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 website. You can find more information on the schedule of witnesses on the website under "Senate Committees."

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 Canadians.

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 study.

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 some questions.

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 assent to?

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 Catholics.

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 assent to?

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 bill.

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 areas.

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 constitutional?

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 constitutional provision.


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 status.

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 recently?

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 this area.

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 Commonwealth.

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 been given.

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?

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 extension.

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 wiretaps.

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 that.

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 in them.

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 specific purpose.

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 this.

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 wheels."

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 Canada.


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 situation.

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 should be?

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 victims.

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 that.

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 direction.

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 that.

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 admissible.

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 proof.

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 admissible.


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 power?


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 this power?


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 abdicate.

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 session.

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 deliberations.

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 process.

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 appreciated.

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.)

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