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

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

Mr. Speaker, I thank my colleague for her excellent question. Unfortunately, my answer can be summed up in one word: arrogance. Since gaining a majority, the government has introduced the bills it wants and consulted no one, or next to no one. It may consult those who share its opinion.

However, the opposition's concerns, whether they are those of the public or of members of other parties, are not considered. We spent months hearing about Bill C-30 and trying to debate and improve it. The public and various opposition party members have clearly told the government about problems with the bill, but the government decided that it was right and that, because it has a majority, it did not need to worry about the opposition's opinion.

That is the situation today, 19 parliamentary days before the deadline set by the Supreme Court. We are still debating this bill, which should have been introduced months ago. Bill C-30 should have been abandoned or shelved a long time ago, and we should have taken up the task together. That was not done and that is why we are in this problematic situation today.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I would like to thank my colleague for her speech. I would like her to comment on the importance of accountability. Under the bill, this type of interception is used in exceptional circumstances.

I would also like the hon. member to comment on the importance of always having accountability mechanisms, monitoring mechanisms and well-established conditions in bills, but also on the importance of accountability if this type of monitoring is used.

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

Mr. Speaker, I would like to thank my colleague for that excellent question. Accountability is a very important issue, particularly in a bill such as this one. Even if this type of interception is used on a fairly limited basis, it undermines the fundamental right to privacy .

In this case, the right to privacy is undermined in exceptional circumstances, namely, to protect people's lives and to protect property from major damage. The police are given permission to do this, but they must still be closely monitored. Parliament must be informed of how often this type of method is used. We must be informed of the type of circumstances surrounding the choice to intercept any private communications.

This type of mechanism must be included in the bill in order to protect Canadians and to ensure that the measures we take to respect and guarantee public safety do not excessively undermine the fundamental rights of Canadians guaranteed by the Charter. Section 1 of the Charter allows us to override these rights when doing so is reasonable, but we must ensure that such is always the case, which is what will allow for accountability.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I will be sharing my time with my colleague from LaSalle—Émard.

I will start by saying that I am very relieved. Like many of my constituents from Saint-Bruno—Saint-Hubert, I am relieved that Bill C-30 has died a quiet death.

Many of my constituents wrote to me to share their concerns about the ill-advised and dangerous Bill C-30. I am pleased that it is now behind us and that we can finally focus on the issues related to section 184.4 of the Criminal Code.

In all the time I have been a member in this House, this is the first time that the government has listened to reason and acknowledged that its first attempt was not the right one, since it did not correspond to the needs and wants of Canadians. I congratulate the Conservatives on that and urge them to start over more often. It is not so hard and everyone feels better afterwards. I urge the government to start over with the employment insurance reform. It feels so good to do the right thing.

But to come back to the matter at hand, let us be honest: this bill looks more like an appropriate response to what the courts have called for than did the former Bill C-30. This new bill is simply an update to the wiretapping provisions that the Supreme Court held to be unconstitutional.

This bill is before us as a result of a decision of the British Columbia Supreme Court, upheld by the Supreme Court of Canada, that declared section 184.4 of the Criminal Code to be unconstitutional. That section allows peace officers to intercept certain private communications, without prior judicial authorization, if they believe on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm, provided that judicial authorization cannot be obtained with reasonable diligence.

The courts held that emergency situations existed, but that a balance had to be struck between measures to protect individuals against unreasonable searches and seizures and society’s interest in preventing serious harm. That is why the courts held that section 184.4 of the Criminal Code violated section 8 of the charter, since it does not provide a mechanism for oversight, and very specifically, it does not require that notice be given to persons whose private communications have been intercepted.

An accountability mechanism needs to be enacted to protect the important privacy interests that are at stake, and a provision requiring notice would meet that need. The requirement that individuals whose communications are intercepted be given notice would in no way interfere with police action in an emergency. It would actually enhance the ability of the individuals targeted to identify and challenge violations of their privacy and obtain a genuine remedy. That is part of the balance we must try to strike and it is precisely that balance that we must achieve. Safeguards have to be in place to prevent as many abuses as possible and provide our constituents with a guarantee that their rights and freedoms will not be violated by legislation that this House might enact.

One way to be sure of this is to follow the instructions the courts have given, in particular with regard to privacy.

There are points that respond directly to the decisions of the courts. For example, this bill requires that the Minister of Public Safety and Emergency Preparedness and the attorney general of each province report on the interceptions of private communications made under section 184.4. It further provides that a person who has been the object of such an interception must be notified within a specified time, which is ordinarily 90 days but could be extended to three years in the case of terrorism and organized crime.

The bill also narrows the class of individuals who can make such interceptions, in addition to limiting interceptions to the offences listed in section 183 of the Criminal Code, which make up a relatively long list. In my opinion, these measures follow the instructions given by the courts, but we have to make sure that these provisions meet the charter requirements.

Like my NDP colleagues, I would like this bill to be referred to committee so that witnesses can be heard to give us answers to a number of questions, or at least provide some details on certain points. It would not be acceptable for amendments to the Criminal Code to once again be ruled unconstitutional by the court. It is our duty as parliamentarians to ensure that the rule of law is respected and that section 184.4 is amended in order to comply with the Constitution, the charter and Canadian laws. The benchmarks must be clear.

Needless to say, I have no blind faith in this government. Canadians have good reason to be apprehensive about Conservative privacy bills, because their record in this area is dismal. We must always work on behalf of the public and show respect for the rule of law, the Constitution and the Canadian Charter of Rights and Freedoms. In view of their failed attempt with Bill C-30, that is to be expected. Many Canadians and stakeholders agree.

According to Michael Geist, Bill C-30 may be dead, but legal access is definitely not. He claims that when the government dropped Bill C-30, it introduced Bill C-55 to allow wiretapping without a warrant. He added that although the bill is disguised as a response to last year's Supreme Court decision in R. v. Tse, much of it is lifted from Bill C-30.

He is right. That is why we need to be vigilant. The court established new parameters to protect privacy and we expect this bill to comply with those standards. That is why it must be studied in committee.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, I would like to thank my colleague for her characteristically impassioned speech.

I would like to ask her a question about the time available to us as parliamentarians to seriously study this bill. My colleague mentioned in passing that there would be 19 parliamentary days available to meet the deadline set by the court. This is somewhat problematic because the court's decision was not handed down only a few days ago, but rather many weeks and months ago—a year, to be precise.

Why then was this bill introduced only 19 days prior to the deadline? Is this not a way of preventing parliamentarians from doing serious work?

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I would like to thank my colleague for her apt question and her typically perceptive analysis.

As she put it so well, we unfortunately have only 19 working days to examine and analyze this bill. We are of course fully aware that this is the way things are done these days.

Ever since I was elected to the House, this government has done everything in its power to gag members of the opposition and take advantage of its majority in the House. Unfortunately, like my colleague, I deplore the fact that we have only 19 days to analyze such an important bill, one that will affect the privacy of Canadians.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, in contrast with Bill C-30, this bill clearly took out the term “peace officer” and replaced it with “police officer” and “other person”.

However, it is not clear who the “other person” is that has the right to use wiretaps. Is it military, immigration, customs or Coast Guard personnel? “Other person” is not defined.

Does my colleague feel it would be appropriate for a parliamentary committee to clearly define who the “other person” is that has the right to use wiretaps under the law?

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, again, I would like to thank my brilliant colleague who, as usual, is trying to find flaws in the bills put before us. And, as usual, he is succeeding.

He is right. That is why the NDP is showing its goodwill and wants to work with the government. We will support this bill so that it goes to committee and so that we can eventually define who these other people are that can use wiretaps.

I hope that the answer will be clear in committee. We will see what happens after that.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I would like to thank the hon. member for her speech.

I would like her to tell us more about the difficulties we sometimes have in committee. Amendments are often proposed in committee.

Is she confident that the government will listen carefully to us when this bill is examined?

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I would like to once again thank my NDP colleague for the work she does in the House.

She is always there to ask the right questions. The proof is there: I am being asked questions only by my NDP colleagues. I assume this means that the Conservative members have no interest in the issue before us today.

Like the rest of my colleagues, I certainly have concerns about what will happen to this bill when it gets to committee.

I sincerely hope that our government colleagues will have the decency to properly discuss this issue, which affects the privacy of Canadians, in committee.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I rise in the House today to speak about Bill C-55, which 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. I would like to mention the four main points included in the bill's summary.

(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.

I am emphasizing these four points because one would expect to find these clearly defined points in the bill.

I would like to begin with an argument that was already raised by our justice critic and that is the definition of “police officer”. It is important that this term be better defined in committee. The definition has been narrowed. It reads:

“police officer” means any officer, constable or other person employed for the preservation and maintenance of the public peace...

We will have to provide additional clarification. I would also like to point out that the bill in fact updates the wiretap provisions that the Supreme Court ruled unconstitutional. This reminds us of the saga of Bill C-30. Today, we find ourselves in the House with only a few days to study the bill. When the bill is sent to the Standing Committee on Justice and Human Rights, the number of days left to thoroughly study the bill will pose a problem. A timeline more in keeping with the importance of this bill should have been established in order to properly define the notions covered by this bill.

I would also like to mention that it is vital that this bill include mechanisms to provide oversight and accountability for the investigative measures. As I mentioned with respect to the four points, they must be well defined and there must be accountability. As English members say, there needs to be checks and balances.

We also mentioned that this bill must balance the need for surveillance with specific conditions and exceptional circumstances that have been well defined. These measures must only be used in exceptional circumstances. There must also be accountability for the frequency with which this mechanism is used and the methods used to inform people that they have been affected by this type of interception.

Another point must be clarified. I am the industry critic. The Standing Committee on Industry, Science and Technology conducted a study of electronic commerce. We need not look any further to know that our world is ever-changing and that technology is evolving at incredible speed. New technologies are introduced every day. We are surrounded by all manner of electronic devices.

Section 184.4 of the Criminal Code mentions police officers, which, as I said, will have to be defined, because it also mentions “other person”. It states:

A police officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if the police officer has reasonable grounds to believe that

I see “or other” there. I would like to know what this “other” refers to and what it includes. Industry Canada requested and held public consultations regarding the 700 MHz spectrum auction.

Some points were raised during these consultations. I am referring to the documents written by Chris Parsons, a man who follows everything to do with electronics very closely, particularly since the introduction of Bill C-30. Mr. Parsons—and others; this is public information—pointed out that the people who appeared to testify were asked to talk about providing information through other means, such as the Internet, for example.

I will read what was requested of the participants:

The consultation has asked participants to provide comments on a variety of issues. What I focus on are the proposals revolving around 'lawful intercept' conditions of licensing Canadian radio spectrum. These conditions are addressed in paragraphs...operating as a service provider using an interconnected radio-based transmission facility.

Then, witnesses, people from various associations—in the online sector, for example—asked whether it was realistic to ask them how they do things when the legislation is silent on the issue. Bill C-30 had yet to be examined, so people were wondering. For example, the Canadian Wireless Telecommunications Association said:

The Department’s proposal to replace “circuit-switched voice telephony systems” with “interconnected radio-based transmission facility for compensation,” opens up several additional services to interception requirements, including internet services...

They went even further, saying that it was not up to them to act and that legislation needed to be put in place so they could understand where they stood.

That is why I wanted to mention those points. Bill C-55 is very important in the sense that everything in it must be clearly defined, particularly when it states that an officer may “intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication” while respecting public safety requirements in exceptional circumstances. However, I feel it is very important, as do the people of LaSalle—Émard, that a person's privacy be respected.

That is very important. Oversight and accountability mechanisms must be written into a bill such as Bill C-55.

I believe that the members will agree that these requests are completely fair and justified, especially in the interest of the common good and peoples' rights.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I wonder if the member might want to provide some comment on the fact that we pass a considerable amount of legislation through the House of Commons.

Many of us would argue that when government ministers bring forward legislation, there is an obligation for them to ensure the legislation is reviewed with the intention of meeting potential constitutional and charter challenges.

Would she want to comment on the importance of the ministers doing work prior to the introduction of legislation to ensure, as much as possible, that the legislation we are being asked to vote on is constitutionally correct?

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I would like to thank the member for his question, which is right on the mark.

A huge amount of background work must be done before a bill can be introduced, in order to avoid long, arduous legal action. It is easy enough to check if the legislation is constitutional. His question and comments are completely appropriate.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, I am pleased to rise here to ask the hon. member for LaSalle—Émard a question.

I would first like to congratulate her on her very pragmatic speech, which focused on the potential flaws of the bill and very clearly described the work that needs to be done in committee. It will not be enough to simply discuss it and come back here with exactly the same bill at third reading, not because the approach or the amendments were lacking, mind you, but because the Conservatives chose to ignore the opposition, cover their ears and forge ahead.

I would like to give my colleague the opportunity to revisit the matter and to comment on the fact that, first of all, we have very few days to do the work that needs to be done thoughtfully and thoroughly, and that secondly, by supporting this bill at second reading, we do in fact hope that it will be studied carefully and with an open mind by all members of the Standing Committee on Justice and Human Rights.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I thank my hon. colleague for her question.

Indeed, this bill is the result of a Supreme Court of Canada ruling, which means that this bill is a reaction rather than being proactive. Yet a bill should be proactive concerning issues that have been a problem for several years and continue to be a problem. So I think some work remains to be done in that regard. Unfortunately, because there is little time, because the government did not introduce this bill sooner, we do not have long to examine it.

We hope that at committee meetings, the government will listen to any clarifications that are given in order to ensure that we do not end up with a bill that is unconstitutional and contrary to the Charter of Rights and Freedoms, as someone mentioned earlier.

Many experts can help ensure that this bill meets the needs of Canadians when it comes to security.