Bill C-30 (Historical)

Protecting Children from Internet Predators Act

An Act to enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts

Part 1 enacts the Investigating and Preventing Criminal Electronic Communications Act, which requires telecommunications service providers to put in place and maintain certain capabilities that facilitate the lawful interception of information transmitted by telecommunications and to provide basic information about their subscribers to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Commissioner of Competition and any police service constituted under the laws of a province.
Part 2 amends the Criminal Code in respect of authorizations to intercept private communications, warrants and orders and adds to that Act new investigative powers in relation to computer crime and the use of new technologies in the commission of crimes. Among other things, it
(a) provides that if an authorization is given under certain provisions of Part VI, the judge may at the same time issue a warrant or make an order that relates to the investigation in respect of which the authorization is given;
(b) provides that the rules respecting confidentiality that apply in respect of a request for an authorization to intercept private communications also apply in respect of a request for a related warrant or order;
(c) requires the Minister of Public Safety and Emergency Preparedness to report on the interceptions of private communications made without authorizations;
(d) provides that a person who has been the object of an interception made without an authorization must be notified of the interception within a specified period;
(e) permits a peace officer or a public officer, in certain circumstances, to install and make use of a number recorder without a warrant;
(f) extends to one year the maximum period of validity of a warrant for a tracking device and a number recorder if the warrant is issued in respect of a terrorism offence or an offence relating to a criminal organization;
(g) provides the power to make preservation demands and orders to compel the preservation of electronic evidence;
(h) provides new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;
(i) provides a warrant to obtain transmission data that will extend to all means of telecommunication the investigative powers that are currently restricted to data associated with telephones; and
(j) provides warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake.
It also amends offences in the Criminal Code relating to hate propaganda and its communication over the Internet, false information, indecent communications, harassing communications, devices used to obtain telecommunication services without payment and devices used to obtain the unauthorized use of computer systems or to commit mischief.
Part 2 also amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.
Lastly, it amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.
Part 3 contains coordinating amendments and coming-into-force provisions.

Response to the Supreme Court of Canada Decision in R. v. Tse Act

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I listened with great interest to my hon. colleague's excellent discourse on this issue. I have a number of questions that I will try to get to in the limited time I have.

I am concerned because what we saw with Bill C-30 was an attempt to use the spectre of crime, the very debate of the accusation of an ordinary citizen supporting child pornography because we dared question the wisdom of the minister.

Bill C-30 would have used the cover of crime to allow all manner of attacks against basic privacy rights, including the fact that the minister could designate persons, and it was not clear who those persons were, to go in and demand warrantless access to information from telecom service providers on undisclosed persons. Who knows, it could be a political staffer who would be able to go in to telecoms to demand ISP information. That was under clause 35 of Bill C-30.

We still have a bill in the House, Bill C-12, which is supposed to be protecting personal privacy data, but we see that is creating all manner of loopholes. Bill C-12 would allow telecommunications companies to disclose personal information to government institutions, and it is unclear exactly who in the government, without the knowledge and consent of individuals for the purpose of "policing services". This is under clause 6(6) of the proposed Bill C-12. The language is in there again to undermine the rights of ordinary citizens to know that there will be due process and oversight.

Why does my hon. colleague think the government is so fixated on undermining the basic legal private rights of Canadian citizens?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, my colleague from Beaches—East York's presentation was, as always, thorough and helpful.

I am taking us back to the day that Bill C-30 was tabled in the House. It has become convenient to have revisionist history that the Minister of Public Safety was somehow off message when he attacked all of us in the opposition as either standing with child pornographers or with him. It is worth remembering that at first reading no one could find a copy of Bill C-30 in the opposition lobby that did not call it a bill for warrantless access. The use of the term “a bill for the protection of children from Internet predators act” was such a last-minute change that it was not even possible to find a single copy, other than the one that had been tabled for first reading.

My theory on those facts is that it was a PMO-approved bit of spin-doctoring and the mistake the Minister of Public Safety made was delivering the line with too much zeal.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, I am happy to rise today in support of Bill C-55, An Act to amend the Criminal Code. I will be splitting my time with the member for Terrebonne—Blainville.

Finally, we have a helpful, useful intervention by the government, a crime bill we can support, not one laced with poison pills. That owes to the circumstances under which the bill comes before the House. It is really the force of circumstances in the form of a Supreme Court imposed deadline operating here, serving in a sense to take the matter out of the government's control.

It is the Supreme Court that has forced this amendment by way of its ruling in R. v. Tse, a case that dates back to April 2012. The case involved the issue of unauthorized wiretapping and, in response to the constitutional challenges raised, the Supreme Court ultimately ruled that such a practice could be considered constitutional if the matter were authorized properly by way of legislation. Therefore, the Supreme Court gave the government some time to figure this out, a year in fact, and Bill C-55 is the response. It represents the government's effort to ensure such unauthorized interceptions of private communications be done constitutionally, and it succeeds.

This bill would amend the Criminal Code to provide required clarity, oversight and accountability to the rules with respect to wiretapping in circumstances alleged to be too urgent for prior judicial authorization. Oversight and accountability do not come easily to the government, so it is encouraging to see the bill in Parliament. In fact, it is something just short of a miracle perhaps in light of the progenitor to this bill, Bill C-30.

The history of Bill C-55 is interesting and worthy of comment. Indeed, it explains why the bill is before us at the 11th hour, and indeed the last minute thereof, to boot.

The Supreme Court decision that we are discussing today was rendered a year ago, and yet here we are rushing this through before the April 13 deadline, which is looming. I will not be too critical of that because the timing of the bill is very much linked to the content of it and, frankly, what would make it succeed and be worthy of our support. It is the urgency of the circumstances that seem to have rendered the bill uncharacteristically brief and straightforward. It is in a twisted and counterintuitive way that we perhaps owe the Minister of Public Safety some thanks for his tendency to a debating style that is reductionist in the extreme and that very often ends up posing distorted binary options. It is usually some framing of the issue that places sympathy for victims in opposition to a respect for civil liberties and constitutional freedoms. The case in point today was the minister's claim that people were either with the government or with the child pornographers.

That was the framing for the now dead Bill C-30, the so-called “lawful access bill”. I call it the case in point because Bill C-30 was really the government's first crack at responding to the Supreme Court's invitation to put in place a legislative framework that would render constitutional the unauthorized interception of private communications. However, it was both and alarming and cynical overreach that attempted to exploit all of our disgust and abhorrence for terrible crimes against children in an effort to bully Canadians into giving up their right to privacy in online communications.

It was dubbed the “protecting children from Internet predators act”. That bill would have allowed law enforcement agencies to access Canadians' personal information without a warrant at virtually any time for virtually any reason. It would have given the minister and the government unprecedented powers to access information and to force telecom, Internet, telephone and wireless providers to allow the government to spy on customers. Bill C-30 would have effectively criminalized all Canadians.

That is the legislation the Minister of Public Safety brought to Parliament a little over a year ago when he thought he had a bit of time to play games with the legislation. That is what the Conservative government thought was reasonable: unlimited and unaccountable access to private communication. Luckily, Canadians, Canadian privacy commissioners and civil society organizations were watching, and they did not like what was being proposed. Also lucky was the minister exceeded even himself with offensive hyperbole and sabotaged his own bill in the process. Yes, it is for that and that alone in a strange way that we owe the minister some thanks.

The lesson of Bill C-30, of course, is not lost on anyone. It is that with time to play and left to its own devices, the government will gladly snatch from Canadians their right to privacy. Therefore, we can be sure that Canadians are watching and guarding that right very closely, as are we. Thankfully, this bill is a far cry from Bill C-30. It stands in contrast and, in fact, is short, simple, direct and straightforward.

The task to be accomplished by way of the bill is to amend the Criminal Code to comply with the Supreme Court's 2012 order to change section 184.4 of the code to comply with the Canadian Charter of Rights and Freedoms or to lose it. Section 184.4, as it is currently written, allows peace officers to intercept private communications in emergency situations where the officer or officers have reasonable grounds to believe the situation is one of imminent harm to life or property. The urgency of such situations necessitates actions before the proper judicial authorization can be obtained. There are times when this is an appropriate action that can prevent crime and protect Canadians and for this reason section 184.4 exists.

Where it has fallen short up to now is in the area of accountability, largely. Two things have been missing: first, a system of oversight to inform Canadians of when and how this legislation is used; and, second, a requirement to notify individuals whose communications have been intercepted within a period of time defined within the bill. The court found in the R. v. Tse decision that this gap in the legislation constituted a violation of the charter.

Bill C-55 would close this gap, perhaps not perfectly but through the use of four mechanisms. First, the bill would require that the Minister of Public Safety and provincial Attorneys General to make public a report on the use of section 184.4 to intercept private communications on an annual basis. Second, the bill would require that persons whose communications had been intercepted must be notified of the interception within a given period of time. Third, the bill would narrow the definition of who could conduct this surveillance and would change it from “peace officers” to “police officers”. Finally, the bill would specify the list of offences for which section 184.4 could be invoked to those offences listed in section 183 of the Criminal Code.

These four will result in an improvement to the section of the code that serves to both limit the use of warrantless wiretapping to certain individuals, circumstances and offences and to increase the accountability in cases where it is invoked. The Supreme Court of Canada has spoken on the issue and Bill C-55 is Parliament's answer and, in the our view, the right one. Enhanced accountability and transparency is something the NDP will always support.

We know from experience where a lack of oversight and accountability takes us. We get massive omnibus bills, tax bills and omnibus crime bills passed at the last minute, with no time for parliamentarians to vet legislation, as our constituents rightly expect us to do. We get bills like Bill C-30, which outraged the public, and the minister managed to shame himself in that process.

Bill C-55 would revive at least a bit of what the government had run over and left for dead, which is accountability, by requiring the Minister of Public Safety to report annually to Parliament on the use of section 184.4 and the frequency of warrantless wiretaps in emergency situations. It would also require provincial Attorneys General to make this information public as well.

This is the kind of legislation we need, not the kind that gives cabinet ministers or other officials unprecedented powers but one that upholds Canadian law and increases accountability of police to the public. This why my colleagues and I in the NDP will support the bill.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I am pleased to take this opportunity to speak on Bill C-55, An Act to amend the Criminal Code, alternatively cited as the response to the Supreme Court of Canada decision in R. v. Tse Act.

My colleague and our public safety critic, the member for Lac-Saint-Louis, outlined why this bill is necessary in his original remarks in the House. I will not go back and quote those reasons, but he certainly outlined very extensively why the bill was necessary and why we are now supporting Bill C-55 to overcome the problems that were actually created by the government itself in bringing in Bill C-30 and by the remarks of the minister at the time, which the previous speaker talked about, which created such great controversy in the country.

I might mention as well that about two weeks ago the member for Winnipeg Centre spoke at length on the fact that government bills are not reviewed by legal counsel to see if they meet the test of the Charter of Rights and Freedoms. He raised raised a point of privilege, in fact. What he was talking about, and I agree with him, was this regime's lack of testing legislation against the Charter of Rights and Freedoms.

We have a Senate made up a majority of senators appointed by this Prime Minister. More senators have been appointed by this Prime Minister than any prime minister in Canadian history. It has become as if the senators who are appointed are loyal to the Prime Minister, and they are not doing their work as a sober second thought. The Senate is almost a rubber stamp to the government.

The next safeguard, as the member for Winnipeg Centre said, is the courts in the country, not only the Supreme Court but other courts as well. Legislation passed in this place, which we as members assume has been tested by Department of Justice legal counsel and others to see if it meets the Charter of Rights and Freedoms, in fact has not been. Then legislation is in fact tossed back, and that is in part why we are dealing with this particular bill today.

We know we have a problem with the way the government operates in introducing legislation without first having it tested by legislative counsel on how the Charter of Rights and Freedoms applies to it, and I know, Mr. Speaker, that in your role as speaker you will be coming forward with a decision on what the member for Winnipeg Centre raised in his point of privilege on that matter.

I will get into the specifics of the bill in a moment. This bill, or rather the need for this bill, is symbolic of what is wrong with how this place is now functioning under the guidance of the current regime. I would call it the undermining of our democracy.

There are several areas that I have to mention. First, as noted, the government brings forward legislation that we know now has not been tested, as it is supposed to be tested, in terms of how it applies to the Charter of Rights and Freedoms. Therefore, without that application, it is definitely going to make more unnecessary work for the courts further down the line.

Second, in this place we see omnibus bills put forward with almost everything in them but the kitchen sink. As a result, parliamentarians are unable to take all the parts of a bill to the appropriate committee where members of Parliament who have taken on the responsibilities for specific issues—and I would not call them experts, but they are knowledgeable in those areas—can test that legislation. Instead, these omnibus bills coming forward cover so many areas that Parliament is not given the proper discourse, discussion and debate to find any problems, as we have seen is needed in this specific bill.

Third, another aspect we have seen all the time with this regime in the undermining of democracy is the use of closure. The government only allows a bit of debate and prevents the representatives of the people from doing the proper analysis and research and coming forward with amended legislation. It has introduced more closure motions to limit debate in its short term as a majority government than any government in Canadian history.

Our critic for justice has put forward all kinds of amendments for justice bills, but because they are coming from an opposition party, the government ignores them. It does not accept amendments mainly put forward by opposition parties, even when the amendments make improvements to the bill. That is a problem.

I see the parliamentary secretary for international trade shaking his head over there.

There is another undermining of democracy that does not necessarily show in the bill but that is clearly a problem around this place: at the committee level, when we move motions in committee, whatever they may be, the Conservative regime moves the committee in camera, in secret, so that Canadians cannot even see the simple debate on a motion as simple as asking the minister to come before a committee. What do the Conservatives have to hide? It is another aspect of the undermining of democracy.

The last point I want to make before I get to the specifics of the bill is with respect to the Senate. As I said a moment ago, the Senate has become a rubber stamp for the Prime Minister, because he has appointed most of the senators. I know that my senator is not even a resident of the province and region that he is supposed to be representing, which is a constitutional requirement. However, my key point with respect to the Senate is this: it is no longer the body of sober second thought; it is almost a rubber stamp to what the government does.

I make all those points on the undermining of democracy to point out that for bills such as Bill C-55, it is the undermining of democracy that allows a bill that does not meet the tests of the courts to be passed and become law in this country.

I will now go to the specifics of the bill. I would like to quote from a Library of Parliament report. As the House knows, the Library of Parliament does very good research. I want to quote from its report, because it is the best there is in terms of a summary.

Its report on the bill states:

On November 18, 2011, the SCC heard an appeal in the case of R. v. Tse concerning the constitutionality of the emergency wiretap provisions. In this case, police used s. 184.4 to carry out warrantless wiretaps when the daughter of an alleged kidnapping victim began receiving calls from her father stating he was being held for ransom. Approximately 24 hours later, the police received judicial authorization to carry out the wiretaps. The trial judge in the Supreme Court of British Columbia found that s. 184.4 contravened the Charter right to be free from unreasonable search or seizure.... The decision was appealed by the Crown directly to the SCC.

The Supreme Court then believed in its decision that section 184.4

...strikes a reasonable balance between an individual's right to freedom from unreasonable searches and society's interest in preventing serious harm, insofar as it allows warrantless interceptions to be used only in exigent circumstances. However, the Court found that in its present form, s. 184.4 violates s. 8 of the Canadian Charter of Rights and Freedoms, the right to be secure against unreasonable search or seizure. It was the lack of any accountability measures, particularly notice to persons whose communications have been intercepted, that proved fatal. The appeal was therefore dismissed, and the SCC suspended its declaration of invalidity for 12 months

—in other words, giving time for this place to deal with it appropriately—

to allow Parliament to make it constitutionally compliant by adding safeguards.

That is the background on what happened. The Government of Canada had previously passed legislation allowing those warrantless wiretaps, and the Supreme Court is basically saying that safeguards need to be put in place.

To summarize what the safeguards in the bill are and why we support it, the safeguards are basically these: the bill requires the Minister of Public Safety and Emergency Preparedness and the Attorney General of each province to report on the interceptions of private communications made under section 184.4. That is a good step.

The bill provides that a person who has been the object of such interception must be notified of the interception within a specified period, and I will get into that in a moment as well.

The bill narrows the class of individuals who can make such an interception.

Finally, the bill limits those interceptions to offences listed in section 183 of the Criminal Code.

Therefore, Bill C-55 adds three major safeguards to section 184.4 of the Criminal Code. It first restricts the use. It narrows the offences for which the wiretapping can be used, and they are spelled out in sections in the bill. Second, it names specifically the category of the people who can use those measures. Basically it narrows the category of people who can use it to police officers only. Previously it was debatable as to which people with authority could introduce wiretaps. It might be fisheries guardians or others who do not have formal training in the law or on the seriousness of wiretapping measures. The third point is that wiretapping measures could only be used to prevent an offence as listed in section 183 of the Criminal Code.

One of the most important questions for our party, for Liberals, going into committee consideration of this bill was why the use of section 184.4 would be limited to the offences listed in section 183. It was done despite the Supreme Court of Canada's advice to the contrary.

The Supreme Court specifically said:

There may be situations that would justify interceptions under s.184.4 for unlawful acts not enumerated in s.183.

However, the minister, to his credit, and department officials testified that this change was necessary to bring section 184.4 more in line with the rest of part IV. The change was also supported by a witness from the Criminal Lawyers' Association, who said that the narrower any provision of the Criminal Code can be, the better.

The definition of “police officer”, which we had a concern about, was also discussed at committee at length. The term “police officer” is obviously preferable to “peace officer”, for reasons that I think are pretty clear. It is not as broad. It is narrow.

However, committee members sought assurances that the definition of “police officer” in Bill C-55 could not be construed to include private security guards or mall cops, as they are called, for example. The minister clarified that this term has been interpreted a number of times by the courts. Therefore, it is not security guards, mall cops or commissionaires; it is Sûreté du Québec, Ontario Provincial Police, RCMP, and provincial law enforcement agents.

We accept the interpretation by the minister. We think, therefore, that the bill should be allowed to pass, because the minister, in his interpretation, is quite narrowly focused on what a police officer is. They are the only ones, in our understanding, who would have the ability to authorize the use of this power.

In the time I have left, it may be important, I think, to go back and review one of the key points, which is why the Supreme Court of Canada made the decision it did and to look at the safeguards put in place as a result of the Supreme Court decision.

Clearly, the Supreme Court, in its original ruling, basically said that there was a serious lack of accountability in the use of the warrantless wiretaps. It recommended that notice be given to the subject of an interception and that the notice be provided after the fact. That is kind of standard procedure. It happens in other areas with wiretaps.

Bill C-55, therefore, would require that either the Minister of Public Safety or the relevant provincial Attorney General provide notice of the interception, in writing, within 90 days of the day the interception occurred.

Extensions could be granted, but those would certainly be, in the case of ongoing interceptions, if it related to organized crime or to terrorism.

The other important point, and I will close on this point, is that reports from ministers at the provincial level or at the Attorney General level within the province, or from the Minister of Public Safety, ultimately—whoever is responsible—on the number of interceptions made under section 184.4, the number of notifications given and a general description of the methods of interception used for each of those interceptions must be tabled in the House and in others if it is their jurisdiction, outlining what those are.

For all those reasons outlined above, we, as a party, will be supporting Bill C-55, which we believe overcomes the concern of the Supreme Court of Canada as it relates to warrantless wiretaps.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I rose in the House yesterday to address the question of privilege raised by my colleague from Winnipeg Centre.

I cannot speak for everyone, but I think something is clear. We have recently heard a lot about Bill C-30 and other bills, including certain aspects of Bill C-10. Time will tell if I am right or not. Some legislation that is before the courts has already been overturned. This legislation did not all originate with the current government. I am laying it on thick. I am even laying it on the heads of our Liberal friends.

Even the member for Mount Royal said that, when he became Minister of Justice, he had some concerns about how this test was conducted.

Certainly, my trust level is at about 1%. Every time I read a bill now, I do not just read the content to find out if it will fulfill its purpose. Now, I am practically obliged to put on my hat as a lawyer specializing in constitutional law and the Charter of Rights and Freedoms. In fact, I must do the work that I did not think I had to do, because I had the minister's assurance. When a bill is introduced in the House, if it is not flagged as problematic, we assume it is okay. We can no longer make that assumption. Something has tarnished this assumption, and what we are going through with Bill C-30 proves it every day. This should worry all members of the House, in all parties.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I would like to ask my colleague a question. She hit the nail on the head.

Does she think the trust between parliamentarians, legislators and the mechanism for approving the constitutionality of legislation is now somehow broken or reduced?

How does she see the relationship between parliamentarians, legislators and the fact that Bill C-30 was introduced in the House of Commons? Does she believe a bond of trust has been broken?

[Françoise Boivin, NDP, Gatineau, QC]

It is my humble opinion, Mr. Speaker, that it would have been blatantly torn apart by the Supreme Court of Canada. We should carefully read R. v. Tse and what the court thinks about people's privacy under section 184.4.

This provision is a very important tool to combat serious crime and serious harm to individuals. Imagine what it would have to say about other situations.

I think this bill shows there is a problem with requiring the Minister of Justice to guarantee, for the benefit of the House, that bills introduced by the government or by the Senate are consistent with the charter and the Constitution. This raises doubts about whether this important work was done. I do not know who had their hands on Bill C-30, and I do not know if it was given to someone with no legal background, but there were some glaring problems with that bill.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I listened very closely to my colleague's excellent discourse. We see here an attempt to deal with a Supreme Court decision that said yes, as is normal with Canadian law, it is possible for law enforcement officers to obtain data in order to save someone's life; however, there are the issues of accountability and oversight.

When we look at the government's previous Bill C-30, we see it completely disregarded the privacy rights not in the case of criminals but of ordinary citizens. It would have allowed undefined police services, whoever they might be, to gather all manner of private information without warrant oversight. The attempt to shut down debate by accusing anybody in Canada who was concerned about the privacy rights of law-abiding citizens of being supporters of child pornography is probably one of the most baseless slurs that has ever been uttered in the House of Commons.

I would like to ask my hon. colleague what she thinks would have happened had Bill C-30 gone to the Supreme Court, because it was such an outrageous abuse of the privacy rights and democratic rights of an enfranchised citizenry.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, those were probably the harshest and most hurtful comments I have heard in this House over the course of my relatively short political career. We do not always agree with the government, just like it will not always agree with us. However, there is a way to disagree respectfully. We are here to represent our own constituents.

Bill C-30 likely got away from them because the debate became personal and personal attacks were being made. The Minister of Public Safety personally attacked the people who opposed his bill, which was flawed. The Prime Minister realized this and relieved the minister of his responsibility for the bill. Then the government had to scramble to solve the problem.

It is not always easy. I think that if the government did things right the first time, it would not spend so much time and money trying to talk people into something that is ill-conceived. In the end it does the right thing, but the process takes so much sweat and hard work, starting on our side. We spoke out against these personal attacks on people who dared to ask questions about Bill C-30.

This bill has fortunately been thrown out. However, as my mother always said, many a true word is spoken in jest. I sometimes get the impression that this government's true colours shine through in every one of its bills.

[Marc-André Morin, NDP, Laurentides—Labelle, QC]

Mr. Speaker, I would like to ask my colleague a question. Much like everyone on this side of the House, I find it a bit too easy for the government to downplay Bill C-30, as though it were a foolish mistake. That excuse worked up until last week. I felt insulted to have been associated with criminals and pedophiles. The entire debate completely shifted. It was shameful, and those who witnessed it were horrified. We are not the ones who counted Mr. Flanagan as a friend. I am tempted to use some unparliamentary language here, but I will refrain.

We feel that crime must be stopped, and we feel that it must be stopped effectively, not any which way and not with a piecemeal approach, as the newspaper headlines state.

Could my colleague elaborate on that?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, with his question, my colleague from Sherbrooke put his finger on the problem that resulted in the introduction of Bill C-55. It is very clear; it is obvious. The government can indeed say that Bill C-30 was withdrawn as a result of public pressure because that is true. I hope those who are watching us right now are happy realizing that it is possible to take action together when something is as absurd as Bill C-30. The problem was so obvious that it was extremely easy to raise a public reaction.

I cannot repeat it enough: section 184.4, which the government is trying to save following the decision in R. v. Tse, appears in a part entitled “Invasion of Privacy”. This is an exception provided for in the Criminal Code for extremely specific cases.

When the government, through the Minister of Public Safety, introduced Bill C-30, it launched an attack against anyone who would dare say anything against the bill. We were off to a very bad start. That behaviour triggered a popular movement such as we rarely see in matters concerning the federal government.

I said that my colleague from Sherbrooke had put his finger on the problem. For several hours now, we have been debating that deficiency, which was reported by a government employee, a Department of Justice lawyer concerned about the orders he was receiving from his superiors and his department. When a compatibility analysis of government or Senate legislation is needed, public servants are asked to cut corners.

This is an allegation. As a lawyer, I take note. Thus far, it is strictly an allegation, not a proven fact. However, it has to raise serious doubts. If we take our role as legislators seriously, this should immediately raise red flags.

Make no mistake about it: the problem with Bill C-30 was so obvious that the government decided to reverse course. We are not used to that with a government such as the Conservative government. The government is not very humble when it comes to admitting its mistakes. This is a major admission, and I believe a mea culpa is absolutely in order.

However, this situation raises the question that my colleague from Sherbrooke asked. Bill C-30 should never have passed the charter compatibility test. Is that clear enough? The government was bent on saying that that bill was the way to solve all surveillance-related problems, pedophilia-related problems and whatever other problems. It had cast a wide net.

It did not take a brilliant legal mind to realize that there were serious problems of invasion of privacy. It did not take a brilliant legal mind to realize that the government had to be stopped and told that Bill C-30 would not pass a court test. It did not even solve the problem raised in R. v. Tse. It was very broad. Thank goodness the government reversed course.

However, the question remains: how did this bill pass the compatibility test, which is mandatory? It is not the official opposition, the NDP, that says so, but rather the Department of Justice Act and the Canadian Charter of Rights and Freedoms. They provide that no legislation shall be introduced in the House where there are serious and reasonable doubts as to its constitutionality or compatibility with the charter. Bill C-30 is the most striking evidence that there is a problem somewhere in the Department of Justice in transmitting this analysis which has been conducted for the benefit of the Minister of Justice. I am giving him the benefit of the doubt.

I am not saying that his intention is to mislead the House. Telling us that this is the way things have been done since the Canadian Charter of Rights and Freedoms came into force is not a compelling reason to say everything is fine. It is not fine at all, and no one seems very concerned about it. They just coast along, hoping that cases will not wind up in court.

I moved a motion in the Standing Committee on Justice and Human Rights to strike a committee that would analyze the question and assess the kind of directives that could be given so that legislators in the House could determine whether their role was being properly fulfilled. The question was discussed for two days, and I have to say that a Conservative colleague considered siding with us because he agreed that this was important. It does not matter whether we are left-leaning or not, everything must be done properly and we must take the time to examine the bill, failing which we may cast doubt on all bills introduced in the House.

Every colleague who sits on a committee must question the minister on the kinds of studies that have been done to ensure compatibility with the charter and the Constitution of Canada. We have some doubts that this is being done properly. Even a Conservative nearly gave in. Probably two days elapsed before he was intercepted by the party's higher powers, who told him not to get involved. The official response was that it had been done like that since the time the Liberals were in power. To me, it is no excuse to say that we can do something wrong because someone else did it just as wrong. I believe there has to be a readjustment, and Bill C-30 was a good example of that.

Bill C-55 has been introduced. I want this to be clear in people's minds: Bill C-55 is much more limited than Bill C-30, and it caused a shake-up when it comes to wiretapping and invasion of privacy.

Why did the official opposition go along with the minister and the government, who had to pass Bill C-55 at the eleventh hour? The decision in R. v. Tse is like Damocles' sword. The Court gave the government until April 13, 2013, to make the changes required by the ruling in R. v. Tse. As a result of the decision, section 184.4 had to go.

Some people, like me, truly believe in human rights and the importance of privacy and rights that are protected by the charter. I also believe that we must have this kind of provision in a free and democratic society such as ours. At the time, section 184.4 stated:

A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where

(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;

Therefore, he must have reasonable grounds to believe that the urgency of the situation is such that it is impossible for this peace officer to obtain an authorization on the basis provided for in this section.

I will continue reading section 184.4:

(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and

(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

This section is very important in the context of police work. In addition, it is applied in exceptional circumstances. However, in R. v. Tse, the Supreme Court of Canada held that there were problems of accountability and that it was very likely, when applying section 184.4, that there was no reference to the fact that the person who has been the subject of a wiretap must be notified. A person could have been wiretapped without ever knowing it because they were never taken to court or charges were never laid against them.

That was the only way individuals would know they had been wiretapped and a communication intercepted.

The Supreme Court said:

In its present form, the provision fails to meet the minimum constitutional standards of section 8 of the Charter.

The Court was referring to minimum standards, minimum constitutional standards to bring section 184.4 into compliance with section 8 of the charter.

The Supreme Court went on to say:

An accountability mechanism is necessary to protect the important privacy interests at stake and a notice provision would adequately meet that need, although Parliament may choose an alternative measure for providing accountability.

The Supreme Court of Canada also considered whether section 184.4 was meant for not only police officers, but also what are known as peace officers.

Once again, I encourage people to read the definition of “peace officers”, which is several pages long. It includes municipal mayors, meter readers, and much more. Pretty much anyone who moves and has an official public service title falls under the definition of “peace officer”.

The Supreme Court reserved judgment on this because it was not the subject of the argument or evidence before the court.

I am glad that the Minister of Justice took this matter off the Minister of Public Safety's hands. That is one good thing because then he spent some time reading and trying to understand what the Supreme Court of Canada said on April 13, 2012, even though there was not much time left for that.

As an aside, when the parliamentary secretary said that they had done a thorough job of ensuring their bill was constitutional, I had to laugh because, up until February 11, the government's response was Bill C-30. That left very little time to come up with Bill C-55. Maybe that is why the government did not want to take any chances. For once, they figured that they could not be too careful, so they limited the definition of “police officer” and even removed the notion of “peace officer”. They also added accountability mechanisms with respect to the people whose communications are intercepted and to reporting to the House of Commons.

Is it perfect? No, as my Green Party colleague said. That is the conclusion we came to in committee. Much more could have been done. If I had been in charge of drafting this bill, I would probably have added a few things.

However, the House will have to answer this fundamental question. Would we rather get rid of section 184.4 and end up with no provision, or do we think that Bill C-55 answers the questions and carries out the orders of the Supreme Court of Canada?

To us, the answer was very clear. Some witnesses even came to tell us that they supported the bill. The Canadian Bar Association, the CLA, the groups that sent us briefs: they all agreed. Would they have added some additional provisions regarding the reports? The Supreme Court of Canada never said that Parliament should receive reports regarding the attorney general of Canada or the provinces. However, we looked into it and examined this issue. It is not easy, because it is difficult to move forward if there is no discussion.

This bill was rushed. Normally, if things were done properly, we would have taken the year that the Supreme Court gave us to consult and see what could have been done better, to see whether the provinces were with us and whether they had a problem with sending us the reports that they will have to provide. All of this was clear to us.

People in committee were clearly asked whether Bill C-55 in its current form was a suitable response to R. v. Tse.

The context in which the court only asked the person whose communications were intercepted to provide notice within a certain time, without specifying that time limit, fully meets the criteria established by the Supreme Court of Canada. Furthermore, time limits were specified and the concept of a peace officer dropped.

For once, things were properly anticipated. This does not mean that there will not be any challenges. On the other hand, the witnesses we heard said that these kinds of provisions are not applied often.

Yesterday, the Green Party member said that it would perhaps be necessary to withdraw the proposed amendment. I am relieved to hear this, because we were told the same thing in committee. A 24 hour time limit was suggested. It becomes difficult when you begin to examine these criteria. The danger is the tendency to treat situations that are not dealt with consistently in every part of the country the same.

Here in Gatineau, it is probably much easier to obtain the authorization of a judge than in a more remote part of Canada where a judge may not be present at all times.

Clearly the provision is only applicable if it is impossible to obtain authorization within a reasonable time period. The basic rule in terms of interception of communications will still be to obtain authorization and to have reasonable grounds for the wiretap. Furthermore, the person doing the wiretapping will have to explain why.

As a result of the amendments, there is now an obligation to inform the person under section 184.4. If a person, whether or not that person has been charged, feels that his or her privacy has been completely invaded, recourse is possible and the police agency in question will have to defend its decision.

However, even the experts tell us that this provision is not used frequently. The expert on the committee reported that there had not been any requirement of this kind for almost six years. Sometimes things need to be placed in perspective.

While I do not want to lecture anyone, I am going to do so anyway. I seriously believe that the government should be aware of just how dangerous a game this is. The provisions of section 4.1 of the Department of Justice Act and section 3 of the Canadian Charter of Rights and Freedoms, which anticipate this exercise, are designed to prevent these situations as much as possible.

All lawyers know very well, as I do, that it is sometimes difficult to tell a client that their case is a sure thing. However, if our priorities include decency, prudence and the public good, then we would be reasonably satisfied that this law met the criteria and principles of the charter and the Constitution. We would not raise a point that had only a 5% chance of meeting our constitutional obligations and tell people, as I was told in the Standing Committee on Justice and Human Rights, that if they are not happy they can take legal action. It really bugs me when I hear things like that.

We are here to help the public and yet we tell them that if they are unhappy about our laws, they should take legal action and claim that there was an infringement of human rights. We already have some serious problems with access to justice. Not everybody is in a position to take legal action.

The government is grateful that we worked with it. However, we did not necessarily work with the government. We worked for Canadians, for the people and for the police forces that have to make use of section 184.4, an essential factor in the exercise of a police officer's duties in investigations. This section could not be allowed to simply disappear solely because the government stubbornly decided to introduce Bill C-30.

I am not at all unhappy that the government backtracked on that. We hope that things will work out better with Bill C-55. This will no doubt not be the last time we have to discuss these invasion of privacy provisions.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, when the constitutionality of legislation is reviewed, a very rigorous process is always used. This procedure has been in place for many years. It has been used by our government as well as the previous Liberal government.

I also note that a number of decisions have been brought before the courts, which ultimately recognized the constitutionality of our legislation. Thus, a rigorous process is in place. I will not speak to Bill C-30, because, as I said, we are not moving forward on that.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I have a question for my colleague, the hon. Parliamentary Secretary to the Minister of Justice.

What process must a bill go through in order to obtain the constitutional approval of public servants? Some would say that this process is not as clear or as effective as it should be.

How did Bill C-30 manage to get through that process and make it to the House of Commons, where we immediately saw that it was unconstitutional? How did that bill make it to this House, only to be withdrawn by the Conservatives, who then introduced Bill C-55, which is before us here today?

What was the process and why was such a process needed, when it probably cost taxpayers money since this had to go before the Supreme Court?

[Dany Morin, NDP, Chicoutimi—Le Fjord, QC]

Mr. Speaker, I would like to ask my Conservative colleague some questions.

I would like to know why the minister waited so long between introducing Bills C-30 and C-55 if we are in such need of a bill like this in Canada.

I would also like to ask him if, like the NDP, he also disagreed with the minister when the minister made very disgraceful comments to the effect that anyone who opposed the original bill was siding with pedophiles.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, Bill C-30 will not move forward. We listened to what the public was saying and we reconsidered. That does not mean that in the future we will not propose bills that give police the tools they need to protect the public. However, Bill C-30, as it was written, will not move forward.