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.

[Michael Spratt, Member, Criminal Lawyers' Association]

Thank you very much.

My name is Michael Spratt. I am a criminal defence lawyer who practises here in Ottawa. I practise exclusively criminal defence work, and as such, I've done extensive work involving intercepted communications. I'm here representing the Criminal Lawyers' Association, or the CLA.

The Criminal Lawyers' Association is an association of criminal law professionals. The objective of our association is to educate, promote, and represent our members on issues relating to criminal and constitutional law in a manner that respects and emphasizes civil liberties.

It should be noted that the CLA was granted intervenor status in the case of R. v. Tse, the case that brings us here today. As part of our mandate, the CLA is routinely consulted by parliamentary committees such as this, and it's always a pleasure to appear before these committees.

I apologize for not having any detailed position in writing, but I'm happy to answer questions. I know it's a short time period for everyone to get up to speed on this.

I will start by saying that the CLA is in favour of this legislation. The CLA generally supports legislation that is modest, fair, and constitutional, and Bill C-55 does an admirable job of incorporating the comments of the Supreme Court of Canada from the case of R. v. Tse. However, there are some areas that the committee may wish to examine and may wish to have some further reflection upon.

The starting point from my submission relates to the tension between the need to respond in a timely manner to urgent and serious situations, to act quickly to avoid and prevent harm. And of course, that comes into conflict with the citizen's right to be private and avoid warrantless intrusions by the police into very private aspects of a citizen's life.

As Mr. Justice La Forest recognized in the case of Duarte that there is an immense danger that can be posed by electronic surveillance and the intrusion of the state into individual privacy. He described it as an insidious danger that is inherent in allowing the state in its unfettered discretion to record and transmit our words. Bill C-55 is a positive step forward in that it seeks to provide a better balance between the protection of the public and the protection of the public's privacy.

Now, most importantly from our perspective, Bill C-55 imports the notion and adds a notice provision into the existing legislation of section 184.4. The Supreme Court of Canada agreed with my organization's submissions at paragraph 83 of the case, in saying that, “After-the-fact notice should not be viewed as irrelevant or of little value for s. 8 purposes. In this regard, we agree with the observations of the intervener Criminal Lawyers’ Association.” I won't read it; everyone can read it. Following that pronouncement, our position is quoted by the court.

So the notice provision is a positive step that brings this provision into constitutional compliance as directed by the Supreme Court of Canada.

With respect, another positive feature of this bill is in respect to clause 3. The CLA supports the narrowing of the applicability of section 184.4 to those offences listed in section 183. That goes above and beyond what the Supreme Court said. They were able to leave it more broadly than that. Having said that, I can't really imagine any offences that wouldn't be captured in section 183 that would fall outside that section. Having said that, it's the CLA's position that legislation should be as modest and restrained as possible and the government should be commended for taking those steps.

I'll deal with clause 2, another positive aspect of this bill. This deals with the “peace officer” versus “police officer” distinction. Although that issue wasn't squarely before the Supreme Court, at paragraph 57, the court did express some reservations about the term “peace officer”. Of course, that's a very broad term. Now, clause 2 replaces “peace officer” with ”police officer”, and that amendment is laudable. However, there still is some room for concern and some room for refinement in that language when we see the language of “police officer” defined somewhat broadly meaning, “any officer, constable or other person employed for the preservation and maintenance of the public peace”.

That leaves open the possibility that this definition is overly broad, and that is important, given the exceptional nature of this section. It's a warrantless intercept of private communications, and the CLA submits that there should be no ambiguity over breadth and concerning who could use this section. There should be clarity.

This section, we submit, should provide a clearer definition, and that definition should be restricted to what we conventionally think of as publicly employed police officers. In addition, some consideration may be given to further restricting the use of what is a very exceptional power to supervising officers or high-ranking officers. That is seen in some other areas of the law, and it would provide some additional safeguards, while at the same time keeping alive the purpose of section 184.4.

Clause 5, the reporting clause, is also a very positive addition. The Supreme Court didn't strictly require this reporting to bring the section into constitutional compliance, but the Supreme Court did say very clearly that a reporting requirement such as the one found in section 195 can provide a measure of accountability. Of course, this is accountability to Parliament about how this power is being used and the ways and mechanisms through which it's being used by the police.

Although we support the importation of the section 195 reporting requirements, we submit that, given the distinction between section 184.4 and the other intercept provisions, something more than the section 195 requirement may be considered by this committee. The other sections that deal with intercepted communications deal with communications that are intercepted pursuant to judicial authorization. There has already been that level of oversight. Section 184.4 deals with the warrantless intercept of communications.

And so I would flag that importing the section 195 requirement doesn't recognize the distinction between judicially authorized intercepts and intercepts made under section 184.4. As I said, from a constitutional perspective, that may not be fatal to the bill, but from the perspective of a citizen who reads the report and the Parliament to which ultimately the police forces have to answer through the legislation, this would provide some good oversight, considering the very exceptional nature of this provision.

For example, clause 5 could be amended to ensure that Parliament is provided with clear information not just about the number of arrests or the number of prosecutions or the number of crimes that had been discovered by virtue of section 184.4; the reporting could include the number of times there were no arrests, the number of times there were no offences, and the reasons for section 184.4 urgency. Why was it urgent in those situations? What harm was sought to be prevented? Why could other sections not be used?

Strengthening the language with respect to reporting would provide more accountability, would provide more oversight, and ultimately would provide Parliament and Canadian citizens with the background statistics to evaluate how useful the section is, how much it is being used, information that's really required, when you're looking at balancing this exceptional intrusion into what otherwise wouldn't be lawful against the harm sought to be prevented through these very unusual and urgent situations.

Having said that, it's nice to appear before the committee. I'm often here saying that we disagree with legislation. It's nice to come and see that the legislation is something that we can support and that the Supreme Court of Canada's recommendations are being incorporated. It's unfortunate that it happened 20 years after it was passed, but I'm very happy to be here to say that in large part we support the legislation.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I call this meeting to order.

This is meeting number 63 of the Standing Committee on Justice and Human Rights, on Wednesday, March 6. Our orders of reference for today, from Monday, February 25, are the study of Bill C-55, An Act to amend the Criminal Code.

Mr. Goguen, I saw your hand.

[Mary Chaput]

Precisely.

They include things like the guaranteed income of about $40,000 per veteran and the permanent impairment allowance supplement of $1,000 per month for those who are very seriously injured and cannot secure gainful employment. Of course there's the disability award. The other feature of Bill C-55 was the option to secure or obtain the disability award in installments versus a lump sum. Then the final piece, a fourth piece, is the expansion of the VIP to a broader number of veterans and other recipients to ensure we work hard to keep those veterans, be they young or old, who wish to stay in their homes, in a position to do that. That would be a large component of the most recent increases.

The other increases you see in the estimates over time have to do with demographic shifts. As the numbers go up in certain areas of programming, as Charlotte said, earnings loss being one of them, the quasi- statutory increases are required to support that.

Further back in time there was what was known as the legacy of care. I'm going to let Charlotte comment on those elements.

[Françoise Boivin, NDP, Gatineau, QC]

You wanted to avoid loopholes under Bill C-55.

My understanding is that, as long as things were working with Bill C-30, you felt that the situation has been taken care of rather well. Once Bill C-30 was withdrawn, you had to find something else to respond to the court's concerns and to the fact that the court found some provisions unconstitutional. That seems very clear to me.

As for the R. v. Tse decision, we were told that it was completely contrary to the Charter, specifically to section 8. The minister considered that the interceptions had to be constitutionally compliant, that people had to be aware that a report had been prepared, and so on.

What type of legal test are you using to ensure that the drafts are consistent with the R. v. Tse decision?

[Karen Audcent]

The draft of Bill C-55comes from Bill C-30. Previously, it was Bill C-50 and at the outset, it was Bill C-31. The only change that we made to the content of Bill C-30 in order to incorporate it into Bill C-55 was to include the restriction for police officers. The Supreme Court had indicated that it would be a good idea to do so, and the government wanted to reflect that.

[Françoise Boivin, NDP, Gatineau, QC]

Okay, but I think you may have misunderstood my question.

Bill C-55 is a response to the R. v. Tse decision. The title of the bill says so. The government might have used Bill C-30 and Bill C-12. Actually, many bills along the way could have tried to address the gaps identified in the R. v. Tse decision.

The government announced that it would withdraw Bill C-30 on the same day that Bill C-55 was introduced. Bill C-55 was tabled by the minister in the House less than a month ago. I think it was on February 11, 2013. It was then sent to committee on February 25, which is also very recent.

As you were working on Bill C-30, Bill C-55 was not in the picture. Could you tell me when you started to work on the drafting of Bill C-55?

[Françoise Boivin, NDP, Gatineau, QC]

I never miss an opportunity like this. When we have such brilliant minds from the Department of Justice in our company, we must take advantage of their expertise, especially when we have to fast-track our study of a bill.

I still managed to take good notes when the minister was speaking. We are fully aware of the impact of the decision in R. v. Tse and what will happen on April 14 if Bill C-55 is not passed. That being said, I'd like to know how long you've been working on the bill.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Wilks.

I want to thank you, Minister, for joining us today and talking to us about Bill C-55. As you know, we will be studying it with witnesses on Wednesday for the first hour and maybe more, and then we will be going clause by clause. Thank you very much.

We will ask the officials if they would stay a few minutes in case people have questions. I'll suspend for 30 seconds while the minister leaves.

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

Thank you, Mr. Chair.

Minister, thank you for being here.

My first question is about Bill C-55 and Bill C-394. It is assumed they will soon receive royal assent. In that case, what amendments would be necessary to ensure they are consistent with the Criminal Code?

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you very much, Mr. Chair.

Thank you, Minister, for your presence here today.

Certainly I hope we can all support this particular bill. After reviewing some of the papers the Library of Parliament has done in terms of analysis, coupled with your testimony here today, I think it's very important that all parties support this.

We all know that law enforcement at times requires the ability to respond very quickly in situations where there are urgent circumstances.

Minister, you mentioned specifically kidnapping, hostage-taking, bomb threats. Those are just a few examples of where urgent actions are expected of the police to protect innocent victims and maintain safety.

A good example, Minister, from my home province of British Columbia is the kidnapping of 23-year-old Vancouver resident Graham McMynn in April of 2006. The prompt response by the Vancouver Police Department in using all the legal resources to safely return Mr. McMynn to his family serves as a reminder as to why useful amendments such as Bill C-55 are in order so that we can continue to protect the public.

This legislation responds directly to the guidance from the Supreme Court of Canada by adding new privacy safeguards of notification and reporting. You've alluded to it in your testimony and in a number of your comments to the committee, specifically section 184.4 of the Criminal Code.

Minister, is there anything in this bill that is not related to adding more safeguards—beyond the response to the Supreme Court?

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

Thank you.

Before this bill, there was Bill C-30. As my colleague mentioned, we are very glad that the government realized that a mistake had been made and took a step back. Now we have Bill C-55. And there were provisions from Bill C-12 that were supposed to apply. Is there any follow-through on that?

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

All the changes that are made in Bill C-55 really are just to strengthen the privacy components of the legislation, to come into compliance with the Supreme Court's—

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

And thank you, Minister, for appearing, and thank you to the witnesses.

It's pretty apparent that Bill C-55 seeks to right the judicial oversight and basically make the interception of private communications constitutionally valid. We know that in each instance there's a test that's done. You strive to make sure, of course, that all legislation is in keeping with the Constitution, and we thank you for that.

It's pretty apparent from our review of the cases that any interception of private communications would probably, prima facie, be a breach of the constitutional right against search and seizure. Minister, just generally, can you tell us what is the interception of private communications and why exactly is it needed in this society?

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Thank you, minister.

Obviously, we are all aware of the time limit, since the Supreme Court of Canada gave April 13 as the deadline in R. v. Tse. So we have between now and then to do something.

The government took another approach. With its introduction of Bill C-55, it announced the withdrawal of the much-criticized Bill C-30. The government dragged its feet for some months, so now we are forced to study an important bill post-haste. You said yourself that it concerns the “Invasion of Privacy” part of the Criminal Code. So we are very aware of the matter we are legislating.

That being said, I read Bill C-55. Although the Supreme Court did not make a determination regarding peace officers, police officers and so forth, I can somewhat appreciate that the government, in its wisdom, did not wait to establish definitions. However, the provision says the following:

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

I am always a bit averse to those kinds of catch-all expressions. I'd like you to tell us who exactly “other person employed for the preservation and maintenance of the public peace” refers to. Does it go as far as to include private security guards? Does it include individuals employed to enforce other federal laws such as the National Defence Act, the Immigration and Refugee Protection Act, and so on?

It might be advisable to define those things, because you may have opened the door to a complicated side issue, in your efforts to address the Supreme Court's ruling.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Thank you very much.

I'm pleased to be joined by Karen Audcent and Don Piragoff, both from the Department of Justice. They'll be glad to answer any questions that you may still have, if you have any, after my hour here.

Mr. Chairman, I'm pleased to be here to talk about Bill C-55, the response to the Supreme Court of Canada decision in R. v. Tse. The court's decision in the Tse case found that existing authority to wiretap without prior judicial authorization in exceptional circumstances was unconstitutional due to its lack of accountability safeguards.

The bill before you responds to this finding of unconstitutionality in section 184.4 of the Criminal Code by first adding the safeguard of after-the-fact notification to persons who have been intercepted; second, adding a requirement for public reporting on the use of this power; third, restricting the use of emergency wiretaps to cases of serious offences; and fourth, limiting the use of this power to police officers and to certain listed offences.

Under section 184.4 of the Criminal Code, the police can conduct a wiretap without prior judicial authorization only when the situation is too urgent to obtain a wiretap authorization; when the “interception is immediately necessary to prevent...harm to any person or to property”; and when the originator or recipient of the communication is the perpetrator of the harm or the victim or intended victim of the harm.

This means that police can only intercept communications between the perpetrator of the anticipated harm and the actual victim or intended victim of that harm. This imposes a strict limitation on whose communications can be intercepted and closes the door on the possibility of police intercepting the communications of an unlimited number of classes of persons.

Furthermore, there must be an immediate need to wiretap to prevent harm to a person or to property from occurring. This should provide you with a sense of how and when this section can be used; for example, in situations such as kidnappings and bomb threats.

Finally, the urgency of the situation must make it impossible for police to obtain an emergency wiretap authorization. To be clear, the Criminal Code has another provision that enables a rapid response designed for an emergency. Section 188 of the Criminal Code enables an abbreviated process for court authorization allowing 36 hours of wiretap. For police to avail themselves of the authority under section 184.4 of the Criminal Code, it must not be possible for them to seek court authority under either the principal and lengthier process for wiretap under section 186 or the expedited process for short-term wiretap authorizations in emergency situations under section 188 of the Criminal Code.

That said, the Supreme Court in the Tse case found that while there exists a justifiable constitutional imperative for the existence of such a wiretap power, section 184.4 of the Criminal Code as drafted is constitutionally deficient, despite the existing built-in safeguards that I've just described.

In its reasons, the Supreme Court found that the addition of after-the-fact notification to persons whose communications have been intercepted would make the provision constitutionally compliant.

That's what they told us: if you do this, it's constitutionally compliant. This bill, Bill C-55, proposes this requirement for the use of 184.4 of the Criminal Code by requiring that notice must be given to the person within 90 days of the wiretap, unless a court authorizes an extension.

The Supreme Court of Canada also commented on other issues for which the bill proposes some appropriate responses.

While the court held that the notification was the only amendment required for constitutional compliance, it expressed the view that reporting was a good idea from a policy perspective, and on that the government agrees.

This bill proposes, therefore, to add a reporting requirement to the use of section 184.4, which would mean that the reports prepared annually by the federal Minister of Public Safety and provincial attorneys general on the use of wiretaps would now include information on the use of section 184.4. This will enhance transparency and increase public knowledge and scrutiny of the use of this exceptional power.

The Supreme Court also considered restricting the use of this section to police officers instead of peace officers, as is currently provided in the Criminal Code. This could enhance charter compliance, though the court did not rule on this issue.

Again, the government takes that representation and that suggestion to heart, and the bill therefore proposes to restrict the availability of this section, from peace officers—a term that is defined rather broadly in section 2 of the Criminal Code—to “police officers”, which is a narrower class of individuals. For example, the narrower approach would exclude such individuals as mayors and reeves.

This bill also proposes to limit the use of section 184.4 to the offences listed in section 183 of the Criminal Code. Currently the section can be used for any unlawful act. That's what it says now.

Although limiting this power to offences listed in section 183 of the Criminal Code was commented upon, it was not required by the Supreme Court of Canada; nonetheless, Bill C-55's proposal in this regard would harmonize this section 184.4 and its use with other provisions in the Criminal Code related to wiretap that are already limited to section 183 offences. We are making it consistent with the other wiretap sections; the provisions under the Criminal Code would apply to this as well.

Harmonization with other wiretap provisions will also be achieved with the notification and reporting requirements that I have already mentioned, as these requirements already exist for some of the other provisions in the Criminal Code.

Finally I would note that the Supreme Court of Canada gave us until April 13, 2103, to amend section 184.4 to address this defect, and that time is swiftly approaching. This makes it imperative that we move as quickly as possible to enact this legislation, failing which, after April 13 police will no longer have the ability to use this section, which may compromise their ability to respond to high-risk situations and to protect Canadians.

When considering the reasons for the amendments in this bill, it may also be of use to consider the situations in which the bill or the section is likely to be used. Kidnapping is one example, as in the Tse case, in which a married couple and a friend were abducted from their home and held for ransom. Police relied on this section to respond quickly with a wiretap when family members were contacted by one of the abducted persons.

In another case, R. v. Riley, the police used section 184.4 of the Criminal Code during an investigation of murder through drive-by shootings in which the goal was to respond quickly to prevent additional murders.

These cases illustrate the importance of this particular section. In short, Bill C-55 is about ensuring that police have an important tool that they need to protect Canadians, while also ensuring that it is used in a way that shows the respect for privacy that Canadians can expect from their government.

I urge all members to support this.

Thank you very much.