Appearance before the Senate Standing Committee for Legal and Constitutional Affairs on Bill C-55, the Response to the Supreme Court of Canada Decision in R. v. Tse Act

March 25, 2013
Ottawa, Ontario

Opening Statement by Chantal Bernier
Assistant Privacy Commissioner of Canada

(Check against delivery)

---

Mr. Chair and Honourable Senators, 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. 

Context

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 analysis.

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.

In its decision, R. v Tse, the Supreme Court recognized 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 surveillance; and,
• 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. 

Controls - Interception in cases of imminent harm

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 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, C-55 provides a legal basis for police officers to intercept communications without a warrant when:

• the situation is urgent;
• the need is immediate;
• the action could prevent serious harm; and,
• the surveillance targets either the suspect or 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 others. 

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.

Transparency – Public reporting requirements

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 improvement.  

Certainly, in the context of ensuring respect for section 8 rights 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 entirely ineffective.  

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.

Accountability – Individual notification

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 in the protection of privacy.  Therefore, I believe these new provisions represent a proposed improvement with which few would take issue.

Conclusion

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 decisionin 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.