Mr. Speaker, Bill C-55, the bill we are debating today, needs to be seen against the backdrop of Bill C-30, the government's Internet surveillance bill introduced in February 2012. When Bill C-30 was tabled it crashed and burned, largely because the government failed to do its homework. Mainly, the government did not charter-proof the bill or listen to telecommunications service providers about the impracticality of some of Bill C-30's key provisions, nor did the government properly gauge Canadians' views about such a bill in advance of introducing it.
Finally, the Minister of Public Safety's mishandling of the beginnings of the debate in the House on Bill C-30, namely his hyperpartisan reaction to anyone who raised reservations about the controversial and likely unconstitutional aspects of the bill, added oil to the fire and de facto shut down the public conversation, thus foreclosing the possibility that the bill's problems might be remedied through amendment in committee; though many people doubt that the bill could have been salvaged even that way. In short, the minister's rhetoric killed the bill in its legislative tracks. One wonders also if the bill's fatal flaw, its inconsistency with charter principles, was tied to the rumour that the government no longer vets legislation against charter requirements in the drafting phase prior to tabling in Parliament.
The government's decision to withdraw Bill C-30 raises a series of questions.
First, was Bill C-30 needed in the first place? Second, if it really was necessary for public safety, why did the government withdraw the bill, given it has a majority in Parliament? As we have seen with budget legislation, the so-called stable majority Conservative government can and will do what it wants with its majority. To the government, the word “majority” means never having to say “compromise”.
Third, given its decision to withdraw Bill C-30, does the government have the courage of its convictions, whatever their merits?
The fourth question is related to the first. Does the current Criminal Code provision, namely section 184.4, provide law enforcement agencies with sufficient means to investigate and apprehend those who seek to exploit children on the Internet? By withdrawing Bill C-30, the government's answer to that question seems to be “yes”. I will come back to section 184.4 in more detail in a moment.
Another related question that comes to mind, in light of the government's new focus on the costs of policing, is whether the Conservative government is in fact investing enough to give police the resources it needs to fight cybercrime. This may be the real crux of the issue: money for policing. By not sitting down with the provinces to discuss extending and replenishing the police recruitment fund, is the government undermining the current capacity of the police to fight cybercrime? Is the government abandoning communities and leaving them more vulnerable? For example, the police recruitment fund was used in Quebec to beef up the cybercrime division of the Montreal police department. What will happen when federal funds dry up? Is the RCMP spending enough on cybercrime, or are fiscal constraints being imposed on it by the Conservative government, hurting its valuable work patrolling cyberspace, not to mention fighting the ever-complex problem of white-collar crime?
These are the tough questions that the government needs to honestly ask itself. The safety of our communities and families depends on the answers to those questions.
Bill C-55, which the Liberals support, is a response to the Supreme Court's decision in Regina v. Tse, rendered by the court last April. The Supreme Court's decision on the constitutionality of section 184.4 of the Criminal Code came shortly after the government's controversial tabling of Bill C-30 in the House. In other words, the court was deliberating on some of the issues at the core of Bill C-30 at the time the government introduced the bill. This raises the question of why the government did not wait for the Supreme Court's decision before rushing to table Bill C-30. The government could have benefited from the wisdom of the court in its final drafting of the bill. Furthermore, given that the Supreme Court, in April 2012, gave the government a full 12 months to rectify problems with section 184.4 that made the section unconstitutional, why did the government wait until the very last minute, namely two weeks ago, to deal with this matter?
As mentioned, the Tse case was a test of the constitutionality of section 184.4 in its existing form. Section 184 of the Criminal Code deals with emergency wiretapping or wiretapping in an emergency situation.
Section 184.4 is about the interception, without the normally required warrant, of private communications, including computer communications, in exigent circumstances—that is, in circumstances where interception is immediately necessary to prevent serious harm to a person or property, and a warrant cannot be obtained quickly enough to prevent the imminent harm; in other words, in situations where every minute counts.
In the Tse case the police in B.C. used section 184.4 to carry out unauthorized interceptions of private communications when the daughter of an alleged kidnapping victim began receiving calls from her father stating that he was being held for ransom. The case brought before the Supreme Court was an appeal by the Crown of a trial judge's finding that section 184.4 in its current form violates the charter.
The question the Supreme Court was asked to address was whether section 184.4, as currently written, contravenes the right to be free from unreasonable search and seizure pursuant to section 8 of the charter relating to privacy rights and, if so, whether this section's constitutionality is salvaged by section 1 of the charter, which allows a charter right to be circumscribed if it is deemed reasonable to do so in a free and democratic society.
In the earlier landmark decision Hunter v. Southam Inc., the Supreme Court determined that a warrantless search is presumptively unreasonable. In other words, the presumed constitutional standard for searches or seizures in the criminal sphere is judicial pre-authorization—that is, obtaining a warrant.
In Regina v. Duarte, the Supreme Court found that:
...as a general proposition, surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under s. 8 of the Charter.
However, as the court said in its decision in Tse:
Exigent circumstances are factors that inform the reasonableness of the search or authorizing law and may justify the absence of prior judicial authorization.
Thus, in principle, it would seem that Parliament may craft a narrow emergency wiretap authority for exigent circumstances to prevent serious harm if judicial authorization is not available through the exercise of reasonable diligence.
Thus, section 184.4 is based on the accepted principle that, to quote the court:
...the privacy interests of some may have to yield temporarily for the greater good of society—here, the protection of lives and property from harm that is both serious and imminent.
To further quote the court in the Tse decision:
Section 184.4 contains a number of legislative conditions. Properly construed, these conditions are designed to ensure that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm. To that extent, the section strikes an appropriate balance between an individual's s. 8 Charter rights and society's interests in preventing serious harm.
This reasoning is consistent with Justice Lamer's observation in Godoy, which states that “dignity, integrity and autonomy” are values underlying the privacy interest; however, the interests of a person in need of police assistance are “closer to the core of the values of dignity, integrity and autonomy than the interest of the person who seeks to deny entry to police who arrive in response to a call for help”.
The court's main finding in Tse is that section 184.4 is unconstitutional because of the absence of a requirement to notify the person whose communications have been intercepted of the fact of that interception. This is in contrast to judicial authorizations obtained under sections 186 and 188 where the subject of the interception must be notified within 90 days.
While the court refused to rule on the need to tighten the definition of “peace officer” under section 184.4, arguing it lacked “a proper evidentiary foundation to determine the matter”, it did express “reservations about the wide range of people who, by virtue of the broad definition of 'peace officer', can invoke the extraordinary measures under s. 184.4”.
The term “peace officer” currently includes mayors, bailiffs, prison guards et cetera.
The Liberals nonetheless support the government's initiative in Bill C-55 to narrow the class of individuals who can make an interception under section 184.4. to mean police officers only, meaning an officer, constable or other person employed for the preservation and maintenance of the public peace. However, we wish to know if this narrowed class also includes private security guards of the type contracted more and more by municipalities to fill the reduction in their regular police coverage, for example, when regional municipalities cut police budgets or reassign police to other geographic areas.
Similarly, while the court ruled that there is no constitutional imperative for the government to report to Parliament on the use of section 184.4, we believe the requirement in Bill C-55 that this be done is a positive step, obviously, as it provides an important safeguard needed to balance the interests of the state in preventing harm and prosecuting crime with the obligation to protect section 8 charter rights.
Finally, we are a bit puzzled, however, as to why Bill C-55 limits section 184.4 interceptions to the large number of offences listed in section 183 of the Criminal Code. True, it was the opinion of Justice Davies, the trial judge in Tse, that section 184.4 should be limited to offences enumerated in section 183. However, the Supreme Court disagreed, in the appeal:
There may be situations that would justify interceptions under s. 184.4 for unlawful acts not enumerated in s. 183. We prefer the conclusion of Dambrot J. in Riley...that the scope of the unlawful act requirement is sufficiently, if not more, circumscribed for constitutional purposes, by the requirement that the unlawful act must be one that would cause serious harm to persons or property.... No meaningful additional protection of privacy would be gained by listing the unlawful acts that could give rise to such serious harm. The list of offences in s. 183 is itself very broad; however, Parliament chose to focus upon an unlawful act that would cause serious harm. We see no reason to interfere with that choice....
...the serious harm threshold is a meaningful and significant legal restriction on s. 184.4 and is part of this Court’s jurisprudence in a number of different contexts....
...this threshold is also consistent with the police practice surrounding s. 184.4.
It appears that Bill C-55 is an admission by the government that police forces already dispose of necessary legal powers to act to intercept incidents of cybercrime involving children or terrorism for that matter. We are thus a bit puzzled as to why the government went ahead and introduced Bill C-30 only to withdraw it.
