Mr. Speaker, my colleague who just asked the Parliamentary Secretary to the Minister of Justice the question, hit the nail on the head. The problem with Bill C-55 is that we find ourselves passing this bill at the last possible minute. As we say in English, time is of the essence. If this bill is not passed by April 13, we will have a legal vacuum.
I would like to make some clarifications so that we know what we are talking about.
Section 184.4 of the Criminal Code is very clear. It talks about interception of communications in exceptional circumstances. If Bill C-55 is not passed in accordance with the Supreme Court of Canada decision, rendered last year in R. v. Tse, section 184.4 will no longer exist. Currently, this section states that, in exceptional circumstances:
A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where:
People are concerned about their conversations being intercepted and heard. Under section 184.4, which was at the centre of R. v. Tse, the conditions for the officer are that:
(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
In other words, there was absolutely no other way to obtain authorization for this type of interception.
(b) the peace officer believes on reasonable grounds that such an intervention is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property;
This means that, after all due diligence, there is no possibility of obtaining authorization. That is a little difficult in the city. In Gatineau, for example, justices of the peace are available practically 24 hours a day for this type of authorization. The chances that it would be impossible to obtain authorization and that section 184.4 of the Criminal Code would not apply are great. These are truly exceptional cases, and it is important to put that into context.
There must also be reasonable grounds to believe that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm. Serious harm must be more than just a possibility; it must be imminent.
The third condition is as follows:
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
It should also be said that the ruling in R. v. Tse did not require a review of interception in its entirety. I appreciate what my Green Party colleague was trying to do with her amendments, but since time is of the essence, we should be concentrating on what the Supreme Court has asked Parliament to do. We were not asked to review the entire reporting process and so on. Yet the majority of the member's amendments address those topics, which were not even mentioned in the Supreme Court ruling.
The Supreme Court said the unless a criminal prosecution results, the targets of the wiretapping might never learn of the interceptions and would be unable to challenge police use of this power. There is no other measure in the code to ensure specific oversight of the use of section 184.4.
After all that I have said about this section, if that were the case and a person was never criminally prosecuted, it would be quite possible that he would never know that he had been the target of a wiretap or that his conversations had been intercepted. That is the crux of the issue in the R. v. Tse ruling.
The Supreme Court said that in its present form, the provision fails to meet the minimum constitutional standards of section 8 of the charter. I would like to emphasize the word “minimum”. The NDP is not saying that Bill C-55 is a legislative model when it comes to wiretapping, interception or invasion of privacy as set out in part VI of the Criminal Code. Those are exceptions.
Still, before voting on my colleague's proposed amendments and on Bill C-55, we should consider whether the measures and changes proposed by Bill C-55 respond to the guidance provided by the Supreme Court of Canada:
An accountability mechanism is necessary to protect the important privacy interests at stake and a notice provision would adequately meet that need, although Parliament may choose an alternative measure for providing accountability.
Those who take the time to read Bill C-55 will see that it calls for an accountability mechanism. People whose communications are intercepted will be notified of the interception.
Still according to the Supreme Court:
The lack of notice requirement or some other satisfactory substitute renders s. 184.4 constitutionally infirm.
That is all the Supreme Court of Canada said in R. v. Tse. Without sufficient information, we still do not know whether section 184.4 is excessively broad in scope because it confers power that may be exercised by peace officers as well as police officers. Nevertheless, the Supreme Court did indicate that it considered the matter. As always, the Supreme Court will not rule until the matter has been debated, nor will it rule on the matter debated unless it goes before the court. With respect to the issue of who would be given permission to carry out the kind of interception set out in section 184.4, the Supreme Court did not discuss it and made no decision on the matter.
One good thing about Bill C-55 is that, even in the absence of a decision by the Supreme Court, it restricts the scope of section 184.4 to police officers and other persons employed for the maintenance of the public peace by removing the term “peace officer”.
Section 2 of the Criminal Code lists just about every category of public officer, from mayor to meter reader. Indeed, virtually every type of public officer was covered, giving the impression that the scope of the provision was fairly broad. The power conferred under section 184.4 is one that should not be given to just anyone. In that regard, I am pleased that the government brought forward a bill that addresses one of the issues that the Supreme Court raised but did not rule on. As I see it, in matters of criminal law, an ounce of prevention is worth a pound of cure. The rights of persons subject to trial are at issue here. Insofar as providing an opinion is concerned, Bill C-55 is the Conservatives’ response to the Supreme Court’s request.
The bill also contains some things that the Supreme Court did not request. All of the provisions amending section 195 of the Act and the requirement for various types of reports have been added to ensure greater accountability. Who would not want that? Certainly more can be done at some point in the future.
However, as to whether Bill C-55 will respond to the questions and guidance of the Supreme Court of Canada before April 13, 2013, all of the witnesses who testified before the committee were of the opinion that it will.
All of the witnesses, whether they represented the Canadian Bar Association or the CLA, were unanimous in their support of Bill C-55. They made a number of minor suggestions. However, since it was not their job to resolve all of the problems concerning interception but rather to address the issue of the constitutionality of section 184.4, I am reasonably satisfied with the responses provided by departmental officials.
All of the questions which the member raised in her amendments have been answered by the minister or by Department of Justice officials. In this regard, there is no need at this point in time and given the context of Bill C-55 to go forward with what my hon. colleague is proposing. We received the answers to our questions when the bill was studied in committee.
