Justice Committee on March 4th, 2013

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Albas.

Thank you, Minister.

Mr. Jacob from the New Democrat Party.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Chair.

Minister, thank you for being here.

My first question is about Bill C-55 and Bill C-394. It is assumed they will soon receive royal assent. In that case, what amendments would be necessary to ensure they are consistent with the Criminal Code?

[Rob Nicholson, Conservative, Niagara Falls, ON]

With all respect, Mr. Jacob, I'm not quite sure where you're going with that. Yes, with passage of this particular bill by the House of Commons and the Senate, and with royal assent, we want this to come into effect as quickly as possible. We're facing a deadline of April 13, and again that's in regard to the totality of the bill. That is what this is all about.

You mentioned some other bill. Perhaps you could give me a little bit more of a lead on that.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Proposed paragraph 196.1(5)(a) concerns extensions of the notification period in relation to offences under sections 467.11, 467.12 and 467.13 of the Criminal Code, which are the three existing criminal organization offences.

However, Bill C-394, which is also before this committee, would create a distinct criminal organization offence, recruitment of members by a criminal organization, which would be new section 467.11 of the Criminal Code.

In your view, is there a reason why this proposed offence should be treated differently from other criminal organization offences, for the purposes of extending the notification period? If not, what amendments need to be made?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'll turn this over to Mr. Piragoff.

[Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice]

Thank you.

As I understand the question, it's whether there should be some concordance between this bill and another bill that's before Parliament, and if that bill is passed whether certain references in the Criminal Code already to certain provisions of section 467 of the Code should also make reference to whatever is passed by Bill C-394.

The other bill would have to make provision to make any consequential amendments. This bill cannot assume that another bill would be passed. It will have to be that other bill that makes consequential amendments to other pieces of legislation before Parliament.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Here is my next question.

Do you have any constitutional concerns that information intercepted under section 184.4 could be used for purposes other than preventing and prosecuting that particular offence involving that particular person?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you for that question. It's covered in this bill by the safeguards that we have put in there. We want to make sure that the individual whose communication has been intercepted is notified, that this is part of a report not only by provincial attorneys general but also the Minister of Public Safety at the federal level. Again, these are entirely appropriate to ensure that there is some transparency and, indeed, accountability with respect to this, to make sure that this is used for exactly what is contemplated, and that is to prevent serious physical harm to the person or to property. Again, I'm confident that, with the safeguards that we have placed into this bill, this bill will work well.

I have no reason to believe that it was being abused prior to this, quite frankly, and that's not what the Tse decision is all about. The Tse decision examined the use of section 184.4 and said they could see that it makes sense to have this power, but what we're saying is, have these additional safeguards, or at least one safeguard afterwards, so that you can have that accountability.

Again, I think in totality we can go forward with confidence and say that this important, necessary tool the law enforcement agents, in my opinion, have to have will also have the appropriate amount of accountability and safeguards in it. I think it strikes a very reasonable balance, and I'm looking forward to the support of everyone on this.

[The Chair, Conservative, Mike Wallace]

Is that it, Mr. Jacob?

A very short question.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

You want me to keep my question very short? Thank you, Mr. Chair, but I won't ask it in that case, because it's very long.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Jacob.

Thank you, Minister.

Our final questioner of the minister is from the Conservative Party, Mr. Wilks.

Your time is five minutes, which includes the answer.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Perfect. It won't take that long.

Thanks, Minister, for being here today and being the author of two wiretap investigations. I can tell you that our Canadian law is very good.

I'm just curious, though. I wonder if you could go on a little further with regards to the April 13th deadline. What happens if we don't meet the deadline?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's not good. If we don't have this in place in a little over a month, that particular section, 184.4 specifically, becomes unconstitutional. If you had a situation, as I outlined in the Riley case or the Tse decision, where somebody's life is in immediate danger, for instance, you're not provided the means by which interception can take place.

It's very important that we move on these. Again, I appreciate the fact that sections like this are not struck down in and of themselves. It gives time for Parliament to have a look at these provisions and make changes, and so that's the opportunity that we've been given. Again this bill has moved quickly through Parliament at second reading. Again, with your analysis, we get this back into the House here, and I'm confident that, with the cooperation of everyone, we'll have this in place, and this will continue to be the law in Canada.

As I say, the Supreme Court of Canada did not strike down the section itself. All they're saying is that it is reasonable to have these powers, but you have to have a safeguard that goes beyond that. That's exactly what this bill does, and goes beyond and takes the recommendations and suggestions to heart and puts in place those in the bill as well.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Wilks.

I want to thank you, Minister, for joining us today and talking to us about Bill C-55. As you know, we will be studying it with witnesses on Wednesday for the first hour and maybe more, and then we will be going clause by clause. Thank you very much.

We will ask the officials if they would stay a few minutes in case people have questions. I'll suspend for 30 seconds while the minister leaves.

[The Chair, Conservative, Mike Wallace]

So we have our witnesses here with us from the department. I appreciate their staying. We have some time if we need them.

We have one questioner for sure, Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I never miss an opportunity like this. When we have such brilliant minds from the Department of Justice in our company, we must take advantage of their expertise, especially when we have to fast-track our study of a bill.

I still managed to take good notes when the minister was speaking. We are fully aware of the impact of the decision in R. v. Tse and what will happen on April 14 if Bill C-55 is not passed. That being said, I'd like to know how long you've been working on the bill.

[Karen Audcent, Senior Counsel, Criminal Law Policy Section, Department of Justice]

We've previously included responses to the reactions in Bill C-31. Then there was Bill C-50. But those responses pertained to lower court rulings. Then came Bill C-30. The Supreme Court rendered its decision on April 13, 2012. So we've been working on responses to the Supreme Court decisions since then.

Prior to that, we were basing our study on the rulings of lower courts, because the British Columbia, Ontario and Quebec courts indicated that we had to examine this section of the Criminal Code because it raised constitutional concerns.

[Françoise Boivin, NDP, Gatineau, QC]

Okay, but I think you may have misunderstood my question.

Bill C-55 is a response to the R. v. Tse decision. The title of the bill says so. The government might have used Bill C-30 and Bill C-12. Actually, many bills along the way could have tried to address the gaps identified in the R. v. Tse decision.

The government announced that it would withdraw Bill C-30 on the same day that Bill C-55 was introduced. Bill C-55 was tabled by the minister in the House less than a month ago. I think it was on February 11, 2013. It was then sent to committee on February 25, which is also very recent.

As you were working on Bill C-30, Bill C-55 was not in the picture. Could you tell me when you started to work on the drafting of Bill C-55?

[Karen Audcent]

The draft of Bill C-55comes from Bill C-30. Previously, it was Bill C-50 and at the outset, it was Bill C-31. The only change that we made to the content of Bill C-30 in order to incorporate it into Bill C-55 was to include the restriction for police officers. The Supreme Court had indicated that it would be a good idea to do so, and the government wanted to reflect that.

[Françoise Boivin, NDP, Gatineau, QC]

You wanted to avoid loopholes under Bill C-55.

My understanding is that, as long as things were working with Bill C-30, you felt that the situation has been taken care of rather well. Once Bill C-30 was withdrawn, you had to find something else to respond to the court's concerns and to the fact that the court found some provisions unconstitutional. That seems very clear to me.

As for the R. v. Tse decision, we were told that it was completely contrary to the Charter, specifically to section 8. The minister considered that the interceptions had to be constitutionally compliant, that people had to be aware that a report had been prepared, and so on.

What type of legal test are you using to ensure that the drafts are consistent with the R. v. Tse decision?

[Donald Piragoff]

In this case, it was very easy to know what would be compliant, because the Supreme Court of Canada told us. The Supreme Court said that a notification requirement would meet the—

[Françoise Boivin, NDP, Gatineau, QC]

But they didn't say how many days, they didn't say....

So what made you decide on 90 days and that an extension of up to three years would be...? How do you come to that justification?

[Donald Piragoff]

Because that was the existing law. The 90 days is the existing law for ordinary wiretaps. The provisions regarding wiretaps under section 186 already have notification requirements of 90 days, and possibly for an extension.