moved that Bill C-245, an act to amend the Criminal Code (search and seizure without warrant) be read the second time and referred to a committee.
Madam Speaker, I am delighted to speak on my private member's bill, Bill C-245, which is an act to amend the criminal code regarding search and seizure without warrant. The act is directed specifically at the Firearms Act, the part of the criminal code that was implemented with the passing of Bill C-68, the infamous gun bill.
First, what I will do in my presentation is talk a little about what the bill does, why it is here, why I think it is very important and why a lot of people in my constituency and across the country feel it is important.
Second, I will talk about my specific concerns with the part of the criminal code which allows search and seizure without warrant and what I propose we should do about it.
Third, I will look at one or two cases, as time will allow, and work through them. One is a very recent case of a newspaper reporting an incident where a gentleman, actually a neighbour of mine on the farm where I was raised, had his house broken into, and what led up to that. That demonstrates probably better than any other way what some of the problems with the current act are.
That is what I will do with my presentation. I am looking forward to getting into this issue.
First, Bill C-245 deals with Part III of the criminal code as enacted by section 139 of the Firearms Act. It was implemented with the passing of Bill C-68 several years ago. The purpose is to remove the power in subsection 117.04(2) to search and seize without a warrant in cases where no offence has been committed.
I encourage people listening to the debate on the bill to look at this. It deals with search and seizure without a warrant in cases where no offence has been committed or is suspected to have been committed. It is really important to know that.
My bill, if passed, would end the unusual search and seizure provisions as put forth by Bill C-68 and bring them more in line with search and seizures in the rest of the criminal code. This is something for which Canadians have been asking, especially gun owners and those who understand that the whole so-called issue of the gun bill really goes way beyond guns. It speaks to our civil liberties, and constitutional implications are involved. I will get to some of those later.
The second part of the bill also makes provision for the restitution for unnecessary loss or damage in a case where a search has taken place. The way it is worded it takes into account whether the loss or damage was reasonably necessary in light of the evidence collected and in light of the behaviour of the person or persons on the premises. I am not saying there is no reason to cause damage in the case of a search process. I want this to be very reasonable.
What I am saying in my bill is that in cases where it is demonstrated that the damage done was unreasonable and unnecessary there would be restitution for the damage done. I think that will cause police officers to be very cautious in their search process, as well as peace officers, because of course under this act it does not even have to be police officers that break into a house without a warrant. It can be any peace officer, which broadens it considerably. That is what I am asking for in the second part of the bill. I would add a section which would ensure that if unnecessary damage is done there would be restitution. That in a nutshell is what the bill is about.
In regard to my concerns, subsection 117.04(2) allows a peace officer to enter the premises to search for and to seize weapons without a warrant. Removal of this section means that a warrant must be obtained for search and seizure except in cases of fresh pursuit, so again I am not being unreasonable. I think most members would agree that this is completely reasonable in a case of fresh pursuit where the police officers strongly believe that there could be some danger to someone and they want to be able to continue the pursuit. Of course I think the court would determine whether it was reasonable. I trust that process. Certainly it would end the measure put in place under Bill C-68 which allows search and seizure without a warrant at all. That is what is of great concern to me.
Under section 8 of the charter it says that Canadians have the right “to be secure against unreasonable search and seizure”. That is in our constitution. Does that sound unreasonable to anyone here? I do not think so. I have some problems with the charter in a broad sense, but I, and I believe many Canadians, would not have a problem with saying that Canadians have the right to feel secure and be secure against unreasonable search and seizure.
I argue and many Canadians have argued very vigorously that the changes put in the criminal code as a result of the passage of Bill C-68, the so-called gun bill, really take away that right that is guaranteed under the charter. Whether the courts would or not I cannot say. However, I know many Canadians feel that it is a problem, a problem put in place with the passage of Bill C-68.
I would like to speak to the issue of compensation for unnecessary damage done. I may get to two examples, but I probably only have time for one. I will work through that example and talk about damage done to private property to a great degree in that case, damage which seems to be completely unnecessary and excessive and in my view unacceptable. When I get into the case I think that will be better understood.
The second part of the bill ensures that the damage and the confiscation of property without compensation violates a fundamental right of Canadian citizens, the right to own property. A problem we have as Canadians is that the right to own property is not enshrined in our constitution. Many thought that it should have been part of the charter. I certainly think it should be in our constitution. So far politicians have chosen not to put it there, but certainly common law and most Canadians would agree that we do have a right to own property in this country and that this right should be respected.
How could one argue that this right is being respected in cases where we have peace officers breaking into someone's house without a warrant and doing unnecessary damage to property or removing property unnecessarily? We are not talking about interfering in the actions of police officers where such actions are necessary. We are talking about unreasonable actions.
Bill C-245 adds a provision to the criminal code that enables a person to apply for restitution to the justice who issued the warrant, warrants being issued in all cases except those where there is fresh pursuit. In these cases they would have a right to apply to the justice for restitution of the property that has been the subject of entry and search under the authority of a warrant pursuant to the Firearms Act and if their property has been lost or damaged as a result of this entry and search.
The bill also adds that the justice will fix a date for a hearing on the matter. The justice will notify the applicant, the officer or officers involved and the officer who applied for the warrant as well as anyone else the justice sees fit to notify. After the hearing, the justice may order restitution to the person whose property has been damaged.
I ask members to think of the practical benefit of this. I have heard numerous complaints, as I am sure many of my colleagues have, about searches conducted by peace officers which have caused incredible damage, way beyond anything that makes sense.
Part of the reason for that is that police officers have become so frustrated because their hands are tied under laws which, quite frankly, have been protected by the government. They feel their hands are so tied that even if they get a case to court and have a lot of evidence, quite frequently the case is thrown out. They are frustrated by that. I have actually heard the thinking on this from some police officers, although I do not think it is justifiable. I think it is wrong, but the thinking on the part of police officers is that they know this person is a law breaker so they will make him pay in this way. They will do considerable damage in the search and that will be justice in itself. Any of us in the House would agree that is not proper and not right. I think this change would only give reasonable protection to that type of action.
In the bill there are exceptions to compensation. The bill does list several situations where compensation is not warranted. According to Bill C-245, no person is entitled to restitution for loss or damage resulting from entry or search “if the person is convicted of an offence on the basis of the evidence discovered during the search”. Even in this situation, the justice must conclude that the loss or damage was not excessive in light of the nature of the offence.
Second, if the applicant lost something he or she did not have the right to possess, then of course the applicant would not be compensated. For example, if someone had stolen some property, in this case guns, ammunition or other property that was discovered in the search, then of course the person should not be compensated for the loss of that property. It does cover that kind of thing. It also covers loss or damage if it was a result of the applicant and/or another person on the premises refusing to co-operate with the police officer. It recognizes that in cases where the occupants refuse to co-operate, there may be more damage done than there would be in another type of search. It covers that kind of thing.
With regard to the limits of restitution for loss or damage, Bill C-245 states that there are no limits to restitution for loss or damage if the damage was not necessary. That is only reasonable. Again, it goes to the very right to own property and to the expectation that police officers will conduct themselves properly in the case of a search.
It is recognized in the bill that speed in a search may be necessary because of the circumstances and the loss or damage may be reasonable where speed is necessary. There may be more damage in a case like that. The justice can also take into account the behaviour of the applicant and other persons during entry and search.
I will now go through a case. I will start by reading, if I may, a short article from the Edmonton Journal . I also have one from the Edmonton Sun . They are very short articles which will not take a lot of time to read. I will then go through them and talk about the case. This article is entitled “Machine guns, ammo found in Lloyd home”. This is an article from March 23. It says:
More than 100 firearms, including machine guns, and thousands of rounds of ammunition were seized during the search of a home about 20 kilometres southwest of Lloydminster on Wednesday.
“RCMP received a tip in February about the weapons, many of which were unlicensed and illegal”, said Const. Jason Simpson of the Kitscoty RCMP detachment.
A firearms expert is sorting through the prohibited and unregistered restricted weapons to make sure proper charges are laid. Simpson said the machine guns were found among a large quantity of hunting rifles.
The article goes on to say the man would not be named and that the police declined to give details about the suspect because of the small population. Of course everybody in the country knows who it is just as a result of this article.
There was a reference to more than 100 firearms. Immediately I can see the reaction: that there was no reason the guy would need 100 firearms and so of course he deserved what he got. However, he is a gun collector. He has been collecting guns for years. In regard to the machine guns and thousands of rounds of ammunition, people would think that there was no good reason for him to have them. All of the weapons could well have been legally obtained and may have been legal to own when he came into possession of the weapons. Since that time the laws have changed, making them illegal.
People would then argue that he should have registered them, that he should have done what was necessary. I will not argue that it is the law. However, the individual knew that if he had registered the weapons, if he had done what was proper, they would have been taken away from him without compensation. Consider how that could change how one would think about the situation. It is important to consider that.
I am being given the signal to wrap up, but I look forward to the opportunity to talk more about this at the end of the hour.