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 The government can indeed say that Bill C-30 was withdrawn as a result of public pressure because that is true.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.