Justice Committee on March 6th, 2013

[The Chair, Conservative, Mike Wallace]

We'll get back to you.

Sir.

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

I'd like to go back to the part of the bill that restricts the application of section 184.4 to offences in section 183. I take your point that probably any offence that it is worth doing a wiretap with respect to would fall under that list of offences in section 183. What sticks in my mind is the part of the court judgment that says it's really not necessary to tighten the application of section 184.4 to section 183 offences, that things are okay the way they are.

If it weren't the Supreme Court saying this, I would subscribe readily to your position on the matter. But I'm trying to work it through. You have the court saying don't worry about it; then the government says let's make it narrower. You're supporting that position, so I wonder whether you could expand on it.

[Michael Spratt]

Ultimately, the discretion about how broad and narrow the Supreme Court seems to be saying is within the purview of Parliament. We're supportive of Parliament taking a narrow and focused, and as least over broad definition as possible when it comes to criminal law.

I don't think, for all practical purposes, it makes very much of a difference. If the law was left more broadly, as the Supreme Court says it could be, I quite frankly don't think it's going to make that much of a difference.

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

You can't foresee any harmful offences that wouldn't fall under section 183. Does nothing come to mind for you?

[Michael Spratt]

Nothing comes to mind. In the wiretap cases that I've dealt with, all have been offences listed under section 183. I can't look back and put another hat on. I can't put a prosecutor's hat on or a police officer's hat on and say that if only we had had wiretaps for these other offences, things would have been different. I can't see that. It's for that reason that I welcome the restrictive nature of that section.

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

In terms of the definition of—

[The Chair, Conservative, Mike Wallace]

I'm sorry to intervene, but the bells are ringing so we'll put you up first when we come back.

Can you stick around for half an hour or so?

[Michael Spratt]

I'll stay to answer, for sure.

[The Chair, Conservative, Mike Wallace]

Okay, thank you very much.

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

We may not get a chance to come back, Chair, until after....

[The Chair, Conservative, Mike Wallace]

The 5:30 bell should be delayed.

Committee members, the worst case scenario is that if we're not able to get back because of votes, we will come back after the votes that happen this evening. We'll understand if both our guests are not here for that.

I will let the clerk know what is happening so he can inform you. We're sorry about this, but the bells are ringing and we are required at the House.

We will suspend and we'll be back as quickly as we can.

[The Chair, Conservative, Mike Wallace]

I call the meeting back to order.

Mr. Scarpaleggia, the time is yours still for questioning our witness from the Criminal Lawyers' Association.

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

I don't have much more to ask of the witness. But we will be presenting an amendment on the reporting to Parliament aspect. We think it might be a good idea to require that the report state the total number of interceptions by province and by police force, simply to give more information and to see over time whether one part of the country or one police force is using this section 184.4 provision more than others. I wouldn't pre-judge what the conclusions would be when looking at that kind of data, but we thought that more data couldn't do any harm.

I wonder what your reaction to that might be.

[Michael Spratt]

We're in agreement with that. The more data that citizens and Parliament have the better when evaluating extraordinary provisions such as this, especially if you turn your attention to the previous reports prepared under that section and look at the difficulty and the work required to parse the information in that data and have it in a manageable and useful form for the citizens and Parliament. More information is welcome, and the clarity of that report, although it's not constitutionally mandated by the Supreme Court, is of course always of interest when evaluating extraordinary provisions such as this one.

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

My last question is on the notion of circumscribing the definition of the police officer empowered, in this case, to use section 184.4, so as to limit the definition to supervisors. I don't know this part of the criminal justice system and how it works. In actual fact, you are saying a supervisor would have to become involved anyway under pretty much any circumstance.

Is it possible that in a very small number of cases this requirement could slow things down? Some have suggested that in using section 184.4, there should be a little more paperwork for the purposes of record-keeping and therefore to be able to see after the fact whether everything was properly done or was justifiable.

The court suggested, if I'm not mistaken, that it wasn't a good idea to force too much record-keeping on the police officer while he or she is implementing section 184.4, because that just slows things down, and the purpose of the section is to act quickly in exigent circumstances.

I'm wondering whether it's possible that in some cases, restricting the definition to “supervisor” could be problematic and could slow things down.

I don't know how the police work, in actual fact. I imagine all police officers, not only supervisors, are trained in wiretapping techniques. Anyway, I thought maybe you could comment on this.

[Michael Spratt]

I've never been a member of a police force and I can't speak to institutional policies. It would perhaps be useful for the committee to have information about how these things are normally done. But from the cases I've seen, and from my view of the legislation, which is very extraordinary legislation, the additional oversight of specifying that a supervisor or senior officer is the one to make the decisions, for all practical purposes, that is probably what's going to happen. However, an amendment of that nature would not, at least from my read and my view of the police force, unduly lengthen or hamper the process or undercut the goals of section 184.4.

We see this in other areas of criminal law in which certain officers are designated as operators of breathalyzer machines and intoxalyzers. When dealing with extraordinary powers like this, that additional level of oversight may provide some assurances that it's being used properly and appropriately.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

I'm going to go to our next presenter so that we can get that presentation on the record, if that's okay.

[Françoise Boivin, NDP, Gatineau, QC]

I was going to ask him something. It would take two seconds.

[The Chair, Conservative, Mike Wallace]

Well, he's willing to stay.

[Françoise Boivin, NDP, Gatineau, QC]

Oh, he wanted to stay. Excellent.

[The Chair, Conservative, Mike Wallace]

Yes, he'll stay for a few more minutes.

We're going to excuse the witnesses when the bells ring the next time, and then we'll be done with the witnesses.

Let's call on our witness from British Columbia Civil Liberties Association, Ms. Mangat.

Welcome, and thank you very much for your patience. The floor is yours.

[Raji Mangat]

Thank you.

Good afternoon. My name is Raji Mangat. I'm counsel at the B.C. Civil Liberties Association. The BCCLA is a non-partisan, non-profit organization based in Vancouver. I am pleased to be here today to speak with you about Bill C-55. Thank you for this opportunity. The BCCLA supports the committee's work in carefully and narrowly framing the process for the use of these exceptional powers being discussed today, and we agree with many of the amendments.

Subject to the concerns raised by Mr. Spratt in his presentation, the BCCLA is pleased to see that Bill C-55 will limit the use of section 184.4 to police officers. This is in our view a sensible and necessary amendment that supports the rationale behind the provision, to provide a means by which law enforcement can prevent serious and imminent harm on an urgent basis.

On that note, the BCCLA is also pleased that Bill C-55 limits the application of warrantless wiretapping to circumstances in which the goal is to prevent the commission of an offence. The addition of a notice requirement to individuals who have been subjected to warrrantless wiretapping brings section 184.4 in line with other provisions in the Criminal Code. The notice requirement provides transparency and serves as an essential check on this extraordinary power to intercept communications without judicial authorization.

The reporting requirement in Bill C-55 is also a welcome amendment, as it will enhance police accountability. Together, the notice and reporting requirements bolster accountability and oversight in the use of warrantless wiretapping, and the BCCLA supports amendments to gather more data.

I appear before you today, however, to alert you to an inadvertent oversight in the amendment that might have unintended consequences. The absence of clear timelines for the use of warrantless wiretaps suggests that there is a genuine risk we may see this provision used to undermine the normal wiretap regime. As the committee's intention with these amendments is to provide the police with a stopgap measure by which to prevent serious harm in urgent circumstances and not to create an alternative to the normal wiretapping regime, it will be clear to the committee that the provision requires the inclusion of a maximum time limit for the duration of a warrantless wiretap.

Section 184.4 is unique. It is one of only two sections in the Criminal Code that permit interception of private communications without a specific time limit and without judicial authorization. The only other provision that allows for this, section 184.1, permits it only with a person's consent in order to prevent bodily harm to that person. So section 184.4 is truly exceptional. It allows for the interception of private communications without judicial authorization, at the sole discretion of officers, prior to any offence or unlawful act having been committed.

As it is currently drafted, Bill C-55 grants police officers a broad and invasive power to intercept personal private communications for an indeterminate period of time. Bill C-55 does not provide guidance to police officers about how long they are permitted to exercise this extraordinary power.

The type of emergency situation contemplated here, one that is so urgent that the police have no time to seek any other form of warranted interception, not even a telephone warrant under section 184.3, is one that will necessarily be brief. If it truly is to be used in exigent circumstances, then by nature its duration must be short. No time limit capping the use of section 184.4 means that the interception could be indefinite and still be perceived as lawful.

For there to exist a power to intercept that is supposed to be based on exigent circumstances but that provides no upper limit on how long that interception may continue would inadvertently undermine the normal wiretap regime already in place in the Criminal Code. A wiretap is by its nature indiscriminate. It captures all communications taking place on the tapped device, including all manner of private, personal, possibly even privileged, confidential communications; communications that may have no bearing on the serious harm that is sought to be prevented; communications with third parties who may have no knowledge of the offence that is possibly going to be committed. Yet these are people who retain a significant interest in their privacy being protected.

Interceptions under section 184.4 are preventive, and therefore in some manner they are also speculative. We must remember that they are being sought without judicial authorization and are intended to be used in the narrowest of circumstances when the police have to act immediately with no time to spare. They are the warrant equivalent of the police entering a home in hot pursuit. But unlike cases of hot pursuit, these cases display no inherent time limitation for the use of the wiretap, and they carry the risk of capturing all sorts of information that is highly personal and private.

A limit to the discretionary power conferred by section 184.4 is necessary to protect privacy rights. Clear wording providing a time limitation on the use of this provision is necessary to support the committee's vision of a carefully and narrowly crafted process for the use of these extraordinary powers. Other wiretap provisions in the code, such as subsection 184.3(6) and subsection 188(2), both of which require a prior judicial authorization, limit the interception to a maximum of 36 hours. In evidence at the lower court in R. v. Tse, the RCMP's “E” division was stated to have a policy whereby warrantless interception was limited to a 24-hour period.

A warrantless interception should be more limited than one in which there is a warrant and prior authorization must be sought. In cases in which there is no warrant, it is all the more imperative that the power not be exercised indefinitely. An inadvertent result of a lack of a time limit in the legislation is that it could result in the de facto operation of two parallel wiretap regimes, one in which prior judicial authorization is sought and one in which the need for a warrant is disposed of in urgent circumstances.

As the committee is aware, the Criminal Code already consists of a thorough regime governing the interception of private communications. A time limit to the use of the warrantless wiretap provision would make it clear that, after the urgent circumstances in which police officers are appropriately empowered to make use of this special power, they are required to revert to the normal regime concerning wiretaps for any continued interception.

The BCCLA urges the committee to explicitly adopt a 24-hour maximum time limit on the use of warrantless wiretaps, as this will support your efforts to craft legislation that appropriately empowers the police to use these powers only in the exigent circumstances within which their use is intended. That will sufficiently protect the privacy rights of Canadians.

Thank you for your time.

[The Chair, Conservative, Mike Wallace]

Thank you very much for your presentation.

We will now go to questions. Madame Boivin, you are first to ask questions of either of our guests.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

For Mr. Spratt I have just one quick question, which I asked you off the record, but I want your answer on the record, because we will be addressing an amendment, and I don't know yet whether it's going to be deemed receivable or not, to modify the text to read “to prevent an unlawful act that would cause”. It would go back to “unlawful act” instead of “infraction”, as it is now called.

I would like your view quickly on this matter. Is that amendment not broadening things for the state a bit more? Would it not be better to have it a bit more restrictive, as it is written right now in Bill C-55?

[Michael Spratt]

Yes, I definitely prefer the language as it is now; it's more restrictive. It's the CLA's position that any legislation, especially criminal legislation, should be as narrowly defined and restrictive as is possible to address the ills it seeks to prevent. Again, I am quite pleased to be here today supporting that section of the bill as put forward.