Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 33 - Evidence for March 26, 2013
OTTAWA, Tuesday, March 26, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-55, An Act to amend the Criminal Code, met this day at 9:03 a.m. to give clause-by-clause consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: As honourable senators know, we are meeting today for the purposes of clause-by-clause consideration of Bill C-55, An Act to amend the Criminal Code, R. v. Tse Act. We do have senior officials from Justice Canada in the room, and they can be called to the table if, at any point, committee members have questions.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-55, An Act to amend the Criminal Code?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the alternative title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Senator Baker: Mr. Chair, I am wondering if we could perhaps hear from someone from the Department of Justice present in the room regarding this particular clause, keeping in mind that the Supreme Court of Canada has said that the provisions that we are dealing with here today were previously introduced on three occasions by the government. I believe that one of the officials from the Department of Justice, who is present here today, had given testimony in another proceeding in which she explained why this particular section was inserted.
The Chair: Would the officials here care to come forward?
This is Ms. Audcent, who appeared before the committee yesterday. She is Senior Counsel, Criminal Law Policy Section of Justice Canada. Carole Morency is joining her. She is Acting Director General and Senior General Counsel of the Criminal Law Policy Section. Please proceed.
Karen Audcent, Senior Counsel, Criminal Law Policy Section, Justice Canada: In terms of legislation that was previously introduced containing these amendments, Bill C-31 was the first. Following that, there was Bill C-50, which also contained these amendments. Following that, there was Bill C-30, which also contained these amendments.
There was one difference, however, between the current legislation, Bill C-55, and those three previous legislative proposals to address this problem, and that was the definition of "police officer'' that changed to amend the law from "peace officer'' to "police officer.'' That was included in Bill C-55, but not in any of the previous legislative proposals.
Senator Baker: Am I to understand that you are saying that the provisions that we are dealing with here today were included in three previous bills introduced in Parliament but not passed? I am not understanding what the difference is. What is the difference between the previous legislation and this legislation?
Ms. Audcent: The previous bills were responding to the lower court decision, and this bill, Bill C-55, is responding to the Supreme Court decision, which came out subsequent to the introduction of Bill C-30. One thing that the Supreme Court mentioned in their decision was that the government should look at whether "peace officer'' was too broad a term. They did not make a decision that it needed, constitutionally, to be narrowed, but they recommended that it be looked at. The government has looked at it and proposed, in Bill C-55, that we narrow the availability of section 184.4 from "peace officer'' to "police officer.''
Senator Baker: I am still not understanding what you narrowed. In the previous bills that you introduced, did you have the term "police officer'' in the legislation where "peace officer'' is presently in the code?
Ms. Audcent: No. It remained, in the previous efforts, "peace officer.'' Only Bill C-55 proposed to amend it to "police officer.''
Senator Baker: The clause that the chair has just called, clause 2, has nothing to do with what we are presently talking about because we will get to that in a moment. "Police officer'' replaced "peace officer'' in the actual content of the sections being amended, but this is a new thing that is not recommended by anyone that I know of. I read the trial judge decisions and the Supreme Court of Canada decisions, and no decision asks the government to put in this clause 2. I am wondering how it came about that this was put in.
Ms. Audcent: The definition of "police officer'' comes from a provision in the Criminal Code where it already exists as the definition of police officer in relation to proceeds of crime.
As I said, the reason for proposing this new idea was to respond to the obiter dictum — the comment — from the Supreme Court that "peace officer'' was perhaps over broad for section 184.4.
Senator Baker: Proceeds of crime is a completely different matter that would take us an hour to discuss reasonably.
Let me ask you this: Why would the Department of Justice have this particular definition in an enforcement section of the Criminal Code that makes a police officer anyone who is employed for the preservation and maintenance of the public peace? Under the definition of "police officer'' what group of people was the department thinking about to include?
We have gone over this before in this committee: A dog catcher is not a police officer, although a dog catcher is defined in provincial legislation as a person employed for the preservation and maintenance of the public peace.
What brought the department to enact a new definition for "police officer'' in the enforcement of the law to include such a description of a person who now becomes a police officer? Give me an example.
Ms. Audcent: As I mentioned, we took the definition from an existing definition. The reason why we felt that this definition would be useful in the context of section 184.4 is that when we spoke to different people covered under the definition of "peace officer'' to see if there were any issues with narrowing it to "police officer,'' the military said if definitions along these lines are used then they will be covered. If you simply used the term "police officer'' and do not define it, which would be another option in terms of narrowing it to "police officer,'' we have some concerns that it might be interpreted that military police would not be included. Military personnel are the first responders on a military base, they are the first responders of jurisdiction, and so they could envisage a situation where authority under section 184.4 would be required for them to respond to a bomb threat or a crisis situation. They were concerned that this definition of police officer would definitely include them, but the simple phrase "police officer'' without definition perhaps might not be interpreted to include military police.
Senator Baker: That is a very good example and it explains why you attempted to include them in the definition of "police officer.'' It is a good example because we changed the National Defence Act back in 2000 to allow military police to enforce the Criminal Code. Prior to that, all Criminal Code provisions were prosecuted in civil courts. Now it is under a military jurisdiction. However, a military police officer has no authority outside the gates of the base. That is firmly entrenched in case law. The judgments of the court have said that they do not have the authority to enforce the Criminal Code of Canada. That is the reason outside the base, outside their authority. That is the judgment in all cases.
In the case of dog catchers, there are cases of dog catchers who had authority and so on. They do not have the authority to enforce the Criminal Code of Canada. The common thread is that you were trying to include people who do not have authority to enforce the Criminal Code of Canada.
I do not know if you want to answer this question, but I am wondering why the people who make up these provisions for the public do not just say "or other person who has authority to enforce the provisions of the Criminal Code of Canada.'' That would erase the dog catcher as being a police officer. It would then zero in on the person you sought.
I do not know if you want to comment on that. I just make the comment for the sake of future provisions in which they are trying to define "police officer'' and get to the actual meat of it instead of encompassing a group of people who should not be encompassed under the definition of "police officer.''
The Chair: Does anyone else wish to comment on this clause?
Senator Batters: Is it not true that other iterations of this particular bill contain many more significant portions other than just addressing this particular issue that Bill C-55 addresses?
Ms. Audcent: Yes, that is correct.
Senator Batters: Could you give a couple of examples?
Ms. Audcent: Bill C-31, the first bill I mentioned, dealt with other matters relating to updating the Criminal Code and criminal procedure. This was a part of that. Bill C-50, the second one, contained both these amendments for the Tse decision, as well as to simplify the process for getting related warrants when you are seeking wiretap authority. That is not included in Bill C-55. Then Bill C-30 included a number of other elements, both the elements of Bill C-50 that I just mentioned, as well as what had formerly been in Bill C-51 was in Bill C-30. Bill C-51 was aimed at updating the Criminal Code and some other statutes — Mutual Legal Assistance in Criminal Matters Act, the Competition Act — to permit the ratification of the Council of Europe Convention on Cyber Crime and update the criminal law in those other statutes as well for new technology.
Bill C-30 also included what had formerly been in Bill C-52. There were also two purposes for those proposals, which were to require telecommunications service providers to have interception capability in their networks and also to require telecommunication service providers to provide certain basic subscriber information to designated persons on request, such as basic information of name, address, phone number and IP address.
Senator Batters: Thank you very much. That is helpful.
The Chair: I will ask the witnesses to remain at the witness table rather than going back and forth, in case there are questions moving along.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 5 carry?
Senator Joyal: Question.
[Translation]
Senator Joyal: My question is for Ms. Morency. I would like to talk about clause 5(3), which amends section 195 of the Criminal Code, and more specifically about subclause 2.1(b), which sets out what the report that publicizes interceptions must contain. Subclause (2.1) reads as follows:
(2.1) The report shall, in relation to the interceptions referred to in paragraph (1)(c), set out
(b) the number of parties to each intercepted private communication against whom proceedings were commenced . . .
Am I to understand that individuals who were parties to an intercepted communication, but against whom charges were not laid, will not be mentioned in the public report?
Carole Morency, Acting Director General and Senior General Counsel, Criminal Law Policy Section, Justice Canada: To answer your question, yes, that is correct. That is what the Criminal Code contains today regarding reports that are mentioned in another part of that legislation.
[English]
Yes, this is correct. The global numbers of how many interceptions are used or imposed are reported on. The ones that would lead to charges and prosecutions are also reported on.
[Translation]
Senator Joyal: Moreover, midway through subsection 196.1(1), the following is stated:
196.1 (1) . . . if the interception relates to an offence for which proceedings may be commenced by the Attorney General of Canada . . . shall give notice in writing of the interception to any person who was the object of the interception within 90 days after the day on which it occurred.
Am I to understand, based on the interpretation of this provision, that, if a person who was the object of an interception is not eventually prosecuted, that person will not receive a notice informing them of the fact that they were the object of an interception?
Ms. Morency: I would like to ask my colleague to answer that.
Ms. Audcent: The reception of a notice has nothing to do with whether or not the person was prosecuted. It has to do with whether or not they were the object of an interception.
Senator Joyal: If I rephrase your answer, anyone who has been the object of an interception, regardless of whether or not they were prosecuted afterwards, will receive a notice within 90 days. Is that correct?
Ms. Audcent: Yes.
Senator Joyal: In addition, will the public annual report not mention or account for individuals who have not been prosecuted?
Ms. Audcent: The report will include the number of notices. That will be mentioned.
Senator Joyal: Do you know that the court has never ruled on the idea of revealing the identity of individuals who have been the object of an interception, but who were not eventually prosecuted?
Ms. Audcent: I do not understand your question.
[English]
Senator Joyal: I refer to the Michaud case. Is that case known to you?
Ms. Morency: Perhaps to add, the Supreme Court decision in the Tse decision did not require reporting as Bill C-55 proposes. The intention of Bill C-55 is to take the court's direction and go further, build on it and make it similar to what exists in the Criminal Code for the other interception provisions so you have a consistent approach in terms of the reporting obligations.
[Translation]
Senator Joyal: If I read the Michaud case, I see that there is a slight difference between what is stated in it and what you are saying. The court reserved its opinion on revealing the identity of individuals who have been the object of an interception, but who were not prosecuted. The court reserved its opinion on that matter. It did not substantiate the current practice of withholding the names of individuals who have been the object of an interception without being taken to court.
[English]
That is why, in my opinion, the Canadian bar has raised this issue because the question remains open. By legislating that section the way it is drafted, I agree with you, the question remains open and could be subject to further adjudication by the court. Of course, then we would have to amend the Criminal Code again to reflect the specific fact that the court has reserved its opinion on that section.
Ms. Audcent: This aspect refers, I believe, to the existing provisions in the Criminal Code. Obviously, this part that we propose in Bill C-55 has not been brought forward yet.
We did not take the approach with Bill C-55 of addressing everything with respect to the provisions in the Criminal Code. As Ms. Morency mentioned, we addressed ourselves to replicating the existing provisions for 184.4. I do not think this bill is designed to fix every issue with respect to Part 6 provisions. It is true that there are many issues with respect to Part 6 provisions that perhaps could be improved, but this bill is designed only to that narrow purpose of responding to the Supreme Court decision in Tse and applying the safeguards consistently with the way they exist in section 184.4.
Senator Joyal: Yes, but in a decision relating to interception, the Supreme Court signaled that there is a problem that has not been raised by the parties but it is still there, in my opinion. It is our responsibility as legislators to reflect the preoccupation that the court has identified in a decision that pertains to the interception of communications. I agree with you that it will not solve all of the problems in the Criminal Code. However, we are not talking about all of the problems in the Criminal Code; we are talking about the interception of communications. That is why I raise the point.
Ms. Morency: The only thing to add, then, of course, is that the government is concerned with the time line that is ticking on the Supreme Court's decision in R. v. Tse — a narrow response to a very specific problem, failing which, as of April 13, 2013, the use of section 184.4 will no longer be available to law enforcement in these urgent circumstances. Certainly, we will bring back your comments, senator.
Senator Baker: Thank you for your answers. As Senator Joyal pointed out and as you pointed out, Ms. Audcent, you are replicating what exists in the Criminal Code relating to 186 and 188. However, the replication in this case means that you go back to a Supreme Court decision in Michaud that said this does not cover everyone who has had their phones tapped. We have a decision from the Supreme Court that the government is trying to respond to. In its broad interpretation, the people of Canada have a right to know if their phone has been tapped — if they have been listened to by the police. Therefore, because of that right, Canadians should be notified 90 days after the fact or extended for three years or three years beyond that if they are part of an investigation. Innocent people should have a right to know. That is why I agree with Senator Joyal that the government and the Department of Justice should keep this in mind in future modifications of the law regarding privacy rights.
I would like to ask you a further question on this. We heard evidence that said this proposed section is impossible to administer. Yesterday, the Deputy Chief Constable of the Vancouver Police Department addressed the committee and said that this entire provision indicates three or four times what they have to release, as was quoted a moment ago: the offences for which a prosecution had commenced, the offences for which a prosecution had concluded, and the numbers of people prosecuted. The deputy chief, I believe on behalf of all police officers in Canada, said that you cannot do that. You cannot report in one year on all the interceptions that resulted in a prosecution in the previous year because these things can go on for years and years in some cases, as Senator White pointed out about these investigations.
I do not know if the department has turned its mind to this problem of demanding in law that the police have to do something that is impossible to do; yet we keep repeating it over and over when we know it is impossible for them to do. We get statistics that, as a committee of sober second thought, we do not even know. The statistics do not tell us the truth, as the deputy chief said yesterday. I do not know if you have any comment on that. I do not know if you wish to even comment on it. Do you want to agree with the deputy chief?
Ms. Audcent: As you mentioned, prosecutions can take multiple years. I know that police respond to that by providing updates in the context of their report. They are aware that if they are reporting in one year, they do not have the complete story because of the multi-year nature. The approach of the RCMP is to provide the Attorney General with updates so as to give as complete a picture as possible.
Senator Baker: Yes, but we have to be true in our legislation, the chair would admit. We have to be accurate. We cannot demand things of the police that are impossible to perform, yet keep it within the law. I reference for your benefit as well this particular section. As Senator Joyal said, in 184.4 the reporting of the numbers of interceptions is different from 185 and 188. Proposed section 195.1(c) states:
. . . if the interceptions relate to an offence for which proceedings may be commenced by the Attorney General of Canada.
None of the other provisions say that. They do not say "if the interceptions relate to an offence for which proceedings may be commenced by the Attorney General of Canada.''
Of course, they could not say that because we do not know. This comes after the fact. Again, it is confusing. We have two former police officers on this committee. As you say here, proceedings may be commenced. They are the ones who commence the proceedings by the laying of an information, a charge. That is the commencement of proceedings, so that is wrong. You say by the Attorney General. The Attorney General lost that right years ago, in 2006, when we gave it to the Public Prosecution Service of Canada. Perhaps this is just a suggestion and then I will shut up, but say "for offences that may be prosecuted under federal jurisdiction'' or something like that. When you put in "offence that may be commenced by the Attorney General of Canada,'' it is a misnomer. It is a misleading phrase and it can lead to all kinds of complications. Lawyers will look at this and say, "Whoops,'' and waste the court's time in challenging this when it should have been worded differently.
The Chair: You have no response or comment on Senator Baker's perspective?
Ms. Audcent: We did use the wording in order to be consistent with the wording that is there right now. In the context of section 184.4, because it is a process that does not require court authorization, we went back to the language in section 185, which talks about proceedings commenced by the Attorney General or others. We replicated that to try to keep the divisions between who was doing what consistent with what it is today.
The Chair: Shall clause 5 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 6 carry?
Senator Fraser: I have a question. Can you confirm for me my present understanding that in section 196.1(1), the phrase "any person who was the object of the interception'' has a narrow meaning? It means only the person who was the actual target as distinct from other persons who might be caught up, or would be, by definition. Interceptions would include private conversations.
Ms. Audcent: I know that the phrase "object of the interception'' is interpreted in some jurisdictions more narrowly and in some jurisdictions a bit more broadly. I think the baseline for police in terms of notification and how they respond to it is: Are the parties identifiable? In other words, sometimes, when a third party is identified, they will also receive notice. I know that some jurisdictions take a very broad approach to notification and really do send out notice to everyone they can possibly identify. Other jurisdictions interpret "object of the interception'' somewhat more narrowly in terms of how notice is applied today.
Senator Fraser: I think you may have been in the room, Ms. Audcent, when Deputy Chief Constable Lemcke was here. When I asked him that question, he said, "We would notify the target, period.'' He is in Vancouver, which is not a small jurisdiction. Is this basically a matter for local discretion?
Ms. Audcent: I think the language of the code is "the object of the interception,'' but what I was trying to indicate is that some jurisdictions do have a practice that interprets it more broadly.
Senator Fraser: Thank you.
Senator Joyal: You confirm my concern, which is essentially that somebody who is caught in that interception will have his privacy rights violated, contrary to the Charter, but will never be informed that he or she has been the object of such a violation. That seems to me to be a little encompassing as a statement.
Ms. Audcent: I think the object of the interception will always be notified. It is a question of whether some of the more extraneous persons who were not in some interpretations considered to have been an object of the interception might be notified.
Senator Joyal: Should the rights of Canadians not be the same across the country, especially in relation to section 8 of the Charter? This is section 8 of the Charter that is at stake.
Ms. Audcent: The Supreme Court was comfortable with "the object of the interception'' in terms of the view that the language that was proposed in Bill C-30 would respond in terms of notification requirements. The court did reference Bill C-30 and note that the government had proposed notification. We feel that we are responding to the Supreme Court's direction.
Senator Joyal: I will make the same comment I made in relation to Michaud. The court did not have to pronounce on this, but the Supreme Court raised or flagged the fact that they did not pronounce on it because the issue was not in front of them, but they were concerned. They mentioned it specifically in the Michaud case. It is quite clear the court has in mind that there are Canadians whose privacy rights will be violated but will have absolutely no benefit of the law in relation to a criminal proceeding that might affect them laterally, but their rights will be at stake in it and should be treated according to the norm that the Charter provides relating to section 8. It is quite clear. I understand you say that you conform to the letter of the judgment but, as I said, the court opened this issue.
It is important that this be on the record of this committee, especially the Legal and Constitutional Affairs committee, because in my humble opinion this issue will come back any day because now that it is quite clearly stated in the Criminal Code, it will be interpreted and will be raised in future proceedings. As legislators, when we are called upon to approve legislation. When we are made aware that there is a pending problem in relation to it, it is for us to signal it. We are under oath.
Ms. Morency: If I may, we understand the comments about Michaud, and we will certainly take that back. We understand the concerns more generally about perhaps the benefit of a broader review and consideration, and we certainly will take that back.
To bring us back to the focus of Bill C-55, the Supreme Court upheld section 184.4 as an interception power. What it found unconstitutional in those circumstances was the lack of the notification to the object of the interception, which is exactly what Bill C-55 responds to. While I appreciate the concern that has been raised this morning, the view is that Bill C-55 does respond specifically to the issue that was squarely before the Supreme Court on section 184.4, which upheld 184.4 in its general operations. What was unconstitutional was the absence of that notification to the object of the interception, and Bill C-55 corrects that and then goes further to build in other safeguards to bring this interception power and put it on the same footing as others that exist now in the Criminal Code.
Senator Baker: I have one final question on this point about these sections of the Criminal Code. When you look up to try to find out how many people's telephones have been tapped, how many people's Internet things have been tapped, how many people's homes have had bugging devices put into them under certain sections of the Criminal Code and you get to this part that we are dealing with, and it says that the Attorney General of each province shall, as soon as possible after the end of each year, prepare and publish or otherwise make available to the public a report.
I know that individual members of this Senate committee have been looking for evidence from the provinces as to how many interceptions there have been. I can tell you from conversing with members around the table that there are very few provinces that they can get any information on. For example, in the Province of Ontario, where is it found? We went to the Gazette to find out if it was gazetted. In Alberta, they gazette it. You cannot get the information. It seems to be hidden away. They did not present it to their legislature. They do not gazette it or put on their website, as one province does. Then you find missing years. Do you have any explanation for that?
Your federal site says that 1,111 people had their telephones tapped last year. There were 200 charges laid and so on, but 1,111 people were notified that their phones were tapped. Do you have any advice to give to us on how to research and find out these matters and whether we should be more specific in telling the provinces what they should be doing and where they should put the information?
Ms. Audcent: I think that the language that we have put forward, which is the same as it is currently, is designed to give the provinces their responsibility, without telling them in too much detail. From a jurisdictional point of view, it is best if we are careful in terms of how we proceed in that area.
The Chair: All right. Shall clause 6 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 7 carry?
Senator Baker: Mr. Chair, on clause 7, here we are sitting in this committee, told that we have to rush through this bill. Here is the Supreme Court of Canada saying that this all has to be done before April 13, and here we have a clause coming into force — clause 5, which is one of the main provisions of the bill — six months after the day on which this act receives Royal Assent.
Mr. Chair, can you explain this anomaly in the legislation, or would you call on the witnesses to explain it?
The Chair: It is curious, and I will turn to the witnesses as well.
Ms. Audcent: The reason for the delayed coming-into-force for reporting is the request of the people engaged in the reporting processes. They signalled to us that it would be very helpful if there could be a little bit of a delay in terms of preparing the new annual reports in the context of section 184.4. Because the reporting requirement is not required from a constitutional perspective, we were able to provide that time frame for them to prepare themselves to comply with the reporting requirements.
Senator Baker: There is a problem with that.
I will tell you what the problem is. If it is not in force, it is not the law. If it is not in force, it is not that law to keep records even.
Senator Joyal: There are no obligations, absolutely none.
Senator Baker: Why would we put in a six-month delay? This is March. March, April, May, June, July, August, September; we are not up to the end of the year yet. Why would not this come into force immediately? Why would they need time to prepare something when we are saying, "No, it is not in the law until September''? They do not have to report this until January or February of next year. Do you mean to tell me that there are hundreds of thousands of people's phones being tapped, on an emergency basis, under section 184.4? The deputy police chief of Vancouver told us yesterday that they do not use this provision very often. He said, "There is only a scattered time that we use it,'' and here we are addressing a Supreme Court of Canada decision, putting off the implementation of a law six months beyond what the Supreme Court of Canada has dictated we do. I do not know if you want to respond to that comment.
Ms. Audcent: The Supreme Court of Canada expressed the view that notification was required for constitutional compliance. That would come into force immediately. The reporting was advisable. Perhaps, from a policy perspective, it might be a good policy move, but it was not required constitutionally. Because of that distinction, we are able to have the time for those who are engaged in the reporting process to administratively prepare to implement this new requirement. It was signalled to us that that would be extremely helpful.
Senator Baker: I do not understand it. Do you understand it, Senator Joyal?
Senator Joyal: Mr. Chair, I do not want to debate this. I have my opinion on this, but I beg to differ from the witness. Citizens in Canada have their privacy rights protected under section 8 of the Charter. For exceptional circumstances covered by section 1 of the Charter, limits that are reasonable in this free and democratic society, the court recognized that it is needed for specific purposes, to prevent serious harm to persons or to property, as section 184.4 states clearly. In a balanced society, when you violate the rights of citizens, there should be equilibrium between the two. If you do not put in the obligation to report when you violate the rights of citizens, you unbalance the very rights that the Charter seeks to protect. You say we agree with the Supreme Court that those exceptional powers should be granted to the police, and we all concur on that; we have no restriction on that. However, the rebalancing of the violation by the disclosure should happen, in my opinion, at the same time as you legalize the interception. That is why I beg to differ with you on the interpretation that you gave.
Ms. Morency: I do not think we have anything further to add, but, just to be clear, the Supreme Court's finding of unconstitutionality was with respect to notification to the object of the interception. The provisions of C-55, once it receives Royal Assent, will come into force immediately at that time.
What will come into force six months later is only the reporting obligation, which is not required by the Supreme Court decision. I believe the comments this morning referred to part of yesterday's evidence from police witnesses, saying that there are challenges for reporting. We want to ensure that the police and our partners are in a position to comply with the law and to have a bit of time to prepare the administrative processes needed so that, as soon as it comes online, they are ready to play their part. It is part of the whole package, and the government is clear in saying that it is all important and needed but that what is critically needed to meet the Supreme Court requirement is going to come into force on Royal Assent.
Senator Batters: The witness just addressed the very point I was going to ask about. Thank you.
Senator Baker: It was half of the Supreme Court of Canada's decision. You cannot lower the magnitude of a decision by saying, "Well, it really does not have any direct effect in reality.'' It was half of the Supreme Court of Canada decision.
If somebody in the provinces or in the federal police says to the Department of Justice, "We would like to put off this, this keeping of a tally, for six months,'' it is not in law. That section is not law until it comes into effect.
For some administrative reason, because it is the summer holidays and they do not want to keep a record, that is not acceptable, not when the Parliament of Canada is being asked to rush something through.
I do not want you to respond to what I am saying. I am just thinking out loud that it really does not make any sense.
The Chair: I think the witnesses indicated they have nothing additional to add with respect to this clause.
Shall clause 7 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 1, which contains the alternative title carry?
Senator Baker: I am wondering what the department has to say about this because it certainly was not, I do not think, an invention of the government to make this alternative title "Response to the Supreme Court of Canada Decision in R. v. Tse Act.''
I say that for two reasons. As the officials have pointed out, these provisions were brought in on three separate occasions before.
The government has been trying to institute these provisions for some time now, and those very provisions, with just one minor change. The decision in R v. Tse, which you pointed out is not about the kidnapping of a child, has been put forward in evidence before this committee and the need to be able to act without seeking a judicial authorization.
R. v. Tse was about the drug business. The man who was kidnapped is now in jail. It was indicated in the trial judge's decision that the police were afraid this man was going to skip the country but this was just a ruse. The people in charge of the investigation did not see this as a legitimate kidnapping. This guy had been charged with importing over $100-million worth of drugs into Canada, was out on bail with an electronic monitoring device and $400,000 in a suitcase, which disappeared, and the electronic monitoring device disappeared as well. He was unlawfully at large.
When you claim that the reason for implementing this is a decision in R. v. Tse, people will go back and look at that case and say, "Oh, here is a war between drug lords.'' That is the way it was pictured by the police in that determination. It is true, there was a kidnapping. I presume there was. All the money disappeared. It worked out in the end and he was then prosecuted and put in jail. However, when somebody looks at this and sees an alternative title about protecting people from kidnapping, and damage and injury, this is certainly not a suitable case to be hanging your hat on and saying, "Look, we need this emergency power,'' when the facts of the case display otherwise.
I make that comment, Mr. Chair. This is a relatively new avenue, where the Department of Justice puts in an alternative title to a particular bill, and it is relatively new in Canadian law. You would never have seen this 30 years ago. I cannot recall seeing legislation having an alternative title. In some cases, as in this case, I think it is poorly placed.
That is my comment. I really do not expect any response.
The Chair: No, I did not think you were expecting a response.
Shall clause 1, which contains the alternative title, carry?
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the bill carry?
Some Hon. Senators: On division.
The Chair: Carried, on division.
Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
That concludes our proceedings for this morning. I thank Ms. Audcent and Ms. Morency for their assistance.
Senator Joyal: Can you confirm the next agenda item for this committee?
The Chair: Bill C-37; tomorrow at 4:15, in the usual room in the East Block.
Is there anything else from members of the committee?
The meeting is adjourned.
(The committee adjourned.)