Madam Speaker, I rise today to speak to Bill C-245, an act to amend the Criminal Code (search and seizure without warrant).
The proposed amendments to the criminal code would prohibit a peace officer who was aware that a danger to public safety existed from searching for and seizing, without first having to obtain a warrant, firearms from people who pose a potential danger to themselves or to the public.
Regardless of the existence of exigent circumstances, that is, circumstances that have been examined by the courts in the past and found to be constitutional, the amendment would prohibit police from quelling an imminent danger to public safety. It is conceivable that the police would be powerless to act while life is at risk.
In many situations where time is of the essence, this could result in the loss of life. The provisions of Bill C-245 are inconsistent with the powers police need to effectively perform their duties. They are inconsistent with the principles of firearms control in Canada and inconsistent with the interest of public safety.
The proposed amendments by the hon. member for Lakeland would endanger public safety. The Minister of Justice cannot support the amendments to the criminal code put forth by the hon. member.
The existing provisions of the criminal code are a valuable part of Canada's firearms control legislation and important for ensuring public safety. The controls on the possession and use of firearms set out in the Firearms Act are justified in a free and democratic society by the need for safety and security for our society.
While it is recognized that most Canadians who own and use firearms do so prudently and responsibly, the presence of firearms under some circumstances carries with it a risk for the safety of all. In those circumstances, the police must be empowered to adequately respond to the danger present. The current provisions of the criminal code permit them to do that. Bill C-245 would not.
The current provisions of the criminal code were devised to reach a middle ground, balancing an individual's need for privacy with the public's right for safety and security. They have been refined over the years to ensure that the parameters are clearly understood. They have been in place in one form or another for over 25 years and have not been the subject of misuse.
As a rule, a peace officer requires a warrant to search for and seize firearms or firearms related items from individuals where it is not in the interest of safety that the person possess firearms.
Where public safety is at risk and exigent circumstances are present, the criminal code permits peace officers, provided that they have reasonable grounds to obtain a warrant, to search for and seize firearms and firearms related items without a warrant.
While the existing provisions of the criminal code permit searches and seizures of firearms and firearms related items in exigent circumstances, such searches are not without limits or exempt from judicial scrutiny. A peace officer who conducts a search without a warrant must nonetheless forthwith make a return to a justice indicating the items seized and the grounds on which the search was conducted. Thus, judicial scrutiny is maintained even over exceptional searches.
The proposed legislation put forward by the hon. member for Lakeland would allow a person whose property is lost or damaged as a result of entry and search to apply for restitution to the justice who issued the warrant.
The criminal code does not provide immunity from civil liability for damage to property. While peace officers are in some instances offered protection from criminal liability they remain accountable to the courts in both a criminal and civil context for their actions.
In civil courts crown liability exists by virtue of the Crown Liability and Proceedings Act. The liability of provincial or municipal peace officers is addressed by provincial police acts or other acts.
In the same manner as a private person, the crown is liable in tort for damages caused by its agents. Capricious or careless actions on behalf of peace officers in conducting search and seizure for firearms or firearms related items, either with or without a warrant, remain actionable.
The provisions authorizing warrantless searches do not confer untrammelled powers to peace officers. People who suffer property loss or damage as a result of a search and seizure by peace officers, either with or without a warrant, already have a means to seek redress if they have been wronged or have suffered damages.
The issue of restitution for lost or damaged property is complex. The hon. member for Lakeland proposes that matters of civil liability be dealt with in criminal courts by justices who are trained to deal with criminal matters. Justices who hear applications for warrants to search and seize are not experienced in issues of civil liability. Those matters are best left to the civil courts.
Civil courts are in a better position to adequately deal with issues of liability, value and quantum of damages. They have the expertise and experience and they deal with such issues day to day.
The current provisions of the criminal code strike the proper balance between an individual's need for privacy and the public's right to safety. They establish proper limits and judicial safeguards while empowering police to adequately respond to situations that endanger public safety. The provisions are responsive and fair.
An individual's right to compensation for lost or damaged property is protected by the civil courts and there is no need to change the present provisions of the criminal code.
For these reasons the Minister of Justice does not support these amendments to the criminal code.