The Response to the Supreme Court of Canada Decision in R. v. Tse Act, SC 2013, c. 8 (Bill C-55) was introduced into Parliament and received first reading on February 11, 2013. Except for section 5, it came into force upon Royal Assent on March 27, 2013.
What does the Act do?
The Response to the Supreme Court of Canada Decision in R. v. Tse Act amends sections 183, 184.4, 191, 195 and 196.1 of the Criminal Code, RSC 1985, c. C-46.
Sections 183 to 196 (Part VI - Invasion of Privacy) of the Code are the centrepiece of federal legislation on electronic surveillance by law enforcement agencies.
Why amend that part of the code?
The Act was introduced in response to the ruling handed down by the Supreme Court of Canada in R. v. Tse on April 13, 2012.
The trial judge in R. v. Tse, 2008 BCSC 211, had found that section 184.4 of the Code contravened the right to be free from unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms and that it was not a reasonable limit under section 1.
The Crown appealed the declaration of unconstitutionality directly to the Supreme Court of Canada, so there is no decision from the Court of Appeal.
Although section 184.4 is the only wiretapping provision that does not require either consent of a party or prior authorization, the Court noted that each interception undertaken under this section “is limited to urgent situations where there is an immediate necessity to prevent serious harm and judicial pre-authorization is not available with reasonable diligence.”
However, "In its present form, s. 184.4 contains no accountability measures to permit oversight of the police use of the power. It does not require that “after the fact” notice be given to persons whose private communications have been intercepted. Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will be unable to challenge police use of this power. There is no other measure in the Code to ensure specific oversight of the use of s. 184.4."
The Supreme Court of Canada suspended its declaration of invalidity for one year – until April 13, 2013 – to give Parliament enough time to replace it with legislation consistent with the Charter.
What changes were made?
Section 2 of the Act amends section 183 of the Code to add a definition of 'police officer'.
Section 4 of the Act amends section 191(2)(a) and (b.1) of the Code, replacing 'peace officer' with 'police officer', restricting the use of section 184.4.
Section 3 of the Act amends section 184.4 of the Code, changing 'unlawful act' to 'offence'. As a result, the unauthorized interception of communications in the exceptional circumstances set out in section 184.4 will only be able to occur with regard to the offences listed in section 183.
Section 5 of the Act amends section 195(1) of the Code, requiring the federal Minister of Public Safety and the Attorney General of each province to present a public report to include interceptions under section 184.4. It also sets out the information to be included in the report.
Section 6 of the Act adds section 196.1 to the Code, which requires the federal Minister of Public Safety or the Attorney General of a province to notify in writing the person who was the object of the interception, within 90 days of the interception. On application to a judge, this period may be extended to three years if the police investigation is continuing. This extension may be obtained more readily if the investigation relates to a terrorism or organized crime offence.
Is the Act in force?
Except for section 5, the Act came into force upon Royal Assent on March 27, 2013.
Section 5 comes into force six months after the day on which it received Royal Assent - September 27, 2013.
Bill C-55 essentially replicated the provisions related to section 184.4 found in Bill C-30 (introduced in February 2012), and in former bills C-31 (introduced in May 2009) and C-50 (introduced in October 2010).
It was given first reading on February 11, 2013.
Both the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs agreed to report it with no amendments.
August 6, 2013