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.

Motions in Amendment

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I am pleased to rise to address Bill C-55.

I did not work directly on this bill as a member of the Standing Committee on Justice and Human Rights because I unfortunately left that committee, although I fortunately have the great privilege of sitting on the Standing Committee on Finance. However, I have excellent memories of my time on the Standing Committee on Justice and Human Rights, despite the problems the members the New Democratic Party are facing on that committee.

In reference to the question I put to my colleague who previously spoke with regard to the rule of law and basic protections, we have moved a motion in the context of Bill C-55. That is why the member for Mount Royal spoke on the subject. He shared the same concerns when he was Minister of Justice. This is an excellent example of the reconciliation of imperatives. We can reconcile certain imperatives even though we belong to different parties. I remember some good exchanges I had with the member for Mount Royal over the fact that he approved of a number of measures we had taken.

Like all of my NDP colleagues, I support Bill C-55. However, I am going to be quite harsh. Objectively, Bill C-55 was a pleasant surprise. I think the government was compelled to respond to the Supreme Court’s decision. Yet, even today, as reported in the Globe and Mail, the justice minister continues to reiterate his full support for Bill C-10, the omnibus bill that unfortunately was passed and will create many problems.

Portions of certain sections of the Criminal Code and other acts that were amended by Bill C-10 could eventually be invalidated. Moreover, this bill has created an excessive amount of work for Parliament. This situation could have been avoided if the government had been open and much more rigorous that it generally is. I would remind the House that Bill C-55 is the exception.

Of course, reinventing the wheel or showing too much originality was not possible, because the decision was very clear and compelled the government to find solutions that meshed perfectly with the Supreme Court’s observations.

This brings us back to our duty as elected representatives and as members of these important and fundamental committees known as the standing committees of the House of Commons.

We have a responsibility to stay informed and adapt to today’s realities on an ongoing basis, all the while complying with immutable principles. We have a responsibility when it comes to passing legislation.

In this regard, I hope that Bill C-55 will serve as a model for the government and will prompt it to be more disciplined and especially to show more respect for all of our country’s institutions. The government must start by showing respect for the Canadian justice system, for Canada’s Parliament, a fundamental institution, and more especially for the House of Commons.

Understandably, there can be differences of opinion, and the government may not always agree with the views expressed by members of the opposition parties. However, the government has a responsibility to respect these views and the fact that people have different opinions. It also has a duty to respect the principle of accountability, which unfortunately is too easily flouted.

In the case of the committee that I had the privilege to serve on last fall, too often the government denied the obvious and rejected the opinions of experts whose positions were quite clear. It is truly a shame. After all, while it may be possible to some extent to defend ideological stances, these have absolutely no place when it comes to governing and establishing conditions for a just and fair society.

The government has made that mistake over and over again.

I repeat, Bill C-55 is a pleasant surprise. In the wake of what my hon. colleague from Gatineau said, I will come back to some important points related to section 184.4. They may seem like minor details, but these changes are important. They do not affect the essence of section 184.4.

The bill defines the term “police officer”, which applies to section 184.4. The bill then continues:

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 (a) 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 interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property; and (c) either the originator of the private communication or the person intended by the originator to receive it is the person who would commit the offence that is likely to cause the harm or is the victim, or intended victim, of the harm.

My colleague from Gatineau accurately explained the special nature of section 184.4. Let us not forget that sections 186 and 188 cover virtually every case that would justify a warrant to breach a person's privacy. There are, of course, cases in which the imminence or urgency of the situation, when it is a matter of minutes or hours, would permit someone in authority under the Criminal Code to act quickly without permission to provide genuine assistance and intervene to prevent mischief or a crime.

This is perfectly reasonable. The only problem is with the consequences of such an action. The amendments made to the various parts of section 195 are particularly important. We strongly support them simply because they provide a form of transparency and openness that allows for self-discipline and generally avoids any abuse of police power. First of all, no one wants abuse of this kind from the police. Police officers who possess this extraordinary power ought not to be exposed to situations of potential abuse by themselves or others against anyone here in Canada because it could lead to serious breaches and the public's loss of confidence in police departments.

We believe that section 195 is a step in the right direction in terms of accountability, and that it would set out clear guidelines for the application of section 184.4. In my view, this constitutes significant progress. It is a fundamental and necessary improvement. It would deal with the problems inherent in R. v. Tse that were before the Supreme Court.

I would like to end by saying that it was a pleasure to be able to comment on Bill C-55. I think, and especially I hope, that it will be passed relatively quickly. It is nevertheless deplorable that the government took so long to allow us to review it in this House.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, that is a very good question. It seems to me that the pattern in this particular case, which is similar to what the Conservatives brought about with the Senate reform, is to push it to the very last minute to seek opinion.

What is most bizarre is that the Conservatives introduced Bill C-30, which caused the most trouble, yet they knew that the decision from the Supreme Court was pending. If they had that decision, they would probably have had a better launching pad for Bill C-30. Unfortunately for them at the time, Bill C-30 became a hornet's nest of opposition across the entire country. They had to scrap it, step back and then wait for the Supreme Court decision to move ahead with Bill C-55, which by the way, may point out that the current legislation is better than they had imagined. It has been tested with the fixes we are doing here today, such as with section 184.4. It points out that the current laws in place were sufficient with a few tweaks here and there, and that is what we are doing with Bill C-55.

Therefore, the hornet's nest created around Bill C-30 was not really necessary. Apparently, because they pulled the legislation back, I guess they did not even agree with what they wrote, as bizarre as that may sound.

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

Mr. Speaker, in general, we on the opposition benches are supportive of the revised Bill C-55. However, as the member for Bonavista—Gander—Grand Falls—Windsor noted at the beginning of his remarks, the government had since April of last year to make the changes to sections of the Criminal Code dealing with emergency wiretaps without a warrant. Would the member care to speculate as to why it is that we find ourselves here at the last moment trying to get the bill through the House?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, at the risk of repeating a lot of what has been said here today, I want to elaborate on a few things, notably part VI of the Criminal Code, which deals with the activity of intercepting communications and thwarting crime as a result of that.

The reason we are here is the decision in R. v. Tse. When it came down, it seemed kind of odd at the time. It was just on the other end of the fiasco we had with Bill C-30, when it was introduced in the House. At that time there was a huge public campaign to thwart Bill C-30 because of the overarching measures contained within it and how it went against the spirit of privacy. When it comes to section 8 of the charter, and the charter itself, the charter challenges would have been ad nauseam for a lot of this bill.

Why the government did not wait in this particular case until after the decision is beyond me. It knew it was coming. Nonetheless, as a result of that it brought the bill into the House and then took it back out because of the public campaign against it, I would assume. As a result, we now have this bill, which complies with the judgment that came down from the court case in April 2012.

Here we find ourselves at the last minute on the eve of April 2013. We were given ample notice and yet here we are, up to the last minute. Why the Conservatives would push the envelope like this, I am not quite certain. However, in doing that, Bill C-55 now looks at the decision that came down and how it goes against the Constitution.

Many of my colleagues have already brought up section 184.4, which in this particular situation allows the police officers to intercept imminent communications. In other words, in any particular situation they do not need the paperwork to get that done.

Section 184.4 was originally composed as follows:

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;

It goes on to state:

(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;

The final point under (c) of section 184.4 states:

(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....

Here we have a situation where some people may feel we are circumventing the privacy issue for the sake of the immediacy of what is happening; we are able to intercept without certain legal authorities.

There is no doubt that for us and for millions of Canadians, on the surface this would cause a lot of concern, certainly for privacy. Police officers do not need that particular authorization under certain circumstances in order for them to intercept the communications, and therefore this is what we are struggling with right now.

The question was put forward and an opinion is now with us regarding this particular case.

The principal amendment addresses the fatal flaw identified by the Supreme Court. In this situation, Bill C-55 provides that after-the-fact notice be sent, as is the case for other forms of interception. That is what this is coming down to. The court decided this is not congruent with the charter because of the fact that the after-notice was not present in this particular situation. This is where the court has asked us to have a look at it and this is why we have Bill C-55. I certainly agree and voted in favour of it during second reading.

Essentially, this comes down to part VI of the Criminal Code. At the very crux of this is how we deal with the centrepiece of federal legislation on electronic surveillance by law enforcement agencies.

The court summarized the current scheme of part VI of the code as follows, and I would like to thank the Library of Parliament for providing some of this information, the legislative summary:

Part VI of the Code makes it an offence under s. 184(1) to intercept private communications. Sections 185 and 186 set out the general provisions governing the application and the granting of judicial authorizations for the interception of private communications.

There we have it. The interception of these private communications, electronic surveillance of a potential unlawful act, is written in part VI, and it talks about the legal authority to do so, whether it be authorizations or judicial authorizations. Section 184.2 is the other part of that, providing for judicial authorization with the consent of one of the persons being intercepted for up to 60 days.

Let us get to the crux of what we are talking about today. In 1993, Parliament introduced two provisions to permit interceptions without judicial authorization in two exceptional cases. Those would be section 184.1, which permits interception with a person's consent, and what we are talking about here today, which was ruled upon, section 184.4, which authorizes the power to intercept private communications in an emergency for the purpose of preventing serious harm. Neither of these two sections is subject to the requirement to report to Parliament or to provide after-the-fact notice.

This bill is going to change this, so that after-notice is sent to the particular people involved in the investigation, which is incongruent with other sections where other people were surveyed under judicial authorizations or had their communications intercepted.

The other part they got into on this particular case, which was very interesting, was about reporting to Parliament, as well as changing “peace officer” to “police officer”. As many of my colleagues have already pointed out, within the code itself, the idea or definition of a peace office as described is very broad indeed. We are talking about, as my colleague from the NDP pointed out, mayors, reeves and court officers. It is a very broad description. What has happened here is that the bill has taken it and defined it down to a police officer.

I will get to the amendments from my colleague from Saanich—Gulf Islands in a moment.

In doing so, the other part would be that the court examines the text of section 184.4 closely, with particular attention to phrases that limit its scope. The court concluded that Parliament had incorporated objective standards and strict conditions into the provision itself. That part was fine. The onus would remain on the Crown to show in any particular case that the conditions for the use of section 184.4 had been met. Nonetheless, as I pointed out, the court was concerned that there was no requirement that authorities notify individuals after the fact that their private communications had been intercepted. That is not congruent with other means of judicial authorizations to find and intercept people's private communications.

The final thing was whether to report to Parliament or not. In other places and in other sections, the court considered reading in a notice of requirement, but determined that this would not be appropriate. That is one of the measures it considered. However, because of the notification, the court ruled it to be against the charter. The section on reporting to Parliament was something it added. In it, the court says that “electronic surveillance under the Code is an effective investigation technique used especially by law enforcement agencies” and therefore requires a reporting to Parliament from the Minister of Public Safety and the Attorney General of Canada. Currently, they prepare an annual report on law enforcement's use of warrants for video surveillance and certain authorizations to intercept private communications pursuant to part VI. The ruling here is, and this particular bill addresses, that incongruent with part VI, it allows the reporting within Parliament procedure to continue as well.

I did not have much of a chance to talk about the amendments currently here. My colleague talks about the record keeping, which I have some trouble with, particularly because of the machinations involved. This is an immediate situation, in cases of using section 184.4, and I will therefore be voting against this particular measure, as well as other measures, which I am sure I will get into in questions.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, my colleague who just asked the Parliamentary Secretary to the Minister of Justice the question, hit the nail on the head. The problem with Bill C-55 is that we find ourselves passing this bill at the last possible minute. As we say in English, time is of the essence. If this bill is not passed by April 13, we will have a legal vacuum.

I would like to make some clarifications so that we know what we are talking about.

Section 184.4 of the Criminal Code is very clear. It talks about interception of communications in exceptional circumstances. If Bill C-55 is not passed in accordance with the Supreme Court of Canada decision, rendered last year in R. v. Tse, section 184.4 will no longer exist. Currently, this section states that, in exceptional circumstances:

A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where:

People are concerned about their conversations being intercepted and heard. Under section 184.4, which was at the centre of R. v. Tse, the conditions for the officer are that:

(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;

In other words, there was absolutely no other way to obtain authorization for this type of interception.

(b) the peace officer believes on reasonable grounds that such an intervention is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property;

This means that, after all due diligence, there is no possibility of obtaining authorization. That is a little difficult in the city. In Gatineau, for example, justices of the peace are available practically 24 hours a day for this type of authorization. The chances that it would be impossible to obtain authorization and that section 184.4 of the Criminal Code would not apply are great. These are truly exceptional cases, and it is important to put that into context.

There must also be reasonable grounds to believe that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm. Serious harm must be more than just a possibility; it must be imminent.

The third condition is as follows:

(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.

It should also be said that the ruling in R. v. Tse did not require a review of interception in its entirety. I appreciate what my Green Party colleague was trying to do with her amendments. But since time is of the essence, we should be concentrating on what the Supreme Court has asked Parliament to do. We were not asked to review the entire reporting process and so on. Yet the majority of the member's amendments address those topics, which were not even mentioned in the Supreme Court ruling.

The Supreme Court said the unless a criminal prosecution results, the targets of the wiretapping might never learn of the interceptions and would be unable to challenge police use of this power. There is no other measure in the code to ensure specific oversight of the use of section 184.4.

After all that I have said about this section, if that were the case and a person was never criminally prosecuted, it would be quite possible that he would never know that he had been the target of a wiretap or that his conversations had been intercepted. That is the crux of the issue in the R. v. Tse ruling.

The Supreme Court said that in its present form, the provision fails to meet the minimum constitutional standards of section 8 of the charter. I would like to emphasize the word “minimum”. The NDP is not saying that Bill C-55 is a legislative model when it comes to wiretapping, interception or invasion of privacy as set out in part VI of the Criminal Code. Those are exceptions.

Still, before voting on my colleague's proposed amendments and on Bill C-55, we should consider whether the measures and changes proposed by Bill C-55 respond to the guidance provided by the Supreme Court of Canada:

An accountability mechanism is necessary to protect the important privacy interests at stake and a notice provision would adequately meet that need, although Parliament may choose an alternative measure for providing accountability.

Those who take the time to read Bill C-55 will see that it calls for an accountability mechanism. People whose communications are intercepted will be notified of the interception.

Still according to the Supreme Court:

The lack of notice requirement or some other satisfactory substitute renders s. 184.4 constitutionally infirm.

That is all the Supreme Court of Canada said in R. v. Tse. Without sufficient information, we still do not know whether section 184.4 is excessively broad in scope because it confers power that may be exercised by peace officers as well as police officers. Nevertheless, the Supreme Court did indicate that it considered the matter. As always, the Supreme Court will not rule until the matter has been debated, nor will it rule on the matter debated unless it goes before the court. With respect to the issue of who would be given permission to carry out the kind of interception set out in section 184.4, the Supreme Court did not discuss it and made no decision on the matter.

One good thing about Bill C-55 is that, even in the absence of a decision by the Supreme Court, it restricts the scope of section 184.4 to police officers and other persons employed for the maintenance of the public peace by removing the term “peace officer”.

Section 2 of the Criminal Code lists just about every category of public officer, from mayor to meter reader. Indeed, virtually every type of public officer was covered, giving the impression that the scope of the provision was fairly broad. The power conferred under section 184.4 is one that should not be given to just anyone. In that regard, I am pleased that the government brought forward a bill that addresses one of the issues that the Supreme Court raised but did not rule on. As I see it, in matters of criminal law, an ounce of prevention is worth a pound of cure. The rights of persons subject to trial are at issue here. Insofar as providing an opinion is concerned, Bill C-55 is the Conservatives’ response to the Supreme Court’s request.

The bill also contains some things that the Supreme Court did not request. All of the provisions amending section 195 of the Act and the requirement for various types of reports have been added to ensure greater accountability. Who would not want that? Certainly more can be done at some point in the future.

However, as to whether Bill C-55 will respond to the questions and guidance of the Supreme Court of Canada before April 13, 2013, all of the witnesses who testified before the committee were of the opinion that it will.

All of the witnesses, whether they represented the Canadian Bar Association or the CLA, were unanimous in their support of Bill C-55. They made a number of minor suggestions. However, since it was not their job to resolve all of the problems concerning interception but rather to address the issue of the constitutionality of section 184.4, I am reasonably satisfied with the responses provided by departmental officials.

All of the questions which the member raised in her amendments have been answered by the minister or by Department of Justice officials. In this regard, there is no need at this point in time and given the context of Bill C-55 to go forward with what my hon. colleague is proposing. We received the answers to our questions when the bill was studied in committee.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to speak today about Bill C-55, the response to the Supreme Court of Canada decision in R. v. Tse act. This bill responds to the Supreme Court of Canada decision that found section 184.4 of the Criminal Code to be unconstitutional. Section 184.4 provides authority to intercept private communications without prior judicial authorization in dangerous situations such as kidnappings, in order to respond to an imminent threat of harm when the time constraints do not permit obtaining a judicial authorization.

The purpose of Bill C-55 is to ensure that the critical preventive tool that I have just described remains available to police officers in life-threatening situations while offering the appropriate accountability and privacy safeguards in compliance with the Supreme Court decision in R. v. Tse.

The court declared the provision unconstitutional on the sole basis that it does not provide sufficient accountability measures and indicated that constitutional compliance could be achieved by the addition of a requirement for after-the-fact notification to persons whose private communications have been intercepted under section 184.4 of the Criminal Code, similar to the notification requirements for other wiretaps. This bill proposes to add this safeguard.

Bill C-55 also proposes additional safeguards that, while not required for constitutional compliance, would enhance the privacy of Canadians by increasing transparency and ensuring appropriate limits on the use of section 184.4. The bill proposes a reporting requirement that would require the Minister of Public Safety and the Attorneys General of the provinces to report annually on the use of section 184.4 of the Criminal Code. This requirement already exists for other wiretaps, so it seems logical to extend it to wiretaps used in exceptional circumstances as well.

Another safeguard proposed in this bill would limit the power to wiretap without prior judicial authorization in situations of imminent harm by restricting the availability of this power to offences listed in section 183 of the Criminal Code. Currently, the Criminal Code makes this authority available for any unlawful act, which covers a broader range of conduct.

Lastly, the government is proposing to limit the availability of this extraordinary power to police officers only. Currently, section 184.4 of the Criminal Code is available to peace officers, which, as defined in section 2 of the Criminal Code, includes not only police officers but also mayors, immigration officers and fishery guardians.

Now that I have given a brief overview of Bill C-55 and its proposals, I would like to address what are now the five report stage motions that were tabled by the member for Saanich—Gulf Islands.

Motion No. 1 proposes to amend Bill C-55 to further restrict the class of persons for which the section 184.4 wiretap power is available.

This proposal is problematic. The definition of “police officer” that is included in clause 2 of Bill C-55 was taken from the existing definition of “police officer” in the Criminal Code. It is carefully tailored to ensure that it includes all persons who need access to the authority to intercept private communications in exceptional circumstances without a judicial authorization.

I would like to take this opportunity to again repeat that the proposed definition of “police officer” already exists in the Criminal Code in the context of dealing with the forfeiture of proceeds of crime and that it also exists in other statutes. It has been judicially interpreted as including only those who are statutorily appointed to carry out duties of preservation and maintenance of public peace. Privately hired individuals, such as security guards in a shopping mall or an office building, do not fit within this definition, as they are not statutorily appointed.

The removal of the category of “other person” from the definition of “police officer” as proposed in Motion No. 1 is unnecessary. For these reasons, this amendment is not advisable.

I will address Motions Nos. 3 and 5 together, as the change proposed in Motion No. 5 is a result of a change proposed in Motion No. 3.

Motion No. 3 proposes to add a requirement in the bill that a police officer make a record of the reasonable grounds that formed the basis for his or her decision to intercept private communications without a judicial authorization in exigent circumstances under section 184.4 of the Criminal Code. Motion No. 5 proposes to add this record to the annual report that would be made in relation to the use of the section 184.4 wiretap power.

Creating a record-keeping requirement as proposed in Motion No. 3 would undermine the goal of section 184.4, which is to enable a rapid response in cases of imminent harm. As was recognized in the Supreme Court of Canada decision in R. v. Tse, it would be impractical to require the police to create contemporaneous records in exceptional situations in which the police need to act very quickly.

The Supreme Court of Canada was satisfied that an after-the-fact notice provision for those persons whose private communications were intercepted in exceptional circumstances, as envisaged by clause 5 of Bill C-55, would adequately meet that need.

An additional reason for not supporting Motion No. 5 is that the creation of an additional reporting requirement would be inconsistent with what it is currently being reported in relation to other wiretap powers.

The creation of a divergence from existing reporting practices is equally a problem for the proposals in Motions Nos. 4 and 6, which propose to add new reporting requirements with respect to the number of interceptions in relation to which no proceedings were commenced or no arrests were made in the offences that the police sought to prevent in making these interceptions. The proposals in Motions Nos. 4 and 6 are, therefore, not advisable.

The reforms proposed in Bill C-55 are designated to protect the safety of Canadians in a way that is appropriate, proportional and respectful of privacy interests. I am confident that the bill would achieve the correct balance in this regard.

Furthermore, although I appreciate the efforts of the member opposite, the report stage amendments proposed to Bill C-55 that are currently before this House for consideration are ineffective, ill-advised and inappropriate.

For these reasons, I urge the House to defeat the motions tabled by the hon. member for Saanich—Gulf Islands.

As well, I hope that all members will support the timely enactment of the bill as it was introduced. The Supreme Court of Canada suspended its declaration of invalidity in R. v. Tse until April 13 to allow the need for Parliament to ensure the constitutional compliance of section 184.4 of the Criminal Code. As it now stands, if the bill does not come into force before the suspension expires, section 184.4 would not longer be available for police to do wiretaps in the exceptional circumstances contemplated in section 184.4, which are designated, of course, as circumstances in which lives are at risk.

I urge this House to pass the bill.

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

,

seconded by the hon. member for Thunder Bay—Superior North moved:

Motion No. 1

That Bill C-55, in Clause 2, be amended by replacing lines 10 and 11 on page 1 with the following:

““police officer” means any officer or constable employed for the preservation and”

Motion No. 3

That Bill C-55, in Clause 3, be amended by replacing line 18 on page 1 with the following:

“tion if the police officer has reasonable grounds, a record of which is subsequently made,”

Motion No. 4

That Bill C-55, in Clause 5, be amended by adding after line 27 on page 3 the following:

“(d.1) the number of interceptions in respect of which no proceedings were commenced and, for each such interception, the offence that the police officer sought to prevent in making the interception;”

Motion No. 5

That Bill C-55, in Clause 5, be amended by adding after line 35 on page 3 the following:

“(f.1) a description of the reasonable grounds recorded by the police officer in accordance with section 184.4 for each interception;”

Motion No. 6

That Bill C-55, in Clause 5, be amended by adding after line 38 on page 3 the following:

“(g.1) the number of interceptions in respect of which no arrests were made and, for each such interception, the offence that the police officer sought to prevent in making the interception;”

She said: Mr. Speaker, I want to begin by thanking my colleague, the hon. member for Thunder Bay—Superior North, for seconding these motions.

As the House will know, this legislation was brought forward in place of or at least after Bill C-30 was withdrawn. It was the so-called protecting children from Internet predators act. I do understand the reasons for urgency.

This legislation, Bill C-55, is in direct response to a decision of the Supreme Court of Canada in R v. Tse, in which the court found that the current emergency wiretap provisions failed the charter test. The court suspended its ruling for 12 months to allow the House to remedy those sections of the Criminal Code such that they would conform with the charter. The clock started ticking when the Supreme Court rendered its decision, which was April 13 last year. We have a small amount of time to correct those mistakes.

I want to start my discussion of the amendments I am putting forward by stressing that I also support Bill C-55. It is, overall, well crafted and meets the challenge of ensuring that this extraordinary power of the state to obtain emergency wiretaps without a warrant—and this is what we are talking about—which is quite an egregious invasion of the privacy of the individual citizen, is balanced and only justified in exigent circumstances when certain standards have been met. It is only charter compliant, according to the Supreme Court decision in R v. Tse, if there are adequate oversight mechanisms put in place.

My amendments go directly to the point that we do not want Bill C-55 to be struck down by a future court because we failed to put in place the adequate oversight provisions and because we failed to get the balance just right, based on the advice of the Supreme Court.

I am just going to take a moment to go back to the ways in which the Supreme Court of Canada's decisions around these matters have evolved in very recent years. It was not long ago that our major authority, the precedent from the Supreme Court of Canada that governed in this area, was a 1990 case, R v. Duarte, in which Mr. Justice La Forest found that:

as a general proposition, surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under section 8 of the Charter.

It takes quite a bit of evolution within court decisions to ask how we justify sections 183 and 184 of the Criminal Code in allowing the state, without access to a warrant or even judicial review of any kind, to go forward and wiretap private communications.

That process is now settled in a new precedent of the Supreme Court of Canada in R v. Tse, in which the court ruled in the majority that yes, in these exigent circumstances, where, for instance, there is a kidnapping or another criminal event where a life is at stake and there legitimately is not time to get to a judge for a warrant, it is now going to be acceptable under the charter.

What is not acceptable under the charter is when these powers are not adequately supervised. I think that needs to be a foundational point that is stressed here. These are intrusions into the private lives of Canadians that in any other circumstance would be viewed as charter violations. This House must craft, very carefully, that rare exception when we are going to let the state intrude on our personal communications.

I am troubled, sometimes, when I hear the comment: “Why would we worry if people want to wiretap criminals? The only people who would be worried about that would be people who have something to hide”.

We need in this country to constantly remind ourselves why we prize the Charter of Rights and Freedoms, and before the Charter of Rights and Freedoms why western democracies, the British Empire, our common law, and centuries of practice and respect for the rule of law recognized that the state has no business knocking down a person's door. It is literally pushing through doors and breaking into houses and invading our privacy, which in an electronic era includes wiretapping.

We have to remind ourselves why civil liberties matter. We have to remind ourselves of this fairly constantly, because in not just this instance but in other laws passed through this place, we are seeing an erosion of our respect for the idea of civil liberties through resort to such rhetoric as “Well, only criminals need to worry” and “We shouldn't be so worried about criminals as we should be about victims.” A victim of an injustice of the state invading our civil liberties is no less a victim than the person mugged on the street. We need to pay attention to civil liberties. That is why I am putting forward my amendments.

The court ruled very clearly in R. v. Tse that the failure of the current Criminal Code provisions was a failure to have adequate accountability measures. The court did not set out what the accountability measures should look like with any degree of specificity, so Bill C-55 attempts to, and does, put forward accountability measures; however, will they pass the charter test in a future Supreme Court case? My submission to the House—and I urge other members to vote with me—is that we make the bill much safer and more secure against being struck down later by improving the accountability measures.

The amendments I put forward would ensure, for instance, that the intercepted communications would require an Attorney General report, which would include records of all those wiretaps for which no charges were ever laid and would require the police officer in question to memorialize the reasonable grounds he or she had at the time for seeking warrantless wiretap evidence. We would record and report as much information as possible to ensure that the oversight statutory process in Bill C-55 would meet any future charter challenge.

My amendments are based on recommendations primarily from three groups that testified before the Standing Committee on Justice and Human Rights: the Canadian Bar Association, the British Columbia Civil Liberties Association and the Criminal Lawyers' Association. Those three bodies recommended, in the language I have used, the amendments I am putting forward today.

They strive to ensure that there be a requirement to publicly report the numbers of persons whose communications were intercepted but who were not subsequently charged. They include a requirement for the police officer's justification for the interception to be recorded and memorialized and would also ensure that if subsequent judicial authorizations were obtained on the same grounds as for the interception under section 184.4 of the Criminal Code, evidence obtained by a further section 184.4 interception may be ruled inadmissible.

The other piece I want to mention briefly is something that was not part of the res judicata of R. v. Tse but that was certainly significant obiter dicta, and that was the court's concern that the definition of “peace officer” was overly broad. I cite the decision of the court on this matter, and there was not a dissent. At paragraph 57 of R. v. Tse, the court noted it would agree that:

We, too, have reservations about the wide range of people who, by virtue of the broad definition of “peace officer”, can invoke extraordinary measures permitted under s. 184.4. That provision may be constitutionally vulnerable for that reason.

I am not saying that the Minister of Justice has not taken account of this obiter dicta. The revised Bill C-55 no longer uses the term “peace officer”. The revised Bill C-55, in clause 2, changes the term “peace officer”, which was overly broad and could include anything from mayors and reeves and so on, to “police officer”, but then in the definition adds an element of overly broad definition by saying:

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

I remain concerned despite the quite interesting testimony, and I thank the justice critic for the official opposition, who pursued this point with the Minister of Justice. I am less sanguine about leaving in the term “or other person”, so one of my amendments would remove the term “or other person” to further clarify the act and ensure that it is not constitutionally vulnerable.

I will conclude by saying that my amendments are put forward in the interests of ensuring that Bill C-55 will survive any future charter challenge and I recommend them to my colleagues.

(The House resumed at 12 noon.)

The House proceeded to the consideration of Bill C-55, An Act to amend the Criminal Code, as reported (without amendment) from the committee.

Nuclear Terrorism Act

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

Mr. Speaker, first I would like to say that I will be sharing my time with the hon. member for Louis-Saint-Laurent.

It is my pleasure to rise today to speak on Bill S-9, Nuclear Terrorism Act.

Before I begin, I would like to sincerely thank my colleague, the hon. member for Gatineau, who is also the official opposition's justice critic. In my role as deputy critic, I have had the privilege of working with her. She is an extraordinary person and has done extraordinary work on this file, as well as on all the others she is responsible for. She is a true role model for hard work and I hope to emulate her.

Now, with regard to this bill, I agree that nuclear terrorism is a real threat to all countries, including Canada. It is important for us to consider it carefully and take the necessary measures. Thus, we are pleased to see the introduction of Bill S-9. I sat on the committee and I can say that, this time, we have been able to work with the government—I admit it—and with our Liberal colleagues.

Members of the official opposition have been able to work together to move the bill forward. When there are matters of importance to Canada, I think we can work together, and this is a fine example.

I would now like to speak more specifically about this bill. We must not forget that it leads to the eventual ratification of two international anti-terrorism treaties.

They are the 2008 Convention on the Physical Protection of Nuclear Material and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism. The latter defines the categories of nuclear terrorism offences and the procedures for bringing offenders to justice. The purpose of this bill is to incorporate all these provisions into Canadian law, so that the treaties can later be ratified. One of the problems is that Bill S-9 comes from the Senate.

It was strange to hear the Parliamentary Secretary to the Minister of National Defence ask his question and tell us that it is a priority for them, and so on. When we see that this comes from the Senate, we realize that it is not necessarily the government's top priority. We must keep in mind the dates of the treaties I mentioned: they date from 2005 and 1980 and came into force in 2007. There has been quite a delay in government action on this matter.

I will speak now about the bill's details: it is an attempt to eliminate legal loopholes when launching proceedings against those who commit acts related to nuclear terrorism. There is also an extraterritorial aspect to this bill, to extend the reach of Canadian law.

In the past, legal proceedings could fail because of a lack of legislation; this will solve that problem. Bill S-9 also provides for extradition in cases of nuclear terrorism, even where there are no bilateral treaties between countries, so that legal tools can have a longer reach.

Moreover, new Criminal Code offences are being created. It would be illegal to: possess, use or dispose of nuclear or radioactive material, or commit an act against a nuclear facility or its operations, with the intent to cause death; use or alter nuclear or radioactive material or a nuclear or radioactive device, or commit an act against a nuclear facility or its operations, with the intent to compel a person, government or organization; and commit an indictable offence under federal law for the purpose of obtaining nuclear or radioactive material or devices.

Because we are establishing certain international conventions to which Canada is a signatory, all hon. members will agree that this bill will update the Criminal Code and other Canadian legislation. That is why we agree with and support this bill. We have always supported it. When we hear members on the other side say that the official opposition does not work with them and does not move things forward, they really ought to look at the way this has worked.

This is an excellent example of something that should move forward.

Bill S-9 makes other changes to the legislation. Anyone who commits any of the new offences outside Canada can be prosecuted in Canada. This new provision will help ensure that we address the problem. As we have mentioned, nuclear terrorism poses a real threat, and we need to take the necessary steps in that regard. That is why we supported this bill and studied it extensively in committee. We asked some serious questions and obtained some good answers, particularly from people who work on nuclear issues at the Department of Justice. The examination was very interesting and informative.

Nevertheless, we have another criticism of this government. Since it said that this bill is important, and I myself have pointed out just how important it is, we have to wonder why it took so long for the government to introduce this legislation. The treaty was signed in 2005 and came into force in 2007, yet the government is only starting to talk about it now. It blames the opposition, as usual, but it is important to remember that this government has a majority and it controls the agenda. Since everyone agrees on this bill, it could even have introduced it when it had a minority. This file could have moved forward, and we could have resolved these issues. Unfortunately, this government has acted in bad faith.

In fact, when the Minister of Justice appeared in committee, he openly admitted that this was not a priority. Here is what the minister said:

On this particular legislation, this was part of the enumerated bills that I wanted to get to, but yes, most of the focus of the last year or two has been concentrating on cracking down on drug dealers and going after people in the child pornography business and people who sexually assault children. I know most of the efforts of this committee, and certainly of the government, were to push that, but this was always important to us. Again, because most of the activity was already criminalized, I wanted to get it through.

It is a priority, but if you're asking me what I've done with my time, my time has been pushing all the legislation that we have had.

Keep in mind that Bill C-30 made us waste a lot of time. The government had to backtrack so much that the bill was poorly done and was inconsistent with the intent. The government is not moving in the right direction and is not putting its priorities in the right place. We suffered because of that yesterday in the meeting of the Standing Committee on Justice and Human Rights. We had to whip through Bill C-55 without really being able to take the time to study it. We knew that we had a deadline because of the Supreme Court decision.

The government is not managing its time well. It improvises by introducing bills that, like Bill C-30, are purely ideological, have no legal basis and waste our time. Meanwhile, we have other bills waiting for us. We could tackle nuclear terrorism, but the government refused in order to move other bills forward, bills that ended up being called into question. The government realized its mistake and backtracked.

What does the NDP want? We are committed to multilateral diplomacy and international co-operation especially in areas of great concern, like nuclear terrorism.

We need to work together with other leading countries that are moving toward ratifying these conventions. Canada has agreed to be legally bound by these conventions, so it is important to fulfill our international obligations. Unfortunately, it took a long time for the government to act on this. Therefore, we must seriously address the issue of nuclear security and comply with our international obligations in order to better co-operate with other countries on countering nuclear terrorism.

Many issues have been put forward, and we would have liked to take action. Once again, the government took its time.

This is what Sabine Nolke, the director general of Non-Proliferation and Security Threat Reduction at Foreign Affairs and International Trade Canada, said:

Furthering nuclear security, enhancing the physical protection of facilities, installing radiation detection equipment, especially at border crossings, reducing the use of weapons-usable materials, is one of the key tools to prevent these materials from falling into the wrong hands.

Those are all things we should act on.

Fortunately, Canada did sign these treaties, but the government once again took too long to update Canadian legislation to include all these offences. It is difficult to understand why the government held back a file that all parties agreed on.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, our focus as a government is on an agenda that puts at the forefront job creation, economic growth and long-term prosperity, with a very clear focus on making our streets and communities safer. With regard to that clear agenda, we have several items to propose for the time ahead.

Today we will continue the third reading debate on Bill S-9, the nuclear terrorism act. That is a cornerstone in making our communities safer. After that, we will return to second reading debate on Bill S-12, the incorporation by reference in regulations act.

Tomorrow we will finish the second reading debate on Bill C-48, the technical tax amendments act, 2012, again resulting in a more stable and secure economy.

After we return from our constituency week on Monday, March 18, the House will consider Bill C-55, the response to the Supreme Court of Canada decision in R. v. Tse act, at report stage and third reading now that it has been reported back from committee. This is an important justice measure. I must remind the House that this legislation responds to a Supreme Court decision that takes effect over the Easter adjournment, so it is very important that we be able to pass it here and get it to the Senate for it to deal with before that time.

Once the House deals with Bill C-55, it could then consider Bills S-9 and S-12, if they are still held up in the House; Bill C-15, the Strengthening Military Justice in the Defence of Canada Act, at report stage and third reading, since that bill has now been reported back from committee; and Bill S-7, the Combating Terrorism Act, at third reading.

All these bills are necessary and important for Canadians' safety.

Wednesday, March 20, shall be the seventh and final allotted day. As a result, the House will then consider the usual supply motions and appropriation bills that evening. We will give priority to debating Bills C-15 and S-12 on Thursday and Friday, March 21 and 22.

I hope that makes clear the agenda that the opposition House leader has apparently been unable to perceive of the government, our clear agenda of delivering on job creation, economic growth, long-term prosperity and safe and secure communities for all Canadians.

Justice and Human Rights

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 20th report of the Standing Committee on Justice and Human Rights in relation to Bill C-55, An Act to amend the Criminal Code. The committee has studied the bill and has decided to report the bill back to the House without amendment.

Mr. Speaker, while I am on my feet, I move:

That the House do now proceed to the orders of the day.

[Raji Mangat]

I think the bill does respond to the specific criticism that the Supreme Court set out in its decision. The Supreme Court provided Parliament with some minimum guidance on how to make the provision constitutional.

I think it's up to this committee and to Parliament more generally to seek to make the legislation as clear as possible. I take your point that there are many aspects to Bill C-55 that narrow the scope of the use of this warrantless wiretap provision, and that now there will be notice provided and there is a reporting requirement. These are all things that the BCCLA is very happy to see in this bill.

Our concern is that in those cases where someone is not tried and not brought to court to face charges but has been intercepted, we would like to see some guidance for the police about what would be an appropriate amount of time. We don't know how often and for how long people have been intercepted using this provision because, as you know, there was no reporting requirement before now. We do know about one case.

[Françoise Boivin, NDP, Gatineau, QC]

My next question is for Madam Mangat.

Thank you very much for your patience. It is one of those crazy days here on the Hill, and we have to finish the study of Bill C-55 today.

I understand the points you are making about warrantless interceptions under section 184.4. However, we can see Bill C-55 as a response to the Supreme Court decision in R. v. Tse.. The Supreme Court's main difficulty was the following:

Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will be unable to challenge police use of this power. There is no other measure in the Code to ensure specific oversight of the use of s. 184.4. In its present form, the provision fails to meet the minimum constitutional standards of s. 8 of the Charter.

Bill C-55 expressly provides that people be informed that they have been the object of surveillance or that their conversations have been intercepted. Perhaps all the problems surrounding interceptions and electronic surveillance will not be solved. Let us focus on Bill C-55. Does it not address the problem raised by the Supreme Court in that respect?

We have to keep in mind that it deals with very specific cases. According to the wording, conditions must be met.

“A police officer may intercept, by means of any”—whatever means—“(a) the urgency...”. They'll have to prove it at some point in time in court if somebody is sued: (a) the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained

The officer must prove that he could not obtain the so-called authorization and that:(b) the interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property; and (c) either the originator

There are some boundaries. Am I correct in saying so? The person will be notified also, so if at some point in time they think it was

…counter to their fundamental rights under the Charter, there could be challenges.

Does the bill not expressly address the Supreme Court's concerns and its request for a correction?

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

For Mr. Spratt I have just one quick question, which I asked you off the record, but I want your answer on the record, because we will be addressing an amendment, and I don't know yet whether it's going to be deemed receivable or not, to modify the text to read “to prevent an unlawful act that would cause”. It would go back to “unlawful act” instead of “infraction”, as it is now called.

I would like your view quickly on this matter. Is that amendment not broadening things for the state a bit more? Would it not be better to have it a bit more restrictive, as it is written right now in Bill C-55?

[Raji Mangat]

Thank you.

Good afternoon. My name is Raji Mangat. I'm counsel at the B.C. Civil Liberties Association. The BCCLA is a non-partisan, non-profit organization based in Vancouver. I am pleased to be here today to speak with you about Bill C-55. Thank you for this opportunity. The BCCLA supports the committee's work in carefully and narrowly framing the process for the use of these exceptional powers being discussed today, and we agree with many of the amendments.

Subject to the concerns raised by Mr. Spratt in his presentation, the BCCLA is pleased to see that Bill C-55 will limit the use of section 184.4 to police officers. This is in our view a sensible and necessary amendment that supports the rationale behind the provision, to provide a means by which law enforcement can prevent serious and imminent harm on an urgent basis.

On that note, the BCCLA is also 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 addition of a notice requirement to individuals who have been subjected to warrrantless wiretapping brings section 184.4 in line with other provisions in the Criminal Code. The notice requirement provides transparency and serves as an essential check on this extraordinary power to intercept communications without judicial authorization.

The reporting requirement in Bill C-55 is also a welcome amendment, as it will enhance police accountability. Together, the notice and reporting requirements bolster accountability and oversight in the use of warrantless wiretapping, and the BCCLA supports amendments to gather more data.

I appear before you today, however, to alert you to an inadvertent oversight in the amendment that might have unintended consequences. The absence of clear timelines for the use of warrantless wiretaps suggests that there is a genuine risk we may see this provision used to undermine the normal wiretap regime. As the committee's intention with these amendments is to provide the police with a stopgap measure by which to prevent serious harm in urgent circumstances and not to create an alternative to the normal wiretapping regime, it will be clear to the committee that the provision requires the inclusion of a maximum time limit for the duration of a warrantless wiretap.

Section 184.4 is unique. It is one of only two sections in the Criminal Code that permit interception of private communications without a specific time limit and without judicial authorization. The only other provision that allows for this, section 184.1, permits it only with a person's consent in order to prevent bodily harm to that person. So section 184.4 is truly exceptional. It allows for the interception of private communications without judicial authorization, at the sole discretion of officers, prior to any offence or unlawful act having been committed.

As it is currently drafted, Bill C-55 grants police officers a broad and invasive power to intercept personal private communications for an indeterminate period of time. Bill C-55 does not provide guidance to police officers about how long they are permitted to exercise this extraordinary power.

The type of emergency situation contemplated here, one that is so urgent that the police have no time to seek any other form of warranted interception, not even a telephone warrant under section 184.3, is one that will necessarily be brief. If it truly is to be used in exigent circumstances, then by nature its duration must be short. No time limit capping the use of section 184.4 means that the interception could be indefinite and still be perceived as lawful.

For there to exist a power to intercept that is supposed to be based on exigent circumstances but that provides no upper limit on how long that interception may continue would inadvertently undermine the normal wiretap regime already in place in the Criminal Code. A wiretap is by its nature indiscriminate. It captures all communications taking place on the tapped device, including all manner of private, personal, possibly even privileged, confidential communications; communications that may have no bearing on the serious harm that is sought to be prevented; communications with third parties who may have no knowledge of the offence that is possibly going to be committed. Yet these are people who retain a significant interest in their privacy being protected.

Interceptions under section 184.4 are preventive, and therefore in some manner they are also speculative. We must remember that they are being sought without judicial authorization and are intended to be used in the narrowest of circumstances when the police have to act immediately with no time to spare. They are the warrant equivalent of the police entering a home in hot pursuit. But unlike cases of hot pursuit, these cases display no inherent time limitation for the use of the wiretap, and they carry the risk of capturing all sorts of information that is highly personal and private.

A limit to the discretionary power conferred by section 184.4 is necessary to protect privacy rights. Clear wording providing a time limitation on the use of this provision is necessary to support the committee's vision of a carefully and narrowly crafted process for the use of these extraordinary powers. Other wiretap provisions in the code, such as subsection 184.3(6) and subsection 188(2), both of which require a prior judicial authorization, limit the interception to a maximum of 36 hours. In evidence at the lower court in R. v. Tse, the RCMP's “E” division was stated to have a policy whereby warrantless interception was limited to a 24-hour period.

A warrantless interception should be more limited than one in which there is a warrant and prior authorization must be sought. In cases in which there is no warrant, it is all the more imperative that the power not be exercised indefinitely. An inadvertent result of a lack of a time limit in the legislation is that it could result in the de facto operation of two parallel wiretap regimes, one in which prior judicial authorization is sought and one in which the need for a warrant is disposed of in urgent circumstances.

As the committee is aware, the Criminal Code already consists of a thorough regime governing the interception of private communications. A time limit to the use of the warrantless wiretap provision would make it clear that, after the urgent circumstances in which police officers are appropriately empowered to make use of this special power, they are required to revert to the normal regime concerning wiretaps for any continued interception.

The BCCLA urges the committee to explicitly adopt a 24-hour maximum time limit on the use of warrantless wiretaps, as this will support your efforts to craft legislation that appropriately empowers the police to use these powers only in the exigent circumstances within which their use is intended. That will sufficiently protect the privacy rights of Canadians.

Thank you for your time.