Debates of Nov. 7th, 1997

The House proceeded to the consideration of Bill C-16, an act to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwelling), as reported (with amendment) from the committee.

Criminal Code

[The Speaker]

There are six motions in amendment standing on the Notice Paper for the report stage of Bill C-16.

Motion No. 1 will be debated and voted upon.

Motions Nos. 2, 4 and 6 will be grouped for debate. A vote on Motion No. 2 applies to Motions Nos. 4 and 6.

Motions Nos. 3 and 5 will be grouped for debate. A vote on Motion No. 3 applies to Motion No. 5.

I shall now propose Motion No. 1 to the House.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

moved:

Motion No. 1

That Bill C-16, in Clause 2, be amended by replacing lines 36 to 45 on page 5 and lines 1 and 2 on page 6 with the following:

“529.5 A warrant under section 529.1 or an authorization under section 529 or 529.4 may be issued on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with any modifications that the circumstances require, to the warrant or authorization.”

Mr. Speaker, I rise to speak to this amendment with some regret that we are in this situation. We are facing a problem within the Department of Justice when important amendments are being made to the Criminal Code that for all intents and purposes are being ramrodded through at the committee level and through the House.

As a result of the supreme court decision in the Queen v Feeney, the Department of Justice was faced with a situation in which it had to fill a gap that had been left by the supreme court when it struck down sections of the Criminal Code that pertained to the powers of arrest.

What has happened here is akin to the trampling on the right of Parliament to actively and in a substantive way participate in the debate and the process to make recommendations as they pertain to the Criminal Code of Canada.

Time was certainly of the essence. The supreme court, by virtue of a stay that was entered back in July of 1997, gave Parliament the time to react to fill the gap left by the decision handed down in the Queen v Feeney.

The problem that I have with this is that five and a half months have past. The justice department was given ample opportunity to react, to make the appropriate amendments to address this situation. By the time it reached committee stage, members of Parliament, the elected officials of this House, were given less than five days to consider it. To be precise, they were given approximately eight hours to discuss, in the presence of witnesses and among each other, these very important amendments which affect the powers of arrest for all police throughout the land.

The committee did have the benefit of hearing a number of very important witnesses. The witnesses included the Canadian Police Association and the Canadian Chiefs of Police. We heard from a victims' advocate group, the Canadian Resource Centre for Victims of Crime.

We also had the benefit of hearing from a very distinguished criminal lawyer, a gentleman by the name of Irwin Koziebrocki. Mr. Koziebrocki is the treasurer of the Criminal Lawyers Association of Canada. Of all the witnesses, he made a statement which I found quite startling. He deemed one of the proposed amendments to be unconstitutional. He said that it would not withstand a charter of rights challenge.

That is not to say that his opinion could not be wrong. However, when an experienced trial and appeal court lawyer makes this pronouncement before a committee, hours before the amendments are tabled and given third reading, that should give the department and all members of the committee reason to pause and to ponder whether we want to have this legislation pushed through in a flawed form, leaving it open to the possibility that within months, weeks or days we could be faced with another court challenge which may strike down, in the worst case scenario, these amendments.

The first amendment which I have put before the House pertains to the authorization of telewarrants in Canada. This amendment came about after some consultation with the Quebec bar association, which did not appear before the committee but which submitted a brief.

The amendment speaks to the evolution of new technology in communications which should be made available to all peace officers in the country.

The reality of Canada, of this vast land, is that we are not all centred in large metropolitan areas like Calgary, Toronto or Halifax. A great part of this country is spread out in rural areas. Police officers are often working out of one or two person detachments. They need to have access to justices of the peace. They need to be able to get authorization to act quickly and in a very decisive way.

Telewarrants, this new form of technology that we have with fax machines, with telephones and with cell phones, increase the possibility that a police officer can do something when faced with exigent circumstances. Exigent circumstances is a newly coined phrase that came out of the decision of the Queen v Feeney. Exigent circumstances often exist in the daily lives of police officers that are faced with very serious situations.

Telewarrants permit police officers to contact justices of the peace, but that is all for naught if the resources are not allocated to make justices of the peace available. It is easy to pick up a phone or to dial a fax number, but if no one is on the other end of the line to receive the information and authorize the warrant, a real problem exists.

I would suggest that this amendment goes further than the present amendment as proposed by the government in enabling peace officers in broader circumstances to avail themselves of the ability to have a warrant granted. I want to add to that the necessity of the resources. The resources have to go cheek and jowl with the ability to get these warrants. We need to ensure that there are going to be more justices of the peace available, particularly in rural parts of the country.

I would emphasize the remarks I made at the outset. It is with some regret I find myself in this situation where we have to debate this further on the floor of the House of Commons. The committee level, had it been conducted in a more professional and timely way, would have avoided this necessity.

This amendment is one that all members of the House should consider and support. It goes to increasing the security for all Canadians and aids the police in their very important role in enforcing the criminal law within the country. As members of this House, particularly members of the justice committee, we have to be very strident in our attempts to oversee what is happening with the amendments to the Criminal Code.

The Minister of Justice, the chief executive officer for administering law in this country, can and should have at least contemplated the necessity of rising from her seat, walking down Wellington Street, knocking on the door of the Supreme Court of Canada and ask for an extension. It would have avoided the necessity of pushing this through at the eleventh hour. It would have allowed us to have proper debate at the committee level and if necessary on the floor of the House of Commons.

I speak in favour of this amendment. I would be very interested to hear the remarks of the hon. members present today.

[Eleni Bakopanos, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

Madam Speaker, I would like to start by repeating what has already been said in the House, which is that the government was obliged by the supreme court to ensure that both sides of the House could meet a court set deadline. This was not a deadline set by the government but imposed on us by the Supreme Court of Canada.

I would also add that in my view sufficient time has been allowed, both in the House and in committee, for opposition motions to be brought. Unfortunately, only one was received in committee. There was no discussion by the opposition on these motions. This is really stretching a point, because there was ample time available Wednesday evening for discussion and the opposition brought no amendments.

I would like to point out that we feel that, yes, the deadline is a little short. The deadline was imposed on us by the supreme court. It was not a deadline that we imposed on this House.

Second, there was ample time. The committee members on the government side were more than willing to spend more time discussing any motion brought forward by any member of the opposition. None of these motions was brought forward. There was discussion but none of the motions was brought forward to be discussed at the committee level. The opposition members decided to bring them forward in the House.

Fearmongering from the opposition by saying this will be unconstitutional is presumptive on the part of the opposition. We do not know whether this will be declared unconstitutional. We had no constitutional experts that came before the committee to to testify except a lawyer. I think that is an assumption that should not have been made.

The government is not able to support motion No. 1. This affects the very notion of practicability. The rule with respect to telewarrants is that the police are not in a position to meet a justice of the peace in person. This rule has been on the books for approximately 10 years. It is nothing new and it is seen as necessary to defend the constitutionality of the entire telewarrant scheme in the Criminal Code.

Motions 2, 4 and 6 all relate to the use of the singular to refer to dwelling house in the bill. Some have argued that in order to allow for warrants to apply to more than one dwelling house we need to refer to dwelling house in the plural. That is why we have the Interpretation Act. The Interpretation Act already provides that the singular includes the plural. All federal legislation, and this legislation in particular, Bill C-16, has been drafted with that rule in mind.

This amendment seems to undermine the way all federal legislation is drafted and would be a bad precedent in my opinion. It would make the interpretation of other statutes more difficult and uncertain in the future.

We are not able to support this motion as it is inconsistent with other provisions of the Criminal Code.

On Motion No 3, we are not able to support this motion either. The reason is that the motion addresses form 7 because it is a warrant for arrest. This warrant has been known to law for over 100 years and requires that the person be identified. If we cannot identify a person we should not be seeking a warrant for an arrest. That implies a person has been charged with a crime.

However, the government would be amenable for supporting Motion No. 5, and I will speak to that motion.

This amendment relates to form 7.1 and section 529.1 of the Criminal Code. The amendment would make it clear in the form what is already permitted by section 529.1. That section makes it possible to obtain a warrant for entry in order to arrest someone who is identifiable as opposed to identified.

I believe that if this form were amended as proposed by the hon. member we would be improving on the language in the bill by making it perfectly clear on the form itself that this is possible.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Madam Speaker, I am pleased to speak to this extremely important bill. Like the members who spoke before me, I think I will say a few words on the procedure imposed on the Committee on Justice and Human Rights.

I know that it is following a decision by the Supreme Court of Canada in the Feeney case that the government was required so to speak to amend the provisions if it wanted to correct the situation. The ruling was made on May 22, 1997, in the middle of the electoral campaign. However, as I openly said in committee—and there is no reason to hide this—officials wisely held consultations across Canada and Quebec.

My concern in all this is that there were no consultations before the political side of this issue was addressed, that it was only on Friday of last week that Bill C-16, which is in fact very important, was tabled in this House, which has been sitting for eight weeks. It may not be the fault of the Liberal members, but it is surely the fault of the federal government's cumbersome bureaucracy and procedures if we have to accelerate the review process as we are doing.

However, after consulting with people who have an interest in seeing this bill improve the Criminal Code, I believe that this bill is generally acceptable. We do not support it without reservations, but considering the time we have to review it, I believe that as a first step, it is something we can live with.

I will deal with the amendments in each group. I will speak very briefly on the first group, which includes Motion No. 1. I think that the wording of Section 529.5 in Bill C-16 reflects in fact what is found in other provisions, other laws. I don't think we should amend this section as proposed by the member of the Conservative Party. I think that the wording in the section on telewarrants meets requirements that have already been established in this area.

I want to read it to you because I think it clearly indicates that such warrants may only be issued in exceptional circumstances.

The rule is that the peace officer must appear personally before the judge to make an application for a warrant, but it can happen in exceptional circumstances that it would be impracticable, to use the words in the section, or impossible for the police officer to appear before a judge. It can also be an emergency situation—and there is a section that deals with these—, and the police officer cannot appear before a judge.

The section, which is very clear, says the following:

If a peace officer believes that it would be impracticable in the circumstances to appear personally before a judge or justice to make an application for a warrant under Section 529.1 or an authorization under Section 529 or 529.4, the warrant or authorization may be issued on an information submitted by telephone or other means of telecommunication and, for that purpose, Section 487.1 applies, with any modifications that the circumstances require, to the warrant or authorization.

I think that the wording reflects the purpose of this section, and to keep our laws in general as simple as possible, I believe that we should not amend this section because it is similar to all other sections dealing with telewarrants. That is why we will oppose Motion No. 1 as presented.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Madam Speaker, I thought I might have to get up on a chair to get noticed.

I regret very much the situation that the House finds itself in at the moment from a number of points of view. I thought there had been an understanding to dispose of this matter by today. Now it appears that technically speaking that was not the case. There was only an agreement, technically speaking, to begin the debate today and this will now carry over, I presume. It also means that some of us, having taken the agreement a little more seriously than others, find ourselves in a bit of difficulty.

Fundamentally I think the government has to take some responsibility for this because I see a pattern emerging here. I think this is the third time in this Parliament when we have been presented with something that has to be dealt with by a certain date. There is always truth in that claim but the truth comes from the fact that the government has left it until the 11th hour, so to speak.

The opposition in some cases has been co-operative and in some cases not. The government made a similar argument with respect, for instance, to the CPP, that it had to have this through by a particular time because it had an agreement with the provinces and were prepared to move closure on that.

In respect of this particular bill, we thought that the government's argument had more merit but was not entirely meritorious in the sense that this is something the government has known about since July. It is also something Parliament could have been dealing with when we first got back. If the government had done its work between the time it was elected and the time that Parliament came back we would not be in the situation we are in this week where we only had one week to deal with these particular amendments.

I do not know why these amendments could not have been moved in committee but I assume there must have been some good reason why the hon. member moved them now at report stage. Perhaps he tried and the government prevented it in some way. However, it is surely the case that the amendments we have now before us mean that this will be carried over until after the break unless there is some procedural way of dealing with this that I do not know about at the moment.

Obviously the NDP has supported the government along with all the other parties in dealing with this situation that the supreme court has put back in the hands of Parliament by virtue of its decision in the Feeney case.

We will be considering very carefully the amendments put forward by the hon. member and will render a judgment in due course.

[Eleni Bakopanos, Liberal, Ahuntsic, QC]

Madam Speaker, I just wanted to know whether the hon. member who presented the motion has agreed that we can separate Motion No. 3 from Motion No. 5.

[The Acting Speaker (Ms. Thibeault)]

The parliamentary secretary is getting a little ahead of us. At the moment, we are dealing with Group No. 1, Motion No. 1. We will go on to the next ones after that.

Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker (Ms. Thibeault)]

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

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Acting Speaker (Ms. Thibeault)]

All those in favour will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker (Ms. Thibeault)]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker (Ms. Thibeault)]

In my opinion the nays have it.

[Some hon. members]

On division.

[The Acting Speaker (Ms. Thibeault)]

I declare the motion lost on division.

(Motion No. 1 negatived)

[The Acting Speaker (Ms. Thibeault)]

Motions Nos. 2, 4 and 6 will be grouped for debate.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

moved:

Motion No. 2

That Bill C-16, in Clause 2, be amended by adding after line 2 on page 6 the following:

“529.6 For the application of section 529 to 529.5 inclusive, and without referring to the Interpretation Act, the word “dwelling-house” shall be deemed to include “dwelling- houses” when the circumstances arise.”

Motion No. 4

That Bill C-16, in Clause 3, be amended by

(a) replacing line 27 on page 7 with the following:

“house or houses);”

(b) replacing line 29 on page 7 with the following:

“to enter the dwelling-house or houses for the purpose of”

(c) replacing lines 32 and 33 on page 7 with the following:

“dwelling-house or houses unless you have, immediately before entering the dwelling-house or houses, reason-”

(d) replacing line 36 on page 7 with the following:

“dwelling-house or houses.”

Motion No. 6

That Bill C-16, in Clause 3, be amended by

(a) replacing line 21 on page 8 with the following:

“in (here describe dwelling-house or houses);”

(b) replacing line 23 on page 8 with the following:

“enter the dwelling house or houses for the purpose of ar-”

Madam Speaker, I am proposing in this amendment a very practical common sense solution that would go a long way in assisting police officers when encountering a situation where they are looking for an escaped criminal, breach of parole individual, or looking for a person wanted by the police for a serious or indictable offence.

In its present form this amendment speaks of the naming of a single dwelling house. I know the government's response may include the Interpretation Act wherein the singular includes the plural. One of the purposes of parliament should be to create new, wordy and mellifluous sounding legislation and to simplify for the police, and as I said in the House yesterday for the purpose of the general public, understanding of the legislation that directly applies to them.

This amendment is quite simple in its drafting. It includes dwelling houses rather than dwelling house. It would allow a police officer faced with a situation where he had to seek a warrant to go and speak to the justice of the peace and explain. It also allows him to name specifically the areas where he is looking.

For example, if a criminal was believed to be harboured in the home of a friend, at a clubhouse or at a residence that he was known to frequent, the police could quite simply place on the warrant a number of dwelling houses or house in which they were searching for him. It gives the police more flexibility in their ability to investigate. It is a very straightforward amendment. I would be surprised if the government were not quick to embrace it.

I also want to address a question posed by my hon. friend from the NDP with respect to why this is the forum in which to make these amendments.

As I indicated earlier, what occurred in committee was a simple ramrod railroad approach to clause by clause discussion of these amendments. There was no opportunity to discuss or to put these amendments forward. It was done in the blink of an eye without any ability to put the amendments forward in any substantive way, to the point where we were so rushed in the compromise of this committee that we did not even have the opportunity to speak of the ground rules that would govern the committee itself. This was done after the fact.

We brought this piece of legislation to the committee level without having set the rules to govern the committee that was going to be making decisions on the amendments. This causes me great concern.

I do not blame the parliamentary secretary. I have empathy for her and the chairman of the justice committee who found themselves in this position and were doing the government's bidding in a very uncomfortable situation.

I put this amendment forward in all god faith and in all seriousness. I encourage hon. members of the House to look at it. I have tried to explain it in a very straightforward way. It is one which would assist police in their very necessary and very public duty to carry out and exercise arrests throughout the country.

Once again I encourage members to support this amendment and I thank the House for its indulgence.

[Eleni Bakopanos, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

Madam Speaker, I will just repeat that we on this side of the House do not support Motions Nos. 2, 4 and 6.

I am not looking for sympathy from the opposition members. As other members have said, there was agreement of all parties to expedite passage of the legislation through the House.

Again I repeat that we have an obligation to the Supreme Court of Canada to meet its deadline. I would appreciate co-operation, but I am certainly not looking for sympathy from opposition members.

[Garry Breitkreuz, Reform, Yorkton—Melville, SK]

Madam Speaker, I will not speak more than a few moments. I want to reply briefly to what the member from the government side said and to support my colleague.

The government made the point that it has an obligation to pass the legislation as quickly as possible. The Liberals had six months. They knew it was coming but they have left it to the 11th hour. We have seen time and time again in the last four years that they ram things through at the last moment. I want to register my objection to the process here.

We did not have the opportunity at committee to introduce a lot of these amendments. I support the amendments that are being made. I think they are being put forth in good faith. They are proper amendments.

The government is dismissing them at hand because they come from the opposition. I do not think that is acceptable. I would like to register my objection to these kinds of things happening in the House.

For democracy to function properly we need time to look at legislation, to examine it properly and to make sure it is the best legislation we can have. We have seen too much legislation being passed with time allocation, being rammed through at the last minute. Then we come back and realize that we did not get it right, that we made some grave errors. It is happening again and again.

We could have done this months ago. This could have been introduced at the beginning of this Parliament but it was not. That ought to be on the record to show that we do not like what is happening in the House.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I would like to respond to the comment made by the parliamentary secretary that the government had to get this legislation through. There was reference to the court essentially setting a deadline without any compromise. That is not the case. There is precedent that there can be extensions. A request could have been made to the supreme court quite simply. That is my point of clarification.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Madam Speaker, I will take 30 seconds since I want this bill to pass today. However, I want to add my voice to these three motions: Motions Nos. 2, 4 and 6.

I would say first off that I oppose these motions and I will tell you why briefly. As we know, an arrest warrant, a warrant to enter a dwelling house or other similar warrants already contravenes the Canadian Charter of Rights and Freedoms. It is somewhat similar, in fact, to what happened in the arrest in the Feeney case.

I believe the amendment proposed by the hon. member broadening the scope of arrest or entry warrants to apply to dwelling houses contravenes the charter. It is too broad and too vague. I think we are leaving ourselves open once again to criticism, and certainly to having these amendments to Bill C-16, or more specifically, clause 529.6, rejected by the courts as in the Feeney case. This is our only reason for opposing these three motions.