THE STANDING SENATE COMMITTEE ON LEGAL AND
OTTAWA, Monday, March 25, 2013
The Standing Senate Committee on Legal and Constitutional
Affairs, to which was referred Bill C-55, An Act to amend the Criminal Code, met
this day at 2 p.m. to give consideration to the bill.
SenatorBob Runciman (Chair) in the chair.
The Chair: Good afternoon and 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-55,
An Act to amend the Criminal Code, the response to the Supreme Court of Canada
Decision in R. v. Tse act. As a reminder to those watching, these
committee hearing 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 “Senate Committees.”
For our first panel today, we will welcome back, from Justice
Canada, Donald Piragoff, Senior Assistant Deputy Minister; and Karen Audcent,
Senior Counsel, Criminal Law Policy Section. They have no opening statements, so
we will immediately begin with questions, starting with the deputy chair of the
committee, Senator Fraser.
Senator Fraser: Good afternoon. Thank you very much for
being here. It is very helpful.
I have been trying to get the various bits and pieces of this
bill straight in my mind, and I would like to ask, in particular, about the
annual reports. It seems to me, unless I have missed something, that we are
asking for the federal report of the minister to be substantially more detailed
than the provincial reports about what the provincial police have done. Am I
right about that? Set me straight.
Karen Audcent, Senior Counsel, Criminal Law Policy Section,
Justice Canada: They are the same. It is just that the way it is drafted
might lead you to believe that because it is cross-referencing the federal,
which has all the details.
Senator Fraser: Okay, into the details. The details sound
really quite detailed; they run on for a bit over a page. However, one of the
things that strikes me and that would be very interesting for us in Parliament
to know is how many of these interceptions do not result in charges or in
further investigation of things that come to light through the use of the
wiretaps. Why was that not included? I mean, in other words, the ones that do
not work, the ones that turn out to be false alarms.
Donald Piragoff, Senior Assistant Deputy Minister, Justice
Canada: Thank you, senator. It is kind of hard to report on a negative
because a negative can be an infinite number. If you look at the reporting
scheme, in the first paragraph, it says that all persons who have been the
object of an interception shall be notified.
Senator Fraser: It was the reports to Parliament I was
Mr. Piragoff: Oh. It will all be included in the report.
You have to report to Parliament on the total number of persons who were
intercepted, and then there are some subcategories that say that if that led to
police laying charges, report on that. If that led to charges being prosecuted,
then report on that. Those are actual positive things that happen that you can
report on, but if nothing happened, you are reporting on a negative. It is easy
to calculate the negatives. If you know the number of interceptions you had and
then subtract the ones charged, then you know that that is what was not charged.
Senator Fraser: I originally thought they were just going
to make us do the arithmetic. However, if one interception leads to more than
one criminal proceeding against more than one person, for example, and we do not
know, that is, I do not see here — maybe I am misreading again, which is
possible — enough information for me to figure out, when these reports come back
to Parliament, how many of the interceptions actually were, in some way,
productive for the justice system, leading to offences or further investigations
or whatever, and how many turned out to be blind alleys or false alarms, as I
said. Can you tell me how I could extract that information from these reports?
Mr. Piragoff: As I said, it is hard to report on a
negative. I am not talking just about the section 184.4 interceptions because
what we have tried to do is mirror the reporting scheme for section 184.4 based
on the regular wiretap under section 186 or section 188, the normal case where
you actually have authorization.
What happens sometimes in a wiretap situation is that you start
with a wiretap of a certain individual — his telephone. Nothing comes out of
that conversation related to that individual, but, because of what other people
say, you then start another investigation of someone else. It quite often
happens with drug transactions. You put a tap on someone, and the end result is
that nothing ever happened to the person the tap was on. However, as a result of
conversations by that person with others, you start having other investigations.
Some of those other investigations might actually lead to the charges, so that
is why I am saying it is hard to report on the negatives — because how many
negatives do you have? Everyone who called that telephone number and is
subsequently never charged becomes a negative.
Senator Fraser: I was not thinking of the persons
involved. I was thinking of the actual interception by the police officer. How
many of those would be productive in some way? How many would consist of you
listening and realizing that not only does the direct target have nothing to do
with this case but nor does anyone else that he is talking to, and that book is
closed and set aside? The police will know this, will they not?
Ms. Audcent: We have tried to have it be as consistent as
possible with the existing reporting scheme. What we have put forward in Bill
C-55 for the reporting scheme is a mirror of what we have right now. Right now,
in terms of the reporting for normal wiretaps, the focus has always been, as
Mr. Piragoff mentioned, on what positively is happening — in other words, how
many wiretaps were done, how many led to prosecutions and how many gave
information that later led to something else. You can see that in the list.
What will happen practically for the authorities responsible for
complying with these reporting requirements is that they will just be doing what
they do now, in terms of reporting, but they will have to add section 184.4
reporting into the existing practices. We really did try for a very consistent
approach with the existing practice and the information that you are talking
about in terms of what did not occur. You can maybe draw some inferences from
the global numbers versus the numbers that did actually lead somewhere. I think
it is a fair point that the math may not always be obvious, but that is the
system we have now and we are trying to continue that but moving into section
Senator Fraser: The next time you suggest changes you
might suggest that the whole system include this.
Ms. Audcent: Yes, and we did not do a whole revamp.
Senator Batters: Thank you for coming today and helping us
with this important piece of legislation. Could you please describe for us what
the normal judicial oversight process is for wiretapping?
Ms. Audcent: Your normal process for wiretap is your
sections 185 and 186 process, so there is a fair bit involved: You have to be in
a position to demonstrate to the court that other methods were not feasible to
use; you have to explain the grounds, obviously; you have to explain what you
are going to do, who the targets are, what methods you are using and this type
of thing. All of this information goes before the court in an affidavit, and
then the court will make a decision with respect to whether or not they can
authorize the use of this intrusive technique. This is obviously quite different
from the section 184.4 process, more time consuming, and that is why there is
the need for the exigent circumstance in 184.4.
There is also the middle process of section 188, which is an
accelerated process for emergency situations. It is not as fulsome as the
sections 185 and 186 process I was talking about; it is an abbreviated process,
but it only results in an abbreviated authorization for 36 hours in an
emergency, and then the courts will be looking at the 185-186 application with a
more complete picture, but it allows the courts to authorize something
Then section 184.4, which is the subject of Bill C-55, is meant
to be an even shorter time frame to allow the really rapid response, but the
police would immediately start thinking about section 188, sections 185 and 186,
going to court, getting that court authorization to permit them to continue if
they need to for investigative purposes.
Mr. Piragoff: I might add that the normal process also
involves specially designated Superior Court judges. These applications are not
made to a provincial court judge or a JP; it has to be a Superior Court, and
there are certain Superior Court judges who are designated to deal with this.
In addition, an application must be made by specially designated
prosecutors, so it is very limited. A normal wiretap authorization process can
take days, if not sometimes weeks, just to put together the affidavits. It is a
very demanding process. The Supreme Court actually made note of that in its
decision in Tse to say that because of the normal process that would have
to be undertaken, even whether it is the normal section 185 or 186 or the more
expedited process under section 188, the time that would take could actually put
people's lives in danger. They said that is the reason Parliament created this
specific provision in 1993, to deal with the situation where you have to get the
wiretap up and running, because if it is a kidnapping or a hostage taking, every
second may count with respect to whether those hostages will live or die.
The way it is structured, and the Supreme Court explained it, is
that the section 184.4 provision is really to get the wiretap on right away. The
police do not need to talk to a judge, there is no need to have approval of a
senior designated police officer; get the tap going first and then start doing
the paperwork if you think this wiretap will go longer than just for an hour or
two. The court was very strong in saying there are inherent time limits built
into the process. As time goes on it becomes more and more reasonable for you to
see a judge, and there comes a point in time when once you can see a judge this
tap should stop and a new wiretap should start. That is the overall process.
Senator Batters: Thank you. That is very helpful.
Some of the organizations that intervened in the R. v. Tse
decision voiced their support of the amendments being proposed now at the House
of Commons Standing Committee on Justice and Human Rights. Would you tell this
committee about the support that was received from those organizations?
Ms. Audcent: The bill was generally viewed positively by
the criminal defence lawyers group that appeared before the House of Commons,
the British Columbia Civil Liberties Association. There were also written
submissions from the Canadian Bar Association. All of those witnesses
essentially said that the bill in their view was making very positive changes
and that they felt that it responded to the decision of the Supreme Court. They
did make some suggestions for amendments that the House of Commons ultimately
did not pursue, but the general view of all of those witnesses was that the bill
was a positive step.
The Chair: I have a supplementary question, if I may. You
were talking about the normal process taking days if not weeks, and I thought
that it was primarily because of the requirement that nothing else would work.
This is not necessarily related to the bill, but has any thought been given to
finding ways to reduce emphasis on the process involved in getting
authorization? Is any work being doing in the ministry on that?
Mr. Piragoff: The department is reviewing the wiretap
provisions with the provinces. One of the ways of getting a wiretap with less
paperwork is the provision under section 188. That is the provision that
Ms. Audcent mentioned where you do not have to do the full paper process; it can
be an oral request. The Supreme Court made it clear it can be an oral request
under section 188. It is to a Superior Court judge by a designated police
officer, but that tap lasts only up to 36 hours. Again, there is a structure of
basically saying under section 184.4 get the wiretap going right away if it is
an emergency situation. Then there is another type of wiretap you can get under
section 188 orally before a judge that will last for 36 hours. If you have to go
beyond that then you should be moving into a full-blown interception
The reason for all the paperwork is that it really is a question
of balancing on the one hand the investigative necessity of the procedure with
on the other the privacy rights of Canadians and the individual. Parliament has
indicated that the privacy of conversations is a high privacy interest, and that
is why all the various safeguards are involved.
The Chair: The requirement that nothing has worked or will
work is sort of a field day for defence counsel. In any event, I will move on to
Senator Baker: If there are discussions with the
provinces, perhaps a suggestion could be made that the whole process could be
done by telephone. For years we have had section 487.1 for telewarrants: Any
time day or night, seven days a week, 24 hours day, provincial court judges are
available throughout this nation to give instantaneous approval in form 5.1
faxed into the police car for authorization. Surely there is a better way of
doing it, as the chair suggested, but I do not want you to comment on that. That
is an opinion.
I do not know if you want to comment on this question: A lot of
Canadians feel that anyone whose telephone has been tapped by the police, any
Canadian who has had a listening device put in their home or in their car should
be notified after that listening device is taken out or after the tap is taken
off the telephone. If they are not charged they should be notified. This bill
does not do that. It only does it for the objects.
I notice that the Supreme Court of Canada was very careful in its
judgment — boy was it ever careful. The court said, “by those targeted” — the
targets. In this bill, it only applies to the targets; it does not apply, as you
pointed out earlier, to the dozens of telephones that are tapped, as the former
police chief sitting across the way will tell you. There is a basket clause in
most warrants or similar provisions — authorizations in order to listen to many
people's telephone conversations. However, those people are not included in this
Was any suggestion given such that everybody whose telephone has
been tapped during an investigation by the police should be notified that they
were tapped, even if they were not the target of the authorization?
Mr. Piragoff: A target is a telephone number that is
intercepted. That is the target. Who uses the telephone is a different question.
You target a particular telephone number, which usually belongs to a particular
individual, and that becomes the target. People may call that telephone number,
but the police do not know who calls the number. All kinds of people can call a
number and do not say, “Hi, my name is so-and-so and I live at such-and-such
address. They simply call the number, leave their message or have a
You do not know who is on the other side of the telephone
conversation; and you may never know who is on the other side of the telephone
conversation. You cannot give notice to people you do not know. That is why the
scheme is basically to say, “Give the notice to people you know.” You know who
owns the telephone, because that is the person registered to that telephone
number. If they know the identity of the two people talking in a room, the
police are obligated to notify them. I was careful when I said that many people
can call a telephone number, but they do not become targets.
Senator Baker: Yes, they do not become targets. When you
look at an authorization under section 186, you find three or four people whose
telephones are the targets, and then you find further authorizations to add
telephone numbers as people call that number. Then, you have further
authorizations to add other persons who call to that number, and some of those
are discontinued during the investigation.
I will read one sentence from the Supreme Court of Canada. It is
from Michaud v. Quebec. Paragraph 118 states:
We would also like to note that this appeal does not
raise the issue of the rights of individuals involved in conversations
with the target or of third parties who are neither accused persons nor
targets whose communications have been intercepted but who have not been
notified under s. 196 of the Criminal Code.
Mr. Piragoff: That is exactly my point. Some people are
not notified because they are unknown.
Senator Baker: However, their telephone number has been
Mr. Piragoff: If their number has been tapped, then they
become a target.
Senator Baker: Everybody is notified.
Mr. Piragoff: If it becomes a targeted number.
Senator Baker: Third parties.
Mr. Piragoff: Third parties can be unknown persons, and
unknown persons cannot be notified.
Senator McIntyre: It is obvious that a number of
conditions and constraints are embedded in the language of section 184.4 as it
stands. Those conditions and constraints will continue to be part of section
184.4 if Bill C-55 becomes law. For example, the Crown has to prove on balance
that those conditions and constraints have been complied with — terms such as
reasonable and probable ground, reasonable diligence, urgency of a situation,
serious harm, and the list goes on — are not vague and form part of the case for
On top of that, additional constitutional safeguards have been
added to Bill C-55, such as notification, reporting and restricting the use to
police officers and to offences listed in section 183 of the code. Are you aware
of any other constraints, conditions or constitutional safeguards, other than
those I have enumerated, that should form part of Bill C-55?
Ms. Audcent: The Supreme Court indicated only that
notification would be required for constitutional compliance. As for the other
safeguards that have been added, the Supreme Court indicated that the government
might want to look at narrowing it from peace officer, but it did not rule on
that issue as constitutionally needed. As for the other safeguard of limiting it
to section 183 offences and adding reporting requirements, the Supreme Court
said it did not consider those to be needed from a constitutional perspective.
The bill has put forward a bit more in terms of limiting the section 184.4
authority than what would be constitutionally required based on the Tse
Mr. Piragoff: May I give a simpler answer to that? It also
follows up with the question that Senator Batters asked. There are essentially
three baskets of proposals. In one, the court said that this is the
constitutional deficiency and that giving notice will cure that deficiency. The
government could have stopped there, and there would have been one clause in
this bill. However, other issues were raised before the courts. They fall into
two categories: the middle category, where the court said that these are good
suggestions and proposals but are not constitutionally required. It said that
they are good policies and that it is up to Parliament to decide whether to
Then there was a third category of other issues that the
litigants raised in asking the court to rule, such as time limits or fixed
period of time. The court basically said that it was not necessary. When asked
whether the police officer should keep a record of exactly the reason he or she
decided to do the wiretap, the court said it would be nice, but not necessary.
Some witnesses who testified in the other place and probably some
witnesses who will appear will talk about some of those items in the third
basket, which, as litigants, they wanted the court to accept, but the court did
not accept them. Then there is the middle ground where the court said that it is
not constitutionally required but is good policy; and they leave it to
Parliament to decide policy because that is not the court's job. The only item
in the first basket is the notice, and the court said to put the notice
requirement in so it would be constitutionally valid. When you talk about
proposals, you should keep in mind what is constitutionally required, what the
Supreme Court says is good policy and other good ideas.
This bill is called a response to the Supreme Court of Canada
decision in R. v. Tse to deal with the constitutional deficiency and with
the three or four other proposals that the court said were good policy ideas
that Parliament should consider. However, this bill does not deal with all the
other issues that could be dealt with in terms of wiretap. I know that this
committee wants to get involved and discuss some of these issues because they
are policy issues; but the scope of this bill is to deal with that first
category of issues and the second category, not the third category. I know that
some witnesses who testified in the other place and probably will testify here
will want to talk about that third category.
Senator White: When I look at the offences listed, I am
trying to figure out why there was not a split in those offences: one for
exigent circumstances — the wiretap we are discussing today; and one for those
that you go to a full authorization for. I am appreciative of the changes, in
particular peace officer versus police officer. However, I look at some of these
offences and I am challenged knowing that it is police officers only that you
would require exigent wiretap — bid rigging and things like that. Was there
consideration for that? The one would be a part of the other, but not
necessarily inclusive, for example.
Ms. Audcent: We took the same approach to 184.4 as we did
with the other wiretap provisions by making it an offence in section 183.
However, when you look at the preconditions to section 184 and to its use, it is
clear that some of the offences listed in section 183 are highly unlikely to
ever give rise to the type of scenario where there would be a threat of serious
harm to person or property.
Senator White: My second question refers to what Senator
Baker was saying. I recall doing a wiretap on a pizza shop at a certain time
every evening, and we had a requirement to live monitor that number in
particular. Might that not be a solution to Senator Baker's concerns, that the
judge require a live monitoring provision so that you are not picking up the 75
people who order medium pizzas but only the people who order cocaine with their
Ms. Audcent: That does happen. The courts will impose live
monitoring in circumstances such as you are describing. Often where it is
believed that there will be solicitor-client communications that might be
intercepted, the court will impose a live monitoring condition to make sure it
Senator Fraser: I am puzzled. I am sure there is a good
explanation, but I need the explanation.
Starting on page 5, proposed section 196.1, which is about the
written notice, sets out, it seems to me, pretty comprehensive grounds in (3) on
which an extension of the period before notification is required can be granted
by a judge for as much as three years. As you know, I asked the minister about
that last week.
Then, proposed subsection 196.1(5) is clearly about serious
offences, but I do not see why we need it. Why do you need (5) when (3) seems to
be so global in potential reach?
Ms. Audcent: The reason for (5) is that in the context of
the normal application for the extension you do have to demonstrate that one of
the investigations is continuing. However, it is felt that in the context of
these organized crime and terrorism offences investigations it is inherent that
there may be a need for an extension. If you demonstrate that it is this type of
investigation, then you do not have to also demonstrate that the investigation
is continuing. That is the distinction.
Senator Fraser: Surely if you are asking for an extension,
it is because the investigation is continuing, no? Or is this just one of those
great and wonderful things where the government likes to have total information
at all times about everything that moves?
Ms. Audcent: If you look at subsection (3), it is the
investigation of the offence to which the interception relates or a subsequent
investigation of an offence commenced as a result of information obtained from
the investigation referred to in paragraph (a). It is not that anything
of any nature is continuing; these specific criteria have to be met. For the
other, obviously, as you mentioned, you would have to have something that was
ongoing that was relevant, but in the context of terrorism and organized crime,
the feeling is that, given the nature of these offences, the specific
requirement for the continuing investigation is dispensed with, and that mirrors
what is done in the context of section 196.
Mr. Piragoff: Also, senator, subsection (5) does say if
the judge is of the opinion that the interests of justice warrant granting the
application. It is not the government that makes the decision; in the end, the
judge has to decide that in the interests of justice it makes sense to grant an
extension of notification in terrorism or organized crime cases, which cases can
sometimes go on for a long time. With terrorism in particular it sometimes takes
a year just to put the plot together.
Senator Fraser: I do understand your opening point there,
Mr. Piragoff. I was being a little sarcastic. However, over the years I have
been struck by the fact that wherever we ask a police force, CSIS or anyone like
that about getting people off lists or having records destroyed, there is a
marked resistance. I just wondered if this was part of that mindset. You do not
have to answer that.
Senator Batters: Mr. Piragoff, in your earlier answer you
talked about the three baskets: constitutionally required, good policy ideas
indicated by the court but not necessarily required, and a wish list of things
that are not deemed to be required. The government has included in this bill
some of these good policy ideas that the Supreme Court talked about. Could you
elaborate on those good policy ideas?
Mr. Piragoff: One proposal that deals with constitutional
deficiency is the granting of the notice requirement. Of the other
recommendations made by the Supreme Court, one was the safeguard for reporting
to Parliament, which we have discussed already, that a report be made to
Parliament with respect to the use. The court said that they do not see it as a
constitutional imperative but that it would help to strengthen accountability.
They said it is a good policy requirement but not constitutionally required.
On the discussion about “peace officer,” the court said that they
had reservations about the wide range of people who, by virtue of the definition
of “peace officer,” could be entitled to undertake a wiretap under this
provision. They said, however, that the facts before them involved a police
officer and therefore they would not deal with that issue. They indicated they
thought that was something Parliament should look at, and of course the bill
does restrict the definition of individuals who can take the benefit of this
provision from the broader concept of “peace officer” to a narrower category of
The fourth issue was to replace the unlawful act limitation by a
much narrower limitation, which is to cross-reference the offences in section
183. Again, as the minister indicated last week, that is a question of greater
accountability and greater notice to the public as to the scope of police
Senator Baker: First, the provision requests that in a new
year there be a report prepared on the interceptions made, the use of the
impugned section we are talking about, in the previous year, and included in
that report will be, from that use of that section in the Criminal Code for the
previous year, a whole list of things, including the number of those proceedings
in the previous year that resulted in a conviction, and so on. To my
recollection, wiretap cases are never resolved in one year. When you wiretap
someone in an investigation, it is three years before the case is even called,
let alone a conviction obtained.
How can the list required under this legislation be prepared in
My second question is about the words used. I will read section
195(1)(c). The new addition states:
(c) interceptions made under section 184.4 in the
immediately preceding year if the interceptions relate to an offence for
which proceedings may be commenced by the Attorney General of Canada.
Keep in mind “proceedings commenced by the laying of an
information” — the police chief across the way and Senator Dagenais commence a
proceeding by laying the charge, not the Attorney General of Canada — and,
second, “may be commenced by the Attorney General of Canada.” In 2006, we
changed the law. The Attorney General of Canada no longer can even take over a
proceeding until he or she receives the approval of the Director of Public
Prosecutions. Someone reading that paragraph in its plain sense — that is, on
the face of it — would be left with confusion as to what you are talking about.
My main question relates to the following: How can you provide
these statistics in one year after the interceptions are made?
Ms. Audcent: You are quite correct that these things do
take time. How the reports work in terms of reflecting that is that the RCMP
will provide updates. If you look at the annual reports that are done currently
for wiretapping, the RCMP management of that issue is done by updating the
information that is provided. They look at a five-year period when they do the
reports in order to bring things up to date. Your annual report for this year
may contain some information where the RCMP will update information from
previous annual reports because of the fact that the court process can last, as
you mentioned, many years. This is how the information is as up to date as they
can make it. They will look at what they have information-wise this year, but
that may include information that they will update from last year's report. They
will say, “This year we would like to update regarding the proceedings that have
been commenced, and what have you; or proceedings that have reached a
conviction, information that we provided previously, because of the fact that
the court process has moved forward.”
Senator Baker: The statistics that we have are not
Ms. Audcent: They are accurate to the moment, but they
cannot reflect multi-year processes in that one year.
Senator Baker: No, they cannot, because the legislation
Ms. Audcent: Each year they provide the additional
information as the system moves.
Senator Baker: The statistics we have for 2011 are number
of applications for authorizations, 116; number of persons against whom
proceedings were commenced, 167; number of persons not identified in the audit,
102; and 1,111 were the number of notifications given. That is for the year
2011. However, that is not an accurate and true reflection of 2011.
Ms. Audcent: It is an accurate reflection of 2011, but
they will include updated information.
Senator McIntyre: Section 184.4, as it now stands, has
been in force for approximately 20 years, having been enacted in 1993. In his
presentation before our committee, Minister Nicholson mentioned two cases where
section 184.4 was used, R. v. Tse and a case in Ontario where
police were investigating murder through drive-by shootings.
Are you aware of any other cases where section 184.4 was used by
law officials, namely, police officers?
Ms. Audcent: Yes. Frequently, it involves kidnapping, but
another scenario was a little different from the one that the minister spoke
about, which is Riley. It involved a case where the police heard there
was going to be a hit on a person. It is similar to the drive-by shooting, where
they were worried about future murders, although in this case it was actually a
planned assassination that the police heard about when they were doing a section
186 wiretap, and then they had to go immediately on another line to try to
figure out who that target of assassination was, so they used section 184.4. It
is generally used in kidnappings and those types of threatened deaths.
The Chair: Thank you, Ms. Audcent and Mr. Piragoff. I
appreciate your being here again and assisting the committee today. We will
suspend for two minutes until our next panel takes their seats.
Our next panel of witnesses are from the Office of the Privacy
Commissioner of Canada: Chantal Bernier, Assistant Privacy Commissioner; and
Patricia Kosseim, Senior General Counsel and Director General. Ms. Bernier, you
have an opening statement. Please proceed.
Chantal Bernier, Assistant Privacy Commissioner, Office of the
Privacy Commissioner of Canada: Thank you for inviting me here this
afternoon to discuss this important piece of legislation.
I am Chantal Bernier, the Assistant Privacy Commissioner, and
this afternoon beside me is Patricia Kosseim, our Senior General Counsel. The
commissioner regrets she was unable to appear before the members of the
committee in the timeframe available to you.
I would like to say from the outset that Bill C-55, the Response
to the Supreme Court of Canada Decision in R. v. Tse Act, is a positive
development for privacy.
I will outline our position by describing first what we consider
to be the central issue in this bill, and then by sharing our considerations and
As you know, the case R. v. Tse emerged from an alleged
kidnapping in British Columbia, where police had initiated a wiretap — without
judicial authorization, invoking the urgency of the situation. The central issue
is therefore the respect of the fundamental right to privacy while protecting
safety in emergency circumstances.
In 2010, our office published an analytical framework that
clearly identifies key considerations. When there is a privacy intrusion as a
result of security measures, such a step must be justified in an empirical
fashion as being necessary. If that is the case, it must be carried out within a
regime that ensures accountability. That is exactly what comes out in the
Supreme Court decision in this case, in R. v. Tse.
The Supreme Court recognizes the need, in exceptional cases, for
warrantless interception in emergency circumstances to prevent serious and
imminent harm to person or property.
The court also strongly asserted the fundamental need for
transparency and accountability when such invasive powers are used. This is
vital when traditional safeguards — like the requirement for prior judicial
authorization — yield to exceptional cases in which intercepting private
communications is necessary.
The monitoring of citizens’ private communications is one of the
most invasive powers that investigators hold. Notice and reporting would ensure
this extraordinary power is not abused. Bearing all this in mind, Bill C-55
protects privacy within the context of emergency situations in three main ways:
First, it puts in place clearer controls, by specifying that only
police officers — rather than all peace officers — may use the provision and
only in instances of certain serious crimes;
Second, it requires transparency, through ongoing public
reporting, similar to existing provisions for other forms of electronic
Third, it imposes an accountability mechanism, by requiring
notification to affected individuals.
I will now address each of these three aspects in greater depth,
beginning with controls.
To begin, we must acknowledge the reality that exigent or
emergency circumstances do arise in the course of police duties and criminal
investigations. This is where serious harm may result to a person or property,
unless there is immediate action. In these cases, obtaining prior judicial
authorization — in writing or even orally — may simply not be feasible or come
in time. As a result, Canadian courts have upheld the view that in these
situations, there must be some flexibility in how police exercise powers for
surveillance, for search and for seizure.
To that end, Bill C-55 provides a legal basis for police officers
to intercept communications without a warrant only when the situation is urgent,
the need is immediate, the action could prevent serious harm and the
surveillance targets either the suspect or the victim.
The restriction of this power only to police officers is a
positive change because, under Canadian law, peace officers can be mayors or
wardens, justices of the peace, bailiffs, prison guards and customs inspectors,
among many others, a wide array of persons. These new amendments represent an
important legal parameter that I believe will act as a clear control limiting
the potential for overreach. This approach clearly fits within the analytical
framework developed by our office in that it limits the privacy intrusion to
what is solely needed for security.
Moving now to transparency, Bill C-55 sets out new reporting
requirements in the Criminal Code modelled on existing annual reports for other
forms of electronic surveillance. As a transparency measure, reporting
requirements provide an opportunity to hold government organizations to account
in detail for the use of such extraordinary surveillance. As such, I believe
requirements for clear record keeping and public reporting to be a net
Certainly, in the context of ensuring respect for section 8 under
the Charter, the proposed reporting requirements would do much to restore the
overall reasonableness of surveillance along with the confidence of citizens. In
order to make meaningful assessments of the reasonableness of electronic
surveillance — or any form of government monitoring, for that matter —
provisions for public reporting are vital. Otherwise, review and oversight of
investigative techniques and their authorization, deployment and use would be
As such, we welcome new reporting requirements that will help
ensure greater transparency and accountability on the part of authorities who
intercept private communications in exigent circumstances.
Finally, with respect to accountability, the requirement for
notifying individuals who are party to the intercepted communications is another
important proposed check on the power to wiretap without a warrant. Clause 6 of
Bill C-55 would require notification to individuals in writing and within 90
days. Far from being banal, this notification requirement serves as an important
check by allowing citizens to challenge unreasonable or inappropriate
surveillance and seek meaningful remedy. Absent notification, surveillance by
investigators could remain unknown to those affected.
Unless a criminal prosecution results, individuals would never be
aware of the intrusion and capture of their private communications. Transparency
and openness are fundamentally sound practices, essential, in fact, in the
protection of privacy. Therefore, I believe these new provisions represent a
proposed improvement with which few would take issue.
In conclusion, as you will recall, this office has long argued
that the government should be seeking to enhance the regime for reporting on
existing private communication interception powers. I believe that this is the
essence of the Supreme Court’s decision in R. v. Tse, and that Bill C-55
is an effective response.
Thank you again for this opportunity to present the views of the
Office of the Privacy Commissioner, and I look forward to taking your questions.
Senator Fraser: It is not often that you are in a position
to come here and say: this is a good bill. It must be nice for you, just as it
is for us. Allow me to nevertheless ask you if there are aspects that you would
have liked to see be a bit stronger, tougher. It is very unlikely that we will
make amendments to this bill, given the very tight deadline following the
Supreme Court decision. However, time goes by and there could be other
amendments. Are there other aspects that you would have liked to see in this
Ms. Bernier: As I said at the outset, this bill fits very
well with the analytical framework we have developed ourselves, which is
entitled A Matter of Trust. It is a map, if you will, of the right
balance or integration of needs related to public safety imperatives and
protecting the fundamental right to privacy. Of course, this integration always
results in accommodation. This bill is an accommodation that, in our view,
really corresponds to the analytical framework that we are putting forward.
Senator Fraser: I would like to ask you a second question,
which I asked the officials who appeared just before you. The public reports
that will be prepared by ministers, every year, on the number in wiretaps that
were done, the number that resulted in other investigations or even charges,
will not tell us how many of those wiretaps had no useful result for the police
system and court system. Would you have liked to see that?
Ms. Bernier: To us, what is important and essential is
that the person affected be aware that he or she has been affected because it is
integral to privacy protection to have the right to rectify any violation or
have access to personal information that was gathered. As long as that is done
for the individual, that right is respected.
Regarding the public aspect, we are aiming for accountability to
Canadians. Accountability must really focus on the number of people who are
affected. Whether it results in prosecution or not, there is an invasion of
privacy, and it is that intrusion that must essentially be disclosed so that
people can exercise their duty to monitor what the government is doing.
Senator Batters: Thank you for coming to the committee
today. I welcome your comments and approach in analyzing this critical bill.
Your office has recognized the need for these important measures and has
properly commended, I think, the Department of Justice Canada for including some
privacy safeguards that the Supreme Court of Canada did not expressly require in
R. v. Tse.
On page 4 of your 2010 document that you provided, you state that
a key challenge in the protection of privacy is the rapid development of new
technologies. Would you agree that the rapid development of new technologies is
also a key challenge for law enforcement in keeping up with criminals' use of
those new technologies?
Ms. Bernier: Absolutely; we recognize that. It is
precisely the reason we developed the analytical framework you have before you.
We felt that while the fundamental principles — the fundamental right to
privacy — cannot change, the modalities for its protection must constantly adapt
to new circumstances — hence the flexibility of that document — while at the
same time give a very clear framework to then be modulated according to how
indeed the technology evolves.
Senator Batters: Thank you very much. I appreciate that.
Senator Baker: I would like to thank the witnesses for
their excellent presentation, as usual. I am somewhat confused, though, about a
statement that you made a moment ago. It is the same statement that I am
confused about that the Supreme Court of Canada said — that when someone who is
not charged with an offence and who has had their telephone conversations
listened to or had listening devices put in their car and their home should be
told about this. This is what this legislation purportedly does the year after
or 90 days after the interception was made. This should occur so that they can
seek a remedy.
I am confused about what kind of remedy the Supreme Court of
Canada or you are talking about. As I recall, you have considerable authority
under your act. I think it was Ms. Patricia Kosseim who represented you in court
when someone was seeking damages for the police disclosing their private
information to an employer. I notice Ms. Kosseim is nodding her head, so my
memory must be good in my old age, but that was not too long ago.
However, you concluded that you could not give them any remedy.
Yes, you could order pieces of paper to be passed back and forth, but you had no
Here you are before this committee. You are saying that people
can seek a remedy, just as the Supreme Court of Canada said. Canadians who will
be notified now that their phones were tapped and they were not charged will
wonder what the Office of the Privacy Commissioner of Canada and the Supreme
Court of Canada are talking about.
Ms. Bernier: You are raising a very good point. Indeed,
our office does make that point: We would like the act to be amended to provide
Senator Baker: Hear, hear.
Ms. Bernier: The violation of privacy can bring with it
serious damages — some material, some not material. However, the case law in
Canada is that you can even have damages for non-material things; you can have a
remedy for non-material, non-quantifiable damages, such as reputation loss.
Therefore, we are totally with you.
That being said, “remedy” does not necessarily mean a lump sum or
a financial restitution. It can mean coming to our office for an investigation
and simply being vindicated. It can mean getting that personal information back.
There is a wide array of remedies. There is also the Commission for Public
Complaints Against the RCMP, which could be a remedy.
When we and the court speak of seeking a remedy, we refer to the
variety of existing recourses, as limited as they are, we admit.
Senator Baker: That is a pretty good answer, Mr. Chair. I
can just imagine someone receiving one of these notifications, and it is just a
simple sentence that says: “Pursuant to section such-and-such, we notify you
that you have been the object of a telephone tap by the police.” Then that
person goes to a lawyer and has to pay through the nose to get an opinion that
does not tell them anything, because it is practically impossible to try to get
a remedy from the police, according to our case law in Canada, as it is if
someone were to ask you for a remedy of financial compensation.
Senator Dagenais: Thank you to Ms. Bernier for having
accepted our invitation. It is difficult to ask a question of someone who
already agrees with the bill. I will still try to ask a question.
Do you not think, Ms. Bernier, that an emergency situation and
public safety should always take precedence over respecting the fundamental
right to privacy, because I would say that perhaps, as a former police officer,
we recognize that this type of investigation can often require a rapid and
immediate reaction from police officers. I would like to hear your opinion on
Ms. Bernier: Definitely, I think that is the premise of
the decision in the R. v. Tse case and it is the premise of our position
There is a hierarchy of rights, public safety imperatives that
must really be taken into account. And that is what the Supreme Court has done
with the Tse decision. It is what we are doing in our analytical
framework. When it is justified, and once again, it is based on the Oakes
decision, which is mentioned in the Tse decision, which is the basis of
our analytical framework to which you were referring. So in the Oakes decision,
the court really addresses how we can reconcile, integrate issues, imperatives,
with fundamental rights. And based on this balance of necessity, of
proportionality, of effectiveness, and the absence of a less intrusive
alternative, an invasion of privacy can be justified and this emergency is one
Senator Dagenais: As Senator Baker would say, excellent
answer. Thank you.
Senator Rivet: This bill provides that in emergency
situations a police officer would be authorized to conduct wiretapping. How do
we reconcile that emergency with the possibility of a three-year extension? We
understand the meaning and the purpose. But if we are looking at three years,
would it not be possible at that point to go and ask a judge to extend the
Ms. Bernier: That is what the bill in fact sets out. So on
a strictly exceptional basis, and that comes back to Senator Dagenais’ question,
on a truly exceptional basis, when time does not allow it, to save a life or
property, they can proceed without judicial authorization. But afterwards, of
course, the excuse of time is no longer valid and they have to go to a judge.
Senator Fraser: I have a supplementary question on this
point. If, from your point of view, the core element of this bill is the
notification requirement, does a three-year suspension of that requirement —
renewable — not seem a bit excessive? I am not saying that it ought not to be
possible for the police to do their work, and sometimes that takes a long time.
However, just saying, “Okay, go away, come back in three years”? Perhaps, “Go
away and come back in one year” might have been more respectful of the right to
Ms. Bernier: To us the core point of this bill is to put
very strict parameters around the interception of private communications without
a warrant. It is treated as totally exceptional, and as you have seen, the
conditions are cumulative. They must all be met. That is when you can go without
a warrant, and after that, everything else is subject to authorization by a
judge. We understand that at some point the notification could completely
invalidate the work of the police; therefore, first this exceptional
circumstance where you go without a warrant is truly well defined, and after
that, that needs to be corrected. That needs to go through judicial oversight,
and it is with that oversight that the police officers can function over a
Senator Fraser: You are saying, as the minister said to
me, we should trust the judges' discretion?
Ms. Bernier: That is how our system is built.
Senator Fraser: At its best.
Senator McIntyre: Thank you for your presentation. I
noticed that on page 2 of your report you raised the whole issue of transparency
and public reporting requirements. As you mentioned, Bill C-55 provides that
reports would be tabled by government organisations from the executive branch.
Furthermore, I understand that in the United States and the
United Kingdom, these reports are tabled instead by a person who is independent
from the executive branch. Do you think such a measure should be implemented in
Ms. Bernier: Frankly, I cannot tell you that I feel the
need for that. Of course, when we analyzed Bill C-55, it was in the light of our
own expectation as the Office of the Commissioner of a very robust
We looked at what was already being done in Canada in terms of
electronic surveillance. I have to say that, at this point, we are satisfied, we
are confident that the structure proposed in Bill C-55 would fulfil Canadians’
right to accountability.
Senator Batters: Dealing with the extension issue that
Senator Fraser was discussing, I am not sure if this is outside the scope of
what you are familiar with regarding this matter, but please let me know if it
is. In accordance with the Supreme Court decision in R. v. Tse, is it not
correct that the proposed extension provision at section 196.1, which deals with
those 90-day extensions up to a maximum of three years, mirrors the extension
provision scheme already provided at section 196 of the Criminal Code? Are you
familiar with that?
Ms. Bernier: I have it in front of me. Does it mirror what
is currently there? I cannot say that I have looked at them side by side. I have
studied Bill C-55 per se. We could compare the two texts to see how they mirror,
but I must say I have focused exclusively on Bill C-55 and compared it to the
provisions that it is amending rather than the others. However, Ms. Kosseim can
look at it for a moment and tell you what we think about that.
Senator Baker: I liked your presentation. I am not being
negative, but I am wondering out loud. I am trying to understand what you meant
in your presentation, and there is one thing that confuses about me about the
supporters of the bill. Everyone appears to support the bill, but what I do not
understand is this: A good change was made in the legislation, as you point out,
of putting “police officer” as the authority instead of “peace officer,” not
that I entirely agree with that because we have had “peace officer” forever in
the Criminal Code and there has been no dispute as to the fact that under the
Criminal Code that meant a police officer. That is fine. A police officer now
has the authority to do something without judicial authorization, to listen in
on private conversations. That is well and fine.
Then the government turned around in this bill and defined what
they meant by a police officer. They said:
. . . “police officer” means any officer,
constable or other person employed for the preservation and maintenance
of the public peace.”
The definition of “other person employed for the preservation and
maintenance of the public peace” in the Criminal Code is the peace officer. In
municipal and provincial law, it also means a bylaw enforcement officer — those
exact same words — or a dog pound manager in Ontario and other provinces.
I can understand your saying that it is good to put “police
officer” in, but why did the government then dilute that and extend the meaning
of a police officer to mean a peace officer or a dog pound manager?
Ms. Bernier: I think that any question on why the bill was
drafted the way it was drafted really should go to the drafters. We read it as a
deliberate restriction of who can avail him or herself of the powers of section
184.4, and we believe that that restriction is welcome. As to why the words have
been chosen as they have, I would refer you to the drafters.
Senator Baker: I presume then that what you are referring
to is actually the word “police officer” that was inserted into 184.4; you were
not referring, in your praise, to the fact that the government has now
identified a police officer as someone other than a police officer. Your praise
was for the word “police officer” being put in, which it was, but you were in no
way supporting the definition that is in this bill of “police officer” as a
bylaw enforcement officer.
Ms. Bernier: We read Bill C-55 as restricting section
184.4 to police officers.
Senator Baker: Good answer.
The Chair: Did you wish to comment, at this point, with
respect to what Senator Batters raised?
Ms. Bernier: Certainly. Ms. Kosseim has looked at the two
provisions, and one does mirror the other.
Senator Batters: I appreciate that.
The Chair: That wraps up the questions the committee has
for you, and we appreciate your appearance here today and your assistance with
our deliberations. Thank you.
Senators, our next panel consists of two witnesses. From the
Canadian Council of Criminal Defence Lawyers, we have Russell Silverstein; and
we have the legal counsel from the Canadian Civil Liberties Association, Michael
Rosenberg. Welcome, gentlemen. Opening statements from both?
Russell Silverstein, Representative, Canadian Council of
Criminal Defence Lawyers: Thank you very much, Mr. Chair and senators. Thank
you for inviting us to appear here today and for seeking our testimony in this
I represent the Canadian Council of Criminal Defence Lawyers, and
we are an organization that seeks to offer a national voice, with respect to our
perspective on criminal justice issues, as defence lawyers practising criminal
law. I am here with my colleague, Michael Rosenberg, who is representing the
Canadian Civil Liberties Association. I want to say, at the outset, that I
endorse all of his comments, and I hope he will endorse mine. We spoke before
coming here today to divide the issues between us so that we do not repeat
While the Canadian Council of Criminal Defence Lawyers generally
respects and supports Parliament's efforts in Bill C-55 to address the Charter
issues identified by the Supreme Court of Canada in R. v. Tse and its
attempts to further fortify section 184.4 from the perspective of civil
liberties, we have some concerns about the proposed amendments. The Supreme
Court of Canada was critical of section 184.4 because it empowered all peace
officers, as defined in section 2 of the Criminal Code, to resort to these
extraordinary wiretap provisions. Parliament now proposes to substitute “police
officer” for “peace officer,” and I am sure that they are doing so in response
to the Supreme Court of Canada's dictum on that issue. They did not have to
decide the issue, but they made it quite clear that they were not happy with the
use of “peace officer” in 184.4. However, the proposed section defines police
officer as “any officer, constable or other person employed for the preservation
and maintenance of the public peace,” which, in our view, is an overly broad
definition of the individual who ought to be empowered to exercise these
Employed by whom, one might ask? If Parliament wants to include
certain peace officers who are not, in fact, police officers, such as border
security guards and other kinds of peace officers who are not police officers
but are not any old peace officer, Parliament ought to spell it out more
particularly. Right now, the definition is far too broad, and you can see where
it comes from. In section 2 of the Criminal Code, “peace officer” is defined and
there are several categorizations of peace officers. One of those is police
officers and officers, constables or other persons employed. I believe this was
a somewhat ham-fisted attempt to narrow the ambit of those who can exercise the
power, and we submit that it misses the mark.
This problem may be more theoretical than real. After all, it is
the police who have access to the equipment necessary to mount one of these
intercepts; nonetheless the definition might extend to private security employed
by private entities or by the government.
We are also concerned about the three-year extension. We have
been listening to what was discussed here earlier in the afternoon. Indeed,
Parliament has created a regime that mirrors the notice regime in connection
with other less urgent wiretaps by allowing the police to obtain extensions up
to three years before complying with the notice requirements. In our respectful
submission, this three-year period, albeit left to the discretion of a judge as
to whether to impose it or not, is simply too long in the circumstances.
It may make some sense to provide a three-year window in wiretaps
that are of a less urgent nature, which are less controversial, if I might put
it that way, but derived from wiretaps that are not such an imposition on
private discussions that are not authorized by warrant. However, three years is
too long for such a delay. I would suggest it should be perhaps something in the
order of a year.
There is another issue that arises, and this is more particularly
in the context of criminal prosecutions and criminal defence. Where the Crown
relies on wiretap conversations to prove a criminal offence and the accused
challenges the admissibility of the evidence retrieved by virtue of those
wiretaps, the onus is on the accused to demonstrate to the trial judge that the
wiretap was an unreasonable invasion of his privacy. In such instances, it is
generally the case that a judicial officer has already determined that the
statutory and Charter requirements have been met and has thus issued a warrant.
It only makes sense that if the accused is arguing that the statutory or Charter
conditions were not in fact met, he should bear the onus of proving that given
the prior judicial authorization.
However, in section 184.4 wiretaps, where there is no prior
authorization, and thus no prior finding by a judicial officer that the
statutory conditions have been met, we argue that the wiretap statute should
explicitly require that the Crown bear the onus of demonstrating that the police
indeed did meet the statutory requirements when the wiretap was imposed.
I appreciate that these emergency wiretaps are not really
evidence-gathering wiretaps — at least that is not why they are in place — but
they may nonetheless turn into such. The object of the police may be to prevent
the commission of a crime, but once the wiretap is in place and evidence is
collected by virtue of that wiretap, that evidence can be introduced in a
criminal prosecution, notwithstanding that it is not the object or goal of the
initial wiretap. In such an instance, where there has not been prior
authorization, Parliament ought to explicitly reverse the onus of proof with
respect to that issue in a Charter application.
Now, it could be argued that the common law already provides for
such. This would be a warrantless search where it could be said by virtue of the
jurisprudence that the onus is indeed on the government to demonstrate that the
search is not unreasonable or, put another way, the statutory and Charter
requirements are met. However, there would certainly be nothing wrong with
Parliament’s specifically setting out such a provision in the Criminal Code or
in the Canada Evidence Act. It is very difficult for an accused person to prove
a negative, especially where the police have the information relevant to whether
the statutory criteria were met and the accused does not have access to that
Those are my opening comments, and I turn the floor over to my
colleague, Mr. Rosenberg.
Michael Rosenberg, Legal Counsel, Canadian Civil Liberties
Association: Good afternoon, Mr. Chair, it is a great pleasure for me to
speak to the Standing Senate Committee on Legal and Constitutional Affairs to
present the Canadian Civil Liberties Association’s perspective.
The association is a non-profit organization founded in 1964 to
promote respect for human rights and civil liberties. The association has been
particularly involved in developing the act on wiretapping without judicial
authorization. Personally, I served as legal counsel for the association in the
case of Her Majesty the Queen v. Tse before the Supreme Court of Canada.
I would like to begin by saying that Bill C-55 is a critically
important step in the development of a constitutionally compliant regime for the
use of warrantless wiretaps in Canada. Nothing in my remarks today is intended
to derogate from that fact.
I also want to make clear that the Canadian Civil Liberties
Association recognizes that warrantless wiretaps may be necessary as a last
resort in extraordinary circumstances. At the same time, however, the CCLA takes
the view that these wiretaps are a serious infringement of privacy rights and
that their use must be limited to indeed extraordinary circumstances, and
moreover that this use must be subject to rigorous oversight.
Recognizing that we are at a late stage of the legislative
process, and without wishing to speak to the constitutionality of the bill as a
whole, I propose to direct my opening submissions to the ways in which Bill C-55
might be incrementally adjusted to better promote and protect civil liberties.
I want to talk about three such amendments. The first concerns
transparency in reporting to Parliament and the legislatures; the second
concerns the permitted duration of warrantless wiretaps; and the third concerns
the persons who may be subject to a warrantless wiretap.
On that first point, one of the problems that the CCLA identifies
is that there is no visibility into the number of third parties whose private
conversations are intercepted pursuant to warrantless wiretaps in the reporting
regime as it stands. The CCLA interprets proposed section 196.1 to require
notice to all persons who are parties to an intercepted communication, whether
or not they are targets. In our view, they are all objects within the wording of
It is a fact of life, however, that wiretaps intercept
communications of persons who cannot be identified and who will therefore not
receive notice. Indeed, the witnesses from the Department of Justice earlier
this afternoon took the position that only targets would receive notice were
Bill C-55 to become law. In this sense, the number of notices issued does not
give an indication of the number of individuals whose private communications
have been intercepted. This is particularly unacceptable in the context of
warrantless wiretaps, where there are heightened concerns with the exercise of
unsupervised police discretion in determining the persons whose communications
may be intercepted.
Accordingly, it is vital that the reports to Parliament and the
legislature contain statistics for the number of parties, whether identified or
not, to intercepted communications who are merely third parties to the harm that
the wiretap seeks to prevent. Without this information, it would be impossible
to determine the extent of the collateral damage that warrantless wiretaps cause
to the privacy rights of individuals who are neither suspected offenders nor
I will now go to my second point. The Supreme Court of Canada was
very clear that a warrantless wiretap initiated in a situation of urgency cannot
be continued once it would be reasonably practicable to obtain judicial
authorization. An express statement of the need to seek judicial authorization
with all reasonable dispatch would avoid the situation that occurred in the
Tse case. In that case, the RCMP officers believed that they could continue
their warrantless wiretap for 24 hours before seeking judicial authorization.
They had arrived at this conclusion from the RCMP's own written policies. In the
CCLA's view, express limits on the continuation of a warrantless wiretap are
needed to prevent Charter breaches before they occur.
On my final point, there is a similar danger of misinterpretation
that arises from the fact that Bill C-55 does not expressly state the Supreme
Court's decision that the police may only wiretap the “direct victims of serious
harm,” as compared to the indirect victims of serious harm, such as family
members. Again in this situation, the CCLA says that prophylactic action is
required to prevent Charter breaches before they occur.
Barring any questions from the committee at this early stage,
those are the submissions of the CCLA. As my friend, Mr. Silverstein, said, I
certainly endorse the position that he has advanced before you.
The Chair: Thank you, gentlemen.
Senator Fraser: Welcome and thank you for two very
On the matter of peace officers, Mr. Silverstein, a number of us
have been concerned about police officers, including what sounds like a rather
broad category, potentially. When the minister and his officials appeared before
the committee last week, I asked about that and was told “police” means police.
I asked, “For example, border services?” The answer was that no, border services
agents would not be included.
In a conversation with an eminent representative of the Justice
Department, I asked, “Whom does it mean?” The answer was that when they were
drafting the section, they had military police in mind. You may or may not think
that the drafting meets that purpose, but, for your information, that is what I
have been told.
Mr. Rosenberg, I find all your points interesting, including the
ones you did not have time to read. I want to ask a little more about your last
point that police officers may wiretap only the direct victims of serious harm.
I will put a hypothetical case to you, but apparently there have been parallels.
The police know that someone is planning a hit — that a mafia
shooter is going to hit someone this afternoon. They do not know who, but they
are hoping that a wiretap will enable them to find out so that the person may be
protected. However, if you do not know who, how can you wiretap the potential
Mr. Rosenberg: There are two stages to the answer to that
question. It is an excellent question in the sense that it presents a real-world
example of the application of these provisions.
The starting point for the CCLA is the wording of section 184.4(b),
which brings into focus the immediate necessity. Any use of wiretap in this
situation, should it ever be challenged, would be subject to a review in the
sense that there were grounds of immediate necessity that led the police to
identify the particular targets of that wiretap. If they could be said to be in
the ambit of the immediate threat, they would potentially be direct victims and
it would be immediately necessary to prevent that harm.
To take a step back, it might make sense to clarify the position
in my opening remarks. The Supreme Court articulated the principle it quite well
when they said that it is not as though you cannot listen in on calls that
originate from another number or go up a line that does not belong to an
immediate victim or a suspected offender. It is simply that you have to employ
live monitoring to ensure that if the call that is being intercepted is
ultimately one that is just between third parties, that it is not recorded —
that there is not a permanent record made by law enforcement officials of that
conversation. That needs to be emphasized in the wording of this bill.
In R. v. Tse, the RCMP was recording conversations between
the true third parties to the offence, such as the children and business
associates of the kidnap victim. In the CCLA's view, that is simply not
justified in the wording of this section. That interpretation has been confirmed
by the Supreme Court, but there is still a danger that without a clear
expression in the section, this sort of illegal wiretapping could continue.
Senator Fraser: I think I follow; but I am not sure I
entirely agree that your brief would cover that, but you are the lawyer and I am
not. I will think hard about it.
Senator Batters: Mr. Rosenberg, thank you for the comments
with respect to this critical piece of proposed legislation and for indicating
in your presentation that nothing you say today derogates from the fact that
this is a critically important step and for referring to the positive
developments that are included in this bill.
My question is to Mr. Silverstein. I am sorry I missed the
beginning of your presentation, when you may have commented on this. You spoke
about the extensions. I believe you were here at the end of the previous panel
of witnesses when I asked about proposed extension provisions in accordance with
the Supreme Court decision in R. v. Tse and it was said that proposed
section 196.1 mirrors the extension scheme provided at section 196 of the
Criminal Code. Would you agree?
Mr. Silverstein: Yes. As a general proposition, Parliament
seems to take the structure of the reporting provisions and simply imports them
into section 184.4 with the same mechanism, the same test and the same extension
periods and limitations.
Senator Baker: I thank the witnesses and commend
Mr. Rosenberg for his excellent presentation as far as this particular case is
concerned that appeared before the Supreme Court, and also Mr. Silverstein for
his long history in case law. Before the Supreme Court of Canada and before the
higher courts, he has done a remarkable job over the years and has made a great
contribution to the law in this country.
I am interested in one particular aspect of your presentation,
Mr. Silverstein. You believe that the onus should be on the Crown to prove the
reasonableness of the actions of the police in the first instance in terms of
section 184.4. That is nothing new in law because there are certain
circumstances in which the onus is placed on the Crown to do certain things.
However, I want to zero in on what you meant. Put yourself back into trial
defence attorney's position. You will have that officer's police notes, the
prosecutor's information sheet and the continuation report. In that information
will be contained the thoughts, presumably, of the officer, who will be
responsible for the institution of this particular proceeding we are talking
about. Are you saying that that is not enough for you to comply with the normal
rules of court to appear before a judge in a pretrial argument and argue a
violation of section 8 in the first instance?
Mr. Silverstein: I think it is enough disclosure and
enough information to start your application. However, the onus of proof in a
Charter application is significant where the accused is forced to call his own
witnesses — call the police officers as his own witnesses, and examine them in
chief and be saddled with the limitations of the nature of that inquiry — i.e.,
an examination-in-chief. I suggest that is unfair in a circumstance where there
has not been some a priorijudicial authorization of the actions of the
police. It makes sense to me to force the accused to take on the burden of proof
where there has been such an authorization and it is being challenged. However,
where you are starting from scratch and the police have wiretapped your client's
phone without judicial authorization, I think it is only fair to force the Crown
to demonstrate that they had the appropriate grounds to take the steps that they
took. They did, after all, resort to an extraordinary power, and they should
have to justify that.
It is not unfair because it should not be hard for them to do.
They have access to all the data necessary to make out that case. If it can be
made out, I see nothing wrong; indeed, I think the jurisprudence supports the
notion that they should bear the onus of demonstrating that they acted in
accordance with the law.
Senator Baker: You said the onus is on the defence
attorney — on the accused — to bring forward the Charter arguments, pretrial,
under the rules of the court under which it is being tried and to call the
witnesses and do them in chief — in other words, no cross-examination. In
certain provinces in Canada, I have noticed that it is normal practice that the
Charter arguments not be dealt with at all on that basis, but that the Crown be
called upon to present their case. As the evidence is presented, then the
Charter arguments would be dealt with as a part of the trial.
Would you consider that preferable to what you have just
outlined? Would that solve it?
Mr. Silverstein: You have identified what we call a
“blended voir dire,” which is agreed to by both parties, first of all, and it
must be agreed to by the Crown; otherwise it cannot be done. Where both parties
agree, it is a time-saving measure; rather than have all the evidence called
once on the Charter application and then called again on the trial proper, an
agreement is struck whereby all the evidence is heard together. However, we as
defence counsel always seek to maintain the right to cross-examine witnesses
such as we would otherwise have, while also accepting the responsibility of
calling witnesses in chief where the law would so provide. Therefore, when both
sides reach such a compromise, often there is a little bit of give and take, so
as to get the job done, but we are careful not to give up too much in the
pursuit of our object.
Regardless of whether it is done in the fashion you described or
otherwise, where there is a warrantless search, we defence lawyers want to
ensure that the onus remains on the Crown to demonstrate that the Charter has
been complied with, regardless of how you present the case and whether it is
blended or not.
Senator Dagenais: Thank you, Mr. Chair, and thank you to
our two witnesses. Mr. Silverstein, while taking into account the right to
privacy, as you mentioned, do you not think that protecting public safety should
take precedence over a breach of privacy rights, especially when the request for
this interception is made by police officers?
Mr. Silverstein: Senator, I think everyone has recognized
that a balancing is being exercised here: the balance between the need for law
enforcement and the prevention of serious crimes, and the right to privacy.
There is no question, and the Supreme Court of Canada made it clear, that the
need to prevent serious crimes, such as is envisioned here, requires giving the
police extraordinary powers. Those extraordinary powers are what this bill is
However, whenever you give the police extraordinary powers, those
extraordinary powers have to be the subject of certain checks and balances. The
question is this: Is the balance appropriately struck here? The Supreme Court of
Canada would seem to think so, and we think so, too, with some tweaking. The
Supreme Court of Canada is the law, and when they say that this is what is
required for constitutional muster, then we cannot argue with that. However, we
can suggest that Parliament, being supreme, can go a little further than the
Supreme Court of Canada mandates, and indeed they have here. The question is
whether they should perhaps have gone a little further. In my respectful
submission, yes, and in the ways that I described.
However, I do not think that what I am proposing takes away the
right and the power of the police to do what they need to do to protect all of
us in certain situations.
Senator Fraser: I think I will pass. I am still reading.
Perhaps I will go on a third round.
Senator McIntyre: Thank you both for your presentations.
Section 184.4, as it now stands, refers to “peace officers.” Bill C-55 refers to
“police officers.” Section 188 refers to a “peace officer specially designated.”
I note that both the Canadian Bar Association and the criminal
trial lawyers’ association recommend that the exceptional discretion to
initiate — subsection 184.4, interceptions — be limited to a class of designated
superior officers. What are your views on this?
Mr. Silverstein: I can understand why someone would argue
that. I think one has to take into account the fact that — and I think the
Supreme Court of Canada comments on this — those special officers may not always
be readily available. The subsection 184.4 power is in place to deal with the
most extremely urgent situations that require immediate action.
There is some wisdom to allowing any police officer, even one
that is not specifically designated or specially designated pursuant to section
188, to have the power to initiate one of these emergency wiretaps, on the
understanding, as Mr. Rosenberg alluded to and as the court says, that there has
to be a contemporaneous search for a judicial officer for judicial approval. The
subsection 184.4 warrant ought not to be in place for any more than a matter of
hours; how many is a matter of discretion and will depend on the circumstances.
I have no difficulty, personally, with allowing a police officer
to initiate a subsection 184.4 investigation.
Mr. Rosenberg: If I might, I would actually respectfully
disagree with my friend on this point. It is perhaps one of the instances where
you will split the two public interest intervenors.
The Chair: I was assured at the outset that there would be
no difference in opinions.
Mr. Rosenberg: It is the reason you have the two of us
The CCLA certainly takes the view that this power is only
available to police officers, or should only be available to police officers. We
would go further and say that, as you mention, there is real value in having a
senior officer review a warrantless wiretap, not necessarily before it is
implemented — because we do recognize that the situation may be sufficiently
urgent that there simply is not an opportunity to do so — but shortly
thereafter. That is what happened in the Tse case; a wiretap was
commenced, and then shortly thereafter there was a review by senior officers,
all the way up to the superintendent of the Vancouver RCMP.
That is the process we would like to see. The CCLA takes the
position that this is an extraordinary power and an extraordinary infringement
on the rights of those who are being wiretapped, and it is not the sort of thing
you necessarily want in the hands of just any peace officer; nor is it something
you want used by just any police officer for that period, of course, until
judicial authorization can be obtained.
Senator Baker: Let me go back to another point that was
brought up earlier, which are the alternatives to this particular scheme under
subsection 184.4. That is, as the Supreme Court of Canada said, the availability
of a judge to be on a telephone at any particular moment in time.
These warrants — section 186 — are restricted to being the
section 186 warrant to a judge, which means a judge of the Superior Court of a
province. In telewarrants, under the Criminal Code, they can be issued by
provincial court judges, and there is a scheme throughout Canada that, 24 hours
a day, seven days a week, you can get a provincial court judge on the telephone
and verbally get a warrant issued in five minutes, in a form called Form 5.1 of
the Criminal Code. It is very simple; it is faxed through.
Is there really that much difference between a Superior Court
judge and a provincial court judge? A provincial court judge deals with the
Criminal Code more than the Superior Court judge deals with the Criminal Code.
Why do we restrict this to a situation where you cannot get a judge 24 hours a
day, seven days a week, but if you were looking for a telewarrant you could?
Mr. Silverstein: You have put two questions. The first is
whether there is really a difference between provincial court judges and
Superior Court judges. That is a different question. Let us assume there is.
Parliament recognizes a difference, and they have reserved Superior Court judges
certain powers. Let us address your question in that context.
I think that it is understood that the wiretapping —
eavesdropping on a private conversation — is perhaps the pinnacle of the
invasion of privacy. That is the first thing. Some might say that a search of
the home is no different. Setting that matter aside, under section 186, where
there is no urgency, one can understand requiring a Superior Court judge to
exercise his authority. A telewarrant is often, as you said earlier, obtained or
sought in a situation where the police are right outside the door of a house and
need to search it right now. It is because of the urgency of such a situation
that the judicial authorization procedure in place is more expeditious. Again,
there is a balancing of the need for immediate action against the need for the
protection of Charter rights. I think that accounts for the difference.
In a section 186 situation, reserving that power to a Superior
Court judge makes a lot of sense to me.
Senator Baker: As you pointed out, the search of a home,
some people would argue, is just as important and exigent as the cases we are
talking about here, especially this particular case we are dealing with, Tse.
Mr. Silverstein: Section 184.4 is so exigent that you do
not need any authorization. That is a different question. I understood your
question to be looking at section 186 and asking, Why do we not give police an
avenue to do section 186 interceptions in a more expeditious way than forcing
them to go to Superior Court?
Senator Baker: That was my question; you gave the right
answer. One further questions, if I may. I remember well, back in 1993, when
these sections came in. There were two of them brought in, 184.4 and a section
of the Criminal Code, 487.01, the general warrant provision. That allows you to
do whatever you cannot do in any other law as long as it breaks the Charter.
That is the requirement in 487.01. Those two very far-reaching changes were made
to the Criminal Code, but it took this long, from 1993 to today, to correct one
of those sections.
In your opinion, is there any way to overcome an obvious problem
like this in the law that is passed that violates Charter rights? It takes that
long to, in the ideal case, be tried at the provincial or Superior Court level,
then to go to the Court of Appeal and then apply for and receive permission to
go to the Supreme Court of Canada. Is there any other way of solving these very
serious Charter problems we have in law without having to wait 10 years to get
Mr. Rosenberg: I think the answer is that we look at the
legislative process for that kind of pre-emptive measure. Unfortunately, the
courts can only decide the cases that come before them.
It was something of a different situation in Tse in that
it was an application as an interlocutory matter that then went directly to the
Supreme Court of Canada on appeal, an interesting situation because the Crown
ultimately prevailed at trial in Tse and was left having won the matter
but looking for some way to appeal a decision that went against it on this
interlocutory application, this Charter application.
Aside from that, you are quite right that the courts do grind
slowly. We look to the legislative process to, as Mr. Silverstein says, be
perhaps a step ahead of mere Charter compliance. The CCLA sees the Charter as a
floor, not a ceiling, and so when we look at an opportunity like this one, where
the bill is open and there is the prospect of amending it in some way to protect
civil liberties, we certainly seize on the opportunity, make the trip to Ottawa
and implore you to do so.
Senator Fraser: Mr. Rosenberg, in your passage on
transparency, when you are discussing third parties — and we have had a number
of discussions here on this bill in connection with third parties — you said
that the RCMP in the Tse case went so far as to record conversations
between third parties who were neither suspected of causing harm nor victims of
such harm. Let us give the RCMP the benefit of the doubt and assume that they
did the wiretap because they thought it might lead to useful information, but it
did not. I take it that that is what you are saying here.
Mr. Rosenberg: I think it is a slightly different point,
senator. In the Tse case, the RCMP recorded conversations between the
children of the kidnap victim and business associates of the kidnap victim and
amongst the children themselves. It is true that it is possible that such
conversation would yield information that would perhaps help to defuse the
situation and prevent the harm that was occurring. However, that is not within
the purview of section 184.4. I think that goes back to my third point that we
discussed earlier. This really is an extraordinary provision that allows for the
interception of communications with, in most cases, two kinds of parties. It is,
on the one hand, those who are the suspected offenders, and, on the other hand,
it is the direct victims of the harm. In the Tse case, it is the kidnap
victim and the suspected offenders. It is not these other people who get drawn
into their ambit, unless they are speaking to one of those two parties — the
offenders or the victim.
Senator Fraser: My question has to do with what happens to
those recordings after they have been made. Are there provisions for those
recordings, which turn out to have been absolutely useless for the investigation
in question or, indeed, for any other, to be destroyed that you know of? If not,
should there be?
Mr. Rosenberg: I would certainly seek Mr. Silverstein's
input on this. I do not know the practice that is implemented, but, in my review
of the Criminal Code, I know of no provision that requires destruction of those
recordings. I think that that adds to the severity of the infringement of civil
liberties here. We are talking about permanent recordings, in the hands of law
enforcement officials, surreptitiously made of private conversations.
Senator Fraser: Could be between me and my doctor.
Mr. Rosenberg: That is exactly right. Certainly, live
monitoring is something that I think the Supreme Court's decision will always
now require in these circumstances, in particular when they are third party
lines being monitored. However, it is a concern that, as far as I know, there
are no provisions requiring the destruction of these recordings.
Senator Fraser: Do you want to add anything to that, Mr.
Mr. Silverstein: Yes, senator. There is one provision that
demands destruction. I was reading it this morning, and, unfortunately, I cannot
find it. I think it is in the context of instances where the police have perhaps
inadvertently recorded privileged conversations, for example. I know that there
is a provision that requires their destruction. I am not in a much better
position than Mr. Rosenberg to give you chapter and verse on it. However, I did
bring the current provisions concerning interceptions with me. I saw that; I
know there is something there.
Senator Fraser: Yes, I figured there would be something
for privileged, but there is a wide range of other material that you would not
want lying around police file cabinets, or wherever they store this stuff.
Mr. Rosenberg: That is correct, senator. I certainly agree
with my friend. Speaking generally, there is no provision that required
destruction, but there certainly is for privileged communications. It is the
rest of it, the third-party communications that do not fall within that narrow
scope, that we are really concerned about.
Senator Baker: Mr. Rosenberg was involved in the Supreme
Court section. The person who was kidnapped in the Tse case, is that
person in jail at present? That person who was being sought by the police was
out on bail, as I understand it, for importing into Canada over $100-million
worth of drugs. They were worried that he was skipping town. I know by some of
the facts of the trial that the police wanted to catch this fellow. Although he
was kidnapped, they wanted to catch him to put him in jail. Did they eventually
put him in jail?
Mr. Rosenberg: Senator, I must confess I have not kept
abreast with the developments in Mr. Li's criminal proceedings. I think it does
raise an important point, which is that the use of section 184.4 is for the
prevention of serious harm. It is not for the investigation of offences
necessarily. It is certainly not for the investigation of collateral offences.
It is commonly about a situation where there is a victim of kidnapping. In this
case there were certainly serious allegations against the victim. It is about
rescuing him as opposed to investigating any other matters in which he may be
involved. The use of section 184 as a jumping-off point for a large-scale
interception of communications with his associates is something we should guard
Mr. Silverstein: I would come back to Senator Fraser's
question about the destruction and look at 184.1.
Senator Fraser: It has just been drawn to my attention,
and it is comforting.
Mr. Silverstein: I am sorry I was not the first to do so.
There is a provision that says that where the police do intercept
pursuant to that section, and there is no evidence of bodily harm or attempted
bodily harm or threatened bodily harm that has occurred, there is an obligation
for them to destroy the fruits of the investigation.
Senator Fraser: Would that also apply to interceptions
under section 184.4?
Mr. Silverstein: I would say not.
Senator Fraser: It does not look like it.
Mr. Silverstein: Subsection (3) of 184.1 refers to the
operation of that particular section 184.1. I do not see there is anything in
Bill C-55 or in the current section 184.4 that mandates destruction.
Mr. Rosenberg: That was certainly the position the CCLA
took throughout the Tse proceedings.
Senator Fraser: Thank you.
The Chair: Gentlemen, thank you for being with us today
and assisting us with our deliberations on this bill. Thank you very much; we
Our next witness, appearing via video conference from Vancouver,
is a representative of the Canadian Association of Chiefs of Police, Warren
Lemcke, Deputy Chief Constable, Vancouver Police Department. Welcome, Mr.
Lemcke; please proceed with your opening statement.
Warren Lemcke, Deputy Chief Constable, Vancouver Police
Department, Canadian Association of Chiefs of Police: I wish to present the
views of the Canadian Association of Chiefs of Police on the Bill C-55 response
to the Supreme Court of Canada decision in R. v. Tse. Section 184.4 of
the Criminal Code is rarely used by police in Canada, but, when used, it can
help to save lives. The section allows for warrantless interception of private
communication by police where a warrant could not be obtained with reasonable
diligence and where there are reasonable grounds to believe that the
interception is necessary to prevent an unlawful act that would cause serious
harm to someone. An example of this would be an in-progress kidnapping or a
potential homicide being committed by organized crime figures.
The courts, government and Canadian citizens all rightly believe
that the interception of private communications by the state should be done only
when absolutely necessary. Police in Canada support this as well.
The courts, government and Canadians also need to have assurance
that when section 184.4 is used by the police, it is used appropriately and only
in the most serious circumstances. We in the police community are accountable to
those we serve, and this is why we support the bill.
Other sections in the code have reporting requirements with
regard to when interception of private communications occurs. Section 195 is one
of those sections. Previous to this bill, there were no reporting requirements
when police used section 184.4 to intercept private communications in exigent
circumstances. Changes to section 195 under this bill will change that and
require reporting as to the use of section 184.4.
We support this new accountability measure and the protections it
provides to Canadians' privacy. Canadians need know that police will intercept
their private communications only when authorized by law and that there are
accountability measures in place to ensure that any such interception is always
done appropriately and only when circumstances warrant it. This bill puts those
measures in place while still allowing police to intercept private
communications without warrant when lives are at stake.
Senator Fraser: Welcome to the committee. It would be even
better if could you be here in person, but we have the wonders of technology to
bring you to us. Have you been involved in any cases using section 184.4?
Mr. Lemcke: No, I have not. However, I should say that
until September last year, I was the deputy chief in charge of the Investigation
Division in the Vancouver Police Department, while section 184.4 was used by
inspectors and investigators in the Vancouver Police Department. It usually
revolved around active ongoing kidnapping cases.
Senator Fraser: How many cases would you have been aware
Mr. Lemcke: Very few. I could not give you the numbers,
but thankfully it is not a routine thing in the city of Vancouver.
Senator Fraser: Do you think that the notification
requirements, as set out in this bill, will be fairly straightforward and simple
for the police to implement? In particular, I am thinking of the whole question
of third parties — not always people you know. How do you see it work in
Mr. Lemcke: Are you talking about the requirement to
notify people within 90 days unless you get an extension?
Senator Fraser: Yes.
Mr. Lemcke: This is something we already do. The timelines
are acceptable. The only concern I have is with regard to the extensions because
there are times when divulging that information could jeopardize an ongoing
investigation; but I do not see any issue with that.
Senator Fraser: Thank you very much.
The Chair: As a supplementary about the implications of
notification, how difficult is that in the modern era of communication? Is that
a challenge for your department with respect to notification?
Mr. Lemcke: It could be a challenge, but of course we
would be as diligent as possible to do it as required. It all depends because
the world has changed with regard to technology, as we all know. So much goes
back and forth either by email, text message or cell phone that it can be a
challenge. I have never heard a complaint from our investigators that it is
tough to do.
Senator Dagenais: Thank you, Mr. Lemcke, for your
testimony. I would like to know what you think about the importance of
intercepting a telephone conversation with a view to protecting public safety,
only, of course, in cases where rapid action must be taken.
Mr. Lemcke: An example would be an active kidnapping and
the necessity for us to be able to intercept conversation, especially cellular
or land-line conversation, between a suspect or a victim and someone else. It
boils down to the opportunity to save lives by finding people as quickly as
possible. It might be that this conversation would give us evidence to be able
to find out where they are and to assist them right away.
It should also be recognized that in the early stages of these
types of investigations, such as a kidnapping or someone in danger of being
murdered, the primary purpose of the investigation in those early stages is
saving lives. It comes down to anything we can do, and if we can obtain that
information through lawful intercept, it is great. That is always the primary
Senator Baker: Thank you for your excellent presentation.
I wonder how practical this provision and others are relating to the
interception of private communications. I refer not only to 184.4 but also to
sections 186 and 188 in that you have to report to the Attorney General of
British Columbia the number of interceptions made under three sections of the
Criminal Code the year after they are made. The requirements in the Criminal
Code are that you must provide the results of those interceptions to the
Attorney General of British Columbia if a case is prosecuted provincially or to
the Attorney General of Canada if it is prosecuted federally. The results
include the numbers of convictions that resulted from these interceptions and
the numbers of persons who were charged resulting from those interceptions.
As I understand it, tapping phones and interfering with private
communications are parts of an investigation that usually takes years to
complete. Therefore, how can you possibly give an accurate response to all of
these requirements as to how many prosecutions you had, the numbers of people
convicted and the numbers of people who were tapped each year?
Mr. Lemcke: It is a good question. It would be very
difficult to do. The only thing I can say is that we would give the information
that we had at the time. Therefore, if we reported the following year the number
of times that we went up on wire under subsection 184.4 or under any other
section, then we could state what the reason was for it and if arrests were
made, and we could probably state at that time if charges were laid.
However, you are right: It might be two or three years later
where we report again and say that the outcome of the interception that occurred
in 2012 — it now being 2015 — and we received convictions on these dates. You
are right in that, with the length of time it takes things to get through the
courts, we would not be able to give the conviction part of it in all that
timely a manner.
Senator Baker: The reports given through the Province of
British Columbia, the federal government and each of the provincial governments
have to comply with the laws we pass, and the laws we pass specify every single
year that you have to put certain numbers in certain columns.
Are you saying that if I look at 2011, and I see “numbers of
applications for authorizations;” another column, “numbers of persons against
whom proceedings were commenced;” another column, “number of persons against
whom proceedings were commenced and not identified in the authorization;” and
then your final column, “number of notifications given pursuant to section
196” — then perhaps some of that information could be carried over from previous
years and an annual reflection of what happened in the previous year would be
practically impossible to disclose?
Mr. Lemcke: Certain pieces of it would be very difficult
to disclose in a timely fashion.
Senator Baker: Thank you.
Mr. Lemcke: To add to that, annually you would also
receive updates; you would receive the current information and, as other
information came forward, you would report annually on that as well. I
understand your point.
Senator Baker: What we are looking at is a statutory
requirement in law, and there is no fudging. There have to be lists presented
from your department every year in British Columbia and, if it is prosecuted
federally, to the federal minister. Your point is that you cannot accurately do
that on a judgment of the actions of the previous year; that this has to be over
a period of time and not as specifically laid out in the legislation. Is that
Mr. Lemcke: That would be correct.
The Chair: Deputy, does your association have any concern
with respect to the definition of “police officer” in the legislation?
Mr. Lemcke: No, there is no issue there.
Senator Joyal: Thank you, Chief Lemcke, for your comments.
I have read your brief. I have noticed that you concentrate your remarks
essentially on damages to people; I would say by a position, damages to
property. You do not mention anywhere in your brief that you are as concerned
with damages to property. If we read the new subsection 184.4, it covers the
damages to persons or to property. It means that any police officer made aware
of damages being done to property could really use the same section to intercept
the communication. Do you have the bill in front of you?
Mr. Lemcke: I do.
Senator Joyal: When you read subsection 184.4, at the very
bottom of page 1, the last line is: “. . . that would cause serious harm to any
person or to property.” In other words, there is a clear distinction in the
You seem to concentrate your remarks on serious harm to persons,
but the bill is much wider than what you propose to us as a reflection. It would
mean that if someone, for instance, was talking to someone to prepare a robbery
or inform someone that he could go in the bank and so on, the police could
intercept that conversation, and it is essentially an offence that would cause
damage to property, for instance, such as stealing money.
It is much wider than the understanding that you put to us in
your brief. I am sure you read the legislation and you will concur with me that
the bill does cover the question of hostages — and we all subscribe to that —
but it also covers any damages to property, which is a lot of infractions also;
they are the largest number of infractions in the Criminal Code. How would you
react to my comments?
Mr. Lemcke: From a policing perspective, we would look at
that particular section, and I believe it would be “serious damage to property.”
That would be something like, say, a terrorist attack on a vital institution in
a city, a bombing of a school or a major arson. It would be something where we
would have to stand in front of the courts later on, or those who would hold us
accountable, and say, “Yes, this was serious, and this is why we did this.”
I do not think that the courts will tolerate, nor would I accept
that the courts would tolerate, the police intercepting a conversation between
two people, one of whom was going to go break their neighbour's fence or
something like that. To intercept people's private communications is nothing we
would ever take lightly, and it has to be something very serious before we would
use subsection 184.4 to do that.
Also, we have to consider that when we are using subsection
184.4, we believe that we would be able to get a warrant but that there is not
enough time to get a warrant, in other words, that this is emergent and we need
to do this right away. We would never be able to get a Part VI warrant under any
other section of the Criminal Code in order to intercept a conversation between
two kids who were planning to go out and steal someone's bicycle. It would have
to be much more serious than that for us to be able to get a warrant to
intercept private communication.
Again, when you look at subsection 184.4, you have to think that
you are using this in circumstances where you believe you could get a warrant
but there is not enough time to do it. It has to be something very serious.
Senator Joyal: The other concern I have is in relation to
the reporting. The Canadian Bar Association has identified that concern to a
point, and I share it. The concern is the fact that the person who could have
been the object of interception and who would not have been charged with any
offence would not be reported. In other words, an honest citizen could be the
object of intercepting, because you and any police officer would have reasonable
cause to believe that; he would be the object of interception but would not be
at the end be charged with any offence. In the reporting, those kinds of people
would not be mentioned.
In other words, I see that as an opening for potential abuse. We
would not know whatsoever that people are the object of communications
interception but would not be charged, so we would not know. They would fall
into the crack of silence.
I think it is an important point that should be covered, for the
very reasons that you have outlined in your brief; namely, you are concerned
that those interceptions are done only in exceptional circumstances. If you are
not obliged to report when an interception did not lead to any charge for the
persons who have been the object of those interceptions, you keep a secret
around the operation, which, in my opinion, is, to a point, contrary to the
objective of the legislation to balance the authorization given to police
officers versus the disclosure of those initiatives and interventions on behalf
of the police officer. I think you understand my point quite clearly.
Mr. Lemcke: I do understand your point. I am just looking
at the new section, 195(5)(c), where it says “interceptions made under
section 184.4 in the immediately preceding year, if the interceptions relate to
an offence not referred to in paragraph 1(c).”
However, we also have to consider that police “shall give notice
in writing of the interception to any person who was the object of interception
within 90 days after the day on which it occurred.” In fact, there is reporting,
and the reporting is directly to the person who was the subject of the
interception. I would think and hope that if that person had any questions or
concerns or felt that something was improper, they would bring it to the
attention of the police agency that did the interception.
Senator White: Thank you very much, deputy chief. I
appreciate your being here virtually. I take it you had a question in relation
to “peace officer,” versus “police officer.” You would agree with the change as
well, that it is a move to police officer status?
Mr. Lemcke: Yes.
Senator White: There have been a lot of discussions from
witnesses about the exigent circumstances and the urgency of these wiretap
authorizations. I know that, in your experience, you have probably overseen or
at least approved a number of Part VI wiretap authorizations. On average, in the
last five years, how many pages or how long would it take to prepare a Part VI
Mr. Lemcke: The entire Part VI authorization?
Senator White: Yes, please.
Mr. Lemcke: It could be a month or more.
Senator White: I am just asking that primarily because I
think we sometimes forget in here what we are really talking about. We are
talking about an emergency situation, an opportunity to hopefully save someone's
life and actually act immediately rather than follow these steps that have been
put in place. Probably when you started — I know when I started — in policing,
it went from a few hours to get a Part VI of 10 or 15 pages to a few weeks or
longer and hundreds of pages. I think that what we are really talking about here
is emergency situations.
Mr. Lemcke: You are correct, senator. At the end of the
day, in those emergency situations, if we never got a conviction in court but
saved a child's life, then we have won. That is the main thing.
Senator White: Thank you very much for your response.
Senator Fraser: Thank you. This is following up on Senator
Joyal's line of questioning. It is about the notification.
The bill says that whoever “shall give notice in writing of the
interception to any person who was the object of the interception.” That is at
the top of page 5, 196.1(1). What I would like a clearer understanding of is
what the word “object,” in “object of the interception,” means to you. Does that
mean the person who was the actual target, the one you were trying to get stuff
on, or does it also mean third parties, people who are not involved but who just
get captured because it is the nature of wiretaps that sometimes you get people
who were not really the ones you were looking for? What does “object” mean?
Mr. Lemcke: To me, it is the person who was targeted in
Senator Fraser: You do not think this would require
notification to third parties?
Mr. Lemcke: No. I think that if the target of the
interception was having a conversation, say, with their mechanic about getting
their car repaired and part of that conversation was heard because we would have
listened to the whole thing, then we would not notify the mechanic that we had
heard part of this conversation. When conversations are being intercepted, if it
is not pertinent to the investigation, we are not listening to it.
Senator Fraser: Thank you very much.
Senator Baker: Your referenced the reasonable grounds to
believe. Senator White, of course, highlighted the fact that, if you had to ask
for an authorization under section 186, it would sometimes require 500 or 600
pages of reasonable grounds based on the affiant and sub-affiant police
officers, in many cases, to ground the authorization. This particular case of
section 184.4 does not require that specificity. However, it does require
reasonable grounds to believe, which is the high standard. The officer has to
have reasonable grounds to believe the urgency of the situation to do this and
to believe that it is immediately necessary.
Your point is that written into the law is this very high bar
that your officers have to meet before they can go ahead and do something under
section 184.4. Is that correct?
Mr. Lemcke: That is correct.
Senator Baker: The argument has been presented to this
committee that, because there is no warrant to prove what the reasonable grounds
for the officer were, there should be an onus on the Crown to prove the
reasonableness before that evidence is admitted for trial. For an officer who
normally presents evidence at trial to prove reasonable grounds, you would have
his reasonable grounds in his officer's notes. Is that one form you would have
it in? Would you also have it in the occurrence reports? What do you call those
reports that you give to the court in your province? For disclosure, you would
have to have the reasonable grounds, written out by the officer after the fact,
before something is presented to trial. Is that correct?
Mr. Lemcke: You would have to have notes that were made
contemporaneously as the investigation was unfolding. Then, all the general
occurrence reports and reports to Crown counsel that were forwarded will have
the details from the very beginning of this investigation. Everything will be in
there, fully disclosed.
Senator Baker: Contemporaneous notes, which are perhaps
the most important aspect, are part of the disclosure requirements when this
subject comes up for trial. Is that correct?
Mr. Lemcke: That is correct.
Senator Joyal: Along the same lines, Chief Lemcke, if
there is subsequent proceeding and the police officer is called upon to testify
as to why he thought, on reasonable grounds, that the interception should be
made, what kind of documentation will sustain the position of the police
officer? In other words, is there a report? Are notes taken? Is there a
conversation with a superior after the fact? What are the elements of proof? Is
it just the word of the police officer? How does it work materially when a
police officer would be called to testify about the reasonableness of his
reasons to have intercepted the communication?
Mr. Lemcke: All the above, sir. The police officers will
be documenting everything from beginning to end. Also, other things will come
into the report. That would be 911 calls, tape-recordings of those calls that
would come in both in audio and transcribed fashion, statements from witnesses,
all notes made by police officers and all direction given by superior officers.
If a senior officer in the Vancouver Police Department said, “We
are going to utilize section 184.4 of the Criminal Code,” that officer will have
to detail why they did that.
The other thing we have to understand is that everything we are
doing that caused the police to utilize section 184.4 will be scrutinized by the
courts later on down the line in any trial. Judges will be looking at that very
closely. If the investigation goes more long term, then everything we did under
section 184.4 will make part of the Part VI application when we go to get a
warrant from the judge. Everything is looked at under a microscope with regard
to this, as it should be, because we are intercepting private communications.
The courts will want to see everything. Judges will want to see
everything. If it gets to trial, defence lawyers and Crown will want to see
everything and make sure all our t’s are crossed and our i’s are dotted, because
no one takes this lightly. There is a reason why section 184.4 is not used that
often in Canada. We are lucky in this nation that we do not have to use it that
often, but it is only used in those most serious of circumstances. Everything
has to be documented from that first 911 phone call.
Senator Joyal: That is why I share your concern that the
bill does not require the police officer to report to his superior ex post
facto, not before, because I understand the action is going on and you have
to make a decision on the spot. However, once it is done, in order to protect
the seriousness of the decision, if the police officer would be called to report
to his superior that he has taken that initiative on reasonable grounds, which
of course will be reviewed by the proceedings and the Crown attorney and so on,
it would be a safeguard for any ill-considered reasonableness of the decision to
Mr. Lemcke: I would say there is no way that something
like this will happen under section 184.4 without a senior police officer being
involved and being fully briefed on every aspect of the investigation and what
led to the interception.
I can tell you that in Vancouver, if a kidnapping or a major
incident occurs and we think we have to use section 184.4 of the Criminal Code,
there is an inspector in the room; there are officers of all different ranks and
they know what is going on from the very start of the investigation until the
Again, it is not something that just a police officer sitting
behind a desk can phone up and start intercepting someone under section 184.4.
There is a lot of accountability internally in our own agencies with regard to
this as well. Senior officers will be very well aware of what is happening.
Also, our police officers are extremely well trained. They know
what the law is. They know when section 184.4 is appropriate, when they can
utilize it. I have faith in that part of it.
Senator Baker: Chief, we have heard from a lot of
witnesses today. We have had a long day here discussing this. Those very few
people who are opposed to the legislation have a fairly legitimate point they
make, and that is this: If you look at the Criminal Code or the Controlled Drugs
and Substances Act, you find that in exigent circumstances a police officer can
receive, by telephone, a very fast and efficient telewarrant. In other words,
the police officer simply phones a provincial court judge. Under section 11 of
the CDSA, you use section 487.1 of the Criminal Code, and that is the
telewarrant provision. Within five minutes, the provincial court judge, after
listening to the police officer, will fax him a warrant in Form 5.1. That
authorizes the police officer to break into someone's home, which requires a
high level of proof, to search for drugs. People are asking this: Why can the
same provision not be done in circumstances that we are discussing here today?
The objection has been placed by some of the witnesses that these
provisions of the Criminal Code we are talking about today can only be
authorized, in section 186, by a judge of the Superior Court. It says “a judge,”
which is defined as a judge of the Superior Court. A justice is defined as a
justice of the peace or provincial court judge.
If you want to raid someone's home for drugs, you can get a
provincial court judge to authorize it on the telephone, whereas in
circumstances that we have in section 184.4 you have to go to a Superior Court
judge. However, there are not that many of them and they are not available 24
hours a day and seven days a week.
Do you have any thoughts on perhaps utilizing a provincial court
judge rather than a Superior Court judge, given the fact that provincial court
judges hear 95 per cent of criminal cases in the provinces anyway?
Mr. Lemcke: Are you asking me if I have any thoughts with
regard to using a provincial court judge to get a warrant in these
Senator Baker: Yes; in other words, copying the CDSA and
the Criminal Code provisions in section 487 and 492.2. These are warrant
sections. If we had the same accessibility to a provincial court judge, who is
there 24 hours a day, seven days a week, you could in five minutes get a
telewarrant, whereas you cannot under these provisions because you have to get
it from a Superior Court judge. Have you thought about that? You do not have to
comment on it if you do not want to. It is something that came up during our
Mr. Lemcke: I will comment on it. In those five minutes it
took me to get the warrant from the judge, someone could have died. I am not
going to live with that. I cannot live with that. That is all it takes.
We are talking about something that is used only in the most
serious of circumstances. If we said to every Canadian whose child has been
kidnapped that we had the cell number of the bad guy who took their child and we
could have intercepted the conversation right away as that person called someone
else to say they were driving from Vancouver to Hope right now, but we had to
wait five minutes to get a warrant, another five minutes to serve it and another
five minutes here, and we lost that child, it would be unforgivable. These are
circumstances when we would use section 184.4 to save a life. I do not want to
wait five minutes for that.
Senator Baker: Good answer. You are doing a great job,
The Chair: Thank you very much, deputy. We appreciate your
appearance today, and your testimony has been very helpful to the committee in
their deliberations. Thank you very much.
Just before we break, tomorrow morning we are meeting at 9 a.m.
to deal with clause-by-clause consideration of Bill C-55, and we are meeting in
Room 256 in Centre Block.