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.