Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 11 - Evidence for afternoon session
Upon resuming.
The Chairman: Honourable senators, I call the meeting to order.
Senator Cogger: I want assurance that there will be the possibility very soon or right now for an in camera meeting. I expressed to the clerk dissatisfaction with the way the meeting has been convened. I find it to be entirely unsatisfactory. I wish my concerns to be properly and duly explained to the committee. I am concerned about the way the meetings have been called. I am concerned about the way this bill appears to be proceeding too rapidly. Today, before this meeting adjourns, I would like the committee to set for ourselves a reasonable schedule and see where we go from here.
The Chairman: That is quite in order, Senator Cogger.
Senator Cogger: I also want your assurance that this committee will not proceed to clause-by-clause this afternoon.
The Chairman: We agreed this morning, in an in camera session, that we would be contacting attorneys general of four provinces and the Minister of Justice. That is happening right now. I shall report back to the committee on that later on.
Senator Cools: Senator Cogger, some of your concerns have already been addressed. You are the Deputy Chairman on the Tory side, but I, on my own, raised the issue of doing clause-by-clause and the fact that this committee dare not proceed to clause-by-clause without hearing from the minister. I dare not speak for the Chairman.
The Chairman: You are.
Senator Cools: You explain.
Senator Gigantès: She already has. Why repeat things that have already been said? We do not have time. The chiefs of police says that unless we pass this bill there will be chaos, so let us proceed.
Senator Cools: No one told you not to pass the bill.
Senator Cogger: I read the memorandum of the chiefs of police as well. I fully appreciate the urgency of the matter.
Senator Gigantès: I was not addressing my remarks to Senator Cools.
Senator Cogger: Rushing bills through Parliament, without giving them proper examination, does not do anybody any good.
The Chairman: Senator Cogger, we have no intention of rushing this through without proper investigation of the entire matter. Presently, we are sending out invitations to the attorneys general; we are making arrangements with the minister. We will do everything we possibly can to satisfy all members of this committee.
Please proceed, Mr. Koziebrocki.
Mr. Irwin Koziebrocki, Vice-President, Criminal Lawyers Association: I have been practising criminal law for the last 22 or 23 years. The first number of years, I was with the Attorney General for the Province of Ontario, what is now known as the Crown Law Office, Criminal, and since that time as a private practitioner specializing in criminal appeals.
Your committee has asked the view of the Criminal Lawyers Association with respect to Bill C-16, to amend the Criminal Code with respect to police arrest powers in a dwelling-house.
Unlike the police association that was before you who professed to unprecedented consultation with the police and the Department of Justice in this matter, I can say on behalf of the Criminal Lawyers Association, of which I am the Chairman of the Legislation Committee, we were not given the same privilege. In fact, we were shown the bill only a day or two before it came before the committee in the House of Commons. Certain submissions were made by us before that committee; as well, we submitted a written response. I believe you have copies of that.
It is understood that Bill C-16 is a response to the judgment of the Supreme Court of Canada in Feeney, which as you know was released on May 22 of this year. The Supreme Court of Canada held in Feeney that "generally a warrant is required to make an arrest in a dwelling-house".
A view of the legislation before us requires an understanding of the principles established or reinforced in Feeney. In short, I wish to review those principles and there are five of them that you ought to consider.
One, in the era of the Charter, generally when trying to achieve a balance between the individual's privacy interest in the dwelling-house and society's interest in effective police protection, the privacy interest outweighs the interest of the police. That is found at page 154 of the Canadian Criminal Cases version of the judgment.
The second principal is that prior authorization is necessary to apply the purpose of the Charter, that is, to prevent unreasonable intrusions on privacy. That is found at page 155 of the judgment.
Third, the Supreme Court concludes that a warrant is required to make an arrest in a dwelling-house. Again, that is at page 155.
Fourth, the need for a warrant to make an arrest in a dwelling-house was subject only to such "exigent circumstances" as hot pursuit. That is found at pages 155 and 156 of the judgment.
Finally, in addition to the need for a warrant for an arrest in a dwelling-house, the authorities are required before forcibly entering a dwelling-house to make "proper announcement". The reason for that is to minimize the invasiveness of the arrest in a dwelling. That is found at page 158 of the judgment.
Justice Sopinka summarized these principles on behalf of the majority of the Supreme Court, at page 158, in the following terms:
To summarize, in general, the following requirements must be met before an arrest for an indictable offence in a private dwelling is legal: a warrant must be obtained on the basis of reasonable and probable grounds to arrest and to believe the person sought is within the premises in question; and proper announcement must be made before entering. An exception to this rule occurs where there is a case of hot pursuit. Whether or not there is an exception for exigent circumstances generally has not been fully addressed by the Court, nor does it need to be decided in the present case given my view that exigent circumstances did not exist when the arrest was made.
He is speaking with respect to that particular case.
The question remains as to whether Bill C-16 provides what the Supreme Court of Canada says the law requires and, more important, whether it conforms with the Charter and is therefore constitutional.
It is our view that generally sections 529, 529.1, and 529.2 provide for a scheme to obtain a warrant for the purpose of arresting and apprehending a person in a dwelling-house as required by the Supreme Court of Canada. However, the only issue that we would raise with respect to those provisions is that section 529 does not define the circumstances upon which a person may be arrested. Was it intended to include summary conviction offences and matters?
You will note that Justice Sopinka speaks about indictable offences. Hence, the question becomes: Will you allow police officers to enter a premise for a summary conviction offence? That is something that you must decide.
The difficulty with Bill C-16 is where this proposed legislation sets up a scheme to allow entry without a warrant, that is, in section 529.3; or without prior announcement, that is, in section 529.4; or without both a warrant and proper announcement, that is, in section 529.4(3). It is suggested that in certain areas this legislation may move into the area of unconstitutionality.
Section 529.3 provides for a scheme to enter without warrant where, by reason of exigent circumstances, it would be impracticable to obtain a warrant. Those circumstances are defined in 529.3(2) as follows: (a) suspicion that entry is necessary to prevent imminent bodily harm or death to any person; or (b) belief that entry is necessary to prevent imminent loss or destruction of evidence.
The issue that is raised in 529.3(2)(a), that is, bodily harm or death, is whether suspicion is an appropriate standard for entering without a warrant. In all likelihood, the need to prevent imminent bodily harm or death would withstand Charter scrutiny; however, such a low standard as "suspicion" may not. For example, suspicion could be raised by such matters as a police CPIC check which might show a prior conviction for a dangerous weapon charge but which may have nothing to do with the present circumstances.
Section 529.3(2)(b), that is, loss or destruction of evidence, permits a non-warrant entry to preserve evidence. In our respectful submission, that is clearly problematic. The Supreme Court of Canada, though it left the question of exigent circumstances and whether preserving evidence was such a circumstance to another day in Feeney, as it did not arise in that case, also made it clear that preserving evidence was not such a factor. That was done, first, by defining exigent circumstances in terms of hot pursuit and by reference to the case of Macooh, (1993) 2 S.C.R. 802, at pages 155 and 156 of Feeney, the Supreme Court majority made it clear that a warrant was necessary if police are not in hot pursuit; second, by rejecting outright the dissenting judgment of Madam Justice L'Heureux-Dubé where she indicates that preservation of evidence may be such an exigent circumstance.
It is suggested that the preservation of evidence is not the type of circumstance that was contemplated by the Supreme Court to permit warrantless entry into a private dwelling-house. It is to be remembered that the purpose of these provisions is to effect an arrest, not to gather evidence. That is the reason that Feeney is as Feeney is, and that is the reason why a number of other cases before Feeney are as they are.
The issue of preserving evidence should be the subject of search warrants. If the police have reasonable grounds on which to believe there is evidence in a dwelling-house, the authorities have always had the option of obtaining a search warrant.
Most recently, the Ontario Court of Appeal, in a case called Golub (1997), 34 Ontario Reports, (3d) 743, a judgment that was released on July 24, 1997, dealt with a factual issue similar to that which these amendments were intended to address. Mr. Justice Doherty, speaking for the Court of Appeal, addressed the question of exceptional circumstances in the following fashion -- and this appears at page 757 of that judgment.
What will amount to exceptional circumstances justifying a warrantless search of a residence as an incident of an arrest? I will not attempt an exhaustive answer. Exceptional circumstances do not, however, refer to circumstances which rarely arise, but rather to circumstances where a state interest is so compelling that it must override a person's right to privacy within the home.
Broadly stated, the state interest upon arrest is the effective administration of justice. There are various components to that interest including the need to secure the arrested person, protect those at the scene of the arrest, and preserve evidence. In determining whether exceptional circumstances exist justifying a warrantless search, the nature of the state interest must be identified. The state interest in collecting evidence may not justify a warrantless search, but the interest in protecting the safety of those at the scene may justify that same search.
Again it is suggested that the collection or preservation of evidence alone may not justify a warrantless search.
Section 529.4(1) allows for the judicial authorization to dispense with prior announcement before entry. It should be noted that the Supreme Court made no exception for announcement. That requirement is mandatory for entry into a dwelling-house with or without a warrant. Bill C-16 intends to do away with this obligation on the part of the authorities.
It also should be remembered that that requirement has been part of our common law system of justice for a considerable period of time. Announcement has historical significance. It tells the occupant that an official is entering in the name of Her Majesty and is not an intruder. Question why this ought to be changed now.
The requirement has significance beyond that mentioned in Feeney. Not only does it allow someone to respond with dignity by coming to the door, but also it allows an occupant to know that it is the authorities who are at the door, not an intruder. This is a significant factor. Someone entering unannounced may be met with violence by someone who believes that he or she is being invaded by strangers.
There may be some justification for waiving announcement, as set out in Section 529.4(1)(a), where there is reason to believe that making an announcement before entry will expose police to violence or death. However, there is no justification to merely preserve evidence that might be there.
A balancing of principles as between the obtaining of evidence against the potential for serious violence and subsequent tragedy could lead one to believe that the avoidance of such a fundamental requirement of entry into a dwelling-house would not be saved by Section 1 of the Charter.
In the brief time that has elapsed between the announcement and the police entering, what type of evidence can be destroyed? In all likelihood, matters of minimal nature: small amounts of drugs, some paper documents, maybe some computer records. Anything of substance would survive the time it takes to make an announcement. Contrary to the view expressed by the majority in Feeney, it would be highly unlikely that the bloody shirt would be destroyed in such a short period of time.
At the House of Commons hearing, the police chiefs appeared just before I did, as they did today. One of the questions that was addressed to them was the question of announcement and how it works. The Chief of Police for Ottawa told the House of Commons how it works. Literally, he said the announcement was a knock on the door saying the police are here and then the door is broken down. He was talking about a momentary announcement. So that is the kind of thing we are talking about, at least from the police perspective. It is not like you are sitting around scratching your head waiting for somebody to come to the door. The announcement that they are discussing is relatively short.
It is the position of the Criminal Lawyers Association that proposed section 529.4(3), in particular subsection (b), is unconstitutional. This provision sanctions warrantless entry into a dwelling-house without prior announcement solely on the belief that evidence may be lost. For the reasons set out above, preservation of evidence is not the type of circumstance which invalidates Section 8 Charter rights, as the Supreme Court of Canada held that the privacy right in one's dwelling-house supersedes the state's right to find evidence. Coupling this with the potential harm which may result with the mainly minimal evidence gain, it is suggested that this section would not survive Charter scrutiny.
Again, Section 529.4(3)(a) as it is directed to the potential of violence, this being the type of circumstance that could lead to valid police action without a warrant, may well be appropriate. However, as indicated earlier, the standard of suspicion may be too low. It is easy to suspect, but one would expect more to allow such action. It is suggested that a reasonable belief is a more appropriate standard.
Those are the submissions of the Criminal Lawyers Association.
Senator Gigantès: With not too much imagination, sir, I am sure you could give us examples of computer records that would be significant in a trial case, records which could be erased by the press of two buttons. It does not take more than a second or two to flush a pound of heroin down a toilet bowl.
Mr. Koziebrocki: I think it would take more than a second or two to flush a pound of heroin, but it would not take more than a second or two to flush a pound or two of marijuana down a toilet bowl.
Senator Gigantès: It will go down because it is powder.
Mr. Koziebrocki: I beg to differ with you, senator.
Senator Gigantès: If it were flour which becomes a paste, no; but heroin, yes. So you do not think it is problematic to erase computer records that might incriminate someone very seriously in a case of wholesaling of drugs or of having been implicated in the entry and perhaps killing of illegal immigrants?
Mr. Koziebrocki: When you weigh the various requirements of the Charter and the rules that we have come to live by against the finding of the Supreme Court of Canada that there is an interest in the privacy of one's home, the old adage that one's home is his castle, which requires certain actions to be taken of a judicial nature before the police bang your door down, there are certain state interests that would supersede. If violence was occurring in the home, if the potential exists for someone to be seriously hurt, that state interest would supersede.
If you weigh that against the discovery of evidence in a potential criminal matter, then taking that scale, the privacy interest must win. That is the nature of the Charter; that is the nature of the criminal law. Every decision that has come back from the Supreme Court of Canada, when you weigh privacy interest against state interest, finds that the lowest state interest is the gathering of evidence.
If you are prepared to do away with a warrant and you are prepared to do away with the traditional announcement, which has a 500-year tradition in this country -- in England, someone knocks on your door and says, "We are here on behalf of Her Majesty" -- you must look at why you are doing it. There are certain times it may be necessary to do away with those rights, but the gathering of evidence is not one of them.
Senator Pearson: It is always a pleasure to have before us a witness who can answer questions that are not directly relevant to what we are talking about but which come to mind as a result of his or her presentation. For me, that question is: What constitutes a dwelling-house? Where is the line drawn between the man who runs home and hides under his mother's bed and his own home?
Mr. Koziebrocki: Obviously, it can be a difficult question. If he has committed a criminal act and the police are chasing him down the street and he runs in and hides behind his mother's bed, the police are entitled to continue through the door and climb under his mother's bed and get him. That has always been the law; no one is asking that that be changed in any respect.
If the man is sleeping in his mother's bed and the police have reason to suspect that he might be there, the police ought not to be entitled to bang down his mother's door without getting pre-authorization, because the Supreme Court of Canada says so and because it is his mother's home, his mother's castle. It must be honoured to that extent.
Senator Pearson: So a dwelling-house is any place where any human being lives?
Mr. Koziebrocki: Generally.
Senator Pearson: And it does not matter if they are related or not related?
Mr. Koziebrocki: That is right. What if the suspect's mother and father are sleeping in the next bedroom and somebody breaks into their house? They do not know who is breaking into their house. Their first reaction might be to protect themselves by reaching down and picking up a baseball bat. If the intruder is a police officer, he may be seriously injured as a result of that action. Also, the police officer may use his pistol, may in fact kill someone, in his efforts to defend himself against the baseball bat.
Senator Pearson: Suppose somebody jumped into your basement window, that you did not know that that person was in your basement, and then the police came in in pursuit of that person?
Mr. Koziebrocki: Those are unique circumstances. I suspect the police would certainly try to let you know why they are there.
Senator Cogger: I refer you back to page 4 of your brief; specifically, the last two paragraphs wherein you claim that section 529.4(3) will not survive Charter scrutiny.
Senator Cogger: You refer to suspicion and you indicate that reasonable belief would be a more appropriate standard.
Mr. Koziebrocki: That is subsection (a). Subsection (b) relates to an exception to make a prior announcement if such an announcement would result in "the imminent loss or imminent destruction of evidence". That is not what the Supreme Court of Canada said in Feeney. They said that a police officer who enters into someone's house for the purpose of making an arrest must obtain an entry warrant, in addition to an arrest warrant. I beg to differ with the police chiefs who appeared just prior to me.
When a police officer appears before a Justice of the Peace and tells that justice that such and such a person has committed a crime, that his reasons for so believing are such and such, and that he is prepared to swear to the information, the Justice of the Peace then issues a warrant for the arrest of that person. At the same time, that police officer will say: "As well, I believe that so and so is resident at the following address. I spoke to his mother, who said that he lives with her and that he is at work right now but will be home at six o'clock." The officer asks for a warrant to enter that residence for the purpose of effecting the arrest warrant? That is what the Supreme Court of Canada is talking about and that is what the first three sections of Bill C-16 are about.
Poetic licence is being taken by asking you to change the whole law with respect to entry into people's homes and to do away with provisions that have existed for a substantial period of time, which the Supreme Court of Canada never asked you to do.
Senator Cogger: You seem to indicate under 529.4(3)(a) that the proper standard should be reasonable belief as opposed to suspicion.
Mr. Koziebrocki: Right.
Senator Cogger: If I read 529.4(3)(a), I find "reasonable grounds to suspect".
Mr. Koziebrocki: Yes.
Senator Cogger: "Reasonable grounds to suspect." Is that what you object to?
Mr. Koziebrocki: Yes.
Senator Cogger: You would be happier with "reasonable grounds to believe"?
Mr. Koziebrocki: Yes. The difference between the two words, in terms of legal jargon, is substantial. There is only one place that I know of in the whole of the Criminal Code where the word "suspect" or "suspicion" appears, and that is the provision in the Criminal Code that allows a police officer to give someone a road-side breathalyzer because of a suspicion that the person may have been drinking.
In the example that I used, a police officer is asking for permission to enter someone's house without a warrant, without announcement, on the grounds of the same type of suspicion -- that is, we suspect that there may be something in there.
Senator Cogger: I assume that you would want 3(a) and 2(a) amended as well?
Mr. Koziebrocki: Yes.
Senator Cogger: Replace "reasonable grounds to suspect" to "reasonable grounds to believe" in both cases.
Mr. Koziebrocki: That is right. Proposed subsection 3(b) should be deleted certainly.
Senator Moore: He thinks it may be unconstitutional.
Mr. Koziebrocki: 429.4 (3)(b) is for sure unconstitutional.
Senator Moore: There you have "reasonable grounds to believe". Is that not what you told Senator Cogger made you happy?
Mr. Koziebrocki: Not for (b). I am saying that (b) should be gone completely.
Senator Gigantès: Even for loss of life?
Mr. Koziebrocki: No.
Senator Cogger: The loss or destruction of evidence.
Senator Gigantès: It says, "...would result in the imminent loss or destruction of evidence..."
Senator Cogger: So you would like to get rid of that particular section?
Mr. Koziebrocki: Absolutely. That has never been the law. You are changing the law dramatically. You are allowing something that the courts have never allowed. It is one thing to enter into a house to protect someone's life. It is another thing to enter a house without warrant, without announcement, for the purposes of obtaining evidence.
Senator Cogger: Did the chiefs of police object to that?
Mr. Koziebrocki: The chiefs of police told you that they have had extensive consultation with respect to this legislation. Now I understand why they have had extensive consultation. No wonder they want this passed. They are gaining provisions here that will allow them to do things that they could never have done in the past.
Senator Cogger: The absence of a prior announcement could seriously jeopardize the life of police officers, could it not? I have never been with the police, but it seems to me that going into a house without prior announcement would increase the risk that the guy on the other side of the door would await you with a baseball bat or a shotgun.
Senator Gigantès: Suppose the person on the other side of the door is waiting, magnum in hand, and a policeman comes up to the door and says to that person, "Open the door or I will break it down." The police officer runs the risk of being shot through the door. He will kill you.
Senator Cogger: Yes. What about the situation where a police officer who breaks down a door and enters a dwelling-house without prior announcement is shot and the suspect pleads, as a defence: "How was I to know it was a police officer? I thought it was an intruder."
Senator Gigantès: Then you get him for possessing a gun.
The Chairman: Our next witness is from the University of Western Ontario.
Please proceed, Mr. Hawkins.
Mr. Robert E. Hawkins, Associate Professor of Public Law, University of Western Ontario: I am here as a private citizen. I do not have a written brief to give to you. I regard it as a great privilege to be here before you. I am conscious of your time and do not want to trespass upon it.
I have a very simple message. The message is that you do have a choice. I have three small boys at home, and I have sat and listened this morning with a growing sense of unease because I have heard senators and witnesses discuss this bill as the lesser of two evils, something they must do or chaos will result; something they are bound to do because they are corsetted by time. I am concerned about the democratic implications of that and I want to frame my remarks in that context.
First, with respect, Bill C-16 is an unnecessary piece of legislation and therefore a bad piece of legislation. Second, I believe that you do have choices. Third, those choices are constitutional and deserve to be tested before the courts.
I begin with the common law because that is, after all, really the choice, the alternative, to the bill that is before you. The common law sets out four grounds on which a police officer can legally enter a private dwelling to make an arrest, and I will mention them because they are not insignificant protections. It should be mentioned again that the common law protected diligently the privacy of the individual.
First of all, the officer must have reasonable grounds on which to believe that the person sought is within the premises. Second, proper announcement must be made. Third, the officer must believe that reasonable grounds for arrest exist. Fourth, objectively speaking, reasonable and probable grounds for arrest must exist. By and large that is the common law supplemented by Section 495(1) of the Criminal Code.
What Feeney did was read in a fifth requirement for a warrant. I submit to you that your choice is either follow the common law -- and I will explain how I believe that is possible in a moment -- legislate that common law which is good law, or alternately, go the route urged upon you this morning, that is, Bill C-16, and legislate the warrant requirement.
In Feeney there is only one reason given for the requirement of a warrant. Mr. Justice Sopinka said that it was to prevent unjustified searches before they happen. That is a valid reason, but I caution, it may overestimate the preventative effect of prior authorization, and it may underestimate the concern to protect the privacy of the individual that was already inherent in the common law which he and four other Supreme Court of Canada judges found unconstitutional.
The strength of the common law approach was pointed out by Madam Justice L'Heureux-Dubé. She also pointed out the danger of the warrant approach. In doing that, she cited former Chief Justice Dickson from the Landry case, and she did it in paragraph 145 of the Feeney case. Dickson said that in his view, police officers could not afford to waste valuable time searching out a warrant when a suspect could easily flee the premises and remain at large in the community.
Chief Justice Dickson, in the Landry case, which is cited in the Feeney case, made that point by saying the following:
These serious limitations --
-- referring to the four common law limitations --
against effective police work and public protection must be balanced against the intrusiveness of arresting a person in a house or apartment. The intrusiveness is carefully delineated and restricted by the requirement of reasonable and probable grounds for the belief that the person sought is within the premises, and the requirements of notice of presence, notice of authority and notice of purpose.
In other words, in the opinion of Chief Justice Dickson in 1986, the common law was enough to protect the privacy of the individual. Madam Justice L'Heureux-Dubé defended the same position in her dissent in Feeney.
I was struck by what the chiefs of police said to you earlier today. I can add nothing to their experience when they told you that the warrants risk encumbering them with another load of administrative responsibility, more bureaucratic work; it hinders their work in the field. Those are serious concerns that deserve to be heard.
I believe that this bill, on its merits, misses the mark. Given the cost of this bill in terms of effective police work, the benefits just are not worth it.
I have read your debates on this bill and I was struck by a rhetorical but wise question on November 27, 1997 by Senator Nolin. He was addressing a question to Senator Cools. He said:
I am sure the honourable senator is not suggesting that we should be appealing a decision of the Supreme Court.
Of course, Senator Nolin is right. There is no appeal to this chamber from a decision of the Supreme Court of Canada. You cannot overrule a Supreme Court of Canada decision.
However -- and this is where you have a choice -- understand what the import, the effect, and the significance of that decision is.
First, the whole of the discussion by Mr. Justice Sopinka and the majority on the unconstitutionality of the common law and the constitutional requirement for a warrant in the circumstances of which we speak is obiter discussion. That is, it is not a discussion which is strictly necessary for the Feeney decision. The ratio of Feeney, that which is strictly necessary, was the decision by the majority that the police officers in that case had failed the common law test of entry into the private dwelling.
Why does that matter? It matters because the only thing, strictly speaking, that is binding in the Supreme Court of Canada decision is the ratio of that decision. The obiter of the decision may be persuasive, and indeed coming from the majority of the Supreme Court of Canada is persuasive, but it is not binding. It is not binding on any Court of Appeal or any lower court. Strictly speaking, it is not binding.
Senator Gigantès: Please explain that.
Mr. Hawkins: The only part of a higher court decision that is binding on a lower court under a system of precedent is the ratio of the higher court decision, that is, that part of the reasoning that is strictly necessary to reach the conclusion that the court reached. The narrowest grounds of reasoning adopted by the Supreme Court of Canada majority which would support its decision in Feeney was that the common law rules relating to entry into a private dwelling and arrest had been violated. In other words, at that moment, the Court could have put its pen down and stopped. It went on to add what it added about the constitutionality of the warrantless entry, but that was not strictly necessary for its decision.
That matter is important in constitutional law. It is important because, as Mr. Justice Lamer said, in a decision this fall in the judge's remuneration reference, citing Mr. Justice Sopinka, there is danger in courts going beyond the scope beyond which they need to go to reach a decision in constitutional matters.
I cite from his decision paragraph 301 of the judge's remuneration reference in September, 1997. He is writing in dissent, but on this point he is citing well-established constitutional doctrine.
He states that the courts are generally reluctant to comment on matters that are not necessary to decide in order to dispose of the case at hand; and that this policy is especially apposite in constitutional cases where the implications of abstract legal conclusions are often unpredictable and can, in retrospect, turn out to be undesirable.
Mr. Justice LaForest cited as part of his authority for that proposition a statement from Mr. Justice Sopinka in an earlier case where Mr. Justice Sopinka says that the policy which dictates restraint in constitutional cases is sound; and that is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen.
My first point in suggesting that we must consider the import of the Feeney decision is to submit to you that the decision on its constitutional aspect is an obiter decision, not necessary in strict terms for the disposition of the case, and as such not binding on lower courts. It may be persuasive, but it is not binding.
Senator Jessiman: On the obiter dictum, is it followed by all the others or is it only obiter? The others agreed with his judgment, but they are not necessarily agreeing with the obiter dictum, or do we know? Did any of the others write anything?
Mr. Hawkins: No other judges wrote. Mr. Justice Sopinka wrote for four others judges to constitute the majority. Madam Justice L'Heureux-Dubé wrote in dissent for three judges and the Chief Justice wrote dissent. Madam Justice L'Heureux-Dubé did point out that the point that Mr. Justice Sopinka was making was an obiter point.
Senator Jessiman: Would the other three who agreed with him also be agreeing with the obiter, or do you know?
Mr. Hawkins: Yes, in law, because they concurred in the decision. The concurrence would be with the ratio and with the obiter. My point is that it is obiter.
Senator Cogger: This first point that the witness has developed is very important indeed. Would it be agreeable to the committee that we ask the witness questions on this point first and then let him develop the rest; or would the witness object to that?
Mr. Hawkins: I am in the hands of the committee.
The Chairman: There seems to be some interest in asking you questions on this point before we continue to your other two points.
Senator Cogger: I am very interested in what you are saying. It has been established and is generally recognized that obiter dicta do not bind a lower court. What I find particularly interesting in what you are saying is that, to me, it is a first. I have not heard anyone say that yet. Quite to the contrary.
Why would the Attorney General of British Columbia get all excited, where he files an affidavit before the courts, on the basis of an obiter dictum? Have you heard anybody take the position that you are taking?
Mr. Hawkins: I have not heard of anybody else taking this position. I have looked at the matter carefully and have considered it. I have no doubt that it is an obiter decision. As I listened to the witnesses this morning, the question that kept coming to mind was: Do we need a warrant in this situation at all? It seemed to me that the witnesses developed before you a way of designing a wonderful, flexible warrant without saying, "Is that the route we take?" Before you buy a new car, you say, "Do I need a new car?"
Senator Cogger: It is your considered view that we could just forget about Bill C-16; that the common law would continue to apply, as they did in Feeney. The Attorney General of British Columbia need not tell us that 2,000 people who are currently incarcerated would all of a sudden be sprung free.
Mr. Hawkins: I do not believe that 2,000 people would currently be sprung free. I do believe that this is obiter. I believe that this matter would go back to the Supreme Court for decision. However, it would be careless and foolish of me to say that I would take that risk.
Senator Gigantès: It would be foolish of you to take which risk?
Mr. Hawkins: To take the risk that 2,000 criminals would go through -- I think the number was 10,000. It would be open for this committee to look at other laws and other amendments and to go back to the Supreme Court and ask for another extension.
The Chairman: I should point out to you, professor, that before we go too far down this road it is not really open to this committee to do so. This committee can only consider things which are sent to it from the Senate.
Mr. Hawkins: I understand.
Senator Cogger: With all due respect, senator, this committee could report back to the Senate as our conclusion that the bill is entirely unnecessary.
The Chairman: Yes, but that is not what the professor was suggesting. He is suggesting that we go beyond and start looking at other things. This committee is not empowered to do so. We are a creature of the Senate and can only look at things that are referred to us by the Senate.
Mr. Hawkins: Madam Chairman, I understand your rules. I have submitted to you that you should go back to the Senate chamber and say that the bill is unnecessary. I know that when you do that, some people will say that chaos will result. There are a number of ways to prevent chaos. In other words, I do not want the "parade of the horribles" to spook you; I do not want you to be left with the impression that you have no choice. I do not mean to dictate your future conduct.
Senator Gigantès: You made four points about the common law concerning warrants, privacy, entry, and so on. Will those common law points remain if we do not pass this bill? Will the police be able to get warrants for the purpose of law and order?
Mr. Hawkins: Yes, those points do remain. They have been challenged constitutionally. The Supreme Court of Canada in obiter, but not as a matter of ratio dicta, has said that the points are unconstitutional. That makes them fragile, but they do remain. It would still be open for a lower court judge to follow those common law points writing in his or her reasons for decision that the impact of the Supreme Court of Canada decision on the constitutionality of those points is limited by the fact that they are obiter. So the answer to your question is "yes".
Senator Gigantès: Are we running the risk of a judge saying: "Sorry, I do not make this distinction. I have the impression that what the Supreme Court decision says is that this cannot operate. We can no longer operate on those four points of the common law that you mentioned."
Mr. Hawkins: I would put the risk slightly differently. A lower court judge may say, "Even though I am not bound by the Supreme Court of Canada on the constitutionality point, I find its conclusions persuasive." There is a difference between being bound and being persuaded. I am elaborating why the Supreme Court of Canada decision might not be all that persuasive. In fact, it is as weak a Supreme Court of Canada decision as you can get on the constitutionality issue. My first reason is that it is only obiter, it is not ratio.
Senator Gigantès: Let us say that we have a case identical to the Feeney case, that the police do what they did. The defence lawyer says that what the police did was test it before the Supreme Court and found it unconstitutional. You are saying to me that the judge can say it was an obiter dictum?
Mr. Hawkins: Yes, exactly.
Senator Gigantès: It was not the reasoning, the ratio.
Mr. Hawkins: The essential minimum reasoning, yes, exactly.
Senator Gigantès: Do you know many judges who are that gutsy?
Mr. Hawkins: This comes to my second point. Thirteen judges looked at the Feeney case and only five adopted the constitutionality point. So there are at least eight judges out there who have serious reservations about the necessity for a warrant in the Constitution.
Senator Nolin: You referred to the four elements that the common law requires before Feeney. Justice Sopinka, in his decision, referred to the Hunter case of 1984, a decision that was clear in forcing a warrant to deal with Section 8, defining the unreasonableness of a search and seizure. He extended that decision to the Feeney case. If it was good for search and seizure, it must be good for arrest. I am summarizing his opinion. However, that is the gist of what he was saying.
If you take into consideration the Hunter decision, because he is adding that fifth condition, which is the special type of warrant, what is your opinion? Do you still maintain that only the four conditions of the Landry case and all others are sufficient, or should we also take into consideration the Hunter test?
Mr. Hawkins: I think we shall take into consideration the Hunter decision. I am glad for your question, because it brings me to a critical point. In this case, Madam Justice L'Heureux-Dubé told us that these points were not argued before the court in any detail. I shall paraphrase paragraph 142. It says: "The reasonableness of the common law was a relatively minor issue at trial and on appeal, and I am weary of addressing such an important question in the absence of argument with regards to the potential impact a change in this area would have upon the police, as well as some context regarding the frequency in which these types of arrests occur."
My submission would be that the Feeney case, which is a case of arrest, and the Hunter case, which is a case of a search of a newspaper office for evidence, are entirely different and can be distinguished. Had the Supreme Court of Canada had the benefit of full argument, not only in the course of arguments by counsel present but, as we heard this morning, from the attorneys general of the provinces, I think those attorneys general and those counsel would have said that the Feeney case -- where someone was cruelly bludgeoned to death -- is very different from the Hunter case where the combines and investigation branch wanted to go in and search the offices of The Edmonton Journal.
The difference is that in the Hunter case the law set out no limits on the discretion of the director of the combines and investigation branch to conduct a search. The Supreme Court of Canada said that that does not meet the requirements of section 8. It seems to me a long jump to then say, in Feeney, where we are dealing with a common law, where there are four strict limits set in a common law that has been sensitive to the privacy issue, that the same reasoning applies. I think it is a matter of great regret that the Supreme Court of Canada did not hear argument on just the point you raised. I personally believe that they would have decided the case another way. They are calling this a five-to-four decision. The lack of argument before the Supreme Court, apart from the obiter, is why this decision of the Supreme Court of Canada is not that persuasive. These points would be made in lower courts.
Senator Nolin: If you read the preamble of Bill C-16, specifically the part that refers to a "clear legislative framework", do you agree with that?
Mr. Hawkins: No, I do not agree with that. What the preamble of Bill C-16 is saying is that we need a clear legislative framework in the context of issuing arrest warrants when entering dwellings. What I am submitting to honourable senators is that you do not need the warrants, so you do not need the clear legislative framework. Moreover, the common law and the four rules of the common law were a respected balance between the need of police enforcement and the need to respect the privacy of individuals. It is a viable and workable balance. I do not think that any further legislative framework is required beyond that.
Senator Gigantès: Those four points of the common law deal sufficiently with the business of entering a dwelling?
Mr. Hawkins: Absolutely. I am a very strong supporter of the Charter of Rights. I appreciate your work with that very much.
However, it is not the case that we had no rights and that we were unfree prior to 1982. What section 8 did, when it incorporated the notion of unreasonable search and seizure, was not to cast the suggestion that the four common law points were inadequate, but to in fact constitutionalize a workable balance that had been in place for many years in one form or another. I do not think that the four common law points are deficient because they were common law points and because the Charter came afterwards.
Senator Cogger: You seem to be the only one taking this position. You have not heard or read anybody else saying that this was merely an obiter. When the Government of Canada went to the Supreme Court to seek an extension, do you not think that the Supreme Court would have said to them, "You do not need an extension; this is merely an obiter. Go about your business"? Would that not have been the logical answer if the Supreme Court considered its own decision?
Mr. Hawkins: That is a hard question for me to answer. I was not there and I did not follow the shape of the argument.
What I do know about that proceeding is that the Supreme Court of Canada sent a very strong signal that it wanted a system of warrants in place for the purposes of making arrests in dwelling-houses. The government said, "Give us an extension while we arrange for that," and the Supreme Court of Canada said "yes". I am not sure that the question of obiter would have arisen at all. To put the matter another way, senator, I am not sure in whose interest it would have been to raise that point before the court at that time. I am not sure that it would have been in the interest of the court itself to raise that issue at that time.
Senator Cogger: If the four common law principles are there in good standing, and remain, et cetera, and are the ratio decision of the Supreme Court and the rest is obiter, why for that matter even suspend the judgment of the Supreme Court?
Mr. Hawkins: I did not ask that it be suspended.
Senator Cogger: Only because the attorneys general panicked?
Mr. Hawkins: I do not want to put it that way because it sounds a bit pejorative. I think the attorneys general may have thought that they could argue this as obiter, but did not have to go that route if they got a suspension, so why not be completely safe.
Indeed, one of the things that I am suggesting to your committee is that there are some other routes that can be followed even if the Attorney General of B.C. followed a different route in seeking a suspension. I am being cautious because I do not want to trespass outside of the Chairman's jurisdiction.
One of the other routes is that if this committee, the Senate and Parliament thought that there was further work to be done, it is still open, while that work is to be done, to seek again a suspension. I have no doubt that the court would respect that. Indeed, the court, conscious of its obligation with respect to rule of law, as shown in the Manitoba language reference, would grant that kind of suspension. It is not the case that you sat on your hands at all.
[Translation]
Senator Losier-Cool: I am not a lawyer; I am here to try to make a decision concerning this bill. This morning we heard representatives of police forces who are almost urging us to adopt this bill. I am also very sensitive to the Canadian Charter of Rights and Freedoms. You say that we don't need a legislative framework, this legislation; it is almost redundant. If we were to follow your recommendation, we would not adopt it because you say that not adopting it would not change anything. As to the Canadian Charter of Rights and Freedoms, what would be changed if we were to adopt it? Is there something that is not consistent with the Canadian Charter?
Mr. Hawkins: No, I would suggest that you adopt as legislation the rules of common law. I would suggest that you ask the courts for an extension to enable you to do so. The government would be well advised to ask the Supreme Court of Canada for a reference. The issue is whether the legislation the House has adopted is constitutional in accordance with section 8 of the Charter. This is a way of really testing the constitutionality of common law, which is an honourable compromise. It's a way of testing it without endangering the justice system. The Senate must be very careful not to adopt Bill C-16 as it stands since, as I have submitted to you, it presents problems.
Senator Losier-Cool: I see, as the Chairman has reiterated on a number of occasions, Bill C-16 is not intended to test the common law. I come back to the people on the ground, actually involved, such as the representative of the police this morning who told us that they need this bill.
Mr. Hawkins: With all due respect, they said more than that. They said: we do not like the decision in Feeney at all. We do not like for one moment that that Bill C-16 is needed. We support it simply because we have no other choice. They were very clear about that. You have a choice. If I had five minutes to explain to the police that there is a choice, they would say to me, fine, go ahead.
Senator Losier-Cool: I see.
[English]
The Chairman: This committee has only three options before it. We can report the bill without amendment; we can report it with amendments; or we can recommend the Senate not proceed, and give our reasons.
Mr. Hawkins: It is the third option that I submit to you is the proper option. I submit that because I believe that there are alternatives that will not result in chaos in the system.
Senator Gigantès: In answer to Senator Losier-Cool, you said that we should adopt those common law points by legislation. This puzzles me because the common law has not been abolished. It exists. Why should we adopt it by legislation when it exists and lives?
Mr. Hawkins: Two reasons: the first is prudence; the second is more interesting. Where government legislation exists, section 1 of the Charter of Rights gives the government an argument to say to the Court, "Do not strike down this law even though it violates a provision of the Charter. It is demonstrably justifiable in a free and democratic society."
At that moment, the government can argue the balance between the needs of a democratic society and those of the protection of the individual.
One of the tragedies of this case, and because we are dealing with the common law, is that the government never had an opportunity to argue that in fact the proper balance had been struck. There was no point at which the government could argue in defence of the common law, section 1.
I believe that if you legislated the common law, thus turning it into statute law, the government would be successful -- on a reference in defending that statute which abolished the common law -- because I do not believe it violates section 8 of the Charter, and that comes to the point I made earlier.
If I am wrong on that, the government could save the legislation by arguing that it was demonstrably justifiable in a free and democratic society under section 1 of the Charter.
[Translation]
Senator Nolin: My colleague, Senator Losier-Cool, asked you a question. I am not sure I understood your answer.
Mr. Hawkins: Perhaps I didn't explain it very well. I am sorry.
[English]
Senator Nolin: I will try to rephrase that question in English. If we pass Bill C-16, what fundamental right are we breaching? Are we breaching any fundamental rights?
Mr. Hawkins: No, absolutely not. However, you are encumbering the exercise of police duties and public enforcement. You are upsetting an old and workable balance between the privacy rights of the individual and societal interest in police protection and replacing that with a system about which I have grave doubts about its efficacy.
Sitting here this morning and early this afternoon has done nothing to dispel those doubts for me; indeed, they are heightened. If you adopt Bill C-16 and introduce this system of warrants, lawyers will rejoice. There will be a tax on these warrants one after another and we will argue about exigent circumstances and imminent harm, and on it will go.
I do not believe that you will violate the Constitution by requiring a warrant. On the other hand, I do not think it is necessary, for constitutional reasons, to adopt such a warrant.
The Chairman: Professor, would you now carry on with the rest of your presentation, or have we covered it?
Mr. Hawkins: I think you have covered it. I am open to any other questions where I can be of help. If not, I can sum up in one sentence. You have been very generous with your time. My simple message is that there are choices here to be exercised. Bill C-16 does not adequately respond to the full range of options which you would have. I would urge you not to feel rushed but to take the time you need to consider other more viable choices. In particular, I would recommend that you look seriously at the strength of the common law as set out in the four points made in Feeney and which I presented to you earlier. Thank you very much for the kindness you have shown me today.
The Chairman: This has been a very instructive session.
Our next witness, honourable senators, is Ms Gwendolyn Landolt, National Vice-President of REAL Women of Canada.
Please proceed.
Ms Gwendolyn Landolt, National Vice-President, REAL Women of Canada: We are very grateful to have this opportunity to appear before you. We come before you as a women's organization, as members of families and of our communities across Canada. We are a national organization. Unfortunately, we may also be the victims of crime, so we took a deep interest in this legislation because we felt it could affect us and our families for many years to come.
We are puzzled as to why in fact this legislation was created. Mr. Justice Sopinka said that if there is no provision for a warrant to enter a dwelling-house then the law must in fact be enacted. Section 514 of the Criminal Code says that a warrant may be executed by arresting the accused "wherever he is found".
Why is Bill C-16 necessary when there is already a provision in the Criminal Code to cover entering a dwelling-house? "Wherever" would cover in a dwelling-house, as well as any other place. It struck us that, perhaps because of time constraints, the terms and provisions of the Criminal Code were not carefully thought out, which has led to this confusion. In rushing, there seems to have been some carelessness in not realizing that section 514 of the Criminal Code would cover this particular situation.
The other concern we have is that of police action. We are concerned as citizens, and as women and possible future victims, about the effect of this legislation on the police force. We have had the benefit of briefly scanning the statement of the Canadian Association of Chiefs of Police, whose representative spoke this morning, and we found it very interesting. It is of great interest to us that the police themselves say that this will hamper the work of the police. What happens, as many of us who come from small areas realize, is that there may be only one or two police officers in some of the more remote areas and the police will make a decision with great apprehension of their danger. The words "exigent circumstances" were not defined. Two circumstances are listed in the bill. We understand that when the minister appeared before the House of Commons committee she said that they did not want to elaborate on all the exigent circumstances because it may cut something off that would not fall within the provisions.
What concerns us is that, since "exigent circumstances" is not defined, the Supreme Court of Canada, in the comfort and calm of a court setting, will be second-guessing the decisions our police will be taking under emergency situations and under great apprehension. It strikes us that this leaves the police extraordinarily vulnerable because they will never know from day to day whether or not what they are doing in fact falls within the provisions of C-16. They themselves will be affected and, as I say, we are grateful that the police themselves have expressed the same concern.
The second problem is that when the court, in Feeney, found that there was a violation of the Charter they simply said that evidence the was inadmissible. Technically, that is fine; as a lawyer, I understand that. But as a woman and as a mother, it is not acceptable to me. The facts of the Feeney case were clear: He had the victim's blood on him, he had the cash, he had the shoes; they had evidence. It is troubling to us that the court can throw out that evidence. It appears to us, at the very least, that this bill must be amended -- if the bill is in fact passed, which we have doubts about -- to state that such evidence would not be regarded as inadmissible.
It is common sense that that evidence should not be inadmissible. The scope and jurisdiction of the court is too wide in that regard. It has too much jurisdiction to second-guess and to throw out evidence, evidence which clearly has led to a man, who has killed someone, walking the streets of British Columbia, likely, right now because of a technicality. In Feeney, all of the evidence has now been disposed of. If the accused is in fact brought to trial again -- which we hope he will be -- what evidence will they use because the factual evidence was deemed to be inadmissible? That is very troubling to us from a very practical point of view; there must be some amendment so that evidence will not be thrown out.
I understand that there are complications with the Charter. Section 11 of the Charter talks about throwing justice into disrepute. There is absolutely nothing that throws justice into disrepute more than having thrown out valid evidence which clearly points to the accused's guilt. If anything, this Feeney case has thrown justice into disrepute. There should be some provision written into the legislation that would protect that evidence so that it would not be deemed inadmissible.
The serious problem with this bill is that the court was directing its attention to the accused; it was looking to the violation of the accused's rights. There was no mention of the violation of the victim's rights; the victim was the one whose rights were obliterated by this legislation. It seems to us that the court was very narrow in its vision. We now have legislation proposed that protects the accused while the victim is simply left outside the scope of protection of the Charter. As a result of Bill C-16, the victim's rights have been totally ignored.
Our other concern -- and the final concern with regard to Bill C-16 -- is the use of the words "judicial authorization" in several places in Bill C-16. The phrase "judicial authorization" is deeply troubling, one, on the basis that the judges do not authorize warrants. It is the right of the sovereign, the Crown. To say "judicial authorization" is to use very loose wording because the judge acts only on behalf of the Crown. I have never seen a warrant to this day that does not say "In the name of Her Majesty the Queen, we order..."
That loose wording may, to non-lawyers, seem like a very picayune, small point, but it is not. It throws the whole system of our parliamentary democracy out to say that the judge has authorization when in fact it is the Crown that has it in the name of Her Majesty the Queen.
Perhaps even more significant is the phrase "judicial authorization." Warrants are usually issued on behalf of the Crown by a justice of the peace. That is the standard. Do the words "judicial authorization" mean that only judges -- which is senior judges only appointed under section 96 of the Constitution Act of 1867 -- will now have the authority to issue warrants, or did they mean to include justices of the peace?
I am afraid that the first thing that will happen, if this bill is passed into law, is that the next day there will be a challenge on the grounds that the warrant was issued by a justice of the peace when in fact the legislation says in several places "judicial authorization." That is very puzzling. Judges -- again I refer back to section 96 of the Constitution Act -- are appointed by the federal government. It does not apply to justices of the peace, which are provincial appointees. There seems to be a lack of clarity in the drafting of this legislation and this will lead to confusion. It will be challenged, as I say, the very next day. Any defence counsel would be lax in his duty if he did not pick up the fact that the judicial authorization refers to judges but not a justice of the peace.
The proposed legislation is of grave concern to us. There has been a tremendous rush because the Supreme Court has ordered this to be passed within a certain period of time. The Department of Justice has shown a lack of accuracy and clarity in its drafting because of the rush. There are already provisions in the Criminal Code which provide just for this instance, which would be for police to enter a dwelling place.
We will have the problem of citizens who are not protected. The whole purpose of the Criminal Code is twofold: one is to protect human life and the other is to protect property. It appears to us that this legislation does not reach its primary objective, which is to protect human life.
It seems to us that this proposed legislation will create more damage and more loss of human lives; that it will not curtail and protect people. If Bill C-16 is passed into law, it will lead to more and more accused persons walking the streets of this country. We can only reiterate what the previous speaker said and that is that we are rushing into a trap because it has not really been dealt with properly.
I understand the untenable position Parliament has been placed in but it is women such as ourselves, and our families, who will feel the brunt of this legislation if it is passed into law as presently drafted.
The Chairman: I would just like to correct one intimation that you may have left with us; that is, that Parliament is, by this bill, allowing people like Feeney, to walk the street. Actually I believe what we are trying to do, imperfectly as we may, is to correct the situation rather than freeing him to walk the street.
Senator Nolin: Just on that point, we are not addressing the Feeney problem per se. We are talking about the future, but Feeney is a problem in itself.
The Chairman: You are absolutely right.
Senator Gigantès: You said that you are alarmed about judges second-guessing the police.
Ms Landolt: Yes, because the exigent circumstances were not more exactly drafted. Only two examples of exigent circumstances were cited; as well, there was a third circumstance -- which I cannot think of at the moment. The judges will say, "No, that is not our understanding of exigent circumstances." As to what constitutes exigent circumstances, we are saying that the police often have to make their decisions about warrantless entry in the face of difficult situations while judges make their decisions about the legality of same in the calmness of a court room. That leaves our police forces across Canada extremely vulnerable because they do not know A from B anymore.
Senator Gigantès: The police forces are not infallible; the Marshall case, the Morin case, the Milgaard case, the Steven Truscott case, and how many others that have not yet been discovered. We have in our system a kind of hierarchy of wisdom. It may be a wrong hierarchy but we think that the judge is better able to judge than is the police officer and is a guardian also not only of the security of the person but of what section 11(d) of the Charter says, which is that the person is deemed innocent until proven guilty in a fair trial before an impartial tribunal. That is where the buck stops; the judges have the final word. They may make mistakes -- and they do -- but surely we cannot have a system in which the judge cannot second-guess the police.
Ms Landolt: Senator Gigantès, the examples you gave, the Milgaard case and the Marshall case, it was not the police evidence and actions that were wrongful; it was in fact the process, the procedure before the courts. In the Morin case it was the police action, but that is not always the case.
It is a good point you make to say that, yes, the police are not infallible. But that is not always the issue; there are exemptions to the rule and more and more people will be victims, will not get the protection. You are right, there must be a balance. But we must have confidence in our police forces; due diligence is absolutely essential in any democracy. However, there is no balance here; it is tipped in favour of one side. Perhaps we can rectify that imbalance by being more lenient and more flexible as it regards the actions of the police; subsequently the justices, who are not always right, would have less control.
Senator Gigantès: If I must choose between the judgment of a police officer on matters of law and the judgment of a judge, I will choose the judge, but we may disagree on this.
The other point you make is on the authority of the Crown. In a democracy such as ours the Crown, in effect, is what Parliament says. The Crown says what Parliament wants the Crown to say. That is the modern democracy. Parliament established a Charter of Rights; the Charter of Rights gives certain authority to the Supreme Court. This business of returning to the old principle where the justice of the peace was appointed by the Crown, in the days when the Crown was quite arbitrary and had not surrendered its powers, as it has in the case of Canada and Great Britain, is not really in my mind a very persuasive argument.
Ms Landolt: For one thing, as you know, the Charter came into effect in 1982. It has ill-defined and vague expressions which can be interpreted by the judges in any fashion they so wish. That is what is happening. Because of the vague terms in the Charter, it gives the judges tremendous power in Canada. They are appointed and they are simply unaccountable.
Senator Gigantès: Would you like elected judges as in California?
Ms Landolt: That is a side issue, but I would like to go on record as saying that, yes, something must be done about the appointment system; that the way we do it is out of date with the Charter. But that is another issue.
The Chairman: It is also not before us, Senator Gigantès.
Ms Landolt: It is not before us right now, but the point is that we have judges now who have absolutely wide open power, which has even been widened further by the Feeney decision. They can tell Parliament what to do, which is what they are in fact doing by this decision; in other words, ordering you to pass legislation.
You are quite right -- Parliament is the Crown, and Parliament is the people. But suddenly they do not have any power anymore. Power seems to lie in the Supreme Court, based on these vague wordings of the Charter. The Supreme Court is assuming great jurisdiction and great power; it is sort of bypassing Parliament and the Crown.
Senator Gigantès: In this particular case, the Feeney case, the Supreme Court said that a certain act in law enforcement was unconstitutional. It did not tell the House of Commons and the Senate what to do about it; it simply said the existing provisions are no longer constitutional. If you want to rectify them you can rectify them by such and such a date. They gave us two more extensions. And in fact, as we have heard from Professor Hawkins, we had the option of doing nothing.
Ms Landolt: You were given a date. Actually I read the statement because it was read into the Senate proceedings, and it said "order". They used the word "order" of the court, and that is in the Debates of the Senate.
Also, I would like to bring you back to Mr. Justice Sopinka's words. In regard to this recommendation, he said that if the Code currently fails to provide specifically for a warrant containing such prior authorization then such provision should be read in. He did not say "may be"; he said "should be". And subsequently, the document that went back asking for an extension referred to an "order" of the Supreme Court of May 22 and asked that it be extended from November 22 to December 19.
Senator Moore: Ms Landolt, you said that if this bill were enacted, made law, we would be creating more victims. Tell me about that.
Ms Landolt: It is very simple. Mr. Feeney, for example, is still walking the streets of Langley. And if he has killed once without having to stand before the bar of justice are we not to say that he will have the option of being available to commit further unlawful acts without being incarcerated? That is what I mean. And second, we now know, because of decisions like Feeney -- which is not the only one -- that the court looks very seriously at the police action. And if the police do not dot every "I" and cross every "T" then evidence is deemed inadmissible and the accused are allowed to go free.
When people who break the law know that their chances of getting off are likely, then they are not as concerned about the repercussions of their actions. That is what I mean by more victims. If a person knows for certain that if he kills an individual he will be brought to the bar of justice and he will not get off on a technicality, which is occurring by police failures to adhere strictly to the rules and regulations of crossing every "T" and dotting every "I," then I think they will be more inclined to proceed. It is not just a perception of our organization; it is a perception of Canadians across the country.
Many people across Canada are saying that more concern lies with the accused than with the victims. Feeney is an example of that. It seems that justice is being thrown into disrepute more than anything else, that too many people who have been accused are let off on technicalities.
Senator Moore: In your response to Senator Gigantès, you said that Parliament was ordered to take action and that that was part of the Hansard record of the deliberations of the Senate. I do not think in the decision that we were ordered to do anything. The decision of the court is there. It is obvious that if we want to take action to correct the situation the opportunity is presented to us. I think the word "ordered" was used by Senator Cools in her presentation to the Senate. I do not think it went beyond that.
Ms Landolt: Yes, it did, with respect, Senator Moore. On November 27, I believe that Senator Cools read into Hansard that the Department of Justice applied for the extension. She read into Hansard what it said, the extension. The extension said that the order of the Supreme Court will be extended until December 19. I have a copy of the Debates of the Senate of that date, if you can give me a moment. I can read it to. But that was the wording of the Supreme Court itself when it granted the extension.
Senator Moore: I have a copy of the same thing here: It says:
The stay of the judgment ordered by the court.
Ms Landolt: Yes.
Senator Moore: Whenever a court renders a decision, it is referred to as an order; but it does not say that I am ordering you to do something. However, it is not meant to be construed as an order to take a specific action, et cetera. It is not meant to be interpreted as "you must do this;" and "we are telling you to do this." I do not think it is that. We could do nothing if that were the choice of Parliament.
Ms Landolt: Yes, you could do nothing. It would have been preferable, perhaps. Senator Moore, when a judge hands down a decision it affects the parties involved. What we are talking about is not directed to the parties; it is directed to Parliament. That is the difference. When a court hands down a decision regarding a motor vehicle accident, it is with regard to the parties. What we are talking about was directed not at the parties but at Parliament. That is the significant difference.
Senator Moore: I do not agree. We will leave it that we disagree on that point.
Senator Gigantès: The word "order" refers simply to the date. The Supreme Court said, in effect: "We have struck this down. If you want to do anything about it, you have until such and such a date." The order refers to the date. It does not say that we must do anything specific or anything at all.
Ms Landolt: Because you are Parliament and you are in control of legislation you have the power to say no.
Senator Gigantès: Right.
Ms Landolt: That is quite true; and if you do not do it, there are no repercussions. The point is, however, that this is the first time -- and I have been involved for many years with legal matters -- that I have ever seen a court issue instructions to Parliament.
Parliament can ignore it, but it has never before. It can strike down legislation under the Charter. However, there was no legislation to strike down and that is the significant difference; there was nothing there. We are suggesting that this is troubling to us. It extends the power of the Supreme Court of Canada. We find that alarming to us as citizens. It is our hope that the elected representatives would be making the law, deciding whether they would or not, and this has not been the case here. It seems to me that the Department of Justice jumped very quickly on this because they felt they had to obey the instructions. In view of the difficulty in drafting this, it would appear to us that they jumped too quickly; that they really had not thought it out.
Senator Moore: I do not think that is what happened here at all. It was a matter of the experiences across the country, because of the interpretation of the judgement by the attorneys general and how they sought to implement it in their various jurisdictions, which led to the department trying to pull it together and getting a consensus and, hopefully, an acceptable process out of it. That is what I think happened.
Senator Cogger: Just on that point, I had several discussions with Senator Cools, who was the first to raise the problem in the Senate, and it was my view then, and it still is, that there were two problems that this committee was asked to address at once: one was the genesis of the bill, the way it was initiated, created or came into being, as a result of the Supreme Court decision; the other one was the substantive question of the bill itself. I think we will find soon that Senator Cools on my recommendation will agree. Frankly, I did not think it was proper that both questions be lumped and that we would be asked to look at Bill C-16 while trying to sort out the other questions, which are I think equally important and may be more difficult. By way of a reference, we could separate the questions, leaving us to deal with Bill C-16 and then addressing the question of the genesis of the legislation as a separate issue.
I did not qualify it as interference, but let us say, for instance, that some people would qualify it that way and let us make that a separate question. My experience has been that when we come close to an adjournment, be it Christmas or summer adjournment, governments try to push and shove and speed up legislation. In that regard, very important questions sometimes get swept under the carpet and this was one of them. I felt that by separating it, isolating it from the piece of legislation the government would want, it would allow us to devote appropriate time to that separate question.
We have our hands full with Bill C-16 as is. Let us not at this point get into how it saw the light of day.
Ms Landolt: You are quite right in that Bill C-16 is fraught with complications, fraught with problems. Maybe you have enough on the table right now just to deal with that. Certainly there seems to be very serious miscalculations or difficulties in drafting that will have ramifications -- and I have raised some of them -- without getting into the other problems that are arising, you are right in that sense.
Senator Cogger: I noticed that you were here while Professor Hawkins was testifying and that you are a lawyer; correct?
Ms Landolt: Yes.
Senator Cogger: You are evidently familiar with the Feeney decision?
Ms Landolt: Yes.
Senator Cogger: You are familiar with his testimony then to the effect that what gave rise to Bill C-16 is, in his view, merely an obiter of the court and therefore not totally unnecessary. Would you care to comment on that?
Ms Landolt: Certainly when I read the Feeney case that was one thing that struck me. I asked myself, "What am I missing here? Why did the Department of Justice jump on this when it was obiter, when it was not the ratio of the case?' I would stand firmly behind what Professor Hawkins said. If the both of us picked it out, there must be lawyers right across the country who are asking, "What is going on here? Why are they drafting legislation to fit the obiter and not the ratio of the case?" It is very puzzling.
In fact, the whole thing confused me. With regard to the strong dissent of Madam Justice Claire L'Heureux-Dubé, I have never really seen judgments of such strong dissent; almost criticizing. I have seen it in the American Supreme Court decisions, but I have never seen in Canada a situation where a judge is striking out at others on this. Feeney was the first time I witnessed how deeply divided the court was. It was a 5-to-4 decision, which was extremely close, and it struck me that perhaps we should deliberate a bit more. It is very upsetting to see what has happened and to worry that this whole thing will create so many problems in the court. Defence counsel will jump on this with great joy, I know that.
Senator Nolin: Ms Landolt, when you are referring to this order by the Supreme Court of Justice Sopinka, are you referring to paragraph 48 of his decision?
Ms Landolt: I did not have the actual court decision.
Senator Nolin: Please have a look at paragraph 48 and tell me if it is that specific part of his decision to which you refer.
Ms Landolt: That is right.
Senator Nolin: I am very open to being convinced, if you can explain to me how that paragraph, that obiter, as some witnesses have referred to it, can be construed as being an order to Parliament.
Ms Landolt: How that would be construed? We are returning to that issue we were not to discuss, but let me just say that when they granted the extension, senator, they referred to it as "our order". They used that that language. Mr. Justice Sopinka says that while the absence of such a provision could have a profound influence on the common-law, its absence cannot defeat a constitutional right of the individual. He says that if the Code currently fails to provide specifically for a warrant containing such prior authorization, such provision should be read in. In other words, he is reading in something, or he wants you to read it in. He has not exactly said that he is reading it in, but he is saying that if it is not there you had better make good and sure it is in there. And that is what the Justice Department jumped on. And then they got an extension from November 22 to December 19.
My point is: Why did Parliament act if it did not feel compelled to do so? And why did they do it so quickly and in such a manner that so many questions are raised if they did not regard it? Maybe the wording specifically did not say that; it says that he will read it in. He did not read it in, but he said, "I will read it in."
Senator Nolin: Maybe for the very reason that you have explained when you refer to the fact that Mr. Feeney is free. That is probably a very good reason to act and to act very rapidly. We have a problem as a society.
Ms Landolt: You have a problem that is creating more problems, with respect, in that you have acted so rapidly on the instructions. Maybe you do not want to call it an order. We can say "on the instructions thereof" or "on the opinion thereof" -- whatever you want to say -- but you have acted on it and that is what is of concern to us, that you have felt compelled. Maybe it was because of Feeney; also, it could be that you felt you had no choice because he says himself that is what he wants to do. Whatever reason, the fact is that you have done it, or you are in the course of doing it -- that is, preparing that legislation -- and there are so many problems with the legislation.
I think Senator Cogger has said, "Let us not deal with this other problem." For whatever reason, you have done it, and you are trying to grapple with the problem because of what Mr. Justice Sopinka said in Feeney. The problem is that by so acting you are creating many more problems. We are suggesting that there will be more Mr. Feeneys walking the streets and, as such, it is absolutely crucial that we clarify the language as to who can issue this warrant. That is so basic. It is not clear in this legislation. It is not clear why we even have Bill C-16 when we have section 514 of the Criminal Code. If we are raising these issues, surely lawyers across the country are raising these issues as well. That is what I think has not been dealt with.
Senator Nolin: In your opening remarks, you referred to what is not in Bill C-16; that perhaps in Bill C-16 there should be sections that would deal with evidence that was struck by the court. As a lawyer, how would you advise us to do that?
Ms Landolt: It is a tricky business, I grant that. However, the police association has recommended that simply because evidence was not obtained in strict accordance with the law it would not necessarily be deemed to be inadmissible. They dealt with that problem.
The Chairman: Senators, I interrupt because the Senate bell is ringing for a vote. One of our staff has gone to find out how long the bell is expected to ring.
Ms Landolt: On page 11 of their brief, the Canadian Police Association say, under Recommendation No. 4:
Define the circumstances which would justify entry/arrest without warrant and mandate reference by a court that must decide the issue to specific practical factors ...
Recommendation number 4 continues:
Section 495 of the Criminal Code is amended by adding the following after subsection (1):
(2) For the purposes of effecting an arrest pursuant to subsection (1) a peace officer may enter a dwelling-house if in fresh pursuit of the person he intends to arrest or if exigent circumstances exist which render obtaining a warrant for arrest impractical.
(3) Without restricting the generality of the foregoing, fresh pursuit' includes any instance where a peace officer...$
And they list them. We all know that the police can go in without a warrant in hot pursuit, but fresh pursuit is something new and it means a continuation of in-the-field investigation. What they are getting at -- and I have not read it very carefully -- is that in the course of an investigation, in fresh pursuit, there is not a gap of several weeks or months. As occurred in the Feeney case, they continued right on from they found the murder victim, they moved right away. Those circumstances would be exigent circumstances.
The Chairman: I must interrupt right now. It is a 20-minute bell. This committee meeting is suspended until after a vote in the house.
The committee is suspended.
The Chairman: The committee is resumed.
Senator Nolin, please continue.
Senator Nolin: You were explaining to me how we could amend Bill C-16.
Ms Landolt: You were suggesting that I could suggest an idea to draft. But rather than think about that off the top of my head, I would suggest that the police commission have written recommendations, which include fresh pursuit, which is a good expression because it covers all sorts of things that would be considered exigent circumstances when they are in fresh pursuit which would apply, for example, to the situation in the Feeney case.
One of the problems the Minister of Justice mentioned when he appeared before the House of Commons committee is that it is very difficult to be precise and exact. Two examples are illustrated in Bill C-16. Each circumstance in a criminal investigation is so unique and so difficult that maybe a broader term should be used; for example, "if evidence is acquired in the course of fresh pursuit" or whatever else the police commission has recommended. In other words, give the police more flexibility so that evidence will not be ruled inadmissible. That is the point. As to the exact wording, I would need to give a lot of thought to that; but certainly that is the idea of a broader definition so that the court would not be throwing it out subsequently.
The Chairman: We will hear again from Mr. Roy at this point to complete senators' questions.
[Translation]
Senator Gigantès: I hope that you heard the testimony of Professor Hawkins?
Mr. Roy: I was present for all the witnesses this afternoon.
Senator Gigantès: Professor Hawkins indicated to us that legislation was not necessary since the common law was sufficient; however, he did suggest that the legislation state the principles of common law which apply. Could you comment on that?
Mr. Roy: Certainly, Senator Gigantès. Mr. Hawkins' position is based on his understanding of the decision in Feeney and the principles which often guide the interpretation of decisions by the higher courts, that is the ratio decidendi of a decision handed down by the court in relation to what is referred to as the obiter dicta. Professor Hawkins concluded that the decision in Feeney is extremely restrictive.
I would not want to be seen as seeking to distinguish myself for the sake of it from Mr. Hawkins' position; however, it is important that you appreciate the reactions of attorneys general following the Feeney decision and subsequent events. In my view, it would be very foolhardy to follow the views of Professor Hawkins on this matter. I would suggest to you that in all likelihood his reading of Feeney is too narrow.
[English]
Let me try to expand briefly on what I just said in French. First of all, there is significant case law that exists from the Supreme Court of Canada itself to the effect that there is no such thing as an obiter dictum in the Supreme Court of Canada. I would refer this committee to the decision of the court in a case called Sellars, going back to the mid-1980s, where the court said words to the effect that when we pronounce ourselves on something, that means something and do not try that famous or infamous distinction between ratio decidendi and obiter dicta; that when we speak we mean it.
In the case we are talking about here, the decision in Feeney runs for over a hundred pages in the published version of the Supreme Court of Canada. If you go to other versions, it runs for longer than that. It would be, it seems to me, a bit odd for the court to divide 5-4 on an issue that was not before the court and, therefore, to treat this as being a non-issue.
Senator Gigantès: Will you clarify the non-issue business -- divide itself 5-4 on an issue that was not before the court --
Mr. Roy: -- and therefore is a non-issue.
Senator Gigantès: Would you expand on that?
Mr. Roy: In the circumstances that would mean that there is no need for Parliament to intervene in the matter and try to set the law straight. I will go one step further in saying that when the attorneys general reviewed the decision, looked at it very carefully, it would be, quite candidly, to their advantage to be able to go back to trial court judges and to tell them, "Listen, do not pay attention to the decision in Feeney, because they did not have to decide what they decided. Let us try to tell you what the law ought to be irrespective of what the Supreme Court of Canada did." That is not at all what the attorneys general have said or have done.
Rather, they have decided to go back before the Supreme Court of Canada to seek one of two things: clarification of what the court decided; or a stay of the execution of the decision in order for Parliament to have a chance, if it so wishes, to clarify the law.
I have in front of me the decision that was rendered by the court on June 27. I think it is worth it, for the sake of the record, to put on the record what the court said. That was a 9-0 court; there was no dissent on this one.
I will paraphrase that decision. It said that the application for a rehearing is granted on the issue of whether there should be a transition period and that the operation of that aspect of the judgment herein relating to the requirement for a warrant to effect an arrest in a dwelling is stayed for a period of six months from the date such judgment was issued, namely, May 22, 1997.
From my reading of this, Senator Gigantès and honourable senators, there is no doubt in my mind that the court is saying: "We ordered that in the future there be a judicial authorization, warrant, whatever you want to call it, before the state can proceed to arrest someone in a dwelling-house." That decision of June 27, 1997, was unanimous. The nine judges were part of that bench that granted that decision. If there was a doubt as to whether it was the ratio or the obiter dictum back on May 22, if we were to follow what Professor Hawkins suggested, I do not think there is much doubt in the decision of the court in June. The decision, for those of you who want to refer to the record, is reported at [1997] 2 S.C.R. 117. It immediately follows Feeney, which is reported in the same volume, which runs from page 13 to page 116.
To suggest that at this point in time there is no clear decision of the court and that therefore there is no problem and we should go back to the common-law is, in my humble view, a bit problematic; and I would say as a prudent lawyer that it would not be prudent to be satisfied that the court has not decided the point. If you are asking me for my opinion, the court decided the point.
We may say that the point was decided 5-4 and therefore there is room in the future for a reversal of some sort. Indeed, one of the witnesses this afternoon suggested that the judge who rendered the decision is unfortunately deceased and therefore we may not have a majority. Well, the state of the law is that five judges of the Supreme Court ruled in that favour. On the minority side, Mr. Justice La Forest has since retired so we are back into a deadlock of 4-3.
Having said that, the state of the law as it now stands, if I am a trial judge or a judge in the Court of Appeal in whatever province in this country, is that Feeney requires that there be a warrant before you can enter into a dwelling-house for the purpose of arresting someone. It seems to me that this must be the reality we deal with.
Mr. Hawkins then goes into the issue of whether it is necessary for Parliament to act. You heard the police talk about chaos. I am not sure that I would characterize this as chaos because, after all, for a month after Feeney the police community was able to continue to work. Regarding the affidavits that were filed by four attorneys general in order to obtain the stay of execution that was granted by the court, the four attorneys general raised with the court significant problems that would ensue for law enforcement and we went into what those problems were this morning. We did that if only for the purpose of explaining what is in the legislation that is before you, because the legislation goes further than simply providing for a warrant to enter. The legislation addresses other issues such as exigent circumstances.
The majority in Feeney leaves the issue open. There is no question in my mind that that issue is left open. The Minister of Justice thought that Parliament should have a chance to state what it believes should be the law in that area and that is an opportunity that is given. If it is not done by Parliament, the courts must do it. Indeed, some circumstances, left open by the legislation, will be left to the court to expand beyond the minimum that Parliament will have decided should be recognized as exigent circumstances that justify the state to arrest without the warrant of entry in some circumstances.
We have talked about the need to have legislation to address the problems that we now have with the Immigration Act, the Conditional Release Act for parolees, the Extradition Act. These were not covered by the decision in Feeney and if we leave it to the common-law it is not clear to me at least that we can read into these pieces of legislation what the Supreme Court of Canada told us we can read into the Code, but I want to make this clear.
Senator Gigantès: They did not say "could"; they said "should."
Mr. Roy: In order to satisfy the constitutional requirement, yes, you are right. The court said that it has created the requirement in law and that it cannot be satisfied with the Criminal Code the way it is right now.
Senator Gigantès: Not even by 514?
Mr. Roy: Section 514 is a different issue altogether.
Senator Cools: Say that again, please?
Mr. Roy: I am saying that the court in Feeney has created a regime whereby in order to arrest someone in a dwelling-house, a warrant which does not exist in our law must be obtained. If you look everywhere in the Criminal Code -- and believe me we have -- you will not find that warrant. It is not present; it did not exist. In the 1986 Landry decision, the court found that for the purposes of arrest the police can enter a dwelling-house without a warrant. However, the court said that in 1986 without having to take into account the Charter of Rights and Freedoms. The court, in order to not leave a vide juridique, a vacuum, said to read the authorization into the Criminal Code.
Senator Gigantès: You should read it into the Criminal Code: By that, did they mean that even if you do not pass legislation you should assume that the Criminal Code demands that you get such a warrant?
Mr. Roy: You should assume that there is in the Criminal Code an authorization that can be obtained from a judge in order to enter a dwelling-house for the purpose of arresting someone. "Read it in" is what the court said, the "it" being we understood the authorization to enter.
Senator Moore: May I ask you to go over that point again? Could you just give that response again about the Code and reading in?
Mr. Roy: The majority said -- and I shall paraphrase -- that if the Code currently fails to provide specifically for a warrant containing such prior authorization, such a provision should be read in.
What should be read in? One, we understand this to be the authorization to enter.
Senator Gigantès: The requirement for a judicial authorization to enter?
Mr. Roy: No. I think that when you read the whole paragraph, Senator Gigantès, and therefore you read the sentence in context, you will see that the "it" must be referring back to the words "prior judicial authorization" of entry, which is found in the section just preceding. The thing that should be read in is the obtaining of a prior judicial authorization of entry, even though the Criminal Code does not provide for such an order to be given by a judge. The question that remains is unclear, which is why, among other things, the Minister of Justice wants this legislation passed by Parliament. In other words, if it is clear that what we are talking about is the obtaining of an order, what is much less clear is where that should be read in. Is the power given to peace officers to arrest without a warrant to be given under section 495 of the Code? Should that be part of section 487.01, which is a general warrant power provided for in the Criminal Code where there is nothing elsewhere in federal legislation to address a particular issue? Alternatively, should that be read as part of a warrant to arrest someone, which implies that you have already charged someone with a crime? There are at least these three possibilities. In the documents filed with the court in order to obtain the first order in June of this year, the attorneys general stated on the record that it is unclear which of those options should be used. In fact, they all have variations on those options.
If this bill is not passed, at the end of this week we will be in a situation where Parliament has not spoken on the issue and it will, therefore, be very unclear under what exigent circumstances the police in this country can arrest without a warrant. You will have a patchwork of warrants because British Columbia, Quebec and Newfoundland all have their own way of doing things. The Minister of Justice thinks that it is wholly unsatisfactory. The basic principles of the criminal law should be applicable from coast to coast to coast. Furthermore, you would not have legislation to address federal statutes such as the Immigration Act, the Extradition Act, or the CCRA for parolees. That would be unsatisfactory because there would be no legal regime to work from.
You may ask why application should not be made for a further extension to the Supreme Court of Canada. To be candid with you, the first time we sought an extension I filed the affidavit but I was uncertain whether the extension would be granted. That is because the Supreme Court of Canada, if it grants an order staying the execution of its own decision in Feeney, would be, basically, allowing the state to continue to violate the constitutional rights of Canadians.
In the Feeney case, the court decided that the evidence which had been gathered -- including a shirt soaked in blood and statements made by Mr. Feeney -- must be excluded because of this breach of constitutional law. It is difficult to go back to the Supreme Court and ask for a three-month extension, because Parliament is not sitting in December or January and will only resume in February, when the court has provided for at least part of the remedy in its own decision. Again, being candid with you, this bill had already been tabled in Parliament when the court rendered its decision, so I think that asking the court to grant a further extension is asking a lot. However, that does not mean that the court is ordering Parliament to do anything.
Senator Cools: I wish to raise a point of order.
The Chairman: Senator Cools, you cannot raise a point of order because you are not a member of the committee.
To be fair to the witness, we did interrupt him constantly when he was making his presentation so we will afford him some leeway now. However, I would ask the witness to confine himself to answering questions.
Mr. Roy: I shall.
My point is that the court, by granting an extension of its own order to stay the execution of its judgment, did not order Parliament to do anything. Parliament can decide to do nothing, at which point we would revert to the common-law and, for the reasons I have given, this would be very unsatisfactory.
[Translation]
Senator Cogger: I was not here this morning and therefore missed the first part of your evidence. The theory presented to us by Professor Hawkins is in itself quite attractive; it would provide an elegant way of resolving the problem. You have strong arguments against and it must be recognized that Professor Hawkins, however attractive his theory may be, is alone in advocating it, and it would be surprising if it had not been already considered by the Supreme Court or any other legal expert in Canada.
If we were not to do anything, would the courts continue, in accordance with the Feeney decision, to read in the provision that we did not put in?
Mr. Roy: That is correct.
Senator Cogger: First, I would point out that we are not changing very much by doing nothing; since the Supreme Court tells us: "whether it is there or not, you shall read it in". You tell us that the Supreme Court is not ordering the Parliament of Canada to do anything, but at the same time it tells us: "we are not giving you an order to do anything; but whether you do it or not, it will be interpreted as being there".
Second, I do not have your knowledge of the Criminal Code, but you tell us as regards the provision they now want inserted that if it is not included, the various jurisdictions might interpret it differently or try to apply it in different sections of the Code. If we make a mistake and apply it in the wrong place, will the Court not continue to read it in any way it wants to?
Mr. Roy: I will answer your second question first. Parliament can and must decide on the type of legal instruments available to the courts and the police, in order to act in these areas. That is provided for in the law. That provision is in every respect consistent with what the Supreme Court of Canada suggested be included in the Criminal Code, namely authorization to enter, for the purpose of carrying out an arrest.
In the absence of such clear authorization in the Code, the provinces must refer to another provision of the Code. We are told: "read it in", so it has to be related to something. That is where the problem is, namely that the provinces have different theories with respect to what it could be linked to.
In some cases, they say it could be related to arrest without a warrant, section 495. The problem here is that I really do not see how you could read in to section 495 something which is not even there in any shape or form.
I also mentioned to you that reference could possibly be made to subsection 487.01; but this has a clause which could be very problematic for anyone who wishes to rely on it, so the effect of subsection 1 is not to adversely affect the physical security of an individual. It could be validly argued against provinces wishing to apply that section that an individual's physical integrity is most adversely affected when you seize him or her and take them somewhere else. Integrity implies not piercing the skin, but it also involves the integrity of the individual as such.
The other possibility is to have an arrest warrant which, in itself, implies charging someone with the crime and including that in the arrest warrant. As regards arresting an individual in a dwelling-house, four jurisdictions have considerable misgivings about this: New Brunswick, Quebec, Manitoba and British Columbia. Before anyone is charged in those provinces, a Crown prosecutor must take a position. There must be a screening process and, as you can appreciate, that process can be cumbersome. In fact, the affidavit of the Chief Prosecutor of the province, Paul Monty, in support of the application, provided that specifically in June.
The three solutions being considered are unsatisfactory. That is why people want Parliament to find a solution that is acceptable to the police, the attorneys general, and to some extent, to the Bar. You have heard Mr. Koziebrocki mention that this was not the problem with respect to this bill. The problems are constitutional in nature.
If nothing is done, we find ourselves in an unsatisfactory situation, because various solutions must apply in various places. The bill allows Parliament to make a decision regarding emergencies in which the State can arrest without prior legal authorization. It is important to have a system that applies to immigration, parole and extradition. At the moment, that is not clear on reading Feeney, which talks about "reading it in". The Minister of Justice has said that Parliament must act and make a decision regarding Bill C-16.
Senator Cogger: On May 22, 1997, the Supreme Court ruled that this was a violation of human rights. Passing a bill here before the weekend will not regularize any of these cases. Will defenders not be immediately taking your testimony and maintaining to the Court that their client was living under an unconstitutional system?
Mr. Roy: Earlier I read you the first part of the court order of June 27, 1997. That answers your question. It states that the transitional period during which everything is suspended shall apply throughout Canada, without applying to the decision made or to be made in this case.
The Supreme Court said that in the case of Mr. Feeney, the Feeney ruling would continue to apply to him. When Mr. Feeney's case comes to trial in February, he will benefit from the Court's decision; the evidence that was set aside by the Supreme Court will continue to be set aside. For all other cases during this period, we will continue to operate as though the Feeney decision had never been handed down. However, the Court cannot extend this period indefinitely. In the last seven months, all the cases in which arrests were made in dwelling-houses without a warrant, continue to be valid arrests in accordance with the decision made on June 27, 1997.
Senator Cogger: I have here the affidavit issued by British Columbia last June. Was this affidavit in support of the first request?
Mr. Roy: The first request. We must understand that the case before the Supreme Court involved only Mr. Feeney and British Columbia. The only parties before the Supreme Court of Canada at this stage are: British Columbia, the Attorney General and Mr. Feeney. British Columbia is appealing to the Court to ask, first, that it clarify what it said in its decision, or second, to suspend the effect of the judgment for six months.
Senator Cogger: Were these requests made last June?
Mr. Roy: Yes.
Senator Cogger: That is, one month after the decision in Feeney?
Mr. Roy: Exactly. I think the request was made around June 10, 1997, and the ruling was made on June 27, 1997.
Senator Cogger: Could the Federal Crown intervene at that point?
Mr. Roy: The Federal Crown intervened at that point.
Senator Cogger: In support of the same request?
Mr. Roy: On the basis of the affidavit submitted by Mr. Daniel Bellemare, who is the Assistant Deputy Minister in charge of the Criminal Law Branch at the Department of Justice. He was also supported by Alberta, Quebec and Ontario.
Senator Cogger: Did the request for an extension come from the Attorney General of Canada?
Mr. Roy: The request for an extension was a joint request. British Columbia has standing, and the Attorney General of Canada proceeded on the basis of the affidavit that I provided.
Senator Cogger: That more or less creates three systems. A Feeney system, isn't that right?
Mr. Roy: Yes.
Senator Cogger: It became the law on May 22, 1997, as a result of the Supreme Court decision. Is that correct?
Senator Gigantès: For Feeney only.
Senator Cogger: No, for everyone. One month later, the Supreme Court was asked to rule on this. The Supreme Court held that the decision in Feeney would stand. So there is another system for the rest of the world.
Mr. Roy: Retroactive to May 22, 1997.
Senator Cogger: Retroactive as well?
Mr. Roy: Yes.
Senator Nolin: Only lawyers can do such things -- even magicians cannot.
Mr. Roy: We are quite proud about that.
Senator Losier-Cool: My question is very simple and I hope you will not give me a lawyerly answer using a lot of legal jargon. I am somewhat worried about the power this bill gives to the police. I think it gives the police a great deal of power. Can you reassure me and tell me that the police will not go off on manhunts?
Mr. Roy: Bill C-16 gives police officers much less power than they had on May 22, 1997. The common law provided specifically that a person could be arrested without any legal authorization to enter his or her dwelling. Bill C-16 provides, rather, that the basic legal requirement is that the police obtain a warrant to enter a dwelling-house in order to arrest someone. You may have noted the dismay expressed by some police representatives in their presentations. They find the bill extremely problematical. We told them that at this stage we have no choice. The issue involves the state of constitutional law. The Supreme Court of Canada has held that if you want to enter a dwelling-house, you must have a warrant. The court ruled that what they could try to do is to grant a flexible warrant, which does not require more than is necessary to meet the requirements of the Constitution. That is what we think we have done with Bill C-16 -- neither more nor less. But the flexibility comes into play at two levels.
The first level is the definition of "exigent circumstances". The bill does provide for this flexibility. The Minister of Justice thinks that in a free and democratic society, it is reasonable that the police be able to intervene before someone is wounded or before evidence is destroyed -- evidence of the offence in order to justify the arrest of an individual. In the Minister's view, that is a reasonable limit in a free and democratic society. That is the first example of flexibility.
It is recognized in law that the police cannot create their own exigent circumstances. These circumstances must be assessed objectively. This assessment will occur when charges have been laid against someone and the point will be made that this does not constitute exigent circumstances. This, in itself, constitutes the "checks and balances" in the system. That is a first place where flexibility comes into play.
The other area in which flexibility is introduced in the bill is the whole matter of telewarrants, which allow the police to get the warrant in question by telephone or by fax.
One of your colleagues, which unfortunately is not here this afternoon, was asking me questions a little earlier today when the meeting was adjourned, about the way in which telewarrants worked. If necessary, tomorrow I would be pleased to answer these questions.
In any case, it is not accurate to say that the bill gives the police more power. It gives the police some powers which would otherwise disappear and eventually prevent them from doing their job. This is all in order to comply with the Constitution.
The mandate created by subsection 529.1 is quite constitutional; the court asked us for that. There will be arguments raised as regards exigent circumstances. You have heard that certain witnesses, such as REAL Women, point out that this will lead to court challenges. We have the choice between doing nothing or thinking that there will be challenges.
The position of the government, as presented by the Minister of Justice in her bill, is to give the police this opportunity and to defend cases where there could be some difficulty. It should not be forgotten that the Supreme Court of Canada has stated on numerous occasions that when Parliament decides on a measure which might infringe on the Charter of Rights and Freedoms, it should be given "a measure of deference". As Parliament has decided on that issue, the Court will step back a little. As the Court has stated on numerous occasions, if you leave anything to the Common law, then it is judge-name law; they will work together to ensure that the legislation is perfect in their view. According to the Minister of Justice, we must give Parliament the opportunity to decide, and after that the Supreme Court will take note of the decision taken by Parliament.
[English]
As a matter of fact, Mr. Koziebrocki was before the court last Thursday asking the court to change the common-law on the basis of the Charter. He made his argument which was peppered with questions from the bench. After retiring for about 20 minutes, they complimented Mr. Koziebrocki on his arguments, but stated that they did not wish to decide the issue at that time but that they wanted him to serve his factum on attorneys general so that they would hear from them.
That is exactly what did not take place in Feeney.
There are three ways of making changes: You can change the legislation, the Supreme Court of Canada Act, you can change the rules of the court, or you can change the practice. It looks like the practice of the court is in the process of changing. I believe that, when Parliament speaks, the court listens. That is the opportunity that is presented with Bill C-16.
[Translation]
Senator Losier-Cool: I had another question on the telewarrant, but as you will be talking about that tomorrow, I will wait till then.
[English]
Senator Moore: Mr. Roy, I believe you were here this afternoon when one of our witnesses, in dealing with section 529.43(a), specifically the words "reasonable grounds to suspect," suggested that "reasonable grounds to believe" might be more appropriate. Can you tell me why the word "suspect" was chosen as opposed to the word "believe" when we use "believe" in other situations where it seems to be more palatable, or more consistent?
Mr. Roy: Mr. Koziebrocki was pointing out that the standard provided for in the section you just referred to is lower -- "reasonable suspicion" is lower than "reasonable grounds to believe". I am in full agreement with Mr. Koziebrocki that this standard is lower.
Perhaps the best way of describing what are the reasonable grounds to believe is that description which is given by a learned author, Mr. Justice Ewaschuk of the Ontario General Division in his book Criminal Pleadings. He refers to that standard as being credibly based probability. In order to have reasonable grounds to believe, there must be a probability that something will happen.
Senator Moore: To suspect or to believe?
Mr. Roy: To believe. "Suspect" is a lower threshold. It is a threshold that is objective and not subjective -- you must be able to articulate reasons your suspicion, and those reasons must be reasonable. That means that another person would probably reach the same conclusion. But that standard is definitely lower than "reasonable grounds to believe".
By going with that lower standard the attempt is being made to try to capture more cases where the state will be able to intervene for the purpose of stopping imminent bodily harm being caused to someone. It is not only the standard of reasonable grounds to "suspect" that is important in the circumstances, but it is also the nature of the injury that is to be caused and when that will happen if the police are unable to intervene. The Minister of Justice is of the view that this standard is defensible, that she will be able to convince a judge that, in a free and democratic society, it should be possible for the state to intervene on the basis of a reasonable suspicion that someone will be injured. That is why we have the standard that we have here instead of having what I have described as being the credibly based probability that someone will be hurt.
Put yourself in the shoes of a policeman who must determine if there is a probability that someone may be injured in a certain place. By the time the decision is made it has already happened. The danger must be imminent, and the police must move fast. Remember that this legislation will provide all sorts of flexibility. The police can phone the justice of the peace in order to obtain the warrant. "Imminent" means imminent in the circumstances, it is happening now. This would be imminently defensible before a court. That would be the position the Attorney General of Canada would take if this were to be challenged on the basis of the Constitution.
Senator Moore: What about the concerns we heard about? Are justices of the peace covered? If so, should that not be written in?
Mr. Roy: In my view they are clearly covered. I would point to section 529.1. It states that a judge or a justice may issue a warrant in form 7.1. It cannot be any clearer as to who has the authority to do that.
Senator Moore: I would take that to mean that a "justice" would be a justice of the Supreme Court, and that a "judge" would be a judge of the Provincial Court. A justice of the peace is not a judge, at least not in Nova Scotia.
Mr. Roy: Section 2 of the Criminal Code provides for the definition of those terms. There you will see that "justice" is defined as follows:
"Justice" means a justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction;
In the Criminal Code the word "justice" means "justice of the peace".
Senator Gigantès: Or two or more where required.
Mr. Roy: Yes.
Senator Moore: Given the concern that was expressed about the availability of a justice, do you think that is dealt with by the fact that JPs are included?
Mr. Roy: The short answer is yes.
It is important to put on the record that, in order to get a search warrant, you must satisfy a justice of the peace that it is required. Indeed, a warrant for the arrest of someone can be issued by a justice of the peace. It is the same level of court all the way through.
Senator Moore: What about the concerns relating to prior announcement? I am thinking of the safety of the police officer.
Mr. Roy: The relevant provision is 529.4. That is, basically, the same scheme which applies to exigent circumstances. That will apply to the announcement requirement so that the police, as a rule, must announce their presence. However, if by announcing their presence they jeopardize the safety of someone inside, therefore, imminent bodily harm may be caused to someone, the law would provide that they need not announce their presence. If there are grounds to believe that evidence will be destroyed, then the law would provide for the government, the police, to go in without announcing itself. It is a statement by Parliament to which a large measure of deference, in my view, would be given by the courts. That is the beauty of having this in legislation, Parliament states the law.
Senator Gigantès: As to the difference between "belief" and "suspicion", I prefer the term "suspicion" because belief in something that has not happened is irrational. Although Saint Paul said that belief is what you should have, I think he was talking of faith; but I think faith in the judicial system is a dangerous thing. It is reason that should apply; and it is much more reasonable to have a suspicion than to believe.
Mr. Roy: All I can say to that, Senator Gigantès, is that the reasonable grounds to believe is a notion that has been part of our law for almost forever, and it is well understood what that means. It implies a probability that something will happen. You may very well be right, that it is irrational, however, I would not propose that the standard be changed.
Senator Gigantès: I like "suspect".
[Translation]
Senator Nolin: I would like to come back to the events between May 22, 1997 and today. Why was it that it was not before October 30, 1997, that is almost five months after the decision was made and everyone was officially consulted, that the House of Commons took a decision? After, of course, being pushed to do so. They complain about this strongly in their report.
Perhaps you are not the right person to whom I should be asking this question. Perhaps the minister would be able to answer. But as a representative of the minister, perhaps you can enlighten us about this.
You have heard the debate in the Senate; my colleagues and I also complain about being pushed here. We must make a decision by the end of the week. Why was there no pre-study of this bill although just about everyone was consulted?
Mr. Roy: Thank you for giving me this opportunity. The story begins on May 22 last, but for the purposes of the Department of Justice, it begins rather on June 27, 1997, when the Court decided to suspend the effect of its decision for a six-month period, one month retroactively, which means essentially a five-month period.
From that time on, in July, 1997, research was carried out in the Department of Justice on the way other free and democratic societies approach this issue. At the time, we were aware that the essence of the bill which would eventually be tabled would of course concern authorization for police officers to enter dwelling-houses. There are ramifications here, and it had to be known whether that was done in other free and democratic societies.
Ms. Blackell, who is here today, spent the month of July researching what was allowed in a number of U.S. States, from Iowa to Michigan, as far as California, and also in New Zealand. The month of July was spent essentially on trying to find out what could be done.
During the month of July, we also tried to obtain from the provinces an idea of what they wanted. In other words, what is necessary in the circumstances?
We went to the Uniform Law Conference which took place in Whitehorse in August 1997, and we presented certain options to the provinces and asked them for their feedback. We gave them a two-week timeframe to come back with something. I did not receive anything during those two weeks or subsequently.
Essentially, what the provinces are telling us is that the problem is the responsibility of the federal legislator and it is up to the federal authorities to resolve it. The Minister of Justice who is already working on the file and wants things to move forward mandated us with the proposals to cabinet; they take the form of a memo to Cabinet. This memo enables us to draft a text which can be consulted; that is not done very often. It is quite exceptional.
We consulted with the provinces and police forces, there was a productive exchange of ideas. We are now in September 1997.
There were meetings with representatives of the various Bars other than the Attorney General, including the Canadian Bar. In saying that, I would not want to suggest that at the time I received the support of the Canadian Bar. They did not have any more opportunity than anyone else to present their position, through their executive, during the adoption process.
The people to whom I spoke within the Canadian Bar are from the criminal law section and very familiar with criminal law; and after considering our proposal, they told us that it made good sense.
Cabinet approval followed, and the legislation was tabled on October 30, 1997 following a vigorous process. All stages of the process were followed, and that information was laid out clearly and precisely in the affidavit which I had to present to the Supreme Court in order to obtain an extension.
If the work is not done and sufficient diligence shown, the Supreme Court will tell us that the necessary steps must be taken beforehand.
In my view, we are able to show the Court that we acted diligently, as a result of which we were able to table Bill C-16 on October 30, 1997.
We could perhaps have tabled it on October 28 or 29, but we could not have done so in September for example, because it was quite simply not ready.
As a result, particularly in the House of Commons, the period of consideration was very short. You noted that we were obliged to present our apologies. They had barely one week to examine the whole issue. However, we were fortunate in having people who had been consulted during the process and could therefore appear before the parliamentary committee to explain their position.
It is a chicken-or-egg situation, in that if you do not consult you can have a bill tabled more quickly and then people need time to familiarize themselves with it, or you can carry out broad consultations, but that provides parliamentarians with less time to consider the value of the bill because of the timeframes we have to meet. In the case of the Senate, the bill was tabled on November 18 last.
[English]
Senator Cogger: Madam Chairman, before Senator Nolin continues, I would apologize to the witness because the Senate is still sitting and we have been at this for some time. Can he give us some idea of the game plan -- how long will we be and, what will happen tomorrow?
The Chairman: That is a very good point. Senator Nolin has not finished his questioning and I have Senators Cools and Cogger on the list for a second round. The Minister of Justice will appear before the committee tomorrow at 1:15 p.m. when her plane arrives in Ottawa.
Senator Cogger: Although she cannot be here before 1:15 p.m. she could come later.
The Chairman: She intends to leave after her attendance. She is flying in for the sole purpose of assisting this committee. I would suggesting that we meet again tomorrow in this room at 1:15 p.m. to hear the Minister of Justice and then proceed to the clause-by-clause. Of course the committee is the master of its fate, so you may decide not to proceed with the clause-by-clause at that time. However, it will remain on the agenda.
Senator Cogger: I thought we had asked some attorneys general to appear.
The Chairman: Ontario has declined to accept our invitation, as has Quebec and B.C. Alberta has told us it was very unlikely they would attend.
Senator Cogger: Are they not interested in appearing or were they given inadequate notice?
The Chairman: I should point out that the clerk could not have called before Friday because we had not yet had a steering committee meeting.
Senator Cogger: I appreciate that. I want to know from Mrs. Lank: Did you invite them to appear on Monday or at some other time this week?
The Chairman: On Monday. We contacted them again today and they still would not accept.
Senator Cogger: If we contact them on Friday to invite them to appear on Monday, and then we contact them on Monday to suggest they come on Tuesday, we are rapidly going nowhere.
The Chairman: When they were approached the second time, the invitation was extended for the whole week, but they were unwilling to come at any time during the week.
Senator Cogger: That answers my question.
Senator Gigantès: In view of what we heard from Mr. Roy, it seems that these attorneys general are satisfied with the "ripened fruit" as he calls it, Bill C-16. Why would they interrupt their Christmas vacations to come and discuss something they have already discussed with the Minister of Justice and among themselves and agreed upon?
Senator Cools: It is hardly surprising that the attorneys general might not be coming because it was my understanding the minister did not want to come.
The Chairman: No, but the minister will be here tomorrow at 1:15.
Senator Cools: We need more than 45 minutes. The department took five months to draft this bill.
Senator Nolin: I would suggest that we adjourn this meeting now and that we meet tomorrow morning to clear up any outstanding matters; and then we will hear from the minister.
Senator Cools: We have caucus tomorrow morning.
Senator Cogger: Madam Chairman, I had asked for an in camera meeting at some point today. I am prepared, for the sake of peace, order and good government to forego that meeting today, but I would suggest that, before we reach the clause-by-clause, the committee go in camera to discuss its business.
Senator Cools: If the minister is scheduled for 1:15, let us meet in camera and then the minister can come on directly after that.
The Chairman: I would like to start the minister at 1:15.
Senator Cools: The minister can meet our schedule.
Senator Gigantès: We need not be rude.
Senator Cools: We would not be being rude.
Senator Gigantès: Yes, we would if we tell the minister that we will meet her at 1:15 and then she has to cool her heels at our pleasure.
The Chairman: If I have the agreement of the committee we will have an in camera session at 1 o'clock and then meet with the minister at 1:15.
Mr. Roy, would you make yourself available to us tomorrow?
Mr. Roy: Of course.
The Chairman: Do I have the agreement of the committee?
Senator Cogger: Let us have our in camera meeting first and proceed from there. We will all be in town all week, so there should be no rush.
The Chairman: If the clause-by-clause is on the agenda we can proceed as we see fit. We will have some flexibility. Is it agreed?
Some Hon. Senators: Agreed.
The Chairman: In that case, Mr. Roy, we will see you tomorrow.
The committee adjourned.