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

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is a pleasure for me to rise today to say a few words on Bill C-55.

There are many thoughts I would like to share with members, albeit we are somewhat limited in terms of time.

I want to pick up on two or three themes. I always take great exception when the government does things in a fashion that ultimately is disrespectful to the functionality of the House.

It is a privilege to be a member of Parliament, and I value the role I get to play. I thank the constituents of Winnipeg North for allowing me to represent them. I am also very grateful for the Liberal Party allowing me to respond to the different bills and so forth.

When I look at what the government is doing here, I find it is once again somewhat disrespectful. We need to recognize that the Supreme Court of Canada made the decision that precipitated the legislation before us. This decision was not made a month ago or two months ago. This decision was made back in April 2012.

The government has known for months that it needed to change the legislation. There is absolutely no reason whatsoever that could justify the delay it has taken in introducing Bill C-55.

What the government has done through procrastination is put the House of Commons in a position where, if we want to respect what our Supreme Court has ruled, there is pressure on its members to pass the legislation not only through second reading, but also committee, third reading and so forth, before April 13 of this year.

Today is the first opportunity to debate the bill. It is a significant issue. One has to question why the government—former Reformers and now Conservatives, as the members call themselves—has taken a different approach to dealing with legislation.

Members will recall the two massive budget bills in which the government, through the back door, made amendments to dozens of pieces of legislation. I am somewhat surprised that the government did not include this change. I guess the minister responsible did not think about it, or maybe he did not get the message from the PMO that the budget bill was coming forward. I am glad that at the very least the minister did not take advantage of the budget bill.

The government has been bringing in a record number of time allocation motions. I have a fairly lengthy list, and I will not go through the entire list. Some of these issues of time allocation were quite significant, whether it was on back-to-work type of legislation, the gun registry, a pension plan, the Canadian Wheat Board, Air Canada, Bill C-31, Bill C-27 or numerous other bills.

All of these deal with opportunities that members of Parliament have to provide due diligence and go through the legislation in a timely fashion to ensure the legislation is debated and that ideas will stem out from those debates, ultimately seeing it going to the committees and allowing them to do their jobs. Hopefully the government is then sympathetic to recognizing that its legislation quite often needs to be amended. Amendments come from many members on a wide variety of legislation.

Therefore, today we have a very short window. I suspect time allocation will be placed on this bill. However, there is a high sense of co-operation from opposition parties. On behalf of the Liberal Party, the Liberal Party critic was able to address the bill earlier today and indicated that we were very comfortable in seeing the bill go to committee. We recognize the importance of that.

That does not excuse the government of its irresponsible behaviour in not providing the House the respect that is necessary when dealing with legislation. It should be held accountable for taking so long in bringing this legislation before us.

However, the Liberal Party will behave responsibly and do what it can to get it to committee. We hope the government will be sensitive to possible amendments to the legislation. We recognize the bill does deserve attention at committee and understand that hopefully there will be some changes brought forward.

There are four things that Bill C-55 attempts to do.

It requires the ministers of public safety and emergency preparedness and the attorney generals of each province to report on the inception of private communications made under section 184.4. That is a positive request. It is something that the Supreme Court did not require. It is a reporting mechanism and there is great merit for it.

Bill C-55 provides that a person who is the subject of such an interception must be notified of the interception within a specified period of time. We must give thought to what the appropriate amount of time is. Hopefully that will come out in committee. We are very much aware of the importance of our charter and the protection of our privacy. There has to be a balancing of the public good and life-threatening situations and so forth. However, there also needs to be protection for individuals who ultimately might be subjected to a warrantless wiretap. I suggest the committee would do well to have some dialogue as to whether it should be 90 days or less than that and what the arguments and concerns are. It would be interesting to hear what the stakeholders would have to say on that point.

It would narrow the class of individuals who can intercept a wiretap. My understanding is that it is more general today. What the government wants to do is narrow it to include police officers. Hopefully, we will have some dialogue at committee stage regarding contracting out. Many municipalities hire private services related to security and policing. How will they be incorporated, or will they be incorporated?

Again, there is an opportunity with respect to the limits of those interceptions for offences listed in section 183 of the Criminal Code. We can appreciate that when that type of authority is issued, we should be very careful in terms of when and for what circumstances it would be utilized. Two things that come to mind are life-saving measures or kidnappings. These are the types of things where timing is of the essence. There might be a requirement for us to ensure that law enforcement officers are able to get the necessary information as quickly as possible.

The minister and others have talked a lot about section 184.4. That is really what we are talking about and that is what the Supreme Court made its ruling on. In going through some notes and, in particular, comments by judges, I thought I would share two that are really important to recognize and are related to section 184.4, which deals with the warrantless wiretapping provisions.

The first quote was said by one of our court judges:

—the privacy interests of some may have to yield temporarily for the greater good of society — here, the protection of lives and property from harm that is both serious and imminent.

I find that to be a most appropriate statement. This is why I raised this a few minutes ago. It is important for us to take a look at the most appropriate time frame. When someone's telephone conversation is being tapped into and the individual is not aware of it, what is an appropriate amount of time between the law officer making a recording of a conversation and the individual's right to know that recording was in fact made? From what I understand, the bill suggests 90 days.

The judge has correctly pointed out the importance of this to the public. We need to recognize that it outweighs the private interest. However, in the same breath, it is still important the private interest be protected in some fashion.

The second quote is as follows:

Section 184.4 contains a number of legislative conditions. Properly construed, these conditions are designed to ensure that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm. To that extent, the section strikes an appropriate balance between an individual’s s. 8 charter rights and society’s interests in preventing serious harm.

I wanted to read those quotes because I believe very passionately in the charter. I believe the vast majority of Canadians over the years have recognized how important it is to protect and refer to the Charter of Rights and Freedoms because we have taken ownership of that over the last 30 years. We need to do what we can to always reflect on that.

Earlier today, I had the opportunity to ask a number of members a very important question that many took for granted, and I want to use a couple of examples.

I am the critic for citizenship and immigration. I have been frustrated by the Minister of Citizenship and Immigration and some of the legislation he has brought forward. The question I posed to members earlier was related to the obligation of government ministers, with regard to the changes they are proposing at the draft stage, to get a better sense of whether these changes would meet the requirements of the Charter of Rights and Freedoms or pass a constitutional challenge. This has been an important issue for me because it has been raised in committee on several occasions. In fact, there is a group of lawyers and doctors in Toronto that is going to the Federal Court questioning the constitutionality of the decision made by the minister to cut back health care services to some of the most vulnerable in our society.

We have challenged the minister on that and it is now going to a federal court. We are not confident that the minister knew what he was doing when he brought in that change. Through Bill C-38, the minister made changes that ultimately excluded hundreds of thousands of skilled workers. Again, we questioned that. Not only does it come across as a very cruel and inhumane policy change, but when the minister brought in the change it was, and is being, challenged by a federal court. In fact, there was a ruling made by one court in Ontario indicating that the minister was wrong. I am not sure where this is at within the Department of Citizenship and Immigration, but that is another issue.

Then we had the issue of detention, which is where committees really are of benefit. We had a minister who was going to put people in a detention centre without any real right of appeal for a year, but at committee stage we were able to make some serious changes to that proposal. However, it took a whole lot to do it. Again, we had presenters at committee who said that this would not meet a constitutional challenge. That is important.

In looking at the justice area, I always thought that Bill C-30 was an interesting bill when it was introduced. I understand that the government has now withdrawn Bill C-30, but one of the arguments in that regard was that it did not go far enough in its provisions to give police officers wiretapping power over Internet services. Now Bill C-30 has come to a standstill, with the government backing off from it for a wide variety of reasons. That said, I question whether or not the current section 184.4 is something that would have been able to deal with many of the measures suggested in Bill C-30. Is that one of the reasons the government is not moving forward with the legislation? If so, one could question why it brought forward the bill in the first place. What happened regarding the exploitation of children on the Internet? Is that issue addressed in section 184.4? I am interested in knowing the answer, as I do know there was an attempt to deal with that issue in Bill C-30.

When I look at Bill C-55 as a whole, I do see merit in it going to committee, where I am interested to see what will take place. Hopefully, there will be some discussion relating to Bill C-30 because there might have been possible amendments to it that would benefit Bill C-55. Canadians are concerned about the exploitation of children over the Internet. I do not know to what degree Bill C-55 could assist in extreme circumstances in dealing with that issue.

We look forward to the bill going to committee. I hope and trust that the government will look at bringing legislation in a more timely fashion to the House and allow members the necessary diligence, without being rushed to pass bills to meet a deadline such as the Supreme Court's decision.

[The Acting Speaker, Conservative, Bruce Stanton]

Before we move on to questions and comments, it is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Charlesbourg—Haute-Saint-Charles, Employment Insurance; the hon. member for Québec, Search and Rescue.

The hon. member for Halifax.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, the member for Winnipeg North made a number of good points in his speech, including the value of a full debate in the House and for changes to be made to the legislation if new evidence comes out at committee.

That made me think about the court case R. v. Tse, which prompted this legislation. In that case, witness testimony at committee was quoted to try to determine what Parliament's intention was when this section of the Criminal Code was originally introduced in 1993. That speaks volumes about the value of the work we do here. It is about what happens at committee and what we say in the House about this legislation; it is not just about the vote. The debate really matters.

With a Conservative majority on committee, is my colleague confident that the committee would adopt any recommendations? The government does not have a good track record on that front. What does he think?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the member makes a good point. For example, I can recall a very heated discussion of mine with many different stakeholders about the Air Canada Public Participation Act and how people had referred to what took place at committee because the committee went even further in explaining what was in the legislation. In essence, the legislation guaranteed jobs in Winnipeg, Mississauga and Montreal. When those jobs or positions were lost, we referred to what the legislation said and at committee we started to pull the comments. It was amazing how much more clarity that provided to the issue and how it reinforced our point that Air Canada was in violation of the law.

I do agree with the member's comment that committees do matter. What takes place in committee and the context in which bills are explained, especially when ministers or government members provide further detail and consensus is developed, assists us in going forward.

I would like to think the government would be sympathetic to amendments but I can understand why members would feel discouraged, for the simple reason that it is difficult with a Conservative majority government to get any amendments passed. On one occasion at the justice committee, we had to leave it to the Senate to make some changes even though the government was aware that the changes were necessary.

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

Mr. Speaker, I think we all want to make sure that the Criminal Code complies with the charter. The fact that the Supreme Court of Canada has given the government and the Minister of Justice a full year to try to make sure that it does puts a great burden on us as parliamentarians to ensure that any legislation we pass will survive a subsequent charter challenge, should it come to that.

I am concerned because paragraph 90 of the Supreme Court of Canada decision refers favourably to the view of Mr. Justice Dambrot in the Riley case that “a legislative reporting requirement such as s. 195 that does not provide for active oversight of wiretapping generally, far less any particular use of the wiretap provisions, cannot be a constitutional requirement of a reasonable wiretap power...”.

I am wondering if the bill is likely to fail another charter challenge. In the opinion of the member for Winnipeg North, does it need an amendment to provide some active oversight of wiretapping more generally, taking the view of the Supreme Court?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I believe that the government already has a fairly decent sense of what issues concern opposition members. We want to see legislation that would pass any constitutional or charter challenge. It will be up to the government to recognize the value of making some changes.

If committee members and stakeholders are given the opportunity to present their views, any of our misgivings about what is in the legislation will be overcome. As the Liberal Party critic, I have addressed some of the issues referred to by the leader of the Green Party and I suspect that these will be discussed at committee if the government accepts the need for some amendments to the legislation for it to withstand any constitutional or charter challenge.

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

Mr. Speaker, the hon. member could perhaps speak about one of the weaknesses of this legislation.

A private conversation can be intercepted only in emergency situations. Yet, according to the law, this state of emergency can last for a period of three years, which seems to me like an extremely long time to respond to an emergency. In theory, we would hope that, in the weeks following the interception of these communications, the police would ask a judge to make that interception legal.

Why can this operation continue for three years?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, doubtless we need to ensure that there are adequate safeguards to protect someone's right to privacy. Within the proposed legislation, there is an obligation on the law officer or agency to inform a person who, for example, has had their phone line tapped, within 90 days I believe. We are open to hearing what the stakeholders have to say on that.

Everything depends on the need. There is no doubt that section 184.4 is needed, but safeguards are also needed. That is what we are really asking for.

In the vast majority of situations, a court order could be obtained. This section would be used rarely and I suspect that normal procedures would be followed. However, when it is a matter of minutes or possibly hours, having to go through a judge could put someone's life in danger. Therefore, as one judge ruled, sometimes we have to forego a bit of privacy to save that life for the public good, as long as there is some check or balance in place to ensure that there is a safeguard against our going overboard. There would be a great deal of merit in tracking how often it is used year over year, as we go forward.

We will have to wait and see, but I do believe that section 184.4 would allow our police officers to do what they believe is necessary to save a life. If going to court to get a warrant is required, section 184.4 would allow them to take that shortcut, which I suspect would be used very rarely.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, one of the things the Supreme Court of Canada expressed reservations about was the idea of a “peace officer” having all of these powers. When I read the bill, that term has been changed to “police officer”. Therefore, the bill has narrowed this to a police officer versus a peace officer such as a bailiff or mayor.

At first reading, I think that strikes a good note, but I would be interested in hearing what the member for Winnipeg North thinks about that.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the Liberal Party's critic had the opportunity to address that specific issue also. Narrowing the scope, I believe, is a good thing.

My understanding is that the legislation in its current state, for example, included that a mayor would have that authority. I am not convinced that a mayor should have that authority.

At the very least, I suspect if we or the government is wrong on that particular point, one of the stakeholders would make that case at the committee stage.

I do believe it is necessary for us to narrow that gap or to be a little bit more specific. I think that is good, given the authority that Bill C-55 would be giving. I think it is a responsible suggestion.

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

Mr. Speaker, I will be sharing my time with the hon. member for Laurier—Sainte-Marie.

The NDP will vote in favour of Bill C-55 at second reading so that it can be examined in committee and so that its weaknesses can be remedied, since therein lies the problem.

This is a good bill, particularly in comparison to its predecessor, Bill C-30, which fortunately was withdrawn. I do not think that the government really had any choice.

We, in the NDP, think that it is reasonable for Canada to have the means to protect its laws, its people and their property. We agree that emergency situations may require the intelligent use of a police force to combat crime.

However, unfortunately, the devil is in the details and they are many. We must clarify them and provide solutions. The NDP will do so in committee.

The bill has many weaknesses. One of our concerns is that the government has a serious problem with the application of the Canadian Charter of Rights and Freedoms. The number of bills that this government is introducing that the Supreme Court considers to be ultra vires is becoming indecent.

Someday, this government is going to have to understand that the provisions of the Canadian Charter of Rights and Freedoms are not going to be struck down just to please it; the Supreme Court is not going to take pity on it and is not going to say someday that it accepts the charter being violated, to please a government that plainly does not understand it. That is not how it works.

As Albert Einstein said, “Insanity is doing the same thing over and over again and expecting different results.” This government is plainly afflicted by that syndrome. It systematically makes the same mistake all over again by violating the Canadian Charter of Rights and Freedoms, and it hopes that someday those violations will be accepted by the Supreme Court. That is not how it works.

In this case, we have to pass this bill urgently. We will have a short time to examine it, essentially because of a judgment given nearly a year ago by the Supreme Court of Canada in R. v. Tse, declaring section 184.4 of the Criminal Code to be invalid. I would note that that section authorizes peace officers to intercept private conversations without seeking a warrant from the court.

The Supreme Court said at the outset that in exceptional urgent cases, where people and property are in immediate danger, it is to be expected that a democratic society will take measures to defend itself. However, it also said that this reasonable violation of the Canadian Charter of Rights and Freedoms must not open the door to any form of repression. That is the point at which it says that under section 184.4, the government is going too far.

Personally, I say that this must be limited. We must limit rights by stating clearly that the situation is exceptional. We must remedy the situation by informing the person who has been the subject of an unauthorized wiretap and have the continuation of the wiretap approved by a judicial authority.

In fact, section 183 of the Criminal Code provides a list of the events that will open the door to the use of section 184.4. That is a good thing. The application of that section must be guided by section 183.

A police force must not be allowed to go on a fishing expedition—to give itself the right to wiretap because it thinks that maybe someday something is going to happen. That is not authorized by the Supreme Court.

Collecting Canadians’ confidential information is no small matter. What is troubling is that this same government has a well-known tendency to lose confidential information about Canadians.

It accidentally forgot 500,000 files of students who received loans and bursaries. It lost information about aboriginal communities. It has lost a lot of information. It would be nice if this government took things a little more seriously.

We will be uncompromising when it comes to restricting rights. We will never allow democracy to be killed for the purpose of preserving democracy. That is the issue here. Under the rule of law in a democracy, people are accountable to justice and the law. We are debating this bill because section 183.4 does not meet the Supreme Court's criteria. It does not meet the criteria of the Charter of Rights and Freedoms. Bill C-30 definitely did not.

The close connection between Bill C-30 and Bill C-55 is regrettable. It is precisely this relationship that NDP members are going to keep a close watch on in committee. The question that then arises is whether we must sacrifice democracy in order to save it. The NDP's answer is very clear and intelligent: no.

The Supreme Court opened a door. It said that it wanted us to review section 184.4 and directed us to ensure that rights and freedoms were respected. There are some potential problems, such as replacing peace officers with police officers—which is fine—and other persons. However, “other persons” can mean anyone. At least this was limited to peace officers before. Now “other persons” can mean people who are not even peace officers. That is a problem and it is unacceptable.

Canadian Security Intelligence Service—CSIS—agents are not police officers within the meaning of the act. Members of the Canadian armed forces who work at the Communications Security Establishment Canada—CSEC— are not peace officers within the meaning of the act. Moreover, those who work for Echelon have the same problem. All exchanges with Interpol are therefore problematic.

It is therefore important to revise section 184. However, it requires proper oversight by police watchdogs. But then there is the problem of the scandal involving Dr. Porter. He was appointed to the highest level of our country's security institutions despite being wanted for fraud and corruption. The only qualification he had for work in intelligence and security was being a friend of the Conservative Party. I believe that friendship with members of the Conservative Party is a flawed criterion.

It is therefore important to make sure that the RCMP, CSIS and CSEC are properly monitored by oversight organizations that will tell their members, “Here is the act; you are required to follow the guidelines set out in this act.” We mentioned the problem of “other persons”, how oversight of them is important, and that this oversight should be performed by serious entities staffed by qualified people, not by Conservative Party campaign fundraising friends. There is also the problem of “other means”, which is very vague. Wiretapping is mentioned, but there is also the interception of private communications. Are the notes we write to prepare a speech or a sermon a problem?

In conclusion, I want to say that in democratic countries—and in London specifically—the phone hacking scandal in which journalists listened to conversations was a problem. In France, President Sarkozy used security services to get rid of some opponents. In the United States, intelligence services were misused to solve the problem. That is the problem with Bill C-55. That is what the NDP wants to do to protect Canadians.

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

Mr. Speaker, I thank my colleague for his speech and for raising some important points.

In introducing a bill, we always look to achieve some kind of balance. Here, we are looking to balance the surveillance and public safety objectives in response to a case that was before the Supreme Court. We must also balance human rights, fundamental rights, our Constitution and the Charter of Rights and Freedoms.

I would like my colleague to tell me whether he thinks this bill achieves that balance. If not, then I would like him to tell me what would help the bill to achieve that balance.

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

Mr. Speaker, I would like to thank my colleague. She came to the same conclusion as I did on this legislation.

It is important to give our public safety forces the resources they need to protect us. In this case, there are things that open the door for so much abuse that it is unacceptable. The expression “other technical means” is too broad. It may simply mean breaking into someone’s safe, ransacking his office or stealing documents. It is overly broad.

The definition of “other person” is also problematic. I fully agree that police forces should have this power. However, the expression “other person” is much too broad. We used to talk about an “officer of the peace”. At least it was limited. Another person could be anyone. That is one problem we should be addressing.

To whom are they accountable? That is the problem. Can we trust the organizations that supervise and oversee public safety? Unfortunately, this is not the case at the moment.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the issue really is the access without a warrant, and section 184.4 allows that to take place. From an opposition point of view—from the Liberal Party and, I believe for most part, from the New Democratic Party—the idea of safeguards is something we have talked about a lot.

Might the member provide some precise thoughts in terms of what he thinks would be a good safeguard for section 184.4? Does he have a personal feeling as to what could protect the privacy rights of an individual, which he could see potentially in the form of an amendment or something of that nature?

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

Mr. Speaker, that is an excellent question about accountability.

Unfortunately, over the past two years, we have seen police monitoring agencies being curtailed and even abolished by the omnibus bill and administrative reorganizations resulting from budget cuts. Ombudsmen are disappearing, for instance. That is the cause of the problem.

In the Arar case, the judge released a major report that showed the exact nature of Canada’s public safety forces and to whom they were accountable.

The problem with the RCMP is that it sent an individual to be tortured in Syria and is not accountable to anyone. It was when the matter was discussed in a parliamentary committee a few years later that we realized that this did not make sense. That is the problem. Who is going to oversee the enforcement of the legislation by the police and by “other people”?