I am taking us back to the day that Bill C-30 was tabled in the House. It has become convenient to have revisionist history that the Minister of Public Safety was somehow off message when he attacked all of us in the opposition as either standing with child pornographers or with him. It is worth remembering that at first reading no one could find a copy of Bill C-30 in the opposition lobby that did not call it a bill for warrantless access. The use of the term “a bill for the protection of children from Internet predators act” was such a last-minute change that it was not even possible to find a single copy, other than the one that had been tabled for first reading.

My theory on those facts is that it was a PMO-approved bit of spin-doctoring and the mistake the Minister of Public Safety made was delivering the line with too much zeal.

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I ask the parliamentary secretary why we did not take the advice of the Canadian Bar Association, the British Columbia Civil Liberties Association and the Criminal Lawyers’ Association to ensure that we have additional oversight measures, including having lists that show when a wiretap did not lead to arrest and ensuring that the policemen who make these decisions without warrant record their reasons for having reasonable, probable grounds for doing so.

Robert Goguen: Mr. Speaker, we all aspire to ensure that matters of constitutionality are safeguarded. However, in instances when there are emergent needs to protect the safety of the public, it is not always possible to take measures such as making very copious notes or taking steps that may slow down the process that ultimately leads to guarding our safety.

While we respect the member’s amendments in regard to having a full and complete record as to why a wiretap was used versus having obtained judicial authorization, emergent circumstances dictate that it is not possible to always write copious notes as to why such emergency measures were taken.

It is a matter of balancing the security of the public and the charter rights of citizens, and we feel that the bill, as it stands, meets all those requirements.

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This debate obviously concerns my amendments. I want to ask the member whether he supports the idea that it is very important for this House of Commons and for all members to make this bill as strong as possible, to make it comply with the charter. Politicians and groups of expert lawyers currently feel that the bill is a little too weak because we have not added the amendments to obtain more compliance reports or to determine whether a police officer can use this section of the Code.

That is my question.

Hoang Mai: Mr. Speaker, I would like to thank the member for Saanich—Gulf Islands for her question.

In theory, yes, we agree that attention must be paid to the charter and that privacy must be protected. That is very important. Wiretapping must be used in emergencies and really on an exceptional basis.

My colleague raised certain points when we studied this bill in committee. First, we received assurances from the witnesses who were there. They represented all kinds of positions. They were not simply government people. We really got assurances in that respect. I know that my Liberal colleague also proposed an amendment regarding reports, but subsequently changed his mind. The witnesses told us that the provinces already had a certain duty to prepare reports in that respect.

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The reason this issue was put forward by the Canadian Bar Association was actually to get it right. This is not to say that there are not other places in the Criminal Code where we find that definition, but in this specific instance, which is a quite extraordinary intrusion of the state into the personal lives of its citizens, it is trying to make it clear that not just anybody can do this, and that even within the police force, as the Canadian Bar Association letters to the committee pointed out, certainly “Special training and oversight are necessary for police officers who have such potentially intrusive power.”

It is basically suggesting that maybe it is not the cop on the beat who gets warrantless wiretap permission in exigent circumstances. Those same persons, by the way, should be capable of saving their notes from the case. Handwritten notes are all that are required to memorialize why they thought there were legitimate grounds to seek this extraordinary power of intruding into people’s private lives.Mr. Speaker, I want to thank my colleague for her statement.

I read all of the testimony given in committee, and, as I said earlier when I addressed the House, the minister answered my colleague’s questions. Nevertheless, some serious questions remain concerning this bill.

Does my colleague agree with me that the changes brought about by today’s amendments would improve the bill?

Françoise Boivin: Mr. Speaker, I will answer the question as follows.

When we looked at the definition of police officer or when we had queries about the contents of reports, we understood that much of this falls under provincial jurisdiction. Therefore, I think we have to focus on the answer to be given to the dictates from the Supreme Court of Canada.

This does not mean that we cannot study the other aspects in greater depth, but they give rise to other problems. I personally do not have a clear-cut answer as to whether using the amendment creates more problems than it solves. That is what was raised by this type of amendment.

Regarding the R. v. Tse case, it would be preferable to leave the text as it stands. Later on, other steps will perhaps have to be taken in terms of wiretapping or interception. However, on the basis of R. v. Tse, the response is more than appropriate.

There are still questions about closing the definition of “police officer”, as my colleague wants to do. Witnesses told us that this would cause some problems. In some places, the situation is perhaps not described in the same way, but there is already a clear picture of this other person who keeps the peace.

Regarding the fact that time is limited, I think that the government will have to take the blame, because it is the government that is pushing for this exercise to be carried out so quickly. That being said, the only question the House must ask is whether the response to the principle requested by the Supreme Court is appropriate. The answer is simply: yes. Unfortunately, what is left leads to too many other questions.

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As the House will know, this legislation was brought forward in place of or at least after Bill C-30 was withdrawn. It was the so-called protecting children from Internet predators act. I do understand the reasons for urgency.

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This legislation, Bill C-55, is in direct response to a decision of the Supreme Court of Canada in R v. Tse, in which the court found that the current emergency wiretap provisions failed the charter test. The court suspended its ruling for 12 months to allow the House to remedy those sections of the Criminal Code such that they would conform with the charter. The clock started ticking when the Supreme Court rendered its decision, which was April 13 last year. We have a small amount of time to correct those mistakes.

I want to start my discussion of the amendments I am putting forward by stressing that I also support Bill C-55. It is, overall, well crafted and meets the challenge of ensuring that this extraordinary power of the state to obtain emergency wiretaps without a warrant—and this is what we are talking about—which is quite an egregious invasion of the privacy of the individual citizen, is balanced and only justified in exigent circumstances when certain standards have been met. It is only charter compliant, according to the Supreme Court decision in R v. Tse, if there are adequate oversight mechanisms put in place.

My amendments go directly to the point that we do not want Bill C-55 to be struck down by a future court because we failed to put in place the adequate oversight provisions and because we failed to get the balance just right, based on the advice of the Supreme Court.

I am just going to take a moment to go back to the ways in which the Supreme Court of Canada’s decisions around these matters have evolved in very recent years. It was not long ago that our major authority, the precedent from the Supreme Court of Canada that governed in this area, was a 1990 case, R v. Duarte, in which Mr. Justice La Forest found that:

as a general proposition, surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under section 8 of the Charter.

It takes quite a bit of evolution within court decisions to ask how we justify sections 183 and 184 of the Criminal Code in allowing the state, without access to a warrant or even judicial review of any kind, to go forward and wiretap private communications.

That process is now settled in a new precedent of the Supreme Court of Canada in R v. Tse, in which the court ruled in the majority that yes, in these exigent circumstances, where, for instance, there is a kidnapping or another criminal event where a life is at stake and there legitimately is not time to get to a judge for a warrant, it is now going to be acceptable under the charter.

What is not acceptable under the charter is when these powers are not adequately supervised. I think that needs to be a foundational point that is stressed here. These are intrusions into the private lives of Canadians that in any other circumstance would be viewed as charter violations. This House must craft, very carefully, that rare exception when we are going to let the state intrude on our personal communications.

I am troubled, sometimes, when I hear the comment: “Why would we worry if people want to wiretap criminals? The only people who would be worried about that would be people who have something to hide”.

We need in this country to constantly remind ourselves why we prize the Charter of Rights and Freedoms, and before the Charter of Rights and Freedoms why western democracies, the British Empire, our common law, and centuries of practice and respect for the rule of law recognized that the state has no business knocking down a person’s door. It is literally pushing through doors and breaking into houses and invading our privacy, which in an electronic era includes wiretapping.

We have to remind ourselves why civil liberties matter. We have to remind ourselves of this fairly constantly, because in not just this instance but in other laws passed through this place, we are seeing an erosion of our respect for the idea of civil liberties through resort to such rhetoric as “Well, only criminals need to worry” and “We shouldn’t be so worried about criminals as we should be about victims.” A victim of an injustice of the state invading our civil liberties is no less a victim than the person mugged on the street. We need to pay attention to civil liberties. That is why I am putting forward my amendments.

The court ruled very clearly in R. v. Tse that the failure of the current Criminal Code provisions was a failure to have adequate accountability measures. The court did not set out what the accountability measures should look like with any degree of specificity, so Bill C-55 attempts to, and does, put forward accountability measures; however, will they pass the charter test in a future Supreme Court case? My submission to the House—and I urge other members to vote with me—is that we make the bill much safer and more secure against being struck down later by improving the accountability measures.

The amendments I put forward would ensure, for instance, that the intercepted communications would require an Attorney General report, which would include records of all those wiretaps for which no charges were ever laid and would require the police officer in question to memorialize the reasonable grounds he or she had at the time for seeking warrantless wiretap evidence. We would record and report as much information as possible to ensure that the oversight statutory process in Bill C-55 would meet any future charter challenge.

My amendments are based on recommendations primarily from three groups that testified before the Standing Committee on Justice and Human Rights: the Canadian Bar Association, the British Columbia Civil Liberties Association and the Criminal Lawyers’ Association. Those three bodies recommended, in the language I have used, the amendments I am putting forward today.

They strive to ensure that there be a requirement to publicly report the numbers of persons whose communications were intercepted but who were not subsequently charged. They include a requirement for the police officer’s justification for the interception to be recorded and memorialized and would also ensure that if subsequent judicial authorizations were obtained on the same grounds as for the interception under section 184.4 of the Criminal Code, evidence obtained by a further section 184.4 interception may be ruled inadmissible.

The other piece I want to mention briefly is something that was not part of the res judicata of R. v. Tse but that was certainly significant obiter dicta, and that was the court’s concern that the definition of “peace officer” was overly broad. I cite the decision of the court on this matter, and there was not a dissent. At paragraph 57 of R. v. Tse, the court noted it would agree that:

We, too, have reservations about the wide range of people who, by virtue of the broad definition of “peace officer”, can invoke extraordinary measures permitted under s. 184.4. That provision may be constitutionally vulnerable for that reason.

I am not saying that the Minister of Justice has not taken account of this obiter dicta. The revised Bill C-55 no longer uses the term “peace officer”. The revised Bill C-55, in clause 2, changes the term “peace officer”, which was overly broad and could include anything from mayors and reeves and so on, to “police officer”, but then in the definition adds an element of overly broad definition by saying:

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

I remain concerned despite the quite interesting testimony, and I thank the justice critic for the official opposition, who pursued this point with the Minister of Justice. I am less sanguine about leaving in the term “or other person”, so one of my amendments would remove the term “or other person” to further clarify the act and ensure that it is not constitutionally vulnerable.

I will conclude by saying that my amendments are put forward in the interests of ensuring that Bill C-55 will survive any future charter challenge and I recommend them to my colleagues.

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