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.

(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.

Speaker's Ruling

[The Acting Speaker, Barry Devolin]

There are six motions in amendments standing on the notice paper for the report stage of Bill C-55. The Chair has been informed that Motion No. 2 will not be proceeded with. Motions Nos. 1 and 3 to 6 will be grouped for debate and voted upon according to the voting pattern available at the table.

I shall now propose Motions Nos. 1 and 3 to 6 to the House.

Motions in Amendment

[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.

[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]

Mr. Speaker, let me get to one point in the time I have for a question. It is related to the overly broad definition of “police officer or other person”.

The reason this issue was put forward by the Canadian Bar Association was actually to get it right. This is not to say that there are not other places in the Criminal Code where we find that definition, but in this specific instance, which is a quite extraordinary intrusion of the state into the personal lives of its citizens, it is trying to make it clear that not just anybody can do this, and that even within the police force, as the Canadian Bar Association letters to the committee pointed out, certainly “Special training and oversight are necessary for police officers who have such potentially intrusive power.”

It is basically suggesting that maybe it is not the cop on the beat who gets warrantless wiretap permission in exigent circumstances. Those same persons, by the way, should be capable of saving their notes from the case. Handwritten notes are all that are required to memorialize why they thought there were legitimate grounds to seek this extraordinary power of intruding into people's private lives.

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

Mr. Speaker, while many police officers may be qualified to seek the right to intercept private conversations, not all officers are designated to do this. As suggested by the hon. member, those who do go forth have specialized training to do these interceptions. There is a focus in the RCMP and other police forces to ensure that those who do intrude on the rights of individuals are specially trained. Of course, in exigent circumstances, to require additional delays that may put people's lives in danger is certainly not advisable.

We know that when these wiretaps are obtained in exigent circumstances, they act immediately; however, after the fact and as quickly as possible, that is usually followed by the police authorities seeking a judicial authorization. There is a temporary period when immediacy requires that they intercept, but it is usually followed, in most circumstances, with a requirement to get a judicial authorization warranting this intrusion.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I think one of the concerns expressed was on the timing of the legislation that the government brought forward.

When the Supreme Court made the decision back in April of last year, we knew we had one year to straighten up the legislation. It does not take 10 months to come up with the legislation. Why did it take the government so long to present it before the House? The delay ensured that we would have to provide fast passage, whereas there seemed to be significant interest in being able to have some dialogue, whether in committee or in further debate at second reading. It becomes a timing issue. Why did the government wait as long as it did to bring in the legislation?

The member would know that the Liberal Party is supporting the bill and its passage because we recognize the urgency, but why did it take so long for the government to bring it forward?

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

Mr. Speaker, there was a lot of due diligence done to determine exactly what should be done in amending the act and making it constitutional. We know the government always takes great measures to ensure the constitutionality of all its acts. Therefore, the time it took was attributable to the fact that we wanted to ensure all constitutional requirements were met and that we could make the best amendments possible to ensure we protect the rights of private citizens.

[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.

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

Mr. Speaker, I want to thank my colleague for her statement.

I read all of the testimony given in committee, and, as I said earlier when I addressed the House, the minister answered my colleague’s questions. Nevertheless, some serious questions remain concerning this bill.

Does my colleague agree with me that the changes brought about by today's amendments would improve the bill?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I will answer the question as follows.

When we looked at the definition of police officer or when we had queries about the contents of reports, we understood that much of this falls under provincial jurisdiction. Therefore, I think we have to focus on the answer to be given to the dictates from the Supreme Court of Canada.

This does not mean that we cannot study the other aspects in greater depth, but they give rise to other problems. I personally do not have a clear-cut answer as to whether using the amendment creates more problems than it solves. That is what was raised by this type of amendment.

Regarding the R. v. Tse case, it would be preferable to leave the text as it stands. Later on, other steps will perhaps have to be taken in terms of wiretapping or interception. However, on the basis of R. v. Tse, the response is more than appropriate.

There are still questions about closing the definition of “police officer”, as my colleague wants to do. Witnesses told us that this would cause some problems. In some places, the situation is perhaps not described in the same way, but there is already a clear picture of this other person who keeps the peace.

Regarding the fact that time is limited, I think that the government will have to take the blame, because it is the government that is pushing for this exercise to be carried out so quickly. That being said, the only question the House must ask is whether the response to the principle requested by the Supreme Court is appropriate. The answer is simply: yes. Unfortunately, what is left leads to too many other questions.

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

Mr. Speaker, I thank my colleague from Gatineau for her speech.

I would like to come back to the exceptional nature of Criminal Code section 184.4. She expressed her views on this issue very clearly. This is an important key to understanding the extent to which this section is limited in its scope.

Her speech made me think about how imminent the threat has to be to cause a police officer to use these section 184.4 provisions rather than the provisions of sections 186 or 188, for example, of the Criminal Code.

I would appreciate it if the member would go into a little more detail about this issue of imminent threat that could justify and support the fact that section 184.4 is simply being amended by replacing the term “peace officer” with “police officer”?

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, as I mentioned with regard to section 184.4, the imminent threat is not the only factor involved in making that interception; the peace officer must have reasonable grounds to believe it is impossible to obtain the consent of a justice of the peace. So there is a set of criteria.

Limiting access to section 184.4 to peace officers or police officers, within the obvious meaning of that term, was another way of shutting a door that could have been opened before the courts in future and on which the Supreme Court could have ruled.

Sometimes we get the impression the government does not really check its bills to ensure they comply with the charter. For once, however, and this is rare, we sense that the government has listened to the Supreme Court's decision here.

[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.

[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?