Debates of Feb. 14th, 1994

Income Tax Act

[Richard Bélisle, Bloc, La Prairie, QC]

Mr. Speaker, I want to thank the hon. member for his comment. Indeed, I was referring to GST revenue, which was something like $13 billion or $14 billion, give or take a billion or a billion and a half.

This tax brings in between $13 and $15 billion annually. This is more or less what I wanted to point out regarding Bill C-9, namely that the government should conduct cost benefit analyses or more in-depth studies before creating new taxes, and that it should also eliminate loopholes. I am not strictly referring to

tax loopholes, but also to all those exceptions which are made whenever a new levy or tax is implemented.

Of course, the government wants those taxes to be the least regressive possible. Reductions and exceptions are provided for the poorest individuals or households. In this case, I think you mentioned the figure of $17 billion for GST related credits to exporters, and 50 per cent of the GST for schools and hospitals. If you eliminate all that and add the cost of the administrative work done to collect the tax, you end up with $14.9 billion when, as you rightly pointed out, that tax initially brings in $29.5 billion. Therefore, once all the exceptions have been taken into account, the tax does not even bring in 50 per cent of what was originally expected. Indeed, we start with an amount of $30 billion and, once all those exceptions have been taken into account, we are left with $14.9 billion. And we are told that the previous federal tax, which did not have all these exceptions, used to bring in $18 billion.

So, all these efforts were made to create a new tax which, in the end, brings in $3 or $4 billion less in revenue. What I am saying is that before implementing a new tax measure or a new federal tax to replace the GST, some in-depth analyses and studies must be done to try to eliminate administrative costs to businesses.

This $14.9 billion which we are left with in the end does not even take into account the efforts made by businesses to collect the tax by using new accounting techniques and computer systems. We are told that the previous tax used to bring in $18 billion. However, the economy must be considered as a whole: if the government is not paying, then it is businesses, and the latter paid several billion to implement this tax; it is hard to figure out exactly how much, but it could be somewhere between $5 and $10 billion. So, in the end, we are maybe talking about $7 or $8 billion in revenue for the government. Indeed, there may be only $4 or $5 billion left in the end. So, all these efforts were made to replace a tax which used to bring in four or five times more in revenue. Consequently, we must really be careful and conduct more in-depth analyses before implementing a new tax.

[Dennis Mills, Liberal, Parliamentary Secretary to Minister of Industry]

Mr. Speaker, I would like to congratulate the member on his sensitivity to the cost benefit analysis of the GST. I also share his view that the GST has been a disaster, especially for the 1.9 million registrants, most of them small businesses. It costs them about $3,000 to $5,000 a year just to administer it, not counting the paper burden.

I want to deal with research and development. I know it is a sensitive issue with members from Her Majesty's Loyal Opposition. I want to recognize first that there is a little bit of a disadvantage on the pure dollars of research and development that do not go into the province of Quebec. The member quoted 50 per cent, but when analysing the research and development component the Ottawa region cannot be ignored. We had this discussion before.

The Ottawa region includes many research and development facilities in which many constituents from the province of Quebec participate. When one sees the amount of research and development that goes into the Ottawa region one will find that on a per capita basis we are a lot closer to a more reasonable share of the research and development dollars.

[Richard Bélisle, Bloc, La Prairie, QC]

Mr. Speaker, I listened with interest to the comment made by the hon. member to the effect that the figures may be distorted by the fact that a lot of investments in research and development are done in Ottawa and that, on a per capita basis, as he said, the gap between Ontario and Quebec would probably be much less significant. I do hope the hon. member is right and I will take another look at the figures. I want to point out though that instead of referring to Ottawa, it might be more accurate to say the national capital region, which also includes an important part of Hull, on the Quebec side.

[The Deputy Speaker]

We are back to debate now. I understand there are two people who wish to speak, the hon. member for Edmonton Southwest and the hon. member for Trois-Riviéres. There are no members to speak from the government side. By our principle of rotation we would go to the government side and then to the Reform Party so I think it would be fair for the hon. member for Edmonton Southwest to speak next.

[Ian McClelland, Reform, Edmonton Southwest, AB]

Mr. Speaker, I thank the House very much for the opportunity to participate in this debate. Through you, Mr. Speaker, I address my comments to the hon. parliamentary secretary to the Minister of Industry.

Earlier today, the hon. member was speaking about the need to raise capital for small business. We recognize that capital for small and large business is difficult to raise. I wonder if I could get his comments in two areas.

The first is the effective guarantees on the ability of small business to raise capital, specifically the use of joint and several guarantees. This has the effect of making whoever is signing a guarantee on behalf of a company with the deepest pockets to be the first the guarantor goes to in the event of default, even though there is the opportunity obviously in a guarantee position to limit guarantees. If there is one party to the guarantee with significantly deeper pockets that party is sometimes reluctant to

get involved in guaranteeing a small emerging business. That is one item I would ask the government to consider.

The other is the notion of extending the use of RRSPs beyond the traditional to the new and very effective use in home ownership. That would be under very strict controls, but consider the notion of extending the use of RRSP money and an arm's length transaction to supporting and providing capital for small and emerging private business as opposed to public companies.

There is quite a distinction between a company that needs to raise $1 million and one that needs to raise $10 million. If businesses were able to raise money under very strict conditions on an arm's length basis by using their RRSP or RRSP contributions that could be a very significant capital pool for the use in developing small business and emerging new technologies in Canada.

[The Deputy Speaker]

This is a switch. Normally it is the parliamentary secretary asking the questions which I think he will want to do now.

[Dennis Mills, Liberal, Parliamentary Secretary to Minister of Industry]

Mr. Speaker, we have often stated this is going to be a Parliament of reform. This is true reform today because we are changing the normal process.

Dealing with the joint and several guarantees, I share the member's view that right now when most financial institutions have a guarantor on the hook which has, to use the member's words, deep pockets, it tends to be the victim if there is default. The bank tends to go after the guarantor.

We have to deal with this issue. Within the next couple of months the industry committee in deciding its first order of business will have a session to listen to all the Canadian financial institutions. They can talk about what they are doing for small business and the various structures the banks employ which inhibit capital getting to small business or people taking risks. I suggest the hon. member bring forward his concern to the bank presidents appearing before that committee and maybe we can get some amendment.

On the second point, the RRSP conversion into small business is an interesting idea.

I have to say the Reform Party is always reminding us about how sensitive we must be of the treasury in terms of cutting and costs to the treasury. The member should realize that would be a cost to the treasury. It would probably be an enormous cost but, in the interest of getting small business moving again and inspiring more diverse ownership in small business, I would certainly think it should be something the Minister of Finance should consider.

[Ian McClelland, Reform, Edmonton Southwest, AB]

Mr. Speaker, this is really and truly a debate because we are asking questions and getting feedback. I thank the member for his observations.

I really have difficulty understanding how that would be an additional cost to the treasury. We would have to be concerned about the RSP money being used at an arm's length basis to finance small and emerging small business. Provided that money was already invested in an RSP vehicle, it would be money already in the financial system. Instead of being involved in mutual funds or a large public company this money would be directed to a smaller company.

There would be the risk element involved, but we are trying to get more and more people involved in the lifeblood of the capital pool of our country. It would not take any more money; it would use existing money and move it into small business instead of move it into large business through stock.

[Dennis Mills, Liberal, Broadview—Greenwood, ON]

Mr. Speaker, I have a short response. I am glad the member clarified that this would be no new extension of the RSP, that it would be moneys existing. I think his idea is a good one and I hope the Department of Finance and the minister will consider it.

[The Deputy Speaker]

I say to the member for Edmonton Southwest who I see is rising that unfortunately his time has expired. I think the last speaker in this debate among recognized parties is the member for Trois-Rivières.

[Yves Rocheleau, Bloc, Trois-Rivières, QC]

Mr. Speaker, as industry critic for my Party, I am very pleased to take part in the debate concerning Bill C-9, an Act to amend the Income Tax Act.

These amendments to the Income Tax Act implement certain measures announced in the Economic and Fiscal Statement of December 2, 1992 and the Budget of April 26, 1993.

Overall, 12 measures are mentioned, nine of which come from the economic and fiscal statement and the last three from the budget. The first nine measures are as follows:

1. Unemployment insurance premium relief for additional jobs;

2. Temporary small business investment tax credit;

3. Extension of the small business financing program;

4. Abolition of penalty tax;

5. Labour-sponsored venture capital corporations;

6. Extension of the home buyers' plan;

7. Flow-through shares;

8. Removal of mandatory deduction of Canadian exploration expenses;

9. Improvements to the tax credit for scientific research and experimental development.

As for the measures from the budget announced on April 26, 1993, they are: first, annual tax credit limit; second, investment tax credit for scientific research and experimental development; and third, instalment payments of income tax.

As you may have noticed, these measures are particularly involved. Just by listing them, you can see how complex they are, not only for the legislator, but also for the small business community.

That is why we think it is erroneous and pointless to undertake a detailed analysis of these measures in the House. These measures should be referred to a committee, and undergo a judicious and in-depth analysis before any necessary recommendations can be made.

It is also clear a thorough review is needed of small business financial assistance programs, to identify any overlap in the administration of these programs and to simplify their implementation.

We must realize what small and medium-sized businesses have to put up with from a government bureaucracy that often interferes with the way they manage their affairs, that sets deadlines, asks for explanations, even intimidates business owners, wastes the time of employees and acts as if small business was at its beck and call.

Studies on the subject agree that at least 20 per cent of the time and effort that go into small business management and administration is spent dealing with government paperwork.

That is both unacceptable and contrary to the goals of being competitive and efficient, the magic words government officials are so fond of repeating.

We must help small business expand and not crush them under bureaucratic paperwork. We must help small businesses whose names are not on everyone's lips, which do not have an export plan or technology projects and whose equipment does not necessarily have to be updated, but which produce goods in response to local and regional needs. They are often well-managed or may experience problems but, most importantly, provide local jobs for 5, 10, 20, 40 or 60 employees who without this plant would be unemployed, unlikely to find another job and, as a result, have to live on unemployment insurance and then welfare.

I am thinking of door and window manufacturers, machine tool shops, manufacturers of food products, clothing manufacturers and sawmills, for instance.

We must acknowledge the fact that this type of business exists and help them consolidate their position, because they create and maintain the jobs in our regions that make it possible for the government, with the tax revenue from these businesses and their employees, to provide incentives for other businesses to either export or update their equipment or get technological development projects.

I would also like to take this opportunity to remind the government, considering the geopolitical changes that have taken place in recent years, of the importance of encouraging the conversion of our defence industries to the production of civilian goods. The government must help bring about this conversion, otherwise our entire industrial framework may lose its competitive edge to neighbouring economies.

The red book makes this clear, and I quote: "The defence industries today employ directly and indirectly over 100,000 Canadians. The end of the cold war puts at risk tens of thousands of high-tech jobs. A Liberal government will introduce a defence conversion program to help industries in transition from high-tech military production to high-tech civilian production".

That being said, questions arise about the federal government's framework for acting effectively in terms of incentives to streamline operations.

In Quebec, the agency closest to the customer is the Federal Business Development Bank which, oddly enough, reports to the Minister of Finance, although one could legitimately assume that industrial conversion programs would originate from and be inspired by Industry Canada, which has no regional offices, being mainly based in Montreal. One can hardly expect programs that are designed and administered well away from the potential user to be effective.

One also wonders what the FBDB, the Federal Business Development Bank, is doing in the Department of Finance.

To get back to the content of the bill as such, one of the items in the bill refers to labour-sponsored venture capital corporations. I am reminded of one particularly remarkable example, the Fonds de solidarité des travailleurs, a venture capital corporation founded 10 years ago this year by the Quebec Federation of Labour. Today, the corporation has 193,000 shareholders with net assets of $797 million and an investment portfolio worth $414 million, invested in Quebec businesses. Shareholders have seen their businesses revive or expand considerably, thanks to the fund's assistance.

In 1993 alone, the fund was responsible for nearly $175 million in new investments benefitting 43 businesses. The very existence of the Fonds de solidarité and its success illustrate the potential for creativity and innovation of Quebec and the people of Quebec, which in turn explains our confidence and pride in the economic potential of a sovereign Quebec.

[Jesse Flis, Liberal, Parliamentary Secretary to Minister of Foreign Affairs]

Mr. Speaker, I listened very carefully to the hon. member. What caught my ears was his comments about small business being harassed by government bureaucracy.

He mentioned that 20 per cent of energy went to fill out government forms and what not. He also mentioned that small businesses provided jobs on a local level. I could not agree with him more. If we want to kickstart the economy, if we want to stimulate the economy, we have to help small and medium sized businesses stimulate the economy and create jobs. Then I think we will see the recession behind us.

In canvassing my riding of Parkdale-High Park, which is in the city of Toronto, the complaints I get from small businesses are about the lack of co-operation they get from the banks. Yes, I get some complaints about bureaucracy or red tape, but if they want to modernize their plants and expand to export their products-and he mentioned such products as doors, windows, et cetera-they go to the bank and the bank refuses them capital loans. Under the Small Businesses Loans Act small businesses can borrow up to $250,000 and 90 per cent of the risk is guaranteed by the federal government. Even with that motivation, that stimulus, the banks are not co-operating.

Just yesterday an angry constituent with a small business in real estate called me. He had a client who used to pay him by cheque every month, a $1,000 cheque he would deposit in the bank. The service charge for that was 75 cents. The other day he was paid in cash. He took the cash to the bank and the bank had the gall to charge him $2.20. The principle is that small businesses get angry because of this kind of attitude on the part of banks in Canada.

Is it just businesses in Toronto, businesses in my riding, that have these problems with banks? Or, does he experience the same difficulties with the banks as do small businesses? If so, would he have any recommendations? How can we get after these banks to co-operate in stimulating the economy and not throwing roadblocks in the way of small businesses?

[Yves Rocheleau, Bloc, Trois-Rivières, QC]

Mr. Speaker, I thank the hon. member for his question. Having been involved in economic regional development for 25 years in my region of Mauricie-Bois-Franc -by the way, I take this opportunity to pay my respects to the people of that region as well as my constituents-I totally agree with the hon. member when he says that-and this matter was raised by the hon. member for Broadview-Greenwood in the Standing Committee on Industry-there is a discrepancy between what the presidents of the major banks are saying and the attitude displayed by local bank managers. Every one is looking after their own interests, but no one is there for the small businessman who is really the one taking the risks.

More and more, especially in difficult times, banks have only one thing in mind, to look after their own interests, to protect what they have. Often they do not hesitate to pull the plug on the other party, that is to say the business, the industrial entrepreneur and the employees.

I think it is a matter of mentality, of attitude. Someone who had been studying the operation of European banks once told me that their attitude and approach with respect to private investment are totally different in the sense that the operating philosophy of the bank is to take a chance with the small business owner.

Perhaps pressure should be brought to bear to foster a change in attitudes, in that respect. While the Canadian banking system is said to be one of the most performing and comforting in the world, there may be fundamental choices to be made by banks.

We may come to realize that our system has its faults, its weaknesses, seeing that unemployment-because that is the ultimate result-is growing steadily from one decade to the next. When I was young, the unemployment rate was 3 per cent and now, I think that Statistics Canada is saying that the best we can hope for is 8 per cent.

It may be this kind of management and operating philosophy that causes banks to gradually discourage people who start up businesses with potential: when the going gets tough, the bank loses any loyalty to its client. That is a question that will be examined by the standing committee on industry.

[Pierre De Savoye, Bloc, Portneuf, QC]

Mr. Speaker, I have examined Bill C-9. I know there are people who are watching us on television. This is Bill C-9.

There are all kinds of interesting things in this bill and one may think that, with its proposals, the government wants to increase business competitiveness and enable people to improve their situation. For example, it talks about reducing the unemployment insurance premiums to promote the creation of extra jobs. It is very interesting to see how the government is concerned with businesses.

However, how are businesses going to learn that these new provisions will take effect? The day after this bill is proclaimed, will their accountant rush to the phone and tell them: "Here, in your case, you really have a wonderful opportunity"? I doubt it and what saddens me is to see such nice intentions-the extension of the small business financing program, venture capital corporations for workers, the extension of the home buyers's plan-that will not necessarily be communicated with the

appropriate timing and in a usable way to businesses and individuals who could otherwise benefit from them.

I would like my colleague from the Bloc to share his thoughts with me on this.

[Yves Rocheleau, Bloc, Trois-Rivières, QC]

Mr. Speaker, I have to agree with my colleague that transmission of information gives rise to another kind of problem.

On the one hand, there is so much government intervention, and on the other hand, the system is so complicated that even the government does not have the tools to deliver the information.

Small business has to pay to set up a system whereby the information first goes through its tax expert, its accountant, who will hopefully make sure the information goes around. Such systems seem to work in a vacuum.

In a sense, government and small business are essentially parallel organizations. They are like two different worlds that can only meet from time to time, according to the goodwill, the ability, the dedication and maybe also the fees of the specialists hired by the companies.

Speaking of harassment, it seems that business is at the service of the government. In our economic system, things should be different, since the government is supposed to be at the service of the business community. There are undoubtedly changes to be made and we might begin by decreasing government interference in business management. That would go a long way to resolve many problems.

[The Deputy Speaker]

As no hon. member wishes to take the floor, is the House ready for the question?

[Some hon. members]

Agreed.

[The Deputy Speaker]

Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

(Motion agreed to, bill read the second time and referred to a committee.)

Criminal Code

[Allan Rock, Liberal, Minister of Justice and Attorney General of Canada]

moved that Bill C-8, an act to amend the Criminal Code and the Fisheries Protection Act (force), be read the second time and referred to a committee.

Mr. Speaker, with the introduction of Bill C-8 the government proposes an amendment to section 25 of the Criminal Code that will bring to culmination a process of reform that started as long ago as 1969 with recommendations of the Ouimet committee.

The subject of this amendment is the use of force by peace officers in dealing with persons who take flight in order to avoid arrest. In short, the proposed amendment will first of all recognize the right of peace officers to resort to force in such circumstances, including such force as may occasion death or grievous bodily harm to the person to be arrested.

Second, it will introduce an element of proportionality between the threat of harm posed by the fleeing person and the degree of force that is permitted by law.

Third, it will extend the concept of permissible force such as is reasonable in the circumstances to persons who perform similar duties on behalf of the public, including prison guards and those peace officers who attempt to stop foreign fishing vessels that are alleged to be breaching Canadian law.

In introducing second reading of this bill, I would like to deal with three matters which the House may find useful as it embarks upon its considerations.

First, the manifest unsuitability of the present section of the Criminal Code that deals with matters of this kind. Second, the process of consultation in which the government and the previous government engaged in order to bring forth these proposals. Third, the particulars of the amendment that is proposed that commend the amendment to the government and, I hope, to all members of this House.

Let me first deal with the present state of the Criminal Code so far as it deals with the use of force by peace officers to detain persons who are fleeing to escape arrest. The provision is now found in section 25(4) of the Criminal Code of Canada and is known broadly as the fleeing felon rule. Indeed, the antiquity of that name itself indicates the time that has elapsed since we have methodically thought through the appropriateness of the present regime.

The concept of course is quite sound. The concept is as sound today as it was when the provision was first enacted. It is appropriate for the legislature to acknowledge and give authority to the need for peace officers to use such force as is reasonably necessary to protect themselves and members of the public when confronted with a person who is fleeing to avoid lawful arrest.

The fact of the matter is that the present section of the code is overly broad. It discloses on its face a lack of the kind of proportionality that legislatures and courts have worked toward in more recent enactments. For example, on its face the existing section of the code would permit an officer to use deadly force to detain someone who was fleeing to avoid arrest for shoplifting.

I hasten to add that police forces themselves, both in their training and in their procedures and practices, have shown both professionalism and restraint in the way they have used the discretion and authority conferred by the present section.

This is in terms of the training that officers receive at the police colleges, in the manuals of procedure that are made available to forces as they work, and in practices adopted by police officers individually and by forces across the country.

One can see a recognition on the part of police officers themselves that the present section is not sufficiently subtle or flexible. It does not deal with the right proportionality to reflect a balancing of the competing interests that are presented in circumstances of this kind.

Indeed, in the 1989 report of the Ontario Race Relations and Policing Task Force it was observed that the police themselves are uncomfortable with the broad discretion provided at present by section 25(4) and the police college instructors caution new police officers not to take the powers literally.

There has been concern expressed about the present provision by minority groups across the country. Always keenly aware of their relationship with police forces, they have expressed worry that the section does not expressly contain the kind of criteria that should reasonably be found there for reference by peace officers before resorting to such force as might cause death or serious bodily harm in detaining those who flee for the purpose of escaping arrest.

When the provision applicable to dangerous criminals fleeing for the purpose of escaping arrest, which is being amended by the present bill, was first introduced, it applied only to the most serious crimes, most of which where punishable by death. At that time, when dangerous suspects where found guilty, they were almost always executed. One can understand why dangerous criminals did not hesitate to use any means, even the most violent, to escape arrest.

At the same time, if the suspect was not arrested then, there was little likelihood that he would be arrested later, since the tools at the disposal of the police forces where quite rudimentary, communication networks were primitive and investigation methods rather crude.

Over the years there have been complaints about the present section and calls for its reform from, among others, the Uniform Law Conference and the Law Reform Commission of Canada.

In April of last year the section was declared unconstitutional by a judge of the general division of the Ontario court on the basis of the very same flaws that I have identified here today.

Surely it is time for Parliament to catch up with the jurisprudence, with the police practices in place in this country, and to amend this section of the code so that it reflects current values and current approaches to policing matters.

Let me deal briefly with the degree and nature of consultation that took place as the government worked toward the amendment that is now before the House. I hope members throughout the House will agree that consultation has been thorough, thoughtful and constructive.

The most recent round began for present purposes in mid-June 1990 at the federal-provincial-territorial conference in Niagara-on-the-Lake at which there was general agreement that an initiative should finally be taken to change the code.

The following June, June 1991, the Department of Justice released a consultation document identifying four alternatives. In September 1991 at their conference in Yellowknife, the federal-provincial-territorial representatives agreed in principle on the approach that should be taken. Following that, there were a number of federal-provincial-territorial discussions at various levels on the precise shape of the amendment.

On August 17, 1992 a further discussion paper with detailed proposals was released at the time of the meeting of the Canadian Association of Chiefs of Police. Throughout this process and in the months and years since it started, the Department of Justice has had the benefit of views expressed by members of Parliament, by senators, by provincial and territorial attorneys general and solicitors general, by chief justices, by ethnocultural groups, by representatives of the ethnic press, by provincial police associations, the police press, the Canadian Association of Chiefs of Police and the Canadian Police Association, bar associations, law deans, law societies, aboriginal police forces, non-governmental organizations and other interested individuals.

Thanks are due to all of those who took part in this important discussion. The suggestions and the observations they have made from time to time are reflected in various aspects of the legislation.

What will this bill achieve? May I observe, as I introduce debate at second reading, that this bill will maintain and reaffirm the ability of peace officers to protect themselves and the public from serious harm or death; will clarify when peace officers can use deadly force to stop suspects who are fleeing arrest, or inmates attempting to escape from penitentiaries; will justify a police response to the threat posed by a fleeing suspect that is in proportion to the seriousness of that threat; and, will

modernize the law by updating an archaic provision of the code that is inadequate and no longer fits the reality of present day Canada.

The bill provides that force that is intended or is likely to cause death or grievous bodily harm to arrest a fleeing suspect may only be used when reasonably necessary for the protection of any person from imminent or future death or grievous bodily harm, and only if the flight cannot be prevented by reasonable means in a less violent manner.

This bill calls for a proportionate response and respects the principle of restraint.

I want to make sure that police officers can continue to protect themselves and the public from serious injury or even death.

Bill C-8 specifically authorizes the use of whatever force is necessary to protect the public or police officers.

The proposal for a new subsection 25(4) focuses the decision on whether to use deadly force against a fleeing suspect against the risk of physical harm posed by the fleeing suspect if not immediately apprehended. The subsection provides that the physical threat posed by the fleeing suspect may be imminent or future. As a result, the subsection would allow for the use of deadly force against a fleeing suspect in situations where the danger to the public would be increased and not reduced by allowing the fleeing suspect to avoid arrest.

By adopting that standard, Parliament would be saying that only in those circumstances is the use of deadly force justified. At the present time there is in the current provision no requirement that the fleeing suspect be dangerous before deadly force can be used.

Admittedly, the assessment of future danger is a difficult one to make. But retaining the word as it appears in the amendment would make it clear that the provision would apply, for example, with respect to a dangerous mass murderer, or a person with a record of violent offences fleeing from arrest who constitutes a danger to society, even though the anticipated harm may not be immediate.

The assessment that the fleeing suspect poses a threat of death or grievous bodily harm is to be based, according to the amendment, on the circumstances as the user of the force on reasonable grounds believes them to be. In this way the test merges the police officer's subjective belief about the seriousness of the danger posed by the fleeing suspect with the objective test of reasonableness of such belief. This approach is consistent with the test currently used in subsection 25(3) of the Criminal Code.

The bill also proposes, in new subsection 25(5) of the Criminal Code, that deadly force be allowed in order to prevent the escape of an inmate from an institution in which it is known that there are inmates who would be dangerous if they escaped. This proposed amendment once again reflects the current policy and practice relating to the use of force in penitentiaries. Whereas the use of force against escaping inmates is justified by the present subsection 25(4), peace officers in penitentiaries would not be able to perform their job properly and public safety could be jeopardized by the proposed use of subsection 25(4), because paragraph 25(4)(d), if applied to the prison officers would be found inappropriate to the special situation that they face in penitentiaries.

In penitentiaries it is practically impossible for peace officers observing an escape to assess whether the particular inmate attempting to escape is likely to be dangerous if the escape is successful. What is more, the peace officer in such circumstances would be unlikely to know the factors that determine the risk the inmate presents at that particular moment. Deadly force would only be permitted as a last resort after other reasonable, less violent means, if possible in the circumstances, have been tried.

In comparing escape from a penitentiary to the flight of a suspect, the inmate is already in the custody of the law, has been convicted and sentenced for having committed an offence. The social and psychological significance of an escape is very different from a fleeing suspect trying to escape arrest, in that the person who flees on the spur of the moment while escaping from a penitentiary is very rare. Ordinarily such escapes involve planning and premeditation. It is necessary also to bear in mind that it is necessary to maintain discipline and respect for lawful authority in penitentiaries. This amendment would assist in achieving that objective.

Last, the bill includes an amendment to the Coastal Fisheries Protection Act to provide the authority in accordance with regulations to be made under the act for a protection officer to use disabling force against a fleeing foreign fishing vessel in order to arrest the master or other person in command of the vessel.

The amendment to the Coastal Fisheries Protection Act is being proposed to ensure that the Department of Fisheries and Oceans retains the same powers it has at present to use disabling force when necessary. No new powers are being added.

Fishery officers employed by the Department of Fisheries and Oceans to enforce regulations concerning the fisheries are peace officers under the Criminal Code. They have duties and training that are similar to those of other peace officers. These people may, on occasion, have to use force to disable a foreign fishing vessel that has violated our laws and tries to escape.

If disabling force could not be used it would not be possible to arrest such vessels if they tried to escape and they could violate our laws with impunity. The use of this disabling force is being authorized only against foreign fishing vessels, not against Canadian ones. Domestic fishing vessels and their masters routinely remain in Canadian waters or return to Canadian ports where they can be apprehended so the disabling force in those cases is not required.

The amendment includes a regulation making power to further control the use of disabling force. The regulations will establish the procedures in accordance with which and the extent to which disabling force is to be used. The government intends to develop these regulations so they will be consistent with the Canadian Charter of Rights and Freedoms. The regulations will also be consistent with a recognized and reasonable international practice in the use of disabling force at sea. There will be a number of steps that would have to be followed and satisfied before the use of disabling force would be permitted.

I think this bill achieves a good balance between, on the one hand, the capacity of peace officers to ensure public safety and, on the other hand, the protection of Canadians' rights.

I believe that the bill marks a significant step forward from the archaic fleeing felon rule. It allows us to put in place new legal protection balancing the rights of peace officers, who must do their jobs in increasingly difficult circumstances, and the rights of citizens for protection against deadly force when it is not reasonably necessary.

It is my hope that the hon. members of the House will provide this bill with their support.

[The Deputy Speaker]

Since the standing orders do not allow questions or comments under such circumstances, I give the floor to the hon. member for Gaspé.

[Yvan Bernier, Bloc, Gaspé, QC]

First, Mr. Speaker, I have a short question. I see that time is running out. I believe we are allowed a 40-minute period for the first speech and I was told that one of my colleagues would then make a 20-minute speech and two other colleagues would speak for 10 minutes each during the day. I believe you were informed of that. As for my 40 minutes, I think that I will have finished before the oral question period.

The Bloc quebecois will approve Bill C-8, in general. But we have serious reservations about it and we will ask for some amendments. After expressing these reservations, I will tell you about our intention to move these amendments, which we hope will clarify the bill and limit potential abuse.

I will stick with the fisheries issue. My colleague will explain to you later the more detailed position of the Bloc concerning the first part of the bill dealing with wardens in penitentiaries, I think, in any case the one that amends the Criminal Code. He will do it, I believe, more eloquently than I, at least I hope.

As I said, as the fisheries critic and also as the representative from the Gaspé riding, a traditionally maritime riding, I will dwell on the fisheries aspect of Bill C-8, because in fact the second part of the bill amends the Coastal Fisheries Protection Act.

After briefly explaining to you the substance of the amendment, I will also explain the risks involved.

In short, before its amendment, this provision, in our opinion, seemed as brief as imprecise. We understand what the government has done about this. So far, this legislation reads as follows: "A protection officer may arrest without warrant any person who the officer suspects on reasonable grounds has committed an offence under this act".

With its amendment, the government gives a structure to the power given to a protection officer. Once this government amendment is adopted, the new provision will read as follows: "A protection officer is justified in using, in accordance and to the extent permitted by the regulations, force that is intended or is likely to disable a foreign fishing vessel in these circumstances-" I wil not read all the conditions, but that is the basic point of the new legislation.

So what does this amendment intend?

It gives to a protection officer the right to inspect a foreign vessel. Therefore, the right of a protection officer to act is now included and protected by the law. We have to keep in mind that any protection officer already had this right and this bill simply confirms a current practice which brings us to ask a technical question first: Do the protection officers have the training required of people who hold such an important power? It is up to the minister to answer this first question.

In the end, what are our reservations about this bill?

First, let me point out that illegal fishing is only one aspect of the Canadian fisheries issue. Stock depletion is a complex issue which cannot be confined to illegal fishing.

Thus, the fisheries problem is much more than just a question of stock depletion as mentioned by the Minister of Fisheries and Oceans. We believe that the entire structure of the industry must be revisited. Instead of addressing these structural changes necessary to respond to the cyclical changes in stocks, the government-as it did in the speech from the throne-is still

looking for those responsible for stock depletion when it is the government that is responsible for stock management.

Surely, the government cannot allow illegal fishing. But it must also take other action. It must concentrate first on restructuring the fishing industry, on developing new trading practices. It must emphasize all sorts of alternatives in order to put more than 50,000 people back to work in this country. Illegal fishing must be stopped, but the problem goes beyond that. In our view, this bill looks like another element of a broader smokescreen. We hope that our fears are unfounded.

Now, here are some tangible reservations we have about Bill C-8. The Criminal Code allows a peace officer to use force in order to arrest a person who wants to flee. We agree with this principle in the context of the Criminal Code. However, we consider this is a poor approach when it comes to fisheries. The situation in the fisheries industry is so precarious right now that the amendment could result in violent incidents. Let me explain.

In the past, using deterrent firing has not permitted to inspect foreign ships at fault. Therefore, once the bill is adopted, the protection officers may think they can use a degree of force greater than the one they are using now to achieve what they set out to do. As I said, the situation is precarious and using a greater degree of force to disable a foreign fishing vessel may encourage illegal fishermen to respond to the measures taken by Canada by arming to defend themselves. So, without being alarmist, we believe that the risk is real and should be considered by the minister.

Second, one of the objectives of Canada is to show the international community its determination to stop illegal practices.

This is a commendable objective. However, it entails the inherent risk to view force as the ultimate solution to the problem. We refuse to view force as an end in itself. Using force does not allow us to get to the root of the problem of illegal fishing. It is only a short-term solution. The real solution will come from concerted international action.

In fact, and here I come to our third concern, Canada will not be able to stop illegal fishing practices without the help of other countries. Negotiation efforts with the international community must be pursued. Even though we keep a close watch over the 200 mile area, if, for instance, fishing activities outside that area are allowed to go on and harm our fish stocks, the amendment to the Coastal Fisheries Protection Act will not solve the problem in any way. Canada cannot legislate in an international area. Therefore, negotiation is the only possible solution. We must not forget that when examining this amendment.

Other countries' input is all the more important since it is our firm belief that using force is only a temporary solution, one that we want to eliminate as soon as possible. Force is a short-term measure. We reject it on the whole but for purely dissuasive purposes, we tolerate reasonable use of force, that is force aimed at disabling a fishing vessel without putting any human life at risk.

Contrary to what the Criminal Code says, we do not tolerate using force likely to cause death in the case of fishing vessels. In our view, illegal fishermen are not criminals; often crewmen are not even aware of what is going on. We must understand that but since we must act rapidly, we are ready to accept it.

We take it that the bill applies exclusively to foreign ships because, in the case of Canadian vessels, there are alternatives to force which we cannot use in the case of foreign ones. In the case of Canadians, we could, for example, arrest identified offenders dockside or at home.

Therefore, through international treaties, the government should strive to have the countries involved implement arrest procedures similar to those we have on our territory. It would be the only efficient way to avoid using force and at the same time succeed in punishing those guilty of violating the law. We could avoid using force even in the case of offenses; through bilateral or multilateral agreements, we could have a ship captain arrested by the police of his own country. In such cases, if the fines were high enough, we could discourage smugglers without using any force.

While I am on the subject of international treaties, let me take this opportunity to talk about those that already exist, for example those with the United States and Quebec. I would like to give the House the following example, should Quebec ever become a foreign nation. Eighty per cent of resources found in the Gulf of St. Lawrence are already shared among the bordering provinces under an individual quota system.

This system is backed by a dockside monitoring program. The Department of Fisheries and Oceans is able to know, on a daily basis, what is being unloaded, where it is being unloaded, precisely at which dock, and by whom. Therefore, should Quebec choose sovereignty, contrary to what some of my colleagues claimed last time I rose in this House, we would not be locked into endless constitutional arguments; on the contrary, the work has already been done.

Resource sharing agreements are already in place. In the worst case scenario, the colour of the paper might change but the basis is already there. So, whether Quebec is a neighbour or a foreign state, using force, under international agreements, might not be necessary, or so I hope.

There are alternatives to using force. I would like to give other examples. Apparently, as we approach the year 2000, a satellite orbiting around the earth can read a newspaper over my shoulder. How can it be then that we are unable to keep up with new technology and track any vessel in our waters? We could increase security at sea and better protect our sovereignty on the

ocean. I do not claim to know everything there is to know in the field of electronics, but I do know that things can be done.

These alternatives to violence may prove important if we consider that the proposed amendment to the Criminal Code could be applied to worse crimes than poaching. It may be justified to use lethal force against a dangerous criminal but it would be unacceptable to do so with poachers, who pose a totally different problem.

We can arrest a captain because he caught too many fish, because he was fishing in the wrong place, because he caught the wrong species or because he did not have a licence. These are all serious fishing regulation offenses but none is so serious as to justify endangering the lives of the captain and crew while trying to stop their ship. This aspect of the problem is covered by an amendment we will bring forth later.

I want to get back to another point that I touched on briefly a while ago. I will phrase my comment in the form of a question. Is it really lawful to pass legislation that applies only to foreigners?

Clause 8.1 applies only to foreign fishing vessels. The bill does not authorize the use of necessary force to disable a Canadian vessel. We realize that other measures are in place to track down offenders in Canadian territorial waters. Consequently, there is no need to resort to the use of force in their case. We ask the Canadian government to apply the same policy to foreigners so that altercations can be avoided.

We understand that until such measures are put in place, the Canadian government must resort to the use of force. However, we will not stand for a policy based on a double standard. Therefore, it is imperative that we implement, along with the international community, effective measures to stop vessels from fishing illegally and to change a system where two kinds of law apply, one for Canadians, and one for foreigners.

In addition, it seems clear that the government is again, through this legislative provision, focussing attention on foreign fishing. At least that is how I see it. It seems to still be looking for a scapegoat when instead, it should re-examining the whole issue of the Canadian fishery.

The fourth point about which the Bloc Quebecois has concerns is the matter of the possible additional overlap between government departments. National defence vessels are already equipped to disable foreign fishing vessels. The inclusion of clause 8.1 could prompt the Department of Fisheries and Oceans to further equip its vessels so that they have enough strike power to intimidate foreign vessels. Should these investments be considered a priority given the crisis in the fisheries?

Furthermore, one can question the relevance of giving fisheries protection officers the mandate to disable a foreign fishing vessel. There is indeed overlap between the different department when it comes to maintaining maritime sovereignty. The report of the Malone Committee on maritime sovereignty states in no uncertain terms that savings could be realized if there were more co-operation and co-ordination between the departments of Transport, Fisheries and Oceans, National Defence and the RCMP. Today's amendment does nothing to restrict overlap and could quite likely increase its incidence.

To respond to some of its concerns, the Bloc Quebecois will move an amendment to the government's bill. We will add a line to the end of section 8.1 as follows: the use of force cannot be tolerated if the lives of the crew of the escaping boat are endangered. I do not claim to be a lawyer, but I submit that this is a very sensible resolution and I say it most sincerely.

The purpose of this amendment is clear: to set limits for the use of force. Since subsection 25(3) of the Criminal Code does not apply to the Coastal Fisheries Protection Act, use of force as mentioned in section 8.1 of that Act is not limited by law. The Bloc's amendment is intended to limit the use of force in order to avoid possibly nasty incidents. Foreign fishermen are human. They do not deserve to die just because they wanted to make ends meet. In many cases, the people on the ships will not even understand the language used to arrest them and thus unreasonable use of force could lead to serious incidents.

I have another question about this bill: the government does not define what "disable" means when it says "force that is intended or is likely to disable a foreign fishing vessel". Since I am not a lawyer, I looked in the dictionary and saw that a "disabled" ship is unable to move because it has been damaged. Damaging a ship on the high seas-I do not know if some of you have ever fished, but any kind of weather may be going on out there at that time. Various kinds of vessels, made of various materials, exist: iron, wood and fibreglass. A .303 bullet hole could perhaps sink a ship, but if it did, it would be because it was fired through the hull as a warning, apparently. But if a shot were fired through a fibreglass fishing boat, I would not want to be a fisherman asleep between decks.

So I think that the use of force requires prudence and good judgment. And we know that life at sea can be tough. So remember that this right to use force must be exercised carefully.

This amendment is even more important in that the application of the law is subject to regulations issued by the Governor in

Council. It is really the regulations which will determine the scope of the law. If the regulations are too lax, the law as worded is dangerously open to abuse.

The bill in itself is not bad, but what seem less attractive are the motivations for it.

The government is giving fishermen a target, namely foreigners. When the cod stocks started to decline, some said that the increase in the seal population was mainly responsible. After all the twists and turns we have been through, scientists now tell us that seals are only one predator among many. Since the scapegoat is no longer there, another one must be found! What better than foreigners? Let us gladly hide the real problems behind the wicked foreigners. In the meantime, we do not talk about what will happen to the fishing industry after May 16. In the meantime, fishermen forget that the federal government was responsible for managing the stocks and that it is mostly to blame.

According to NAFO, barely 5 per cent of the cod stocks are in the nose and tail of the Grand Banks where the illegal fishing is now going on and about which this government is making so much fuss. We wonder why the minister is making such an issue of it. Does the government realize that it is politicking instead of solving the real underlying problem?

The Department of Fisheries and Oceans itself recognizes that it is practically impossible to estimate the cost of illegal fishing. What I am saying is that we should be discussing the fisheries of the future instead. The seals have always been there and the stocks did not collapse. Foreigners have always fished some of our stocks and our stocks did not collapse as they have now. Our whole industry must be rethought and quickly, because many people are idle and frustrated. These are capable people. Seafaring people are resourceful, but the government does not listen to them.

However, the traditional management imposed by the federal government disdains local initiatives for solving the problems of the fishing industry. Indeed, this is not the first big crisis of the fishing industry. I repeat what I already said, and I think it is important to repeat it. In the early 1970s, cod stocks were in almost the same state as they are today, but the resourceful fishermen then turned to crab fishing. A little later, in the late 1970s, with the collapse of haddock fishing in the Gulf, some fishermen turned to shrimp.

I gather from this that these maritime communities can adjust when allowed to interact. They can signal the presence of other, less popular species that can then be marketed. But this requires rapid channels of communication between decision-makers and the people on the front line, namely the fishermen. Quebec lost the opportunity for feedback in 1982, when the then Liberal government repatriated the fisheries jurisdiction. It is about time, in my opinion, that the federal government opened its eyes.

I have another, more recent example. In 1986, this feedback mechanism would have allowed inshore fishermen, who were the first to notice the decline of cod stocks, to adjust. While cod stocks were in decline, other species wrongly seen as unfit should have been made more attractive.

I want to reiterate that my motto on fisheries throughout this session will be this: A valid industrial policy on fisheries can only be consistent if the provinces share in the management of resources. The vulnerability of Quebec and the other provinces with respect to fisheries is due to the fact that the most decisive powers in this area are held by the federal government.

The Minister of Fisheries and Oceans should talk about a new partnership between the various stakeholders in this sector. He should talk about the steps he intends to take to put fishermen in Canada and Quebec back to work. What tools will he give maritime communities to help them pull through?

Where I come from, we have a saying: "If you give a man a fish, you will feed him for one day, but if you teach him how to fish, you will feed him for life". I think it is also a Chinese proverb. We are very cultured in the Gaspe, are we not?

What tool should we use to enable former fishermen to find a new path? Similarly, what tool will we use to diversify this industry so that it can live through the next stock variation cycles? As I was saying during the election campaign, "A local problem calls for a local solution". The real solutions will not come, I am sorry to say, from Ottawa.

Today, because of the federal government's management mistakes, these communities are seeing their world turned upside down. Their lives will never be the same. They must find a new way of life. This revolution requires the various governments to provide maritime communities with new development tools.

The fishing world is undergoing massive changes and it would be an insult to all fishermen to unduly target illegal fishing or smugglers. We hope that this bill is not part of a plan to obscure reality and cloud the real debate on the fisheries' future. We support this bill, as I said earlier, but we hope it will be amended. Most of all, we are in favour of the government assuming its responsibilities and facing the crisis in a sector that is vital to many Quebecers and Canadians. That, Mr. Speaker, is something I have yet to see.

In closing, I would like to reiterate-because I have been talking a lot-the few questions I want to ask the government. I would like the government to answer these questions; I do not know how, but it should be able to respond before tabling the final draft of its bill.

My first question is this: are protection officers adequately trained to exercise such important powers? I know a few of them from my hometown but I know that Canadian regulations have different applications, regarding the bearing of weapons, for example. I know that two of the five Maritime provinces have asked for permission to refuse the bearing of weapons.

What will be the attitude of protection officers with regard to a use permitted by the regulations, although I do not know what regulations will be made under this legislation? That is a question I would really like answered.

Did the minister also think of the possibility that government initiatives could make things worse? The point I am making is that the fisheries are already in crisis. I would not want fuel to be added to the flame. Will the Minister of Fisheries and Oceans also step up his efforts in negotiating with the international community? And will the government reduce the current overlap between various federal departments, as I said earlier? The Malone report referred to a four-way approach.

Finally, will the regulations made under this legislation be tabled in the House of Commons to allow us to assess whether they are too lax and are leaving the door open to abuse or not?

In closing, I would urge the government to consider carefully the amendments the opposition will be proposing. This bill has numerous implications and deserves careful consideration.

[The Deputy Speaker]

Since there are no questions or comments on the speech made by the member from the Bloc Quebecois I would go directly then to the Reform Party member for New Westminster-Burnaby who has the same time as the first speaker for the two other parties as of today when the rules come into force.

[Paul Forseth, Reform, New Westminster—Burnaby, BC]

Mr. Speaker, I rise today in response to Bill C-8 which is laid before this House.

The bill strikes at the heart of what it is all about for communities to delegate authority on their behalf, to have police officers, to give them lethal weapons and to give them the power not available to ordinary citizens. This bill clearly strikes at the heart of the authority of a policeman. The bill clearly circumscribes and brackets to a greater degree the existing law which is the discretionary authority where force, such as bringing possible harm or death, may result to a perpetrator of a crime.

First, I note that this bill appears to be a top down fix or a response to a charter argument made in the Lines case. It is said that the current provisions of the Criminal Code are too broad. Second, there appears to be some desire for this measure from certain community groups that in particular circumstances too much force was used and the Criminal Code guide and parameters were far too broad.

However, I do not detect a community outcry that the police are shooting people and that forces are really abusing their community trust. If anything the community feels that the police are hamstrung and that their hands are tied and do not generally have enough authority to carry out their duties. Where is the current community bottom up drive for this change?

It is said, however, that subsection 25(4) of the Criminal Code is a problem. That subsection empowers a peace officer who is proceeding with lawful arrest of a suspect who may be arrested without a warrant to use as much force as is necessary to prevent escape unless there are other reasonable and less violent means. This is what is known as the fleeing felon rule. It is evident from plain reading of the section that the only judgment requirement of the peace officer concerned the availability of other means.

It is said that subsection 25(4) of the code breaches the suspect's rights and the rights of innocent bystanders under section 7 of the charter which is life, liberty and security of the person or section 9 which is protection from arbitrary detention or section 12 which is protection against cruel and unusual treatment.

The fleeing felon rule was developed at a time when most felonies were punishable by death. If a felon could be executed on conviction then it was apparently felt that the death of a fleeing felon was not terribly disproportionate. To those who protested that this amounted to a so called execution before trial, the answer could be well made that the fleeing suspect could not have been terribly interested in his trial or he would not have fled in the first place.

In any event this rationale for the rule no longer exists in civilized societies where no crimes are punishable by death in Canada.

It is said that the bulk of academic and law enforcement opinion is that the deadly force justification found in subsection 25(4) is quite simply too broad.

Police officers of the RCMP, Ontario Provincial Police and metropolitan police forces all receive instructions and guidelines that limit their use of deadly force more narrowly now than is allowed in the Criminal Code.

The common thread of these limitations is the requirement of some element of actual or reasonably perceived danger to the officer or to others of death or bodily harm. The public interest in the use of force, even deadly force, is equally obvious. It is to facilitate law enforcement and prevent the escape of criminals.

It is thought by some that if criminals come to know that they may flee from arrest with impunity then they will do so and chaos will result.

There is some easy agreement in the extreme cases. I will take the extreme case to illustrate the point. That is not always so when the lines of delineation are not all that clear.

The case is raised for example about the hypothetical doughnut thief. If the peace officers found a thief in the act he would perhaps would be entitled to arrest without a warrant. If no other means were available he would be entitled to use lethal force to prevent the escape. No sane person would ever suggest that it should or could be used in that circumstance. I do not think we have a history in Canada of that kind of abuse.

Other provisions also limit this peace officer who might coming upon an armed bank robber spraying bullets in every direction. Few would suggest that he should not use lethal force to prevent escape and the possibility of further harm to the public.

What about the policeman who finds someone in the act of smuggling large quantities of cocaine or heroine into the country? The suspect is unarmed and takes flight. The crime is extremely serious. It involves bodily harm and often death among users. It fosters often violent crime by addicts to gain the wherewithal to feed their habit. It frequently fosters violent crime among its distributors but at the moment of flight the suspect offers no immediate danger to the officer or anyone else. Should the officer fire?

What about the future harm of a hypothetical Clifford Olsen? It is said that provisions such as those that exist in the Criminal Code now authorize the use of lethal force whenever no less violent means of capture are available and that that violates the charter concerning the right to life and security of the person. The prospect of deprivation thereof for some offences is not in accordance with the principles of fundamental justice.

Can section 25 be justified under section 1 of the charter as a reasonable limit on the right of liberty and security of the person? Clearly the detention of fleeing suspects is a pressing and substantial concern. The use of force to prevent flight is clearly designed to achieve that objective and is rationally connected to it.

The use of deadly force does not impair the right as little as possible. The potential use of deadly force in a broad range of situations as may be envisioned is said to be over broad and entirely lacks proportionality.

The example is given of the spectre of the doughnut thief. It is simply that. It is only a spectre. There is no evidence that doughnut thieves are being gunned down in unprecedented numbers in Canada.

The evidence is that police officers are instructed to fire their revolvers only in circumstances much more stringent than those in section 25(4). In short the argument is made that peace officers can be relied upon not to abuse the force authorized by the code.

It is the potential for harm and not the reality that matters. Does the seriousness of the crime matter or is the sole question about the danger present? What is the danger? Is it grievous bodily harm or some serious physical injury? What is the risk level? Is it that it might, may or likely possesses substantial risk of injury? Who is protected aside of course from the arresting officer? Is it those who are immediately present both spatially and temporally or those more remotely at risk? The fleeing rapist might have slaked his lust but for how long?

These issues today are being dealt with by those who are responsible to the electorate. This is a political debate.

For example, in the Lines case the Criminal Code was declared indeed to be an unconstitutional violation of the suspect's charter right to life and security of the person.

Let us review. More clearly, subsection (4) currently permits a peace officer and anyone lawfully assisting such a person to use as much force as is necessary to prevent flight from lawful arrest if the additional circumstances set out within the subsection are met. It must be shown that there is a lawful basis for the arrest either with or without a warrant.

Second, the person to be arrested must flee to avoid that arrest.

Third, it must be shown that there was a no less violent means of stopping such flight than was reasonable.

If an officer crosses into another jurisdiction in the course of such a chase, the officer retains the status of the peace officer for the purposes of that section.

In deciding in a particular case whether a police officer had used more force than is authorized by subsection 4, general statements as to the duty to take care to avoid injury to others made in civil negligence cases cannot be accepted as applicable without reservation. The performance of the duty imposed upon police officers to arrest may at times and of necessity involve risk or injury to other members of the community. Such risk in the absence of a negligent or unreasonable exercise of a duty is imposed by the statute.

The right of a peace officer to use force to prevent escape is a limited one and the right may be exercised only if the escape could not be prevented by reasonable means in a less violent manner. A peace officer cannot in any circumstances justify the use of excess force and where the right to use force exists, it must be exercised in a reasonable manner. If it is to be exercised in a negligent manner, a peace officer is liable for all loss or damage caused by his negligence. That is the current situation.

In summary, it could be viewed that the proposed changes are administrative only and only bring into line what is now accepted practice which is housekeeping. That remains to be seen.

We need only to get this bill into committee, call witnesses and have a more thorough reflective examination. It may be that the court and the justice community elite have already decided what has to be done. What remains is the community conversation that we can have about this bill. This is the most fundamental power the community has. It delegates to its police force for peace, order and good government.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I am very pleased to address this piece of legislation presented by the justice minister.

So often in this House when we debate legislation we are dealing with it usually on an intellectual level somewhat divorced from the real life circumstances in which we intend the legislation to apply.

In this particular case however, on a very personal note I could not help but notice that the drive for this legislation commenced with a decision of an Ontario court judge who found that the existing Criminal Code provisions strayed from the requirements of our charter. I believe this is rightly so. He did find that correctly. That particular judge was a lawyer for whom I had first worked as an articling student some 20 years ago.

The case involved a police officer who had apprehended a suspect and in connection with that had fired his gun. That police officer lived right across the street from me in Toronto. This particular amendment is a little bit more than just an intellectual exercise for me.

I would like to speak in particular to that aspect of the legislation that deals with the work of employees in federal penitentiaries who have certain powers and protections to help them do their work. The bill recognizes that peace officers who are correctional officers in penitentiaries have a unique situation relative to that of peace officers who are police officers on the street.

Correctional officers are dealing with convicted offenders, many of whom would present a serious danger to public safety if they were to escape. Subsection 25(5) of the bill would permit correctional officers to use deadly force in order to prevent an escape from a penitentiary that houses such high risk offenders. This would be only as a last resort when less violent means had been tried and found not to work. Those other means include warning shots and oral commands.

This reflects current policy and practice in the correctional service which is responsible for the operation of the federal penitentiary system. It is in accordance with the mandate of the service to protect society. The Correctional Service of Canada's current internal policies are currently consistent with proposed subsection 25(5). This requires a correctional officer intervening in an escape to attempt to first issue an oral warning to stop and then to fire a warning shot unless circumstances do not permit that to happen. In practice it has happened extremely rarely that a warning shot has not deterred an escapee and that lethal force has had to be applied.

Only specifically trained and authorized correctional officers in maximum and medium security institutions carry firearms. They do so only in designated areas. These include the observation towers and patrols around the institution perimeter.

Both maximum and medium security institutions contain inmates considered to pose a significant risk of escape and threat to the safety of the public. Consequently both maximum and medium security institutions are equipped with strong perimeter security such as high fences, walls, movement detection systems, cameras, armed posts and patrols.

The Correctional Service of Canada currently has 13 maximum security facilities and 17 medium security facilities in Canada. There are no armed posts in federal minimum security institutions since these institutions house offenders who are classified as being of low risk to the public.

As the Minister of Justice has already explained, the general rule in subsection 25(4) requires the peace officer to have reasonable grounds to believe that the particular individual fleeing arrest represents a threat of death or grievous bodily harm.

Subsection 25(5) qualifies that rule in the case of escapes from a penitentiary. That is important. This is a special rule to be used only for federal penitentiaries. The reason for this is that when a correctional officer sees an inmate escaping it is practically impossible for him or her to assess the degree of risk that particular individual represents at that precise moment in time. Physical circumstances such as darkness, distance, or a disguise worn by the inmate may make it impossible for the officer to identify the inmate.

Even if the identity were known the officer would not likely be aware of the factors that have precipitated the escape attempt, factors which could result in the inmate posing an increased risk to public safety. Inmates attempting to escape are often desperate to make good their escape attempt and are capable of resorting to violent measures including the taking of civilian hostages.

Therefore the test that is used in subsection 25(5) is that the officer must believe on reasonable grounds that any of the inmates in the penitentiary pose a threat of death or grievous bodily harm to the officer or any other person, that is, any inmate in that institution.

Correctional officers are able to found their belief on a well established system which assigns every federal institution a security classification according to the inmate population it is designed to accommodate. The new provision applies only to federal penitentiaries. Provincial corrections authorities were consulted in the drafting of this provision and they agreed there was no need for this provision provincially.

I believe that this proposed new subsection maintains powers of protection needed by front line staff in our penitentiaries and I believe it strikes the appropriate balance with the interests of public safety.

Lastly, in connection with the provision of the amendment dealing with foreign fishing vessels, I want to note that the vessels involved are foreign and not Canadian, an important distinction, and that the amendment is aimed at disabling a fishing vessel and not a person. Strictly speaking, the Canadian Charter of Rights and Freedoms certainly does not have the same application as it does in the fleeing felon rule amendment we are discussing. However, there are implications for the safety of persons on the fleeing vessel and for the fisheries officers on the Canadian vessel who may be bound to use force.

The section we hope the House will adopt contains a reference to the making of regulations that would circumscribe or outline the situations in which force might be used, how it would be used and when it would be used.

This House frequently delegates this regulatory making power. We do it in almost every statute we pass. In this particular case we are delegating a scheme of regulatory making power which will come very close to making laws which are approximate to the issues of life and safety on a fleeing fishing vessel.

It is my view that we are in waters, if I may use that term, that require us to use very careful guidelines. In doing this I know there is a committee of the House-