moved that Bill C-55, An Act to amend the Criminal Code, be read the second time and referred to a committee.
Mr. Speaker, I am pleased to rise to speak to Bill C-55, a response to the Supreme Court of Canada's decision in the R. v. Tse case. This important piece of legislation would ensure constitutional compliance of section 184.4 of the Criminal Code.
The bill we debate today is the government's response to the April 2012 Supreme Court of Canada's decision in the matter of Her Majesty the Queen and Tse.
In this case, the Supreme Court held that section 184.4 of the Criminal Code is conceptually sound but that it is constitutionally invalid in its current form because it does not provide for an after-the-fact notification requirement to persons whose private communications were the object of a wiretap interception pursuant to section 184.4.
The court suspended its finding of constitutional invalidity until April 13, 2013, to provide Parliament with time to remedy the defect of this provision, failing which section 184.4 of the Criminal Code would no longer be available to law enforcement agents. With the introduction of the bill, I hope that its provisions will receive the widespread support of all parliamentarians so that we can move forward with this essential investigative tool.
Before members consider the specific amendments proposed by the bill, I think it would be helpful for them to know the facts of the R. v. Tse case, because they illustrate how important section 184.4 is in practice, and more importantly, they show how critical it is that the police continue to have access to such an essential power in situations where every minute counts.
In the case I refer to, three persons were kidnapped one night in 2006. When the daughter of one of the alleged kidnapping victims began receiving calls from her father stating that he was being held for ransom, the police used the power provided to them under section 184.4 of the Criminal Code to carry out interceptions of the communications without prior judicial authorization. It had become clear to them that the victims were at serious risk of being harmed and that a wiretap was the way to assist in providing critical information about the situation at hand.
Since lives were at risk, the police could not afford to lose time by following the regular process and preparing all of the paperwork required to obtain a regular wiretap judicial authorization beforehand. Neither could they, given the imminent danger involved, obtain an emergency wiretap under section 188 of the Criminal Code. Section 188, which does allow for a more streamlined process to obtain a temporary judicial authorization to intercept private communications, still requires some paperwork and the availability of a designated peace officer and a specially designated superior court judge.
In the Tse case, the police determined that there was no time to go through either the regular elaborate wiretap process or the so-called emergency process to obtain the authorization to intercept the private communications. Accordingly, they relied on section 184.4 of the Criminal Code to perform wiretap interceptions without a judicial authorization.
When the case went to trial, the accused argued that section 184.4 was unconstitutional because it did not offer the usual privacy protections that are provided when a full-blown wiretap authorization is issued by a judge, which is the mechanism that police usually rely on to intercept private communications.
The judge found that in the circumstances at hand, the use of a wiretap without a judicial authorization could be justified; the court also held, however, that more safeguards should be built into section 184.4 to ensure that this exceptional power was used appropriately.
The trial court was particularly concerned about the lack of any requirement for officers to, first, give notice to those persons whose communications had been intercepted and, second, to report their use of section 184.4 of the Criminal Code.
As a result, the trial judge in British Columbia declared the provision unconstitutional and gave Parliament a deadline to remedy the constitutional shortcomings. Since then, trial-level courts in Quebec and Ontario have made similar rulings.
The Crown appealed the declaration of unconstitutionality in R. v. Tse directly to the Supreme Court of Canada which, as I mentioned earlier, confirmed the constitutional invalidity of section 184.4 but suspended the effect of that declaration until April 13, 2013.
The Supreme Court of Canada also provided some helpful direction with respect to privacy safeguards that could be added by Parliament to improve the provision.
Bill C-55 therefore proposes to amend section 184.4 of the Criminal Code so that it remains available in life-threatening situations while offering appropriate privacy protections.
It is critical for members to also understand that section 184.4 does not exist in a vacuum. It is part of a broader spectrum of wiretap powers provided for in the Criminal Code.
Part VI of the Criminal Code was created nearly 40 years ago, in 1974. Entitled “Invasion of Privacy”, part VI criminalizes the wilful interception of private communications, subject only to a few exceptions. Part VI contains numerous privacy protections and stringent tests to ensure an appropriate balance between investigative needs in pursuit of criminal justice and the privacy of Canadians.
The provisions contained in part VI of the Criminal Code have evolved from the two originally enacted types of authorizations—regular and emergency wiretaps, sections 186 and 188 respectively—to the five provisions for wiretaps that we have today.
These five different types of wiretaps form a spectrum of police interception powers that range from a high level of judicial oversight for the purpose of obtaining evidence of a crime, which could be described as investigative wiretaps, to no judicial oversight when the purpose is to prevent an imminent harm, or what could be described as preventive wiretaps. Section 184.4 of the Criminal Code falls into that latter category.
Section 184.4, the preventive wiretap, allows peace officers to intercept private communications without any judicial authorization in situations of imminent harm. It is designed to be used in order to prevent an unlawful act which a police officer believes on reasonable grounds would cause serious harm to a person or property.
The peace officer also has to believe, on reasonable grounds, that the person whose communications are to be intercepted is either the person who plans to commit the offence that is likely to cause the harm, or the victim or intended victim of the harm.
Importantly, the peace officer must also rule out the possibility of obtaining any other type of wiretap authorization contained in part VI.
Section 184.4 is designed to allow police to prevent serious harm to persons or property and to save lives in the most extreme cases. In high-stakes situations like bomb threats, every minute lost can be a game changer, and gathering evidence of the crime is a secondary consideration.
However, this does not mean that this power is without any judicial oversight. As was recognized by the Supreme Court, while this provision “allows for extreme measures in extreme circumstances”, the police know that their ability to intercept private communications without judicial authorization in exceptional circumstances under this section diminishes with the passage of time.
The court also noted that once the police start wiretapping in such circumstances, the speed with which they can obtain the follow-up judicial authorization plays a role in assessing whether this section passes constitutional muster. If the police do not proceed to seek the appropriate authorization when circumstances allow, they risk non-compliance if they continue interception under section 184.4. Thus, even in cases in which the situation allows for an interception under section 184.4, given the imminent harm or danger, steps need to be taken to regularize the process and the police need to start as soon as possible to prepare an application for a judicial authorization under section 188 if there is still urgency, or through the regular process otherwise.
This is exactly what happened in the Tse case. Twenty-four hours after having intercepted private communications in accordance with section 184.4 of the Criminal Code, the police obtained a judicial authorization to continue those interceptions.
Given the broad spectrum of wiretap powers and the parameters within which the police operate in urgent situations, I hope that we can all agree that it is absolutely necessary for police to continue to be able to get these communications without judicial authorization in exceptional circumstances in order to prevent serious harm.
However, the Supreme Court of Canada has clearly said that in order to retain this essential tool in a way that does not contravene the Constitution, the privacy provisions provided in section 184.4 of the Criminal Code need to be improved by requiring the police to notify, after the fact, persons who were the object of the wiretap interception. Therefore, Bill C-55 proposes to do not only this, but to also add other safeguards into section 184.4 consistent with our objective of ensuring the safety and security of Canadians while protecting their right to a reasonable expectation of privacy. This critical balance is reflected in the bill.
Bill C-55 proposes an amendment that would require persons whose private communications have been intercepted to be notified of that interception once the interception is complete. As is currently the case in the Criminal Code for other wiretap authorities, Bill C-55 would require that such a notification be provided in writing within 90 days of the interception unless an extension is granted by a judge. Notification ensures that those whose private communications have been intercepted will be made aware of that fact so that they can exercise important rights, including their right to a fair trial.
Requiring after-the-fact notification for section 184.4 is clearly what is required by the Tse decision to pass constitutional muster. However, our bill goes further by proposing another safeguard to better protect the privacy of Canadians.
Section 195 of the Criminal Code currently requires yearly reports to Parliament on the extent of the use of electronic surveillance. This provision provides a detailed list of information to be included in the annual reports. By adding section 184.4 of the Criminal Code to the list of wiretaps that need to be reported, the bill would require the federal Minister of Public Safety as well as provincial Attorneys General to prepare a report each year on the use of this particular section, consistent with the existing reporting requirements under section 195 of the Criminal Code for other types of wiretaps.
As spelled out in the bill, the reports would include, for example, information about the number of interceptions and notifications, the methods used, and the number of persons arrested whose identity became known to a police officer as a result of the interception.
If Parliament and the public in general know how and how often these powers are used, it will be possible to review their use on an annual basis, thereby assisting to ensure that these powers are only used in appropriate situations. This, in turn, would allow Parliament to make adjustments, if necessary.
Another safeguard proposed by Bill C-55 would limit the use of the Criminal Code to specific offences only. Currently, the law permits section 184.4 to be used in respect of any unlawful act. While the unlawful act has to be one that would cause serious harm to any person or property, the concept of unlawful act could be made clearer. That is why the bill proposes to limit the use of section 184.4 to the offences listed in section 183 of the Criminal Code. This limit already applies to most other wiretap authorizations. It would create certainty for police so that they could easily determine whether this investigative tool is available in the situation they are dealing with.
Finally, the bill proposes to restrict a class of persons who can use this authority to police officers only. Currently, the authority under section 184.4 is available to peace officers, which is defined in the Criminal Code to include not only police officers but also a wide range of officials, including fishery guardians, mayors and customs officials.
This proposed amendment accepts the Supreme Court of Canada's suggestion in R. v. Tse to consider whether the availability of the provision to peace officers generally might be overly broad. The court declined to address this situation in the absence of a proper record, but that is not to say that it could not come up in the future.
This legislation would not only remedy the constitutional defect of section 184.4 of the Criminal Code but would enhance the safeguards associated with this provision that allow police to intercept communications without judicial authorization in situations where there is an imminent and serious risk of harm to any person or property. The amendments are specifically intended to reduce privacy concerns and to increase accountability and transparency.
I hope the bill can be passed quickly to meet the April 13, 2013 deadline imposed by the Supreme Court of Canada. Passing this legislation would ensure that we continue to have the tools necessary to obtain information required to deal with exceptional situations, such as kidnapping, while at the same time respecting the privacy rights of Canadians.
I urge all members of the House to give this legislation their full support.