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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 12 - Evidence

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OTTAWA, Tuesday, December 16, 1997

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings), met this day at 1:09 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Welcome, Madam Minister. We appreciate the fact that you returned to Ottawa to appear before this committee.

I believe Senator Cogger has a question to ask of you before you begin your presentation. Following that, the floor will be yours.

Senator Cogger: Thank you for being here, minister. It would help us all to organize the afternoon if we know whether you are pressed for time. As you know, the Senate meets at two o'clock this afternoon.

Hon. Anne McLellan, M.P., P.C., Minister of Justice and Attorney General of Canada: Madam Chairman, I can be here up to no later than 2:45 p.m. I have a speaking engagement in Edmonton this evening that I was unable to cancel.

Senator Cogger: Thank you.

Ms McLellan:Honourable senators, it is a pleasure to be back here today. I thank you for the opportunity to be able to talk to you this afternoon about Bill C-16, passage of which is crucial to the ongoing effective administration of criminal justice in our country.

Obviously, Bill C-16 deals with police powers to arrest and enter dwellings. I know that my officials have already spoken in great detail on the contents of Bill C-16. Therefore, I should like to comment on the reasons for the tabling of this bill, its constitutional validity and the consequences of a failure to pass it.

As you are all aware, on May 22, 1997, the Supreme Court of Canada handed down its decision in Regina v. Feeney. In that decision, the Supreme Court of Canada held that the common law powers of arrest and entry contravened the Canadian Charter of Rights and Freedoms. The court found that, in order for peace officers to act in a manner that does not infringe upon the Charter protected privacy rights of Canadians in their homes, officers must obtain judicial authorization to enter private dwellings for the purposes of arrest, just as they would have to for the purposes of search and seizure.

The majority of the Supreme Court of Canada indicated that if the Criminal Code currently fails to provide specifically for a warrant containing such prior authorization, then such a provision should be read in. However, as you are probably aware, immediately following the Feeney decision, provinces and the police community were taking markedly varied positions as to what was to be read into the code and where it was to be read in.

At this point, I would like to emphasize that in the Feeney decision the Supreme Court of Canada did not direct Parliament to pass legislation. The court established that in acting pursuant to the common law, which did not require a judicially authorized warrant to enter a dwelling, the state was violating the constitutional rights of Canadians.

Effectively, Parliament had the choice either to allow law enforcement agents to read in the constitutionally required judicial authorization, or to establish a warrant scheme.

Given the lack of consensus and clarity on how best to read in the provisions suggested by the Supreme Court, the Government of Canada chose to introduce a warrant scheme to respond to the concerns of the provinces and police community to have a system which was clear and uniformly applicable throughout the country. By granting the extension requested by the Attorney General of British Columbia, and supported by myself and other attorneys general, the Supreme Court of Canada provided Parliament with some time within which to develop legislation in response to Feeney.

Allow me to turn to the issue of the constitutional validity of this legislation. Put succinctly, this bill is designed to provide peace officers with the ability to apply for prior judicial authorization to enter a dwelling house for the purposes of arresting a person whom they have reasonable grounds to believe will be found therein. In addition, this bill identifies certain exigent circumstances under which it would not be necessary to obtain such judicial authorization prior to entering the dwelling.

Bill C-16 does not provide peace officers with carte blanche authorization. They may not enter a dwelling to do whatever they are inclined to do. In order to obtain an authorization or a warrant to enter a dwelling house, a peace officer must demonstrate to a judge or justice that he or she has reasonable grounds to believe that the person sought is or will be in the dwelling; and the officer must have reasonable grounds to arrest that person, whether the arrest is made on the basis of a pre-existing warrant or on the basis of the law.

Bill C-16 does not contravene constitutional rulings of the Supreme Court of Canada. In Feeney, the court clearly left the door open with respect to the issue of whether there were exigent circumstances other than hot pursuit under which entry into dwellings could be permitted in the absence of a judicial authorization. In this respect, Parliament has been given the opportunity to speak, and the government has introduced a bill which we believe will bring clarity to the law in this area.

The legislation contains a preamble which is intended to provide an indication of Parliament's objectives in enacting Bill C-16, and to assist the courts in interpreting the provisions of the legislation. Of particular importance is the recognition that Bill C-16 is not intended to restrict development of the common law with regard to exigent circumstances; nor is it intended to limit police powers of entry for purposes other than arrest or apprehension.

Bill C-16 addresses the issue of entries into dwellings for the purposes of arresting or apprehending persons on the basis of federal statutes other than the Criminal Code. These powers of entry could not otherwise be read into the Criminal Code. Therefore, in the absence of Bill C-16, officers enforcing arrest or apprehension warrants under statutes such as the Immigration Act, the Extradition Act and the Corrections and Conditional Releases Act, to name but a few, would not be able to enter private dwellings for such purposes.

Finally, permit me to discuss why, in my view, it is imperative that Parliament pass Bill C-16 before December 19 of this year. To begin with, should Parliament fail to pass Bill C-16 by December 19, we return to the state of affairs as it existed immediately after the Feeney decision. It was clear in the aftermath of the Feeney decision that there is no consensus among the jurisdictions as to how the police should obtain the constitutionally required entry warrants. A return to such legal inconsistency and lack of clarity would bring the administration of justice into disrepute.

Without clear guidelines and without the backing of a law passed by Parliament, law enforcement agents, on the one hand, run the risk of creating solutions to the warrant requirement in Feeney which are themselves unconstitutional. This in turn could result in substantial acquittals on the basis that the police violated the Charter rights of the accused.

On the other hand, fear of misinterpreting Feeney may cause police to cease all entries into dwellings to arrest. This was the case in Montreal following the Feeney decision when police felt compelled to wait outside a private dwelling for hours until they could obtain arrest warrants and the authorization to enter. The entire neighbourhood suffered the disruption caused by such an event. Beyond the disruption of the event, the administration of justice suffered because the people in that community and the general public -- because this was disseminated by the media -- were left with the impression of a police force immobilized, unprepared, and unable to do what we all expect them to do to ensure that we have safe and secure communities.

Having said that, I have the greatest empathy for the police in this case because, when there is no clear regime, they become hesitant because they do not want to violate someone's constitutional rights and have the charges possibly thrown out. Therefore, without the passage of Bill C-16, law enforcement can suffer, and we already have practical examples of that.

In the absence of a clear statement from Parliament regarding exigent circumstances, law enforcement agents may be reluctant to enter dwellings in situations of domestic violence. Should Parliament fail to enact Bill C-16 before the Feeney decision takes effect again, the public may develop the impression that law enforcement agents are not in a position to respond effectively to crime, and that Parliament is unwilling to provide those agents with the tools they need to fulfil their duties.

In closing, Bill C-16 was developed in collaboration with the provinces and territories as well as the police associations. It represents a clear and uniform approach to the Charter requirement which is conveniently adapted to all regions of Canada. It provides the necessary flexibility to avoid delays and it has been developed to be constitutionally viable.

With that senators, I am happy to entertain any questions, issues or concerns you might have in relation to Bill C-16. Thank you very much.

[Translation]

Senator Beaudoin: I would like to raise two issues: the first is more of a comment and pertains to the question which was raised in the House and referred to committee. I refer here to the matter of the Supreme Court declaring a practice to be unconstitutional, namely, the conduct of police officers in certain cases as provided for in common law.

This is not the first time that the Supreme Court, after finding a practice to be unconstitutional, gives the government an extension so that it can react. We have numerous precedents. In this case, two extensions were given, one for six months and one for one month. I have considered the matter carefully and I see nothing contrary to the already existing precedents, the famous one being the 1985 referral pertaining to language rights in Manitoba.

My question concerns the Charter of Rights and Freedoms: the fact that there are two warrants, one for entering dwellings and the other for arresting persons is, in my opinion, completely positive. There are exceptions. I would like to know what grounds are going to be used to justify: first of all, hot pursuit, second, destruction of evidence, and, third, imminent death. A warrant is not required in these three cases.

The only way to reach a conclusion in the present case is to determine whether or not section 1 of the Charter would view this situation as being reasonable in a free and democratic society. I would imagine that there is a certificate establishing that these three cases do not contravene the Charter of Rights and Freedoms, since this would be in keeping with the practices of the Department of Justice. I would like to hear your comments concerning the grounds used in accordance with section 1 of the Charter of Rights and Freedoms.

[English]

Ms McLellan: "Hot pursuit" is a concept of the common law. The Supreme Court, in Feeney, acknowledged the fact that, clearly, hot pursuit was an exception to that which they were saying in Feeney itself.

Senator Beaudoin: It is already in the bank.

Ms McLellan: That is right, and hot pursuit continues as an important exception to the warrant requirement for arrest.

Mr. Roy would know whether the common law principles of hot pursuit have ever been challenged under the Charter and have had section 1 applied to them. I can only presume that they are constitutional and meet the requirements of the Charter and section 1.

As to other exceptions, senator, I believe you are referring to the situation surrounding exigent circumstances, 529.3(2) of Bill C-16, where we have used the language of the Supreme Court of Canada. Again, they talk about the fact that there are exceptions to the requirement for a warrant. We have discussed hot pursuit. We also have something called "exigent circumstances", and they did not define them. We have undertaken, in consultation with the provinces and police, to define what we believe to be exigent circumstances which meet the requirements of section 1 of the Charter of Rights and Freedoms.

Section 529.3(2) defines these circumstances, although not exclusively. Keep in mind that we have outlined these two as being, in our opinion, clear circumstances of exigent circumstances, but we also wished to ensure that we were in no way viewed as restricting the development of exigent circumstances in other situations or on the basis of other principles. In 529.3(2)(a), where a peace officer has reasonable grounds to suspect that entry is necessary to prevent imminent bodily harm or death, in my view, for what it is worth, and I do not mean to preempt any decisions the courts would make in the future, this would clearly withstand section 1 scrutiny. You are dealing here with the police moving without a warrant to prevent bodily harm or the death of someone, be it the accused person or, more often, not the accused person but someone else who is resident in that dwelling house. Section 529.3(2)(b) speaks to the fact that the police officer has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling house and that entry is necessary to prevent the imminent loss or destruction of the evidence. Again, I believe that this will meet section 1 charter scrutiny. It is a reasonable limitation on any right the accused may have because one is dealing with a serious situation where one has a reasonable ground to believe that evidence will be destroyed, evidence important to an indictable offence. I believe both these circumstances will survive a section 1 Charter scrutiny, but I must say that, clearly, that is up to the courts. I believe these represent reasonable limits in the context of our criminal justice system and police investigations. Section 1 mentions reasonable limits in a free and democratic society, and I think that Canadians and the courts would find these to be such reasonable limits.

Senator Nolin: In light of the answer you gave to my colleague, Senator Beaudoin, I am sure you are aware of the fact that Mr. Justice Sopinka, in his decision, clearly accepted hot pursuit as being an urgent reason for a warrantless procedure.

Ms McLellan: Yes.

Senator Nolin: However, after reading Madame Justice L'Heureux-Dubé's comments and decision, he ruled out all other urgent reasons. He specifically ruled that, simply because it is urgent is not a reason to permit a warrantless procedure. Madame Justice L'Heureux-Dubé's decision or comment specifically referred to the fact that the famous shirt of Mr. Feeney was an important piece of evidence.

Knowing that Mr. Justice Sopinka decided not to allude to that part of the warrantless procedure, you are perfectly right to invoke section 1 and say that it is totally normal, in a free and democratic society, to permit, in statute, a warrantless procedure to maintain --

[Translation]

-- and to ensure that evidence is preserved. Nevertheless, Madam Minister, evidence involves a search and seizure, not the arrest or apprehension of a person. In the Feeney decision, Judge Sopinka ruled that from now on a warrant or an authorization was required in order to enter a dwelling to make an arrest and that evidence would involve a warrant for a search and not a warrant for arrest. How can you reconcile these two aspects?

[English]

Ms McLellan: I will speak generally to the ruling of the late Mr. Justice Sopinka in Feeney in relation to exigent circumstances. Then Mr. Roy will deal with the specifics of your second question.

The late Mr. Justice Sopinka said, in Feeney:

Whether or not there is an exception for exigent circumstances generally has not been fully addressed by this 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.

It is quite clear that the late Mr. Justice Sopinka did not see the necessity to more fully explore what exigent circumstances might be. It is true that he made a finding of fact that there were not exigent circumstances in this case, as far as he was concerned. You are quite right that he and Madam Justice L'Heureux-Dubé fundamentally disagreed on that point, but he does not explore it.

Senator Nolin: It is an open question.

Ms McLellan:It is an open question, and we are trying to close that or provide some response to that open question. Our success in that may some day be judged by the Supreme Court of Canada itself.

Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy, Department of Justice: On the issue of exigent circumstances, on a number of occasions, the court has said that a measure of deference must be given in a section 1 analysis to the will of Parliament as expressed in legislation. The government is inviting Parliament, with Bill C-16, to express itself on the very issue of exigent circumstances, having recognized that the court in Feeney did not decide whether it is part of our law or not.

The issue was left open. As Senator Nolin was indicating, it is in order to fill that vacuum that Parliament is given an opportunity to say something about this.

[Translation]

As regards Senator Nolin's question about the possibility of entering a dwelling-house in order to prevent the destruction of evidence, you will find this exception to Bill C-16 in another enactment already in the Criminal Code. This must not be forgotten. Parliament adopted an enactment found in section 487.(11) of the Criminal Code which provides for warrantless searches in emergency situations. Basically, Bill C-16 deals with a situation where the police are in a position to make a warrantless arrest and must wait for authorization to enter a dwelling. We are dealing with a situation where a warrantless arrest is to be made and where authorization to enter has not been obtained. It is important to note that the criteria in the enactment mentions reasonable and probable grounds for believing that evidence will be imminently destroyed. We will allow the police, who already have grounds for arresting someone, to simply enter this dwelling to find this person and prevent him from destroying evidence.

If you do not have any grounds for believing that the person that you want to arrest will destroy the evidence, you cannot enter. The bill does not provide for a warrantless search but rather the power to arrest someone when you have any grounds whatsoever for preventing the destruction of evidence while waiting for authorization from a judge to enter the dwelling. According to the enactment, this authorization can be obtained through a telewarrant, which truly reflects considerable urgency.

Madam Minister referred to the fact that you cannot try to prevent the destruction of just anything you want, the item must constitute evidence. This word was used intentionally in both the French and English versions and not because we want to obtain information.

[English]

We are not, through this piece of legislation, seeking to allow the police to get intelligence and to avoid the destruction of the intelligence. If that is all -- the intelligence -- they want to have, quite frankly this does not apply. It is where there is evidence that will be destroyed.

Yesterday, Senator Gigantès referred to a pound of heroin. Others were referring to the fact that by pushing a key on a computer keyboard, you can destroy that evidence. That is what this amendment is all about. The standard is fairly high. The standard is reasonable grounds to believe the credibly-based probability that this will be destroyed by the person you are trying to arrest.

In those circumstances, the minister thinks, following advice received from lawyers in her department, that this is the kind of situation where there is a very good argument to present to a court in order to justify this in the free and democratic society.

The interest is important because that goes to the heart of the administration of justice: The evidence will be destroyed, so the interest is important and the means that are chosen are those which the minister thinks are reasonable under the circumstances.

The test is high, and it is to get some specific information, information or things that are of a special nature. It must be evidence in a case, not some general intelligence that the police would like to get for their own use later on in the process.

Senator Nolin: Thank you, Mr. Roy.

Madam Minister, I understand that Mr. Roy will be available after you have left to help us with more technical questions.

Ms McLellan: Mr. Roy will stay as long as you want.

Senator Nolin: I have two small questions, not on the specifics of the bill but more on what happened after the decision of Mr. Justice Sopinka, the Supreme Court, and before October 30.

[Translation]

Madam Minister, we have put this question to many of your colleagues in the past concerning other legislative measures that we deem to be too important to warrant only a few hours of study. I would make the following comment to you: You did not ask Parliament to do a pre-study of the bill and yet the bill was a subject of several consultations within and outside the federal government. Why? In my opinion, it would have been appropriate to have given Parliament an opportunity to provide its views on the issue, views which may be humble but which, at least, are given in good faith.

[English]

Ms McLellan: I take that point. I will ask my department to look very seriously at the possibility of pre-study in future situations. Clearly, we could all benefit from that. Certainly, my department and I could benefit from the instrument of pre-study. It did not happen in this case. As you say, there were extensive consultations but clearly not with the Senate before this bill came to you on November 18. I take your point as a constructive one.

Senator Nolin: My last question refers to a statement made by Mr. Roy yesterday. It happens rarely, but I understand that a document to be distributed and discussed among your colleagues in cabinet was circulated outside the government. Is it true that a cabinet document was made available to other than your officials?

Ms McLellan: A cabinet document? I am sorry, I do not understand.

[Translation]

Senator Nolin: Mr. Roy, yesterday, when you appeared before us, you said that, as an exception, you felt it was appropriate to circulate legislative measures that the minister was about to present to her colleagues, legislative measures that had not yet received Cabinet approval, outside the government.

[English]

Mr. Roy: I think we need to clarify this. What I said yesterday referred to the drafting of some options that were made available to the police community and to other groups in order to discuss with them, on the basis of legislative language, what was to be considered eventually by cabinet. This was as part of the consultations. Instead of having a consultation document, which we usually have, we went one step further and had some drafting done to see how they would react to it, but certainly not a memorandum to cabinet or anything of that nature. That was never circulated to anyone outside of the Department of Justice.

Ms McLellan: I can verify that. I took the memorandum to my colleagues. In fact, that document was never circulated outside of the cabinet committee on social union and the full cabinet that considered it the week following my submission to the committee on social union. However, as Mr. Roy has pointed out, we held wide consultations with provincial counterparts and with key stakeholders in the justice community, especially the RCMP, police associations, chiefs of police. Because this is a fairly technical area, we wanted to talk especially to the policing communities about specifics and proposed language. Then we took all of that and sat down as a department and asked, "What do we think is the best policy in terms of meeting the concerns of the policing community, provincial attorneys general, and ensuring, to the greatest extent possible, that that which we are proposing is constitutional and meets the concerns of the Supreme Court of Canada?" That then formed the basis of my recommendations in the memorandum to cabinet colleagues.

Senator Cools: I would like to welcome you to our committee, minister. I invite you to return many times.

Ms McLellan: Yes. I was here last week. I am starting to feel very much at home here. We had a good time last week.

Senator Cools: You will find these committees very welcoming places.

I have a couple of questions. The first has to do with the fact that when the Feeney decision was made, essentially the court notified none of the attorneys general, either of the country or the individual provinces, and that particular matter has raised much consternation. I observe that in the dissenting judges' opinions they mention that. That has caused me considerable distress. When I looked into the matter, I discovered that the Supreme Court of Canada in point of fact has nothing in the statute which compels them to do such a thing. For example, the Courts of Justice Act of Ontario is extremely clear. It says, for example, that acts, regulations and by-laws shall not be adjudged unless notice has been served on the Attorney General of Canada and the Attorney General of Ontario. I am just wondering if you plan to bring an amendment to the Supreme Court of Canada Act to bring it to the standard of the provincial Courts of Justice Act, to ensure that such a surprise cannot be dropped on the attorneys general of Canada.

Ms McLellan: That is a very good question. In fact, the problem here was that what the Supreme Court was adjudicating on was the common law. It was not a statute of the federal Parliament, nor was it a rule or regulation promulgated under a statute of Parliament or any of the provinces. Consequently, notice was not given because they were dealing with the common law as it relates to questions of warrants on arrest.

You flag a good point in terms of the possible omission, because here you have a situation where on the original case the only attorney general present was the Attorney General of British Columbia in whose jurisdiction the case arose -- and of course there would be nothing unusual about that. Other provincial attorneys general or the federal Attorney General do not, in the normal course -- and in fact in most cases could not -- show up as an intervener in that criminal proceeding.

Here, however, because before the Supreme Court they were dealing with common law principles, we were not given notice. I think it is a problem and I think now we need to think about how we go about dealing with that gap or omission. We could make a change to the Supreme Court Act. We could work with the court. I could, for example, meet with the chief justice and explain to him the concern of my provincial counterparts and myself as it related to how Feeney ultimately played out and the lack of ability for the rest of us to respond to the situation that was going to be created or was created after the case. The point is a good one and I think it is one that, after Feeney, we need to look at and move on fairly quickly. I will be checking with my provincial counterparts to see if they have strong views one way or the other. But I think that I am speaking for them, at least to this extent, when I say that we all agree that it would have been useful had we had the opportunity to have been present and make argument on the common law principles related to the necessity for warrants, or not, upon arrest or apprehension of an accused person.

Senator Cools: I concur because the Ontario statute even speaks of regulations, so it is very clear. Wherever the attorneys general have an interest, they must be notified, and the onus is obviously put on the court.

The original stay was a six-month one. It seems to me a terrible catastrophe that this judgment landed mid-stream of an election. Obviously elections are little processes that democratic countries go through, and during these elections you find that ministers and others are preoccupied, justifiably, honourably and reasonably so. You would have become minister after the election in June.

Ms McLellan: June 11 was the day of my swearing in.

Senator Cools: There is something very haphazard about democracy and something very amateurish about politics. I observe in Mr. Roy's affidavit that it reads as though you did not take note of the issue, to coordinate or to instruct a legislative response until the end of August. That is really one of the little problems that has bothered me. What was the department really doing for so many months, not bringing this matter forward to the minister for her attention?

Ms McLellan: Let me say first that I believe that in my first week of briefings, although that week went by as a bit of a blur, the problem of Feeney and the fact that we would have to respond to it was in fact very high on the list. The decision was made that the Attorney General of British Columbia and ourselves, along with other provincial attorneys general, would proceed and we proceeded on June 17 to seek an order for a six-month stay of the decision of the Supreme Court in Feeney. We began working on this quite quickly after I became Minister of Justice and was apprised of the situation, so I do want to reassure members that my department was in no way asleep at the switch in relation to this. They brought it to my attention in the first week of my tenure as Minister of Justice. We then proceeded, on June 17, to go with our provincial colleagues to seek the stay of six months. That was granted.

During that time, beginning in mid-June, Mr. Roy and others in my department began the process of working with their provincial counterparts. We wanted a fulsome discussion at the Uniform Law Conference in August. In fact, work needed to be done by Mr. Roy and his provincial counterparts. Consultations with those involved in the criminal justice system began at that point, although fulsome discussions with the police community did not take place until later.

I would assure you that I was seized of the matter immediately upon becoming minister, and my department was instructed to deal with this matter with all seriousness and all haste. That is why we joined our provincial colleagues in seeking the stay before the Supreme Court. We filed our notice of application on June 17.

Senator Cools: I am very pleased, Madam Minister, that you said that to us today because the affidavit clearly reads as though the legislative response was not brought to your attention until the end of August.

My final question relates to Criminal Code section 514 and the execution of a warrant. I would have thought it would have rendered much of Bill C-16 unnecessary. As yet, no one has mentioned section 514. The judges, in their decision, did not mention it. Section 514(1) states:

A warrant in accordance with this Part may be executed by arresting the accused

(a) wherever he is found...

Why was section 514 not considered at all? Based on section 514, from my reading of it, parts of Bill C-16 are unnecessary.

Mr. Roy: This provision applies generally in Canada to warrants that are issued. However, a provision like this will be overtaken by the decision of the Supreme Court of Canada stating that, in order to arrest someone in a dwelling house, you need a special judicial authorization. This is why section 514 does not address the issue that the Supreme Court of Canada raised and decided, in our view, in Feeney -- which is, in order to arrest someone in a dwelling house, you need a special authorization. Section 514 is not helpful, in my view.

Senator Cools: There is no doubt that there will be some ambiguity between section 514 and Bill C-16, but we can deal with that later.

I refer the minister and the committee to an article in The Globe and Mail dated Saturday, December 13, 1997, which was handed to me a few moments ago. I refer specifically to what is one of those "around-the-hill" parliamentary gossip columns. At the bottom, it says "Royal Dissent?" It is about three or four paragraphs long, and it talks about Antonio Lamer going to the Senate to give Royal Assent. I quote:

The Chief Justice has an unusual stake in the Senate these days...

"Hey, where's C-16?", Judge Lamer was heard to ask as he shuffled through the legislation.

There was some talk about signing the bills in Canada. We do not sign bills.

My point is that these constant news stories about the chief justice in these situations are growing a little troubling.

Senator Cogger: Madam Minister, thank you for being here.

I have one observation and then a couple of questions.We appreciate your attendance today. It is unfortunate that this kind of legislation, which is very complex and difficult, should be introduced here in December when the House of Commons has already adjourned.

I have been around here for some time, so I realize the chances of an amendment are nil. There is a lot of pressure to move legislation through the Senate as if it were a sausage factory. Couple that with the harsh words of a report from the House of Commons, which bitterly complains that they are not satisfied with the time allowed for their role, et cetera.

Yet, we Tory senators were privileged this morning to have a private meeting with the Minister of Finance. It was a very rare opportunity. I do not think I am revealing any secrets when I tell you that he volunteered to be there because he is most concerned about the fate of the CPP bill. Again, in a private exchange with Tory senators, he did recognize that we had volunteered pre-study, that there was no reason why we should be in this trap or this corner at this late date, and that we could have probably done a better job. We could certainly have done the job a whole lot earlier.

Somehow these nice affirmations of cooperation seem to disappear the minute the house reopens and the machine starts rolling again and we have the next log jam.

Ms McLellan: The point you raise, senator, is very important. It is, of course, related to Senator Nolin's comments in relation to the instrument of pre-study. The point is profoundly more important in the sense that it speaks to how both chambers go about the organization of our business. I would be the first to concede that at times issues are rushed, delayed and postponed. Sometimes bills are not introduced in the House of Commons as quickly as we would like; therefore, you do not receive them as soon as you would like to be able to do the work that you need to do. The general point being raised is a very important one and one that, as Minister of Justice, I will take very seriously as it relates to my own legislative agenda.

Clearly, as Minister of Justice, I will have the opportunity to appear before you more often, as well as before my colleagues in the standing committee of the House of Commons. We will, in the normal course, be introducing and be involved in more legislation than during my time as Minister of Natural Resources.

I do take very seriously the caution that you and Senator Nolin have offered this morning. I am pleased to hear that my colleague the Minister of Finance as well acknowledged the fact that there are ways we can conduce the management of our business in both chambers that would inure to the benefit of everyone. At the end of the day, you would have the opportunity to do the kind of detailed and thorough work for which you are well known.

I take the point very seriously, and I certainly apologize for the fact that this was rushed -- as I did to my colleagues in the house committee -- because of the urgency of the circumstances.

To go to Senator Cools' earlier point about the chronology of this event, the bill ended up being introduced in the House of Commons in early October. From there, time was compressed. I apologize for that to this committee, as I have to the standing committee of the House of Commons. I take the point very seriously. I think we need to manage our affairs better so that we can all do the jobs that we are here to do.

Senator Cogger: I was not seeking an apology.

Ms McLellan:No, but that is a fair point.

Senator Cogger: Thank you.

Yesterday, we heard from a representative of the Criminal Lawyers' Association. I do not know if you are aware of their presentation. Some of my colleagues have covered some of the points they raised. I think they were the only group that raised the concern regarding the dispensation of prior announcement. That is the area I should like to ask you about.

What do you see as the difference between "reasonable grounds to suspect" as opposed to "reasonable grounds to believe"? In their view, "reasonable grounds to believe" is a higher threshold than "reasonable grounds to suspect".

Ms McLellan:That is also our understanding. That is our intention in using this different language. It was not unintentional. It was clearly done. It speaks to a higher standard.

Senator Cogger: Is there any other reference in the legislation to "reasonable grounds to suspect"?

Ms McLellan:In this legislation, or more generally in the Criminal Code?

Senator Cogger: In general.

Mr. Roy: There are at least two other places where you have a similar standard. First, you will have it with respect to drunk driving, where the police are given the power, by legislation, to stop just about anyone on the street for the purpose of blowing into the ALERT-type of machine, and the person will either fail or pass the test, or the sample will be neutral. On that basis, you will be asked to take a breathalyzer test.

More to the point, however, is a provision that was introduced in the Criminal Code after the Supreme Court of Canada decision in the Wise case of 1992. That provision enables the police to install tracking devices on vehicles. The court said very clearly that the rights of Canadians to their privacy can be violated to some extent through the use of a device like this on the basis of reasonable suspicions on the part of the police without raising this to the level of reasonable grounds to believe those suspicions.

There are a number of precedents. The last one I talked about is in relation to section 8 of the Charter, namely, the right to privacy, which is the section that we are talking about in this particular legislation.

Senator Cogger: I cannot remember whether the example that you told us about was raised yesterday, but I assume that that would be your answer. Yesterday, the gentleman who was here on behalf of the Criminal Lawyers' Association stated in his written submission that the threshold of "reasonable grounds to suspect" would be too low to overcome the right to privacy under section 8 of the Charter.

Ms McLellan:As you will see, we used it in clause 2(a) only. It is a lower standard, but it relates to the prevention of imminent bodily harm or death to any person. It speaks to the most grievous sets of circumstances that one could imagine -- that is, where someone's life is in jeopardy or where there is bodily harm or a suspicion that bodily harm could occur to an individual.

We felt that, in those circumstances that are the most serious in our law, it was appropriate and justifiable under section 1 of the Charter to use the lower standard of "reasonable grounds to suspect" as opposed to "reasonable grounds to believe".

Senator Cogger: Conversely, dispensation of prior announcement could result in the death of a police officer, for instance, who barges in without announcing himself and is then shot or harmed or seriously injured. Could the defence's position be that the person had no way of knowing that it was a legal entry or a police officer entering into the dwelling?

Ms McLellan:I follow your point. Perhaps Mr. Roy will respond to that.

Senator Cogger: Could that not be a defence?

Mr. Roy: We must be more careful in our answers today than we were yesterday.

There is nothing in our law that allows someone to shoot a trespasser. You are supposed to use either self-defence as your defence -- and, "self-defence" applies only when you are using reasonable force in the circumstances that are occurring -- or defence of property. Again, you must have a standard of reasonableness. It must not be as a result of someone showing up unannounced on your doorstep.

Senator Cogger: Even if he is crashing down the door and is carrying a gun?

Mr. Roy: In the real world, what you have is someone who is waiting for someone to show up. That person will have handy the kind of equipment that is probably not allowed under our law. For example, the magnum 357 may have been made a prohibited weapon in this country, yet that individual will use that kind of force to stop the police from entering his dwelling.

It depends on the circumstances of each and every case, but I am not sure that that person can rely on section 34 of the Criminal Code and argue self-defence, or rely on section 38 and argue that he did so in an effort to defend his or her property.

We must agree with Mr. Koziebrocki that there may be circumstances where not announcing yourself will generate the violence we are trying to prevent. However, section 529.4 allows the police not to announce themselves in appropriate circumstances.

As the minister has explained, the lower standard is used purely and simply when we are talking about imminent harm that will be caused to someone. It is for the police to exercise good judgment. By proposing something like this, both the minister and the government are of the view that the police can do that.

Senator Moore: The first matter I wish to discuss has been covered by Senator Cogger with respect to the "suspect" versus "belief" part of the definition of "exigent circumstances"

Concerning my second point, in her remarks, Senator Cools made a statement to the effect that the department was not working at this during the summer months. That is confirmed in the affidavit of Mr. Roy. In fairness, I have a copy of the barrister's affidavit. Considerable effort was being undertaken. I made a point of going through that in some detail when I spoke at second reading, Madam Chair. I want to place that on the record because I do not want that to stand on the record unchallenged. I know that work was done by the department on this during those months.

The Chairman: I am sure the department will appreciate your defence, Senator Moore.

Senator Jessiman: Were you briefed, Madam Minister, on the evidence we received yesterday by Robert E. Hawkins, Professor of Public Law, University of Western Ontario?

Ms McLellan:Yes, briefly by Mr. Roy this morning.

Senator Jessiman: During his testimony, he quoted police officers as follows:

The warrants risk encumbering us with another load of administrative responsibility, more bureaucratic work. It hinders our work in the field.

The professor went on to say that the reason we have this legislation is as a result of some obiter dictum of the Feeney case and that it is not in the ratio decidendi. He suggested to us that the legislation really is unnecessary to the common law. Still, it is there and you are putting these officers to all this extra work. Obviously you do not agree with him. I would like you to tell us why you do not.

Ms McLellan: In fact, as you heard from the Canadian Police Association and the Canadian Association of Chiefs of Police, they do not agree with it either. In fact, they would tell you that unless we establish a warrants regime there will be mass confusion with the average police officer on the beat investigating crime. We have seen it already. I gave you the example of Montreal.

In fact, the Canadian Police Association and the Canadian Association of Chiefs of Police are very supportive in light of Feeney. Let us be frank here. The Feeney decision caught us all a little bit by surprise. However, that does not mean that we all stand back and say that no response is necessary, that we will let the implications of that case and any confusion flowing from those implications continue unresponded to. That would be irresponsible. In fact, one of the reasons I am so keen on having this legislation dealt with in a timely fashion is that I know the problems that the police have already had and are anticipating having if we do not have a warrants regime in place.

It will be interpreted differently, potentially province-by- province and situation-by-situation. Individual police officers on the street will either put themselves in jeopardy or will not do their job as zealously as they might otherwise because they will be afraid that they might be violating someone's rights. If we do not respond to Feeney legislatively with a regime, they will not know in what circumstances they can move to arrest.

Senator Jessiman: Do you agree, Madam Minister, that he is correct that that is obiter? If you do not agree, that is one thing. If you do agree, are you telling us that, notwithstanding it is obiter, if they had to decide it they would look at that obiter and follow it?

Ms McLellan: I am saying that the results from Feeney --

Senator Jessiman: I am talking about what he is saying. He is saying that the part of the Feeney decision on which we are acting is not the ratio decidendi of the Feeney decision. I am not saying that you are wrong in what you are doing, but he is suggesting that what you are acting on is what the judge said over and above what he had to say. It was something extra.

Did the department decide that it was obiter and, notwithstanding that it is obiter, they did not want to take a chance and wanted to pass this law, or did you decide that it is not obiter?

Ms McLellan: I do not think it is so easily divided in this case into what the ratio of the case was and what was obiter in this case. For example, Mr. Justice Sopinka said that exigent circumstances may or may not exist but that he did not have to define them in this case. That creates vast uncertainty. That comment from Mr. Justice Sopinka is obiter. However, it is my belief, and that of the government that, in response to Feeney, we must create a warrant regime which clarifies those circumstances in which law enforcement officials must have warrants and those in which they need not, as in the case of exigent circumstances, upon arresting or apprehending a suspect.

I do not know the gentleman in question. I was a former academic myself, as was Senator Beaudoin. Sometimes academics split hairs and may sometimes actually miss the on-the-street implication of a judgment and the confusion or uncertainty that is created, whether the comments are obiter or in the ratio. I think that is nice for lawyers to argue before courts; I think it is nice for law professors to talk and write about. However, for police officers doing their jobs, that does not matter very much. When they are in a situation in which they wish to arrest or apprehend a suspect, they need to know what the law is in this country as it relates to warrants. We have tried to respond to what we think is an untenable situation flowing from the Feeney decision. We have attempted to clarify that to the best of our ability, striking what we believe to be the right and constitutional balance between the rights of privacy and the rights of all Canadians to be safe and secure in their communities and, therefore, have the police do their jobs in an expeditious and timely fashion.

Senator Jessiman: The proposed amended section 529.3(1) begins "Without limiting or restricting any power". So whatever is said below is not restricted to that. However, subsection (2) says:

For the purposes of subsection (1), exigent circumstances include...

and you list these. Are you satisfied, by the use of "include", that other things exist in the common law which could be included in addition to these two?

Ms McLellan: Yes.

Senator Jessiman: You do not think that you need "without limiting" in subsection (2) as well?

Ms McLellan: Subsection (2) says:

For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer...

We have done that deliberately to ensure that it speaks to two specific situations that Parliament, if the Senate adopts Bill C-16, clearly defines as exigent circumstances. We have put that on the record as a clear indication of parliamentary intention in this case as to what we believe are legitimate and constitutional exigent circumstances. However, we are also saying that they may not be the only ones. The verb "include" is there to send the signal that there may well be other circumstances. Courts may in fact define those other circumstances, and probably will over the course of time.

Senator Jessiman: I would have thought that you may have used the same words as used in subsection (1) "without limiting and restricting they include". You think it is enough?

Ms McLellan: I do, but I take your point that we should always strive for the greatest clarity possible. It is a challenge that we all need to work on.

Senator Cools: You have made frequent references to the impact of Bill C-16 on other legislation. As you know, I was a member of the National Parole Board. In that role, I granted and revoked many paroles, and frequently ordered people to be re-arrested. Could you spend a minute or two on the impact of Bill C-16 on arrest in those sorts of circumstances? An inmate is out on parole, something has happened, and the Parole Board makes the decision to revoke the parole. The order is issued and the parole officers issue the warrant.

Could you explain a little about the impact of this new regime on that?

Ms McLellan: As a general matter, Bill C-16 will clearly provide a regime of warrants on arrest or apprehension that goes beyond the Criminal Code.

As I said in my comments, that is important because, while the Supreme Court itself talked about "reading in" in terms of powers of entry, clearly they were speaking of the Criminal Code, and that could not be done with other statutes such as you have outlined. Therefore, it is important for us, in Bill C-16, to clarify the warrant regime and ensure that it is applicable not only to the Criminal Code but to other federal statutes such as the Immigration Act, the Extradition Act and the Corrections and Conditional Releases Act.

With regard to your specific example, certainly, depending on the situation, the terms of Bill C-16 will apply to a wide variety of situations in which officers of the law, customs officials and others, would have to respond. They will have to meet the dictates and requirements of Bill C-16.

Mr. Roy: Senator Cools, I do not have much more to contribute to the exhaustive answer you received from the minister. Perhaps using an example would be helpful. In the case of parolees, once a decision is made by the board to revoke someone's parole, a warrant is issued for that person to be arrested. We believe that the breadth of the decision in Feeney is such that the right to privacy will also govern in those situations and, therefore, there should be an authorization given by someone to enter a dwelling house for the purpose of arresting that person.

The way we read Feeney is that the court said that you can read that judicial authorization into the Criminal Code. There is no authority on the basis of Feeney to go anywhere beyond the Criminal Code. In our view, given the decision as it stands, that is that you need an authorization when violating the privacy right of someone, there would have to be an authorization given to someone somewhere to issue the very authorization about which we have been talking. That is why the minister instructed her lawyers to include clause 4 in the bill which amends the Interpretation Act by adding a new section 34.1. This means that the person who is issuing the warrant, for instance, against a parolee, will be given, on the basis of this, the power to grant the authorization to go into a dwelling house for that purpose. However, there will be a decision made by someone to grant that authorization, and that is through section 34.1, that this will be done.

Senator Cools: The Parole Board is a mighty tribunal which has the authority to issue warrants through parole officers. It is an interesting concept because every inmate is under a warrant when he is imprisoned. For example, his date of release from prison will be called his "warrant expiry date." What you are dealing with is a person who is already under warrant. They have been detained and, through clemency and under the Parole Act, they have a conditional release. It is not a simple matter.

Mr. Roy: You are right.

Senator Cools: Madam Minister, at some point in time this will emerge as a major problem. I say that because it is a warrant on top of a warrant. It is a warrant to get around the fact that, by an act of clemency granted to them, they are allowed to be outside the penitentiary.

Ms McLellan: We can inquire of the Solicitor General in that regard.

The Chairman: Thank you very much your assistance today. You have helped us in our deliberations to a great extent.

Ms McLellan: It was a pleasure to be here. I wish you all happy holidays. I look forward to seeing you all in the New Year since, as Minister of Justice, I expect to be appearing before you much more often than I did as Minister of Natural Resources.

Senator Nolin: Madam Minister, Mr. Roy will probably present you with an omnibus bill for the Criminal Code in the near future. He probably has one in the making.

Ms McLellan: We are talking about that.

Senator Nolin: That could be a very good place to start a pre-study.

The Chairman: We are back to our agenda with Mr. Roy.

[Translation]

Senator Nolin: I would like to consider the preamble of the bill. In the first whereas, you make reference, in my opinion, to the right to privacy within one's dwelling house. Aren't we creating a precedent in a bill by recognizing, instituting and creating a basic right even though the Charter is neither clear nor specific about it?

Mr. Roy: The first whereas to which you refer merely reflects the current status of the law. Article 8 of the Charter provides the right to privacy and the courts have repeatedly stated since 1984 that the expectation to privacy is even greater in a dwelling-house. This essentially corresponds to the common law concept, which has been upheld unequivocally by the courts.

This whereas adds nothing to the status of the law. It is a statement of what the law is and this is how it will be seen by the courts.

Senator Nolin: In your third whereas, you refer to the Parliament of Canada stating that it recognizes that there is a societal interest in the proper administration of justice including effective law enforcement, and that to achieve effective law enforcement, peace officers must be granted the power to enter a dwelling-house to arrest or apprehend persons who they believe have committed a criminal offence or have breached the provisions of an Act of Parliament other than the Criminal Code for which arrest or apprehension is authorized. Would it not be appropriate to specify that the arrest referred to in the third whereas constitutes a legal arrest? Judge Sopinka, in his ruling, made a distinction between a legal and an illegal arrest.

I do not want to make an amendment, that is not our intent, we will approve your bill as it is drafted, but I would presume that you will be invited to reappear before us to improve the bill if necessary. I believe that Parliament wants to refer to a legal arrest.

Mr. Roy: I don't see how Parliament could recognize anything but a legal arrest. In my opinion, it would look somewhat incongruous for a piece of legislation to stipulate that it was only in cases of legal arrest.

An illegal arrest is not an arrest but is a case of assault.

I prefer to talk about a legal arrest. I would not want to talk about an illegal arrest in a piece of legislation. You can talk about an illegal arrest when talking about jurisprudence, however this would bother me a little bit in a piece of legislation.

Senator Cogger: You are right about that. I agree with you. However, this is a definition we come across constantly. There is not a bond issued by the Government of Canada, and even by most provinces, that does not state that it is payable in legal Canadian currency --

[English]

-- as if unlawful money existed. You can check it out. Every bond floating around the world with the name "Canada" on top of it reads, "This bond is payable in lawful money of Canada." I checked it out one day and there is no such thing in the law about lawful money. There is an act called the Canadian Currency Act. I think it should read, "This bond is payable in Canadian currency." That would be legal.

[Translation]

Senator Nolin: In the last paragraph, there is a notwithstanding clause stating whereas the Parliament of Canada declares that nothing in this Act is intended to limit or restrict the ability of peace officers to enter a dwelling-house for purposes other than arrest or apprehension, under this or any other Act or law, including the common law. Don't you think that the Feeney decision prohibits that?

Mr. Roy: This paragraph talks about entering a dwelling-house for purposes other than arrest or apprehension. When I read that, I think of the power given to peace officers to inspect certain premises.

And you have that through legislation such as, for instance, the Firearms Act, which provides for certain types of inspection. Other pieces of legislation and even common law provided that, when someone has a duty to proceed, the State gives him concurrent power to proceed with this type of inspection.

More often than not, this is provided for in legislation, but not in common law. This is what must be protected in an act such as this one. We do not want a piece of legislation such as this one to stipulate that a warrant must be issued each time a dwelling-house is to be inspected in this country.

Senator Nolin: As regards sections 529.(1): Mr. Koziebrocki's brief also alluded to this lack of clarity.

Does section 529.(1) pertain to a warrant to arrest or apprehend for a criminal offence or for any type of violation?

Mr. Roy: This is a warrant to arrest or apprehend issued under the criminal law, and a warrant to arrest or apprehend can be issued for a summary offence. This is clear.

Senator Nolin: This also goes a little bit further than what was stated in the Feeney decision. Judge Sopinka stated, "... or for a criminal offence." I believe that this can be found in paragraph 51, when he summarizes his point.

Mr. Roy: I am not sure that I understand you. In the case of a warrantless arrest, the Act already provides, in section 495.(1)b), that you can arrest someone without a warrant when this person is found committing a criminal offence, which includes, at this time, a summary offence.

Senator Nolin: In the translation of paragraph 51 of the decision, Judge Sopinka, in his summary, states that the following requirements must be met. I am referring to the French translation because this was written in English. In summary, and I quote:

[...] the following requirements must be met before an arrest for an indictable offence in a private dwelling is legal [...]

He lists his requirements. I would agree with the opinion expressed by the witness yesterday. Section 529(1) is much broader and does not deal with criminal offences exclusively and, without going as far as section 495.(1), is that everything that justifies the issuance of a warrant to arrest?

Mr. Roy: Senator Nolin, in matters involving both the right to privacy and the authority that the state must exercise in arresting an individual, we ask a judge to consider these aspects in deciding whether or not to issue a warrant to arrest.

The act tells this judge that if a warrant to arrest was issued for a summary offence, which is certainly possible in this situation, the judge can go a little bit further and authorize this arrest, with a warrant, in a dwelling-house.

The judge has to weigh the severity of the crime and, if the crime is not sufficiently serious, the judge must not authorize the police officer. However, there could be circumstances where the crime is sufficiently serious to warrant such an arrest. The legislation merely provides the power, it does not go any further than that.

Judge Sopinka, in the Feeney decision, talks about "read in something that does not exist". This situation is very different. I don't think that we could say that Judge Sopinka was limiting this to only one case. He was limiting it to the facts of this case and to the power that he wishes to create through judicial means.

I think that Parliament is well placed to examine the parameters of section 529 and, in my humble opinion, it is ultimately a decision that the judge will have to make bearing in mind the facts of each case. This is an option that is being given, not an order.

Senator Nolin: Still on the topic of section 529.(1), yesterday you referred to the fact that wording number 7 was not restrictive to one dwelling-house, but could include several. Shouldn't we change the wording because it is going to be part of the code? One of our colleagues made such a suggestion a the House of Commons, but it was turned down for reasons that I am unaware of. Was there a reason?

Mr. Roy: This issue of the singular versus the plural is somewhat problematic to me because the Interpretation Act is clear on the topic. When the act refers to things in the singular, it is also referring to the plural at the same time.

Senator Nolin: According to the act, the dwelling-houses must be designated: it is not referring to dwelling-houses or the dwelling-house.

Mr. Roy: It is our opinion that authorization pertaining to various dwelling-houses could be given on the same document.

Senator Nolin: This could be, for instance, a block of houses.

Mr. Roy: No, you could not obtain an authorization applicable to all dwelling-houses in the City of Ottawa.

Senator Nolin: If there is no emergency, and the police officer takes the time, via a telewarrant, to provide a description of the perimeters of the area where an individual is located, namely, the description of the quadrangle, is it necessary to be more specific than wording number 7?

Mr. Roy: In my opinion, we don't need to be more specific than that. Let's not forget that it is our constitutional right to privacy that is at stake. You are referring to something that is essentially a fishing expedition, but instead of going to a big lake, you are going to a smaller one.

The act does not allow that. According to the act, you have to be able to provide reasonable grounds for believing that the person you are looking for is at that location.

Senator Nolin: I was thinking about the third whereas in the preamble: effective law enforcement.

Mr. Roy: A piece of legislation must attempt to satisfy a series of constraints, including effective law enforcement. However, constitutional rights must be taken into account after that. If these two things cannot be reconciled, constitutional law prevails.

Senator Beaudoin: This is the first time that I have heard that.

Mr. Roy: I said exactly the opposite of what I was thinking, I am sorry. Constitutional law will always prevail. The constitutional right to privacy, if it cannot be reconciled with effective police enforcement, is given second consideration.

Moreover, when I appeared before the committee in the other place, I referred parliamentarians to an excerpt from a US Supreme Court ruling, to illustrate that very point.

In the Payton v. New York ruling in 1979, the Supreme Court decided clearly that administrative constraints on the police are a distant second in comparison with constitutional rights to extensive freedom in one's dwelling house.

Senator Nolin: At the very least, the police will have to describe the dwelling-house or the dwelling-houses where the individual can take refuge.

Mr. Roy: They not only have to describe them, but they have to give the reasons why they think the individual might go there.

Senator Nolin: In the Macooh decision, among others, there was reference to a simple shelter that could hardly be identified as a home or a residence.

Mr. Roy: That is a 1993 Supreme Court of Canada ruling.

Senator Nolin: Clause 529.(1) mentions information on oath without stating if it must be presented in writing or not; is that intentional? In other words, it could be on oath without being in writing, because in clause 529 you state that it must be "in writing." Was it intentionally drafted that way? Clause 529.(1) says that if the judge or justice is satisfied, and I am talking about the clause that refers to a peace officer, which says:

[...] by information on oath [...]

Whereas clause 529 says:

[...] by information on oath in writing.

Mr. Roy: Rather than repeating what my colleague Michael Zigayer is whispering in my ear, I would like to ask him to answer the question.

Mr. Michael Zigayer, Senior Counsel, Criminal Law Policy, Department of Justice: Senator Nolin, following our consultations with the provinces, it was suggested that we limit or remove the words "in writing" in this clause. In some provinces, to make the work carried out by the police more efficient, police officers are allowed to appear before a justice of the peace with a tape recorder to request and obtain the warrant. The ultimate goal is to have a record of what was said when the warrant was requested. We wanted something that was more readily accessible for police officers. That is why we presented the clause this way, and it was even a colleague from Ontario who proposed it.

Senator Nolin: In clause 529.1(b), it says, and I quote:

Grounds exist to arrest the person without warrant under paragraph 495(1)(a) or (b);

Does that mean that the restrictions in section 495 (2) will apply in this case in the Criminal Code?

Mr. Roy: Right.

Senator Nolin: The limitation is based on the type of offence committed, so section 495(1)(a)(b), applies. There are some offences for which a police officer could not use clause 529(1) because, among other things, the offence is both by summary conviction and indictment or just by summary conviction. I am thinking mainly of a drunk driving offence.

Mr. Roy: The limitation or restriction, in French, in section 495 of the Criminal Code, is not absolute. It is a way of telling the peace officer: Do not carry out an arrest without a warrant, except where you have grounds that are based on public interest.

Senator Nolin: It has to be read a contrario.

Mr. Roy: It is a common law formulation

Senator Nolin: But my reading is right.

Mr. Roy: Yes.

Senator Losier-Cool: On the issue of a dwelling house, or "maison d'habitation," I would not want to start another debate on French terminology, but wouldn't a "dwelling-house" be an inhabited house? Can a dwelling-house be an abandoned house?

Mr. Roy: Yes.

Senator Losier-Cool: I see the word "dwelling" as meaning a home.

Senator Nolin: Precisely, there is the jurisprudence that was referred to earlier, in the Macooh case, a 1993 decision where the court interpreted the term very broadly.

Mr. Roy: The words "dwelling-house" in English and "maison d'habitation" in French are terms that are defined in the Criminal Code. The definition of a dwelling-house is contained in section 2 of the Criminal Code, and that definition has been in use since time immemorial. As Senator Nolin said, the term has also been the subject of legal interpretations. And in these circumstances, since there is this recognition, in both the Act and in jurisprudence, we prefer using something that may perhaps appear to be a term that is not perfect, but at least its meaning is understood in our law. That is why throughout the bill there is reference to "dwelling-house," "maison d'habitation," as it is meant in everyday usage, but in the legal sense it has acquired over the years.

Senator Losier-Cool: And in the legal sense, "dwelling-house" does not mean an abandoned home.

Senator Nolin: If the person is in an abandoned home and considers it his or her refuge, it would be interpreted that way.

Mr. Roy: Allow me to read the first three lines of the definition, that will shed some light on the situation for you:

[...] means the whole or any part of a building or structures that is kept or occupied as a permanent or temporary residence [...]

So from the time it is occupied for these purposes, it becomes the person's dwelling-house.

Senator Losier-Cool: It can be a temporary residence?

Senator Nolin: It can be a cardboard shelter.

Senator Beaudoin: It can even be abandoned for some time and be reoccupied. It does not cease being a dwelling-house.

Senator Gigantès: If a criminal takes refuge in a church, that is the house of the Lord. Can they go in and get him?

Mr. Roy: In the case of a hot pursuit, perhaps. I would not want to treat that issue lightly. There could be, and I am not in a position to respond to that specifically, some type of privilege that applies to places of worship generally. It could be a question of privilege or restriction that the forces of law and order will have without it being necessarily recognized in the act. The person taking refuge in a place that could be a church, in my opinion, runs the risk of being in a public place. Similarly, someone who takes refuge in a shopping centre could not claim that the shopping centre has become his dwelling-house. It continues to be a public place. But if it were a rectory, or for a specific purpose, the circumstances would have to be explored before we can comment on it more specifically.

Senator Gigantès: There is a right of sanctuary. People have already taken refuge in churches.

Senator Losier-Cool: In Moncton.

Senator Gigantès: I has happened in France.

Mr. Roy: That is why I am reluctant to make any more comments on that.

Senator Cogger: Some Tamils who were to be deported took refuge in the basement of a church in Montreal.

Senator Gigantès: If you go back to ancient times, King Brasidas of Spartia took refuge in a temple and refused to leave. He was walled up. He was left to die inside.

Senator Beaudoin: I agree with Mr. Roy's comments. We are on dangerous ground. If you read the history of law, it is clear that the right of sanctuary existed. It is true that a temple had a rather special status. It depended on the century and on the country; Greece, for example, or other countries. I think you answered the question. The simple fact that the Criminal Code defines the words "dwelling-house" and "maison d'habitation" solves the problem for me. We do not need to go any further.

[English]

The Chairman: We may have to call in Sister Butts to help us with that.

Senator Gigantès: I have a question regarding proposed section 34.1 of the Interpretation Act. That section reads:

Any person who may issue a warrant to arrest or apprehend a person under any Act of Parliament, other than the Criminal Code, has the same powers, subject to the same terms and conditions, as a judge or justice has under the Criminal Code.

My question is: Is a member of a parole board one of these persons?

Mr. Roy: It depends on the statute. In the case of the Parole Act, you may have some officials, who are not judges because they have not been appointed to a position in the nature of a judge, who have that kind of power, the power to arrest a parolee. As Senator Cools was pointing out, in the case of a parolee, that person is and continues to be under sentence, even though the person is serving the sentence in the community. Until the warrant of committal has expired, that person is under the supervision, generally speaking, of the state.

What this proposed section is saying is that in order to go to a dwelling-house and arrest the person therein there must be an authorization of some sort given by someone to enter that dwelling house. That person who has issued the warrant, under, say, the Conditional Release Act, is given the powers of a judge or justice for the purpose of granting that kind of authorization.

Senator Gigantès: So if Senator Cools were still on the parole board, she would have that power?

Mr. Roy: If as part of her job she was given the power by law to issue a warrant of arrest or warrant generally speaking for the purpose of arresting someone, this section would extend her power to issue authorizations for the purpose of entering a dwelling-house. We would say in French l'accessoire du principal. If you can issue the warrant to arrest someone, you should be given the power to extend that power in order to enter the dwelling house.

Senator Gigantès: So a member of a parole board who says, "Arrest this person, because he has broken the conditions of the parole," can say, "And I authorize you to enter a dwelling-house to arrest the person"?

Mr. Zigayer: Senator, just to add something to what my colleague has said, it is a question as well of departmental policy. It may be that these parole officers will not be given that power, in which case they will still be able to issue the warrant for arrest, effectively revoking the parole, but then a warrant will have to be obtained from a judge or justice under proposed section 529.1.

Senator Gigantès: But it does say here that it can be other than a judge or justice.

Mr. Zigayer: Yes, it does. You are absolutely right. You are reading it correctly. I am thinking that it is important to communicate to you that there will be a question of departmental policy or policy of the board to be taken into consideration as well. The power is there.

Senator Gigantès: Departmental policy by the Solicitor General or by the Department of Justice?

Mr. Roy: In those circumstances, it would be the Solicitor General because he has the responsibility for that piece of legislation. There is also another possibility, and I think that is what Senator Cools was alluding to, and it is that at a future date consideration be given to limit these powers under the CCRA to some other officials. However, it would be for Parliament to make that determination. At this point in time, these people have the power and, as I said, l'accessoire suivant le principal. They would have the power to issue the authorization to go into a dwelling house.

Quite candidly, right now, they do not even need to address their minds to this. Under this amendment they would have to. Right now, it can be done and it is done automatically, presumably because of the general rationale that these people are under supervision, they are serving a sentence, and therefore the state has the power to bring them back. Having said that, the position taken by the department with respect to Feeney and its application to other federal legislation led us to believe that the privacy of the house is such that there must be someone addressing his or her own mind to the issue of whether there should be the power for the state to go in to arrest someone, which explains why you have proposed section 34.1.

Senator Gigantès: You make many things very clear. Thank you. We are not used to that from the Department of Justice.

[Translation]

Senator Nolin: We received the Quebec Bar Association's opinion on section 529.4(1), that revisits the issue of authorization to enter without prior notice. The Quebec Bar told us that the bill goes much farther than what jurisprudence had recognized by including immediate bodily harm or death to the police officer. Have you read the brief presented by the Quebec Bar?

Mr. Roy: I read the one presented to the House of Commons committee.

Senator Nolin: It is the same one.

Mr. Roy: If it is the same, I am familiar with it.

Senator Nolin: Do you have an opinion on the Quebec Bar Association's alerting us to the fact that we are going farther than what is recognized in jurisprudence?

Mr. Roy: My reaction was to question the authorities on which they base themselves in making this assertion.

Senator Nolin: There are none.

Mr. Roy: In common law it is possible to override the duty prescribed in common law to give notice prior to entering. This occurred in the Landry case and arose out of a host of common law decisions. I was always under the understanding that one could easily enter without prior notice when there was the risk of facing a firearm. I do not know any authorities who would challenge that. In fact, in the United States where the case was challenged in the courts, that was recognized explicitly. In Canadian law, I do not know what authority the Bar is basing itself upon.

Senator Nolin: I do plan to ask the president, Mr. Francoeur, where these statements are from.

My last question concerns the telewarrant. In the other place, a member presented an amendment to extend the telemandate option and to make it a generally applicable measure. In other words, the telewarrant would be available to a peace officer. Does the Department of Justice have a policy not to extend the telewarrant generally?

Mr. Roy: Senator Nolin, one of your colleagues told me yesterday regarding the telewarrant that he was among those people who believe in having a document when it comes time to exercising a state power. This view is shared by many Canadians.

Along the same lines, for political reasons, we think it is desirable, in most cases, for a peace officer to be required to appear before a judge to obtain a power and to see the judge in due form. That is why the telewarrant system will continue to be an exceptional system. It is a policy reason that flows from the general logic behind the warrant.

A balance must also be maintained so that court orders can be issued. In the Far North, it makes things quite difficult to have to go to Yellowknife to obtain a warrant when you live in Resolute Bay. You need to look at the geography of the country. Courts use judicial notice. That is part of the reality we have to face. There are also the exceptions. In Ottawa, Montreal and Vancouver, and in the large urban centres in this country, it is possible for the police to go before a justice of the peace to obtain a required warrant. In fact, this legislative policy is reflected in the text of clause 527.5.

Senator Nolin: In other words, as a general rule the justice of the peace or judge must have an opportunity to question the applicant to obtain more information on the allegations.

Mr. Roy: I might add, Senator Nolin, that even with a telewarrant, the justice of the peace not only has that power, it is his duty to do so. The justice of the peace must be convinced and if the police officer does not disclose enough information, it is his duty not to issue the telewarrant. He is in a position to request more information and if he does not obtain it, I reiterate, it is his duty not to grant the request.

[English]

The Chairman: I also thank you very much, Mr. Roy.

Senator Lewis: I move that the committee proceed to clause-by-clause consideration of the bill.

The Chairman: Is it agreed?

Hon. Senators: Agreed.

The Chairman: Carried. Shall clause 1 carry?

Senator Beaudoin: Agreed.

The Chairman: Carried. Shall clause 2 carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall clause 3 carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall clause 4 carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall the preamble carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall the title carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall the bill carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall I report the bill to the Senate?

Hon. Senators: Agreed.

The Chairman: Carried.

I have a matter to present to the committee. We all have some problems with the circumstances leading up to our study of this bill. The following wording has been suggested:

This committee has taken note of the events leading to the introduction of this bill before Parliament which have raised concerns among some members. Nevertheless, in the interest of the public good, we have expedited our work on this legislation but hope that the Senate will take the opportunity at an appropriate time to examine some of the important process issues that have been raised.

I have the French translation. When I make the report, I would like to include that statement.

Senator Beaudoin: It is very vague. Do you refer to the whole debate of the executive, the legislative and the judiciary?

The Chairman: Yes, I think there are questions on that. There are also questions, as raised by Senators Nolin and Cogger, about the rapidity of our examinations. There is the issue of pre-study as raised by Senator Nolin. Many side issues were raised as we dealt with this bill, and I am concerned about them.

Senator Beaudoin: I do not like the word "expedite" in that text.

The Chairman: We certainly have expedited our hearings.

Senator Moore: The minister said that she would take our concerns seriously.

Senator Gigantès: The Senate can take the lead. Process issues are important. Colleagues opposite have raised them as have we.

Senator Cogger: It was my understanding that Senator Cools would take various senators' concerns and make them the object of a reference to this committee, quite apart from this bill.

The Chairman: This text arises from Senator Cool's concerns.

Senator Cogger: Let us wait and see. If she raises it, and I do not know how she would frame it, the matter may be referred to this committee.

Senator Gigantès: There is the question which we all raised of excessive time constraints. As I understand it, this frequently occurs with bills sent to the Senate, and it happened even before my appointment. It certainly happened during the Conservative government and now the Liberal government is doing it. This is a legitimate concern. We object to not being given adequate time to do our work.

Senator Lewis: However, you do not want to leave the impression that we did not have time to do the job properly.

Senator Cogger: It was in that frame of mind, Senator Gigantès, that I suggested to Senator Cools that the questions she wanted to raise concerned the genesis of the bill -- that is, the way it had come about -- and whether it is appropriate for the Supreme Court to order Parliament to do something, which is what she is claiming the court has done. Some other senators do not agree.

I suggested to Senator Cools that she isolate those concerns from our study of Bill C-16 and seek a special reference in February when the Senate resumes.

Senator Gigantès: This issue of whether or not the court ordered Parliament was fully explored. It was quite clear, from both the documents and the evidence that we heard, that the court never ordered us to do anything. Why should we go on a wild goose chase on a non-existent issue simply because one senator wants to raise it?

The Chairman: I cannot presume to read Senator Cools's mind.

Senator Gigantès: No one can do that.

The Chairman: I believe that the issue she was more interested in raising concerns the interplay between the judicial and the legislative part of the governance of this country.

Senator Beaudoin: In my opinion, what you have read does not achieve that at all. It is very vague.

The Chairman: No, but it leaves the door open for someone in the Senate to do so at some time in the future.

Senator Beaudoin: The door is always open. We may always refer something to a committee for study.

This writing is too generalized. The committee may adopt it, but I will not vote for it because it is too vague. I do not think this is a problem that is particular to this bill. This is not the first time we have found ourselves in this situation. However, if Senator Cools asks for a reference of this matter to this committee, I would vote for that.

Senator Gigantès: Yes, depending on the subject.

Senator Beaudoin: Yes, but at this time it is too general and too vague. It is like a potpourri. I agree that there is a problem, but this proposition does not adequately outline the problem. I will abstain from voting on it because it is too vague. However, if someone wishes to seek a reference to study the legislative and the judicial branches of government, I would be support that proposition, because I think it would be a most interesting study. However, this wording does not convey that intention.

Senator Cogger: It is not meant to do that. This is not a reference, Senator Beaudoin. If there should be a reference, I suspect it will come from a senator on the floor of the house, perhaps Senators Cools.

Senator Milne is trying to convey the message that, before this bill was even referred to us, all kinds of questions had been raised.We will proceed when it is properly referred to us.

The Chairman: That is correct.

Senator Nolin: Do not forget about the report in the House of Commons.

The Chairman: If someone will move this motion, then we can vote on it.

Senator Gigantès: Generally, I agree with, Madam Chairman. However, I would prefer that we do not include that statement, but ask that the matter be referred to committee for study. Then we could deal with the matter within careful parameters. Among other things, I certainly do not want this to be interpreted as an invitation to Senator Cools to come here and talk my ear off.

The Chairman: I am in the hands of the committee.

Senator Losier-Cool: I would prefer that you simply report the bill without amendment.

The Chairman: Very well. Is it agreed?

Hon. Senators:Agreed.

I should like to place on the record our appreciation of the tremendous amount of help that our committee staff have provided. Dr. Lank is, in my opinion, the best clerk in the Senate. She has done a wonderful job in the challenging circumstances surrounding this bill. A certain amount of attack or criticism has been levelled at various members of the committee. I would congratulate Dr. Lank and her staff for the way they have handled the situation.

Hon. Senators: Hear, hear!

The committee adjourned.

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