I did have two things.
One, I'll talk about the timing that we have now. We have until about 4:26, when the bells will start ringing again. We have a vote at 4:56. That vote will take 8 to 12 minutes. That will delay the 5:30 bell that would have happened for the regular voting, which we would have done, so we can come back then, for probably 45 minutes to an hour. Then, if we are not done, it would mean that after those votes, the four votes that we have tonight, we would come back here to finish the clause-by-clause.
There was a question asked, which I appreciate. I did double-check on whether or not I had the right answer, and I happen to have it. There is no deadline, like on a private member's bill, where if nothing happens to it automatically it gets reported back to the House the next day. That doesn't happen with government legislation.
As we know, there's a timeframe to this, so the issue is to try to finish this clause-by-clause today. It is possible that after the next break we will get it done today before we have to come back after votes, but that will be up to the committee.
Right now, we have one witness with us. The other witness, unfortunately, was told by—
Ms. Françoise Boivin (Gatineau, NDP):
Can we comment?
The Chair: Comment on it? Yes.
Ms. Françoise Boivin: I'll comment very briefly because I most certainly want to hear our witness. I just want to say that we won't disagree with the motion, but I want to stress something again.
Forgive me if I am repeating myself, but it is the government that has imposed the very tight timeline on us, having introduced this bill in February. As a result, we have to do intellectual gymnastics and that is not always easy. This is a very important bill about a matter that has been the subject of a Supreme Court decision.
I wanted to point that out. Nevertheless, I am aware that, given our time constraints, we have to either do it or not. And if something is worth doing, it is worth doing well, as my mother would say.
Mr. Michael Spratt (Member, Criminal Lawyers' Association):
Thank you very much.
My name is Michael Spratt. I am a criminal defence lawyer who practises here in Ottawa. I practise exclusively criminal defence work, and as such, I've done extensive work involving intercepted communications. I'm here representing the Criminal Lawyers' Association, or the CLA.
The Criminal Lawyers' Association is an association of criminal law professionals. The objective of our association is to educate, promote, and represent our members on issues relating to criminal and constitutional law in a manner that respects and emphasizes civil liberties.
It should be noted that the CLA was granted intervenor status in the case of R. v. Tse, the case that brings us here today. As part of our mandate, the CLA is routinely consulted by parliamentary committees such as this, and it's always a pleasure to appear before these committees.
I apologize for not having any detailed position in writing, but I'm happy to answer questions. I know it's a short time period for everyone to get up to speed on this.
I will start by saying that the CLA is in favour of this legislation. The CLA generally supports legislation that is modest, fair, and constitutional, and Bill C-55 does an admirable job of incorporating the comments of the Supreme Court of Canada from the case of R. v. Tse. However, there are some areas that the committee may wish to examine and may wish to have some further reflection upon.
The starting point from my submission relates to the tension between the need to respond in a timely manner to urgent and serious situations, to act quickly to avoid and prevent harm. And of course, that comes into conflict with the citizen's right to be private and avoid warrantless intrusions by the police into very private aspects of a citizen's life.
As Mr. Justice La Forest recognized in the case of Duarte that there is an immense danger that can be posed by electronic surveillance and the intrusion of the state into individual privacy. He described it as an insidious danger that is inherent in allowing the state in its unfettered discretion to record and transmit our words. Bill C-55 is a positive step forward in that it seeks to provide a better balance between the protection of the public and the protection of the public's privacy.
Now, most importantly from our perspective, Bill C-55 imports the notion and adds a notice provision into the existing legislation of section 184.4. The Supreme Court of Canada agreed with my organization's submissions at paragraph 83 of the case, in saying that, “After-the-fact notice should not be viewed as irrelevant or of little value for s. 8 purposes. In this regard, we agree with the observations of the intervener Criminal Lawyers’ Association.” I won't read it; everyone can read it. Following that pronouncement, our position is quoted by the court.
So the notice provision is a positive step that brings this provision into constitutional compliance as directed by the Supreme Court of Canada.
With respect, another positive feature of this bill is in respect to clause 3. The CLA supports the narrowing of the applicability of section 184.4 to those offences listed in section 183. That goes above and beyond what the Supreme Court said. They were able to leave it more broadly than that. Having said that, I can't really imagine any offences that wouldn't be captured in section 183 that would fall outside that section. Having said that, it's the CLA's position that legislation should be as modest and restrained as possible and the government should be commended for taking those steps.
I'll deal with clause 2, another positive aspect of this bill. This deals with the “peace officer” versus “police officer” distinction. Although that issue wasn't squarely before the Supreme Court, at paragraph 57, the court did express some reservations about the term “peace officer”. Of course, that's a very broad term. Now, clause 2 replaces “peace officer” with ”police officer”, and that amendment is laudable. However, there still is some room for concern and some room for refinement in that language when we see the language of “police officer” defined somewhat broadly meaning, “any officer, constable or other person employed for the preservation and maintenance of the public peace”.
That leaves open the possibility that this definition is overly broad, and that is important, given the exceptional nature of this section. It's a warrantless intercept of private communications, and the CLA submits that there should be no ambiguity over breadth and concerning who could use this section. There should be clarity.
This section, we submit, should provide a clearer definition, and that definition should be restricted to what we conventionally think of as publicly employed police officers. In addition, some consideration may be given to further restricting the use of what is a very exceptional power to supervising officers or high-ranking officers. That is seen in some other areas of the law, and it would provide some additional safeguards, while at the same time keeping alive the purpose of section 184.4.
Clause 5, the reporting clause, is also a very positive addition. The Supreme Court didn't strictly require this reporting to bring the section into constitutional compliance, but the Supreme Court did say very clearly that a reporting requirement such as the one found in section 195 can provide a measure of accountability. Of course, this is accountability to Parliament about how this power is being used and the ways and mechanisms through which it's being used by the police.
Although we support the importation of the section 195 reporting requirements, we submit that, given the distinction between section 184.4 and the other intercept provisions, something more than the section 195 requirement may be considered by this committee. The other sections that deal with intercepted communications deal with communications that are intercepted pursuant to judicial authorization. There has already been that level of oversight. Section 184.4 deals with the warrantless intercept of communications.
And so I would flag that importing the section 195 requirement doesn't recognize the distinction between judicially authorized intercepts and intercepts made under section 184.4. As I said, from a constitutional perspective, that may not be fatal to the bill, but from the perspective of a citizen who reads the report and the Parliament to which ultimately the police forces have to answer through the legislation, this would provide some good oversight, considering the very exceptional nature of this provision.
For example, clause 5 could be amended to ensure that Parliament is provided with clear information not just about the number of arrests or the number of prosecutions or the number of crimes that had been discovered by virtue of section 184.4; the reporting could include the number of times there were no arrests, the number of times there were no offences, and the reasons for section 184.4 urgency. Why was it urgent in those situations? What harm was sought to be prevented? Why could other sections not be used?
Strengthening the language with respect to reporting would provide more accountability, would provide more oversight, and ultimately would provide Parliament and Canadian citizens with the background statistics to evaluate how useful the section is, how much it is being used, information that's really required, when you're looking at balancing this exceptional intrusion into what otherwise wouldn't be lawful against the harm sought to be prevented through these very unusual and urgent situations.
Having said that, it's nice to appear before the committee. I'm often here saying that we disagree with legislation. It's nice to come and see that the legislation is something that we can support and that the Supreme Court of Canada's recommendations are being incorporated. It's unfortunate that it happened 20 years after it was passed, but I'm very happy to be here to say that in large part we support the legislation.
Ms. Françoise Boivin:
Thank you for being here today, Mr. Spratt, especially in response to a last-minute request. Thanks also to your organization for being able to enlighten us.
I do not know if you have had the opportunity to read the Canadian Bar Association's brief, but a number of the elements you mentioned are very similar to what may be found in it. I have some questions for you, just to make sure that I have completely understood what you said.
Essentially, you are saying that a few small questions remain about the narrower definition of “police officer”, though the court did not express an opinion about it. The wording does not clearly state that it could not apply to certain persons. I do not know if you have had the opportunity to see the testimony of the minister and of the Department of Justice officials, but they mentioned that it does not apply to security guards, for example. The fact remains that there may be a need to restrict the definition.
Would you see a major problem if it were accepted as is? As a defence lawyer, do you think that accepting the definition as is would mean that you might end up in court defending cases where the definition is claimed by someone who is not a police officer in the sense of a person employed by the State to keep the public peace?
Mr. Michael Spratt:
I do have some concerns. In subclause 5(3), proposed subsection195( 2.1) requires in its paragraph (a) a reporting of the number of interceptions made; then you have a proposed paragraph after that requiring a reporting of the number of people against whom proceedings were commenced. Now, it's possible, I guess, to tease out from that information, if you have the number of people who are charged and the number of interceptions made, one would think you can do some simple subtraction, to find out that if ten interceptions were made and we have seven cases that were proceeded with, three therefore were not proceeded with.
Unfortunately, if you look through the reports that have already been generated under section 195, you actually can't do that, because from one interception you might have multiple proceedings and you might have multiple people charged. The numbers don't stack up that well, when you look at it.
For example in 2011, under the reporting clause for paragraphs 195(2)(a) and 195(2)(b), we can see that a total of 116 authorizations were made under that section. Then, if you flip to the reporting for paragraph 195(2)(d), the number of persons identified, we actually have 146, which is more than the number of authorizations made. So the math doesn't work out that well, when you look at the reports, which is why I would submit and the CLA submits that especially when you're dealing with this very.... It's going to be used rarely, but it's going to be used in important cases, in serious cases, and it's not judicially authorized. It's a larger intrusion on privacy, for which we would prefer to see a better and a clearer breakdown of the statistics, so that the public and Parliament can see whether this power is being used, how effective it is, and whether there need to be changes, and really to provide that information in a better form than what is already provided in section 195, which deals with those authorizations that have already had a level of supervision through judicial authorization.
Mr. Francis Scarpaleggia:
My last question is on the notion of circumscribing the definition of the police officer empowered, in this case, to use section 184.4, so as to limit the definition to supervisors. I don't know this part of the criminal justice system and how it works. In actual fact, you are saying a supervisor would have to become involved anyway under pretty much any circumstance.
Is it possible that in a very small number of cases this requirement could slow things down? Some have suggested that in using section 184.4, there should be a little more paperwork for the purposes of record-keeping and therefore to be able to see after the fact whether everything was properly done or was justifiable.
The court suggested, if I'm not mistaken, that it wasn't a good idea to force too much record-keeping on the police officer while he or she is implementing section 184.4, because that just slows things down, and the purpose of the section is to act quickly in exigent circumstances.
I'm wondering whether it's possible that in some cases, restricting the definition to “supervisor” could be problematic and could slow things down.
I don't know how the police work, in actual fact. I imagine all police officers, not only supervisors, are trained in wiretapping techniques. Anyway, I thought maybe you could comment on this.
Ms. Raji Mangat:
Good afternoon. My name is Raji Mangat. I'm counsel at the B.C. Civil Liberties Association. The BCCLA is a non-partisan, non-profit organization based in Vancouver. I am pleased to be here today to speak with you about Bill C-55. Thank you for this opportunity. The BCCLA supports the committee's work in carefully and narrowly framing the process for the use of these exceptional powers being discussed today, and we agree with many of the amendments.
Subject to the concerns raised by Mr. Spratt in his presentation, the BCCLA is pleased to see that Bill C-55 will limit the use of section 184.4 to police officers. This is in our view a sensible and necessary amendment that supports the rationale behind the provision, to provide a means by which law enforcement can prevent serious and imminent harm on an urgent basis.
On that note, the BCCLA is also pleased that Bill C-55 limits the application of warrantless wiretapping to circumstances in which the goal is to prevent the commission of an offence. The addition of a notice requirement to individuals who have been subjected to warrrantless wiretapping brings section 184.4 in line with other provisions in the Criminal Code. The notice requirement provides transparency and serves as an essential check on this extraordinary power to intercept communications without judicial authorization.
The reporting requirement in Bill C-55 is also a welcome amendment, as it will enhance police accountability. Together, the notice and reporting requirements bolster accountability and oversight in the use of warrantless wiretapping, and the BCCLA supports amendments to gather more data.
I appear before you today, however, to alert you to an inadvertent oversight in the amendment that might have unintended consequences. The absence of clear timelines for the use of warrantless wiretaps suggests that there is a genuine risk we may see this provision used to undermine the normal wiretap regime. As the committee's intention with these amendments is to provide the police with a stopgap measure by which to prevent serious harm in urgent circumstances and not to create an alternative to the normal wiretapping regime, it will be clear to the committee that the provision requires the inclusion of a maximum time limit for the duration of a warrantless wiretap.
Section 184.4 is unique. It is one of only two sections in the Criminal Code that permit interception of private communications without a specific time limit and without judicial authorization. The only other provision that allows for this, section 184.1, permits it only with a person's consent in order to prevent bodily harm to that person. So section 184.4 is truly exceptional. It allows for the interception of private communications without judicial authorization, at the sole discretion of officers, prior to any offence or unlawful act having been committed.
As it is currently drafted, Bill C-55 grants police officers a broad and invasive power to intercept personal private communications for an indeterminate period of time. Bill C-55 does not provide guidance to police officers about how long they are permitted to exercise this extraordinary power.
The type of emergency situation contemplated here, one that is so urgent that the police have no time to seek any other form of warranted interception, not even a telephone warrant under section 184.3, is one that will necessarily be brief. If it truly is to be used in exigent circumstances, then by nature its duration must be short. No time limit capping the use of section 184.4 means that the interception could be indefinite and still be perceived as lawful.
For there to exist a power to intercept that is supposed to be based on exigent circumstances but that provides no upper limit on how long that interception may continue would inadvertently undermine the normal wiretap regime already in place in the Criminal Code. A wiretap is by its nature indiscriminate. It captures all communications taking place on the tapped device, including all manner of private, personal, possibly even privileged, confidential communications; communications that may have no bearing on the serious harm that is sought to be prevented; communications with third parties who may have no knowledge of the offence that is possibly going to be committed. Yet these are people who retain a significant interest in their privacy being protected.
Interceptions under section 184.4 are preventive, and therefore in some manner they are also speculative. We must remember that they are being sought without judicial authorization and are intended to be used in the narrowest of circumstances when the police have to act immediately with no time to spare. They are the warrant equivalent of the police entering a home in hot pursuit. But unlike cases of hot pursuit, these cases display no inherent time limitation for the use of the wiretap, and they carry the risk of capturing all sorts of information that is highly personal and private.
A limit to the discretionary power conferred by section 184.4 is necessary to protect privacy rights. Clear wording providing a time limitation on the use of this provision is necessary to support the committee's vision of a carefully and narrowly crafted process for the use of these extraordinary powers. Other wiretap provisions in the code, such as subsection 184.3(6) and subsection 188(2), both of which require a prior judicial authorization, limit the interception to a maximum of 36 hours. In evidence at the lower court in R. v. Tse, the RCMP's “E” division was stated to have a policy whereby warrantless interception was limited to a 24-hour period.
A warrantless interception should be more limited than one in which there is a warrant and prior authorization must be sought. In cases in which there is no warrant, it is all the more imperative that the power not be exercised indefinitely. An inadvertent result of a lack of a time limit in the legislation is that it could result in the de facto operation of two parallel wiretap regimes, one in which prior judicial authorization is sought and one in which the need for a warrant is disposed of in urgent circumstances.
As the committee is aware, the Criminal Code already consists of a thorough regime governing the interception of private communications. A time limit to the use of the warrantless wiretap provision would make it clear that, after the urgent circumstances in which police officers are appropriately empowered to make use of this special power, they are required to revert to the normal regime concerning wiretaps for any continued interception.
The BCCLA urges the committee to explicitly adopt a 24-hour maximum time limit on the use of warrantless wiretaps, as this will support your efforts to craft legislation that appropriately empowers the police to use these powers only in the exigent circumstances within which their use is intended. That will sufficiently protect the privacy rights of Canadians.
Thank you for your time.
Ms. Françoise Boivin:
My next question is for Madam Mangat.
Thank you very much for your patience. It is one of those crazy days here on the Hill, and we have to finish the study of Bill C-55 today.
I understand the points you are making about warrantless interceptions under section 184.4. However, we can see Bill C-55 as a response to the Supreme Court decision in R. v. Tse.. The Supreme Court's main difficulty was the following:
|| Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will 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 s. 184.4. In its present form, the provision fails to meet the minimum constitutional standards of s. 8 of the Charter.
Bill C-55 expressly provides that people be informed that they have been the object of surveillance or that their conversations have been intercepted. Perhaps all the problems surrounding interceptions and electronic surveillance will not be solved. Let us focus on Bill C-55. Does it not address the problem raised by the Supreme Court in that respect?
We have to keep in mind that it deals with very specific cases. According to the wording, conditions must be met.
“A police officer may intercept, by means of any”—whatever means—“(a) the urgency...”. They'll have to prove it at some point in time in court if somebody is sued:
||(a) the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained
The officer must prove that he could not obtain the so-called authorization and that:
||(b) the interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property; and
||(c) either the originator
There are some boundaries. Am I correct in saying so? The person will be notified also, so if at some point in time they think it was
…counter to their fundamental rights under the Charter, there could be challenges.
Does the bill not expressly address the Supreme Court's concerns and its request for a correction?
No, I think I'll do it tomorrow morning at 10 a.m., if you really want to show up.
Shall the committee order a reprint of the bill as amended for the use of the House? Oh, sorry. There's no amendment, so it doesn't need a reprint. I thought we'd just kill a few trees, but I guess not.
Very good. That's it for tonight. I want to thank everyone for coming back.
Just so my colleagues know, we had invited the minister for the 18th to talk about supplementary (C)s, in which Justice has one line. The minister cannot make it at that time. My understanding is that there's a cabinet meeting or some sort of cabinet event.
Based on our discussion, we will go to Parm Gill's bill, Bill C-394. He will be the first hour, with witnesses there, and then we'll have another hour of witnesses on the Wednesday, and then we'll go clause by clause.
What happens with estimates and supplementary (C)s, or any supplementary estimates, is that they have to be presented in the House within three days after the last supply day, which may happen prior to that anyway, so we'll see. I'm not sure when the supply dates are. Those are called by the House leader.
That's what we'll be doing on the 18th. The main estimates have to be back in the House by the end of May, so I think we should set a date or dates to talk about the mains and give the minister lots of notice about when we would like him to appear for those.