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

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I would like to congratulate my colleague from British Columbia on his awesome speech. He talked about all the promises the Conservatives made to the police officers and firefighters six years ago. We could hear them yip-yapping in the background. We can still hear them.

Now they have a chance to stand and ask questions, but they are not. What is happening on the other side? Are they maybe ashamed of having promised these firefighters and police officers that they would do something to help their families, and now that it is time to do it, they are not doing anything?

Would the member give his opinion on that, please?

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, the member for Nickel Belt is a terrific member to work with. I work with him on the natural resources committee. He has been a very strong representative for Nickel Belt in the House of Commons. He is very eloquent and very knowledgeable, so I appreciate his question.

It is absolutely shameful treatment. It is shameful for the Conservatives to have voted to bring in the NDP bill and to have promised in the election campaign that they would bring it in. For six years police officers and firefighters have been asking, “Can you take care of our families when we pass on? When I die in the line of duty, can you take care of my family?” Is that too much to ask so that they do not have to sell their homes, so that the kids do not have to quit school, and so that they are actually taken care of by a grateful nation? That is what New Democrats stand for. That is what Canadians stand for: respect for our nation's police officers and firefighters.

I have no doubt that the Conservatives should be ashamed of the behaviour they have exhibited over the last six years by giving the back of their hands to firefighters and police officers in our country.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I want to note the heckling from the other side about “hug-a-thug” and that kind of nonsense. It is pretty depressing to be here and to hear that kind of talk, when it is very clear that the hecklers on the other side have not actually read this legislation and do not really know what it is about. This is a serious issue in front of us. This is a decision from the Supreme Court of Canada, which has instructed Parliament to change the Criminal Code of Canada.

Let us do a legal analysis of the bill. We will start with the Charter of Rights and Freedoms. Specifically, let us start with section 8, which provides that everyone has the right to be secure against unreasonable search and seizure. There are very few words, but there is a lot packed into that section.

The courts have held that a search without a warrant is unreasonable. The standard for determining whether a search is reasonable is to have it brought before a judge. There must be a neutral and impartial party, such as a judge, who can determine if a search is unreasonable. However, the courts have noted, in particular Justice Dickson in Hunter v. Southam that:

[I]t may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals' expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure.

However, there is also a long line of case law that states that judicial authorization can actually be waived if there is potential for serious and immediate harm or exigent circumstances. I use those words purposely: serious and immediate harm. For example, when a person calls 911, the police are actually permitted to enter the home without a warrant. Why? It is because it has been held that the police duty to protect life warrants and justifies a forced entry into the home in order to figure out if the person is safe. Section 184 of the code says that violations of privacy are against the law, but then we say that this can be violated or waived with judicial authority. However, judicial authority can be waived if there is potential for serious and immediate harm. That is the chain of thinking.

Bill C-55 is an attempt to update the wiretapping provisions in section 184.4 of the Criminal Code. Why? The government is making an attempt to update the code after the Supreme Court of Canada's decision R. v. Tse struck down the wiretapping provisions in the Criminal Code because they violated section 8 of the charter, which I described, which is the right to be secure against unreasonable search and seizure.

It is worth noting that the court gave us the deadline of April 13, 2013 to correct the decision, but here we are in February 2013 debating this legislation.

I will move on to the analysis. Before we can analyze Bill C-55 and the government's proposal, we need to take a close look at what the Supreme Court said about section 184.4. We need to understand the problems with section 184.4 and why it was struck down if we are going to be able to understand whether this attempt by the government actually fixes those problems or whether we are going to have the same constitutional problems.

The court stated that:

[I]n 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.

These are lots of words, but let us unpack them.

When section 184.4 made its way through Parliament in 1993, there was testimony at committee about the need for this kind of emergency power for situations such as hostage takings, bomb threats and armed standoffs. These are pretty serious situations. There was also testimony that this was necessary for very short periods of time during which it might be possible to actually stop that threat and prevent harm from occurring.

I will return later to the phrase “peace officers” in the wording of section 184.4.

Peace officers may only use the power to wiretap without judicial authority if they believe, on reasonable grounds, that the urgency of the situation is such that authorization could not, with reasonable diligence, be obtained under any other provision in the part, so there are four key concepts there.

What happened? The Supreme Court of Canada found that section 184.4 does not meet accountability standards because it does not provide any accountability measures. If we think about it, wiretapping is not at all like a 911 emergency call.

I want to quote something important from the decision.

The Supreme Court of Canada quoted Justice Davies who, I believe, wrote the court of appeal decision:

The interception of private communications in exigent circumstances is not like situations of hot pursuit, entry into a dwelling place to respond to a 9-1-1 call, or searches incidental to arrest when public safety is engaged. In those circumstances, the person who has been the subject of a search will immediately be aware of both the circumstances and consequences of police action. The invasion of privacy by interception of private communications will, however, be undetectable, unknown and undiscoverable by those targeted unless the state seeks to rely on the results of its intentionally secretive activities in a subsequent prosecution.

In other words, it would actually come out in court. In this case, however, a person could actually be wiretapped and never know it. There is no accountability here.

Another piece that the Supreme Court quoted was the intervener, the Criminal Lawyers Association, and I think this is really interesting:

...notice is neither irrelevant to section 8 protection, nor is it a “weak” way of protecting section 8 rights, simply because it occurs after the invasion of privacy. A requirement of after-the-fact notice casts a constitutionally important light back on the statutorily authorised intrusion. The right to privacy implies not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy. Notice would enhance all these interests. In the case of a secret warrantless wiretap, notice to intercepted person stands almost alone as an external safeguard.

As we can see, it is not at all like a 911 call, and we need to have notice. As was pointed out, notice after the fact is still notice. There needs to be an accountability provision, and the Supreme Court of Canada found that Parliament actually failed to provide adequate safeguards to address the issue of accountability in relation to unwarranted wiretaps and went on to outline why this charter breach was not saved by section 1 of the charter.

Parliament was tasked with drafting a constitutionally compliant provision. How has the government attempted to deal with these accountability provisions?

It did introduce a new provision that the authorization should be reported back to Parliament by the Minister of Public Safety.

Like any law student, I took criminal law, but I am far from a criminal law expert. However, it strikes me that this might actually be a creative way of addressing this issue, the issue of accountability.

Offhand, I cannot think of any similar accountability provisions whereby the accountability problem is solved through annual reports to Parliament. In a way it reminds me a bit of a sunset clause, when legislation is debated and is brought back to the House for debate again, but at the same time, it is really quite different. Through this way of dealing with the report, quite a number of details would be introduced in section 195 of the Criminal Code.

It is interesting, it is potentially very creative, and I am curious about how it would work. My first instinct is to think that it just might work, but then I remember where I am. I am in the House of Commons in the 41st Parliament, with a Conservative government that refuses to accept amendments to legislation, that invokes closure or time allocation to stifle debate, that buries important legislative policies and changes in omnibus legislation.

I would like to see the bill go to committee not just to find out if this is a creative and interesting accountability solution that might work but also to find out if it would work in the context of a government that has such disdain for parliamentary oversight.

I cannot say I have the answer to those questions right now, but I really do think Canadians have good reason to be concerned about the legislation, because the government's record on privacy is not very encouraging.

I very much look forward to the testimony at committee.

Thank you, Mr. Speaker.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I want to highlight what we believe is a big issue with the government, and that is negligence in terms of procedure and the way it brings things into the House. The member made reference to this as she started to wind up her speech.

It is important that we recognize that the government is now expecting us to pass the bill through the House, committee, back into the House and so forth, between now and April 13. That is not a reasonable timeframe. However, because the government was so negligent by not bringing the bill forward in a more timely fashion, the type of due diligence the House should be giving to legislation of this nature is going to be put into question. We see the benefits in its going to committee, but I wonder if she might want to comment about the timeframe and the idea that the bill has to be passed by April 13. Would she agree that it is highly irresponsible of the government to do it in such a poor fashion?

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I appreciate the opportunity to answer that question because I did not have time to address it in my speech.

I do not have answers to the questions I raised here today and I am not sure we are going to be able to get to them in about 19 days. I think this is negligent attention to parliamentary duty. I do not think the government has acted. It did bring forward Bill C-30. We see a lot of the provisions of Bill C-30 now in Bill C-55, but Bill C-30 was a total, utter, abject failure, and Canadians cried out against it. Rightly, finally, the government did withdraw that piece of legislation.

However, here we are. The clock is ticking. It has been practically a year, and now we have this legislation in front of us and we are just supposed to agree and vote for it. That is not responsible decision-making. That is not a responsible way to make legislation.

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

Mr. Speaker, compared to Bill C-30, this bill is focused. It is looking at the specific issues of how we appropriately balance warrantless access to anything. I stress warrantless. It is not as though our police forces, even prior to the Criminal Code sections that were found offensive by the Supreme Court of Canada in the recent court case, did not have access, but the idea of warrantless access is inimical to democracy.

It is worrying to say there is not time to go to a judge to get a warrant before intruding in someone's affairs if there is otherwise no lawful access to that information. Clearly, in emergency situations such as kidnapping and so on, we want police to do everything they can to save lives. Does the hon. member for Halifax have any sense at this point whether the public report that would be required at the end of each year would be sufficient to meet the Supreme Court's concerns?

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I agree with my hon. colleague that warrantless searches like this are worrying. However, the courts have determined that in principle Parliament may—and that is a key word—craft a narrow—another key word—emergency wiretap authority for these kinds of circumstances.

Will the report be the balance we need for that extreme violation of our charter rights? I cannot answer that question. This is yet another reason we have to get this bill to committee. We have to have the proper legal analysis.

We also have to have more than 19 days to get this done. The government has not allowed us to do our duty as legislators and properly review this legislation, given the time constraints that the Supreme Court of Canada has given to us.

It is worrying. I absolutely agree with her on that point.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to congratulate my colleague on her excellent speech.

Although it did not render a ruling, the Supreme Court also considered the issue of the definition of “peace officer”. Could my colleague expand on her extraordinary analysis of the bill by sharing her thoughts with those of us who are members of the Standing Committee on Justice and Human Rights and who will be debating this issue?

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I appreciate being able to answer this question as well because I did not have a chance to get to it in my speech.

The Supreme Court of Canada did have a problem with the fact that the wiretap power could be granted to peace officers who were not police officers. The government has, it seems, addressed this problem and has narrowed it to police officers. It potentially looks like a good step. I look forward to the testimony at committee.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, I am pleased to have an opportunity to rise and indicate that I will be sharing my time with my colleague, the member for Portneuf—Jacques-Cartier.

I appreciated and enjoyed the presentation from the member for Halifax, who has the constituency adjacent to mine. I know that she and her constituents enjoy looking across at the wonderful constituency of Dartmouth—Cole Harbour.

We were provided some wonderful information about the Supreme Court decision that led to Bill C-55. I do not have the capacity to engage in the type of legal analysis my colleague did. However, on the question of legislative procedure, there is a need for all members of this House to understand what their responsibilities are and to ensure that they follow through on those responsibilities, so that each and every piece of legislation tabled in this House does not leave the House unless it has been fully examined and vetted and until we have ensured that it is the best possible piece of legislation that it can be.

These are the laws of our country. These are the laws that affect all of our constituents. These are the laws that will continue to exist long after we have left here. It is incumbent upon us to ensure that we dot the is and cross the ts so that a piece of legislation does not leave here and immediately get struck down by the Supreme Court of Canada, for example, because we did not show due diligence.

Members should understand that this bill, which is a direct response to a decision by the Supreme Court of Canada, is being introduced in this House with a time limit of 19 sitting days to deal with it. It is absurd that the government, in all seriousness, would expect members of this House to deal with a piece of legislation of this magnitude—one as detailed and specific as this is, and one with such serious ramifications for privacy and for the jurisdiction of the Supreme Court of Canada—in 19 sitting days. That means the justice committee will have about two days to examine this important piece of legislation.

Let us not forget that the current government does not have a very good record when it comes to issues of privacy or when it comes to introducing legislation and trying to ram it through this House.

We have already seen provisions in some of its justice legislation struck down and seriously questioned by some of the courts in this land. We know what happened to the bill that was supposed to take care of this, the bill that preceded this, Bill C-30, which was tabled approximately a year ago in this House. It was torqued up by the minister, who tabled it in such a partisan, mean and ugly manner that Canadians from one end of this country to the other responded with outrage at the manner in which the government and that minister were dealing with such a sensitive and important issue to all Canadians.

They spoke with one voice. They said that it was simply unacceptable that the Government of Canada would deal with a very important issue in such a partisan and irresponsible manner. It was later determined, as people sifted through the details of the legislation, that the government did not do what it said it would do, that it was flawed in so many ways that finally the minister and the government tried to kick it under the carpet, pretend they had never tabled it and that they did not know what people were talking about when discussing the infamous Bill C-30.

What I remember, and I suggest what many members on this side and many Canadians remember, was the second attempt, in part to deal with something that Bill C-30 was supposedly to deal with. The government tells us not to worry, that it has been dealt with it, that it has responded to what the Supreme Court of Canada has said, that it has been very specific, that it has limited it to the particular provision as it relates to section 184.4 and that it has it covered. Therefore, there is no need for members to be concerned or engage in a great deal of debate, so we do not need a lot of time.

The NDP critic, who gave such an eloquent and informative speech at the beginning of this debate, suggested that the government often introduced legislation with a sense of arrogance and knowing what was best: regardless of the members opposite and the constituents they represented had to say, the Conservatives were the ones who had all the answers, so when they brought in legislation that they said was good to go, we should say “fine” and let it go. However, that is not what we were sent here to do.

The government has shown that we have to be on our toes because it does not do its job. It has been raised in the House by members on this side on a number of occasions. They wonder why the government does not properly vet legislation. We understand that the demands of the Supreme Court are such that we are not, with completely certainty, able to say that a piece of drafted legislation will pass muster in the Supreme Court of Canada. Surely the government takes the time, and we have not had the answer, to ensure there has been some examination and sense of proportionality that any particular piece of legislation will pass muster in the Supreme Court of Canada, but it has not given us that assurance.

In terms of the legislation the government has presented to the House since May of 2011, much of it has been flawed in detail and substance. It sometimes seems that when the government produces legislation, it is more concerned with the title and politics of the legislation than it is with the details, the substance, the implications and the impact that changing the laws of our country will have on Canadians. That is very much a case of the government thumbing its nose at members of the chamber.

On initial review of this bill, we hope it will do what the government says it will in relation to the Supreme Court decision. There will be an examination of the bill at the justice committee. Let us hope we get the opportunity to examine the bill to ensure that when it heads out of the House, we have made sure it is in fact the best piece of legislation it can be.

[The Acting Speaker, Conservative, Bruce Stanton]

The hon. member for Dartmouth—Cole Harbour will have five minutes remaining for questions and comments when the House next returns to debate on this question. I expect that will happen sometime later this afternoon.

The House resumed consideration of the motion that Bill C-55, An Act to amend the Criminal Code, be read the second time and referred to a committee.

[The Speaker, Conservative, Andrew Scheer]

We will now have five minutes for questions and comments for the hon. member for Dartmouth—Cole Harbour.

Questions and comments?

Resuming debate, the hon. member for Portneuf—Jacques-Cartier.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I am pleased to rise in the House today to speak to Bill C-55, a Response to the Supreme Court of Canada Decision in R. v. Tse Act.

This bill amends the Criminal Code to provide safeguards related to the authority to intercept private communications without prior judicial authorization under section 184 of that Act.

Bill C-55 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; provides that a person who has been the object of such an interception must be notified within a specified time, which is currently done only where charges are laid; and narrows the class of persons who can make such interceptions.

This bill updates certain provisions of the Criminal Code relating to wiretaps that were enacted in 1993. The updating was ordered by the Supreme Court in R. v. Tse, in which it held that section 184.4 of the Criminal Code was unconstitutional and had to be amended by Parliament no later than April 13, 2013. The deadline is fast approaching.

In that case, the Supreme Court found that this section infringed the right to be protected against arbitrary searches and seizures, a right guaranteed by section 8 of the Canadian Charter of Rights and Freedoms, and was not a reasonable limit within the meaning of section 1 of the charter. That decision is based on the fact that section 184.4 of the Criminal Code does not provide a mechanism for oversight and does not require that notice be given to persons whose private communications have been intercepted.

Bill C-55 is a somewhat desperate last-minute attempt by the Conservatives to comply with the instructions from the Supreme Court by the deadline given. I say “last-minute” because as of today parliamentarians have exactly 19 days left in which to pass Bill C-55 at second reading, examine it in committee, pass it in the House and then repeat the process in the other place, before it ultimately receives royal assent and comes into force as the law in Canada. That is very little time for such an important bill, which could have negative consequences for too many Canadians if we do not take the time to analyze it thoroughly.

I can understand why, after falling flat on their face with Bill C-30, the Conservatives would be somewhat nervous about the idea of considering the electronic surveillance issue again, or indeed any issues relating to potential breaches of Canadians’ privacy, but bill C-55 ought to have been introduced long ago.

Perhaps the Conservatives were trying to minimize the Minister of Public Safety's opportunities to insult potential opponents of Bill C-55. Who knows?

In any event, the NDP believes that it is an initial step in the right direction, and that is why we will be supporting Bill C-55 at second reading so that it can be studied in committee.

As I mentioned earlier, this bill would make important and essential amendments to the Criminal Code to make section 184.4 consistent with the Constitution by adding a number of safeguards as directed by the court.

The NDP has been asking the government to take action for a long time in order to act on these recommendations. From this standpoint, we would like this bill to move on to the next stage. It is essential for the investigative measures provided in any bill amending section 184.4 of the Criminal Code to have oversight and accountability mechanisms that protect the privacy of Canadians.

I am aware of the fact that it is sometimes necessary to put aside individual privacy to protect human lives and property from serious and imminent harm.

On the other hand, one cannot simply cast aside the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms.

The Supreme Court of Canada has established new parameters to protect privacy. We expect Bill C-55 to comply with these new criteria.

However, analysis of the defunct Bill C-30 and its stinging failure makes it obvious that the Conservatives need to rethink their approach to privacy and personal information.

A close look at the Conservatives’ agenda in this area demonstrates clearly that Canadians have good reason to be worried about any government bills on wiretapping and privacy.

My New Democratic colleagues and I are aware of the public's concerns about wiretapping, and we share them.

When Bill C-55 is studied in committee, the NDP will work, as we always do, on behalf of all Canadians to guarantee respect for the rule of law, the Constitution and the Canadian Charter of Rights and Freedoms.

We want to ensure that Bill C-55 is in compliance with the Supreme Court’s decision in R. v. Tse to make section 184.4 of the Criminal Code constitutional and to achieve the necessary balance between personal freedom and public safety.

I invite my Conservative colleagues on the Standing Committee on Justice and Human Rights to work with the NDP to improve Bill C-55 to guarantee respect for the fundamental rights of all Canadians as set out in our charter.

We know that it is sometimes difficult in committee to get support for opposition ideas. However, this time, we all agree on the basic idea that the Criminal Code needs to be amended to comply with the Supreme Court directives. There are people with impressive legal expertise in every party. They understand this issue and have suggestions to make to ensure that public safety in this country is a given for everyone, but that people's fundamental rights are also guaranteed.

It is important that all of the parties work together on this task so that the end result will truly protect us by keeping Canadians safe from terrorist attacks and any other wrongdoing. However, we need assurance that personal rights will be respected as well.

The Conservatives do not need to get caught up in hyper-partisan debates, as they did when they introduced Bill C-30. There is no need for rhetoric and no need to label people as child pornographers—as the Minister of Public Safety did during debate on Bill C-30—if they dare raise the issues that remain in Bill C-55. They also do not need to wait for public and political pressure to get to the point where the government has no other choice but to abandon its own bill, as it did with Bill C-30.

After that huge debacle, I would hope that the Conservatives have finally learned their lesson and that they will be willing to work with members of the official opposition and the third party to fix enduring issues in the Criminal Code of Canada.

We in the NDP share the government's desire to maintain and ensure public safety, but we also care about respecting the principles of the Charter of Rights and Freedoms in every bill that is passed in this House. Unfortunately, that does not always seem to be the case with this government, which would rather be called to order by the Supreme Court after introducing its bills, rather than legislating proactively and ensuring that its bills are constitutional before introducing them in the House.

This government could benefit from the advice and opinions of the opposition in order to ensure that Bill C-55 complies with the Supreme Court decision in the R. v. Tse case. I hope the government will be more open than it typically has been since winning a majority.

I heard many of the speeches given by my NDP and Liberal colleagues. They all regard this bill from more or less the same perspective, specifically, that it addresses something that has been a serious problem in the Criminal Code since 1993, but has never been resolved, not by past Liberal governments or by the Conservative government.

Now we have a makeshift bill here today that was introduced at the last minute to satisfy a court requirement. However, this bill was not necessarily 100% well thought-out and not all possible consequences have been considered. There is still some work to do.

We come here with a very open mind. We support this bill at second reading so that it can be improved at committee in order to ensure that it respects the criteria for the protection of privacy set out by the Supreme Court. That is the objective of all of my colleagues, including those who are members of the Standing Committee on Justice and Human Rights and those on other committees. It is the objective of the third party.

I hope we will achieve this objective together through our work in committee, and I look forward to seeing the new version that results from our examination.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, we know that the court has established new parameters for protecting the right to privacy, and we expect this bill to comply with those standards. That is what the NDP will be asking for.

Can my honourable colleague explain, once again, why we have only 19 days to study this bill? Why has the government waited so long, why has it waited until the deadline set by the Supreme Court? How does this undermine our right to provide oversight here in Parliament?