Debates of Oct. 31st, 1997
House of Commons Hansard #25 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was decision.
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Don Valley East
David Collenette for the Minister of Justice and Attorney General of Canada
moved that Bill C-16, an act to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings), be read the second time and referred to a committee.
Eleni Bakopanos Parliamentary Secretary to Minister of Justice and Attorney General of Canada
Mr. Speaker, I am pleased to rise today in support of the motion to refer Bill C-16, the powers to enter dwellings to arrest act, to the justice committee for second reading of that bill in this House.
Bill C-16 will enable peace officers to enter dwellings for the purposes of arrest in a manner which conforms to constitutional requirements. The bill essentially creates a warrant scheme by which peace officers may obtain judicial authorization before entering a dwelling to arrest someone. The bill also sets out certain circumstances under which such warrants or authorizations are not required.
As we all know, on May 22, 1997, the Supreme Court of Canada rendered a decision which has a significant impact on the way police forces may exercise their power of arrest.
It is a matter of determining whether, under common law, an arrest can take place in a dwelling house with no prior judicial intervention. In the Queen v. Feeney decision, the five majority judges ruled that, because of the Canadian Charter of Rights and Freedoms, police forces must first secure a warrant for entry to carry out an arrest in a dwelling house.
Given that the Criminal Code does not specifically provide a mechanism for obtaining judicial authorization prior to entering a dwelling for the purpose of arrest, a majority of the Supreme Court of Canada in R. v. Feeney suggested that such a provision be read in pending the appropriate legislative changes. It is to that invitation that Parliament is asked to respond today.
I can assure you that the judicial uncertainty caused by the decision in the Feeney case was of great concern to law enforcement authorities across Canada. In fact, provinces and territories responded to this decision by proposing temporary and singularly different solutions to enable police forces to perform their duties as best they could while taking into account the new requirements of the Canadian charter.
As requested by the attorneys general of British Columbia, Alberta, Canada, Ontario and Quebec in the days following the decision in the Feeney case, the Supreme Court of Canada granted a stay of proceedings for six months from the date of the decision on application of the Feeney decision. Consequently, unless the stay is extended, any amendment to the Criminal Code should be made by November 1997 at the latest to prevent a legislative vacuum after that date.
The Minister of Justice is prepared to co-operate with the hon. members of this House, on both sides of the floor I might add, to meet the deadline set by the Supreme Court of Canada.
The Minister of Justice believes that Bill C-16 contains a system to obtain entry warrants which, on the one hand, is designed to serve the interests of those responsible for law enforcement by giving police forces the power to enter dwelling houses with or without an arrest warrant and, on the other hand, respects the privacy of individuals in their dwelling houses, as guaranteed under the charter.
Members of the public and law enforcement officials could argue that the bill does not go far enough by not giving police officers the same powers of entry and arrest they had before, I repeat before, the Feeney decision.
However, given that Feeney was decided on constitutional grounds, it would not be possible to restore the common law power to enter a dwelling to arrest. To put it plainly, the court has ruled that the privacy interests must be balanced against the interests of the state to arrest in a dwelling house and that balancing of interests must be done by a judge. If the legal framework is flexible enough, there should be a way to balance those competing interests without jeopardizing the safety of Canadians. Bill C-16 does just that.
At the other end of the spectrum, some people would argue that the supreme court has suggested that in all cases the police would have to obtain an arrest warrant which would be accompanied by an authorization to enter the dwelling. From this perspective the police would have to formally charge someone before obtaining an authorization to enter. We do not think that this is needed in order to satisfy the constitutional requirements imposed by the supreme court.
What is constitutionally mandated is that an impartial arbitrator decide whether the entry on private premises should be permitted in order to effect an arrest.
In the view of the Minister of Justice, requiring that someone be charged before a warrant for entry can be issued would result in a rigid and ineffective warrant scheme which would frustrate the proper administration of justice in this country.
The Minister of Justice believes the legislation strikes a proper balance. Under the bill, the police could obtain the judicial authorization to enter a dwelling to arrest a person, without having to formally charge this person.
In other words, the bill will afford the police as much flexibility as possible, given the limits imposed by the charter.
In fact the bill is the product of extensive consultations with interested parties such as the provincial attorneys general, the RCMP, the Canadian Association of Chiefs of Police, the Canadian Association of Police and the Canadian Bar Association.
The legislation contains a realistic compromise between positions that either lack necessary flexibility or are constitutionally flawed.
I would like to take this opportunity to review the different features of this legislation.
The bill primarily seeks to provide a legislative system under which the police can request the judicial authorization to enter dwellings to make an arrest. The system provides that such an authorization is required in the three situations listed below.
First, when an arrest warrant has already been issued, a police officer can request a warrant to enter a dwelling to make an arrest.
Second, when no arrest warrant has been issued, a police officer can request a warrant to enter a dwelling to make an arrest, provided he has convinced a judge or a justice of the peace that there are grounds to make an arrest without a warrant, as provided under section 495 of the Criminal Code.
Third, if a police officer is requesting a warrant for the arrest of a specific person, he can, at the same time, ask the judge or the justice of the peace to authorize, in the warrant, the police to enter a dwelling, particularly if the officer believes the person for whom the warrant is issued is in that dwelling or will be found in it. The authorization will be granted if, when the arrest warrant is later executed, the police officer has reasonable grounds to believe that the person for whom the warrant is issued is in that dwelling.
The bill also addresses exigent circumstances as an exception to the need for an authorization to enter. It is not always possible for the police to obtain a judicial authorization prior to entering a dwelling for the purposes of arrest or apprehension.
In Feeney, the majority of the Supreme Court of Canada acknowledged this fact and reaffirmed the common law power of entry in situations of hot pursuit.
Given that the court clearly recognized that hot pursuit is an exception to the requirement that there be a warrant for entry, this legislation does not address this issue which has been dealt with conclusively by the Supreme Court of Canada. The question of what other situations would justify an exemption from the requirement of prior judicial authorization was left open by the supreme court.
This legislation, therefore, contains an non-exhaustive definition of certain exigent circumstances under which entry into a dwelling for the purposes of arrest or apprehension would be allowed in the absence of prior judicial authorization.
The Minister of Justice believes it is important that parliament expresses itself on what exigent circumstances would justify the state entering a dwelling house without a warrant for entry to effect an arrest.
Entry would be expressly allowed in the absence of a warrant where the police have reasonable grounds to suspect that entry into the dwelling is necessary to prevent imminent bodily harm or death. The integrity of a human being is a value sufficiently important that the state can intervene without getting prior judicial authorization to enter.
Entry would likewise be expressly allowed where the police have reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling and where that entry is necessary to prevent the imminent destruction of such evidence. We stress it is evidence that will be destroyed, not merely information or intelligence to which the state would like to have access, if the arrest is not effected before a warrant of entry can be obtained.
The legislation also contains provisions concerning consequential amendments. In particular it contains a proposal to amend the Interpretation Act to extend the scheme set out in the Criminal Code to arrests or apprehensions made pursuant to other federal statutes. This is needed because the Feeney decision is concerned with the balancing of interests in cases of arrests in dwelling houses which extends well beyond the application of the Criminal Code.
Other federal legislation provides for arrests on the basis of warrants issued pursuant to the particular legislation. There is a need to remedy the problem caused by the Feeney decision of the supreme court. The proposed amendment to the Interpretation Act extends the Criminal Code regime to these statutes.
Finally, the legislation includes a preamble which states its purpose, and which clearly establishes that the bill is not meant to limit the power to enter granted to police under other acts or under common law.
Given the constitutional limitations set out in Feeney and in other Supreme Court of Canada decisions concerning privacy rights, the Minister of Justice believes the legislation represents a way of ensuring that the appropriate balancing of interests can take place without jeopardizing the safety of Canadians and the proper administration of justice.
The bill creates tools that will enhance the privacy rights of Canadians while providing law enforcement officers with the kind of flexibility needed to do their difficult task.
In closing, the Minister of Justice encourages all hon. members of the House to support the bill. I look forward to working with hon. members to make sure we meet the deadline the supreme court has set.
Jack Ramsay Crowfoot, AB
Mr. Speaker, in my opinion the justice minister should have intervened with the Supreme Court of Canada to request a suspension of the decision or the application of the decision. The justice minister should have asked for a reasonable suspension in terms of time so we would not have to ram the bill through and we would be able to call witnesses from both sides of the equation and fully flesh out all aspects of the bill.
It has been a trademark of the justice department to bring in bills against a deadline that has denied members of the House an opportunity to fully express their views and concerns on such bills, to have witnesses appear before the standing committee, to determine the constitutionality of all aspects of the bill, and to satisfy members on both sides that the bill would do what the government and the people of the country want.
At the beginning of debate on Bill C-16 I point out that it is unfortunate our new justice minister seems to be following in the footsteps of the former justice minister when it comes to bills such as Bill C-45 that was brought in against a deadline. We on this side certainly remember that had Bill C-45 been brought in on time it may have stopped the likes of Olson from getting his full court press before a judge and jury.
It was brought in against a deadline, exactly as this bill is being brought in against a deadline. We have to hurry it through to meet the deadline of the November 22. Otherwise, as the officials who briefed the news media and ourselves yesterday pointed out, it could cause very serious concerns and an extension. That cost would have to be requested from the Supreme Court of Canada.
I point to the approach and the modus operandi the government is using which are unsuitable to the parliamentary system. We ought to have an unrushed opportunity to examine the bill carefully. I am hoping we will have time to do so and that the bill will reach the other place in time for the deadline.
I repeat that it should have been the justice minister and not the attorney general from British Columbia that intervened with the Supreme Court of Canada requesting the suspension. Why not make it 8 months or 10 months? Why not make it sufficiently long enough so that we would have the time to express our concerns and examine the bill carefully?
We support the bill but we decry the supreme court decision which made the bill necessary. The Feeney decision undermines the traditional powers of the police. The bill is designed to deal with a decision that undermines the traditional tools and powers of the police to investigate crime, bring perpetrators of crime into the courts and to justice, and thereby create and maintain the safety of society.
Now let us look at the Feeney decision. It is an horrendous decision when it comes to the impact it has had upon law enforcement. What happened? An 84 year old man was beaten to death. At the scene of the crime the police officer found blood spattered all over the place and had reason to believe that blood would be on the assailant. What did he do? In his investigation he approached the residence of Mr. Feeney, knocked on the door and there was no answer. He opened the door, did not kick it in, and found Mr. Finny lying on the bed, his shirt covered in blood.
Judge Sopinka, speaking and writing on behalf of the majority, said that it was an unlawful entry, an unlawful arrest and therefore all evidence gathered as a result was not admissible in court.
What did that mean? That decision of the five Canadians sitting in the Supreme Court of Canada, according to the legal opinions we have heard, will allow the man to walk free.
What does this say to the people of Canada with regard to their faith in our courts and our justice system? What does it say to the people who live in that community? What are they saying and how do they feel about the decision rendered by five people sitting in judgment who are there to protect the rights and safety of society?
We always look for a reasonable balance. I noticed that in the supreme court decision article 1 of the Constitution, the override clause, was not used. It was not even mentioned. I wonder why. In the decision the majority said that in general Mr. Feeney's privacy interest in the dwelling house outweighs the interest of the police.
What does “outweighs the interest of the police” mean? What interests do the police have if not our interest and the interest of society? It is the interest of the police but it means the interest of the safety of society. What are the jobs, sworn duties and responsibilities of the police? They are to protect society. How? It is by gathering evidence sufficient to warrant an arrest for a full and fair hearing before a court of competent jurisdiction.
When the majority in this case says that in general Mr. Feeney's privacy interest in his dwelling house outweighs the interests of the police, it is really saying it outweighs the interests of society.
What is the interest of society in a case like this? According to the Supreme Court of Canada what do the police do if they knock on the door and there is no answer? They spend hours surrounding the place like they did in the Kitimat case after this decision, and five hours later when the warrant to enter finally arrives they find that the suspect has gone. This is what the bill attempts to deal with.
That decision means the police may now have to obtain a warrant to enter, a warrant to arrest in certain circumstances and a warrant to search. If the police have a warrant to enter but not to search, they can gather whatever evidence is obvious before them, but they cannot search the attic, the basement or the rooms beyond their vision. They can only gather the evidence that is obvious before them. They will have to go through this rigmarole.
In the bill is the authority for telewarrants. What is a telewarrant? A police officer phones a justice of the peace or a judge in the middle of the night and says “I am Constable Joe Blow and I need a warrant. Here are the facts”. Given the attitude of supreme court expressed in this decision, will a telewarrant system stand a charter challenge? Not a hope.
I am speaking in the best interest of the safety of society. Should we not consider that article 1 of the charter, which states that the rights of the individual can be overridden if the interest of society is an overriding concern, should be applied and can be applied? Are we to ignore that? I saw no mention in the decision of the supreme court of the override clause. Perhaps for some reason or other the supreme court considered it was not applicable.
Let us take a look at the dissenting opinion that was written by Madam L'Heureux-Dubé. What did she say? What did the supreme court judges say? They said the entry was legal. They said the arrest was legal. They said the gathering of all the evidence was legal.
Had one more justice agreed we would not be here today and we would not need this bill. The common law tools and powers of peace officers prior to the Feeney decision would still be in force. The police would have the tools to move as quickly and as expeditiously as possible to protect society against someone who brutally murdered an 84 year old man.
Yes, we will support this bill. We want to hear witnesses. We want to understand the fullness of the bill. The main thrust of the bill everyone will support. We have to do something to deal with the Feeney decision which was brought down by the Supreme Court of Canada.
However, when we examine bills there are always details that we want to ensure are included. We want to understand the bill so that all members from all parties can make recommendations and bring forward amendments which they think will strengthen it.
We must restore these tools for the police so that they can maintain safety within our society and deal with those who are a threat to society, particularly individuals like Mr. Feeney. This man was convicted of murdering an 84-year old man and he is on the loose. According to legal opinions he will continue to be on the loose because they are saying that the evidence gathered after the arrest is not admissible in court.
What does Madam Justice L'Heureux-Dubé say about it? It is very interesting what she said about the decision to deny the admissibility of that evidence, even though it is DNA evidence. She said that the police should be commended, not rebuked, for their actions. She said:
—perhaps it is time to recall that public respect and confidence in the justice system lies not only in protection against police abuse, but also in the system's capacity to uncover the truth and ensure that, at the end of the day, it is more likely than not that justice will have been done.
Let us ask that question. Let us apply that test to the Feeney case. What have we got?
We have evidence cast out which conclusively in the lower courts convicted Feeney for the murder of an 84-year old senior citizen.
I stand with Madam Justice L'Heureux-Dubé. She is expressing the common sense of the vast majority of Canadians.
When that police officer entered the trailer, what did he do that hurt anyone? What did he do that was not an act in the defence of the safety of society? What did he do that was outrageous in the discharge of his duties and responsibilities to protect the community in which he lived and served? What did he do? I do not see anything that he did which was horrendous or wrong or a deviation from normal police practices, established on the basis of common sense.
This bill was designed over the summer. It has been introduced too late. It may not meet the deadline.
In the bill there is not a definition of hot pursuit. They are saying that the police could have entered that place if they were in hot pursuit. What does that mean?
During the briefing yesterday, Stephen Bindman from the Ottawa Citizen asked more than once why is there not in this bill a definition of hot pursuit so that police officers would know where they stand. Why is it not in the Criminal Code? That is a fair question. It is not there.
What is the difference between hot pursuit and fresh pursuit? We do not know. The police do not know. Is there a precedent? Is there a legal precedent that will guide them? We do not know.
Inasmuch as we do not place it in the law, and we do not create legislation to explain what hot pursuit and fresh pursuit mean, we are leaving it up to the courts to decide. The Supreme Court of Canada will have to decide what hot pursuit is.
There is case law that deals with hot pursuit, but why not put it in the Criminal Code? Why not legislate it so that we are telling the courts what we the people believe hot pursuit and fresh pursuit mean? What we the people want is police officers to have the tools to protect us from people like Mr. Feeney and others who will attack people, commit assaults, murders, rapes and so on.
This decision of the Supreme Court of Canada has reduced the safety of society by placing a greater burden on our police officers.
The bill attempts to get around that or at least provides a legal avenue to continue to allow police officers to enter dwellings but not without another burden on them. They are going to have to wait in order to get a search warrant unless there is hot pursuit.
They may have to get a warrant to arrest as well as to enter the premises. As I indicated earlier, if they want to search the entire building they may have to get a third warrant to do that very thing.
This may all sound well, fine and nice in an ivory tower but what about these remote conditions as in northern B. C. where this incident took place? What about some of these other areas where tele-warrants are impossible? What about that?
We are going to support this bill but we want it fleshed out. We want hear people from both sides, those who oppose the opinion and the decision of the supreme court that brought about the bill. We want to hear those who support it. We want to understand as much as possible whether this bill truly strikes a balance that the decision on the Feeney case by the Supreme Court of Canada has demanded.
Those are some of my concerns. Those are some of my thoughts. I guess that my greatest concern is that we in this House should not pass legislation that leaves interpretation open to the courts. We should be telling the courts what we want done by the legislation that we pass and it should not be open ended. If it is open ended we are going to be back over and over again to deal with this kind of situation where the Supreme Court of Canada decides. Instead of the elected representatives of the people acting in the best interest of the people we are going to have the courts deciding really what is the law.
We are hearing it over and over again and we heard it yesterday during the briefing that it is not the elected representatives of the people who are making the law. It is nine unelected people in the Supreme Court of Canada who are doing that for us. The warning was clear yesterday that we must stand on guard over this particular issue.
I point out that during July of this year an Angus Reid poll indicated that over 50% of Canadians have little faith in our courts, not in just our justice system. I could understand if they said it about the overall justice system. We know how they feel about the YOA, the faint hope clause and all these ridiculous situations that have been created by our law and our justice system. I could understand if the majority had lost faith in just the justice system but that is not the case in this poll. They have lost faith in our courts.
What does that mean? They have lost faith in the decisions being made by our judges. This is the question that went through my mind as soon as I read the Feeney case. Does the decision by the Supreme Court of Canada enhance or reduce the faith the people of Canada have in our courts and in our justice system?
I know what the answer would be if we go back to the scene of the crime and ask the neighbours of the victim of Mr. Feeney what they think this decision has done in terms of enhancing or reducing their faith in our court system and in the decisions our judges are making.
This is a very troubling matter and it lies at the heart of this whole bill and the decisions made by the Supreme Court of Canada.
If we read the decisions and the case law from the Supreme Court of Canada with regard to the absolute need to ensure that all that can be done is done to maintain the faith and the trust of Canadians in our courts and our judicial system, we will see why there is need for alarm and concern. These kinds of decisions make it more difficult for the police to protect us, our families and our children.
We have no alternative but to support this bill and to fight to restore the powers and the tools which the police lost to a certain extent. To a large extent the old common law tools that they had are gone. Why? The Supreme Court of Canada says in general the individual's privacy, Mr. Feeney's privacy interest in his dwelling house outweighs the interest of the police, the interest of society, the safety of society. That is why we are here debating this bill.
The government will receive support from members from all parties for this bill. I suggest that all members better stand on guard to protect the balance that we need between the right of the individual and the right of members of society to adequate police protection, protection from the courts and protection from the administration of our justice system.
This is the alarm bell which is ringing. We had better be very careful in the way in which we design our laws so that we are telling the courts what we want done on behalf of the Canadian people and not have the courts do that for us.
We leave opened ended things like hot pursuit. This is what Stephen Bindman was talking about. Why leave it in doubt? Why do we not tell the courts what we think on behalf of the Canadian people what hot pursuit means? Where do fresh and hot pursuit begin and end? Is it fresh pursuit? Is it hotter than hot pursuit or is it the other way around? We do not know. Do the police know? They should be able to open the Criminal Code and see their authority. But they do not have that.
There are some areas in the bill on which we will be asking not only the justice officials to give us their opinion but also some of the witnesses who are players on both sides of the issue in courts of law.
I conclude my remarks by reiterating that I am of the sincere opinion that it is unfortunate that this bill had to be brought forward in the first place. I stand with Madam L'Heureux-Dubé in supporting our police officers in their need for reasonable tools to do their job.
Richard Marceau Charlesbourg, QC
Mr. Speaker, I would like to start by saying that I am happy to hear my colleague from the Reform Party say that when there are vital issues a society must address, the decisions must be made by the democratically elected representatives of the people, and not by nine unelected individuals. I felt I have to point out this little fact.
We are discussing something that is very important, and that is the balance between, on the one hand, the authority of the state, in this case the powers that a society gives its police officers, and, on the other hand, the rights and freedoms of individuals.
I must say that I am somewhat disappointed that the government took so much time to introduce this bill, because the Supreme Court has set a deadline, which is November 22. When we are discussing such an important issue as the balance between individual rights and freedoms and the powers of the state, it seems to me that we should be doing so in a calm, collected, and comprehensive manner.
What is important here, and what the bill is trying to do—I will come back to this later—is to clarify the rules for police officers. Yesterday, a highly skilled crown attorney told me that this Supreme Court judgment, the Feeney case, had the effect of tying the hands of police officers because they no longer knew the rules governing their powers. The bill attempts to clarify these rules.
I wish to highlight the issues involved in this bill. The bill proposed by the Minister of Justice deals with an important value in our present society: respect for privacy. In fact, as the Supreme Court pointed out, arrests made in private dwellings must be carried out with respect for individual rights, and especially the right to be secure against unreasonable search or seizure, which is protected under section 8 of the Charter of Rights and Freedoms.
The importance of the right to privacy and to protection of one's property is neither new nor unique. In fact, a British ruling in common law, which forms the basis of our criminal law dating back to 1604, almost 400 years ago, describes the importance of the right to privacy in the following manner: “A man's home is his castle”. The protection of privacy in our society dates back more than 400 years.
In this same judgment, called the Semayne case, a limit is imposed however on the concept of inviolable castles. In other words, it is not because an individual is in a house that the power of the state stops at the door. It goes on to say: “In all cases where the King is involved, the Sheriff can, if the doors are not open, use force to gain entry into the house in order to arrest the person or to execute the King's judicial instrument.”
So, even in those days, society recognized that an individual's rights and freedoms with respect to privacy could be curtailed when the public interest and safety demanded it. It therefore comes down to a question of balance, as I said in my introduction.
But if the state can give itself the authority to act in the sphere of individuals' private affairs, the intrusion must respect the rules laid down by law, whether that law be the common law, statutes or the charter. These standards were analyzed by the supreme court in the well known Feeney decision, which I will now look at.
What were the facts in this case? First of all, Mr. Feeney was suspected of murdering one Frank Boyle. After collecting evidence, the police went to Feeney's dwelling, knocked on the door and said “Police, open up”. There was no response. The police therefore entered Feeney's dwelling, went over to him and touched him to wake him up. Feeney was thus arrested without a warrant and evidence was seized. He was tried and found guilty of second degree murder. He appealed on the grounds of violation of section 8 of the charter, the section against unreasonable search or seizure, and section 10 which provides for the right to counsel.
What were the applicable laws? First of all, there was the common law, on which our criminal law is based. This is an issue with which our courts were already familiar. There was the Eccles case in 1975, which dealt with the right to make an arrest in a dwelling following forcible entry.
The supreme court at the time ruled as follows “Entry can be made against the will of the householder only if ( a ) there are reasonable and probable grounds for the belief that the person sought is within the premises and ( b ) proper announcement is made prior to entry”. This is the basic test in Canada, the first truly important ruling by the supreme court on this issue.
Then, eleven years later, in 1986, came the Landry case. The supreme court stipulated that the police may enter a dwelling without permission to make an arrest without a warrant if the conditions of Eccles and section 495 of the Criminal Code are met. That section reads as follows “A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence—” That is what is called the objective criterion because what is stated is that there are reasonable grounds to believe. That is subjective.
In 1990, the supreme court came up with a more objective criterion and added a final condition. In order for an arrest without warrant to be legal, there must be reasonable and probable grounds to make that arrest. No longer is it just “reasonable grounds to believe”, what the police officer himself or herself thinks, but a reasonable person looking calmly at the situation would also have to agree to. There are, therefore, two criteria: subjective and objective.
If we include the criteria in jurisprudence, we could summarize the rules of common law as follows. An arrest without warrant made after forced entry of private property is legal under common law if: (a) the police officer making the arrest has grounds to believe that the person sought is indeed present there; (b) a standard statement is made; (c) the police officer believes he or she has reasonable grounds for making the arrest; and (d) there are reasonable and probable grounds to make the arrest—the objective criterion.
There is not just common law, however. Now we have the charter of rights and freedoms. The right to privacy has become very important in Canada since the arrival of the charter. As I said earlier, section 8 is now enshrined in the Constitution through the charter. Legislation cannot therefore infringe this section in the same way as the protection offered by common law.
In Hunter, 1984, the supreme court decided that searches and seizures were permitted only with authorization, that is, a warrant, from an independent legal body, which had considered the reasonable grounds of the projected search or seizure.
If we look at the criteria in Hunter and the other cases relating to section 8 of the charter, we conclude the following. Under section 8 of the charter, searches conducted without warrant in areas where the occupant has a reasonable expectation of privacy are unreasonable. The party conducting the search must prove that it is reasonable. A reasonable search must meet the following conditions: (a) it must be permitted under the law; (b) the law must not unreasonable of itself and (c) it must be conducted in a reasonable manner.
The arrest in this particular case was illegal, because the conditions for making an arrest without warrant under section 495 of the Criminal Code were not met and because the police can make arrests without warrant in a private home only in exceptional circumstances.
What did the court say in Feeney at the time? “The police did not subjectively believe that there were reasonable and probable grounds for arresting the appellant before making forcible entry, without a warrant, into the house where he was sleeping. Besides the effect of the charter on the conditions required for arrest without a warrant in a residence, the absence of subjective belief in the existence of reasonable grounds indicated that the police could not have arrested the appellant legally under section 495 of the Criminal Code even if he had been in a public place”.
What effect did this have? It came as a bombshell as I said earlier. Police officers said “Wait a minute, what are we supposed to do now?” The government decided to introduce this bill to clarify the rules and help police officers do their work, which, let us not forget, is essential in our society.
Bill C-16 essentially introduces three changes. First, to enable peace officers to obtain judicial authorization to enter dwelling houses, and this follows on the heels, so to speak, of the jurisprudence in Hunter and Feeney. Second, to enable peace officers to enter dwelling houses without prior authorization in exigent circumstances and where provincial or federal legislation or common law authorize entry. Third, to amend the Interpretation Act.
The key clause of the bill states that a warrant to arrest or apprehend will authorize entry in a dwelling house by a peace officer if the judge or justice is satisfied that there are reasonable grounds to believe that the person named in the warrant for arrest is present in the dwelling house. This is the subjective criterion. The peace officer can execute the warrant only if he himself has grounds to believe that the persone to be apprehended is there.
Section 529.1 enables a judge or justice to issue a warrant to enter a dwelling house described in the warrant—note that it must be the dwelling house described—to carry out an arrest with or without an arrest warrant.
However, there are exigent circumstances, as mentioned by other members. When time is of the essence, it is not possible to go and to get a warrant.
Clause 529.3 of the bill allows a peace officer to enter a dwelling house without a warrant, if the conditions under section 529 or 529.1 exist, that is if he has reasonable grounds to do so, and if, by reason of exigent circumstances, it is necessary to do so. An attempt is made to define “exigent circumstances”:
a) reasonable grounds to suspect—”
—that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person. Exigent circumstances also include circumstances in which there are reasonable grounds to believe—
—that evidence is present and that entry is necessary to prevent the imminent destruction of that evidence.
These are the exigent circumstances, as defined in the bill.
Clause 529.4 of Bill C-16 deals with the issue of omitting to make a prior announcement of the entry. In the Feeney case, the supreme court stated that a peace officer was required to announce himself before entering a dwelling-house. However, the Supreme Court also pointed out in the Eccles case that this obligation could be waived in case of an emergency. This is the case of battering a door down.
It could be argued that the exceptions listed in clause 529 reflect the case law. It is the case with regard to battering a door down.
I will stop here for now, because the House will now proceed to statements by members. I will resume after oral question period. Mr. Speaker, you may proceed, and I will resume later on.
The Acting Speaker (Mr. McClelland)
The hon. member will have approximately 25 minutes remaining. As it is now 11 o'clock, we will now proceed to statements by members.
Canadian Wildlife Service
Statements By Members
Paul Steckle Huron—Bruce, ON
Mr. Speaker, November 1, 1997 marks the 50th anniversary of the Canadian Wildlife Service of Environment Canada.
The Canadian Wildlife Service, together with its many partners, plays a key role in conserving Canada's natural heritage. Its 50-year history includes numerous achievements such as the research into the effects of toxic chemicals in the Great Lakes that led to Canada's DDT ban; the implementation of the North American waterfowl and management plan, a model for habitat conservation with projects across the continent that have brought millions of hectares under protection; and the national wildlife areas and migratory bird sanctuaries that protect over 11 million hectares of land. The list of achievements goes on.
The Canadian Wildlife Service helps to protect a resource for which Canadians care deeply. Images of Canada's diverse varieties of wildlife adorn our flags and our currency. These symbols are recognized around the world, as is the Canadian Wildlife Service. For the past half century the Canadian Wildlife Service has worked to protect Canada's natural legacy for future generations.
I salute these men and women who have been and continue to be pioneers in Canadian wildlife conservation.
Statements By Members
Peter Goldring Edmonton East, AB
“Lest we forget”. Mr. Speaker, on November 11 these words will echo throughout this land as we respectfully recognize our veterans and war dead.
Sadly, during the rest of the year some do forget. But not the Maple Grove Memorial Club in Yarmouth, Nova Scotia. This club encourages students to respect and learn about our veterans' great sacrifices for Canada. These extraordinary young Canadians attend parades, visit veterans in hospitals and seniors' homes and promote national unity.
Next week is veterans week. I proudly salute Canada's war veterans but I also give honourable mention to the Maple Grove Memorial Club and teacher, Joe Bishara. They have not forgotten.
Statements By Members
Reg Alcock Winnipeg South, MB
Mr. Speaker, I rise today to congratulate the minister for government works on his announcement yesterday that a new plating facility will be built in Winnipeg adjacent to the Mint.
This $30 million project will create between 100 and 130 construction jobs and 30 permanent jobs as the Mint brings online a process which they have invented and patented for plating coins. This allows the Mint to be more competitive around the world and will save some $9.5 million a year in annual operating costs.
It is a win for Winnipeg. It is a win for the Mint. It is a win for Canada. I thank the minister for his hard work in bringing this project to completion.
Clerics Of St. Viateur And Sisters Of The Holy Cross
Statements By Members
Maurice Dumas Argenteuil—Papineau, QC
Mr. Speaker, this year marks the 150th anniversary of the arrival in Quebec of two religious communities from France, the Clerics of St. Viateur and the Sisters of the Holy Cross.
To speak of the Clerics of St. Viateur is to speak of their schools and colleges in Quebec and in Canada: Saint-Nicolas d'Ahuntsic, Rigaud, Joliette, Berthierville, Matane, Roberval and Lachute in Quebec; Embrun in Ontario; Otterburn and Saint-Pierre-Joly in Manitoba, and the list goes on. It is to speak of Father Georges Lindsay, director and founder of the famous summer festival in Lanaudière; of Léo Bonneville, my old teacher, and director and founder of the movie magazine Séquence .
The Sisters of the Holy Cross set up their first congregation in Ville-Saint-Laurent. They provided instruction at all levels, particularly to young girls in the Collège classique Basile-Moreau.
In my riding, they taught at Lachute, Brownsburg, Sainte-Scholastique, Saint-Augustin and Saint-Hermas. I pay tribute today to these educational pioneers, and to my former teachers.
Statements By Members
Mark Assad Gatineau, QC
Mr. Speaker, at the beginning of the week, the Minister of Citizenship and Immigration published her immigration plan for the year 1998.
Entitled “A Stronger Canada”, this document calls for an increase in immigration levels for the coming years, showing that Canada is a friendly nation and proud of the contribution of the cultural communities seeking to settle here.
We must welcome the efforts of the Canadian government which is providing in this way for an important contribution to the future of our country. There is no doubt that the interests of the whole Canadian population are well represented through such a generous and appropriate policy at this time in Canadian history.
Statements By Members
Mac Harb Ottawa Centre, ON
Mr. Speaker, October marks the first ever national environmental illness month. This month has been dedicated to raising awareness of illness caused by environmental factors.
Over 15% of Canadians are affected by disorders related to the environment. Illnesses such as as allergies, asthma, migraines and some childhood behaviour disorders have all been linked to environmental factors. Low cost, effective remedies exist. Through education, treatment and prevention these illnesses can be eliminated.
The Environmental Illness Society of Canada and its president Judith Spence have worked tirelessly to educate Canadians on the factors related to this acquired illness.
It is everyone's right to be healthy. The connection between health and the environment should not go unrecognized.
I applaud the efforts of the Environmental Illness Society of Canada and I commend it for its commitment to bringing this important health issue to light.
And The Winner Is—
Statements By Members
Chuck Strahl Fraser Valley, BC
Mr. Speaker, the leadership horse race is about to begin.
And they're off.
The Minister of Finance takes an early lead with aggressive posturing on all fronts, followed by the Minister of Health, the Marlboro man, close behind.
Sluggish out of the gate is the Minister of Canadian Heritage, obviously hampered by her unproductive habit of trying to run while busily wrapping herself in the flag.
As they near the first turn it is still the finance minister out in front, starting to labour now under his heavy-handed handling of the pension issue, while the Marlboro man has fallen way back in the pack, taking far too much time plastering cigarette ads all over his saddle bags.
The Minister of Canadian Heritage is struggling with the government hope chest, starting to fade as she pauses to increase government grants in all directions.
As they enter the backstretch the Minister of Finance is going to the whip, thrashing his pension pony about the head and ears. The youngsters in the crowd are starting to boo loudly and the minister has lost his concentration, failing to steer his portfolio with the same steady hand he was once famous for.
The minister of heritage has dropped completely out of sight, busily looking for ways to explain to pilots that closing down airports is a good way to improve safety.
The Marlboro man has seen his leadership chances go up in smoke.
The horse race is not even over, but the Canadian taxpayers know that in this race nobody gets a payout.
Statements By Members
Carolyn Parrish Mississauga Centre, ON
Mr. Speaker, the Bank of Montreal, the Royal Bank and the National Bank, three of Canada's largest financial institutions, deserve public recognition for a job well done. They have increased the numbers of loans granted to small and medium size businesses to fully one-third of all loans granted in the last quarter.
As we know, small business loans have traditionally been the most difficult to acquire. Banks have always considered small businesses extremely high risk. In the past, up to 80% of small businesses have failed in their first five years of operation. Consequently, established banks prefer the safe investment of large business. Small businesses, however, account for our most rapidly growing employment sector.
A 1995 industry committee report encouraged all banks to reach the one-third ratio for lending to small businesses.
Congratulations to Montreal, Royal and the National Bank of Canada. They are willing to do the paperwork and the in depth investigation required to safely invest in exciting new small businesses all over the country.
Statements By Members
Maurice Godin Châteauguay, QC
Mr. Speaker, I wish to rise today to inform this House of the creation of a new line designated 1-976-CATASTROPHE.
With the support of impartial and non-partisan organizations such as the Quebec Committee of Canada, this new parapsychic counselling service is designed for people who want further information on delirium anti-separatum, the equivalent in Canadian political circles of the mad cow disease in Great Britain.
Featured this week are the predictions of our funky astrologists Michel Demers and Marcel Côté, who state that the rest of Canada is so bent on suicide and is so undemocratic that it wants to force Quebec to declare its sovereignty unilaterally, whereas everyone knows that common sense will lead to a mutually beneficial partnership agreement.
Next week on the 1-976-CATASTROPHE line, you will learn that after a yes for the sovereignty of Quebec, federalists will prevent the earth from turning and the sun from shining on Quebec.
Canadian Bushplane Heritage Centre
Statements By Members
Carmen Provenzano Sault Ste. Marie, ON
Mr. Speaker, I rise to pay tribute to a world class heritage facility in my riding of Sault Ste. Marie. The Canadian Bushplane Heritage Centre, located along the picturesque St. Mary's River, is a one of a kind museum that preserves this country's colourful bush-piloting tradition.
The centre's most recent project is restoring three antique bushplanes in an effort to recreate the golden age of bush piloting.
Under the capable direction of President Ken Lajambe, a dedicated team of staff and volunteers operates the museum to the delight of thousands of visitors each year. In fact, one well known newspaper columnist has named it the best museum in Canada.
I invite all members and those watching these proceedings to make Sault Ste. Marie and the Canadian Bushplane Heritage Centre a must stop on their next trip to northern Ontario.