Justice Committee on March 4th, 2013

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's a very interesting point you're making. It seems to me that if we are intercepting somebody's communication without prior judicial authorization, there should be a very strong onus on the individuals doing that to ensure that it is appropriate. I actually like the idea of defining exactly which offences this applies to, that it's not just to any unlawful act, which could be very broad.

Again, we went beyond what the Supreme Court said. We said we're restricting it to section 183. As you can see, these are very serious crimes, for the most part, and they're all spelled out. I think it's a better way of doing that. We didn't have to change the definition from “peace officer” to “police officer”, but when you are doing something like this, I think it is important to be as specific and as definite as possible.

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

Okay. You would think the Supreme Court would want to tighten it as much as possible, but they said, “We see no reason to interfere with that choice.”

Anyway, I'm not going to belabour the point.

Those are the only questions I have.

[The Chair, Conservative, Mike Wallace]

Thank you for your questions, Mr. Scarpaleggia.

Our next questioner is from the Conservative Party.

Mr. Armstrong.

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

Thank you, Mr. Chair.

Minister, thank you for being here.

I have a couple of quick questions about process.

We talked about three different components to the Criminal Code. We have sections 184.4, 186, and 188. Could you discuss the difference between sections 186 and 188? Section 188 is a more speedy way to get a wiretap—and other methods used by the police force. But what's the difference between these two, and why is section 184.4 needed as well?

[Rob Nicholson, Conservative, Niagara Falls, ON]

We're talking basically about three different situations.

In ordinary circumstances, you would make an application for a wiretap. It would be under section 186. For part of an investigation, for instance, of organized crime, the information would be presented and there would be a judicial determination of whether this is reasonable, under what circumstances, what the parameters are, who, how, and where. This can be a considerable, lengthy, well thought out process. That is the usual process.

You could have a situation where they need a wiretap and they don't have that opportunity, because of the urgency of it, to make that formal application to the court. That provides, among other things, that you could pick up a phone and get a law officer, somebody who is authorized to do this, to provide this, to give you the okay over the phone if you have to have that. That's the second one, and I call it the emergency wiretap provision. That's section 188 of the Criminal Code.

Section 184.4 takes that emergency one step further, that there is a possible imminent harm to people or property, that there isn't time, even, to start phoning somebody and explaining, and making that type of an application. You have to have the information right now.

I mentioned the Riley case and the Tse case. They had to have that information immediately to do their best to protect the individuals, and there really wasn't time to do anything else.

So you have the three categories. For the most part, it's the regular wiretap under section 186. Again, you make the application, but depending on the urgency.... What we are doing with section 184 is basically bringing it in line with the other two sections, so that there is accountability and judicial involvement with this. That's what we're doing under this particular section. I think it complements those other two sections here that I just described.

[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—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Right. We are complying with the requirements of the Supreme Court of Canada. As I pointed out to your colleagues across the aisle, we've gone beyond that. We're limiting it to a certain number of offences, the section 183 offences, changing the definition of “peace officer” to “police officer”, and extending the notification. We've gone beyond just provincial attorneys general. Let the federal Minister of Public Safety table that report as well.

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

Are you confident that the bill the way it's written can be applied to future technologies? Is it broad enough? We're tightening up the privacy concerns but can we also adapt to future technology?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it is broad enough to include, as Mr. Piragoff pointed out to me, two people in a room or whether, as you know, they've now gone beyond telephones in communicating. I believe it is broad enough. That's one of the things we have to do with the legislation. I've been before this committee many times. We have to make sure that it's up to date and covers what's taking place out there. It can't be drawn so narrowly that it doesn't capture where technology and the criminal element may go. They don't wait. They're not confined by present-day technology. They're always looking for other ways to accomplish their ends.

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

Thank you, Minister.

That's my last question.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Armstrong.

Thank you, Minister.

We have Mr. Mai from the New Democratic Party.

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

Thank you, Mr. Chair.

Minister, thank you for being here today.

I'd like to pick up on what Ms. Boivin was talking about, with respect to the recommendations made by the Canadian Bar Association. Specifically, I'd like to discuss the recommendation on the reporting. In its current form, the bill stipulates that individuals who were subject to an interception be notified only in situations where a charge is laid and the case goes to court.

The Canadian Bar Association wondered why it did not go further, for the sake of transparency, and include cases that had not resulted in an arrest or a charge.

[Rob Nicholson, Conservative, Niagara Falls, ON]

The notice is given to anyone who is the object of this interception. It's not dependent upon whether any charges are laid or not. You're entitled to notification.

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

I'd just like a clarification.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Okay.

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

Section 195(1) concerns reporting. Paragraph 195(1)(c) reads as follows:

interceptions made under section 184.4 in the immediately preceding year if the interceptions relate to an offence for which proceedings may be commenced by the Attorney General of Canada.

This pertains to reports prepared after the end of each year.

[Rob Nicholson, Conservative, Niagara Falls, ON]

At this point, we're paralleling the reporting requirements that already exist within the Criminal Code with respect to section 86 and section 188. Indeed, we're actually going beyond that in having the Minister of Public Safety table reports with respect to section 184. This is a considerable step forward in providing the appropriate safeguards.

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

The question is—

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's a point made in my discussions with Mr. Piragoff. This is in direct response to the Tse decision. It's not intended, as I indicated when I introduced the bill, to be a complete overhaul or an examination of this particular area. It responds specifically to the Supreme Court of Canada decision. It goes beyond the safeguards required in that particular decision. It is what it is. It doesn't hit everything.

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

Still, the Canadian Bar Association has concerns about it, and we have raised them as well.

Let's go back to the offences identified in section 183 of the Criminal Code. You said there were only a few. They apply when a wiretap is being sought. But section 183 contains a four- or five-page-long list that includes deceptive telemarketing and forgery. Are those really emergencies? Emergency cases appear in section 183, but when you look at the whole section, you see that a large chunk of the cases are pretty broad. I mentioned just a few, but I could go into more detail.

Don't you think the list should be more specific, to prevent abuse?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, as I say, the existing law says that it be applied to any unlawful act so we have restricted it, but the other provisions with respect to the imminent harm that comes to property or individuals kick in. It's not absolutely critical exactly what the offence is other than the harm that is feared by the police officers. That's what it is.

I think it's appropriate, as was discussed in the case, to limit it to the list of offences in section 183, but again the other provisions for this section to kick in have to be there. Those elements have to be there for this to apply.

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

Very well.

And as for the use—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Do you know what I'm saying, Mr. Mai? It's not just a question of somebody stealing a car. It's a question that if you want to have a wiretap or something, what is also part of that making it necessary to have an emergency wiretap? That's what it is.

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

How much time do I have?

[The Chair, Conservative, Mike Wallace]

I'll give you another minute.