Evidence of meeting #63 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was reporting.
A recording is available from Parliament.
Conservative
The Chair Conservative Mike Wallace
Ladies and gentlemen, I call this meeting to order.
This is meeting number 63 of the Standing Committee on Justice and Human Rights, on Wednesday, March 6. Our orders of reference for today, from Monday, February 25, are the study of Bill C-55, An Act to amend the Criminal Code.
Mr. Goguen, I saw your hand.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Mr. Chair, I have a motion to propose: that should our meeting not be completed by 17:30 hours, it be extended so as to complete review and clause-by-clause consideration on March 6, 2013.
Conservative
The Chair Conservative Mike Wallace
The motion is to extend the meeting for the length of the day until we finish clause-by-clause consideration.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Yes, until we complete the passage...[Inaudible—Editor]
Conservative
The Chair Conservative Mike Wallace
I did have two things.
One, I'll talk about the timing that we have now. We have until about 4:26, when the bells will start ringing again. We have a vote at 4:56. That vote will take 8 to 12 minutes. That will delay the 5:30 bell that would have happened for the regular voting, which we would have done, so we can come back then, for probably 45 minutes to an hour. Then, if we are not done, it would mean that after those votes, the four votes that we have tonight, we would come back here to finish the clause-by-clause.
There was a question asked, which I appreciate. I did double-check on whether or not I had the right answer, and I happen to have it. There is no deadline, like on a private member's bill, where if nothing happens to it automatically it gets reported back to the House the next day. That doesn't happen with government legislation.
As we know, there's a timeframe to this, so the issue is to try to finish this clause-by-clause today. It is possible that after the next break we will get it done today before we have to come back after votes, but that will be up to the committee.
Right now, we have one witness with us. The other witness, unfortunately, was told by—
Conservative
NDP
Françoise Boivin NDP Gatineau, QC
I'll comment very briefly because I most certainly want to hear our witness. I just want to say that we won't disagree with the motion, but I want to stress something again.
Forgive me if I am repeating myself, but it is the government that has imposed the very tight timeline on us, having introduced this bill in February. As a result, we have to do intellectual gymnastics and that is not always easy. This is a very important bill about a matter that has been the subject of a Supreme Court decision.
I wanted to point that out. Nevertheless, I am aware that, given our time constraints, we have to either do it or not. And if something is worth doing, it is worth doing well, as my mother would say.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Mr. Chair, in response, to accommodate the opposition, we propose not to ask any questions and to give them full rein in view of the circumstances.
Conservative
The Chair Conservative Mike Wallace
I appreciate that.
All in favour of the motion as presented?
(Motion agreed to)
That is carried, so we are going to proceed.
We have one witness with us. Mr. Michael Spratt is from the Criminal Lawyers' Association.
We did have another witness. The operator in British Columbia told the individual that we weren't meeting until 6:30, so they came and went. We're trying to get them back. We'll see what happens. We may not see them before the 4:26 bell, but maybe we will in the next section.
Mr. Spratt, the floor is yours. You have 10 minutes.
Michael Spratt Member, Criminal Lawyers' Association
Thank you very much.
My name is Michael Spratt. I am a criminal defence lawyer who practises here in Ottawa. I practise exclusively criminal defence work, and as such, I've done extensive work involving intercepted communications. I'm here representing the Criminal Lawyers' Association, or the CLA.
The Criminal Lawyers' Association is an association of criminal law professionals. The objective of our association is to educate, promote, and represent our members on issues relating to criminal and constitutional law in a manner that respects and emphasizes civil liberties.
It should be noted that the CLA was granted intervenor status in the case of R. v. Tse, the case that brings us here today. As part of our mandate, the CLA is routinely consulted by parliamentary committees such as this, and it's always a pleasure to appear before these committees.
I apologize for not having any detailed position in writing, but I'm happy to answer questions. I know it's a short time period for everyone to get up to speed on this.
I will start by saying that the CLA is in favour of this legislation. The CLA generally supports legislation that is modest, fair, and constitutional, and Bill C-55 does an admirable job of incorporating the comments of the Supreme Court of Canada from the case of R. v. Tse. However, there are some areas that the committee may wish to examine and may wish to have some further reflection upon.
The starting point from my submission relates to the tension between the need to respond in a timely manner to urgent and serious situations, to act quickly to avoid and prevent harm. And of course, that comes into conflict with the citizen's right to be private and avoid warrantless intrusions by the police into very private aspects of a citizen's life.
As Mr. Justice La Forest recognized in the case of Duarte that there is an immense danger that can be posed by electronic surveillance and the intrusion of the state into individual privacy. He described it as an insidious danger that is inherent in allowing the state in its unfettered discretion to record and transmit our words. Bill C-55 is a positive step forward in that it seeks to provide a better balance between the protection of the public and the protection of the public's privacy.
Now, most importantly from our perspective, Bill C-55 imports the notion and adds a notice provision into the existing legislation of section 184.4. The Supreme Court of Canada agreed with my organization's submissions at paragraph 83 of the case, in saying that, “After-the-fact notice should not be viewed as irrelevant or of little value for s. 8 purposes. In this regard, we agree with the observations of the intervener Criminal Lawyers’ Association.” I won't read it; everyone can read it. Following that pronouncement, our position is quoted by the court.
So the notice provision is a positive step that brings this provision into constitutional compliance as directed by the Supreme Court of Canada.
With respect, another positive feature of this bill is in respect to clause 3. The CLA supports the narrowing of the applicability of section 184.4 to those offences listed in section 183. That goes above and beyond what the Supreme Court said. They were able to leave it more broadly than that. Having said that, I can't really imagine any offences that wouldn't be captured in section 183 that would fall outside that section. Having said that, it's the CLA's position that legislation should be as modest and restrained as possible and the government should be commended for taking those steps.
I'll deal with clause 2, another positive aspect of this bill. This deals with the “peace officer” versus “police officer” distinction. Although that issue wasn't squarely before the Supreme Court, at paragraph 57, the court did express some reservations about the term “peace officer”. Of course, that's a very broad term. Now, clause 2 replaces “peace officer” with ”police officer”, and that amendment is laudable. However, there still is some room for concern and some room for refinement in that language when we see the language of “police officer” defined somewhat broadly meaning, “any officer, constable or other person employed for the preservation and maintenance of the public peace”.
That leaves open the possibility that this definition is overly broad, and that is important, given the exceptional nature of this section. It's a warrantless intercept of private communications, and the CLA submits that there should be no ambiguity over breadth and concerning who could use this section. There should be clarity.
This section, we submit, should provide a clearer definition, and that definition should be restricted to what we conventionally think of as publicly employed police officers. In addition, some consideration may be given to further restricting the use of what is a very exceptional power to supervising officers or high-ranking officers. That is seen in some other areas of the law, and it would provide some additional safeguards, while at the same time keeping alive the purpose of section 184.4.
Clause 5, the reporting clause, is also a very positive addition. The Supreme Court didn't strictly require this reporting to bring the section into constitutional compliance, but the Supreme Court did say very clearly that a reporting requirement such as the one found in section 195 can provide a measure of accountability. Of course, this is accountability to Parliament about how this power is being used and the ways and mechanisms through which it's being used by the police.
Although we support the importation of the section 195 reporting requirements, we submit that, given the distinction between section 184.4 and the other intercept provisions, something more than the section 195 requirement may be considered by this committee. The other sections that deal with intercepted communications deal with communications that are intercepted pursuant to judicial authorization. There has already been that level of oversight. Section 184.4 deals with the warrantless intercept of communications.
And so I would flag that importing the section 195 requirement doesn't recognize the distinction between judicially authorized intercepts and intercepts made under section 184.4. As I said, from a constitutional perspective, that may not be fatal to the bill, but from the perspective of a citizen who reads the report and the Parliament to which ultimately the police forces have to answer through the legislation, this would provide some good oversight, considering the very exceptional nature of this provision.
For example, clause 5 could be amended to ensure that Parliament is provided with clear information not just about the number of arrests or the number of prosecutions or the number of crimes that had been discovered by virtue of section 184.4; the reporting could include the number of times there were no arrests, the number of times there were no offences, and the reasons for section 184.4 urgency. Why was it urgent in those situations? What harm was sought to be prevented? Why could other sections not be used?
Strengthening the language with respect to reporting would provide more accountability, would provide more oversight, and ultimately would provide Parliament and Canadian citizens with the background statistics to evaluate how useful the section is, how much it is being used, information that's really required, when you're looking at balancing this exceptional intrusion into what otherwise wouldn't be lawful against the harm sought to be prevented through these very unusual and urgent situations.
Having said that, it's nice to appear before the committee. I'm often here saying that we disagree with legislation. It's nice to come and see that the legislation is something that we can support and that the Supreme Court of Canada's recommendations are being incorporated. It's unfortunate that it happened 20 years after it was passed, but I'm very happy to be here to say that in large part we support the legislation.
Conservative
The Chair Conservative Mike Wallace
Thank you, Mr. Spratt, for that presentation.
Madame Boivin from the NDP has questions.
NDP
Françoise Boivin NDP Gatineau, QC
Thank you.
Thank you for being here today, Mr. Spratt, especially in response to a last-minute request. Thanks also to your organization for being able to enlighten us.
I do not know if you have had the opportunity to read the Canadian Bar Association's brief, but a number of the elements you mentioned are very similar to what may be found in it. I have some questions for you, just to make sure that I have completely understood what you said.
Essentially, you are saying that a few small questions remain about the narrower definition of “police officer”, though the court did not express an opinion about it. The wording does not clearly state that it could not apply to certain persons. I do not know if you have had the opportunity to see the testimony of the minister and of the Department of Justice officials, but they mentioned that it does not apply to security guards, for example. The fact remains that there may be a need to restrict the definition.
Would you see a major problem if it were accepted as is? As a defence lawyer, do you think that accepting the definition as is would mean that you might end up in court defending cases where the definition is claimed by someone who is not a police officer in the sense of a person employed by the State to keep the public peace?
Member, Criminal Lawyers' Association
It took 20 years, from 1993 until the Supreme Court rendered its decision last year, for the constitutional problems inherent in this section as it was to come before the courts. In 20 more years, I don't know whether I will be practising criminal law; maybe I'll be relaxing on a beach somewhere. But when you're dealing with legislation directed at situations that arise very rarely but for which it is very important that they play out fully in court and that the matters proceed to conclusion, if they reach the court stage, it would be our position that you would want to have the legislation as narrowly defined and as specific as possible so as to eliminate the very problem that arose in the Tse case, in which you have very serious crimes that make their way to the court but don't necessarily go to completion because there is an ambiguity in the section.
Certainly, if a situation arose in which we have a “person employed for the preservation and maintenance of the public peace”, that more expansive definition, who isn't necessarily a police officer, or a constable, or a sergeant, or an RCMP officer, it would create problems. Practically speaking, I don't think it is likely to arise, but one would think you would want to have the legislation as clear as possible.
I doubt you would get the constables walking the beat on the street to apply and use this provision. They would probably need, just organizationally, to get approval for the resources and go up through the chain of command. But having said that, why wouldn't you incorporate that into the legislation to have it be a check and balance?
NDP
Françoise Boivin NDP Gatineau, QC
On section 195, the reporting....
I asked the minister and the Department of Justice officials this specific question, because it seemed to me there is a shortcoming in the area of reporting of interceptions under section 184.4. It seems to imply that charges absolutely have to be laid for a report to be required. Section 195 can be interpreted that way. So I just want to be sure that I understand your suggestion.
The Canadian Bar Association suggests adding a requirement to publicly report on “the number of persons whose communications were intercepted under section 184.4, but not subsequently charged with any offence”. In the best of all worlds, you are suggesting adding even more information so that the context in which the surveillance was done can be seen. But according to the answers we received from the people I asked, those cases are already going to have to be reported, if you look at the way in which section 195 is written.
Do you understand it like that or do you have any concerns?
Member, Criminal Lawyers' Association
I do have some concerns. In subclause 5(3), proposed subsection195( 2.1) requires in its paragraph (a) a reporting of the number of interceptions made; then you have a proposed paragraph after that requiring a reporting of the number of people against whom proceedings were commenced. Now, it's possible, I guess, to tease out from that information, if you have the number of people who are charged and the number of interceptions made, one would think you can do some simple subtraction, to find out that if ten interceptions were made and we have seven cases that were proceeded with, three therefore were not proceeded with.
Unfortunately, if you look through the reports that have already been generated under section 195, you actually can't do that, because from one interception you might have multiple proceedings and you might have multiple people charged. The numbers don't stack up that well, when you look at it.
For example in 2011, under the reporting clause for paragraphs 195(2)(a) and 195(2)(b), we can see that a total of 116 authorizations were made under that section. Then, if you flip to the reporting for paragraph 195(2)(d), the number of persons identified, we actually have 146, which is more than the number of authorizations made. So the math doesn't work out that well, when you look at the reports, which is why I would submit and the CLA submits that especially when you're dealing with this very.... It's going to be used rarely, but it's going to be used in important cases, in serious cases, and it's not judicially authorized. It's a larger intrusion on privacy, for which we would prefer to see a better and a clearer breakdown of the statistics, so that the public and Parliament can see whether this power is being used, how effective it is, and whether there need to be changes, and really to provide that information in a better form than what is already provided in section 195, which deals with those authorizations that have already had a level of supervision through judicial authorization.
NDP
Françoise Boivin NDP Gatineau, QC
Does it, in your view, have an impact directly on the accused, or is it more that it's construed for Parliament to be aware of what is being done? Does it worry you that it has an impact upon the accused?
Member, Criminal Lawyers' Association
Well, practically this section isn't required for constitutionality; it was discussed a little bit in some of the cases that the Supreme Court did an analysis of.
Frankly, with these types of orders.... For the last wiretap case I did, the authorizations were from 2006. If the report were never done, I don't know whether there would really be a remedy for an accused, since it's not strictly required in order to make the section constitutional. But in our submission, it is required in order to have a properly informed public and some oversight of some very extraordinary police powers.
Conservative
The Chair Conservative Mike Wallace
Okay, thank you.
We're going to go now to Mr. Scarpaleggia to ask questions.
I'm sorry, I pronounced that name wrong. I married an Italian; I should be able to do it.
Conservative
The Chair Conservative Mike Wallace
If the bells go, we'll let you finish your question period.
Mr. Spratt has offered to stick around, and after we come back—I don't know how long he'll stick around—there may be some more questions.
I'm not sure whether you can hear us from British Columbia, but thank you for coming back. There will be another bell, another vote, but we will get back to you. So don't go anywhere.
Raji Mangat Counsel, British Columbia Civil Liberties Association
I will not. I will stay right here.
