Bill C-55 progressing to become law by April 13 deadline

The Conservative government's new wiretapping bill, C-55, is moving through Parliament to pass into law by an April 13 deadline. Bill C-55 was introduced in the House of Commons on Feb. 11 after the government announced it would not proceed with its lawful access bill due to public concerns over online surveillance. The new bill responds to a Supreme Court decision last year and aims to enable law authorities to capture, when necessary and without a warrant, phone conversations, text messages and emails through wiretapping. The bill would require police to file annual reports with their provincial attorney general identifying when they used the bill’s provisions and for what purpose. At a House of Commons justice committee meeting last Wednesday, Michael Spratt, a member of the Criminal Lawyers’ Association (CLA), said the association is in favour of the legislation and that it generally supports a bill that is “modest, fair and constitutional.” Spratt said in an interview following his presentation that he expects the government to meet its April deadline. “It’s unfortunate, as simple as the bill is, that there isn’t more time we can devote to an analysis of the bill to make sure when we’re dealing with extraordinary power that it’s dealt with appropriately in new legislation,” he said. He said the bill's requirement for police to notify a person that they’ve been wiretapped within 90 days and to file annual reports on wiretapping are “steps in the right direction.” The bill says that at the end of each year, the attorney general of each province will publish a report on the interceptions and the number of authorizations for interceptions. Spratt told the committee that the reporting requirements could be more extensive, requiring police officers to submit the number of prosecutions and arrests made as a result of the wiretap, as well as the number of times there were no arrests or offences. He suggested they could also report the reasons for warrantless access to the communications, what harm the access prevented, and why other methods could not be used. “I think it could go farther given the extraordinary nature of the power, but it’s a step in the right direction and it’s a breath of fresh air when it comes to criminal law,” Spratt said. Bill C-55 says that, “A police officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if the police officer has reasonable grounds” to believe that, due to the urgency of the situation, court authorization could not be obtained or “the interception is immediately necessary to prevent an offence that would cause serious harm to person or property.” The bill adds that a police officer may intercept the communication without a warrant if “either the originator of the private communication or the person intended by the originator to receive it is the person who would commit the offence that is likely to cause harm or is the victim, or intended victim, of the harm.” Spratt said requiring a person to be notified after wiretapping has occurred is a “very positive thing.” In February, the Justice Department said in a release that C-55 will “directly respond” to an April 2012 Supreme Court decision called R. v. Tse, which struck down a surveillance law that did not require police to notify parties they had been wiretapped. Justice Minister Rob Nicholson told the justice committee last week that, according to the Supreme Court decision, the federal government has until April 13 to make amendments to section 184.4 of the Criminal Code, which C-55 amends. Nicholson said it is important for the government to act quickly as the deadline approaches. “This makes it imperative that we move as quickly as possible to enact this legislation, failing which, after April 13, police will no longer have the ability to use this section, which may compromise their ability to respond to high-risk situations and to protect Canadians,” he said in speaking notes. Under Bill C-55, Nicholson said, police are required to notify a person that they have been wiretapped within 90 days, unless they are granted an extension by a court. The proposed amendments also seek to restrict the use of wiretapping practices to “police officers” rather than “peace officers,” which would enhance compliance with the Charter, he said. “It’s not security guards, mall cops, or commissioners,” he said. “It’s those individuals … Sûreté du Québec, Ontario Provincial Police, and municipal law enforcement agents.” Chris Parsons, a network expert and doctoral candidate at the University of Victoria, said Bill C-55 lacks the broadness of the government's previous wiretapping bill, known as lawful access. “ has less capability to provoke the outrage that helped delay C-30,” he said. Parsons said there is nothing in C-55 that is significant enough to delay its passage though he remains concerned that an independent body such as the Office of the Privacy Commissioner will not be conducting audits on the number of emergency wiretaps. “The value of a totally independent body providing this information is that it reduces the possibility of institutional meddling or misreporting of these numbers, and increases the likelihood of comprehensive explanations of surveillance undertaken,” he said. Parsons said C-55 contrasts with surveillance regimes in the United Kingdom and the United States, where more detailed reporting of wiretaps is required and is overseen by an independent body. He said the United Kingdom's surveillance regime requires information about the number of wiretaps and interceptions as well as details about the nature of the surveillance and an explanation of errors. In the United States, Parsons said, there is good reporting on wiretapping because the U.S. Government Accountability Office (GAO) oversees the information. “Ideally, I’d like to see a situation where the present reporting requirements are performed by the privacy commissioner, with funding appropriated so they are able to conduct such work,” he said. Parsons said there is no independent body identified to do this in Canada’s bill, though he said the reporting requirements in C-55 are good and will provide empirical data on wiretaps. On March 7, the House of Commons justice committee reported the bill back to the House without amendments. The same day, the Senate passed a motion to begin a pre-study of C-55 at the Senate Standing Committee on Legal and Constitutional Affairs. Government House Leader Peter Van Loan said in the House of Commons on March 7 that C-55 would be debated when Parliament returns from its break week on March 18. “This is an important justice measure,” Van Loan said. “I must remind the House that this legislation responds to a Supreme Court decision that takes effect over the Easter adjournment, so it is very important that we be able to pass it here and get it to the Senate for it to deal with before that time.” Sean Phelan, a spokesman for the justice minister, said in an emailed statement that the bill responds to the Supreme Court's R. v. Tse decision, that it has been “drafted in a manner which will facilitate the consideration of Parliament before the April 13 deadline.” Phelan added that he hopes all parties work to pass it “in an expeditious manner.” —With reporting by Danika Grenier at dgrenier@thewirereport.ca and editing by Simon Doyle at sdoyle@thewirereport.ca

Bill C-55 progressing to become law by April 13 deadline

News | March 11, 2013

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