Justice Committee on March 4th, 2013

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, let me call to order meeting number 62 of the Standing Committee on Justice and Human Rights, this Monday, March 4.

What I'd like to do before we start with Bill C-55, pursuant to the order of reference before us, is to deal with the fifth report of the subcommittee on agenda and procedure. It actually talks about our having this meeting today, so I think it's only appropriate that we pass this first before we start the meeting, if that's okay.

[Françoise Boivin, NDP, Gatineau, QC]

Actually, I was also going to say that it was really well-placed because we might have a better idea at the end of how it's.... Maybe the clerk will tell us how many witnesses—

[The Chair, Conservative, Mike Wallace]

I can tell you that right now. What is happening today, once we call the minister to the meeting, is the following. We've had no witnesses requested by either the Conservatives or the Liberals, and five witnesses requested by the New Democratic Party. Of the five witnesses, two have confirmed and one is highly likely to. They will appear on Wednesday for the first hour.

[Françoise Boivin, NDP, Gatineau, QC]

Excellent.

[The Chair, Conservative, Mike Wallace]

If we need a little more than an hour, as this is only a seven-clause bill, we will then go to clause by clause. We'll deal with the bill then, and we'll be here on Thursday to present it back to the House.

We're waiting to hear from one more witness. Two of the NDP requests have declined.

[Françoise Boivin, NDP, Gatineau, QC]

We were aware that it was short notice. It's not so much that they didn't want to come and talk about the bill, but that the time constraint has been the major problem. So I understand that.

You say that two people will probably be there on Wednesday. Is L'Association du Barreau canadien one of them? They just filed their report. That's one extra. It should be okay, then.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

With that, I'll take a motion to accept our fifth report.

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

So moved.

[The Chair, Conservative, Mike Wallace]

All those in favour?

(Motion agreed to)

Thank you very much.

According to order of reference of Monday, February 25, 2013, we're looking at Bill C-55, An Act to amend the Criminal Code.

We have the pleasure of hearing from the Honourable Rob Nicholson, the Minister of Justice and Attorney General, who is here for the first hour to talk to us about this bill. He's accompanied by a number of senior staff members, who are also willing to stay into the second hour if we have questions for them specifically.

With that, I'll turn the floor over to you, Mr. Minister.

[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.

[The Chair, Conservative, Mike Wallace]

Thank you, Minister.

The first questioner is from the New Democratic Party.

Madame Boivin.

[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, Niagara Falls, ON]

Thank you very much.

I agree with you about better defining exactly who should exercise these powers.

The term “peace officer” is certainly an older term. If you were to go back and look at the history, many times the mayor was called upon to exercise a certain responsibility when there was some type of uprising or riot.

There is a definition in the Criminal Code that defines who a peace officer is. It would include public officials such as mayor, reeve, sheriff, deputy sheriff, sheriff’s officer, justice of the peace, members of Correctional Services, any permanent employee of a prison or a penitentiary, officers under the Customs Act and the Excise Act, and officers under the Immigration and Refugee Protection Act. In addition, a fishery guardian is included as a peace officer under the Fisheries Act. The pilot on an aircraft is—

[Françoise Boivin, NDP, Gatineau, QC]

I'm well aware of this, Minister. So thank God that you are not going with that definition of agent de la paix.

[Rob Nicholson, Conservative, Niagara Falls, ON]

No, that's what I'm saying.

[Françoise Boivin, NDP, Gatineau, QC]

But when we talk about

“other person”, I'd prefer to look at your new definition. Does it go as far as to include security guards?

[Rob Nicholson, Conservative, Niagara Falls, ON]

No.

[Françoise Boivin, NDP, Gatineau, QC]

Very well. Good.

[Rob Nicholson, Conservative, Niagara Falls, ON]

No. It's not security guards, mall cops, or commissionaires. It's Sûreté du Québec, Ontario Provincial Police, RCMP, and municipal law enforcement agents.

[Françoise Boivin, NDP, Gatineau, QC]

Perfect.

The other part of the legislation I question a bit—I'm not sure of the answer yet—is this.

You talk about granting extensions for up to three years at a time. But this section pertains to emergencies. I'm having a bit of trouble understanding why these extensions would be granted. They seem a bit long to me. I'm trying to wrap my head around the logic behind this new provision.

[Rob Nicholson, Conservative, Niagara Falls, ON]

This is very specific. What would happen immediately after this type of wiretap taking place is that you would make application under the other two sections here. Both have complete judicial oversight. All the oversight, the requirements that are involved with the other two sections, are the ones that would kick in. This is for an immediate response to a difficult—

[Françoise Boivin, NDP, Gatineau, QC]

Okay.

My last question for you is this.

The Canadian Bar Association submitted quite an interesting brief, in which it recommends a few amendments. For example, they recommend that “the exceptional discretion to initiate section 184.4 interceptions be limited to a class of designated superior officers”. That seems to be fairly well-covered in the new legislative enactment. The CBA also recommends that “a requirement be added to publicly report the number of persons whose communications were intercepted under section 184.4 but not subsequently charged with any offence”. The CBA goes on to propose that “a police officer's justification of section 184.4 interception be recorded or memorialized”. Lastly, the CBA recommends that “if subsequent judicial authorizations are obtained on the same grounds as a section 184.4 interception, evidence obtained by the section 184.4 interception may be ruled inadmissible”.

I'd like to discuss the recommendation to “publicly report the number of persons whose communications were intercepted under section 184.4 but not subsequently charged with any offence”. Would you object to amending the provision in that regard, to stipulate that the report provided to Parliament annually pertain to everything? A simple yes or no would do. I'd be perfectly fine with that.

[The Chair, Conservative, Mike Wallace]

Minister, are you able to answer that question?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you, Madame Boivin.

We're making the reports consistent with what already takes place with provincial attorneys general. They report now on the other two provisions in the Criminal Code with respect to wiretaps, and what we're doing now is making this consistent with that, with the additional safeguard and requirement of the federal Minister of Public Safety.

Again, this bill is straightforward. As I say, it goes beyond the safeguards that are required by the Supreme Court of Canada to bring it into line with the Constitution. We've taken it, as you pointed out quite correctly, a couple of more steps. We have put that in there.

But, again, this will be consistent with provincial attorneys general and I think these are considerable steps forward.

[The Chair, Conservative, Mike Wallace]

Thank you, Minister.

Thank you, Madame Boivin.

Our next questioner, from the Conservative Party, is Monsieur Goguen.