Mr. Russell MacLellan (Cape Breton-The Sydneys):
Mr. Speaker, it is my privilege today to be able to speak on Bill C-109 and reply to the Minister of Communications who delivered the speech on behalf of the Minister of Justice.
For the most part this bill includes some very good stipulations. I look upon this bill as really being in two parts. The bill deals with the police use of electronic surveillance methods and introduces protection of radiobased communications and cellular phone calls.
First, we are dealing with the electronic surveillance methods of the police, and second, we are dealing with the protection of radio-based communications.
With respect to the police use of electronic surveillance methods, there really is not much of a problem. There really is a need to make some changes in this regard to allow the police to be able to do their work. Some of the problems I have are in the area of radiobased communications.
However, it is our hope in the Liberal Party that the bill will get second reading so that it can go to a legislative committee. Then we can have the witnesses and the expertise before the committee that we need to really answer some of our concerns, and certainly some of the concerns that I have.
I would first like to deal with the first aspect of the bill concerning electronic surveillance methods. This part was formulated in response to three Supreme Court decisions in 1990, the Wong case, the Duarte case and the Garifoli case, and the Wise decision in 1992. The Minister of Communications outlined these cases yesterday in his speech so I will not go into the details.
As a result of these decisions the police found that they were severely restricted in their use of electronic surveillance and have been urging government since that time to update legislation in such a way as to once again permit the use of traditional surveillance.
Bill C-109 does this in four main ways. First, it allows the police to use electronic surveillance where there is a potentially dangerous situation.
Second, it allows judges to authorize such surveillance with the consent of one of the parties involved in the surveillance.
Third, it allows judges to issue similar authorization in other circumstances where it is clear the request for authorization meets the tests prescribed in the charter.
Fourth, it streamlines the procedure in the Criminal Code for introducing evidence obtained by electronic surveillance.
Reinstatements, police and undercover agents use these electronic lifelines. Conversations are recorded and used from these lifelines only if the surveillance is for the protection of bodily harm.
There are limits that are placed upon the evidentiary use of such material. For instance, it cannot be used to prosecute other crimes. That is fairly straightforward and it makes a lot of sense.
I think the police are supportive of this legislation. They have been pressing for changes. They believe that electronic surveillance is vital for fighting organized crime and drug rings in particular, and there is a good deal of justification in what they are saying.
As well, authorized public agents and others who assist these police and undercover agents, for instance landlords who permit entry to a residence, would be afforded protection from civil and criminal liability. This is meant to prevent litigation chill from deterring law enforcement.
February 26, 1993
Judges can also authorize use of video surveillance and tracking devices in circumstances where audio surveillance would be permitted. One could say that with these recommendations in this part of the bill better use will be made of the judge's time with respect to issuing authorization warrants and evidentiary rules. This is in response to what the Supreme Court called the "procedural quagmire" with respect to the above.
The definition of private communication is changed in two ways. Either the originator or the receiver would have to be in Canada and scrambled radio communications would also be covered.
I would like to state a couple of things that the minister said yesterday in his speech which I think are important. He said that the primary purpose of these amendments is to permit the use of technology by police forces in the performance of their duties, but only in a way that does not contravene the Canadian Charter of Rights and Freedoms. That is very significant. I can support what the police want to achieve if I feel that the charter is being respected.
I do not think anyone in this country wants to frustrate the police in their duties. Goodness knows, they are having a difficult time as it is. We have to ensure that while we are giving the police the means to be able to do this we are not interfering with the rights of the Canadian public. I do not think we are. If we are I do not think we have to. We can counteract that. I want to repeat, that is my concern.
The minister feels that the amendments would have the effect of simplifying the rules of admissibility of evidence. They would also increase the effectiveness of both the police and the Crown prosecutors in accordance with the recommendations of the Supreme Court. We are talking about the resources police officers need to perform their duties satisfactorily. I do not think anyone could quarrel with that.
We need good testimony to reinforce that. I want eveiyone to know that we in the Liberal Party support the police in this area. I think it is very important that we work toward that.
I would like at this point to move on to what I consider the second part of the bill, about which I do have some concerns. This part would create an offence of intercepting maliciously or for gain communications over cellular
phones. The maximum penalty would be five years. It would also be an indictable offence to wilfully disclose the existence or contents of intercepted cellular phone calls without the consent of one of the parties to the call. A maximum sentence would be two years.
Under this bill it would also be an offence to divulge or make use of cellular phone calls, faxes and computer signals carried on certain frequency radio waves. It would be a summary offence with a maximum fine of $25,000 or one year for individuals and $75,000 for corporations.
Victims of divulged communications could sue the divulgers for unlimited damage. I think you can see where this is going. It is going into sort of a grey area, an area of concern. It is not that the idea of what the government may want to achieve is not laudatory, it is just very confusing and somewhat misled.
The bill tries to give radio communications similar protection as is now given to other private communications as required by recent technological advancements. These amendments recognize that radio waves can be used for more than voice transmission. They would eliminate the loophole in cases where intercepted communication is not a voice transmission.
There have been criticisms already of this part of the bill and I think with some justification. The Canadian Association of Journalists strongly opposes this because it believes the bill severely hinders freedom of expression. This particularly refers to sections which cover cellular phone conversations. They believe the government is trying to protect business interests of cellular phone companies that pay the government millions of dollars in licensing fees. I think that is an aspect which is worth considering.
These cellular phone companies are very prosperous and would have the money to lobby hard for such legislation. As people become more aware that conversations on cellular phones are happening via public radio waves, these companies may lose business.
It is to their advantage to protect the privacy of their customers. In that, the government is taking the ball and running in the direction pointed to by these companies. Politicians and governments are major users of cell telephones. You could say that perhaps it is a self-interest, that government and politicians simply want then-indiscretions to remain confidential. I think that would be a little simplistic.
February 26, 1993
The media will suffer from a bad case of "libel chill" if such legislation is passed. I think that is of concern to them and I can see why it would be. They would be sued if they used information gleaned from conversations which took place over cellular phones.
The Canadian Association of Journalists argues that cellular phones are not regular phones and should not be viewed as such. They are simply sophisticated CB radios. As the Minister of Communications said, the cellular phone is not a cellular phone at all, it is a radio. Every conversation is a radio broadcast transmitted on radio waves. Every conversation unless specially treated can be monitored by anyone with a scanning device.
He said this last December and essentially he reiterated in his speech yesterday. What happened between then and now? What happened when he made this statement? One can only speculate as to the arguments, to the considerations and so on that is now making him a champion of the privacy rights of the cellular phone users.
In the United States, if I may look to that country for a moment, the situation has been handled somewhat differently. In the United States scanners are illegal. In Canada there are far fewer scanners than there are cellular phones and cordless phones, which by the way are also susceptible to interception.
The Minister of Communications has decided that it is easier to stifle freedom of expression than to ban radio scanners, perhaps because the owners of radio scanners are individuals who do not wield the clout of large cellular phone corporations.
As I have stated, the Liberal Party will support this bill on second reading because we want the information and the dialogue that the legislative committee can give. We want it very much to have good competent witnesses to give this the closer examination that we feel this bill needs.
For my part, my criticism of the bill centres around the sections dealing with cellular phones. The bulk of the legislation does address electronic surveillance. Police have been asking for such legislation. The latter is important and must be dealt with in light of the recent Supreme Court rulings.
The whole bill warrants close scrutiny. With respect to the cellular phones and the cordless phones, we have to examine this a little more at this time to bring forward more of the potential problems that can arise.
This bill will also allow victims to obtain injunctions and sue for unlimited damage in the civil courts. The bill not only prohibits disclosure of the contents of the cellular phone conversations to anyone under any circumstances, it also bans disclosure of the existence of those conversations even though it is perfectly legal to monitor unscrambled radio-based conversations.
While we can monitor radio-based conversations, the Minister of Communications is saying that cellular phones and cordless phones are in fact radio receivers. We are saying an orange is not an orange, an orange is an apple here. I have a little problem with that and I do not know how that is going to be projected legally in the courts.
I also feel that Bill C-109 would certainly protect the commercial interests of cellular phone companies that pay government millions of dollars every year for their licensing fees. I am also concerned that they are going to be shielded from the consequences of the indiscretions they commit on the airwaves and the lack of work that needs to be done if the right course of direction were taken.
We also have to look at a bench-mark here, and that is what we are trying to achieve with the restrictions on cellular phone conversations. First, we have to ask is this the right direction to take? Second, are we not asking a question here that the price is going to be far too high for what we want to achieve? I am concerned that we are doing just that, that we are really infringing on the rights of Canadians for the wrong reasons if there ever are right reasons for something like this.
It is very important to understand that there are one million cellular phone subscribers in Canada as well as several million cordless phones. They can be very easily monitored.
The Minister of Communications says it is unreasonable to ban the scanners. The Americans were able to do it. I do not agree with everything that the Americans do but I just do not see the unreasonableness of banning scanners.
February 26, 1993
We are saying you cannot listen in on cellular phone conversations, use the information that you hear in those conversations, transpose it or relay it to somebody else who can use the information but we should not ban the scanners.
I do not agree. Please do not get me wrong. I do not condone eavesdropping, I do not condone the infringement of privacy. I do not condone the malicious utilization of private information for public or private gain, but I do think we have to move in the right direction. If we do not, then we are not correcting the problem, we are misleading the public. I think that would be a very sad thing to do and certainly something I do not think the government is intending.
Once again I would like to look at what the minister said. As reported at page 16492 of Hansard:
The second amendment included in Bill C-109 is close to my own heart and deals with the issue of cellular radios and personal privacy. Not long ago The Financial Post conducted an experiment listening to cellular conversations on an easily obtainable inexpensive scanner. In a brief period of time the Post intercepted calls made by stockbrokers, real estate agents, federal bureaucrats, police and others. The subjects varied from the mundane to the illegal, everything from what to serve for dinner to where to conduct a drug transaction.
He goes on to say in another situation:
During one two-hour session The Edmonton Journal heard one caller give his credit number over cellular, one woman give her address to a date, several intimate conversations and numerous business telephone calls. Another caller mentioned by name a man recently diagnosed with terminal cancer. It is possible the Journal reporter knew about this before his next of kin.
Then he goes on to say that privacy is disappearing and Canadians are worried about it. There is no question that privacy is disappearing. I want to know whether the provisions regarding cellular phones are going to change that.
I do not know how many newspapers the minister has contacted about their listening in on cellular phone conversations. I do not know if there has been a program to determine this or what. I, frankly, do not appreciate the government cavalierly discussing this with newspapers as if this is some kind of survey. I think it is much more serious than that.
Whether you make it illegal or not, there is nothing in this section that is going to stop the abuse. Sure, you can say to someone that they cannot listen to another person's phone conversation, that they cannot benefit from it, that they cannot pass it on to somebody else, but how in heaven's name are you going to prove it? If something is picked up on a cellular phone conversation and used, chances are you are never going to know that it was picked up and, if you do know, you are never going to know by whom. Chances are that the person who picks it up is not going to tell everybody that they have done it. The ones who will be punished are the ones who somehow are known through their conversations with other people that this has happened.
The problem is that it is not addressing the abuse. There are many ways to get away from it. It will be done day after day after day. Those who do it, maybe for a reason much more bona fide than most, may be caught and charged.
What we want here, surely to heavens, is to give Canadians the sense that their privacy is not being invaded and that this abuse is going to be corrected. It is not going to be corrected by giving them the false sense of security that their cellular phone conversations are going to be secure because they are not going to be secure, not by a long shot.
Most people in Canada are not technically sophisticated on the operation of a cellular phone. They do not realize that every phone call they make can be picked up by scanners, of which there are 900,000 in Canada. A lot of people are just interested in what other people say.
The reason we got away from the party line was because we did not want people listening in on our conversations. You did not know if your neighbour was telling people what he or she heard, but you knew that he or she did hear your conversations. It was an invasion of privacy. This is going to be much worse than a party line because everybody is going to be your neighbour, everybody, and you are not going to know it. Moreover, with the party line you could at least hear clicking at the other end so that you knew somebody was on the line. I know how to do it, yes. I have been on a party line, I have got this down pat. The point is that you at least had a little tip-off. But here there is no tip-off.
February 26, 1993
People are being led to believe that this legislation is going to protect them. It is almost a legislative entrapment to put this forward in its present state. I think we are going to have to really examine this and make some changes.
I want to quote what the minister said: "We found that the majority of Canadians feel they have less privacy today than they had a decade ago. There is a sense that personal privacy is under greater pressure today than used to be the case". I could not agree more.
He also said: "Briefly, the principles are as follows: Recognition: privacy is a right, respect it; informed choice: users must be aware of privacy implications and services they are offered. The truth is the cellular phone is not a telephone at all. Every conversation is a radio broadcast transmitted into the air on radio waves and is very public indeed". He is reiterating what he said at first reading, that these are not telephones, they are radios and we are utilizing the radio airwaves which are open to everyone.
It is a radio but it is not a radio because the government says it is not a radio. It is like saying February in Ottawa is summer and it is not cold. You cannot just by legislation make reasonable designations that are going to be helpful to the Canadian public. I think we have to look at the reality and that is this is not going to work.
The minister also said: "I have asked my department to work on a media campaign which will help to transmit our message". I have a problem here in that the message that the government wants to transmit is not the correct message. It is going to say that you are not allowed to listen to a person's conversation and if you do, you can be charged both criminally and in civil court for unlimited damages. If you pass it along to somebody else you can be charged civilly for unlimited damages.
That is not the point. The real message here is that cellular phone conversations are not safe and nothing in this bill is going to make them safe. That is what Canadians need to know.
If it wants to pass on other messages, fine, that can be an ancillary message, a footnote or a matter of opinion,
but that is all it can be, a matter of opinion. We are not acting in the best interests of the Canadian public by spending millions of dollars to tell Canadians about their rights on cellular phone conversations which are not effective.
The minister then went on to say: "This brings me to the third critical element of our strategy which is prosecution. There is nothing particularly damaging about listening to someone else's conversations. However, when a third party uses that information or passes it to another party, irreparable damage can take place. Canadians need to have legislative tools to defend themselves against invasions of their privacy. Give them these tools. The Minister of Justice and I are proposing complementary amendments to the Criminal Code and the Radiocommunications Act. First of all these amendments will deem all encrypted radio based communications to be private and protected by the full strength of the law. Second, the proposed changes to the Criminal Code will prohibit malicious and profit-motivated interception of any radio-based telephone communication. Anyone who deliberately intercepts communications with the intention of harm or any other motive of securing a financial advantage should be subject to prosecution".
It is not satisfactory to tell people that they are going to be prosecuted for something that is not going to secure their rights in the first place. It is awfully difficult to tell somebody they violated a law when everybody else who wants to do it, or 90 per cent or 80 per cent of those who want to do it, are getting away with it. Because they blabbed, because they could not stand that no one knew that they had committed the first perfect crime and had to tell people, they are charged.
We may get some transgressors but we are not dealing with the problem. We have to ban the scanners. We have to garble the message somehow. You have to at least be able to know when someone is intercepting your call and you have to tell people that this means that communication is not safe, at least not yet.
This is a very unsettling portion of the legislation with which I have some problems.
February 26, 1993
We will accept it on second reading because we want it to go to a legislative committee. It is not a good fact basis for law. I hope the government will consider this even before the committee meets and give consideration to making changes. If not then certainly our priority in committee will be scrutinizing this very carefully.
Subtopic: CRIMINAL CODE
Sub-subtopic: MEASURE TO AMEND