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

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

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

We have known for quite some time now that certain provisions in the Criminal Code needed to be amended. In fact, the Supreme Court decision in R. v. Tse was handed down more than 10 months ago, nearly a year ago, in fact. The decision was very clear: the provisions of Criminal Code section 184.4 had to be amended. We know this; we have spoken a great deal today about the provisions that allow for private communications to be intercepted without prior authorization.

I would like to clarify something at the outset. We in the NDP have no problem with the fact that, sometimes, in order to save lives, in matters of public safety and so on, private communications must be intercepted before prior authorization can be obtained. However, when this is done, and because it is really on the borderline, there must be safeguards in place.

In R. v. Tse, the Supreme Court stated that the existing safeguards are not sufficient to ensure that there is no abuse or undue interference in a person's private matters or that the basic principle of the right to privacy is always respected. As one of my colleagues said, when we see what has been happening recently in surveillance organizations such as CSIS, where there have been serious issues and questionable appointments, it is even more important to have a rigid, clear legislative framework.

In short, the court asked Parliament, the government, to fix the problem, which absolutely had to be done. But what did the government do? It came up with Bill C-30, a terrible bill that was poorly designed and included all sorts of things but did not provide more safeguards. Instead, it increased the power to intercept private communication.

We on this side of the House opposed Bill C-30, and we were not the only ones. Many Canadians across the country strongly opposed it. My office received hundreds of emails and letters from people who were opposed to Bill C-30.

When we opposed it, we were called every name in the book. We were told that we were siding with pedophiles, and so on. Those responsible for the file treated us with their usual haughtiness and arrogance, but as it happens all too often with this government, its arrogance backfired. As the expression goes, when one spits into the wind, it blows back into one's face. That is more or less what happened with Bill C-30.

We graciously admit that Bill C-55 is a little better. That said, we have a small problem with the fact that the Conservatives want it passed so quickly. The Supreme Court ruling on R. v. Tse was handed down on April 13, 2012, and at that time, the court gave us one year to correct the situation.

Almost one year has passed, and the government is finally introducing a bill that is moving in the right direction to correct this situation. That leaves only 19 sitting days to debate this bill at second reading, send it to committee, have it return to the House for third reading and carry out the rest of the process. That is a very short timeframe, and it is truly typical of this government, which is always so short-sighted. I work on international files a lot and I am always fascinated at the lack of foresight of this government. You would think that a year would be long enough for the government to have seen this coming. Are the Conservatives so shortsighted that even a year is too long to plan? That is rather frustrating.

Maybe the government is hoping that the bill will pass easily. In case we were not clear before, we will be clear now. We believe that this bill is necessary, that we must ensure security, but we must also ensure that privacy is protected. We do not have a problem with that.

The problem arises when it comes to doing things right. Many people have concerns about the bill as it stands. Let us look at several examples. The bill talks about peace officers that can intercept communications. However, the term “peace officer” is not defined. Could a private security guard be a peace officer?

The bill deals with the issue of the time required before a person must be notified that his or her communications have been intercepted. Should this be 30 days or 90 days? Can this be extended for up to three years, as it is proposed in certain cases? Where is the happy medium?

There is another even more fundamental problem. What have we done to ensure that the legislation really responds to the Supreme Court case? What evaluation mechanism have we put in place to ensure that, in six months or one or two years, we do not find ourselves before the Supreme Court once again? This government seems to think that the executive branch does not have to answer to anyone and that it is above the law. That is not true. The charter and the Constitution are more important than the Conservatives' or any other party's political agenda.

The committee will have to take a close look at these concerns. Canadians have every reason to be apprehensive about a Conservative privacy bill. The Conservatives have a dismal track record in this area. Regardless, it is never a good idea to speed through bills. It is important to act, but we must do things properly. We have only 19 sitting days left to get this job done. We will roll up our sleeves and work hard.

The government's rush to get this passed unfortunately shows its lack of professionalism and lack of respect for Parliament, which in itself shows a lack of respect for Canadians, who have every right to expect Parliament to work diligently on such important issues.

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

Mr. Speaker, I thank my colleague.

I have a question, because I am not sure I understand the point regarding defining police officers. For Bill C-55, the Supreme Court has demanded that Parliament develop a clear definition of “police officer”.

Not a peace officer, but a police officer. There may be a problem with the words, “or other person employed for the preservation and maintenance of the public peace”. Perhaps that is the problem? I would like my colleague to speak to that.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Speaker, it is indeed any “other person employed for the preservation and maintenance of the public peace”. As long as there is no clear definition, there is the potential for a violation of the basic rights of Canadians. We need to be very rigorous and very precise about this. We must have a clear definition of this term and all the others.

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

Mr. Speaker, I would like to thank my colleague from Laurier—Sainte-Marie, who really has a lot of experience. She is sharing her extensive experience here in the House. Her speech today added many facts and striking examples to the discussion of Bill C-55. It is important to note that, as of this morning, we had 19 days left to pass this bill, which has just been introduced.

Now the first day is already over, and we have received no replies to our questions. Since this morning, even though the member for Gatineau, the member for Halifax, the member for Laurier—Sainte-Marie and many others have asked questions, we have not received any answers from the government. The government has therefore lost an entire day even though it introduced the bill late, that is, 19 days before the deadline. The government has known for a year that it must do something.

The question that I would like to ask my colleague from Laurier—Sainte-Marie is very simple. Why does she think the Conservatives are treating this matter with such disdain? Why is their approach so disorganized, when following up on a year-old Supreme Court decision is actually quite an important matter?

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Speaker, I think there are two problems. The first one is probably the most basic. We are in Parliament here. My understanding is that Parliament is a place for talking, for dialogue, for exchanging views in order to find good solutions, solutions that are fair, equitable and effective.

Unfortunately, in my short career as a member of Parliament, I have found that we are now dealing with a government that is not very interested in dialogue, that is not very interested in in-depth discussions on the issues that we are supposed to be debating. This can be seen in Parliament, it can be seen elsewhere in the country, and it can be seen worldwide. It is as though the government has no concept of what dialogue is all about and is completely unaware of how to work with others.

There is of course another matter that may raise a number of concerns. I have received many comments from my constituents regarding respect for the various institutions that are part of Canada’s democracy, including respect for the Constitution, respect for the courts and respect for the Canadian Charter of Rights and Freedoms. We must understand that these kinds of things are so much more essential than short-term political gains.

[Kennedy Stewart, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am pleased to stand today to address Bill C-55, An Act to amend the Criminal Code. I want to talk a bit about the specifics of the bill and the NDP's thoughts on this bill and then move to what is the bigger question, which is the balance between protecting the privacy of citizens and collecting the information we need to make proper policy decisions. Again, I will go through the specifics and then move to the bigger question. Although New Democrats support this bill in general and think it should go to committee for more scrutiny, the government has perhaps an unbalanced or inconsistent approach to these issues that is worth discussing.

Bill C-55 concerns safeguards in relation to authorization to intercept private communications without prior judicial authorization, basically wiretapping, or the state intercepting private communications. This bill requires the federal government and provincial Attorneys General to report interceptions of private communications, requires that the person who had his or her private communications intercepted be notified and narrows the class of people who can make such interceptions. They seem to be reasonable measures that would all be considered by any other country or government around the world that has to undertake these kinds of measures.

These measures seem reasonable to New Democrats, and we will be supporting this bill at least at second reading. We will see what kinds of shenanigans the committee members get up to, but we will make sure the committee has enough time to go through them.

I will be splitting my time with the member for Pierrefonds—Dollard.

Wiretapping is really what this bill is all about. Though we are calling it intercepted communications, we are really talking about wiretapping. Wiretapping has quite a long and sometimes dark history in Canada, and its proper use deserves our full and careful attention. In fact, the creation of our current Canadian Security Intelligence Service, CSIS, has its origins in this whole issue. As agents of the state, police and RCMP, in this case, illegally collected information on citizens during the 1970s. There was such an outcry, mainly from Quebec, that a number of task forces looked into it. They said the RCMP had too much centralized power, so we needed a separate security service, and that is why CSIS was established.

The problem in this case was that the RCMP overstepped its bounds and collected hundreds of hours of illegal wiretaps from Quebec citizens. Some were worthy, but others were to collect information about people at the whim of state agents, in this case the police. Records also show that this practice had been going on for quite some time, as well as outside the boundaries of Quebec. After quite an uproar across the country, CSIS was created. We have been wrestling with these issues and will always wrestle with where the boundaries lie between privacy and collecting necessary information. We need to take care that these past injustices, the misuse and maladministration of justice, do not happen again and that wiretapping only be used in legitimate circumstances and that the practice be as transparent as possible.

Returning to the text of Bill C-55, let me be clear that this bill is simply an updated version of previous Conservative-initiated wiretapping laws that the Supreme Court deemed unconstitutional. This is not a new initiative and, in fact, we are just cleaning up a bit of a mess. Due to this mess, the courts have established new parameters for the protection of privacy, and we need to ensure that this legislation meets these new requirements. We need to make sure the committee gets this right and that it is given ample time to ensure it gets it right this time.

New Democrats want to make sure the committee gets the time, especially when the government is crafting the post-committee version of this bill, because the Conservative record shows that Conservatives are prone to make mistakes in this area.

I want to talk about the whole idea of balancing the need to collect information from citizens to make policy, whether it is security, economic assessments or policy decisions in other areas, and the citizen's need for privacy and the right to protect private communications.

The government really needs to make sure it gets the balance right. We saw before that Bill C-30 was judged too intrusive. It went too far in terms of prying into the private lives of citizens. However, I want to talk about the other side, too, where the Conservatives have erred in terms of perhaps not being clear on what information is important to collect or what they are willing to do in terms of making proper policy decisions.

There are certain members of the Conservative Party, the libertarian wing, such as the member for Nepean—Carleton, who would say that the state has no business, at all, in the lives of citizens. We know that, in its pure form, cannot be true; otherwise that would be anarchy.

What we need to do is make sure we strike the right balance. I am afraid the Conservatives have got it wrong on a number of occasions. For example, the Conservatives have used the excuse of privacy to abolish the long form census. The effects of this action will be felt throughout Canada for years to come. Using the kind of smokescreen of protecting citizens' privacy, we have abolished a tool that has been in use not just in Canada but in almost all countries around the world to inform policy decisions.

Without the long form census, we still have the short form census, which is still mandatory; however it contains very little information. The long form census, which goes to a smaller proportion of the population, collects very valuable information. For example, being somebody who used to work in city planning, I know that cities need these things to plan properly: where to put a new school or what languages should be highlighted in that school. That information comes from the long form census.

Businesses looking to target a particular neighbourhood, wondering if the business will do well there or not, will not be able to target markets with any accuracy without this information. Without the long form census, policy makers will have to fly blind in many areas without these valuable statistics.

We are going to be feeling the ripple effects of not having the long form census for many years to come. Many community members felt very strongly about this, and in fact the head of Statistics Canada felt so strongly that he resigned when the long form census was abolished.

This is what I mean by balance. The Conservatives are keen to wiretap people and to really open that up and not have it be transparent. However, on the other side, Conservatives are not willing to allow the state to collect the information it needs to make proper planning decisions.

Some of my colleagues in this House have raised the spectre of the Conservatives abolishing other surveys with mandatory requirements. We have had the long form census abolished, and the reason given on the other side was that it had a mandatory reporting requirement.

For example, we have the labour force survey, which is mandatory. We have business surveys and agricultural surveys, which are also mandatory. My question for the Conservatives would be where they fall on these issues. Will the government use the name of privacy in vain in order to abolish these critical surveys, or will it cave in to its radical libertarian wing?

It is not just an imbalance between protecting privacy and the state gaining information it needs to make policy; it is also that it is a very inconsistent application. There is no single rule that the government is using in terms of making its policy decisions.

If we abolished the labour force survey, we would probably be kicked out of the OECD. This would not allow us to calculate our unemployment rate, and we would not be able to accurately report to international organizations with any accuracy.

Maybe when the Conservatives are asking questions when I finish my speech, we could have a bit of a debate about where they see the balance between protecting privacy and collecting proper information.

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

Mr. Speaker, I would like to thank my colleague for his speech, and especially for giving a very important perspective.

He is the official opposition science and technology critic, and has followed this issue very closely. When we talk about science, we are talking about facts and information, which enable us to make informed decisions here in Parliament.

In his conclusion, he wondered whether the bills that are currently before the House of Commons are balanced, or whether the government is still trying to introduce bills that are based on sensational reporting.

Does this bill strike a balance between public safety and the protection of privacy?

[Kennedy Stewart, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I thank my colleague from LaSalle—Émard for her question and for her very good work on the industry committee and as our industry critic. She is doing fine work, and it is a pleasure to work with her.

In terms of balance, I do not think the Conservatives have this right. In fact, I worry about the base premise they use to design policy in this area at all. For example, many members on that side of the House find the Charter of Rights and Freedoms an inconvenience. If they had their way, they would probably abolish it if they had a chance. That way they would be able to pursue these lines of inquiry. They would intrude into people's privacy in the name of crime and punishment. I think that is a mistake. We have to be vigilant to make sure they are not allowed to do that.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I have been following the debate all day, and I certainly know that the courts have established new parameters for the protection of privacy. We and all Canadians would expect the House to follow those parameters.

Most Canadians who were here for the debate on Bill C-30 have good reason to be concerned about the Conservatives' privacy legislation, and their record in this regard is far less than encouraging. The member started to talk about that in some detail, but for folks in my community of Hamilton Mountain that is probably the number one concern: How can we be assured that our privacy is protected, even though we understand there may be times when law enforcement officials need to be able to access some of that information? There has to be accountability. There has to be oversight. How can we make sure we are actually living within the spirit of what the courts are demanding of us?

I wonder if the member might want to take a couple more minutes, because I know his time here was brief, to talk about those issues in more detail.

[Kennedy Stewart, NDP, Burnaby—Douglas, BC]

Mr. Speaker, in all these matters the key word is “reasonableness”. The state has to be reasonable. It is a democracy. We are elected to make the laws for Canada under guidance of the charter and our Constitution, as well as Supreme Court rulings, treaties and other things, but it is for us, as we sit here, to think how an average Canadian would think about these particular laws. Is this too intrusive? Is this getting the information we need?

I feel that on the other side of the House, members have not been reasonable in many cases. They have been pursuing an ideological line that is inconsistent. The two sides of their party are battling. The social Conservatives would like to intrude in all aspects of life, and then the libertarians would like the state to be non-existent. This causes them a lot of trouble on the other side of the House. Again, it is up to us to be vigilant to make sure we are reasonable in the laws we propose in this place.

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

Mr. Speaker, I rise today to take part in the debate on Bill C-55, An Act to amend the Criminal Code, also known as the Response to the Supreme Court of Canada Decision in R. v. Tse Act.

Before I speak in more detail to Bill C-55, I would like to provide some background on the reasons for this bill.

In its ruling in R. v. Tse, the Supreme Court stated that section 184.4 of the Criminal Code, entitled “Interception in exceptional circumstances”, which was enacted in 1993, was unconstitutional because it did not include any accountability measures. The court gave Parliament until April 13, 2013, to amend the provision and make it constitutional.

Parliament has until April 13, 2013. That leaves 19 days until the deadline imposed by the Supreme Court of Canada, 19 days during which Parliament will sit and can work on this bill. I will come back to that point, but it is important in terms of the context of this debate.

What is section 184.4 of the Criminal Code? What exactly does it cover? What is the problem? Here is what the section states:

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;

(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 here we are talking about serious harm, and I will come back to that]

(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.

In other words, section 184.4 of the Criminal Code allows a peace officer to intercept certain private communications without prior judicial authorization if the officer believes on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm, and provided that judicial authorization could not be obtained with reasonable diligence.

We are dealing with something that is pertinent, and we believe it is important. If a peace officer has—first—serious reasons for believing that—second—serious harm may occur and that waiting for authorization to intercept conversations could prevent the officer from intervening in time to prevent the harm, then we are dealing with something very important.

We agree that some peace officers must have this latitude in certain circumstances. However, Bill C-55 must strike a balance between, on the one hand, allowing peace officers to do their very important job, which is to protect society and the community, and, on the other hand, guaranteeing the right to privacy and not to be wiretapped without prior knowledge, or without knowing the reason. We doubt the bill can do so because no one can say whether or not a peace officer has reasonable cause for intercepting a communication.

That is the dilemma. How far can peace officers go in doing their job while protecting the individual's right to privacy?

The Conservatives' first response to this dilemma was Bill C-30. We have heard all about it because it caused an outcry from the public, the media, corporations, entrepreneurs and a number of public safety organizations. In short, there was a huge protest against the Conservatives' Bill C-30. They were forced to drop it because evidently it was very troubling and there was cause to be troubled.

The problem persisted. Section 184.4 violated a section of the Canadian Charter of Rights and Freedoms. This issue definitely needed to be addressed and a solution needed to be found.

I am going back a bit. Section 184.4 threatens the Canadian Charter of Rights and Freedoms because it does not provide for a monitoring mechanism and particularly because it does not require that notice be given to individuals whose private communications have been intercepted. Such a violation cannot be validated by the application of section 1 of the charter.

This is similar to what I was saying earlier: we are looking for that balance. Here, a section of the Canadian Charter of Rights and Freedoms, which is dear to the hearts of all Canadians, is being violated by a provision of the Criminal Code, and that cannot be allowed to continue.

That is how we have come to be debating Bill C-55. An excerpt of the bill reads as follows:

(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...

We have here a sort of regulation requiring reporting on any interceptions. The bill goes on to say:

(b) provides that a person who has been the object of such an interception must be notified of the interception within a specified period...

The individual does not necessarily have to be notified the following day or the following week. This bill would once again regulate this potential surveillance by stating that it must be declared and that individuals under surveillance must be notified within a specified period.

(c) narrows the class of individuals who can make such an interception;

This is also important. We must clearly define who may conduct such surveillance.

Lastly:

(d) limits those interceptions to offences listed in section 183 of the Criminal Code.

This is another measure that regulates interceptions.

I will support Bill C-55 at second reading, for all the reasons I have mentioned, so that it can be examined in committee.

There is a problem. The Supreme Court of Canada has given Parliament a deadline to correct things. So let us get to it and carefully examine Bill C-55.

Earlier I spoke about Bill C-30, which became a scandal across Canada. I would like to say that Bill C-55 is nothing like Bill C-30. What we have before us is different, and that is encouraging.

This bill gives us, as parliamentarians, a better foundation to work with so we can fix the part of the Criminal Code that the Supreme Court of Canada has asked us to fix.

However, investigations must absolutely include oversight mechanisms and accountability measures. That is what the court said. I agree, as does my party, the NDP. We must ensure that Bill C-55 respects the rule of law, the Constitution and the Canadian Charter of Rights and Freedoms.

That is why we think it is necessary to carefully examine this bill in committee. We must ensure that Bill C-55 is not another Bill C-30 and that all of the provisions are addressed properly.

Earlier, the minister told us not to worry, that Bill C-55 respects the Canadian Charter of Rights and Freedoms and the Constitution. But he did not tell us how he verified that. I hope that he did not take the same measures he took for Bill C-30. We can take little comfort if he did.

Who was consulted? What measures were taken to ensure that Bill C-55 respects the Constitution and the Canadian Charter of Rights and Freedoms?

That is important, and not just hypothetically speaking. It is important because this would not be the first time the Conservatives have introduced a bill without listening to the experts and without following democratic processes and procedures. Such bills must then be dismantled, shelved, debated, reworked and re-introduced. It is a waste of time for parliamentarians and it is an inefficient way to work. The Conservatives introduce flawed bills that anger the people and sometimes scare them as well.

We need to examine Bill C-55 seriously and ensure that the work is done well, in the interest of all Canadians.

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

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

She emphasized the fact that, while the bill before us today is not like Bill C-30, it must still be studied in committee so it can be amended and improved.

Does she think that this bill can benefit from the recommendations that will be made in committee?

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

Mr. Speaker, I thank my colleague for her question. Unfortunately, I did not have time to deal with that issue in my speech. I had hoped to have an opportunity to address it.

Certain words and aspects of the bill lead us to believe that teamwork in committee will improve it.

For example, clause 2 of the bill now defines “police officer” and appears to limit the scope of the powers under section 184.4. Is this sufficient? Is the terminology correct and specific? When an element in the Criminal Code is changed, we must be sure that the terms are specific and consult with experts to find out how the terms may or may not be interpreted.

This is one example of the elements that the committee must work on to ensure that the bill corresponds to the mandate that the Supreme Court of Canada has given parliamentarians.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, there is one other aspect we talked about earlier in the day, and that is the timing of the introduction of Bill C-55. The government had plenty of time to bring the bill forward. We asked why it waited so long before we had the opportunity to debate it. The government sat on it for almost a year. Today we are being asked to pass the bill not only to committee stage but to third reading and so forth before April 12.

Could the member provide some comment on how we are expected to expedite the passage of the bill?

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

Mr. Speaker, all opposition members are disappointed to find themselves faced with a bill of such importance that should have been brought before this House a long time ago. We find ourselves with 19 days in which to give the bill serious consideration and ensure it is correctly formulated and meets expectations.

Why was the bill introduced only 19 days before the deadline set by the Supreme Court of Canada? Perhaps if the Conservatives had not introduced an aberration like Bill C-30, we would not be here today with only 19 days left. This is an excellent example that shows that if we work well, if we listen to the experts, if we consult Canadians and if we transcend partisanship, we can perhaps bring in good bills that provide solutions to problems and that do not need to be drafted, redrafted, overturned and then introduced in the House only 19 days before the deadline.

Work that is well done is good for all parliamentarians and all Canadians.