset.

In 2023, no review by Parliament was sought, and as such, no extension could be brought forward for the provision.

This report covers the operation of the arrest without warrant power found in section 83.3 during the period from July 15, 2022 to July 14, 2023. 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.

Minister’s opinon

The Government of Canada takes a whole-of-government approach to protecting Canadians from terrorism, and in doing so, is committed to respecting our collective rights, values and freedoms. One tool at law enforcement’s disposal is the Recognizance with Conditions provision found in section 83.3 of the Criminal Code.

Subject to certain requirements, the provision allows a peace officer to bring a person before a judge to impose a recognizance with conditions designed to prevent the carrying out of a terrorist activity. Section 83.3 also enables a peace officer, under very limited and specific conditions, to arrest and detain a person without warrant in order to bring them before a judge (generally within 24 hours). As in the previous reporting period, the RCMP did not use recognizance with conditions between July 15, 2022, and July 14, 2023. Nevertheless, these provisions are an important tool to law enforcement should they require it in exigent circumstances. Canadians should feel confident that their use requires the consent of the Attorney General, is subject to judicial oversight, and entails annual reporting made public through tabling in Parliament.

The National Security Act, 2017 is the most recent legislation to amend the recognizance with conditions provisions in the Criminal Code. When the Act received Royal Assent on June 21, 2019, it re-enacted the recognizance with conditions, with amendments, including a reversion back to a previously used higher threshold of “necessity” to ensure that the tool remained effective but better respected the rights and freedoms that underpin our democracy.

The Act also enacted a new sunset clause under 83.32(1) of the Criminal Code, such that the recognizance with conditions would cease to have effect at the end of the fifth anniversary of the day on which the Act (former Bill C-59) received Royal Assent unless, before that date, it is extended by resolution passed by both Houses of Parliament. In addition, the Act required that, under 83.32(1.1), a comprehensive review of section 83.3 and its operation 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 this purpose.

I look forward to Parliament’s review and report regarding recognizance with conditions. I would like to assure Canadians that the government remains committed to keeping Canada safe by using all of the tools at its disposal while respecting our nation’s fundamental rights and freedoms.