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

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, I want to say to the member that in this place, the duty of the official opposition is to call into question those times when a government, particularly one with a majority, is starting to proceed with a kind of cavalier attitude that it has the right to proceed in certain areas. Part of what we did, as the official opposition, was raise concerns and draw Canadians' attention to the issues. Once they came to understand the potential for the negative impact upon their lives, there was certainly the push-back to which she alluded.

However, there is a positive side to this, too. When the government was forced to bring the legislation back in a new form, the opportunity to work together on it made that a better piece of legislation, more compliant with the Supreme Court's view of the legislation.

The sad part is that in this place we have the opportunity of doing that on a number of different bills, but in this particular government's case, it tends to just turn its back on the offer to try to make legislation better, better for Canadians, and that is who we are here to serve.

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

Mr. Speaker, I have yet to ask the blunt direct question, and maybe it is unfair that I pick the member out of his whole caucus, but he has spoken of how it is important to make the bill as good as it could be. Although I am also going to vote for this bill and did at report stage, I am very sad that members of the official opposition caucus who usually support my efforts for civil liberties did not support my amendments yesterday. They were all derived from the recommendations of the Canadian Bar Association, the BC Civil Liberties Association and the Criminal Lawyers' Association. They would have made the bill better. They would have made it more charter compliant.

I wonder if he can fill me in on why, in this instance, the official opposition decided to go along with the Conservatives on the bill.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

To be very frank, Mr. Speaker, the official opposition did not see the merits in those amendments, so we did not support them.

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

Mr. Speaker, I wish to thank my hon. colleague, whom I have the pleasure of working with on the Standing Committee on Justice and Human Rights.

My colleague, our party's official justice critic, raised all of our concerns related to how this government acts when it comes to bills, which quite often violate the charter. In this case, my colleague had moved a motion specifically in order to avoid situations like Bill C-30.

I wonder if my colleague could talk about the advantages of having a system in place and how important it is that MPs understand this system, in order to ensure that all bills comply with the charter.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, the fact of the matter is that anybody putting a bill forward in a responsible manner, one that has this potential for an impact upon Canadians, first should ensure it is charter compliant and ensure that the bill would stand up to a review by the Supreme Court. The member put forward a motion to that effect, that we put a process in place, and I would recommend that the government give it serious consideration.

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

Mr. Speaker, I am very pleased to take part in the debate on Bill C-55.

First of all, I want to thank my colleague, the member for Gatineau and official opposition justice critic, as well as all of my colleagues, in particular the members for Brossard—La Prairie and Hamilton East—Stoney Creek, who have been working diligently to bring these matters forward.

I want to start by saying that we support this bill because we have the public good at heart. Respect for privacy, accountability, proper oversight, the rule of law and respect for the Constitution and the charter are extremely important to us.

The member for Hamilton East—Stoney Creek noted that the government has moved time allocation close to 30 times. Time allocation is not used in committee, but causes that we espouse are systematically rejected along with many amendments that we bring forward. A climate of co-operation does not usually prevail.

Things were different this time as far as co-operation goes. However, the government had a knife to its throat, so to speak, because of the looming April 13 deadline. In R. v. Tse, the Supreme Court directed the government to provide safeguards related to the authority to intercept communications. The Court declared that interceptions made under section 184.4 without a prior court authorization were unconstitutional.

The bill requires the Minister of Public Safety and the Attorney General of each province to report on the interceptions of private communications made under section 184.4. It furthers provides that any person who has been the object of such an interception must be notified of the interception within a specified period. It narrows the class of individuals who can make such an interception and limits those interceptions to offences listed in section 183 of the Criminal Code.

I would remind the House that this new Bill C-55 is simply an updated version of wiretapping provisions that the Supreme Court deemed unconstitutional. New privacy safeguards have been put in place. We believe the bill meets the standards in this area.

The Conservatives have a less-than-stellar record when it comes to privacy. That is why we took steps to ensure that this bill respected as much as possible the rule of law, the Constitution and the Canadian Charter of Rights and Freedoms.

This bill comes on the heels of the Conservatives’ abject failure with Bill C-30. This piece of legislation failed to meet the charter test because it was not properly crafted.

The Conservative government is making a desperate attempt to comply by the April 13, 2013 deadline with the Supreme Court decision in R. v. Tse.

Section 184.4 of the Criminal Code provides for safeguards, notifications and reports. Firstly it would require that a person whose private communications have been intercepted in situations of imminent harm be notified within 90 days. Secondly, it would require that annual reports be produced on the use of wiretapping under section 184.4. These amendments would limit the authority of police officers to use these provisions and would limit interceptions to offences listed in section 183 of the Criminal Code.

The problem is that the current section 184.4 violates section 8 of the charter. Not enough thought went into it. It does not contain accountability measures to ensure proper oversight of police officers as they exercise the authority conferred upon them.

The court therefore called for some accountability measures which were introduced in Bill C-55. Among other things, this is the reason why we support this legislation.

I would now like to turn my attention to the prior notification requirement. The bill also requires that persons who are the object of interceptions be notified. Section 195 also makes it a requirement to report to Parliament, including producing reports on the use of interceptions under section 184.4 of the Criminal Code.

For all of these reasons, we will be voting in favour of the bill because it attempts to strike a balance between personal freedoms and public safety considerations. However, the question is why it took the government so long to act. Bill C-55 is a step in the right direction, but why is the government not working together with the opposition at all times to resolve problems and improve proposed legislation?

Where justice is concerned, our priority is ensuring respect for the rule of law, for Canada’s Constitution and for the Charter of Rights and Freedoms, not for any political agenda.

Michael Spratt from the Criminal Lawyers' Association testified in committee in March 2011. He supported this bill. He felt that it was fair and constitutional and did an admirable job of incorporating the Supreme Court of Canada's comments from R. v. Tse. Mr. Spratt confirmed that the recurring theme is the balance between the protection of the public and the protection of privacy.

The Canadian Bar Association submission to the Standing Committee on Justice and Human Rights also indicated that, overall, the CBA is in favour of the amendments the bill proposes to comply with the ruling in R. v. Tse.

A representative of the British Columbia Civil Liberties Association, Raji Mangat, also said that this is a sensible and necessary privacy bill. She is pleased that Bill C-55 limits the application of warrantless wiretapping to circumstances in which the goal is to prevent the commission of an offence.

The notice requirement provides transparency and serves as an essential check on this extraordinary power to intercept communications without judicial authorization. This bill also includes reporting requirements in order to increase oversight in the use of warrantless wiretapping by police.

For all of these reasons, we agree with the committee witnesses that this remedies the problem. The government missed the mark with Bill C-30, but has made the necessary changes.

I am wondering about something and I will end on that note. Why does the government not work with our committee to improve other bills? The government should not just work with the opposition only when the Supreme Court puts a knife to its throat. The government must work with the opposition in the months and years to come. This would be a win-win situation for Canadians, as well as in terms of the rule of law and respect for the Canadian Constitution and the Canadian Charter of Rights and Freedoms.

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

Mr. Speaker, I thank my hon. colleague for his speech.

Since he is a member of the Standing Committee on Justice and Human Rights, I would like to ask him a question about how the government has proceeded with other bills, including Bill C-30, for example.

How has the government proceeded and what could be done to improve this aspect? The opposition has proposed concrete solutions. I wonder if my colleague could talk about what this government could do better.

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

Mr. Speaker, I like the correction. The government could do so much better. It could not do any worse than what it is currently doing.

Instead of systematically rejecting any amendments or proposals made by key witnesses, the government should work with the opposition to improve these famous bills, like it did, as though with a knife to its throat, for Bill C-55.

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

Mr. Speaker, I listened with interest to my hon. colleague, and what struck me was the fact that within Parliament it is the role of parliamentarians of all parties to work toward the development of good legislation and legislation that will stand a test in the courts.

Unfortunately, the government has time and time again ignored input from the other parties and also tried to defy the courts. With Bill C-30, the Conservatives were completely slapped back because it was such an intrusive, invasive attack on the basic civil liberties of law-abiding Canadians. We see with Bill C-55 that the Conservatives have gone for a much narrower range in terms of legislation that would actually pass the charter test.

Does my hon. colleague not think that the Conservatives would have been wiser, and may be wiser in future, if they actually learned the lesson that at the end of the day they are not supreme in this land, that it is still the Supreme Court, that they still have to work with other organizations and other parties to ensure that legislation would be to the benefit of all and not just for their attack ads?

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

Mr. Speaker, not only in the House of Commons but also in committee, the government would do well to work with the opposition in order to improve legislation. My hon. colleague from Hamilton East—Stoney Creek said that about 30 time allocation motions have been imposed. This really undermines democracy. Committee meetings are being held in camera, and witnesses and amendments are being systematically rejected. This will not serve to improve bills.

I hope the members opposite will listen to the truth.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank my colleague from Brome—Missisquoi for his speech.

I would like to ask him a very simple question. I know that he has a legal background and training, and I believe he is still a member of the Barreau du Québec. I would like to know why it is important that laws presented to Parliament comply with the charter and that they first pass the test of the justice department's officials.

Why is it important for parliamentarians to be assured that the legislation they debate respects the Canadian Charter of Rights and Freedoms, in view of the fact that Bill C-30 was introduced in the House and that Bill C-55 is the response to an unconstitutional provision of an existing law, namely section 184.4 of the Criminal Code?

Why is it important for our laws to respect the Canadian Charter of Rights and Freedoms? That is my question for my colleague.

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

Mr. Speaker, I thank my colleague from Sherbrooke for his excellent question.

I would say that it is a basic function of the law to ensure that a bill respects the charter and the Constitution. My colleague from Gatineau spoke about access to justice. Not everyone can go all the way to the Supreme Court. It is also a question of time and money.

Whenever possible, we must ensure that the laws passed by Parliament are adequate and meet the constitutionality test. In our society we have the rule of law and it is important to respect that.

[Marc-André Morin, NDP, Laurentides—Labelle, QC]

Mr. Speaker, I will be splitting my time with the member for Rosemont—La Petite-Patrie.

I am surprised, even flabbergasted, to be rising today in the House to support an intelligent piece of legislation from this government. I never thought that this day would come in my lifetime.

To date, everything that I have seen from this government has been so shoddy and botched that I certainly did not expect such a bill to ever see the light of day. Perhaps pressure from the Supreme Court has forced the Conservatives to introduce this legislation.

In supporting this bill, however, we want to prove that we are not blind partisans. Even after being insulted on virtually a daily basis for the better part of a year and being associated with wrongdoers, pedophiles, terrorists and all manner of criminals, we have understood one thing, because we think things through and use our good judgment: this is an extremely important issue. Indeed, an entire part of the legislation needs to be reviewed and circumscribed so that rights are upheld. It would be a disaster if nothing were done.

The Conservatives can count themselves lucky that we are not blind partisans. At any rate, they would pass the bill regardless. They do what they want. The fact is, however, that what needs to be in the bill is there. The use of section 184.4 is limited.

I get the sense that all the Conservatives came here with a misguided view of power. They thought that they could do whatever they wanted because they had a majority. The Supreme Court has just reminded them that laws must be obeyed and that there is a Canadian Charter of Rights and Freedoms that is replete with requirements. I hope that the Conservatives will learn from this experience and that they will think things through a bit better in the future.

In a democracy, parliamentarians must be given the opportunity to express themselves, and their opinions must be taken into account, as must those of witnesses who appear in committee. That is democracy in action. By going about things in a partisan and obtuse manner and by acting as they see fit, rejecting everything that they themselves have not put forward, the Conservatives are doing a disservice to society.

Each and every time that—

[The Acting Speaker, Barry Devolin]

Order, please. The hon. member for Selkirk—Interlake is rising on a point of order.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, we are debating third reading of Bill C-55. I have been listening quite intently to the member and to the opposition members speaking before him, and their comments have not been relevant to the issue at hand.

I would remind you, Mr. Speaker, that O'Brien and Bosc, chapter 13, page 626, states:

Debate on third reading is intended to permit the House to review the legislative measure in its final form and is therefore strictly limited to the contents of the bill.

I would also like to remind you, Mr. Speaker, that also in chapter 13, “Rules of Order and Decorum”, on page 623 under “The Rule of Relevance”, it says in a ruling made back in 1882, J.G. Bourinot, then Clerk of the House, felt the need to add this comment to his overview of parliamentary practice. It states:

A just regard to the privileges and dignity of Parliament demands that its time should not be wasted in idle and fruitless discussion; and consequently every member, who addresses the house, should endeavour to confine himself as closely as possible to the question under consideration.

Only once have I heard the member from across the way mention the amendment to section 184.4, which we are debating and for which the government has brought forward a bill in accordance with a Supreme Court ruling. I ask that he get down to the discussion at hand rather than editorialize.