Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 32 - Evidence for March 21, 2013
OTTAWA, Thursday, March 21, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to
which was referred Bill C-53, An Act to assent to alterations in the law
touching the Succession to the Throne, met this day at 10:28 a.m. to give
consideration to the bill; and to examine the subject matter of Bill C-55,
An Act to amend the Criminal Code, introduced in the House of Commons on
February 11, 2013.
Senator Bob Runciman (Chair) in the chair.
The Chair: Welcome, colleagues, invited guests and members of the
general public who are following today's proceedings of the Standing Senate
Committee on Legal and Constitutional Affairs.
We are meeting today to continue our consideration of Bill C-53, An Act
to assent to alterations in the law touching the Succession to the Throne.
We will also begin our consideration on the subject matter of Bill C-55, An
Act to amend the Criminal Code (R. v. Tse Act).
Bill C-53 gives its assent to the U.K. Succession to the Crown Bill,
which is currently before the British Parliament. The British bill seeks to
end the practice of placing male heirs before their elder sisters in the
line of succession and also removes legal provisions that deem heirs who
marry Roman Catholics to be ineligible to succeed to the throne.
Bill C-55 was introduced in the House of Commons on February 11 of this
year in response to the Supreme Court's decision in R. v. Tse. This
bill deals with safeguards related to the authority to intercept private
communications without prior judicial authorization, specifically the rules
with respect to emergency wiretaps without a warrant.
As a reminder to those watching these committee hearings, they are open
to the public and also available via webcast on the parl.gc.ca website. You
can find more information on the schedule of witnesses on the website under
To begin our deliberations on both of these bills, we are pleased to
welcome back before the committee the Honourable Rob Nicholson, the Minister
of Justice and Attorney General of Canada. Minister Nicholson is accompanied
today by senior officials from the Office of the Privy Council and the
Department of Justice.
From Justice Canada, we have Warren J. Newman, Senior General Counsel,
Constitutional and Administrative Law Section. From the Privy Council
Office, we have Joe Wild, Assistant Secretary to the Cabinet.
We also have with us — and returning next week for Bill C-55 — from
Justice Canada, Donald Piragoff, Senior Assistant Deputy Minister, and Karen
Audcent, Senior Counsel, Criminal Law Policy Section.
Honourable senators, I ask you to please keep in mind that the minister
is here until noon today. We will begin with Minister Nicholson's opening
statement on Bill C-53, after which he will take your questions until 11:15.
That is the schedule we are operating on. We will then proceed with the
minister's statement on Bill C-55. We will have opportunities for questions
on that until noon.
The officials who are present today for Bill C-53 will remain until 12:45
to answer questions, and the officials here for Bill C-55 will return on
Monday, March 25, to answer any remaining questions that you might have.
With that, Minister Nicholson, the floor is yours.
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney
General of Canada: Thank you very much. I am pleased to have this
opportunity to appear before the committee in its study of Bill C-53, An Act
to assent to alterations in the law touching the Succession to the Throne.
The Crown, as you know, is an important institution in Canada. It is
fitting that Bill C-53 was introduced during the final days of our
celebration of Her Majesty Queen Elizabeth II's Diamond Jubilee year. We are
now in Her Majesty's sixty-first year of accession to the throne in the
service of the people of Canada, the United Kingdom and other Commonwealth
countries that share allegiance to the Crown.
On October 28, 2011, representatives of the Commonwealth countries for
which Her Majesty the Queen is the sovereign head of state, including
Canada, agreed to support changes to the rules on royal succession. First,
we signalled our support to end the practice of placing younger brothers
before their elder sisters in the line of succession. Second, we signalled
our support to end the prohibition against heirs marrying Roman Catholics.
These are good changes to an institution that remains vital and relevant to
In December 2012, the Government of the United Kingdom introduced
legislation seeking to amend the laws governing succession along the lines I
have described. The United Kingdom bill has been passed by the United
Kingdom House of Commons, and the House of Lords committee concluded its
study with no amendments. Third reading in the House of Lords is scheduled
for April 22.
I am pleased to provide senators with a brief explanation of the legal
context for the bill before this committee. The purpose of Bill C-53 is to
provide the Parliament of Canada's assent to the changes to the law
governing the succession to the throne that are proposed in the United
Kingdom bill. The laws governing succession are United Kingdom laws. It is
wholly within the legislative authority of the Parliament of the United
Kingdom to alter the body of United Kingdom laws relating to royal
succession, including the English Bill of Rights of 1688 and the Act of
Settlement of 1700.
Canada is a constitutional monarchy. It is a fundamental rule of our
constitutional law that the Queen of Canada is the Queen of the United
Kingdom, or to put it another way, whoever, at any given period, is the
Queen or King of the United Kingdom is at the same time the Queen or King of
Canada. That rule is embodied in the preamble to the Constitution Act of
1867 and in the provisions of that act. The preamble states that Canada will
be "united into One Dominion under the Crown of the United Kingdom, with a
Constitution similar in Principle to that of the United Kingdom."
Section 9 of the Constitution Act of 1867 vests executive government and
authority of and over Canada in the Queen. However, as the sovereign of the
United Kingdom is also the sovereign of Canada, it is recognized as a matter
of constitutional convention that the Parliament of Canada should assent to
any changes to the laws of succession to the throne or the royal style and
titles of Her Majesty. This convention is set out in the preamble to the
Statute of Westminster, 1931, which is a part of the Constitution of Canada,
and it is repeated in the preamble to Bill C-53.
In this regard, our Canadian bill follows the precedent set by the
Parliament of Canada in 1937, when by the first Succession to the Throne Act
our Parliament assented to the alteration in the laws of Succession to the
Throne brought about by His Majesty's Declaration of Abdication Act, a
statute of the United Kingdom Parliament, which gave legal effect to King
Edward VIII's intention to abdicate the throne. It also follows the
precedents of 1947, when the Parliament of Canada assented to an alteration
in the royal style and titles of King George VI, deleting the words
"Emperor of India," and of 1953, when, by the Royal Style and Titles Act,
the Parliament of Canada assented to the issuance of a proclamation
declaring the official titles of Her Majesty Queen Elizabeth II.
In moving second reading of that bill, the Right Honourable Louis St.
Laurent, then Prime Minister, stated:
Her Majesty is now the Queen of Canada, but she is the Queen of
Canada because she is the Queen of the United Kingdom and because the
people of Canada are happy to recognize as their sovereign the sovereign
of the United Kingdom.
It is important to note, Mr. Chair, that Bill C-53 does not amend the
Constitution of Canada in relation to the office of the Queen. The
constitutional status of the Queen as the sovereign of Canada and her
powers, rights and prerogatives under the Constitution are not affected in
any way by this bill. Her Majesty continues to be our sovereign and head of
state and to exercise the same authorities.
There are some who have tried to argue that, since the enactment of the
Canada Act 1982, no law of the United Kingdom Parliament can extend to
Canada as part of its law and that, therefore, the United Kingdom Succession
to the Throne Bill cannot apply to Canada and our Canadian bill has no
effect. This is inaccurate.
The United Kingdom Parliament is not making law for Canada, and there is
nothing in the United Kingdom bill that purports to extend to Canada. The
British bill is amending the United Kingdom laws that define who may become
the sovereign of the United Kingdom in the future. It is our Canadian
Constitution that provides that the sovereign of the United Kingdom is the
sovereign of Canada.
Bill C-53 will simply declare the Parliament of Canada's assent to change
ancient rules of succession that favoured male heirs over females and that
disqualified heirs if they married Roman Catholics. Those incremental and
progressive changes are consistent with Canada's fundamental values.
The bill is a straightforward approach to signifying this Parliament's
assent to changes to the law of royal succession that our House of Commons
and fellow Canadians endorse. It is consistent with the precedents
established by previous parliaments and with a sound appreciation of
constitutional law, principle and convention. We are pleased to be doing our
part in this important international endeavour. I commend Bill C-53 to your
My officials and I will be pleased to assist you in your deliberations.
The Chair: Thank you, minister. We will begin the questioning with
the deputy chair of the committee, Senator Fraser.
Senator Fraser: Minister, perhaps I should begin by saying I am a
feminist and I support modernization of the law of succession, but I do have
In 1937, Parliament gave its assent to something it knew, that is to say,
a bill that had already passed and become law in the United Kingdom. We knew
what we were assenting to. This time we are being asked to give our assent
to a bill that has not yet passed at Westminster, and Bill C-53 says
furthermore that we are assenting to the bill laid before the Parliament of
the U.K., "déposé devant." I take that to mean in the form in which it was
presented for first reading. I cannot see how else it could mean. As I am
sure you know, the bill was substantively amended after first reading in the
British House of Commons in Westminster. What are you asking us to give our
Mr. Nicholson: Again, we are assenting to the principle that male
heirs should not be favoured over female heirs, and what we are assenting to
is the principle that heirs to the throne would now be able to marry Roman
Senator Fraser: Let me say for the record what the amendment in
question is. The original bill, as presented in Westminster, said that if a
person who is required to get Her Majesty's consent before marrying does not
get Her Majesty's consent, the person's descendants are disqualified from
succeeding to the Crown. The amendment had a clause that read that the
person's descendants from the marriage, the unauthorized marriage, were
disqualified from succeeding to the Crown. In other words, there could be
another marriage from which the descendants would be authorized to succeed
to the Crown, because it would have been authorized by the sovereign. In
other words, this has a direct impact on who gets to be in the line of
succession to be our head of state. Which version are you asking us to give
Mr. Nicholson: I am asking you to give assent to the principle
that I have just enumerated. Perhaps I will ask Mr. Newman to elaborate.
Warren J. Newman, Senior General Counsel, Constitutional and
Administrative Law Section, Department of Justice Canada: I am pleased
to do so. Bill C-53 in its preamble states: Whereas Her Majesty's government
"has caused to be introduced in the Parliament of the United Kingdom a bill
to ensure that succession not depend on gender and to end the
disqualification arising from marrying a Roman Catholic." In other words,
that is the context here. The assent is not given to the bill per se but,
rather, to the alteration in the law touching the succession to the throne
that is embodied in the bill — in other words, that principle.
That there may have been changes on the margin before the House of
Commons does not change in any respect the principles of the bill to which
this Parliament is assenting as a matter of convention.
Senator Fraser: We may differ on what "changes on the margin"
may mean. It seems to me that this amendment actually has a direct effect on
the line of succession. It is not uncommon even in the Royal Family for
people to marry twice. The Prince of Wales has married twice. Princess Anne
has married twice. If one of the Prince of Wales' marriages had not been
authorized by Her Majesty, any descendants of that marriage would not be
authorized even under the second version, but under the first version of the
bill, even Princes William and Harry would not be able to succeed to the
Crown, nor will this baby that we all await with such pleasure, whom I hope
will be a girl and become Queen one day.
I want to be sure that what we are doing here is what we want to do here
and that we are not committing some kind of error. Our bill says we assent
to this other bill, the changes affecting the law of succession to the
throne in this other bill that is being passed by a sovereign Parliament of
another country, which has every right to introduce whatever amendments it
wishes to the bill.
Mr. Newman: There have been no fundamental changes to the
principles of the bill. The principle of the bill was accepted at second
reading. There has been a change on the margin. There have been no changes
in the House of Lords. The bill has been reported out of committee with no
amendments and is scheduled, as the minister said, for third reading.
The purpose of this bill, this Canadian legislation, is not to alter the
law of succession but simply to assent to the principles in the U.K. bill,
that is, that the common-law rule of male primogeniture will no longer apply
to the law of succession to the throne, and that the disqualifications
arising from marrying Roman Catholics, the disqualifications of heirs, will
no longer be part of the law of the United Kingdom. This bill does not do
more than that, and this bill does not assent to the U.K. bill; it assents
to the alteration in the law as described in the preamble.
Senator Fraser: I know the chair will cut me off.
Senator Batters: Minister, thank you very much for appearing
before us today. As a Catholic, I appreciate your opening up opportunities.
Bill C-53 gives its assent to the U.K. succession to the Crown bill that
is, as we have just heard, currently before the U.K. Parliament. Is there an
order pursuant to which these two legislative proposals have to be adopted?
If so, which bill must be adopted first?
Mr. Nicholson: That is an interesting question. The United Kingdom
has indicated that it will not proclaim into law, bring into law, any bill
in this area, or that particular bill into force, until all realms,
including Canada, have assented to the changes. The bill is proceeding and
is at third reading in the House of Lords at the present time. That being
said, when the bill is passed and receives Royal Assent, it will not be
proclaimed into effect until all the Commonwealth countries for which the
Queen is head of state have enacted or proceeded with the changes, so we
will have this consistency and uniformity across the realms of which the
Queen is the head of state.
Joe Wild, Assistant Secretary to the Cabinet, Machinery of Government,
Privy Council Office: I wanted to add to what the minister said, just to
note that part of what you are raising and part of what the senator raised
previously is the purpose of why this act comes into force on a date to be
fixed by order-in-council. It is so that we can be certain about what it is
that ultimately happens with the U.K. bill when they have completed their
process, and if there is some kind of issue, we still have a way out to deal
with it. If for some reason after their third reading in the House of Lords
they amended the actual principles that Mr. Newman was speaking of, if those
were amended in a substantive way, we have a means of then dealing with that
because we do not have to complete our assent by providing an actual
bringing into force of this bill. We could revisit that issue if we needed
to. All of this has been done in a way to maintain flexibility to deal with
a proper sequencing once we have a bill that has passed through the
parliamentary process in the U.K. that is ready to be brought into law, and
then we will have a sequencing of events within the realms that are all
passing laws — not just us, but Australia and New Zealand as well — to make
sure we do all of this together in a coherent way so there is not a gap. We
are all trying to build in the flexibility to do that.
Senator Joyal: Thank you, Mr. Minister, for your opening remarks.
I concur with the remarks you have made. My first reaction when I heard them
was why was it that the government did not allow you to make the same speech
in the House of Commons so that our colleagues in the other place could have
had the benefit of understanding how the constitutional monarchy works in
Canada? I was surprised when I read the minutes of the House of Commons. You
signified that Her Majesty or the Governor General concurs with the intent
of the bill, but there was no debate on or not even an explanation of the
As you said in your remarks, the Crown is an institution vital and
relevant to Canadians. As you know, there is a lot of misunderstanding about
how the system works. I was surprised, as a matter of fact, that no minister
of the government, neither you nor the Minister of Canadian Heritage, made
any explanation of the substance of this bill and the significance for the
Crown in Canada.
Mr. Nicholson: Regarding your opening remarks, Senator Joyal, you
said you would have liked to have had some information or some insight into
this. I would have thought there are probably very few people in this
country who have as much insight into our Constitution and the role of the
monarchy than you do yourself.
That being said, there was quite a bit of publicity. Quite frankly, the
Minister of Heritage, my colleague Mr. Moore, did have a press conference
with respect to this to ensure that all the details of this were put
forward. I know my office worked with those who have made inquiries on this.
Again, I am proud and pleased to have sponsored this bill in the House of
Commons, and again this is part of that process.
I believe what we are doing here is very straightforward. I believe it is
non-controversial. I think it is a modernizing of the rules as they relate
to this area. Again, I feel it is straightforward, but I am pleased to hear
that you look forward to my comments or speeches in all these different
Senator Joyal: That is why I underline —
Mr. Nicholson: I am pleased you can learn from me and I have had
the opportunity to learn from you in this area.
Senator Joyal: That is why I am insisting, minister, because it
does not happen often that we both share the same approach on issues
relating to the Constitution of Canada and its interpretation. That is why I
would have welcomed you making a similar speech in the House of Commons, and
I wish my colleagues in the other place would have had an opportunity to
question, raise issues and express opinions.
Mr. Nicholson: I am sure that did not stop you from comments,
views and opinions in this area that you have developed over the years.
Senator Joyal: My first question is in relation to the comments
that have been made by constitutional professors. I quoted one yesterday
when we had the benefit of hearing from witnesses. It was about the
definition of the office of the Queen. You have alluded to it in your
opening remarks, but there were questions that the bill might affect the
definition or the substance of "the office of the Queen" as it is stated
in section 41 of the Constitution Act, 1982.
You mentioned in your opening remarks that you are not of the opinion
that there is any way that the office is affected. However, could you define
for us what the concept of the office of the Queen, as stated in section 41,
means to you, so that it will be clear that what we are doing is essentially
Mr. Nicholson: The office of the Queen includes the sovereign's
constitutional status, powers and rights in Canada. Again, I am of the
opinion — and I trust you share it — that this bill does not alter or change
those laws with respect to her powers and prerogatives. Her powers and
prerogatives are set out in the Constitution of Canada. It has been well
developed in this country, and I believe well understood for the most part.
Again, there is nothing in this particular legislation that alters that.
That is the position that is consistent with our history and our
Constitution, and it is the one I support.
Senator Joyal: Mr. Minister, I would like to put another argument
to you, which is the fact that the Constitution of Canada has defined
various things in subsection 52(2), especially in the provisions and
documents that are enumerated in the schedule, and especially Schedule Item
17, the Statute of Westminster. My reading of that section of the
Constitution brings me to a conclusion that is further than the only matter
of conventional substance of the Statute of Westminster once it is included
in the Constitution of Canada, as long as the Statute of Westminster was not
part of the Constitution of Canada, per se, as it is now with section 52,
since 1982. The substance of the statute and I think the "whereas" of the
bill are, in my opinion, illustrative of that. It is really on that basis
now of our Constitution that the Parliament of Canada will have to assent to
changes to the succession or to the royal style and titles; it is part now
of the constitutionalized responsibilities of the Constitution of Canada to
assent to that.
In my opinion, that is more than just a convention. As you know, a
convention can be changed by another way of doing things; you could break
away from a convention by acting differently. However, in my opinion, the
Statute of Westminster, being now part of the Constitution of Canada, if we
want to change that, we would have to legislate to change it.
To me, it is a more binding element and a definition of responsibility of
the Parliament of Canada that is much more substantial than just a
convention; that is, we act in a certain way for a certain period of time
and we recognize that we are bound by that, but in fact nothing can prevent
us from acting differently without having to change the legislation. That is
the way the Supreme Court has defined what a convention is, as you know very
well from the Secession Reference of 1998, especially.
That is why I wonder: What is the exact legal nature of the obligation we
have under the Statute of Westminster to assent to the succession or to the
royal style and titles?
Mr. Nicholson: Again, you made reference to the Statute of
Westminster of 1931. Specifically, we are complying with what was in the
preamble to it; that any changes with respect to touching the succession to
the throne or the royal style shall require the assent of the parliaments of
the dominions, as well as the Parliament of the United Kingdom.
Inasmuch as we are not changing any of the provisions of the Statute of
Westminster, all we are saying, in compliance with the preamble, is that we
are doing as the preamble has suggested. That is what took place after the
abdication bill that went before Parliament in 1937, or the change of royal
style with respect to King George VI and indeed after Queen Elizabeth
ascended to the throne. It is consistent with those changes.
Again, it does not change anything to do with the office, the powers and
prerogatives of the head of state. With the preamble to the Statute of
Westminster, this bill is in compliance with this; any change in that area,
not with respect to the substance of what the head of state does, but any
change with respect to the style or the succession would go in terms of a
piece of legislation. That is what we have done here. It is nothing to do
with changing the office but is in compliance with the preamble.
Mr. Newman: I would just add that, as the senator and the minister
have both pointed out, the Statute of Westminster is a part of the
Constitution of Canada. It is in the list of statutes and orders that form
part of the Constitution of Canada, scheduled to the Constitution Act, 1982.
The preamble is therefore also part of the Constitution of Canada, as is the
preamble of the Constitution Act, 1867, and "a Constitution similar in
Principle to that of the United Kingdom" and "under the Crown of the
United Kingdom" do we find ourselves.
However, a preamble, according to our courts, has no enacting force in
and of itself. It is not a provision of the Constitution; it is a recital
that gives rise to the provisions. In fact, in regard to this particular
recital, it was thought appropriate simply to set it out by way of preamble.
It is said to be "meet and proper"; that is, it is "à propos, opportun ou
expédient" to set this requirement out by way of preamble, because it
embodied a constitutional convention arrived at the Imperial Conference and
through the Balfour Declaration of 1926.
It was not thought that this particular statement of the preamble had to
be followed in a provision of the Statute of Westminster such as section 4,
which has since been repealed. It is part of the Constitution but it remains
Ð stated in the preamble. It is very important; it contains a very
important constitutional convention. Nevertheless, it is not a
Senator McIntyre: Thank you, Mr. Minister, for your presentation.
I want to go back to the preamble, which contains four recitals. I also
note that the bill makes no reference to section 4 of the Statute of
Westminster, and you have probably answered this question already. What is
the reason for this? As I understand, section 4 of the Statute of
Westminster was repealed in 1982 with the patriation of the Constitution,
and that is why we make no reference to it in Bill C-53.
Mr. Nicholson: That is correct, Senator McIntyre.
Senator McIntyre: I understand that there was no debate on this in
the House of Commons, but are you aware of any opposition to the U.K. Crown
bill in the other countries of the Commonwealth?
Mr. Nicholson: Some of the Commonwealth countries are assenting to
this by tabling a letter with the Governor General. Again, I do not get into
the procedures of the other countries. There are ongoing discussions within
each country. As I pointed out in my opening remarks, all of the realms of
which the Queen is head of state have agreed to this. We are all taking it
back to our respective parliaments and moving forward on it.
In many regards this is a fascinating debate, certainly one that people
studying political science would love to look at. It is very interesting for
those of us who follow these issues and delve into them. That being said, we
accept the word that we have received from the other realms that they are
all in favour of this. They are all moving forward, but there are slightly
different procedures. It is a little different in Australia than it is in
New Zealand and the other countries for which the Queen is head of state.
Everyone is moving in the same direction and I am completely confident that
they will all come on board in time.
Senator Jaffer: Thank you, minister, for being here and making so
much time available to us.
You have talked about Australia and New Zealand and have said that since
that is not where your work is, you are not following them. However, are
they also proceeding with legislation before the British Parliament has
finished their deliberations?
Mr. Nicholson: Again, there are slightly different situations. New
Zealand, as you know, is a unitary state and Australia is a federal state.
That being said, Australia has taken the position that the federal
parliament will enact the necessary changes. In New Zealand there is no
discussion with respect to any other government because of its unitary
That being said, each country, including Canada, has slightly different
constitutional developments, rules and procedures. Again, it is not exactly
the same, but the result is going to be the same. Those two countries, and
indeed the other countries in the Commonwealth of whom the Queen is head of
state, have indicated they will move forward.
Senator Jaffer: Have they?
Mr. Nicholson: My understanding is that they are all looking at
this and that it is progressing well.
Senator Jaffer: Is it before their parliaments as well?
Mr. Nicholson: It is. The matter is before the New Zealand
Parliament. New Zealand, of course, is a unitary state with a unicameral
parliament. They are all moving forward on this. As I indicated, in Britain
it is at third reading stage in the House of Lords.
Senator Jaffer: When we constituted our Charter of Rights and
Freedoms a few years ago, there was a three-year gap to ensure the equality
of men and women in our legislation. I am sure that in looking at this
legislation you have again looked at our legislation. Does all our
legislation treat women, men and children equally? Have you looked at that
Mr. Nicholson: That is a broader question than the one before us,
but that is a principle that has been applied. I remember very well all the
changes to federal legislation that were made in 1984 and 1985. I am sure
that Senator Baker remembers those years as well. There was quite a bit of
legislation enacted to ensure that all Canadian laws were in compliance with
the Charter. The Department of Justice was given the lead responsibility in
We are careful on all pieces of federal legislation, Senator Jaffer, to
ensure that everyone is treated fairly and equally. That is as it should be.
The bill before you today is consistent with that principle of treating men
and women equally.
Senator Buth: Thank you for being here today. We are very pleased
to see the changes that are being presented in Bill C-53.
We heard from a couple of witnesses last night, including one from the
Canadian Royal Heritage Trust who commented that passing Bill C-53 would
essentially be a courtesy. He also recommended that we would need to look at
further domestic action. He said that we would have to consider amending the
1937 Succession to the Throne Act. Could you comment on that?
Mr. Nicholson: That is not the advice I have been given. I know
that a number of groups and organizations have taken an interest in this,
including the Monarchist League of Canada. I have been very pleased that the
feedback I have received has indicated that people are supportive of this.
My analysis of this and my discussions with my officials lead me to believe
that no changes need to be made to the Succession to the Throne Act of 1937.
Senator Rivest: My question also relates to other countries of the
Mr. Nicholson: Again, the Succession to the Throne Act of 1937 was
very specific relating to what had taken place at that time, the intention
of King Edward VIII to abdicate the throne. I believe it was a step forward
that Canada and other Commonwealth countries were asked to assent to and
cooperate with those changes.
I said in my opening remarks that in dealing with this issue we looked
back at what took place in 1937 and what took place with respect to the
change of the royal titles of King George VI and Queen Elizabeth II after
she ascended to the throne. I believe that the bill before you is quite
consistent with that. It is just part of the ongoing development of Canada's
association with the monarchy. It is an important one and it makes a lot of
sense, as did the others.
Senator Fraser: I want to return to a question I raised earlier. I
will try to be clearer because I do not think you quite understood the
import of my question. It comes down to the fact that our bill asks us to
give assent to a bill laid before the United Kingdom Parliament. I take that
to mean the bill in its form at first reading in the United Kingdom
Parliament. Are we assenting, therefore, to the bill in the form it had at
first reading, or do you take "laid before" to include passage and
adoption — the bill in its final form?
Mr. Nicholson: I will get Mr. Newman to perhaps elaborate on that.
This bill before you is asking you to assent to the principles —
Senator Fraser: No, it says the "alteration in the law." The
operative clause is "alteration in the law."
Mr. Nicholson: For that bill specifically, with respect to laws
within the United Kingdom, what we are assenting to, in this country, is the
principle behind that bill, which is changes to the succession to the
throne. Mr. Newman, if there is anything you can do to help clarify this for
Senator Fraser, that would be great.
Mr. Newman: Section 2, Senator Fraser, does refer to the
alteration in the law. It does refer to the alteration in the law touching
the succession to the throne as set out in the U.K. bill that is laid before
the United Kingdom Parliament. The Department of Justice even prepared, for
information purposes, a bilingual version of the U.K. bill, as it stood on
January 30, 2013. That was tabled.
It is, in a sense, an ambulatory reference. It is not a true
incorporation by reference in the sense that it does not make the U.K. law
part of Canadian law. It is for information purposes. What is Parliament
assenting to? Parliament is assenting to alterations in the law touching the
succession to the throne that are embodied in the U.K. legislation. It does
not go into detail. The preamble gives ample context to what Parliament is
assenting to. It is notorious, in terms of being on the record, that the
purpose of this bill is to signify the Parliament of Canada's assent, as a
matter of constitutional convention, following the precedents and the
preamble of the Statute of Westminster, to the alterations in the law so
that, henceforth, the rule of male predominance will no longer apply to the
succession to the throne and elder daughters will succeed over their younger
brothers. That is all the bill purports to do.
Senator Fraser: I do not think I am going to get an answer, chair.
Thank you very much.
Senator Joyal: Mr. Minister, for the record, could you tell us
whether the Government of Canada has received any expression of interest on
the part of provinces in relation to the adoption of this bill?
Mr. Nicholson: My officials say no, and it is our position that it
is within the purview of the federal Parliament to enact this legislation.
Senator Joyal: I am not contesting that. I just want to be sure
that it is on the record for the sake of future discussions or initiatives
that might come forward.
Mr. Nicholson: It can be on the record. That is the advice I have
Senator Joyal: Mr. Minister, there are those who think that the
government should, instead of just expressing an assent to the bill, adopt
the same bill that Westminster will be adopting, we hope, in relation to
those changes. What is your main legal answer to that argument?
Mr. Nicholson: Again, senator, when we had a look at this — and,
as you know, it stemmed from the agreement that took place in October 2011 —
it seemed that it was consistent with what has taken place in the past and
that it was an appropriate way to proceed. It seemed to be a good way to
move forward on this, to make progress in this area, and we have acted in
accordance with that.
I do not know whether my colleagues have any further comments on that.
Mr. Newman: The position in Canada is that there is no need to
proceed to an exercise that would have the Canadian Parliament enacting
provisions such as that the Royal Marriages Act of 1772, insofar as it
applies to Canada, is hereby repealed. We do not think that that is the
direction that this legislation should go. It was certainly not the case in
1937 that it was thought necessary, for example, to amend the Act of
Settlement of 1700 in Canada. Those are British laws, and we have left it to
the British Parliament to amend the legislation. The constitutional rule
here is a fundamental one. The sovereign of the United Kingdom is the
sovereign of Canada, and the sovereign of the United Kingdom is determined
by the law of the United Kingdom.
The Chair: Well done.
I remind committee members that the minister will now move to Bill C-55.
We are back and forth this morning. The minister and his officials will be
with us until noon to deal with Bill C-55. Following that, Mr. Wild and Mr.
Newman will remain if there are further questions on Bill C-53.
Minister, I ask you to proceed with your opening statement on Bill C-55.
Mr. Nicholson: Thank you again, Mr. Chair, for this opportunity to
appear before you as you begin your study of Bill C-55, the response to the
Supreme Court of Canada decision in the R. v. Tse act. The Supreme
Court, in that case, found that there exists a justifiable constitutional
imperative for a wiretap power, without prior judicial authorization, in
exceptional circumstances. It held, however, that section 184.4 of the
Criminal Code, which allows for the interception of private communications
in such circumstances, was constitutionally deficient as drafted.
Bill C-55 responds to this decision by proposing the following:
notification to persons whose private communications have been intercepted
under section 184.4; public reporting, both federally and provincially, on
the use of 184.4; and restriction of the use of 184.4 to police officers and
to offences listed in section 183 of the Criminal Code.
As you know, the Supreme Court of Canada gave the government until April
13, 2013, to amend section 184.4 of the Criminal Code to address the
constitutional defect of the provision, which is why it is essential that we
move forward on this legislation as expeditiously as possible.
If the legislation is not enacted by April 13, the police will no longer
have the ability to use section 184.4 of the Criminal Code to respond to
high-risk situations and to protect the safety of Canadians.
Before further explaining the modifications proposed in Bill C-55, let me
refer to two situations in which this section of the Criminal Code is likely
to be used. In the R. v. Tse case, police relied on section 184.4 to
respond quickly with a wiretap in a kidnapping case where family members
were getting calls from the kidnapped victim asking them to provide his
kidnappers with ransom.
In another case in Ontario, the police were investigating murder through
drive-by shootings and trying to prevent additional murders. These two
examples provide concrete evidence as to why police need to continue to be
able to intercept private communications without a judicial authorization in
critical situations, in order to prevent tragedies from occurring. This
exceptional authority is only meant to be used in extremely pressing and
urgent situations where every minute counts.
Let me say a few words about the government's response to the R. v.
Tse decision. In its reasons, Supreme Court of Canada found that the
addition of after-the-fact notification to persons with private
communications that have been intercepted would make the provision
constitutionally compliant. Bill C-55 proposes to add this accountability
safeguard to section 184.4 by requiring that notice be given to those
persons within 90 days of the wiretap, unless a judge authorizes an
Bill C-55 also proposes to add a reporting requirement when section 184.4
of the Criminal Code is used by the police. This requirement would be added
to the other annual reporting requirements imposed upon the federal Minister
of Public Safety and provincial attorneys general concerning the use of
While this requirement was not seen as essential by the Supreme Court of
Canada for constitutional compliance, the government believes that such a
measure would be beneficial as it enhances transparency and scrutiny of this
exceptional power through increased public knowledge of its use.
The bill also proposes to restrict the availability of section 184.4
powers to police officers instead of peace officers. This new approach would
allow police officers to intercept private communications without judicial
authorization only in situations of imminent harm. It would narrow the
provision so as to no longer include peace officers such as mayors, reeves
and fishery guardians.
Presently, section 184.4 can be used to investigate any unlawful act. The
bill before you today proposes to limit the use of section 184.4 to offences
listed in section 183 of the Criminal Code. I should point out that limiting
the authority to use this power to offences was not required by the Supreme
Court of Canada. However, in doing so, Bill C-55 would harmonize section
184.4 with the other wiretap provisions in the Criminal Code, which are
already limited to section 183 offences.
Although the amendments I just described are additional safeguards and
limitations to the use of section 184.4 of the Criminal Code, those
limitations are not the only restrictions on the use of this exceptional
authority to wiretap without prior judicial authorization.
Section 184 of the Criminal Code already provides that the police can
wiretap only where the situation is too urgent to obtain a judicial
authorization to intercept private communications. In addition, the police
need to believe on reasonable grounds that the wiretap is immediately
necessary to prevent serious harm to any person or property.
Finally, the originator or recipient of the intercepted private
communications has to be the person who is likely to cause harm or the
potential victim of the harm.
In closing, I wish to reiterate that the quick passage of Bill C-55 will
ensure that police have an essential tool to protect Canadians while
ensuring that it is used in a way that is balanced, proportional and
respects the privacy of Canadians. I urge all members of this committee and
the Senate to support Bill C-55.
The Chair: Thank you, minister.
Senator Fraser: Mr. Minister, we are all being put through our
paces this morning with two complex bills. This one is certainly necessary.
I have many questions, but I will confine myself to two, at least on this
round. I will ask them together to save time.
The first has to do with the definition of "police officer" which in
the bill is "any officer, constable or other person employed for the
preservation and maintenance of the public peace." How far does "other
person" go? Could it include mall cops, security guards, persons other than
employees of regularly constituted police forces?
The second question has to do with the extensions. Obviously in some
cases 90 days will not be enough, but three years strikes me as quite a long
period of time to be able to have these wiretaps without having
authorization renewed by a judge. Why did you pick three years?
Mr. Nicholson: With respect to police officers, no, it does not
include mall cops or commissioners. The identification would be identical to
that in section 462.48 of the Criminal Code. It includes police officers,
police constables designated pursuant to federal or provincial legislation,
including the RCMP; provincial police forces in Quebec and Ontario and
municipal police forces and Aboriginal policing. It would include
enforcement officers in charge of preserving and maintaining the public
peace, such as military officials, who would be first responders in
situations of imminent harm on a military base.
To answer what I think is the intent of your question, no, it does not
get to security agents of private companies, mall cops or commissioners.
Senator Fraser: What about border services?
Mr. Nicholson: I would ask my colleagues.
Karen Audcent, Senior Counsel, Criminal Law Policy Section, Department
of Justice Canada: Border services would not normally be included in
Mr. Nicholson: Generally they contact local police.
Senator Fraser: It means police.
Mr. Nicholson: It means police.
That being said, senator, you pointed out that 90 days is not the limit
on this, that it can be extended up to three years. In the preface to your
question on that you indicated that some of these cases are very
complicated. They can involve, for instance, organized crime or terrorist
activity. I have confidence that the judicial system will make the
appropriate call on that. To get an extension beyond that, you have to go
before the court and explain what you are doing or attempting to do. I have
confidence that the judiciary will make the appropriate determination on how
long is appropriate. I am sure that you have confidence that the judiciary
of this country can make that kind of decision. I have complete confidence
Senator Batters: Minister, thank you very much for bringing
forward this critical piece of legislation. As you know, Bill C-55 does not
impose a time limit on the use of section 184.4 of the Criminal Code. Could
you please explain to the committee why there are no time limits?
Mr. Nicholson: As you may know, there are three different sections
dealing with wiretaps: 184, 186 and 188. In an emergency, one would usually
make an application under section 188 for an emergency wiretap, which
application would have full judicial oversight.
This is for very specific circumstances where there is an imminent
threat. I was pleased, in my opening remarks, to be able to give a couple of
fairly recent examples of where this extraordinary power is needed. It may
be that the victims themselves are trying to get information out, such as
with regard to a ransom, where there may be imminent harm to individuals or
property. Again, it is highly unusual but it is very specific and has a very
It was no surprise to anyone looking at this that the Supreme Court of
Canada agreed that there are cases in which this is needed, in which it is
necessary to move quickly, but there must be safeguards in place.
As I said to both this and the House of Commons committee, we went beyond
the safeguards set out by the Supreme Court of Canada decision. Referring
back to one of Senator Fraser's questions, I like tightening up the
definition of exactly who this applies to. The existing term "peace
officer" is quite extensive.
This is a very important power for the police to have, and it must be
used within certain confines. I had no hesitation in ensuring that there
were a number of safeguards, even beyond what the Supreme Court of Canada
required us to do. This is an important piece of legislation that must be
moved on quickly. If you want to go beyond 90 days, application can be made
to a court to extend up to three years.
Senator Batters: Some of the organizations that intervened in the
R. v. Tse decision voiced their support of these amendments at the House
of Commons Standing Committee on Justice and Human Rights. Could you tell us
about the support received from these organizations?
Mr. Nicholson: We did get good feedback on this. It is generally
understood that in the type of situation I have described a law like this is
needed. There is a recognition that there have to be parameters. You will
notice the reporting requirements extending that to the Minister of Public
Safety — not that he does not have enough to do, but this is an important
addition that he or she can have in terms of informing the public. It goes
to transparency; it goes to accountability.
I believe that those groups and individuals who have had a look at that
will recognize that there are parameters and safeguards, and that, indeed,
this legislation goes beyond what the Supreme Court of Canada required us to
do. In part, that is to ensure there are those additional safeguards.
However, in my opinion, it makes it consistent with the other sections.
For instance, including the reference to the offences in section 183 makes
sense. If they are not contained within 183, why are they not? That is a
legitimate question to ask. I think it was a good idea to make that
consistent with sections 186 and 188 of the Criminal Code. Again, the
reporting requirements make sense.
I think you are quite correct that most individuals and groups having a
look at this say this is a reasonable, well- balanced response to the
Supreme Court of Canada's decision, and they are generally supportive of
Senator Baker: The Supreme Court of Canada, minister, did not
recommend that you change "peace officer" to "police officer"; they did
not do that.
Mr. Nicholson: Correct.
Senator Baker: Let me use the reasoning process of objective
improbability. Mr. Piragoff, of course, is very well known for a theory
called objective improbability. He is an author. It was prior to you,
minister, becoming a member of Parliament back in the mid-1980s — prior to
that, he published it. His process of objective improbability is used even
today in court cases.
It is objectively improbable that there would be any problem with the
word "peace officer" in this section. When you go down that road of
defining what a "police officer" is, look what you have had to do, as
Senator Fraser pointed out. She says you have extended a "police officer"
to mean "or other person employed for the preservation and maintenance of
the public peace," a common description for a dog catcher in any municipal
bylaw in this country.
I know you are not suggesting that dog catchers now be referred to as
police officers. I know that, because judgment after judgment has said that
dog catchers do not have the authority to charge people under the Criminal
Code, especially not to tap their telephones. That applies to military
police, as you pointed out, off the base.
It is well established, even with our police officers here on this
committee. I look at the former Police Chief White. There was the RCMP. He
has been the police chief of several divisions. Senator Dagenais was an
officer from the Quebec police force. They always are referred to as peace
officers. When they swear an affidavit, it is "I, so-and-so, a peace
officer." It is ingrained in everything, and it is well known.
The courts have limited the word "peace officer" to mean a police
officer for purposes of the Criminal Code. The drafters have now introduced
a definition of "police officer" as being "other person employed for the
preservation and maintenance of the public peace," which is a peace officer
by definition if you go back to section 2.
"Blessed are those who go around in circles, for they shall be called
The Supreme Court of Canada did not recommend that this change be made.
Do you have any further explanation on that particular change?
Mr. Nicholson: You are correct, senator, in that the Supreme Court
of Canada did not recommend that to correct the constitutionality of the
particular section 184.4 of the Criminal Code. However, when you read
through that, as I know you do on these cases, they did raise the question
of exactly who this applies to. You are quite correct: The definition of a
police officer is contained within that larger category of "peace officers."
It seems to me when the drafters looked at that, it is appropriate to
more narrowly define who has the ability to have these extraordinary powers.
In your example, those individuals are not peace officers. Whether people
from the Department of Fisheries and Oceans, reeves and individuals like
this can or should be able to intercept a wiretap without judicial
authorization — I think as we move forward, more closely or more narrowly
defining exactly who can and should have that ability is appropriate. This
is why we have done that.
That being said, you said some very kind words about my colleague Mr.
Piragoff and his great contributions to the justice system of this country
and indeed to the Department of Justice. I will ask him if he has any
further comments he would like to make in this area.
Donald Piragoff, Senior Assistant Deputy Minister, Department of
Justice Canada: Thank you, minister.
The senator referred to the existing definition of "peace officer." The
definition of "peace officer," as the minister indicated, is a very broad
definition and includes reeves and mayors. It also includes certain other
officers, such as Fisheries and airline officers, but who are charged with
the duty to enforce the particular act under which they are appointed.
As the minister indicated, the difference between those officers and a
police officer or police constable, or the second part of the definition, is
that these people are charged generally on their duty, common law or
statute, to enforce the public peace, which is the criminal law in general.
There is case law that has interpreted the definition of "police officer,"
which includes that second branch, to mean persons who have a duty by common
law or statute to enforce the public peace, and not just anyone who may have
some duty to enforce a particular, single statute but not the general law of
Senator Boisvenu: Welcome, minister, and thank you very much for
this bill. I think our justice system is more and more demanding when it
comes to the quality of the evidence presented by police officers for
prosecution, and I think wiretapping is a very effective way to improve the
quality of evidence, insofar as the wiretapping is done legally. Cases have
been thrown out of court because wiretapping had been done illegally.
My first question is the following: if this bill is not passed, what
effect could that have on the daily work of police officers?
Mr. Nicholson: Thank you very much for that question, senator. It
would not be very good. Let us face it, if the police officers have the
ability to access information that might save someone's life, to prevent a
crime or to interrupt a crime that is in progress and then were exposed
afterwards to some sort of charge or discipline that would be a result of
not having the authorization under the Criminal Code, that would be very
serious for any individual. They would be caught between their instinct to
do what is right in terms of assisting an individual, and then may find
later on that there was no authorization under the Criminal Code. I think
that would be very serious.
If you look at the decision of the Supreme Court of Canada in the Tse
case, there is an acknowledgment that this ability, on an emergency
basis, to intercept communications very quickly, without judicial
authorization, has to be available to law enforcement agents.
The basis upon which we are here today, and indeed the requirements that
were outlined in that decision, are basically just to bring that law into
conformity. Whether or not this is a good idea was not challenged. I think
it is accepted by everyone that this ability has to be there for law
enforcement agents. However, what are the parameters with it? What are the
safeguards that have to be built in? Consistent with the importance of
continuing to have this was the court delaying the unconstitutionality of
this law, up until April 13 of this year, to give the opportunity to the
Parliament of Canada to enact safeguards that the Supreme Court wanted.
You have a couple of colleagues to your left who have been very involved
with law enforcement agents over the years, and I think they would confirm
how important it is for law enforcement agents to have this ability when, on
an infrequent basis, it is necessary to get this type of authorization and
how challenging, difficult and serious it would be if there were no laws on
the books to do this.
The Supreme Court of Canada has given us until April 13. Again, I
appreciate the cooperation of the House of Commons and the House of Commons
committees. Again, I am looking forward to the cooperation of this committee
and the Senate chamber in moving this forward here. We have a little less
than a month to do this. Again, I believe this is straightforward. As I
indicated, we have additional safeguards that we have put in that were not
required but that we have added to this bill.
Senator Jaffer: Minister, my question is about notifying
non-accused people who have had an interception. Of course, you know that
section 196 applies to interceptions authorized under 185 to 186. However,
196, if I understand well, it does not make any distinction between accused
and non-accused persons. I wanted to hear from you as to what steps you will
take to ensure that the non-accused person is notified of the interception.
Mr. Nicholson: The police are required to notify everybody, not
just the accused. In the examples I gave you, it could be the victims
themselves. Whether you are a victim or the accused or charges are laid
subsequent to that, we believe — and I believe you will agree with that —
that these individuals have to be notified that their communications were
intercepted. I think that is only fair. I will ask the officials if there is
anything they can add on that.
Ms. Audcent: Any person who is the object of the interception
would have to receive notice, so it would not be limited to persons —
Senator Jaffer: Is that the current practice?
Ms. Audcent: Yes. This is mirroring what we do in 196 currently
but applying it now to 184.4 as well.
Mr. Nicholson: In the examples I gave, it could be a victim who is
in the midst of a problem and communicating somehow or whose phone is being
used. It is broad enough so that it includes everyone who might be in this
Senator Jaffer: To make it more specific, it has been applied
generally, and it will be applied under 184 as well?
Mr. Nicholson: Yes, it will; that is right.
Senator McIntyre: Thank you, Mr. Minister, for your presentation.
Generally speaking, I find that Bill C-55 is responding to the ruling of
the court that 184.4 was unconstitutional and that, therefore, more
transparency was needed.
As I understand, the legislation basically calls for three changes:
notification, reporting and restricting the usage to police officers and to
offences listed in section 183 of the Criminal Code. Now, 183 has a rather
broad list, ranging from terrorist offences, hijacking, kidnapping, murder
and sexual assault to mischief, betting offences, gaming and so on. Are
there offences outside of section 183 that are not currently listed but
Mr. Nicholson: Again, just for the record, a number of those
provisions that you mentioned and that are in this bill were not required by
the Supreme Court of Canada. As was pointed out by our colleague Senator
Baker, they did raise the question of police officers and peace officers.
They wanted notification of the individual. We have gone beyond that in
terms of the notification requirements and the reporting requirements.
With respect to section 183 of the Criminal Code, we actually brought it
into compliance with the other two sections that deal with wiretaps. If you
are under 186 or 188, you can make an application for a wiretap, and it must
be one of those offences listed within 183 of the Criminal Code. It seems to
me to make sense that those would be the offences. They are the more serious
offences. They do not include all offences. Yet, because this is an
extraordinary power that should have limits placed on it, again it seemed to
me to make sense that we would include that definition within the others. It
certainly creates consistency in the laws, but it also makes sense.
I do not know of any offences outside of 183. As we move forward, things
are brought to our attention or new laws are passed, it is always a
consideration to add to 183. It is not necessarily a closed list. We can
move forward to add an offence to that. Again, it is not the last word on
it, but it seems to me that there should be some precision, some definition,
with respect to exactly what offences we are talking about. I think, as do
the officials and those who worked to put this together, that it makes sense
to have the same definition that is included within 186 and 188.
Senator McIntyre: It is clear that the legislation is focusing
mainly on offences that would cause serious harm to persons or property.
That is where the whole focus of 184.4 is.
Mr. Nicholson: That is right. That is when police need it.
Officers will tell you that this is when they have to have something like
this, when they are in a situation where they have this information and have
to move immediately to either thwart or interrupt a crime or to assist
Senator McIntyre: Yes, and once they move on 184.4, they quickly
have to move under 186 to have judicial authorization.
Mr. Nicholson: Exactly, it is the next step. You are correct on
Senator McIntyre: Another quick question regarding "unlawful
act" versus the offence. As I understand, section 184.4, as it now stands,
uses the phrase "unlawful act."
Mr. Nicholson: Yes.
Senator McIntyre: Bill C-55 amends the words "unlawful act" to "offence." Why was there an amendment? Is it because the expression
"unlawful act" is not defined in the Criminal Code?
Mr. Nicholson: Again, it seemed that we should be as precise as
possible as to what we were talking about. I am of the opinion that, for
instance, the term "peace officer" is too broad. It includes too many
different categories, and, therefore, it made sense to more narrowly define
exactly who has this ability as "police officer." In the same way, rather
than leave it open-ended as any unlawful act, it makes sense to limit it to
those offences within the Criminal Code and to go further than that and say
that we are talking about the offences listed under 183 of the Criminal
Code. I believe there should be some precision when you are using this
extraordinary power, whether it is the "police officer" or the "offences." We have more narrowly defined this, and I think it makes sense
on both counts so that people know exactly what it is we are dealing with,
who has the ability to make these interceptions and what types of incidents
it applies to. I think it brings definition and is a step in the right
Senator Joyal: Mr. Minister, the Canadian Bar Association, in its
letter to the Legal Affairs Committee in the other place, has suggested that
the definition of "police officer," the way that it is included in the
bill, should in fact be restricted to a special designated class of police
officer, in other words, someone with a level of authority. You will
remember that when this committee was considering the authorization to do
something that would be legal, that decision would have to be put to the
superior, the designated class of officer who could be aware of it.
Since here we are doing something that is exceptional in terms of the
Charter, would it not have been better to have provided for a more
restrictive kind of open-ended possibility for any police officer to do
that? In my opinion, the bar has an argument in its letter in relation to
Mr. Nicholson: I am aware of the argument they have made. I would
say that what we are dealing with is an emergency situation. I do not want
to have, and I do not think it is necessary to have, one more layer of
intervention in this when we are talking about an emergency situation. You
could have a situation where some constables come across a situation where
they need an emergency wiretap. I do not want to put the extra
administrative burden on them to say: You must have someone above a certain
rank to do that authorization. You could almost make the case, then: Why not
just call a judge or Justice of the Peace or some judicial authority? The
whole idea of this section is that it is an emergency situation.
I am comfortable with the definition of "police officer." Again, I
would not want to add that one more layer in there, because that is not what
this section is all about. It is a section to be used sparingly, in
emergency situations, as I have described. To get into the possible problem
of trying to get different layers of people within the ranking of police
officers is not, I think, what this section is all about.
I respect what they had to say about that. It is an interesting view of
that. However, as I indicated to your colleagues here, we have restricted
the number of individuals who have this ability to have this extraordinary
power under Bill C- 55. We have restricted it, but I do not think we should
restrict it any further than that, because that would help defeat the
purpose of what section 184.4 is all about.
Senator Joyal: What about the admissibility of the proof in
relation to the element of information that has been gathered under that
section if, during the further investigation, the police seek an
authorization from a judge to continue the wiretapping? What would happen
with the proof that would have been gathered under that emergency situation?
Mr. Nicholson: It is admissible because it is lawful. If you are
within the definition of section 184.4, then that is admissible. However, as
Senator McIntyre pointed out, this is not the last word. You must then move
into the other sections of the Criminal Code and get judicial authorization
if you want to continue in this area. However, this is strictly an emergency
provision; and, yes, the evidence that would be gathered from that would be
Senator Joyal: In their letter, the Canadian Bar Association
raised some doubts about the admissibility of some elements of the proof.
That is why I raise this issue, because it does not seem to be as clear as
your office seems to think, that there will be absolute admissibility of the
Mr. Nicholson: If this bill does not get passed, senator, there
would be some serious questions, in my opinion, as to the admissibility of
this evidence if this particular section of the Criminal Code were struck
down because there was not the additional safeguard as pointed out by the
Supreme Court of Canada. However, under section 184.4, up to this time,
evidence gathered as a result of this emergency measure, this emergency
power, has been admissible in court. With the passage of Bill C-55, I am
confident that the evidence gathered will continue to be admissible.
Again, with the additional safeguards, I think that would certainly be an
argument that you would make in favour of its admissibility, senator, would
you not think? You have all these safeguards, reporting requirements, and
any extension requiring judicial authorization; this would enhance the
admissibility, it seems to me, of the evidence. However, again, I believe
the evidence has been admissible and will continue, of course, to be
Senator Dagenais: Obviously, as a former police officer, I
recognize the effectiveness of wiretapping, maybe even at the Charbonneau
Commission, we will see.
I have two quick questions to ask you, minister. First, will the
provisions of this bill apply to secret services? We have talked about
police officers and peace officers. Will secret service agents have the same
Mr. Nicholson: No. They are not police officers, senator. That is
the quick answer to that.
Senator Dagenais: To reassure those who fear police abuse, can you
tell us what the consequences would be for police officers if they abused
Mr. Nicholson: Probably no one is in a better position as to what
those consequences might be if police officers do not, senator, in your
leadership role in law enforcement within the province of Quebec. That being
said, this is why it is absolutely essential that we actually get the bill
passed. Again, it is no surprise that the court has given us up until April
13 to get the safeguards remedied, because there is a recognition at the
highest level of the courts in this country — and indeed by individuals, I
know, such as yourself and Senator White and those who have been intimately
involved with law enforcement across this country — that on occasion these
emergency powers, these abilities, are necessary.
I think we have the responsibility to ensure this is available so that we
would never place a police officer in the position where, in their
legitimate efforts to protect victims, to interfere with crime, to stop a
crime from being committed, that somehow there would be some consequences
directed towards them by reason of the fact that they have intervened to
assist someone or intervened to prevent or interrupt the commission of a
crime. We do have that responsibility.
This is why I think this is a very reasonable and measured response to
what we are taking. We have the safeguards. We go beyond, as I have
indicated, what the Supreme Court of Canada required us to do, but all of
them are reasonable on their merits. I am hoping that, as you continue to
look through this in the next day or so, you will come to the same
conclusions, as I am sure you will.
Again, we owe it to the public, who might be victimized, to have law
enforcement agents have the ability to assist them when they need it.
However, as you quite correctly point out, we also have an obligation to
those who are acting within their legitimate responsibilities to ensure that
they are not exposed to some disciplinary action later on. Those who have
worked with you over the years, I am sure, would be in complete agreement
with moving forward on this.
Senator White: Mr. Piragoff already responded to the question I
had. Thank you very much.
The Chair: I may have missed this with Senator Dagenais' question,
but in terms of the definition of who can do this, does CSIS fall within
this at all?
Mr. Nicholson: No, they do not, senator.
The Chair: I am wondering about the rationale, because if you are
talking about a terrorist attack, which was raised, it seems to me that is
the sort of agency that should be captured.
Mr. Nicholson: Their powers are under the CSIS Act and they are
confined to that, senator. This strictly deals with the wiretap provisions
under the Criminal Code.
The Chair: Did you have something to add?
Ms. Audcent: They are not first responders. The CSIS Act sets out
their responsibility, and their responsibility is to prepare advice for
government on threats to national security. In a situation where you need a
rapid response in an emergency, they would contact the RCMP, and the RCMP
has that role.
The Chair: Thank you.
Minister, we thank you very much for the time you have afforded the
committee this morning. It was very helpful and much appreciated.
We are now back dealing with Bill C-53, An Act to assent to alterations
in the law touching the Succession to the Throne. We have witnesses
remaining from Justice Canada and the Privy Council Office to address any
questions that senators may have with respect to this bill. Following
completion of the questions, we will move into clause by clause to hopefully
finalize this today and send it back to the Senate for third reading.
Senator Fraser: It is necessary for Canada to notify the
Government of the U.K., or maybe Her Majesty, that we consent to them
bringing in this bill. All the affected realms had apparently given that
notification by December 2 last year, I believe, according to what was said
in Westminster. In what form did we signify our agreement. Did we use an
order-in-council or what?
Mr. Wild: It was an exchange of letters between the Prime Minister
of the United Kingdom and the Prime Minister of Canada. The Prime Minister
of Canada indicated that the government would be putting forward a bill in
order to determine whether Parliament would provide its assent.
Senator Fraser: In 1936 we used an order-in-council. Why would we
not do that this time?
Mr. Wild: I think there has been an attempt to learn from 1936 and
there was an extended conversation with the United Kingdom Cabinet Office on
how to do this. I do not want to say that there were errors in 1936, and I
do not think there were errors in 1936, but I do not think it was
necessarily viewed as the best way to have done things, particularly in
terms of ensuring there was adequate communication between the United
Kingdom and Canada. There are issues around the timing of when Canada was
informed in 1936. None of those issues exist in this case.
I think there was an order-in-council in 1936 because they thought the
order-in-council was actually providing the operative assent. It was because
of the timing of how things were happening. We do not have that issue here
because they are waiting for us before finalizing.
Senator Joyal: In 1936 was there not also the point that
Parliament was not in session?
Mr. Wild: Yes.
Senator Joyal: With Parliament not being in session, there was no
expression of opinion. Considering that the Statute of Westminster had just
been adopted, it seems to me that they wanted to respect the spirit of it.
Also, it was a matter of urgency because King Edward VIII wanted to
Mr. Wild: I do not recall at the moment the exact timing of when
the U.K. bill was done for the application and when the order-in-council was
done in Canada. I am not so sure that those happened in an order that we
would today say they should have.
The United Kingdom has handled this far differently from how the
situation was handled in 1936 in that there was regular and continuous
communication before anything occurred. That may not have been possible,
given that it was an abdication in 1936-37, but there were some temporal
issues around how that one was handled that do not exist here.
At the end of the day, the approach we are taking today is one with which
we are all comfortable from a political, a legal and a constitutional
perspective. We know how 1936 happened; we have a pretty solid sense of the
reasoning behind many of the decisions that were taken, but this is its own
project, its own initiative. In my humble opinion, we have had much better
communication with the United Kingdom this time around than we did then.
Senator Joyal: My second question is about an element raised by a
witness yesterday. The first "whereas" reads:
Whereas the Constitution Act, 1867 provides that the executive
government and authority of and over Canada is vested. . .
The French version states:
La Loi constitutionnelle de 1867 déclare de sa Majesté la Reine [...]
Of course, the French version of section 9 of the Constitution is pretty
clear that the power of the Queen existed pre- 1867. Why did you choose the
word "provides" so that one is tempted to believe that it is the
habilitating clause of the power while in fact the power pre-existed? Is
this just a lapse in drafting or is this something you have used in the past
in other bills?
Mr. Newman: It is a customary usage, Senator Joyal. The first
recital in the preamble to which you refer paraphrases rather than quotes
section 9. It does not set out section 9 per se or even mention section 9.
It mentions the Constitution Act, 1867. It is true that section 9 is
declaratory, but section 9 is still a provision; it is a declaratory
provision. It is perfectly acceptable to say that section 9 provides, rather
than declares, that the executive government and authority of and over
Canada resides in the Queen.
If the French version said "dispose" instead of "déclare," that would
have been perfectly acceptable as well. There is no significance in the
English version saying "provides" rather than "declares." It is not
something that is inconsistent with our drafting policy.
I listened with great interest yesterday to the deliberations of this
committee and the witnesses and I discussed this matter with our legislative
drafters and experts. They are completely comfortable with the use of the
word "provides." "Declares" would have been acceptable as well, but "provides" is perfectly acceptable and adequate.
Senator Joyal: Mr. Wild, of the 16 members of the Commonwealth
that have the Queen as their head of state, have any already signified their
assent to the changes, be it through an amendment, legislation or an
order-in-council? I know that some of the countries do not have to pass
formal legislation to express their assent.
Mr. Wild: None of the countries that are proceeding by way of
legislation have yet completed their legislative projects. Of those that are
not using legislation, it is not clear whether some feel that they have
already completed the process by having their prime minister or equivalent
write to the Prime Minister of the United Kingdom saying they are in
agreement and have no issue.
The Prime Minister of United Kingdom provided a draft of the legislation
that they were going to be tabling in the U.K. Parliament, and each prime
minister was asked to respond as to whether they felt that was, in form and
substance, an appropriate piece of legislation. Every one of the 16 heads of
government have written back and agreed. What I cannot give you a definitive
answer about is whether, for those who are not using legislation, that
letter was viewed as sufficient or whether they will be taking a further
step such as the equivalent of an order-in-council.
From what I understand, each country is taking its own approach. Some
feel that letter is sufficient. Others may take an additional step of
providing an order-in-council. That is the best I can do on that.
Senator Joyal: I will put my question in more restrictive terms.
Among the Commonwealth countries that have to legislate, have any adopted
the legislation yet?
Mr. Wild: No.
Senator Joyal: If we go to clause-by-clause consideration, report
to the Senate and adopt the bill at third reading, would we be the first
country to give assent?
Mr. Wild: Yes.
Senator Rivest: In Canada, strictly from a legal point of view,
would a simple letter from the Prime Minister of Canada have had the same
effect as this bill?
Mr. Wild: It would not respect the convention that is housed
within the preamble to the Statute of Westminster.
Senator Jaffer: I would again like clarification, because I am not
sure I understood what the minister was saying. Has Australia begun this
process in their Parliament? Have they tabled a bill on this?
Mr. Wild: Not to my knowledge. There is a debate going on between
the national government and the state governments, in particular the state
government of Queensland, as to whether the state governments have to pass
their own legislation. So far, Queensland has publicly taken the position
that they do. The national government had taken the position that the states
are not required to do anything. As far as I understand, that remains a
point of debate, and I have not seen that resolved yet.
Senator Jaffer: What is troubling for me is why we did not wait
until the British Parliament passed the law. It is bothering me. You were
clear that if this bill is very different from what they have passed — I am
not trying to put words in your mouth — we would have to look at this again.
Why would we not just wait?
Mr. Wild: There are a number of factors that I think play into the
decision of when to introduce a piece of legislation. Part of the context of
this is managing the House schedule to look at what the legislative calendar
looks like and finding an appropriate spot.
The government did not want to be the last; we did not want to be the
reason for holding up the United Kingdom and it being able to move forward
with its provisions. The complexity of the house calendar and what we were
going to see, depending on when the House of Lords would complete their
process — which is taking us into April — raised issues for us in terms of
how to be able to move that without having to potentially wait for the fall
It is basically a calculation based on the legislative agenda and what
will work. At the end of the day, we did not see any significant legal risk
with moving this project now versus waiting for the U.K. to complete its
Senator Jaffer: We could end up in a situation where we are first
but still have to come back and change it if the U.K. situation is very
different from ours. Is that not right?
Mr. Wild: It is possible, but not probable.
Senator Joyal: I understand from section 3 of the bill that the
government will not proclaim until Westminster has voted at third reading on
April 22. Am I right?
Mr. Wild: That is correct. The intention around the coming into
force is that it will not happen until — I will call it — "the dust has
settled" amongst all of the realms and we see where everyone is. We will
not be bringing anything into force until the government of the U.K. is
ready to bring theirs into force. It will be a determination of how they
want to sequence that.
We will not be bringing anything into force prior to the U.K. completing
its project. I would say it is unlikely we will be bringing legislation into
force until Australia and New Zealand complete theirs. It just makes it
simpler in a certain sense to deal with the timing issue through the Order
in Council route of coming into force than trying to figure out the exact
timing of when to then introduce a bill and go through the legislative
Senator Joyal: Of course. Thank you.
The Chair: At this juncture, is it agreed that the committee
proceed to clause-by-clause consideration of Bill C-53, An Act to assent to
alterations in the law touching the Succession to the Throne?
Senator, did you have a point of order?
Senator Fraser: No, not a point of order, but a point of
notification, if you will. I am perfectly prepared to assent to all elements
of this bill in committee, but I reserve the possibility of making other
proposals at third reading. I have to take more advice on that.
The Chair: Understood.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
Is it agreed that I report the bill to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you all. Witnesses, we appreciate you being here
and contributing to our deliberations and assisting us. It is very much
Mr. Newman: It was our pleasure. Thank you.
The Chair: This is a reminder that the next meeting of the
committee is on Monday at 2 p.m. in the Centre Block, room 160-S.
(The committee adjourned.)