Justice Committee on March 4th, 2013

[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?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, we're told—and this is consistent with what we know about law enforcement—that this is a necessary part of dealing with some of the emergency situations that law enforcement agents come across. Mr. Wilks and others would be able to tell you instances where information of this type becomes very, very important.

I indicated to you from the Tse case and the other case that we face situations where people's lives are in immediate danger. These are the innocent individuals, the victims. So it's absolutely vital that there be authority within the Criminal Code to allow officers to go and intercept this kind of information for the safety and the well-being of those individuals.

There's been a considerable history over the last 40 years with respect to this whole area of wiretapping. I believe that in the nineties, Mr. Piragoff, you were there and having a look at a number of these provisions, basically updating them from the 1970s to be consistent with what was happening with changes in technology and to what law officers were facing.

It's absolutely vital that there be something like this available. If somebody's life is in immediate danger, for instance—and that's just one example—you've got to have the ability to intercept. However, there have to be safeguards on that. As you quite correctly pointed out, people have a right to privacy and to know that their communications are kept private. This is why we have gone, in this particular section, beyond what the Supreme Court of Canada required. We've built in other safeguards and clarified when and where and how this authority can be used.

But again, there are the three sections: the regular section of the Criminal Code with respect to wiretaps; the emergency section; and this section, that third category where they immediately must have information. Again, what we're doing is consistent with what the courts and law enforcement must have, and victims must have if they ever find themselves in a position like this.

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

Thank you, Minister.

The courts seem to do a balancing act between protecting the rights of the individuals against intrusion of their private rights, intercepting their private communications and, of course, protecting the public. Of course, there's that intrusion into their civil rights.

What about the situation of imminent harm? Does the right of the individual give way to the right of the state to intervene to protect them? Why is it necessary to amend the Criminal Code to allow wiretapping in situations of imminent harm?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, it's always a balancing act that Parliament and the courts have in balancing the rights of individuals with respect to privacy and their right to live freely and without fear of harm. I outlined a couple of situations, and you may hear from whatever witnesses you have here, where police come across a situation where somebody, for instance, is in imminent harm or a serious crime is about to be committed. If they intercept that and get information on it, they may be able to intervene and protect the individuals or property subject to imminent threat.

One of the interesting things about the Supreme Court of Canada decision in R. v. Tse, when you have a look at it carefully, is that the courts agree and understand that on occasion this type of power has to be available to police officers. What they have said is, “Yes, we understand it; that part of it is okay but you have to do something beyond that to ensure that this is not abused. It's important that there be some clarification and some accountability with respect to this”. So what we're doing here is basically bringing this into line with the other provisions of the Criminal Code with respect to reporting, and narrowing the group of individuals to whom this applies. Again, that's what you will see when you have a look at this: yes, we're complying, but we go a bit beyond that as well. I think that's important.

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

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

We'll now go to the Liberal Party.

Mr. Scarpaleggia.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you.

Welcome, Minister, Mr. Piragoff, and Madame Audcent.

I'm curious about this. Private communication now captures much more than people talking on the phone, I would think?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

It would capture e-mail and everything else?

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's right.

And conversations within a room, for instance.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Right. Okay.

You answered the question from Madam Boivin about the definition of police officer. Obviously, they are only recognized officers from recognized police forces, municipal, provincial, RCMP, and so on and so forth. Is what you're saying very clear?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think so.

I think what we did is to just more carefully define exactly who it is that we're talking about, even with respect to limiting this section to section 183 of the Criminal Code. If you ever look at the Supreme Court of Canada, they're saying this may be a good idea. The present provisions of the Criminal Code under section 184.4 apply to any unlawful act, so we're restricting that to section 183. I think providing some clarification and making it a little more definite is a step in the right direction.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

You'll excuse me if this question is simplistic, but I'm not a lawyer, so you'll have to bear with me.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We won't hold that against you—

[Some hon. members]

Oh, oh!

[Rob Nicholson, Conservative, Niagara Falls, ON]

—and I would object to anybody who did.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

It's really for my own edification because under the definition of police officer, it doesn't say a certified officer employed by a municipal force, a provincial force, or the RCMP. It says, “constable or other person employed for the preservation and maintenance of the public peace.”

There's no danger that this could be interpreted to mean the private security guard employed by a municipality to patrol the streets at night because they're not getting sufficient, regular police force coverage, which we see in communities across the country?

[Rob Nicholson, Conservative, Niagara Falls, ON]

One of the good things about the use of that term is that it has already been interpreted a number of times by the court—

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Yes.

[Rob Nicholson, Conservative, Niagara Falls, ON]

—so it does not apply to those individuals.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Perfect.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You'll see that the definition is also defined in other sections of the Criminal Code so they have a pretty good idea of exactly who is and who is not a police officer.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Yes, I learned something, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Good.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's part of my legal education.

In terms of applying section 184.4 to section 183, I understand that you want to make it consistent with the way the other sections, 186 and 188, function, but here, if you read the Supreme Court judgment in Tse, it says:

The list of offences in s. 183 is itself very broad; however, Parliament chose to focus upon an unlawful act that would cause serious harm. We see no reason to interfere with that choice.

I don't understand why we have to make it consistent with sections 186 and 188 when the purpose of section 184, it seems to me, as a layperson, is different from that of sections 186 and 188.