Mr. Speaker, I am pleased to rise today in support of the motion to refer Bill C-16, the powers to enter dwellings to arrest act, to the justice committee for second reading of that bill in this House.
Bill C-16 will enable peace officers to enter dwellings for the purposes of arrest in a manner which conforms to constitutional requirements. The bill essentially creates a warrant scheme by which peace officers may obtain judicial authorization before entering a dwelling to arrest someone. The bill also sets out certain circumstances under which such warrants or authorizations are not required.
As we all know, on May 22, 1997, the Supreme Court of Canada rendered a decision which has a significant impact on the way police forces may exercise their power of arrest.
It is a matter of determining whether, under common law, an arrest can take place in a dwelling house with no prior judicial intervention. In the Queen v. Feeney decision, the five majority judges ruled that, because of the Canadian Charter of Rights and Freedoms, police forces must first secure a warrant for entry to carry out an arrest in a dwelling house.
Given that the Criminal Code does not specifically provide a mechanism for obtaining judicial authorization prior to entering a dwelling for the purpose of arrest, a majority of the Supreme Court of Canada in R. v. Feeney suggested that such a provision be read in pending the appropriate legislative changes. It is to that invitation that Parliament is asked to respond today.
I can assure you that the judicial uncertainty caused by the decision in the Feeney case was of great concern to law enforcement authorities across Canada. In fact, provinces and territories responded to this decision by proposing temporary and singularly different solutions to enable police forces to perform their duties as best they could while taking into account the new requirements of the Canadian charter.
As requested by the attorneys general of British Columbia, Alberta, Canada, Ontario and Quebec in the days following the decision in the Feeney case, the Supreme Court of Canada granted a stay of proceedings for six months from the date of the decision on application of the Feeney decision. Consequently, unless the stay is extended, any amendment to the Criminal Code should be made by November 1997 at the latest to prevent a legislative vacuum after that date.
The Minister of Justice is prepared to co-operate with the hon. members of this House, on both sides of the floor I might add, to meet the deadline set by the Supreme Court of Canada.
The Minister of Justice believes that Bill C-16 contains a system to obtain entry warrants which, on the one hand, is designed to serve the interests of those responsible for law enforcement by giving police forces the power to enter dwelling houses with or without an arrest warrant and, on the other hand, respects the privacy of individuals in their dwelling houses, as guaranteed under the charter.
Members of the public and law enforcement officials could argue that the bill does not go far enough by not giving police officers the same powers of entry and arrest they had before, I repeat before, the Feeney decision.
However, given that Feeney was decided on constitutional grounds, it would not be possible to restore the common law power to enter a dwelling to arrest. To put it plainly, the court has ruled that the privacy interests must be balanced against the interests of the state to arrest in a dwelling house and that balancing of interests must be done by a judge. If the legal framework is flexible enough, there should be a way to balance those competing interests without jeopardizing the safety of Canadians. Bill C-16 does just that.
At the other end of the spectrum, some people would argue that the supreme court has suggested that in all cases the police would have to obtain an arrest warrant which would be accompanied by an authorization to enter the dwelling. From this perspective the police would have to formally charge someone before obtaining an authorization to enter. We do not think that this is needed in order to satisfy the constitutional requirements imposed by the supreme court.
What is constitutionally mandated is that an impartial arbitrator decide whether the entry on private premises should be permitted in order to effect an arrest.
In the view of the Minister of Justice, requiring that someone be charged before a warrant for entry can be issued would result in a rigid and ineffective warrant scheme which would frustrate the proper administration of justice in this country.
The Minister of Justice believes the legislation strikes a proper balance. Under the bill, the police could obtain the judicial authorization to enter a dwelling to arrest a person, without having to formally charge this person.
In other words, the bill will afford the police as much flexibility as possible, given the limits imposed by the charter.
In fact the bill is the product of extensive consultations with interested parties such as the provincial attorneys general, the RCMP, the Canadian Association of Chiefs of Police, the Canadian Association of Police and the Canadian Bar Association.
The legislation contains a realistic compromise between positions that either lack necessary flexibility or are constitutionally flawed.
I would like to take this opportunity to review the different features of this legislation.
The bill primarily seeks to provide a legislative system under which the police can request the judicial authorization to enter dwellings to make an arrest. The system provides that such an authorization is required in the three situations listed below.
First, when an arrest warrant has already been issued, a police officer can request a warrant to enter a dwelling to make an arrest.
Second, when no arrest warrant has been issued, a police officer can request a warrant to enter a dwelling to make an arrest, provided he has convinced a judge or a justice of the peace that there are grounds to make an arrest without a warrant, as provided under section 495 of the Criminal Code.
Third, if a police officer is requesting a warrant for the arrest of a specific person, he can, at the same time, ask the judge or the justice of the peace to authorize, in the warrant, the police to enter a dwelling, particularly if the officer believes the person for whom the warrant is issued is in that dwelling or will be found in it. The authorization will be granted if, when the arrest warrant is later executed, the police officer has reasonable grounds to believe that the person for whom the warrant is issued is in that dwelling.
The bill also addresses exigent circumstances as an exception to the need for an authorization to enter. It is not always possible for the police to obtain a judicial authorization prior to entering a dwelling for the purposes of arrest or apprehension.
In Feeney, the majority of the Supreme Court of Canada acknowledged this fact and reaffirmed the common law power of entry in situations of hot pursuit.
Given that the court clearly recognized that hot pursuit is an exception to the requirement that there be a warrant for entry, this legislation does not address this issue which has been dealt with conclusively by the Supreme Court of Canada. The question of what other situations would justify an exemption from the requirement of prior judicial authorization was left open by the supreme court.
This legislation, therefore, contains an non-exhaustive definition of certain exigent circumstances under which entry into a dwelling for the purposes of arrest or apprehension would be allowed in the absence of prior judicial authorization.
The Minister of Justice believes it is important that parliament expresses itself on what exigent circumstances would justify the state entering a dwelling house without a warrant for entry to effect an arrest.
Entry would be expressly allowed in the absence of a warrant where the police have reasonable grounds to suspect that entry into the dwelling is necessary to prevent imminent bodily harm or death. The integrity of a human being is a value sufficiently important that the state can intervene without getting prior judicial authorization to enter.
Entry would likewise be expressly allowed where the police have reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling and where that entry is necessary to prevent the imminent destruction of such evidence. We stress it is evidence that will be destroyed, not merely information or intelligence to which the state would like to have access, if the arrest is not effected before a warrant of entry can be obtained.
The legislation also contains provisions concerning consequential amendments. In particular it contains a proposal to amend the Interpretation Act to extend the scheme set out in the Criminal Code to arrests or apprehensions made pursuant to other federal statutes. This is needed because the Feeney decision is concerned with the balancing of interests in cases of arrests in dwelling houses which extends well beyond the application of the Criminal Code.
Other federal legislation provides for arrests on the basis of warrants issued pursuant to the particular legislation. There is a need to remedy the problem caused by the Feeney decision of the supreme court. The proposed amendment to the Interpretation Act extends the Criminal Code regime to these statutes.
Finally, the legislation includes a preamble which states its purpose, and which clearly establishes that the bill is not meant to limit the power to enter granted to police under other acts or under common law.
Given the constitutional limitations set out in Feeney and in other Supreme Court of Canada decisions concerning privacy rights, the Minister of Justice believes the legislation represents a way of ensuring that the appropriate balancing of interests can take place without jeopardizing the safety of Canadians and the proper administration of justice.
The bill creates tools that will enhance the privacy rights of Canadians while providing law enforcement officers with the kind of flexibility needed to do their difficult task.
In closing, the Minister of Justice encourages all hon. members of the House to support the bill. I look forward to working with hon. members to make sure we meet the deadline the supreme court has set.