moved that Bill C-8, an act to amend the Criminal Code and the Fisheries Protection Act (force), be read the second time and referred to a committee.
Mr. Speaker, with the introduction of Bill C-8 the government proposes an amendment to section 25 of the Criminal Code that will bring to culmination a process of reform that started as long ago as 1969 with recommendations of the Ouimet committee.
The subject of this amendment is the use of force by peace officers in dealing with persons who take flight in order to avoid arrest. In short, the proposed amendment will first of all recognize the right of peace officers to resort to force in such circumstances, including such force as may occasion death or grievous bodily harm to the person to be arrested.
Second, it will introduce an element of proportionality between the threat of harm posed by the fleeing person and the degree of force that is permitted by law.
Third, it will extend the concept of permissible force such as is reasonable in the circumstances to persons who perform similar duties on behalf of the public, including prison guards and those peace officers who attempt to stop foreign fishing vessels that are alleged to be breaching Canadian law.
In introducing second reading of this bill, I would like to deal with three matters which the House may find useful as it embarks upon its considerations.
First, the manifest unsuitability of the present section of the Criminal Code that deals with matters of this kind. Second, the process of consultation in which the government and the previous government engaged in order to bring forth these proposals. Third, the particulars of the amendment that is proposed that commend the amendment to the government and, I hope, to all members of this House.
Let me first deal with the present state of the Criminal Code so far as it deals with the use of force by peace officers to detain persons who are fleeing to escape arrest. The provision is now found in section 25(4) of the Criminal Code of Canada and is known broadly as the fleeing felon rule. Indeed, the antiquity of that name itself indicates the time that has elapsed since we have methodically thought through the appropriateness of the present regime.
The concept of course is quite sound. The concept is as sound today as it was when the provision was first enacted. It is appropriate for the legislature to acknowledge and give authority to the need for peace officers to use such force as is reasonably necessary to protect themselves and members of the public when confronted with a person who is fleeing to avoid lawful arrest.
The fact of the matter is that the present section of the code is overly broad. It discloses on its face a lack of the kind of proportionality that legislatures and courts have worked toward in more recent enactments. For example, on its face the existing section of the code would permit an officer to use deadly force to detain someone who was fleeing to avoid arrest for shoplifting.
I hasten to add that police forces themselves, both in their training and in their procedures and practices, have shown both professionalism and restraint in the way they have used the discretion and authority conferred by the present section.
This is in terms of the training that officers receive at the police colleges, in the manuals of procedure that are made available to forces as they work, and in practices adopted by police officers individually and by forces across the country.
One can see a recognition on the part of police officers themselves that the present section is not sufficiently subtle or flexible. It does not deal with the right proportionality to reflect a balancing of the competing interests that are presented in circumstances of this kind.
Indeed, in the 1989 report of the Ontario Race Relations and Policing Task Force it was observed that the police themselves are uncomfortable with the broad discretion provided at present by section 25(4) and the police college instructors caution new police officers not to take the powers literally.
There has been concern expressed about the present provision by minority groups across the country. Always keenly aware of their relationship with police forces, they have expressed worry that the section does not expressly contain the kind of criteria that should reasonably be found there for reference by peace officers before resorting to such force as might cause death or serious bodily harm in detaining those who flee for the purpose of escaping arrest.
When the provision applicable to dangerous criminals fleeing for the purpose of escaping arrest, which is being amended by the present bill, was first introduced, it applied only to the most serious crimes, most of which where punishable by death. At that time, when dangerous suspects where found guilty, they were almost always executed. One can understand why dangerous criminals did not hesitate to use any means, even the most violent, to escape arrest.
At the same time, if the suspect was not arrested then, there was little likelihood that he would be arrested later, since the tools at the disposal of the police forces where quite rudimentary, communication networks were primitive and investigation methods rather crude.
Over the years there have been complaints about the present section and calls for its reform from, among others, the Uniform Law Conference and the Law Reform Commission of Canada.
In April of last year the section was declared unconstitutional by a judge of the general division of the Ontario court on the basis of the very same flaws that I have identified here today.
Surely it is time for Parliament to catch up with the jurisprudence, with the police practices in place in this country, and to amend this section of the code so that it reflects current values and current approaches to policing matters.
Let me deal briefly with the degree and nature of consultation that took place as the government worked toward the amendment that is now before the House. I hope members throughout the House will agree that consultation has been thorough, thoughtful and constructive.
The most recent round began for present purposes in mid-June 1990 at the federal-provincial-territorial conference in Niagara-on-the-Lake at which there was general agreement that an initiative should finally be taken to change the code.
The following June, June 1991, the Department of Justice released a consultation document identifying four alternatives. In September 1991 at their conference in Yellowknife, the federal-provincial-territorial representatives agreed in principle on the approach that should be taken. Following that, there were a number of federal-provincial-territorial discussions at various levels on the precise shape of the amendment.
On August 17, 1992 a further discussion paper with detailed proposals was released at the time of the meeting of the Canadian Association of Chiefs of Police. Throughout this process and in the months and years since it started, the Department of Justice has had the benefit of views expressed by members of Parliament, by senators, by provincial and territorial attorneys general and solicitors general, by chief justices, by ethnocultural groups, by representatives of the ethnic press, by provincial police associations, the police press, the Canadian Association of Chiefs of Police and the Canadian Police Association, bar associations, law deans, law societies, aboriginal police forces, non-governmental organizations and other interested individuals.
Thanks are due to all of those who took part in this important discussion. The suggestions and the observations they have made from time to time are reflected in various aspects of the legislation.
What will this bill achieve? May I observe, as I introduce debate at second reading, that this bill will maintain and reaffirm the ability of peace officers to protect themselves and the public from serious harm or death; will clarify when peace officers can use deadly force to stop suspects who are fleeing arrest, or inmates attempting to escape from penitentiaries; will justify a police response to the threat posed by a fleeing suspect that is in proportion to the seriousness of that threat; and, will
modernize the law by updating an archaic provision of the code that is inadequate and no longer fits the reality of present day Canada.
The bill provides that force that is intended or is likely to cause death or grievous bodily harm to arrest a fleeing suspect may only be used when reasonably necessary for the protection of any person from imminent or future death or grievous bodily harm, and only if the flight cannot be prevented by reasonable means in a less violent manner.
This bill calls for a proportionate response and respects the principle of restraint.
I want to make sure that police officers can continue to protect themselves and the public from serious injury or even death.
Bill C-8 specifically authorizes the use of whatever force is necessary to protect the public or police officers.
The proposal for a new subsection 25(4) focuses the decision on whether to use deadly force against a fleeing suspect against the risk of physical harm posed by the fleeing suspect if not immediately apprehended. The subsection provides that the physical threat posed by the fleeing suspect may be imminent or future. As a result, the subsection would allow for the use of deadly force against a fleeing suspect in situations where the danger to the public would be increased and not reduced by allowing the fleeing suspect to avoid arrest.
By adopting that standard, Parliament would be saying that only in those circumstances is the use of deadly force justified. At the present time there is in the current provision no requirement that the fleeing suspect be dangerous before deadly force can be used.
Admittedly, the assessment of future danger is a difficult one to make. But retaining the word as it appears in the amendment would make it clear that the provision would apply, for example, with respect to a dangerous mass murderer, or a person with a record of violent offences fleeing from arrest who constitutes a danger to society, even though the anticipated harm may not be immediate.
The assessment that the fleeing suspect poses a threat of death or grievous bodily harm is to be based, according to the amendment, on the circumstances as the user of the force on reasonable grounds believes them to be. In this way the test merges the police officer's subjective belief about the seriousness of the danger posed by the fleeing suspect with the objective test of reasonableness of such belief. This approach is consistent with the test currently used in subsection 25(3) of the Criminal Code.
The bill also proposes, in new subsection 25(5) of the Criminal Code, that deadly force be allowed in order to prevent the escape of an inmate from an institution in which it is known that there are inmates who would be dangerous if they escaped. This proposed amendment once again reflects the current policy and practice relating to the use of force in penitentiaries. Whereas the use of force against escaping inmates is justified by the present subsection 25(4), peace officers in penitentiaries would not be able to perform their job properly and public safety could be jeopardized by the proposed use of subsection 25(4), because paragraph 25(4)(d), if applied to the prison officers would be found inappropriate to the special situation that they face in penitentiaries.
In penitentiaries it is practically impossible for peace officers observing an escape to assess whether the particular inmate attempting to escape is likely to be dangerous if the escape is successful. What is more, the peace officer in such circumstances would be unlikely to know the factors that determine the risk the inmate presents at that particular moment. Deadly force would only be permitted as a last resort after other reasonable, less violent means, if possible in the circumstances, have been tried.
In comparing escape from a penitentiary to the flight of a suspect, the inmate is already in the custody of the law, has been convicted and sentenced for having committed an offence. The social and psychological significance of an escape is very different from a fleeing suspect trying to escape arrest, in that the person who flees on the spur of the moment while escaping from a penitentiary is very rare. Ordinarily such escapes involve planning and premeditation. It is necessary also to bear in mind that it is necessary to maintain discipline and respect for lawful authority in penitentiaries. This amendment would assist in achieving that objective.
Last, the bill includes an amendment to the Coastal Fisheries Protection Act to provide the authority in accordance with regulations to be made under the act for a protection officer to use disabling force against a fleeing foreign fishing vessel in order to arrest the master or other person in command of the vessel.
The amendment to the Coastal Fisheries Protection Act is being proposed to ensure that the Department of Fisheries and Oceans retains the same powers it has at present to use disabling force when necessary. No new powers are being added.
Fishery officers employed by the Department of Fisheries and Oceans to enforce regulations concerning the fisheries are peace officers under the Criminal Code. They have duties and training that are similar to those of other peace officers. These people may, on occasion, have to use force to disable a foreign fishing vessel that has violated our laws and tries to escape.
If disabling force could not be used it would not be possible to arrest such vessels if they tried to escape and they could violate our laws with impunity. The use of this disabling force is being authorized only against foreign fishing vessels, not against Canadian ones. Domestic fishing vessels and their masters routinely remain in Canadian waters or return to Canadian ports where they can be apprehended so the disabling force in those cases is not required.
The amendment includes a regulation making power to further control the use of disabling force. The regulations will establish the procedures in accordance with which and the extent to which disabling force is to be used. The government intends to develop these regulations so they will be consistent with the Canadian Charter of Rights and Freedoms. The regulations will also be consistent with a recognized and reasonable international practice in the use of disabling force at sea. There will be a number of steps that would have to be followed and satisfied before the use of disabling force would be permitted.
I think this bill achieves a good balance between, on the one hand, the capacity of peace officers to ensure public safety and, on the other hand, the protection of Canadians' rights.
I believe that the bill marks a significant step forward from the archaic fleeing felon rule. It allows us to put in place new legal protection balancing the rights of peace officers, who must do their jobs in increasingly difficult circumstances, and the rights of citizens for protection against deadly force when it is not reasonably necessary.
It is my hope that the hon. members of the House will provide this bill with their support.