Debates of May 4th, 2001

Criminal Code

[Leon Benoit, Canadian Alliance, Lakeland, AB]

moved that Bill C-245, an act to amend the Criminal Code (search and seizure without warrant) be read the second time and referred to a committee.

Madam Speaker, I am delighted to speak on my private member's bill, Bill C-245, which is an act to amend the criminal code regarding search and seizure without warrant. The act is directed specifically at the Firearms Act, the part of the criminal code that was implemented with the passing of Bill C-68, the infamous gun bill.

First, what I will do in my presentation is talk a little about what the bill does, why it is here, why I think it is very important and why a lot of people in my constituency and across the country feel it is important.

Second, I will talk about my specific concerns with the part of the criminal code which allows search and seizure without warrant and what I propose we should do about it.

Third, I will look at one or two cases, as time will allow, and work through them. One is a very recent case of a newspaper reporting an incident where a gentleman, actually a neighbour of mine on the farm where I was raised, had his house broken into, and what led up to that. That demonstrates probably better than any other way what some of the problems with the current act are.

That is what I will do with my presentation. I am looking forward to getting into this issue.

First, Bill C-245 deals with Part III of the criminal code as enacted by section 139 of the Firearms Act. It was implemented with the passing of Bill C-68 several years ago. The purpose is to remove the power in subsection 117.04(2) to search and seize without a warrant in cases where no offence has been committed.

I encourage people listening to the debate on the bill to look at this. It deals with search and seizure without a warrant in cases where no offence has been committed or is suspected to have been committed. It is really important to know that.

My bill, if passed, would end the unusual search and seizure provisions as put forth by Bill C-68 and bring them more in line with search and seizures in the rest of the criminal code. This is something for which Canadians have been asking, especially gun owners and those who understand that the whole so-called issue of the gun bill really goes way beyond guns. It speaks to our civil liberties, and constitutional implications are involved. I will get to some of those later.

The second part of the bill also makes provision for the restitution for unnecessary loss or damage in a case where a search has taken place. The way it is worded it takes into account whether the loss or damage was reasonably necessary in light of the evidence collected and in light of the behaviour of the person or persons on the premises. I am not saying there is no reason to cause damage in the case of a search process. I want this to be very reasonable.

What I am saying in my bill is that in cases where it is demonstrated that the damage done was unreasonable and unnecessary there would be restitution for the damage done. I think that will cause police officers to be very cautious in their search process, as well as peace officers, because of course under this act it does not even have to be police officers that break into a house without a warrant. It can be any peace officer, which broadens it considerably. That is what I am asking for in the second part of the bill. I would add a section which would ensure that if unnecessary damage is done there would be restitution. That in a nutshell is what the bill is about.

In regard to my concerns, subsection 117.04(2) allows a peace officer to enter the premises to search for and to seize weapons without a warrant. Removal of this section means that a warrant must be obtained for search and seizure except in cases of fresh pursuit, so again I am not being unreasonable. I think most members would agree that this is completely reasonable in a case of fresh pursuit where the police officers strongly believe that there could be some danger to someone and they want to be able to continue the pursuit. Of course I think the court would determine whether it was reasonable. I trust that process. Certainly it would end the measure put in place under Bill C-68 which allows search and seizure without a warrant at all. That is what is of great concern to me.

Under section 8 of the charter it says that Canadians have the right “to be secure against unreasonable search and seizure”. That is in our constitution. Does that sound unreasonable to anyone here? I do not think so. I have some problems with the charter in a broad sense, but I, and I believe many Canadians, would not have a problem with saying that Canadians have the right to feel secure and be secure against unreasonable search and seizure.

I argue and many Canadians have argued very vigorously that the changes put in the criminal code as a result of the passage of Bill C-68, the so-called gun bill, really take away that right that is guaranteed under the charter. Whether the courts would or not I cannot say. However, I know many Canadians feel that it is a problem, a problem put in place with the passage of Bill C-68.

I would like to speak to the issue of compensation for unnecessary damage done. I may get to two examples, but I probably only have time for one. I will work through that example and talk about damage done to private property to a great degree in that case, damage which seems to be completely unnecessary and excessive and in my view unacceptable. When I get into the case I think that will be better understood.

The second part of the bill ensures that the damage and the confiscation of property without compensation violates a fundamental right of Canadian citizens, the right to own property. A problem we have as Canadians is that the right to own property is not enshrined in our constitution. Many thought that it should have been part of the charter. I certainly think it should be in our constitution. So far politicians have chosen not to put it there, but certainly common law and most Canadians would agree that we do have a right to own property in this country and that this right should be respected.

How could one argue that this right is being respected in cases where we have peace officers breaking into someone's house without a warrant and doing unnecessary damage to property or removing property unnecessarily? We are not talking about interfering in the actions of police officers where such actions are necessary. We are talking about unreasonable actions.

Bill C-245 adds a provision to the criminal code that enables a person to apply for restitution to the justice who issued the warrant, warrants being issued in all cases except those where there is fresh pursuit. In these cases they would have a right to apply to the justice for restitution of the property that has been the subject of entry and search under the authority of a warrant pursuant to the Firearms Act and if their property has been lost or damaged as a result of this entry and search.

The bill also adds that the justice will fix a date for a hearing on the matter. The justice will notify the applicant, the officer or officers involved and the officer who applied for the warrant as well as anyone else the justice sees fit to notify. After the hearing, the justice may order restitution to the person whose property has been damaged.

I ask members to think of the practical benefit of this. I have heard numerous complaints, as I am sure many of my colleagues have, about searches conducted by peace officers which have caused incredible damage, way beyond anything that makes sense.

Part of the reason for that is that police officers have become so frustrated because their hands are tied under laws which, quite frankly, have been protected by the government. They feel their hands are so tied that even if they get a case to court and have a lot of evidence, quite frequently the case is thrown out. They are frustrated by that. I have actually heard the thinking on this from some police officers, although I do not think it is justifiable. I think it is wrong, but the thinking on the part of police officers is that they know this person is a law breaker so they will make him pay in this way. They will do considerable damage in the search and that will be justice in itself. Any of us in the House would agree that is not proper and not right. I think this change would only give reasonable protection to that type of action.

In the bill there are exceptions to compensation. The bill does list several situations where compensation is not warranted. According to Bill C-245, no person is entitled to restitution for loss or damage resulting from entry or search “if the person is convicted of an offence on the basis of the evidence discovered during the search”. Even in this situation, the justice must conclude that the loss or damage was not excessive in light of the nature of the offence.

Second, if the applicant lost something he or she did not have the right to possess, then of course the applicant would not be compensated. For example, if someone had stolen some property, in this case guns, ammunition or other property that was discovered in the search, then of course the person should not be compensated for the loss of that property. It does cover that kind of thing. It also covers loss or damage if it was a result of the applicant and/or another person on the premises refusing to co-operate with the police officer. It recognizes that in cases where the occupants refuse to co-operate, there may be more damage done than there would be in another type of search. It covers that kind of thing.

With regard to the limits of restitution for loss or damage, Bill C-245 states that there are no limits to restitution for loss or damage if the damage was not necessary. That is only reasonable. Again, it goes to the very right to own property and to the expectation that police officers will conduct themselves properly in the case of a search.

It is recognized in the bill that speed in a search may be necessary because of the circumstances and the loss or damage may be reasonable where speed is necessary. There may be more damage in a case like that. The justice can also take into account the behaviour of the applicant and other persons during entry and search.

I will now go through a case. I will start by reading, if I may, a short article from the Edmonton Journal . I also have one from the Edmonton Sun . They are very short articles which will not take a lot of time to read. I will then go through them and talk about the case. This article is entitled “Machine guns, ammo found in Lloyd home”. This is an article from March 23. It says:

More than 100 firearms, including machine guns, and thousands of rounds of ammunition were seized during the search of a home about 20 kilometres southwest of Lloydminster on Wednesday.

“RCMP received a tip in February about the weapons, many of which were unlicensed and illegal”, said Const. Jason Simpson of the Kitscoty RCMP detachment.

It continues:

A firearms expert is sorting through the prohibited and unregistered restricted weapons to make sure proper charges are laid. Simpson said the machine guns were found among a large quantity of hunting rifles.

The article goes on to say the man would not be named and that the police declined to give details about the suspect because of the small population. Of course everybody in the country knows who it is just as a result of this article.

There was a reference to more than 100 firearms. Immediately I can see the reaction: that there was no reason the guy would need 100 firearms and so of course he deserved what he got. However, he is a gun collector. He has been collecting guns for years. In regard to the machine guns and thousands of rounds of ammunition, people would think that there was no good reason for him to have them. All of the weapons could well have been legally obtained and may have been legal to own when he came into possession of the weapons. Since that time the laws have changed, making them illegal.

People would then argue that he should have registered them, that he should have done what was necessary. I will not argue that it is the law. However, the individual knew that if he had registered the weapons, if he had done what was proper, they would have been taken away from him without compensation. Consider how that could change how one would think about the situation. It is important to consider that.

I am being given the signal to wrap up, but I look forward to the opportunity to talk more about this at the end of the hour.

[John Maloney, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

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.

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

Madam Speaker, I am pleased to have an opportunity to put some comments on record with respect to Bill C-245.

I am not at all surprised that the Minister of Justice does not favour the legislation. That stands to reason given the almost pathological pursuit of the gun registry which has now escalated into the hundreds of millions of dollars.

In speaking to police officers and those around the country who have the task of applying and enforcing the legislation, we are told time and again that it will have no impact on public safety. It is nevertheless a white elephant to which everyone in government seems to be clinging.

I commend the hon. member for Lakeland for bringing the issue forward to try to improve the ineffective, expensive and discriminatory registry scheme in Canada. It is a bit like trying to polish a rotten apple, if I could put it that way.

The law of the land is such that Canadians are, at a cost of hundreds of millions of dollars, forced to enter into the registry and yet some elements of it are particularly unfair. The search and seizure aspect which the hon. member for Lakeland has seized on should be of great concern to Canadians.

The Conservative Party very much supports the premise of the hon. member's bill. It is necessary to protect gun owners who have never committed any offence, been suspected of a crime or used a firearm in an irresponsible fashion. Such individuals are subject to search and seizure without a warrant under the new provisions of the Firearms Act.

Accepting these amendments would prevent searches based on hearsay or rumour and avoid developing a system akin to the former Soviet Union where the KGB had neighbours watching neighbours. Heaven forbid we adopt that type of paranoid justice system. However that is what the current gun registry seems to be leading toward.

The bill would not hinder police forces in any way from protecting the public. If they have hard evidence they can simply get a warrant. I fully support the efforts of police in protecting the public. However I have no difficulty in making the standard higher when it comes to invading a person's home in search of an obsolete gun from the second world war, a family heirloom or a gun with sentimental value that someone has tucked away in a trunk and not registered. That is the type of legislation before the Canadian public today. It would be intrusive into the lives of Canadians.

The enactment would affect part III of the criminal code as enacted by section 139 of the Firearms Act. The purpose is to remove the power in subsection 117.04(2) to enter, search and seize without a warrant in cases where no offence has been committed or is suspected to have been committed. It is a very common sense, pragmatic provision that would do away with potential abuses under the regulatory firearms scheme.

Provision is made for restitution for loss or damage resulting from entry and search. The bill takes into account whether such loss or damage was reasonable and necessary in light of evidence collected and in light of the behaviour of the person on the premises.

The bill is drafted to allow police officers to exercise their duties responsibly and reasonably. Who in their right mind could take issue with that? Why in any stretch of the imagination would we not expect that reasonable standard to apply?

Subsection 117.04(2) of the act deals with search and seizure without a warrant. For all intents and purposes the bill would remove and repeal that subsection.

The bill would make other amendments. Subsection 117.04(4) of the act would be amended to ensure that a peace officer who executes a warrant returns to the judge who issued it and shows the date it was executed, a description of items and documents seized, the extent of the search and any property damage that might have resulted.

Again these safeguards are aimed quite rightly at ensuring police officers do not abuse their powers and simply stick to the letter of the law and follow the warrant to its natural conclusion.

The parliamentary secretary said civil courts are the proper route for pursuing matters of property damage. That is nothing short of ridiculous. The powers of the state and of the Department of Justice would be brought to bear upon any individual who made such a complaint.

Any time a person comes into conflict with a government the result is delay. An army of lawyers and litigators would go to great lengths to ensure the matter was not brought to court for months if not years. The average citizen simply does not have the resources for such a battle. The suggestion of the parliamentary secretary is therefore bunk.

The gun registry is doomed, although it may take another five or ten years to finally collapse under its own weight of costs and regulatory red tape. The public, in its wisdom, will eventually recognize that the scheme was cumbersome, costly, unworkable and unwieldy.

Provisions to improve the legislation such as the one before us are laudable. They are encouraging to members of the House who see the legislation for what it is. However the reality is that the government will not accept them. Its pathological pursuit of this particular registry scheme is becoming increasingly recognizable. This cumbersome, useless registry is going to be with us until the government changes. That message is becoming clear. Let us call it for what it is.

The registry is not about safety nor crime control. As has been stated time and time again, members of the Hell's Angels and those who engage in crimes using firearms are not going to participate.

What is this legislation all about? It is aimed at collectors, duck hunters, farmers and fishermen who use firearms as part of their trade or occupation to control pests or to destroy an animal which may have been injured in a humane fashion. Those are the individuals who will be affected.

There is a document in circulation entitled “Self-Defence in Canada”. The Department of Justice acknowledges in that document that firearms are used about 32,000 times a year for self-protection from criminal activity. A 1997 a study by Gary Mauser said, when animal attacks which had been prevented with guns were added in, the annual self-defence numbers actually doubled to 64,000 incidents where guns where used to save lives. If suicides were removed, which are sadly generally considered to be non-preventable, approximately 40 lives were saved for every life lost by a firearm. These figures were based on the government's own statistics.

In stating government statistics, it is important to recall that seven out of ten statistics are wrong. However 44% of rural households in Canada own firearms compared with 11% in Canadian cities. Yet the violent crime rate in cities is 40% higher than it is in rural Canada. We know that this legislation is aimed almost entirely, or will have its effect played out, in rural Canada.

In 1993 the RCMP commissioner at the time Philip Murray complained in a letter to the minister that her department had greatly overstated the number of gun crimes in Canada for that year. Department figures showed that 623 gun related crimes had occurred. Murray stated that the real number was actually 73.

These statistics have been used sadly to misinform Canadians about the use of guns in Canada.

I commend the hon. member for Lakeland for bringing this matter forward. It gives us another opportunity to put on the record just how inane this legislation really is.

[Rick Casson, Canadian Alliance, Lethbridge, AB]

Madam Speaker, I want to add a couple of comments in support of the member for Lakeland who has brought this bill forward. He has brought a couple of good private member's bills forward in the past. The one I particularly liked sought to get expensive tools for mechanics deductible. I applaud him for doing that. This bill is another example of a good bill that has been well researched.

However the problem is that this bill is not votable. After debate today it will be dropped from the order paper and nothing will be done with it. All the work that has gone into preparing this to bring it forward, all the legal angles that have been looked at, goes for naught because it will not be voted on. Any private member's initiative should be. As members of parliament this is one tool we have to bring forward our issues.

The bill refers to Bill C-68 concerning gun laws. I want to make sure people understand that a Canadian Alliance government would repeal this law and replace it with a law that would respect private property rights and target the criminal use of firearms, not the lifestyles of law-abiding citizens.

The idea of a peace officer going into a person's home without cause or without provocation to search the premises without a warrant is something we should not have to discuss. The criminal code does allow for such entry but it should not be allowed on a routine basis.

The most intrusive part of Bill C-68, which people feared and opposed the most, was that a peace officer could enter into their home and take their private property without reason. People brought this issue to our attention time and time again. I am glad this was brought forward for discussion because it should not be a part of Canadian law. We only expect to hear things like that happening in the Soviet Union or some place with a dictatorship or a communist state.

If peace officers do enter our premises and, in the process of their search, damage our property, whether it is the property they are looking for or collateral property, they should provide compensation. The member for Lakeland had examples of where this has happened and where the people suffering the damage had no recourse.

Those two issues, the unwarranted search of private property and the lack of compensation for damage done during a search, needed to be addressed in Bill C-68. Bill C-245 would do that. However, the bill was not made votable so we will not be standing in the House to show our support.

The only way we can show our support for the bill is to say a few comments and get them on the record. We must also say again that hundreds of millions of dollars have been spent on the gun registry system and we see no end in sight to the cost of registering every firearm in Canada. Nobody knows how many there are. To intrude into the lives of private, law-abiding citizens and not specifically target the criminal use of firearms is wrong.

Bill C-68 needs to be repealed and replaced with comprehensive legislation that deals with those issues.

[Leon Benoit, Canadian Alliance, Lakeland, AB]

Madam Speaker, I am pleased to take my last five minutes.

I will begin by quoting Martin Niemoller, a famous German theologian who lived from 1892 to 1984. It is a very famous quote that we have all heard, but I ask every member in the House to listen to it again. It reads:

When Hitler attacked the Jews I was not a Jew, therefore, I was not concerned. And when Hitler attacked the Catholics, I was not a Catholic, and therefore, I was not concerned. And when Hitler attacked the unions and the industrialists, I was not a member of the unions and I was not concerned. Then, Hitler attacked me and the Protestant church—and there was nobody left to be concerned.

I would argue that many of the people who looked at this so-called gun bill, Bill C-68, and its implementation, fought the bill not because they cared about guns. Many people do not own guns and do not care about guns. They fought what was implemented with the bill. They knew it would be just one step in a process that would lead to exactly what the theologian Martin Niemoller said in his quote. If we do not protect the rights of others, even if it is an issue that does not directly affect us, the time will come when it is not possible under the system in place to protect ourselves and our families.

I would argue that the changes to our law that were put in place with the implementation of Bill C-68, the so-called gun bill, were a dangerous step down the road to allowing that to happen.

My bill, Bill C-245, would just take a part of Bill C-68, the part dealing with unusual search and seizure, and say no, that is dangerous, we are allowing unusual search and seizure here, and for what? What is wrong with the provisions already in the criminal code that deal with search and seizure?

It is a real threat to the individual. It is truly an issue that does lead down that path. I argue that such is the case and that is why I brought the bill forward.

The Canadian Alliance, when we become the government, would revoke all those changes that were put in place with Bill C-68. That includes the registry. That includes the need for a person to register guns. Even if a person is a collector, the law requires a person to register every gun. That also includes the section on search and seizure, which we believe is unreasonable, as we have argued all along.

All we want to do is put in place reasonable measures to ensure that we are not going to move one step further down the road to a point where we no longer have the power to stop government from infringing on our rights. I would argue that for that reason, that reason alone, even members of the government who implemented Bill C-68, the gun bill, should start working with the members on this side of the House and with Canadians across the country to change that bill. It was bad law when it was implemented and it is bad law now. I believe that quite a large majority of Canadians no longer support it. I would argue that a majority did not support it at the time it was implemented. There are some good studies to back that up. The Conservative member who spoke referred to one of those studies.

Unfortunately, my bill never will go to a vote because of our private members' procedures in the House. That has to be changed. Every private member's bill should be votable. I have done a lot of work on the bill and taxpayers have paid a lot of money to hire legal counsel to help me draft it. I believe the action in the bill is supported by a majority of people across the country, certainly by a large number of people. We could debate it and talk about that. We could have a vote in the House.

Madam Speaker, that is what should have happened. The best I can do is bring this to the attention of the public in this way. I think it does have an impact.

I thank the House for this time and I look forward to some action in the future to help fix the bad law that was put in place with the enactment of Bill C-68.

[The Acting Speaker (Ms. Bakopanos)]

The time provided for the consideration of private members' business has now expired. As the motion has not been designated a votable item, the order is dropped from the order paper.

It being 1.25 p.m., the House stands adjourned until Monday next at 11 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 1.23 p.m.)