Justice Committee on March 6th, 2013

[Françoise Boivin, NDP, Gatineau, QC]

My next question is for Madam Mangat.

Thank you very much for your patience. It is one of those crazy days here on the Hill, and we have to finish the study of Bill C-55 today.

I understand the points you are making about warrantless interceptions under section 184.4. However, we can see Bill C-55 as a response to the Supreme Court decision in R. v. Tse.. The Supreme Court's main difficulty was the following:

Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will 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 s. 184.4. In its present form, the provision fails to meet the minimum constitutional standards of s. 8 of the Charter.

Bill C-55 expressly provides that people be informed that they have been the object of surveillance or that their conversations have been intercepted. Perhaps all the problems surrounding interceptions and electronic surveillance will not be solved. Let us focus on Bill C-55. Does it not address the problem raised by the Supreme Court in that respect?

We have to keep in mind that it deals with very specific cases. According to the wording, conditions must be met.

“A police officer may intercept, by means of any”—whatever means—“(a) the urgency...”. They'll have to prove it at some point in time in court if somebody is sued: (a) the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained

The officer must prove that he could not obtain the so-called authorization and that:(b) the interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property; and (c) either the originator

There are some boundaries. Am I correct in saying so? The person will be notified also, so if at some point in time they think it was

…counter to their fundamental rights under the Charter, there could be challenges.

Does the bill not expressly address the Supreme Court's concerns and its request for a correction?

[Raji Mangat]

I think the bill does respond to the specific criticism that the Supreme Court set out in its decision. The Supreme Court provided Parliament with some minimum guidance on how to make the provision constitutional.

I think it's up to this committee and to Parliament more generally to seek to make the legislation as clear as possible. I take your point that there are many aspects to Bill C-55 that narrow the scope of the use of this warrantless wiretap provision, and that now there will be notice provided and there is a reporting requirement. These are all things that the BCCLA is very happy to see in this bill.

Our concern is that in those cases where someone is not tried and not brought to court to face charges but has been intercepted, we would like to see some guidance for the police about what would be an appropriate amount of time. We don't know how often and for how long people have been intercepted using this provision because, as you know, there was no reporting requirement before now. We do know about one case.

[Françoise Boivin, NDP, Gatineau, QC]

Do you agree that they will have to be made aware even though they would not be filing charges? Is that your understanding of the bill?

[Raji Mangat]

Yes.

[Françoise Boivin, NDP, Gatineau, QC]

So at some point in time if somebody knows that they were never criminally charged or anything, aren't you satisfied that the person could go against the state at that point in time or the police force would have done so, to try to have their rights—

[Raji Mangat]

I am satisfied that there now is going to be notice to people within a 90-day period from the day on which they were intercepted, but for me, the question isn't, are people then going to be able to get involved in a possibly lengthy legal process to vindicate their rights that were violated at the outset 90 days ago.

I would like to also call your attention to a case from Ontario, R. v. Riley in which the section 184.4 wiretap lasted for four days. Is four days going to be considered a reasonable amount of time to intercept somebody's communications without a warrant? I would think not.

It seems that a 24-hour period kind of already comports with what at least one RCMP detachment has used as their policy, so we don't think that this is an unreasonable amount of time, or that this wouldn't be enough time, and—

[Françoise Boivin, NDP, Gatineau, QC]

Authorization—

[Raji Mangat]

—certainly if the police—

[Françoise Boivin, NDP, Gatineau, QC]

To get the authorization—

[Raji Mangat]

Pardon me?

[Françoise Boivin, NDP, Gatineau, QC]

To get validated by a court.

[Raji Mangat]

Absolutely.

[Françoise Boivin, NDP, Gatineau, QC]

Have you done a study to see if it varies? I'm from a city, so I cannot foresee not being able to get an authorization at any point in time. There are judges of the peace who can always authorize it. So I don't see the implication of proposed section 184.4 as....

Maybe in a very remote area, where maybe there's a

itinerant judge—I think that is what they are called…

it might be a bit more difficult.

So you're talking 24 hours. It might be more complicated somewhere than 24 hours.

[Raji Mangat]

Right, and I take your point. I also live in an urban area, and it's almost inconceivable that the police wouldn't be able to get somebody on a phone and authorize a telewarrant.

The Supreme Court did say, in the decision in Tse, that in those circumstances there may not be a need for any affidavit to be filed, that this can be done viva voce, through conversation with the officer.

In my view, if you create a limit of 24 hours and then allow the police to go ahead and seek authorization if they think there is imminent harm and they're going to need to intercept for longer, then you bring this extraordinary power back into the normal wiretap regime that we've had in the Criminal Code for a long time and that is being used across the country seemingly quite well.

My concern is to try to bring this into the regular regime as soon as possible and provide some guidance to officers so that they know this is the upper limit on how long this type of interception can occur.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

[The Chair, Conservative, Mike Wallace]

Are there any other questions for our witness?

Seeing none, I want to thank our witnesses for coming today. We apologize for the interruptions that you had to endure. We thank you for your input.

We will be dealing with this bill later this evening, after another set of votes which will be coming in a few minutes. There are some amendments that are coming forward. We will finish it this evening and then report it back to the House likely tomorrow.

Thank you very much for your patience. Thank you for your input. We appreciate your time today.

[Raji Mangat]

Thank you.

[The Chair, Conservative, Mike Wallace]

We'll now suspend.

[The Chair, Conservative, Mike Wallace]

Let me call this meeting back to order. I want to thank everyone for this elongated meeting we're having today. Hopefully this shouldn't take too long.

Thank you to our senior officials from the Department of Justice, who have joined us today, and are here to answer any questions you may have.

Accordingly, we'll go to the clause-by-clause. As per Standing Order 75(1), consideration of clause 1, the short title, is postponed, and it's my responsibility to begin the clause-by-clause with clause 2.

(Clause 2 agreed to)

(On clause 3)

We have two amendments, both from the Liberal Party.

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

I won't be moving them forward.

[The Chair, Conservative, Mike Wallace]

You're not moving them forward? Okay.

(Clauses 3 and 4 agreed to)

(On clause 5)

We have a Liberal amendment on clause 5 and it is in order.

Would you like to move that?

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

I would, simply to follow up on a point I raised with the witness, Mr. Spratt. I asked him if it would be useful to require that the reports to Parliament include some additional information, namely the number of interceptions made, including by province and by each law enforcement agency. So all I'm attempting to do here is to make the reports a little more detailed.

[The Chair, Conservative, Mike Wallace]

Mr. Scarpaleggia, thank you for that.

We have questioners.

Madame Boivin, you have a question on the amendment.

[Françoise Boivin, NDP, Gatineau, QC]

I would like to make a comment on the amendment being moved by my colleague Mr. Scarpaleggia. He wants to add the words ”the number of interceptions made, including the number of interceptions made in each province and by each law enforcement agency that employs a police officer who made an interception”. For me, that is not clear. How is it going to make the bill clearer and better? I have not heard any witnesses talk about this. I have some concern that, if we pass an amendment that is not altogether clear, we could be opening a door.

Perhaps the officials from the department could guide us a little here. Each word is important, especially in this section, and I am not sure that it is clear. How will it go over with the provinces? Does Mr. Scarpaleggia have any information about how it will work with the provinces? Those are my questions. I am just not clear about this.

In addition, this bill is coming to us at the last minute because the government has been dragging its feet. I am not sure this is worth the trouble. It is your amendment, but I am still going to ask the officials from the department.

[The Chair, Conservative, Mike Wallace]

Is the question to the mover or to the staff who are here?