moved:
That the House recognize: (a) the fundamental right of all Canadians to the freedoms of speech, communication and privacy, and that there must be a clear affirmation on the need for these rights to be respected in all forms of communication; (b) that the collection by government of personal information and data from Canadians relating to their online activities without limits, rules, and judicial oversight constitutes a violation of the Canadian Charter of Rights and Freedoms’ protections against unreasonable search and seizure; (c) that Canadians who have expressed deep concerns about Bill C-30 should not be described as being friends of child pornography or advocates of criminal activity; (d) that the Charter is the guarantor of the basic rights and freedoms of all Canadians; and (e) that the Charter is paramount to any provision of the Criminal Code of Canada; and accordingly the House calls on the Prime Minister to ensure that any legislation put forward by his government respects the provisions of the Charter and its commitment to the principles of due process, respect for privacy and the presumption of innocence.
I appreciate the chance to discuss this important question in the House. I think we would all agree that the introduction of Bill C-30 has caused a powerful reaction around the country. It is important for members, in discussing this issue, to engage not only each other but also the public in a serious discussion of what the issues in this legislation really are and why it is important that we in the House indicate our understanding and support for the principles in the charter, for the role of the courts in asserting the role of the Charter of Rights and Freedoms and in our understanding that there may well be objections to the legislation as it is currently drafted. Those objections need to be treated with respect and civility and not with simply a curt dismissal that somehow they represent a lobby on behalf of criminal activity in the country.
I will begin by reading into the record the words of Chief Justice Beverley McLachlin in a recent case, the Gomboc decision. That case dealt with the question of the access by police to information with respect to the use of electricity in a particular place because of the suspicion that the house was being used as a grow op. The reason for reading this into the record is not that it says anything about that particular case but that it is a reminder to all of us as to the importance of the issues that we are discussing.
Chief Justice McLachlin stated:
Every day, we allow access to information about the activities taking place inside our homes by a number of people, including those who deliver our mail, or repair things when they break, or supply us with fuel and electricity, or provide television, Internet, and telephone services. Our consent to these “intrusions”, into our privacy, and into our homes, is both necessary and conditional: necessary, because we would otherwise deprive ourselves of services nowadays considered essential; and conditional, because we permit access to our private information for the sole, specific, and limited purpose of receiving those services.
A necessary and conditional consent of this sort does not trump our reasonable expectation of privacy in the information to which access is afforded for such a limited and well-understood purpose. When we subscribe for cable services, we do not surrender our expectation of privacy in respect of what we access on the Internet, what we watch on our television sets, what we listen to on our radios, or what we send and receive by e-mail on our computers.
Likewise, when we subscribe for public services, we do not authorize the police to conscript the utilities concerned to enter our homes, physically or electronically, for the purpose of pursuing their criminal investigations without prior judicial authorization. We authorize neither undercover officers nor utility employees acting as their proxies to do so.
The issues that are raised in the legislation are significant. I want to state for the record, because we all need to be clear on this issue, that the purpose of the legislation is to extend the investigatory power of the police over methods of communication in the Criminal Code of Canada. It is not only about child pornography. The short title of the act is, candidly, a misnomer. It is not really what the act is all about. Yes, it covers child pornography but it also covers any kind of criminal activity. Indeed, it covers activity that is covered by the Anti-terrorism Act and the Competition Act, as examples. This really has to do with extending the power of investigation and intrusion into very extensive matters covering all methods and means of communication.
Let us be clear. Under the current provisions of the Criminal Code, which has the support of all members of the House, we grant to our police officers and our security officials under the CSIS Act the power to watch what people are doing. If they then feel that there is criminal activity under way, we grant them the power to ask a judge whether it is possible to, in the case of the current Criminal Code, intercept phone calls and other forms of communication. No one on this side of the House is suggesting for a moment that it is inappropriate, in circumstances where there are clear and probable grounds to believe that a criminal act is either being performed or is about to be performed, for the police to ask for the powers to look at what is happening. That is not inappropriate.
We are celebrating the 30th anniversary of the charter this spring. It has set out some of the protections for privacy and some of the concerns that the House of Commons and the Senate had with respect to entrenching certain critical individual rights. It is important for us to recognize that the charter simply expresses and codifies what, in effect, has been the law of Canada and indeed the common law throughout countries that follow the common law, and the Criminal Code, which applies to all jurisdictions in Canada and has been our jurisprudence for hundreds of years, which contains limits on the powers of the state to intrude into the privacy of people's homes. If we are to break through that line and cross over that frontier, we have to have the approval of the courts before we can do so.
The issue which is raised most directly by Bill C-30 is really the issue contained in clauses 16 and 17. These provisions pertain to, in clause 16, written requests, and, in clause 17, oral requests.
Clause 16 states:
On written request by a person designated...every telecommunications service provider must provide the person with identifying information in the service provider’s possession or control respecting the name, address, telephone number and electronic mail address of any subscriber to any of the service provider’s telecommunications services and the Internet protocol address and local service provider identifier that are associated with the subscriber’s service and equipment.
Section 17 allows not just any authorized person but any police officer, if he or she has reason to believe on reasonable grounds that the urgency requires the information right away, to get that information simply by making a phone call and saying, “We need this information right away”.
There is room surely for a legitimate debate about whether or not obtaining that information is in fact a breach of privacy.
We have the Canadian Charter of Rights and Freedoms, but before the charter, there was a principle underlying our legal system, what I would call a basic right, that the state cannot intervene in the private affairs of individuals without the authorization of a judge. That is clear. That is the problem we have with this bill. We see the need for a civil debate in which all participants clearly acknowledge people's right to privacy. In addition, with sections 7 and 8 of the charter, it must be clear that the law specifically protects individual rights and privacy.
The debate today can go in many different directions. I think it is very important for the House to treat the views of those people who are concerned about this legislation with a degree of understanding and respect.
We on this side would never say that we do not believe there are grounds, times and ways in which the police and other investigating officers have a right to access information which is held by a service provider. In the same way, a telephone company would have to allow for interception of a telephone call. As well, if criminal activity is taking place on the Internet, or by means of a cell communication, or by some other digital means, of course, it is reasonable for the police to have access to that information in order to know what is going on.
The key issue is whether the House is prepared to say to Canadians that it can happen, but it cannot happen without prior judicial authorization. It is really a very specific issue. However, when we look at all the other provisions of the bill, it is complicated. It is a long piece of legislation.
We welcome the fact that, in response to this literally unprecedented wave of objection to the bill, the government has decided to put it into committee before calling it for second reading. I think that is a good idea. I would argue that would be a good idea for a lot of other legislation as well. We would be glad to see that done on other occasions. I say to the government that we think it is important to do this.
On our side, we are strongly committed to having this discussion, at least to recognize that there is a legitimate basis for concern on the privacy argument. If we were to simply reject that right to privacy, we would be flying in the face not only of the charter, but of the charter as it has been interpreted by the Supreme Court of Canada in literally dozens of decisions it has taken since the House voted on the charter in 1981.
I hesitate to even mention this point, but I happen to be sitting not very far from where I was standing when I voted in favour of the charter and the patriation of the Constitution. I am not going to quote my own words from that time, but I invite the member opposite to read the speech. I recommend it to him in terms of his level of enlightenment.
I have heard members sitting in this House criticize the charter. When those people say that the charter is something which works on behalf of criminal activity but not on behalf of others, that is simply not true. When we are arguing on behalf of privacy we are not arguing on behalf of criminal activity. We are arguing about the boundaries of the distinction between what is private and what the state has reasonable grounds to have access to. What are the tests that the state has to meet in order to cross that line?
The courts have said there are tests that people have to meet. The courts do insist that the police follow these sets of rules and regulations. Yes, in circumstances they can be difficult and onerous. Yes, if the steps are not followed properly then there are decisions that are made, in effect, to say that there has to be a new trial because the rules were broken with respect to what was admissible as evidence. There is a name for that in our society. It is called the rule of law.
We did not give the courts some sort of new role that they did not have before in the charter. The courts always had the role and the responsibility of saying that when legislators go too far, or when legislators are unwise in how they proceed, then there needs to be a step back. There have been lots of times in Canadian history, long before the charter, when the courts said we could do this, but not do that.
Perhaps there are some members opposite who remember the infamous Alberta press bill, where the legislature under the intellectually precedent government of the one opposite, the Social Credit Party of Alberta, said the press had to give the government side of every story they were running. The press had to provide for the alternative official position in order to allow for balanced reporting. The Supreme Court of Canada said there was no way they could demand that, as it was an infringement of the freedom of the press and an infringement of freedom of speech.
In Quebec, long before the charter, Premier Duplessis personally said that Mr. Roncarelli, because of his association with the Jehovah's Witnesses, could have a restaurant but the restaurant could not have a liquor licence. The Supreme Court, in a very famous judgment, said he could not do that. He could not use a completely irrelevant argument in order to stop somebody from pursuing his legal rights.
What the charter was intended to do, and I believe on balance what it has done, is essentially entrench and formalize the rights we have always known were there. The charter is an effective guarantor. Frankly, Parliament has to be a guarantor as well.
It is important for us in the House to understand what is at stake in these discussions. It has to do with our common commitment to the rule of law, our common commitment as a Parliament to the law of Canada, which includes the Charter of Rights and Freedoms, and our common commitment to civility in how we treat the people who are on the other side.
There is no reason why the government should be voting against this motion. There is no reason for anyone in the House to vote against it. It states in a very balanced way the principles of the charter, the issues that are at stake here, and why it is so important for us as Canadians to deal with this issue in an intelligent way.
The police have to be able to do their job. We need to be able to deal with acts of violence, acts of terrorism, child predators and crimes inflicted on children. However, we need to do it in a way that fully conforms with the rule of law in our country.
Of course we will be following this debate with great interest. But as I have said, today's motion is clear: yes to private rights, yes to the Charter of Rights and Freedoms, and yes to the important concept that we can all agree to a necessary balance, the necessary role of the courts, respect for individuals and a civil debate on this issue.
There has been a lot of emotion around this debate. It is important for us to understand where some of that emotion comes from. We need to be able to deal with these issues with mutual respect and to study the bill carefully. I can assure the government we in the Liberal Party, in our role in the opposition, are going to be doing that in a responsible way. We will continue to work for a criminal code and a working police force, and the protection of Canadians that also guarantees the rights that all of us have to privacy and the rule of law.
