I'm pleased to be joined by Karen Audcent and Don Piragoff, both from the Department of Justice. They'll be glad to answer any questions that you may still have, if you have any, after my hour here.
Mr. Chairman, I'm pleased to be here to talk about Bill , the response to the Supreme Court of Canada decision in R. v. Tse. The court's decision in the Tse case found that existing authority to wiretap without prior judicial authorization in exceptional circumstances was unconstitutional due to its lack of accountability safeguards.
The bill before you responds to this finding of unconstitutionality in section 184.4 of the Criminal Code by first adding the safeguard of after-the-fact notification to persons who have been intercepted; second, adding a requirement for public reporting on the use of this power; third, restricting the use of emergency wiretaps to cases of serious offences; and fourth, limiting the use of this power to police officers and to certain listed offences.
Under section 184.4 of the Criminal Code, the police can conduct a wiretap without prior judicial authorization only when the situation is too urgent to obtain a wiretap authorization; when the “interception is immediately necessary to prevent...harm to any person or to property”; and when the originator or recipient of the communication is the perpetrator of the harm or the victim or intended victim of the harm.
This means that police can only intercept communications between the perpetrator of the anticipated harm and the actual victim or intended victim of that harm. This imposes a strict limitation on whose communications can be intercepted and closes the door on the possibility of police intercepting the communications of an unlimited number of classes of persons.
Furthermore, there must be an immediate need to wiretap to prevent harm to a person or to property from occurring. This should provide you with a sense of how and when this section can be used; for example, in situations such as kidnappings and bomb threats.
Finally, the urgency of the situation must make it impossible for police to obtain an emergency wiretap authorization. To be clear, the Criminal Code has another provision that enables a rapid response designed for an emergency. Section 188 of the Criminal Code enables an abbreviated process for court authorization allowing 36 hours of wiretap. For police to avail themselves of the authority under section 184.4 of the Criminal Code, it must not be possible for them to seek court authority under either the principal and lengthier process for wiretap under section 186 or the expedited process for short-term wiretap authorizations in emergency situations under section 188 of the Criminal Code.
That said, the Supreme Court in the Tse case found that while there exists a justifiable constitutional imperative for the existence of such a wiretap power, section 184.4 of the Criminal Code as drafted is constitutionally deficient, despite the existing built-in safeguards that I've just described.
In its reasons, the Supreme Court found that the addition of after-the-fact notification to persons whose communications have been intercepted would make the provision constitutionally compliant.
That's what they told us: if you do this, it's constitutionally compliant. This bill, Bill , proposes this requirement for the use of 184.4 of the Criminal Code by requiring that notice must be given to the person within 90 days of the wiretap, unless a court authorizes an extension.
The Supreme Court of Canada also commented on other issues for which the bill proposes some appropriate responses.
While the court held that the notification was the only amendment required for constitutional compliance, it expressed the view that reporting was a good idea from a policy perspective, and on that the government agrees.
This bill proposes, therefore, to add a reporting requirement to the use of section 184.4, which would mean that the reports prepared annually by the federal and provincial attorneys general on the use of wiretaps would now include information on the use of section 184.4. This will enhance transparency and increase public knowledge and scrutiny of the use of this exceptional power.
The Supreme Court also considered restricting the use of this section to police officers instead of peace officers, as is currently provided in the Criminal Code. This could enhance charter compliance, though the court did not rule on this issue.
Again, the government takes that representation and that suggestion to heart, and the bill therefore proposes to restrict the availability of this section, from peace officers—a term that is defined rather broadly in section 2 of the Criminal Code—to “police officers”, which is a narrower class of individuals. For example, the narrower approach would exclude such individuals as mayors and reeves.
This bill also proposes to limit the use of section 184.4 to the offences listed in section 183 of the Criminal Code. Currently the section can be used for any unlawful act. That's what it says now.
Although limiting this power to offences listed in section 183 of the Criminal Code was commented upon, it was not required by the Supreme Court of Canada; nonetheless, Bill proposal in this regard would harmonize this section 184.4 and its use with other provisions in the Criminal Code related to wiretap that are already limited to section 183 offences. We are making it consistent with the other wiretap sections; the provisions under the Criminal Code would apply to this as well.
Harmonization with other wiretap provisions will also be achieved with the notification and reporting requirements that I have already mentioned, as these requirements already exist for some of the other provisions in the Criminal Code.
Finally I would note that the Supreme Court of Canada gave us until April 13, 2103, to amend section 184.4 to address this defect, and that time is swiftly approaching. This makes it imperative that we move as quickly as possible to enact this legislation, failing which, after April 13 police will no longer have the ability to use this section, which may compromise their ability to respond to high-risk situations and to protect Canadians.
When considering the reasons for the amendments in this bill, it may also be of use to consider the situations in which the bill or the section is likely to be used. Kidnapping is one example, as in the Tse case, in which a married couple and a friend were abducted from their home and held for ransom. Police relied on this section to respond quickly with a wiretap when family members were contacted by one of the abducted persons.
In another case, R. v. Riley, the police used section 184.4 of the Criminal Code during an investigation of murder through drive-by shootings in which the goal was to respond quickly to prevent additional murders.
These cases illustrate the importance of this particular section. In short, Bill is about ensuring that police have an important tool that they need to protect Canadians, while also ensuring that it is used in a way that shows the respect for privacy that Canadians can expect from their government.
I urge all members to support this.
Thank you very much.
Thank you, minister.
Obviously, we are all aware of the time limit, since the Supreme Court of Canada gave April 13 as the deadline in R. v. Tse. So we have between now and then to do something.
The government took another approach. With its introduction of Bill , it announced the withdrawal of the much-criticized Bill . The government dragged its feet for some months, so now we are forced to study an important bill post-haste. You said yourself that it concerns the “Invasion of Privacy” part of the Criminal Code. So we are very aware of the matter we are legislating.
That being said, I read Bill . Although the Supreme Court did not make a determination regarding peace officers, police officers and so forth, I can somewhat appreciate that the government, in its wisdom, did not wait to establish definitions. However, the provision says the following:
||“police officer” means any officer, constable or other person employed for the preservation and maintenance of the public peace.
I am always a bit averse to those kinds of catch-all expressions. I'd like you to tell us who exactly “other person employed for the preservation and maintenance of the public peace” refers to. Does it go as far as to include private security guards? Does it include individuals employed to enforce other federal laws such as the National Defence Act, the Immigration and Refugee Protection Act, and so on?
It might be advisable to define those things, because you may have opened the door to a complicated side issue, in your efforts to address the Supreme Court's ruling.
I agree with you about better defining exactly who should exercise these powers.
The term “peace officer” is certainly an older term. If you were to go back and look at the history, many times the mayor was called upon to exercise a certain responsibility when there was some type of uprising or riot.
There is a definition in the Criminal Code that defines who a peace officer is. It would include public officials such as mayor, reeve, sheriff, deputy sheriff, sheriff’s officer, justice of the peace, members of Correctional Services, any permanent employee of a prison or a penitentiary, officers under the Customs Act and the Excise Act, and officers under the Immigration and Refugee Protection Act. In addition, a fishery guardian is included as a peace officer under the Fisheries Act. The pilot on an aircraft is—
Again, we're told—and this is consistent with what we know about law enforcement—that this is a necessary part of dealing with some of the emergency situations that law enforcement agents come across. Mr. Wilks and others would be able to tell you instances where information of this type becomes very, very important.
I indicated to you from the Tse case and the other case that we face situations where people's lives are in immediate danger. These are the innocent individuals, the victims. So it's absolutely vital that there be authority within the Criminal Code to allow officers to go and intercept this kind of information for the safety and the well-being of those individuals.
There's been a considerable history over the last 40 years with respect to this whole area of wiretapping. I believe that in the nineties, Mr. Piragoff, you were there and having a look at a number of these provisions, basically updating them from the 1970s to be consistent with what was happening with changes in technology and to what law officers were facing.
It's absolutely vital that there be something like this available. If somebody's life is in immediate danger, for instance—and that's just one example—you've got to have the ability to intercept. However, there have to be safeguards on that. As you quite correctly pointed out, people have a right to privacy and to know that their communications are kept private. This is why we have gone, in this particular section, beyond what the Supreme Court of Canada required. We've built in other safeguards and clarified when and where and how this authority can be used.
But again, there are the three sections: the regular section of the Criminal Code with respect to wiretaps; the emergency section; and this section, that third category where they immediately must have information. Again, what we're doing is consistent with what the courts and law enforcement must have, and victims must have if they ever find themselves in a position like this.
We're talking basically about three different situations.
In ordinary circumstances, you would make an application for a wiretap. It would be under section 186. For part of an investigation, for instance, of organized crime, the information would be presented and there would be a judicial determination of whether this is reasonable, under what circumstances, what the parameters are, who, how, and where. This can be a considerable, lengthy, well thought out process. That is the usual process.
You could have a situation where they need a wiretap and they don't have that opportunity, because of the urgency of it, to make that formal application to the court. That provides, among other things, that you could pick up a phone and get a law officer, somebody who is authorized to do this, to provide this, to give you the okay over the phone if you have to have that. That's the second one, and I call it the emergency wiretap provision. That's section 188 of the Criminal Code.
Section 184.4 takes that emergency one step further, that there is a possible imminent harm to people or property, that there isn't time, even, to start phoning somebody and explaining, and making that type of an application. You have to have the information right now.
I mentioned the Riley case and the Tse case. They had to have that information immediately to do their best to protect the individuals, and there really wasn't time to do anything else.
So you have the three categories. For the most part, it's the regular wiretap under section 186. Again, you make the application, but depending on the urgency.... What we are doing with section 184 is basically bringing it in line with the other two sections, so that there is accountability and judicial involvement with this. That's what we're doing under this particular section. I think it complements those other two sections here that I just described.
For peace officer, if you look at section 2 of the Criminal Code, it sets out a wide range of individuals whom I have indicated to you, starting with the municipal government, to make sure that we don't just have mayors but reeves as well. They are contained within that. There is the pilot of a plane, for instance. Individuals under a dozen different federal statutes come within the definition of a peace officer.
I guess the question you would ask yourself is whether it is absolutely necessary that they would have this particular power. What is it they are doing that would require them to intercept the private communications of an individual?
I think you might come to the conclusion that you can't imagine how and where and why it would be necessary for some of these individuals to do that in their respective roles.
I believe—and I hope it is your opinion as well after analyzing this bill—that it was appropriate for us to define a little more clearly exactly who has this ability in an emergency situation to prevent imminent harm and to intercept the otherwise private communications of individuals.
I think that was very important. Again it was one of the things we didn't have to do, but it seemed to me it made sense.
One of the things you will notice about the Tse decision when you go through it is that there is sometimes what we call an obiter. There are thoughts and discussions that take place on a number of different areas, but they do sometimes give us direction on where we might go so we're not challenged in some future case on some of these issues.
I think it's entirely appropriate to have a look at those suggestions and incorporate them into the bill. As I indicated to Madame Boivin we've done what they wanted, but we've gone beyond that as well.
Again I think—and I hope with analysis of this bill at committee you will agree—that we're better to define exactly which unlawful acts we're talking about. We're better to define exactly who it is that can and should do this. Yes, it is a good idea for provincial attorneys general, but it's good for the as well to do that. You will notice I didn't put Justice Minister in. I put Public Safety Minister in. He can take on that responsibility, and why not?. I think it's a very good idea.
Minister, welcome, and to our officials as well.
In my past life, I was part of this equation. I worked for Bell Canada for 22 years. If somebody called in and said “I think my home phone is tapped”, I would go and test their line. If they called in and said “There's noise on my line”, I would type their number into the computer, and when it came up, I would listen to seconds of their conversation to see if there was trouble there.
My point is that there are probably some instances where Canadians are unaware of the fact that somebody, here and there, is listening. Obviously, that was for a very different purpose.
What we're talking about here is what I consider to be, from what you're saying, a very exceptional situation. I think in fairness to the government, you've made a reasonable effort in this. For Canadians, in the society we live in, with the electronics and all the conspiracy movies you see, where the government, which is usually the U.S. in the movies, is intruding on people's lives, you can understand why people would be concerned.
The question I have is the following, even though it's been touched on three times here. We talk about the emergency wiretap, which has a connotation to it of a hardwire onto a phone line and that's it.
Just for the record, I want to put it before the committee that this would include cellular communications—
Hon. Rob Nicholson: Yes.
Mr. Wayne Marston —and text communications—
Hon. Rob Nicholson: Yes.
Mr. Wayne Marston: —which the children of our generation are wearing their thumbs out doing?
Hon. Rob Nicholson: Exactly.
Mr. Wayne Marston: You had used the term “intercept communications”, which I took to mean as taking all of that in.
Thank you very much, Mr. Chair.
Thank you, Minister, for your presence here today.
Certainly I hope we can all support this particular bill. After reviewing some of the papers the Library of Parliament has done in terms of analysis, coupled with your testimony here today, I think it's very important that all parties support this.
We all know that law enforcement at times requires the ability to respond very quickly in situations where there are urgent circumstances.
Minister, you mentioned specifically kidnapping, hostage-taking, bomb threats. Those are just a few examples of where urgent actions are expected of the police to protect innocent victims and maintain safety.
A good example, Minister, from my home province of British Columbia is the kidnapping of 23-year-old Vancouver resident Graham McMynn in April of 2006. The prompt response by the Vancouver Police Department in using all the legal resources to safely return Mr. McMynn to his family serves as a reminder as to why useful amendments such as Bill are in order so that we can continue to protect the public.
This legislation responds directly to the guidance from the Supreme Court of Canada by adding new privacy safeguards of notification and reporting. You've alluded to it in your testimony and in a number of your comments to the committee, specifically section 184.4 of the Criminal Code.
Minister, is there anything in this bill that is not related to adding more safeguards—beyond the response to the Supreme Court?