Bill C-55 (Historical)

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

An Act to amend the Criminal Code

This enactment amends the Criminal Code to provide, in response to the Supreme Court’s decision in R. v. Tse, safeguards related to the authority to intercept private communications without prior judicial authorization under section 184.4 of that Act. Notably, the enactment
(a) 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;
(b) provides that a person who has been the object of such an interception must be notified of the interception within a specified period;
(c) narrows the class of individuals who can make such an interception; and
(d) limits those interceptions to offences listed in section 183 of the Criminal Code.

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

[Alice Wong, Conservative, Richmond, BC]

moved that Bill C-55, An Act to amend the Criminal Code, be read the third time and passed.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to speak in support of Bill C-55, the response to the Supreme Court decision in R. v. Tse act.

Bill C-55 is essential in maintaining the ability of police to protect Canadians from serious harm. It aims to ensure that the police retain their power to conduct wiretap without prior judicial authorization where it is needed immediately to prevent tragedy from occurring. The exceptional authority under section 184.4 of the Criminal Code allows police to proceed to intercept private communications without prior judicial authorization when an interception is urgently needed to respond to an imminent threat, such as kidnapping, a bomb or a hostage situation.

The Supreme Court of Canada held, in R. v. Tse, that the authority under section 184.4 of the Criminal Code was unconstitutional. However, the court suspended its declaration of invalidity until April 13, 2013, in order to allow Parliament to address the constitutional deficiencies of section 184.4. The amendments in the bill would respond to this decision, make 184.4 constitutionally compliant and add some additional limitations and accountability safeguards to use as exceptional authority for situations of imminent harm.

The authority to intercept private communications, under section 184, must be carefully tailored to balance the competing interests of the protection of privacy and the need to act quickly to protect persons and property from serious harm. The amendments to section 184.4 of the Criminal Code proposed in Bill C-55 would ensure needed accountability and transparency, while maintaining essential capability for police to respond swiftly in a critical situation.

Bill C-55 was studied by the Standing Committee on Justice and Human Rights and has been returned to the House without amendment. I would like to signal that the government greatly appreciates the assistance the House has provided in moving this essential bill forward as quickly as possible, while giving its important proposals due consideration.

To assist in its deliberations, the committee received written submissions from the Canadian Bar Association's national criminal justice section and heard from witnesses representing the Criminal Lawyers' Association and the British Columbia Civil Liberties Association. I am happy to report that these witnesses expressed support for the main elements of Bill C-55 and made very positive comments on the value and importance of the bill.

I would like to take a few minutes to go over the major components of Bill C-55. As indicated by the bill's title, and as I previously mentioned, the amendments proposed in the bill are needed to respond to the Supreme Court of Canada's decision in R. v. Tse. In the decision, the Supreme Court of Canada held that the authority under section 184.4 was unconstitutional, due to the lack of an accountability safeguard such as an after-the-fact notification. Bill C-55 would remedy this constitutional deficiency by adding requirements to the Criminal Code for after-the-fact notification to persons whose private communications have been intercepted under section 184.4. The notice would need to be provided within 90 days, unless an extension was granted by a judge.

In the decision of R. v. Tse, the Supreme Court also suggested that the government might wish to consider adding a reporting requirement, although it was not needed for constitutional compliance. The government is implementing this suggestion in Bill C-55, which proposes to amend the Criminal Code to require detailed annual reporting by the federal minister of public safety and the Attorneys General of the provinces on the use of section 184.4. This requirement essentially mirrors the existing reporting requirement under section 195 of the Criminal Code, which has always been considered an important mechanism to increase transparency in the use of wiretaps. Such annual reports are intended to form the basis for a public evaluation of police use of section 184.4 of the Criminal Code.

Bill C-55 also proposes to limit the availability of the authority to wiretap under section 184.4 to offences listed in section 183 of the Criminal Code in place of the broader reference to “any unlawful act”. This limitation was not seen as necessary by the Supreme Court, although it was favoured by the lower court in the Tse decision. The amendment was also commented on favourably by the witnesses who appeared before the committee to discuss the bill. The proposed change to the term “offence” makes for a narrower category of unlawful acts and is consistent with other wiretap authorities in part VI of the Criminal Code, which are also limited to offences listed in section 183 of the Criminal Code.

The Supreme Court of Canada also indicated in its decision in R. v. Tse that the government might wish to consider whether the broader category of peace officer under section 2 of the Criminal Code was too broad and whether to restrict the use of section 184.4 to a narrower group of individuals, such as police officers. The Supreme Court observed that this might be beneficial from a constitutional perspective, although it did not rule on this issue. The government agrees with the Supreme Court's suggestion. Accordingly, Bill C-55 restricts the use of section 184.4 to police officers instead of peace officers. As the law presently stands, section 184.4 powers can be used by peace officers, which is a broader category of persons that includes officials such as mayors and reeves as well as fishery guardians and customs and excise officers.

I would like to take this opportunity to assure the House that the proposed definition of “police officer” already exists in the Criminal Code in the context of dealing with forfeiture of proceeds of crime. It also exists in other statutes. It has been judicially interpreted as only including those who are statutorily appointed to carry out duties of preservation and maintenance of the public peace.

Privately hired individuals, such as security guards in shopping malls or office buildings, do not fit within this definition, as they are not statutorily appointed. I should also mention that in looking at section 184.4 of the Criminal Code and the additional restrictions on its use proposed in this bill, it is important to remember that section 184.4 already provides a number of important limitations on its use. It can only be used where other powers are not available due to the urgency of the situation. The interception must be immediately necessary to prevent serious harm, and the communications that are to be intercepted must be those of the victim or the perpetrator. These restrictions, together with the amendments proposed in this bill, would ensure that the use of this exceptional authority is appropriately circumscribed.

The Standing Committee on Justice and Human Rights has carefully reviewed the bill and supports it. The proposed safeguards and requirements in the bill not only meet but exceed the court's directives for constitutional compliance under section 184.4 of the Criminal Code.

I encourage all members to support Bill C-55.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank the Parliamentary Secretary to the Minister of Justice. I am glad that he understands the almost superhuman effort that we have all had to make to ram through this bill.

We all know that the Minister of Justice introduced this bill on February 11, despite the fact that it is a fairly important document given that it responds to a Supreme Court ruling.

We have had one question throughout the process and for a fairly long time now. The decision rendered by the court on April 13, 2012, in R. v. Tse gave the government one year to respond. Yet this question has not yet been answered. As we approach the final stage of consideration of this bill in the House, I believe it is important to better understand why the government waited so long and to see whether there is a lesson that can be learned here.

We have had to examine amendments to the part of the Criminal Code entitled “Invasion of Privacy” faster than a speeding bullet. I think that the government should learn something from this.

I am wondering whether the Parliamentary Secretary to the Minister of Justice can say whether the government has learned anything from the process that just took place.

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

Mr. Speaker, to begin, I would like to thank the members of the opposition who are part of the Standing Committee on Justice and Human Rights for having worked with us to get this bill passed quickly. It is very important for the safety and lives of those we should be protecting.

We are being criticized for how long it took for this bill to be introduced. But the justice department wants to be sure that it diligently examines a law's constitutionality.

We know that in this case, the Supreme Court suspended the bill, saying that it had shortcomings but that it was neither completely useless nor completely unconstitutional.

We therefore made another attempt and took our time going over it with a fine-tooth comb in order to correct the flaws and to ensure that it meets all of the constitutional requirements. We know that intercepting a person's communications is still an extreme measure to take.

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

Mr. Speaker, since we have the decision of the Supreme court in R. v. Tse, one would think that we now would be very cautious in this place to ensure that we not do just barely enough to ensure charter compliance but that we take every single step recommended to us by experts to ensure charter compliance.

I ask the parliamentary secretary why we did not take the advice of the Canadian Bar Association, the British Columbia Civil Liberties Association and the Criminal Lawyers' Association to ensure that we have additional oversight measures, including having lists that show when a wiretap did not lead to arrest and ensuring that the policemen who make these decisions without warrant record their reasons for having reasonable, probable grounds for doing so.

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

Mr. Speaker, we all aspire to ensure that matters of constitutionality are safeguarded. However, in instances when there are emergent needs to protect the safety of the public, it is not always possible to take measures such as making very copious notes or taking steps that may slow down the process that ultimately leads to guarding our safety.

While we respect the member's amendments in regard to having a full and complete record as to why a wiretap was used versus having obtained judicial authorization, emergent circumstances dictate that it is not possible to always write copious notes as to why such emergency measures were taken.

It is a matter of balancing the security of the public and the charter rights of citizens, and we feel that the bill, as it stands, meets all those requirements.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Mr. Speaker, I would like to thank the parliamentary secretary for his speech. He said that the justice department paid close attention to constitutionality. As we know, the government's initial reaction to the R. v. Tse case was to introduce Bill C-30.

Could my colleague explain why Bill C-30 was so bad? Why did the minister push the bill so far given that it went against the will of the people but particularly given that it went against the Charter of Rights and Freedoms and what the Supreme Court was asking for?

[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.

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

Mr. Speaker, I appreciate the praise from my hon. colleague regarding our cooperation in meetings of the Standing Committee on Justice and Human Rights.

I would like to ask my colleague if his party will learn from this and if, in the future, the justice priority will pertain to respecting the charter and the Constitution, rather than the Conservative political agenda, as has often been the case.

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

Mr. Speaker, when we talk about legislation that has an impact on the private rights of individuals, it is always easy to allude to a political platform. However, the exercise requires finding the balance between the rights of individuals and the rights of the government to protect those individuals.

I will not comment on the political platform. We believe that we always do what is necessary to find the balance between the rights of the public and the rights of the government.

[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, resolving constitutional deficiencies sometimes takes longer than we would like. This time, we are convinced that we have resolved the issue identified in R. v. Tse.

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

Mr. Speaker, I find this bill very interesting, because it recognizes the emergency needs of police officers to get information to save lives. However, as the Supreme Court pointed out, there was a lack of accountability measures, which would, in the long term, affect the free and democratic rights of citizens.

In light of the Supreme Court decision on this, was that part of the reason the government killed the lawful access bill, in which there were very few provisions to protect accountability for average citizens, let alone potential criminals?

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

No, Mr. Speaker.

[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?