House of Commons Hansard #213 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was c-55.


(Bill C-463. On the Order: Private Members' Business:)

November 6, 2012—Second reading of Bill C-463, An Act to amend the Income Tax Act (travel expenses)—Mr. Massimo Pacetti.

Discover Your Canada ActPrivate Members' Business

11:05 a.m.


The Speaker Conservative Andrew Scheer

The hon. member for Saint-Léonard—Saint-Michel is not present to move the order as announced in today's notice paper. Accordingly, the motion will be dropped to the bottom of the order of precedence on the order paper.

Suspension of SittingDiscover Your Canada ActPrivate Members' Business

11:05 a.m.


The Speaker Conservative Andrew Scheer

The sitting will be suspended until 12 noon.

(The sitting of the House was suspended at 11:04 a.m.)

(The House resumed at 12 p.m.)

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders


Niagara Falls Ontario


Rob Nicholson ConservativeMinister of Justice and Attorney General of Canada

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.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:15 p.m.


Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I would like to thank the Minister of Justice for rising in the House to explain Bill C-55. We appreciate it.

We all know that we are on a tight deadline. April 13, 2013 is not that far off. The Supreme Court rendered its decision almost a year ago, and it basically told the government to get its act together. Bill C-55 was introduced a few days ago.

It reminds me of my university days. We would wait until the last minute to do our work, which sometimes yielded great results because we could come up with some great things at the last minute. However, there were also instances where we did not have enough time to ensure that there were checks and balances in place. I would like to ask the Minister of Justice a question about that.

This is an urgent situation. Since the government did an about-face by abandoning Bill C-30—which it felt would fix the issue—and since the Minister of Justice took on the task of making Bill C-55 more palatable, did he also take the time to speak with experts in his department to find out if the proposed amendments are in line with the Supreme Court decision in R. v. Tse?

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:15 p.m.


Rob Nicholson Conservative Niagara Falls, ON

Mr. Speaker, I am confident that the analysis that has been done with respect to the bill goes beyond what was required by the Supreme Court of Canada.

I indicated in my remarks that we are limiting the application of this procedure to the offences listed in section 183 of the Criminal Code. The Supreme Court of Canada was actually very clear on that. It said that it does not have to be limited to section 183. It could be any provision of the Criminal Code. We went one step further, and I think it provides some clarity.

Getting the report to Parliament on a yearly basis, in a sense, enhances and goes beyond what was absolutely required from the government.

The government has addressed the issues raised at the court level, in particular by the Supreme Court of Canada. I think it has taken it one step further with the additional changes, such as clarifying that this provision applies to police officers, which is a more narrow category than what has traditionally been used. In the Criminal Code and other pieces of legislation at the federal level, it refers to peace officers. Even though, on many occasions, mayors do have responsibility with respect to keeping order in their communities, it is appropriate that it be limited to police officers, so we made that change.

I am confident that we have met all the suggestions made by the Supreme Court of Canada and that we have taken it one step further to protect privacy issues.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:15 p.m.


Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, to what degree is a minister representing the Government of Canada obligated to ensure, prior to the introduction of legislation, that there is some form of constitutional compliance? Does the government have a check in place to ensure that the legislation it is passing is, in fact, constitutionally compliant?

My second question is related to the previous question. The bill is being introduced today. In a relatively short time, a few weeks, we are expected to pass Bill C-55 straight through the system. The minister had the opportunity to introduce the bill months ago. One could accuse him of being negligent in terms of his own responsibilities by not bringing forward the bill in a more timely fashion that would have allowed for due diligence. I am wondering why it took him so long to introduce the bill.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:20 p.m.


Rob Nicholson Conservative Niagara Falls, ON

Mr. Speaker, with respect to the constitutionality of the legislation we introduce in Parliament, procedures have been in place since the early 1990s, when his party formed the government. A very careful analysis goes into all pieces of legislation to comply with all aspects of the Constitution, be they the charter or the Canadian Bill of Rights. That is a process that has been in place for quite some time.

I am very confident and supportive of all the pieces of legislation we have brought forward. We have carved this out. The bill has actually been before Parliament. It was actually contained in another bill tabled before Parliament, but in the interest of moving this as quickly as possible, this bill has been hived off. It is very specific and straightforward.

As the hon. member and members of the House know, there have been many bills in the justice area that we have pushed. I would like to see them all passed very quickly. A bill on elder abuse I wanted through in two days. I would like to see that. These are all very important. I am asking the House to have a look at this and give it its support.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:20 p.m.

Saint Boniface Manitoba


Shelly Glover ConservativeParliamentary Secretary to the Minister of Finance

Mr. Speaker, I want to thank the Minister of Justice for his endeavours. The justice agenda put forward by the government, and by the minister in particular, has been, bar none, one of the most impressive I have ever seen. As a former police officer, of course, I always look very closely at bills to see how they empower the police to do a better job to protect and preserve security in our communities. I see that he has done it again by putting forward a bill that will give them the tools to do a better job.

I have been approached a number of times by many organizations or individuals who have wanted to be included under the designation of peace officer. In fact, transit bus drivers have approached me saying that they would like some measure of protection by being included. Therefore, I am quite interested in hearing from the justice minister about the importance of ensuring that it is police officers who have the ability to use this tool, as opposed to those under the broader designation of peace officer.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:20 p.m.


Rob Nicholson Conservative Niagara Falls, ON

Mr. Speaker, we wanted this bill to be as specific and as clear as possible. As I mentioned in answer to a previous question, we said specifically what sections of the Criminal Code this would apply to. We did not just leave it open-ended as “an unlawful act”, as it presently reads. We said that it must be contained within section 183. That adds clarification and precision to it.

In addition, changing the definition of who this power is available to and indicating that it is to police officers and not peace officers again clarifies exactly what we are addressing and the issues at hand. That is important. This is an extraordinary power given in emergency situations. We want to be exactly sure who has the ability to do that. That is number one. As we know, and as I indicated, there are a number of safeguards in place after this provision. We balance the rights of an individual to privacy, but on the other hand, we know that there are situations when there is imminent harm that must be addressed. I believe that this bill strikes the appropriate balance.

In answer to the hon. member, we wanted to make the provisions with respect to who and what this applies to as clear as possible. As I say, we have gone beyond the ruling of the Supreme Court of Canada. We have taken it one step further.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:25 p.m.


Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, I listened with great interest to the minister. In terms of any sort of justice agenda, we have seen the cutbacks to crime prevention programs the government has made, its refusal to keep its commitment to putting additional police officers on the street and its systematic refusal to put in place a public safety officer compensation fund, even though Canadian police officers and firefighters come to the Hill year after year and continue to get the back of the hand from the government. It is fair to say that we do not take lessons from the government on criminal justice issues.

The question that has come up, which the member from Gatineau and others have raised, is why the government is putting forward this bill at the last moment. It knew that Bill C-30 was problematic. There was a big push-back from the public. Yet even though it had almost a year to bring forward provisions, it is doing it a few weeks before the deadline expires. It seems to be improvised on the back of a napkin.

I would like the minister to stand and explain very carefully to the Canadian public why it is putting forward this last-minute bill on something the government has known about for almost a year.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

February 25th, 2013 / 12:25 p.m.


Rob Nicholson Conservative Niagara Falls, ON

Mr. Speaker, I completely reject the preamble to the hon. member's question. No government has done more to support law enforcement agencies across this country than this government. Nobody has made it more of a priority.

I will give good advice to the hon. member. He should take lessons from the Conservative Party when it comes to the justice agenda. New Democrats should do that. It is in the best interests of the constituents they represent. It is in the best interests of law-abiding Canadians, and it is certainly in the best interests of victims.

I never introduce a piece of legislation without being asked by some of my colleagues, members of the public and victims groups how it affects victims in this country. I am very pleased and proud of the fact that we have consistently made sure that victims' interests are taken into consideration.

This bill is before Parliament. I know that there has been a lot of stalling on a lot of government bills before, but I certainly hope that this one gets everyone's support. We need it.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:25 p.m.


Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I would say to the Minister of Justice that when one is seeking support from people, it helps to be nice to them.

Indeed, it is going to take quite a bit of mental gymnastics to ensure that a bill as important as Bill C-55 is given the attention it deserves. I cannot believe that the Minister of Justice and Attorney General of Canada is asking the 307 other members of this House to simply take a leap of faith and blindly accept this bill because we have an obligation imposed by the Supreme Court.

On this side of the House, we in the official opposition plan to work very hard on this. I can tell the minister that we will support this bill so that it can be sent quickly to the Standing Committee on Justice and Human Rights.

This will not stop us from doing our job in committee, as we always do, as the minister knows very well. We do not do this in order to systematically oppose the government. I hope I will not hear this from any Conservatives for the next 10 days, which is how long members of the Standing Committee on Justice and Human Rights will have to examine Bill C-55. I am very serious. The Supreme Court of Canada has set a deadline. We are not the ones asking for a favour here; rather, the government is, if it wants to meet the deadline.

I cannot believe that the brilliant legal minds at the Department of Justice took 11 months to draft Bill C-55. The fact is that the Conservatives made a serious mistake at the outset. They introduced Bill C-30 thinking that it would solve every conceivable problem related to wiretaps. I cannot exactly blame the Minister of Justice, since it was not his file. Rather, it was the Minister of Public Safety's file.

The Conservatives had to backpedal and introduce this bill with just a few weeks' notice. The members of the Standing Committee on Justice and Human Rights are meeting today, but they will not be studying this bill. They are meeting on Wednesday, but they will probably not study this bill then either. That leaves two days at most. On this side of the House, we promise to look at this bill closely and we will do our best to finish our study of it in time.

However, I would ask the government to be more open than it has been since we arrived in this House, since the 2011 election.

The official opposition makes some very good suggestions sometimes that would prevent the government from looking bad and ending up yet again with a case like R. v. Tse. In its ruling on that case, the Supreme Court said that there was a problem with the legislation. The government can keep saying, and rightly so, that section 184.4 of the Criminal Code already existed, that this provision has been around since 1993, before it came to power.

I am not really interested in knowing who to blame. I just want us to settle this issue. The Supreme Court was very clear. It pointed to the problem and to the aspects that were inconsistent with the charter. It set its findings aside for one year to give the government a chance to deal with this major legal void.

Often, that is why I ask the minister or his officials whether any serious, in-depth studies have been done before certain bills are introduced. From a distance, these bills may be well-meaning, but up close they create more problems because they are drafted so quickly. This will come back to haunt the Conservatives maybe not tomorrow, next month or in the next six months, but someday.

When I was a lawyer, I tried to prevent any future problems by anticipating problems that could come out of any document I wrote. As legislators, we should do the same.

We should not believe, as a Conservative colleague told the Standing Committee on Justice and Human Rights, that the courts will set things right if we make a mistake. I found that really ironic coming from a member of the Conservative government, which does not really have the greatest respect for what is known as judicial authority. When it suits them, the Conservatives rely on judicial authority to fix everything and set things straight.

However, I do not want to send people to court. This is not because I do not have faith in the courts. Quite the contrary. However, I know that it is very expensive, that the situation is not clear-cut and that there are problems accessing justice.

In this context, if we do our job properly in the House, if we draft bills that comply with our charter and our Constitution, we will solve many of the problems. After that, the courts will do their job, based on the circumstances.

The Supreme Court handed down its decision in R v. Tse. I urge all my colleagues in the House to read the decision before voting on Bill C-55. There is no need to read all 50 pages of the decision, whether in French or in English, but at least read the summary. It gives a good explanation of the problem arising from the section on invasion of privacy. Believe it or not, that is what it is called. In the Criminal Code, the section concerns invasion of privacy. However, according to the Supreme Court of Canada, this section is justified in the very specific context of certain offences. Section 183 of the Criminal Code explains in what context this section applies.

I would point out to my colleagues and to those watching that we are not referring to minor offences. We are talking about extremely serious situations such as sabotage, terrorism, hijacking, endangering safety of aircraft or airport and possessing explosives. I could repeat them all, but there is a good list in section 183.

This section on invasion of privacy pertains to very specific cases that must be considered within the context of the Canadian Charter of Rights and Freedoms. The authorities must ensure that the circumstances in question actually constitute an invasion of privacy. Most of the sections provide for some checks and require the Crown and the police to obtain certain authorizations. Section 184.4 has proven to be problematic in this regard because it is rather unclear about wiretapping. Unless an indictment was filed against the people in question, they would never know that they were being wiretapped. This problem therefore needed to be resolved. The Supreme Court gave directives to follow in such cases.

The Supreme Court often has more respect for the government than the government has for the Supreme Court. However, the Supreme Court still provides very general solutions and leaves it up to the government to draft bills.

Some clauses require more reflection and debate. I am not sure that the definition of “police officer” set out in clause 3 of Bill C-55 responds to the question that the Supreme Court of Canada will have to consider. The Supreme Court refused to rule on this specific issue because it had not been discussed before the court. Since the Supreme Court is very respectful of its role, it said that it did not have enough information to make recommendations to the government regarding this definition.

This will be examined in committee. The members of the Standing Committee on Justice and Human Rights will be able to ask representatives of the Department of Justice and the minister questions about how the definition was developed and what the basis for the definition was. The bill is not really clear on that. We will certainly have some good discussions in this regard.

I would also like to draw hon. members' attention to the provision that sets out the possibility of renewing certain authorizations for three months to three years. I am no longer talking about section 184.4.

I would like to reiterate that I am talking about the section that pertains to invasion of privacy. Is it reasonable to renew such authority for three years? These things should be discussed.

These bills sometimes appear to be straightforward at first glance, but prove to be more complicated when we really get into specifics.

And since the devil is in the details, I think that as legislators we have a duty to at least do our job seriously. If we do not, in six months or a year, the Supreme Court of Canada will render a decision that shows we did not do our job. It will take a look at what we did so it can determine what the legislator's intent was. It sometimes uses the debates from the House or the Standing Committee on Justice and Human Rights.

The legislator here refers to us. We must stop thinking that the legislator is some separate person within the confines of Parliament. The legislators are all of us, here in the House of Commons. If the Supreme Court wants to know the legislator's intent, it will look at what was said during the debates.

If the records show that there was no debate because the government waited until the very last minute to push a bill that has huge repercussions in terms of invasion of privacy—we are talking about invasion of privacy here—we must all, as good legislators, do our due diligence.

The bill will not be needlessly stalled, but I repeat to my colleagues opposite that they are the ones who need to get this bill passed as quickly as possible. They do not even have enough time to move the closure motions they love to use to prevent us from debating the bill, because in the time it will take to debate those motions, the bill will not even have had the time to get to committee or back to the House.

The Conservatives need the official opposition to help ensure that this bill passes. On behalf of the official opposition caucus, I can say that we are not in the habit of blocking something simply for enjoyment. We leave that kind of attitude to the members opposite. However, my colleagues and I will not sit back and listen to them say that the NDP supports criminals. If I hear anyone say that, I swear, I will talk so long at the Standing Committee on Justice and Human Rights that the Supreme Court will have time to replace seven out of nine justices before I am done.

Let us all do the work that we were sent here to do and let us be serious about it, so we can assure people that the Criminal Code has a section on the invasion of privacy. In the R. v. Tse case, all the necessary safeguards were in place to say that this is acceptable in a free and democratic society, considering the seriousness of the offences covered by section 183.

These are just a few of the points that need to be seriously examined in committee—but with good questions and good answers, and not by playing silly games or being secretive and pretending that everything was carefully considered. We must look for solutions.

Bill C-55 will probably pass by the deadline set by the Supreme Court, but I repeat that the government waited until the last minute. It should be ashamed of playing games with something as serious as this. I will not hold it against the Minister of Justice, since he had been steered in the wrong direction. The Conservatives started out on the wrong track with Bill C-30, and it took time for them to admit that and to withdraw that bill.

It is like finding out that a bad TV show was pulled from the lineup. Bill C-30 was finally pulled from the lineup. Thank goodness. It was replaced to a very small extent by Bill C-55. I do not want the people listening at home to think that Bill C-55 is a carbon copy of Bill C-30. That is absolutely not the case. It does what needed to be done. It amends a very specific section of the Criminal Code—section 183 and following—to answer the questions and carry out the orders of the Supreme Court of Canada.

Some of my colleagues will likely talk about the various provisions, but I want to speak to section 184.4, which is amended by clause 3.

That is quite possibly the most critical section in the decision in R. v. Tse, because it is exactly what the Supreme Court was referring to.

I would also like to draw the members' attention to something else that bothers me, and that is the clause about reporting authorized interceptions. Clause 5 of the bill covers authorizations and extensions for up to three years. Extensions are set out in clause 6 of the bill, specifically in the amendment to section 196.1. The clause mentions the initial 90-day period and states that an extension can be granted under subsection x, y or z for up to three years.

We should be looking into those aspects because they could have some serious implications. The definition of “police officer” should also be addressed. It is somewhat worrying, given what the Supreme Court said:

In the absence of a proper record, the issue of whether the use of the section by peace officers, other than police officers, renders this section overbroad is not addressed.

The Supreme Court is always careful to respond only to issues that are before it. Since the issue of who has the right to wiretap—in this case, peace officers—did not come before the Supreme Court, much to its credit, the court said that it would not rule on the issue. Generally speaking, the Supreme Court is not there to provide legal opinions, except when the government, regardless of which party is in power, lacks political courage and decides to go through the Supreme Court to be told what it has the right to do, whether it be with regard to the Senate, same-sex civil marriage or even Quebec's right to secede. These are some examples that come to mind.

This is often the strategy used by governments that do not want to stick their necks out. They hope that the Supreme Court of Canada will wave its magic wand and solve all of our country's political problems, which does not often happen, because the Supreme Court is actually very respectful of political power, our power to enact legislation. That is exactly what the Supreme Court did in this case.

The wording of the new definition of “police officer” seems a bit odd to me. It does not seem to be written in a typical fashion. It says:

“police officer” means any officer, constable or other person employed for the preservation and maintenance of the public peace

As I lawyer, I must say that the expression “[any] other person” is vague, and I never like to see this type of expression in provisions of the Criminal Code pertaining to invasion of privacy. Does this refer to security guards? This brings up so many questions for me.

What I would like to show my colleagues is that a bill that seems so benign and that is described by the minister as being “very straightforward” can be more complicated than we think. It is our job to point that out, particularly since this bill responds to a request from the Supreme Court of Canada that we go back to the drawing board. In my opinion, if we do not want the Supreme Court of Canada to give us another “F” for “fail”, we should at least take the time needed to do that.

I am ready to answer questions.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:45 p.m.


Kevin Lamoureux Liberal Winnipeg North, MB

Mr. Speaker, I appreciate the comments of the member. In the past I posed a question for the minister with regard to government legislation and its constitutionality. Has the government looked into it? Is it offensive to our charter and so forth? In particular, the Minister of Immigration brought in legislation that could easily be challenged in the courts.

Would the member provide comment on the responsibility of government ministers to do their homework prior to bringing in legislation to provide assurances to the House that the measures being put into law are constitutionally compliant?

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:45 p.m.


Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I am pleased that the Liberal Party supports this as well.

The week before the break that gave us all a chance to return to our ridings, I moved a motion at the Standing Committee on Justice and Human Rights calling for a review of whether there is compliance with section 4.1 of the Department of Justice Act. The government has its answers for that. I, for one, get my answers from the Minister of Justice, since he is the one I turn to the most when it comes to government bills or Senate bills.

How does this work? What information do the experts at Justice give the Minister of Justice on each of these bills? The minister cannot tell me, as he usually does, that everything is fine and dandy simply because there have been test cases. These cases are currently before the courts, and the courts have overturned these measures.

I refuse to believe that the Department of Justice lawyers are idiots. Actually, I think that the Conservative government's risk tolerance is extremely high. In other words, the government will introduce the bill that has good political traction even if it thinks the chance of failure is 95%.

We get the impression that the government is improvising, and that is a shame. This absolutely goes against the fundamental principles of the rule of law in Canada.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:45 p.m.


Hélène LeBlanc NDP LaSalle—Émard, QC

Mr. Speaker, I would like to thank my colleague from Gatineau, our justice critic, for her exceptional work on this issue. It is truly remarkable.

This type of bill needs to strike a balance between exceptional circumstances and privacy protection. I would like to know whether my colleague thinks that this bill achieves that balance. If not, what recommendations would she make to that end?

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:45 p.m.


Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I would like to thank my colleague for her compliments, which are always appreciated.

Having said that, I love justice and that is why I am in politics. It seems to me that justice or social justice should guide us all. Law is also one of my passions; it allows us to examine these issues.

How can we achieve a true balance? That question is always before us. The Supreme Court had to answer that question in R. v. Tse. No matter how serious the offence, the Supreme Court concluded that there is a need to define how to notify a person who has been the subject of a wiretap.

That was missing from section 184.4 of the Criminal Code. I am reasonably satisfied that this element is now being introduced. The minister is right about that. However, there are some minor irritants and questions. I should not even be saying irritants. I have some questions about the new definition of who will have the right to do certain things. We need some clear and specific answers. “Everyone else” does not provide enough information, especially when it comes to invasion of privacy. We know that this raises a big red flag in the courts.

Given the section in question, we, as legislators, cannot afford to make a mistake. That has been pointed out once by the R. v. Tse. decision. I would not want to be told again that we have not understood a thing, and that we have not done what we were asked to do. That is the kind of balance that must be struck, and I cannot say that we are quite there. I hope that the Standing Committee on Justice and Human Rights will be able to do its job.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:50 p.m.


Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, I know that the member for Gatineau loves the law, and she will make an excellent justice minister when elected in 2015. I am certain that her expertise and interest will bring about significant change.

I would like to point out that the deadline is only 20 days away. The government just introduced this bill. We know that Parliament and committees will sit for only 20 days. The government just introduced a bill that should have been introduced 10 and a half months ago. Now we have only 20 days to finalize it, to ensure that we will not find ourselves in the same situation as before—with a botched bill that creates problems and that will be thrown out by the courts.

As the member for Gatineau mentioned earlier, the Conservative members see nothing wrong with that. They do not have an issue with introducing a botched bill that has not been reviewed. They think it is someone else's job to review it. Our role, our responsibility as members, is to review bills to ensure that they are in line with the objectives.

So why did the government not fulfill its obligations? Why did it introduce a bill at the last minute, just 20 days before the deadline?

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:50 p.m.


Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I thank my hon. colleague from Burnaby—New Westminster for his question. The answer is simple, and yet very profound at the same time.

This government is a little arrogant. I am trying to be polite, because, in reality, they are extremely arrogant.

With Bill C-30, the Conservatives were sure they had solved every problem on the planet. They did not take the pulse of the nation, even though they boast about knowing what Canadians want. They then saw what happens when the public takes an interest in an issue and the government does something that affects fundamental rights like individual rights and the right to privacy. I have never seen such a strong reaction.

I am very active on social media, including Twitter and Facebook. It was incredible. Everyone will recall the famous “#TellVicEverything” hashtag. It was enough to inflame public opinion. I am not naming any members by saying that.

The Conservatives could have simply acquiesced and reversed their decision. After all, we are here to represent the people. There is no shame in admitting that we are wrong and made a mistake. We all make mistakes; it is only human. A fault confessed is half redressed.

The Conservatives struggled for months to find a way to get out of this without having to admit that they were wrong. Because of this lack of humility, the government now has only 20 days to comply with the Supreme Court ruling.

No one on this side of the House will be to blame if we do not manage to deal with this in 20 days. They are the ones who are putting us in this position, and everyone needs to realize that.

We will do our best to help the Conservatives get out of this, but they will need a dose of humility, something that has been lacking along the way. Their lack of humility is what got them into this situation.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:55 p.m.


Lysane Blanchette-Lamothe NDP Pierrefonds—Dollard, QC

Mr. Speaker, I want to thank my colleague for her passionate speech.

Bill C-30 was a disaster, as someone said earlier.

What do we need to make sure we do when it comes to Bill C-55? What process do we need to go through to ensure that this bill complies with the charter and the parameters set by the Supreme Court for protecting privacy?

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:55 p.m.


Françoise Boivin NDP Gatineau, QC

Mr. Speaker, that is an excellent question.

The minister, actually the government, should allow representatives of the Department of Justice to appear before the Standing Committee on Justice and Human Rights and answer clear and specific questions about this.

What analyses did they do? What jurisprudence did they study? Did they examine a certain aspect? Is it balanced?

They must stop simply trotting out the empty phrases that we sometimes hear from the government. They say that they were assured of this or that, but who gave assurances and about what and how?

We need substance this time, because this is not just a bill, it is the response to a test of the Supreme Court of Canada.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

12:55 p.m.


Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Mr. Speaker, Bill C-55, the bill we are debating today, needs to be seen against the backdrop of Bill C-30, the government's Internet surveillance bill introduced in February 2012. When Bill C-30 was tabled it crashed and burned, largely because the government failed to do its homework. Mainly, the government did not charter-proof the bill or listen to telecommunications service providers about the impracticality of some of Bill C-30's key provisions, nor did the government properly gauge Canadians' views about such a bill in advance of introducing it.

Finally, the Minister of Public Safety's mishandling of the beginnings of the debate in the House on Bill C-30, namely his hyperpartisan reaction to anyone who raised reservations about the controversial and likely unconstitutional aspects of the bill, added oil to the fire and de facto shut down the public conversation, thus foreclosing the possibility that the bill's problems might be remedied through amendment in committee; though many people doubt that the bill could have been salvaged even that way. In short, the minister's rhetoric killed the bill in its legislative tracks. One wonders also if the bill's fatal flaw, its inconsistency with charter principles, was tied to the rumour that the government no longer vets legislation against charter requirements in the drafting phase prior to tabling in Parliament.

The government's decision to withdraw Bill C-30 raises a series of questions.

First, was Bill C-30 needed in the first place? Second, if it really was necessary for public safety, why did the government withdraw the bill, given it has a majority in Parliament? As we have seen with budget legislation, the so-called stable majority Conservative government can and will do what it wants with its majority. To the government, the word “majority” means never having to say “compromise”.

Third, given its decision to withdraw Bill C-30, does the government have the courage of its convictions, whatever their merits?

The fourth question is related to the first. Does the current Criminal Code provision, namely section 184.4, provide law enforcement agencies with sufficient means to investigate and apprehend those who seek to exploit children on the Internet? By withdrawing Bill C-30, the government's answer to that question seems to be “yes”. I will come back to section 184.4 in more detail in a moment.

Another related question that comes to mind, in light of the government's new focus on the costs of policing, is whether the Conservative government is in fact investing enough to give police the resources it needs to fight cybercrime. This may be the real crux of the issue: money for policing. By not sitting down with the provinces to discuss extending and replenishing the police recruitment fund, is the government undermining the current capacity of the police to fight cybercrime? Is the government abandoning communities and leaving them more vulnerable? For example, the police recruitment fund was used in Quebec to beef up the cybercrime division of the Montreal police department. What will happen when federal funds dry up? Is the RCMP spending enough on cybercrime, or are fiscal constraints being imposed on it by the Conservative government, hurting its valuable work patrolling cyberspace, not to mention fighting the ever-complex problem of white-collar crime?

These are the tough questions that the government needs to honestly ask itself. The safety of our communities and families depends on the answers to those questions.

Bill C-55, which the Liberals support, is a response to the Supreme Court's decision in Regina v. Tse, rendered by the court last April. The Supreme Court's decision on the constitutionality of section 184.4 of the Criminal Code came shortly after the government's controversial tabling of Bill C-30 in the House. In other words, the court was deliberating on some of the issues at the core of Bill C-30 at the time the government introduced the bill. This raises the question of why the government did not wait for the Supreme Court's decision before rushing to table Bill C-30. The government could have benefited from the wisdom of the court in its final drafting of the bill. Furthermore, given that the Supreme Court, in April 2012, gave the government a full 12 months to rectify problems with section 184.4 that made the section unconstitutional, why did the government wait until the very last minute, namely two weeks ago, to deal with this matter?

As mentioned, the Tse case was a test of the constitutionality of section 184.4 in its existing form. Section 184 of the Criminal Code deals with emergency wiretapping or wiretapping in an emergency situation.

Section 184.4 is about the interception, without the normally required warrant, of private communications, including computer communications, in exigent circumstances—that is, in circumstances where interception is immediately necessary to prevent serious harm to a person or property, and a warrant cannot be obtained quickly enough to prevent the imminent harm; in other words, in situations where every minute counts.

In the Tse case the police in B.C. used section 184.4 to carry out unauthorized interceptions of private communications when the daughter of an alleged kidnapping victim began receiving calls from her father stating that he was being held for ransom. The case brought before the Supreme Court was an appeal by the Crown of a trial judge's finding that section 184.4 in its current form violates the charter.

The question the Supreme Court was asked to address was whether section 184.4, as currently written, contravenes the right to be free from unreasonable search and seizure pursuant to section 8 of the charter relating to privacy rights and, if so, whether this section's constitutionality is salvaged by section 1 of the charter, which allows a charter right to be circumscribed if it is deemed reasonable to do so in a free and democratic society.

In the earlier landmark decision Hunter v. Southam Inc., the Supreme Court determined that a warrantless search is presumptively unreasonable. In other words, the presumed constitutional standard for searches or seizures in the criminal sphere is judicial pre-authorization—that is, obtaining a warrant.

In Regina v. Duarte, the Supreme Court found that: a general proposition, surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under s. 8 of the Charter.

However, as the court said in its decision in Tse:

Exigent circumstances are factors that inform the reasonableness of the search or authorizing law and may justify the absence of prior judicial authorization.

Thus, in principle, it would seem that Parliament may craft a narrow emergency wiretap authority for exigent circumstances to prevent serious harm if judicial authorization is not available through the exercise of reasonable diligence.

Thus, section 184.4 is based on the accepted principle that, to quote the court:

...the privacy interests of some may have to yield temporarily for the greater good of society—here, the protection of lives and property from harm that is both serious and imminent.

To further quote the court in the Tse decision:

Section 184.4 contains a number of legislative conditions. Properly construed, these conditions are designed to ensure that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm. To that extent, the section strikes an appropriate balance between an individual's s. 8 Charter rights and society's interests in preventing serious harm.

This reasoning is consistent with Justice Lamer's observation in Godoy, which states that “dignity, integrity and autonomy” are values underlying the privacy interest; however, the interests of a person in need of police assistance are “closer to the core of the values of dignity, integrity and autonomy than the interest of the person who seeks to deny entry to police who arrive in response to a call for help”.

The court's main finding in Tse is that section 184.4 is unconstitutional because of the absence of a requirement to notify the person whose communications have been intercepted of the fact of that interception. This is in contrast to judicial authorizations obtained under sections 186 and 188 where the subject of the interception must be notified within 90 days.

While the court refused to rule on the need to tighten the definition of “peace officer” under section 184.4, arguing it lacked “a proper evidentiary foundation to determine the matter”, it did express “reservations about the wide range of people who, by virtue of the broad definition of 'peace officer', can invoke the extraordinary measures under s. 184.4”.

The term “peace officer” currently includes mayors, bailiffs, prison guards et cetera.

The Liberals nonetheless support the government's initiative in Bill C-55 to narrow the class of individuals who can make an interception under section 184.4. to mean police officers only, meaning an officer, constable or other person employed for the preservation and maintenance of the public peace. However, we wish to know if this narrowed class also includes private security guards of the type contracted more and more by municipalities to fill the reduction in their regular police coverage, for example, when regional municipalities cut police budgets or reassign police to other geographic areas.

Similarly, while the court ruled that there is no constitutional imperative for the government to report to Parliament on the use of section 184.4, we believe the requirement in Bill C-55 that this be done is a positive step, obviously, as it provides an important safeguard needed to balance the interests of the state in preventing harm and prosecuting crime with the obligation to protect section 8 charter rights.

Finally, we are a bit puzzled, however, as to why Bill C-55 limits section 184.4 interceptions to the large number of offences listed in section 183 of the Criminal Code. True, it was the opinion of Justice Davies, the trial judge in Tse, that section 184.4 should be limited to offences enumerated in section 183. However, the Supreme Court disagreed, in the appeal:

There may be situations that would justify interceptions under s. 184.4 for unlawful acts not enumerated in s. 183. We prefer the conclusion of Dambrot J. in Riley...that the scope of the unlawful act requirement is sufficiently, if not more, circumscribed for constitutional purposes, by the requirement that the unlawful act must be one that would cause serious harm to persons or property.... No meaningful additional protection of privacy would be gained by listing the unlawful acts that could give rise to such serious harm. The list of offences in s. 183 is itself very broad; however, Parliament chose to focus upon an unlawful act that would cause serious harm. We see no reason to interfere with that choice....

...the serious harm threshold is a meaningful and significant legal restriction on s. 184.4 and is part of this Court’s jurisprudence in a number of different contexts....

...this threshold is also consistent with the police practice surrounding s. 184.4.

It appears that Bill C-55 is an admission by the government that police forces already dispose of necessary legal powers to act to intercept incidents of cybercrime involving children or terrorism for that matter. We are thus a bit puzzled as to why the government went ahead and introduced Bill C-30 only to withdraw it.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

1:05 p.m.


Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, the presentation by the member for Gatineau clearly outlined that the problem we face today is that the bill was introduced at the last minute. Earlier, I said that there were 20 days left, but, in reality, there are only 19. I forgot to exclude Good Friday.

The government wants the bill to go through all the stages in 19 days and duly pass. But this bill was never analyzed. We already know that there will be flaws. As the member for Gatineau said, we will do what we can. The government's approach is really not professional.

My questions are for my colleague from Lac-Saint-Louis. First, what does he think of the last-minute introduction of this bill? There are only 19 days left on the parliamentary calendar to study it.

These problems date back to the previous Liberal government. So why did the Liberals not deal with these issues when they were in power? At the time, even members from Montreal expressed concerns about the Liberals not making changes.

Response to the Supreme Court of Canada Decision in R. v. Tse ActGovernment Orders

1:10 p.m.


Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Mr. Speaker, I am very disappointed by the government's actions on this issue. It keeps making the same mistakes and then takes a long time to pick up the pieces.

I am also shocked to hear why the government took so long to introduce this bill. I think it is because it wanted to distance itself as much as possible from the Bill C-30 controversy.

As for the Liberal government, I was not in cabinet seven years ago. I was not privy to the discussions surrounding a similar bill that was debated at the time. Unfortunately I cannot comment on that government's motives.