Mr. Speaker, I would like to start by saying that I am happy to hear my colleague from the Reform Party say that when there are vital issues a society must address, the decisions must be made by the democratically elected representatives of the people, and not by nine unelected individuals. I felt I have to point out this little fact.
We are discussing something that is very important, and that is the balance between, on the one hand, the authority of the state, in this case the powers that a society gives its police officers, and, on the other hand, the rights and freedoms of individuals.
I must say that I am somewhat disappointed that the government took so much time to introduce this bill, because the Supreme Court has set a deadline, which is November 22. When we are discussing such an important issue as the balance between individual rights and freedoms and the powers of the state, it seems to me that we should be doing so in a calm, collected, and comprehensive manner.
What is important here, and what the bill is trying to do—I will come back to this later—is to clarify the rules for police officers. Yesterday, a highly skilled crown attorney told me that this Supreme Court judgment, the Feeney case, had the effect of tying the hands of police officers because they no longer knew the rules governing their powers. The bill attempts to clarify these rules.
I wish to highlight the issues involved in this bill. The bill proposed by the Minister of Justice deals with an important value in our present society: respect for privacy. In fact, as the Supreme Court pointed out, arrests made in private dwellings must be carried out with respect for individual rights, and especially the right to be secure against unreasonable search or seizure, which is protected under section 8 of the Charter of Rights and Freedoms.
The importance of the right to privacy and to protection of one's property is neither new nor unique. In fact, a British ruling in common law, which forms the basis of our criminal law dating back to 1604, almost 400 years ago, describes the importance of the right to privacy in the following manner: “A man's home is his castle”. The protection of privacy in our society dates back more than 400 years.
In this same judgment, called the Semayne case, a limit is imposed however on the concept of inviolable castles. In other words, it is not because an individual is in a house that the power of the state stops at the door. It goes on to say: “In all cases where the King is involved, the Sheriff can, if the doors are not open, use force to gain entry into the house in order to arrest the person or to execute the King's judicial instrument.”
So, even in those days, society recognized that an individual's rights and freedoms with respect to privacy could be curtailed when the public interest and safety demanded it. It therefore comes down to a question of balance, as I said in my introduction.
But if the state can give itself the authority to act in the sphere of individuals' private affairs, the intrusion must respect the rules laid down by law, whether that law be the common law, statutes or the charter. These standards were analyzed by the supreme court in the well known Feeney decision, which I will now look at.
What were the facts in this case? First of all, Mr. Feeney was suspected of murdering one Frank Boyle. After collecting evidence, the police went to Feeney's dwelling, knocked on the door and said “Police, open up”. There was no response. The police therefore entered Feeney's dwelling, went over to him and touched him to wake him up. Feeney was thus arrested without a warrant and evidence was seized. He was tried and found guilty of second degree murder. He appealed on the grounds of violation of section 8 of the charter, the section against unreasonable search or seizure, and section 10 which provides for the right to counsel.
What were the applicable laws? First of all, there was the common law, on which our criminal law is based. This is an issue with which our courts were already familiar. There was the Eccles case in 1975, which dealt with the right to make an arrest in a dwelling following forcible entry.
The supreme court at the time ruled as follows “Entry can be made against the will of the householder only if ( a ) there are reasonable and probable grounds for the belief that the person sought is within the premises and ( b ) proper announcement is made prior to entry”. This is the basic test in Canada, the first truly important ruling by the supreme court on this issue.
Then, eleven years later, in 1986, came the Landry case. The supreme court stipulated that the police may enter a dwelling without permission to make an arrest without a warrant if the conditions of Eccles and section 495 of the Criminal Code are met. That section reads as follows “A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence—” That is what is called the objective criterion because what is stated is that there are reasonable grounds to believe. That is subjective.
In 1990, the supreme court came up with a more objective criterion and added a final condition. In order for an arrest without warrant to be legal, there must be reasonable and probable grounds to make that arrest. No longer is it just “reasonable grounds to believe”, what the police officer himself or herself thinks, but a reasonable person looking calmly at the situation would also have to agree to. There are, therefore, two criteria: subjective and objective.
If we include the criteria in jurisprudence, we could summarize the rules of common law as follows. An arrest without warrant made after forced entry of private property is legal under common law if: (a) the police officer making the arrest has grounds to believe that the person sought is indeed present there; (b) a standard statement is made; (c) the police officer believes he or she has reasonable grounds for making the arrest; and (d) there are reasonable and probable grounds to make the arrest—the objective criterion.
There is not just common law, however. Now we have the charter of rights and freedoms. The right to privacy has become very important in Canada since the arrival of the charter. As I said earlier, section 8 is now enshrined in the Constitution through the charter. Legislation cannot therefore infringe this section in the same way as the protection offered by common law.
In Hunter, 1984, the supreme court decided that searches and seizures were permitted only with authorization, that is, a warrant, from an independent legal body, which had considered the reasonable grounds of the projected search or seizure.
If we look at the criteria in Hunter and the other cases relating to section 8 of the charter, we conclude the following. Under section 8 of the charter, searches conducted without warrant in areas where the occupant has a reasonable expectation of privacy are unreasonable. The party conducting the search must prove that it is reasonable. A reasonable search must meet the following conditions: (a) it must be permitted under the law; (b) the law must not unreasonable of itself and (c) it must be conducted in a reasonable manner.
The arrest in this particular case was illegal, because the conditions for making an arrest without warrant under section 495 of the Criminal Code were not met and because the police can make arrests without warrant in a private home only in exceptional circumstances.
What did the court say in Feeney at the time? “The police did not subjectively believe that there were reasonable and probable grounds for arresting the appellant before making forcible entry, without a warrant, into the house where he was sleeping. Besides the effect of the charter on the conditions required for arrest without a warrant in a residence, the absence of subjective belief in the existence of reasonable grounds indicated that the police could not have arrested the appellant legally under section 495 of the Criminal Code even if he had been in a public place”.
What effect did this have? It came as a bombshell as I said earlier. Police officers said “Wait a minute, what are we supposed to do now?” The government decided to introduce this bill to clarify the rules and help police officers do their work, which, let us not forget, is essential in our society.
Bill C-16 essentially introduces three changes. First, to enable peace officers to obtain judicial authorization to enter dwelling houses, and this follows on the heels, so to speak, of the jurisprudence in Hunter and Feeney. Second, to enable peace officers to enter dwelling houses without prior authorization in exigent circumstances and where provincial or federal legislation or common law authorize entry. Third, to amend the Interpretation Act.
The key clause of the bill states that a warrant to arrest or apprehend will authorize entry in a dwelling house by a peace officer if the judge or justice is satisfied that there are reasonable grounds to believe that the person named in the warrant for arrest is present in the dwelling house. This is the subjective criterion. The peace officer can execute the warrant only if he himself has grounds to believe that the persone to be apprehended is there.
Section 529.1 enables a judge or justice to issue a warrant to enter a dwelling house described in the warrant—note that it must be the dwelling house described—to carry out an arrest with or without an arrest warrant.
However, there are exigent circumstances, as mentioned by other members. When time is of the essence, it is not possible to go and to get a warrant.
Clause 529.3 of the bill allows a peace officer to enter a dwelling house without a warrant, if the conditions under section 529 or 529.1 exist, that is if he has reasonable grounds to do so, and if, by reason of exigent circumstances, it is necessary to do so. An attempt is made to define “exigent circumstances”:
a) reasonable grounds to suspect—”
—that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person. Exigent circumstances also include circumstances in which there are reasonable grounds to believe—
—that evidence is present and that entry is necessary to prevent the imminent destruction of that evidence.
These are the exigent circumstances, as defined in the bill.
Clause 529.4 of Bill C-16 deals with the issue of omitting to make a prior announcement of the entry. In the Feeney case, the supreme court stated that a peace officer was required to announce himself before entering a dwelling-house. However, the Supreme Court also pointed out in the Eccles case that this obligation could be waived in case of an emergency. This is the case of battering a door down.
It could be argued that the exceptions listed in clause 529 reflect the case law. It is the case with regard to battering a door down.
I will stop here for now, because the House will now proceed to statements by members. I will resume after oral question period. Mr. Speaker, you may proceed, and I will resume later on.