Mr. Speaker, some days are busier than others. Today, I was in a building on Wellington Street to attend a sitting of the Standing Committee on Justice and Human Rights, but I insisted on rushing back here to speak on Bill C-18, an Act to amend the Customs Act and the Criminal Code.
These are extremely important amendments. This bill, which was tabled by the Minister of National Revenue, affects several facets of law. There is one entire section that deals with the changes and enhanced powers the government wishes to give customs officers.
This is not a new bill, however. It is numbered C-18, but it was tabled in exactly the same form during the 35th Parliament as C-89. It will be remembered that it was tabled by the government of the day on the eve of the calling of the federal election, on March 13, 1997.
During the first mandate, a number of groups came to the Standing Committee on Justice and Human Rights as well as to the government calling specifically for the government to change certain provisions of the Customs Act in order to enhance some powers. A number of groups have long pointed out the need for customs officers to be able to enforce criminal law at Canadian entry points. In a country like Canada, especially, which has such a long border with a lot of entry points, offences have occurred over the years, and customs officers lacked the tools necessary to deal with them.
What provision does the Customs Act make at the moment? We are told that customs officers have powers, but they are enforcement powers as established under part VI of the Customs Act. These powers apply to surveillance duties and to the control of merchandise imported into or exported from Canada. They include the power to search a person in order to find proof of an offence and to inspect, detain or seize merchandise.
Currently customs officers' powers apply primarily to merchandise entering or leaving Canada. They do not involve the application of provisions of the Criminal Code. The expression “peace officer” in the Criminal Code includes customs officers, but only in the context of offences set out in the Customs Act. For example, section 163(1) of the Criminal Code stipulates that it may apply with respect to offences set out under sections 153 or 159 of the act, which are false statements and smuggling.
Under these circumstances, customs officers are invested with the powers granted peace officers under sections 462.3 and 462.32 to 462.5 of the Criminal Code. In short, at the moment, customs officers are considered peace officers under the Criminal Code only in the case of offences set out in the Customs Act.
The bill is proposing to amend the Customs Act to set out new offences that come under the powers of customs officers. They really want to use the bill to give the customs officers greater opportunity to intervene when they witness certain offences.
Let us be clear about the changes. At present, customs officers are only allowed to act when an offence under the Customs Act has been committed. Since they do not have jurisdiction over Criminal Code offences or impaired driving offences—we will come back to that later, because there are specific provisions on this—they cannot act in those instances. There has been in the past striking examples of cases where blatant irregularities took place at Canadian ports of entry and departure because customs officers did not have the power to act.
Bill C-18 proper contains four clauses. These are small technicalities, but I think they are worth mentioning anyway. Clause 1, which makes substantive changes to the Customs Act, is the bill's main provision, while clauses 2 and 3 amend two sections of the Criminal Code; these amendments, although minor, are nevertheless far-reaching in terms of the customs officers' jurisdiction. Finally, clause 4 is the usual provision dealing with the coming into force of the bill.
I will take the extra time at my disposal to look at a number of very important provisions. Clause 1 of the bill would add part VI.1 to the Customs Act. This new part is entitled “Enforcement of Criminal Offences Other than Offences under this Act”. As indicated in the title, legislation other than the Customs Act is involved, hence the importance of the powers conferred upon customs officers.
Section 163.4 would be added, stipulating that the minister may issue a certificate of designation to customs officers for the purposes of new part VI.1. In this respect, according to documents from Revenue Canada, these new powers would only be granted to customs officers at ports of entry to Canada who are not students. This is reassuring, since it is an important power. It will only be given to customs officers on duty at Canadian ports of entry. The certificates of designation will be issued by the minister. As will be seen later, we have some concerns. While we support the bill as a whole, as we did during the 35th Parliament, we do have concerns regarding the certificates of designation.
The next important provision is paragraph 163.5(1), which gives a designated officer the powers and obligations of a peace officer under sections 495 to 497 of the Criminal Code. These are very important sections. As you know, section 495 gives a peace officer the right to arrest without a warrant a person who has committed an indictable offence or is about to commit such an offence. Section 495 also provides that this power can only be exercised under exceptional circumstances, that is when the officer has reasonable grounds to believe that public interest requires such an intervention.
Under section 497, a peace officer who makes an arrest without a warrant must release the person arrested as soon as practicable, unless he has reasonable grounds to believe—this is another well-known legal concept—that it is necessary in the public interest to detain that person.
It is to be noted that these new powers can only be exercised in a customs office. So, while additional powers are given to customs officers, the bill restricts their use and relies on well-known legal concepts. These concepts are also recognized in case law and, over the years, they have been interpreted under a number of acts, including the Canadian Charter of Rights and Freedoms and the Quebec charter. The expression “reasonable grounds to believe” has indeed been interpreted.
The additional powers given to customs officers come with certain obligations. In the final part of my speech, I will comment on the obligations that will apply to customs officers as a result of these amendments.
Bill C-18, an act to amend the Customs Act and the Criminal Code, contains an extremely important provision. I must say that I am very happy to see that the lawmakers have included a provision to amend the Criminal Code accordingly through the Customs Act. This provision can be found in proposed paragraph 163.5(2). It would give designated customs officers—the same officers just designated by the minister—the powers and obligations of a peace officer under sections 254 and 256 of the Criminal Code.
What are sections 254 and 256 of the Criminal Code? As everyone knows, I am sure, these are the sections having to do with impaired driving. Customs officers will have powers similar to those of peace officers, at border points for entering or leaving Canada—it all depends on the direction of travel. They will have the same powers as peace officers to apply sections 254 and 256.
These provisions are for the taking of breath or blood samples in cases of impaired driving. Thus, where a peace officer believes on reasonable and probable grounds—again, the same principle of law recognized by lawyers—that a person is committing or has committed the offence of driving while impaired as described in section 253, that officer may, under the provisions of another section, section 254(3), require that person to provide him with a sample of the person's breath or, in certain circumstances, blood.
In the past, when a person who was driving into or out of Canada had alcohol on his breath, the customs officer to whom that person made his declaration could do absolutely nothing about it.
Mr. Speaker, as an Ontario MP, you are well aware that the biggest port of entry between the USA and Canada is Windsor. This was an extremely big problem in that region of Ontario, because many people who worked across the border, or who crossed to the States or to Canada for a night out, were at the wheel of a vehicle and had had one too many. When they went through customs, the customs officer could do nothing.
With this amendment, in the form of subsection 163.5(2), customs officers will have additional powers and will be able to require individuals to provide a breath sample. Their actions will have legal consequences, eventually.
Proposed subsection 163.5 (3) provides that a designated officer who arrests a person in the exercise of the powers conferred under subsection (1) may detain the person until the person can be placed in the custody of a police officer or peace officer.
I find this reassuring, that customs officers' powers are being enhanced within very definite limits. These are very clearly delineated powers. The customs officers' powers do not replace those of the police officers of a province, nor those of the RCMP in provinces served by the RCMP.
Section 163.5(4) would limit the new powers of the designated officers by stipulating that they could not use any power conferred on them for the enforcement of the act for the sole purpose of looking for evidence of a criminal offence under the Criminal Code or any other act of Parliament. The purpose of this is to prevent customs officers from searching for evidence of other criminal activities.
With this clause too, the lawmaker has imposed certain limits on customs officers, that is, a customs officer witnessing an offence will be empowered when this bill is passed to investigate and gather evidence of what he has seen. If he has reasonable grounds to believe that an individual is, for example, moving stolen goods from Canada to the United States, he has, under the legislation and if there are reasonable grounds to believe the goods are in the trunk of a car, the power to examine the items in order to gather evidence to hand over to the police with jurisdiction where the customs officer made the seizure or conducted his investigation.
So, as we can see, there are limits, which are extremely important. Substantial additional powers, essentially the powers of peace officers, cannot be given to customs officers without limits being set, without very precise limits to ensure that everything occurs according to the intent of the bill.
As I have said on a number of topics, we will support the bill. However, we have some questions. As I said earlier, we have already examined the bill in the previous Parliament under another number and another title. This one is exactly the same as the one that was introduced in March 1997. I will raise certain points, which, at the time, gave me cause for considerable thought and also convinced me of the merits of such amendments.
In 1995, a study revealed that, in 17 months, there were over 4,000 instances where criminal law could have been applied in one way or another at 160 ports of entry either on the highways or at airports. According to Revenue Canada officials, the majority of these are suspected instances of impaired driving. In these 4,000 cases, no action was taken because customs officers did not have the jurisdiction to act.
The same study shows that an amendment to the Customs Act similar to the one contained in Bill C-89—at the time, we were considering Bill C-89, tabled on March 13, 1997—would fill the gap between the time when customs officers observe a Criminal Code offence and the time when the police can respond. It was clear from the statistics and from past experience that there was indeed a loophole allowing law-breakers to get off scot-free. This bill bridges the gap to correct this shortcoming and ensure that offenders are prosecuted.
Given the foregoing, we must recognize that the Criminal Code could be much more effectively enforced at our borders if our customs officers were given the appropriate tools.
However, while public safety may demand that we support the bill before us, some aspects will definitely have to be looked into at the Standing Committee on Justice and Human Rights. There are concerns regarding this bill. Some answers were found in departmental documents, others through informal discussions I have had with government members, but there are still questions that remain unanswered. These questions will be raised at the Standing Committee on Justice and Human Rights on which I sit as a representative of the Bloc Quebecois.
I will mention four points. The first one is the need to properly train the designated officers. As I explained at the beginning of my speech, in some situations and under specific circumstances, customs officers will have basically the same powers as peace officers do, and these powers are very important ones.
It must be realized that in fact the bill proposes a significant broadening of the customs officers' responsibilities. Sections 495 to 497 of the Criminal Code are not easy to apply. They require a high level of judgment on the part of the peace officer, since the consequences are very significant. Take, for example, the expression “reasonable grounds to believe”, which I pointed out earlier. This concept is not difficult to understand. It is a legal concept lawyers are used to work with, judges are used to interpret and officers are trained on. However, I am not sure that customs officers do get that kind of training.
The expression “reasonable grounds to believe” used in these sections is extremely important, as we saw in Storrey v Regina, in 1990, where the supreme court stated that, in order to arrest a person without a warrant, a police officer must have reasonable and probable grounds to believe that the person has committed an indictable offence. This subjective belief on the part of the police officer must also be justifiable from an objective point of view. In order to properly interpret the clues that will influence his subjective belief, a peace officer must have received adequate training. We also have to determine whether or not customs officers should be armed to implement these new provisions. Here again, if it is felt that the implementation of Bill C-18 would require customs officers to be armed, then public safety will also require that customs officers have the necessary certificates authorizing them to handle firearms.
So, yes, there are additional powers, and, yes, we are in agreement. However, if the job is to be well done, if we want to prevent myriad interpretations and court challenges, designated customs officers will need appropriate training. They will perhaps need a basic knowledge of the legal concept of reasonable and probable grounds in order to be able to apply the legal principle. And if these officers—because this question has not yet been resolved—are armed, as are officers of the peace, then they will also have to have the necessary certificates authorizing them to handle these firearms.
My second question concerns the need to cooperate with provincial authorities. The bill would bridge the gap that existed between a customs officer's observation of an offence and police intervention. For this gap to be satisfactorily bridged, it must be possible to count on the cooperation of provincial public security services. It must be remembered—and it is good to remember this from time to time—that the administration of justice comes under provincial jurisdiction and that enforcement of the Criminal Code is thus a provincial responsibility. Although the new provisions would be implemented strictly in the context of federal customs responsibilities, consultations with the provinces would be appropriate.
If we want the amendments to Bill C-18 to be useful, if we want to avoid, once again, at this stage, the problems caused by overlap and unfairness at the enforcement level or to avoid jurisdictional squabbles, it is really essential at this time that the federal government, perhaps through the Standing Committee on Justice and Human Rights—we will surely be hearing witnesses from the police forces—sit down at the same table and find an approach to ensure mutual co-operation.
Another issue I am concerned with is costs. There must surely be costs related to these changes, for example merely in terms of equipping all customs facilities with cells. People cannot simply be arrested and placed at a table somewhere in the corner of some ordinary office. If customs officers have the same powers as peace officers and police officers, and if they are going to arrest individuals who could be dangerous, their safety requires that there be proper facilities, cells like those in any police station. We are told that there are about 80 border points. What are the costs for these 80 stations? This is another question that remains unanswered at this time.
My fourth point concerns infringements of the Canadian Charter of Rights and Freedoms. As we know, when additional powers are granted to customs officers to allow arrests without a warrant, it is possible that there will be violations to the Canadian Charter of Rights and Freedoms. We must never forget that individuals have rights, including protection against arbitrary detention. So we have to ensure that customs officers, when there are reasonable grounds to believe that an offence or other act has been committed, are adequately informed about the rights they might violate if they are not careful.
Here again, we will have to be especially careful in terms of the education and training provided to the customs officers chosen by the minister. In the charter alone, we find sections 8, 9, 10 and 11, which are extremely important, and customs officers will have to enforce this legislation properly to avoid any legal challenge under the charter.