Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 20 - Evidence
OTTAWA, Wednesday, March 18, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which Bill C-18, to amend the Customs Act and the Criminal Code was referred, met this day at 3:38 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Senators, this meeting of the Senate Standing Committee on Legal and Constitutional Affairs is now in session.
Mr. Michael Dagley, Deputy Chief of the Windsor Police Service, is before us.
Please proceed, Chief Dagley.
Mr. Michael Dagley, Deputy Chief, Windsor Police Service: Honourable senators, it gives me great pleasure to attend before you today to make submissions regarding Bill C-18 on behalf of the Windsor Police Service.
I am the Deputy Chief of the Windsor Police Service in Windsor, Ontario. I am currently responsible for all policing operations in that city of 200,000. We live in the shadow of Detroit, Michigan, a giant U.S. urban centre. The international border, and what happens at that border, has a direct impact on us every day.
I appear before you as a police officer with 37 years of experience -- 30 years with the Windsor Police Service and seven years as a constable in Lancashire, England. I intend to give you some comments on this proposed legislation from the view of an experienced police officer and an administrator.
The City of Windsor is in a unique position. We have two border crossings from the United States -- the Ambassador Bridge and the Windsor-Detroit Tunnel. The Ambassador Bridge is the largest land border crossing in Canada. These two border crossings make Windsor the busiest port of entry into Canada, with over 18 million travellers entering the city in 1997. The volume of traffic at these crossings is staggering. On a typical Friday 20,000 vehicles -- 15,000 cars and 5,000 trucks -- and 35,000 travellers will cross into Windsor.
The United States interstate freeway system has three major highways that connect with these border crossings. It is interesting to note that there are only three border crossings that are directly across from major U.S. urban centres: the two in Windsor and one in Fort Erie, Ontario.
Bill C-18 proposes amendments to the Criminal Code and the Customs Act. These amendments will give greater powers to Customs inspectors -- powers to arrest impaired drivers, powers to arrest persons wanted on outstanding arrest warrants and powers to stop persons involved in the abduction of children, to name but a few.
The Windsor Police Service resoundingly supports this proposed legislation. We feel that this legislation is long overdue and it is welcomed by the Windsor Police Service.
We are not strangers to incidents at the border. Over the past five years officers from the Windsor Police Service have responded to calls at the bridge and tunnel 2,995 times. That averages out to 591 calls per year, with each call resulting in our officers spending approximately 80 minutes from the time of dispatch until the time they clear back into service.
In 1997 Canada Customs inspectors had dealings with 113 suspected impaired drivers at Windsor border crossings, 90 at the tunnel and 23 at the bridge. In these situations the Customs inspectors did not have the authority to arrest the subjects. Actions taken included asking the drivers to park their vehicles and find alternative means of transportation, having a sober passenger take over the driving or calling the police to report details about drivers after they had left the port. This legislation would put the authority to arrest in the hands of Customs inspectors and keep these impaired drivers off Windsor streets.
On the impaired driving issues, procedures will have to be put in place. For example, if the Customs inspector at primary feels a driver is impaired there could be a liability issue if the officer told the driver to drive over to secondary inspection and on the way a pedestrian or another vehicle was hit.
Impaired driving is a serious concern to all citizens. It is an issue that we at the Windsor Police Service take very seriously. At this very moment a member of our own police family, Carole Taylor, lies in a Windsor hospital recovering from massive injuries resulting from a collision with an impaired driver. Carole, the director of our 911 Emergency Centre, had her entire life changed on that evening; the lives of her family and friends were also changed.
We know that impaired drivers enter our city at the border. We have taken steps to alleviate this problem by setting up RIDE programs at the tunnel exit. We deploy officers to work at the Customs plaza to assist the Customs inspectors and tunnel authorities.
These police officers are paid directly by the Windsor-Detroit Tunnel Corporation and use marked Windsor Police Service vehicles. We also have officers working "paid duty" or "contract duty" in the Immigration Office in Windsor on weekend nights. These officers are working on their "off-duty" hours and are paid directly by Canadian Immigration.
I can tell you that the public would be outraged to learn that suspected impaired drivers are being let go onto Windsor streets. This is not a criticism of the Customs inspectors. At the present time they do not have the authority to stop them. It is refreshing to see that this gap in enforcement abilities is about to be closed.
Is it dangerous working at Canada's border crossings? Will the Customs inspectors require additional training to go with these new powers?
They say a picture is worth 1,000 words. Let me answer these two questions by showing you a picture taken by a Windsor Star newspaper reporter of an arrest being made by a Windsor police officer at the Ambassador Bridge. The subject, believed to be armed, was trying to enter Canada by hiding in the trunk of a car.
Yes, there is a danger. Yes, the Customs inspectors will need to be trained to meet the requirements of their expanded mandate.
I would like to offer some comments on training.
I have had the opportunity to read the submissions made before this committee by representatives of both the Department of Revenue Canada and the Customs Excise Union. It is clear through reading these submissions that they recognize the need for training. I noted that they feel that two weeks' training would be sufficient to prepare Customs inspectors for their duties. I took the liberty of discussing this with our training branch and they agree that this should be sufficient.
The Windsor Police Service has a partnership agreement with St. Clair College in Windsor. Our training branch, a unit that I am very proud of, is located on the campus at St. Clair College and we make use of their facilities and their expertise. I feel that we have the ability to provide the necessary training for Customs officers at the local level with regard to these new powers. I have sent a letter to Revenue Canada in Windsor seeking a meeting with them to discuss this. I see an opportunity here for the Windsor Police Service to provide law enforcement training to our new partners in crime prevention.
With the new powers, the Customs inspectors should be issued with pepper spray and batons, as their risk of physical confrontation when dealing with arrested persons will increase. This will involve training. Our police officers must undergo refresher training once a year on use of force.
In the province of Ontario, when a police officer uses force on a citizen, even if the force is open-hand tactics, a use-of-force form must be filled out. This form is a must under the Police Services Act of Ontario and covers only police officers in Ontario. The form enables us to evaluate the way our officers conduct themselves when dealing with violent individuals and effecting arrest. I would suggest that a similar process be adopted by Customs to evaluate and successfully monitor the new powers.
I am aware that at the local level that Canada Customs fills out a form when handcuffs are used. There is something similar there.
Part of the additional training should also include roadside screening devices for impaired drivers. This equipment is not a must, but it is an optional tool available. In the majority of cases the Customs officers will form their own opinion as to the sobriety of individuals.
The officers should be updated on presentation and preservation of evidence. They may find themselves having to testify in court more than in the past.
Another issue that seemed to cause some concern during submissions before this committee was response time. I can assure you that in the City of Windsor we will respond to and treat calls for persons in custody as a priority. We welcome the opportunity to work with Customs to lessen the threat of impaired drivers on our streets. We have a close working relationship with Canada Customs now and I do not see any movement away from this.
Will this initiative cause extra work for our officers? Yes, of course it will, but I would much rather have our officers spend time going to the tunnel or the bridge to continue the arrest of an impaired driver there than responding to a call to a fatal accident somewhere in our city, a fatal accident that we would have had the opportunity to prevent through the passing of this legislation.
The Windsor Police Service is committed to the safety of our citizens. We are committed to a reduction in crime and we are committed to working with partners in public safety to achieve these ends.
I endorse this proposed legislation and look forward to its speedy passage.
I would be pleased to answer your questions.
The Chairman: For the record, the picture which you have circulated, which all members of the committee have seen, shows a Windsor police officer holding a suspect in the trunk of a car. The Windsor policeman has his gun out and is aiming it at the suspect.
Mr. Dagley: Yes. It is a vehicle with a Michigan licence plate.
Senator Bryden: I noted that you indicated that these people are equipped with pepper spray and batons.
Mr. Dagley: Yes.
Senator Bryden: You would not advocate that they be armed with firearms?
Mr. Dagley: No, I am not advocating that at all. I have read, in one of the previous discussions in this committee, that there was a suggestion that the committee study that, as it had not been studied since 1980. I am not advocating that the officers be armed. That is a decision which someone else would have to make.
Once the new powers are given I am sure they will be closely monitored. Perhaps after a year or so there will be other thoughts on that but I am not advocating that right now.
Senator Bryden: The pepper spray is a self-defence mechanism, at the very least.
Mr. Dagley: That is definitely necessary, yes.
Senator Bryden: Most encounters would be at close quarters, I would think.
Mr. Dagley: Yes. I know that handcuffs are available to Customs officers but I believe that every one of them should be provided handcuffs.
The chances of getting into a volatile situation will increase with the passage of this legislation. Customs officers will sometimes be stopping vehicles carrying three or four intoxicated people and if they try to arrest an impaired driver the passengers could react. I believe that must happen.
The other tool available to them -- and I do not know how many have them -- is a bullet-proof vest. Those vests are excellent, not only to repel bullets but also to stop knives, broken bottles and other such things. That should be considered as well.
Senator Bryden: Would you say that the best defence in a difficult situation is the response time of your force?
Mr. Dagley: Yes.
Senator Bryden: What sort of response time are you normally able to provide?
Mr. Dagley: Normally, when a call comes in we are there quite quickly. The tunnel is only two blocks from the police station. Many officers are assigned to the downtown area, particularly during the key periods between 9 o'clock in the evening and 3 o'clock in the morning.
The response time is good. It is probably quicker than it is to the Ambassador Bridge but it is fairly good there as well.
On the impaired driving issue, Windsor has 14 breathalyser technicians at this time. On any given shift we probably would not have more than four of them on the road. Four may even be a luxury.
When a breathalyser technician gets involved in one of those arrests he or she is off the road for about an hour and a half. As I understand the powers that would be given to Customs officers they would detain an impaired driver and call the Windsor police who would take over the arrest and give the individual a breathalyser test.
I do not know how much busier we will be. I suspect that when the legislation is passed we will be very busy until the Americans get the message that if they cross the border in an impaired state they will be scooped.
As a suggestion, after the effects of the legislation have been monitored for a period of time, if the extra arrests are a drain on the Windsor Police Service, or other police services across Canada, perhaps Customs officers could be given the power to conduct their own breath tests or perhaps there could be more police officers at the border points. There would then be the issue of who would pay for that, of course.
Senator Bryden: I appreciate that. I am concerned about the safety of the peace officers in these situations. My concern is not so much with the impaired driving situation but in relation to people who are wanted on warrants or people who are trying to take children across the border illegally. Those wanted on warrants, in particular, may be armed and dangerous.
In your view, should the Customs officers attempt to detain those people or should they simply identify them and perhaps try to delay them until the police arrive? I can envision very difficult situations such as the one of the fellow in the trunk of the car.
Mr. Dagley: I believe they would make every effort to detain them in the hope that the police officers would arrive quickly.
The particular case in the photograph could have been a very nasty situation. That vehicle had run the port on several previous occasions and Customs were watching for it. When it came through the Customs officer told the driver that he would have to go over to a secondary area and the driver, for some reason, said something to the effect that there was someone in the trunk and that he thought he had a gun. We arrived very quickly and there was some cooperation from the driver. He was not going to flee under those circumstances.
The individual in the trunk did not have a firearm as it turned out.
I would think that under these new powers, if someone is wanted on a warrant, the Customs officers would try to detain him until we arrive.
It is not for me to say whether there should be an armed presence at the border.
Senator Bryden: I am not advocating that. The level of risk increases exponentially when people are armed.
Mr. Dagley: The level of risk for Customs officers will definitely increase but we must give them the necessary tools and the training to go with those tools.
Senator Bryden: Is it not true that judgement must be exercised in almost every instance? The individual must be trained to exercise the type of judgement required to determine whether a situation is one in which they should attempt to detain an individual or whether it is too dangerous and they should be looking for help.
Mr. Dagley: It could depend on the individual. I know that most Customs officers are very dedicated and I think they will try to detain such individuals. I cannot see them letting someone go through for whom they know an outstanding warrant has been issued if or they are driving a stolen car or whatever.
Senator Gigantès: Some of the Customs officers who appeared before us described armament that Customs officers across the border carry. It sounded very impressive. However, if you detain someone wanted on a warrant who is described as is armed and dangerous is a Kevlar vest, the pepper spray and a baton enough? Are the tools at the disposal of a Customs officer sufficient if the suspect starts shooting at the Customs officer?
Mr. Dagley: No, not if he starts shooting, but if Customs officers have that information they must react and subdue and handcuff the assailant. They may also use the pepper spray.
If there is a lookout in the vehicle and the suspect is armed and dangerous I would hope that there would be a mechanism in place. Well, I know there is because the police will be there quickly. They will do the best they can to delay that person, maybe without even arousing the suspicion of that person. They may say, "Just pull over for a minute."
Senator Gigantès: You do not advocate arming Customs officers.
Mr. Dagley: Personally, no, I do not.
Senator Gigantès: This is a British attitude, of which I approve. It is a very British rather than an American attitude.
Mr. Dagley: It may be, but I think it comes with 37 years of police experience that says there are enough guns out there already.
Senator Gigantès: I am glad to hear you say that.
Mr. Dagley: I know that Customs officers, if they were armed, could be as well trained as the police and as well qualified, but it puts extra weapons out there.
No, I am not advocating it, but it is not my decision. That is only my opinion.
Senator Gigantès: Well, it is an opinion backed up by a lot of experience.
With respect to training, some of the members of the Customs officers' union did not think two weeks' training was sufficient. They thought more training would be necessary if Customs officers were to perform these new tasks and do so safely.
Mr. Dagley: I checked with our training branch and I asked them about the use of force training, the powers of arrest and things such as that. They thought two weeks was sufficient.
You must remember that Customs officers have a great deal of training right now. They are already in the mode. This is nothing new to them.
Senator Gigantès: Is there a requirement for a certain standard of physical conditioning to be able to perform jobs such as that?
Mr. Dagley: For police officers, yes. I cannot answer for Customs officers.
Senator Gigantès: If Customs officers begin performing tasks that they have not been performing before and which are more in the police category of work rather than Customs officer work, should these Customs officers also be in good physical condition?
Mr. Dagley: It would definitely be a plus but it may not be a necessity. It is important that physical help be close by.
The Chairman: I wish to ask a follow-up question with respect to border Customs inspectors deciding how to arrest those they think are armed. I am sure that lone police officers must also make decisions such as this in a regular fashion. There must be some sort of training that could be put in place as to whether or not they would be putting themselves in danger.
Mr. Dagley: That is a very good point. Our officers are trained or instructed under those circumstances, particularly where they are alone, to get help in stopping a vehicle or surrounding an individual. Even if there are two officers in the car if it is known that the person in the vehicle they want to pull over is armed they will probably not do it. They will keep the individual in sight and get help until they are able to contain the vehicle or the individual and then take them down. That may be the way for Customs to proceed.
As I said, Customs officers can be very good at delaying people without arousing their suspicions until help is there. I am sure they will become even better at it.
Senator Lewis: This change in the legislation will require considerable cooperation between Canada Customs and the police force.
Mr. Dagley: Yes.
Senator Lewis: In your situation, it is a large city. Many people pass through there. You are well organized. However, in smaller places such as small ports do you foresee any problems with Customs officials?
Mr. Dagley: I do not see a problem with cooperation. I crossed over from the U.S. into Canada at a border crossing in Saskatchewan. One officer was working there and it was kind of lonely. The problem in those situations is the response time, because the nearest police officer may be 100 miles away; in Windsor the police may only be 100 yards away. That is the difference.
Senator Lewis: This concerns me. Perhaps I should have looked at this bill more closely. However, as I read these amendments it strikes me that there might be a delay between the time the Customs officer detains the person in custody and the time the detainee is arrested. From a technical point of view I am wondering how the rights of those parties might be affected. They are arrested and detained for quite some time without actually being charged or warned as to anything they might say. That puzzles me somewhat.
Mr. Dagley: I have thoughts on this but I can really only relate to what would happen in Windsor.
When an arrested person is handed over to a police officer by the Customs inspectors that person must appear before a justice within 24 hours. In a place such as Windsor there is no problem.
With an impaired driver, if they will be going into breathalyser evidence and issues such as that, we must have a quick response because the first test must be done within two hours.
Senator Lewis: Unfortunately, the effect of liquor wears off.
Mr. Dagley: That is the way the law is written.
I will refer to Saskatchewan again. If a Customs officer there detains someone for impaired driving I cannot say how long it would be before help would arrive. I do not know. However, in a large city with a border crossing such as ours we will be on-site quickly. I can only give the Windsor perspective on it. We welcome this in Windsor.
Senator Lewis: Did you have any consultations in your department on the preparation of this bill or the planning for it?
Mr. Dagley: No. On a personal note, I called a few people at my level with the Customs in Windsor with whom I deal frequently and got some of the statistics from them. I can tell you that they are in favour of it.
Senator Lewis: What about the Association of Police Chiefs and police associations?
Mr. Dagley: I am sure that the Association of Chiefs of Police for the province of Ontario would support this as would the Canadian Association of Chiefs of Police. I cannot speak for the Canadian Police Association or the Ontario Police Association. I do not know what their position would be, for example, on the firearms issue. They may want to see the Customs officers armed. I do not know because I have not consulted with them on it.
Senator Lewis: I was thinking more not whether they were in favour of the proposed legislation but whether there was any consultation between the Justice department, which presumably drew up the bill, and police associations.
Mr. Dagley: I am not aware of that, senator.
The Chairman: I understand that the Association of Chiefs of Police were the people who suggested you come here and I understand that they do support the bill.
Senator Lewis: I was not thinking so much of support as consultation.
Senator Cogger: I am trying to sort out in my mind the effect of the passage of the bill, assuming that it were to take place. You told us that, for instance, the Windsor city police force answers about 600 calls per year.
Mr. Dagley: Yes.
Senator Cogger: Assuming this bill passed it would be 600 fewer calls, presumably.
Mr. Dagley: It might be an additional 600 calls.
Senator Cogger: I do not get it. Would there be more drivers coming by?
Mr. Dagley: The Customs officers would arrest more people than they currently arrest and then they would have to turn them over to the police officers. All those calls that we respond to there are not where we are picking up people who have been arrested. It could be all kinds of calls. We have motor vehicle accidents occur on the bridge and in the tunnel. We have disorderlies there, drunks. We are called for drugs or when firearms are found by Customs officers. There are many things. Those calls will still be there but I think we will go there more than we do at the present time.
Senator Cogger: You have been with police forces both in this country and elsewhere for 30-some years.
Mr. Dagley: Yes.
Senator Cogger: Here is a bill that would grant to a designated officer who comes out of Customs certain powers in relation to a criminal offence under any act of Parliament. That is a tall order. We will create a group of instant policemen with two weeks' training.
Mr. Dagley: The powers that will be given to them will not be as exhaustive as powers given to police officers. If I understand this proposal correctly this will apply to detaining people at the borders. It will not permit the Customs officers to do follow-up investigations all over Canada.
Senator Cogger: I appreciate that, sir. I understand that under criminal law, for instance, the first steps taken by the authorities with respect to a suspect or a criminal are of the utmost importance and many a charge has been thrown out because someone tramples on the rights of the individual from the very first time they approach the person. This is a very delicate field of activity throughout. I heard mention of two weeks for the training.
Mr. Dagley: Two weeks for update or refresher training. However, this will only be in the area of use of force, perhaps learning the roadside screening device and how to operate one of those and --
Senator Cogger: Excuse me, sir, but do you know what kind of training the Customs people have in the field of criminal law, the Charter of Rights, search and seizure, that type of thing?
Mr. Dagley: I would think that training is given pertaining to the Customs Act and pertaining to the Criminal Code in so far as there are reasonable grounds for action. They already have the power to arrest people under certain circumstances such as smuggling and the seizure of vehicles. As I see it, this is just expanding that power of arrest to include things such as impaired driving and the child smuggling issues.
Senator Cogger: Proposed subsection 163.5 (4) reads:
A designated officer may not use any power conferred on the officer for the enforcement of this Act for the sole purpose of looking for evidence of a criminal offence under any other Act of Parliament.
Can you explain to me how that will work? Customs officer may be looking for a gun but run into a stash of hashish. Do they say, "No, no, I was not looking for that"? How do you circumvent that?
Mr. Dagley: I do not think this is intended to give Customs officers powers to go on fishing expeditions just because they do not like the look of the individual in the vehicle.
Senator Cogger: With all due respect, sir, is that not what they do? I live not far from the U.S. border and I went through Customs not too long ago on a Saturday morning with another fellow. For some reason unknown to me -- and they do not have to tell anyone the reason -- the officers searched the entire car. I was not driving. After looking at everything they sent us on our way. They do not have to tell us why they are conducting a search and we cannot object to a search. Are they not allowed to go on fishing expeditions?
Mr. Dagley: I cannot answer that. In my personal experience I have never known them to go on a fishing expedition.
Senator Cogger: This section appears to be difficult in its application. I believe that it is either useless or the cause of big problems. If officers find hashish in my car while on a fishing expedition how are they going to explain that?
Mr. Dagley: That becomes an issue in court. That is why I mentioned training on preservation of evidence and testifying in court. There must not be an abuse of power and I do not think there would be.
Senator Cogger: I appreciate that. However, at first glance, one might be more comfortable without that article entirely. In my experience Customs officers do conduct fishing expeditions. They tell people to open their bags and we do not ask why. If we ask whether they suspect us of something they may say, "No, no. Open it. I want to see everything in there."
Senator Gigantès: That is the right of search which they have under the Customs Act.
Senator Cogger: Yes. I think they have all those rights under section 4 and the way the proposed subclause (4) was drafted may be an impediment to that.
The Chairman: Senator Cogger, officials from Customs and Revenue will be back before this committee on April 1. Those may be questions you could put to them.
Senator Cogger: Thank you.
Last weekend The Globe and Mail carried a series of articles about the ham-fisted methods used by U.S. Customs. Did you read about how they can ban people from entering the country for five years?
Mr. Dagley: I did not see that article although there was something similar in The Toronto Star today. There are some differences. The U.S. authorities are armed at the border.
Senator Cogger: They are armed?
Mr. Dagley: They are armed at the crossing into Detroit. I do not know whether they are the Customs officers or the Immigration officers. I suspect it is the Immigration officers who are armed. There is a difference.
From my experience of crossing that border many times I can tell you that the Customs people on the Canadian side are true professionals. Most of them on the American side are as well. I support our people. I think they are more friendly. If there is any abuse of power at the border it is not by the Canadian authorities.
Senator Cogger: The articles in The Globe and Mail indicated a cowboyish attitude on the part of U.S. Customs.
Mr. Dagley: When I read it I wondered what border crossing they were referring to. In Windsor we do not hear about American officials stopping Canadians for no reason at all and impounding their cars for no reason. If it does happen they keep it very quiet.
Senator Gigantès: Following up on what Senator Cogger said, proposed subclause 163.5 (1) reads:
In addition to the powers conferred on an officer for the enforcement of this Act, a designated officer who is at a customs office and is performing the normal duties of an officer has, in relation to a criminal offence under any other Act of Parliament, the powers and obligations of a peace officer under sections 495 to 497 of the Criminal Code.--
Therefore, an officer has the right, more or less, to go on a fishing expedition. It says "any other act of Parliament".
Under proposed subclause (4) we see:
A designated officer may not use any power conferred on the officer for the enforcement of this Act for the sole purpose of looking for evidence of a criminal offence under any other Act of Parliament.
Proposed subclause 163.5 (1) says that he has the right to look for any contravention of any other act of Parliament and (4) says that he does not have that right. Am I wrong?
The Chairman: In previous testimony before this committee Ms Tracey from the department said:
Right now Customs officers have the power of search without warrant. That power is exclusive to Customs officers because of the circumstances of their business. The idea behind this provision was to ensure that they not use the extraordinary powers they have been given for border security in order to pursue or to find evidence of Criminal Code offences...
There is, of course, a tougher standard for search in the Criminal Code.
Police officers in Ottawa or in Toronto do not have the kind of search authority that Customs officers have at the border. The idea behind this was to ensure that Customs officers not use these extraordinary powers in order to get at Criminal Code offences.
That may help the discussion somewhat.
Senator Gigantès: With all due respect, Madam Chair, that witness was speaking of what was intended. Senator Cogger and I are speaking of what is said and what is said seems to be a contradiction. You cannot say that you have the right to look at everything and then say, "But you must not." I find that a little difficult.
Senator Pépin: I see that in French it says that they have the power to detain and arrest persons.
[Translation]
The fact sheet released by Revenue Canada notes the following:
Customs officers currently have the power to detain and arrest individuals for Customs Act offences such as smuggling. They also have the authority to search for and seize goods such as illegal drugs, firearms, contraband tobacco and liquor, and prohibited material such as child pornography.
They are entitled to search for these goods.
Senator Cogger: One has to wonder, however, about the meaning of subclause 4 in the bill.
Senator Gigantes: The French version reads as follows:
[...] confèrent à un agent de la paix à l'égard d'une infraction criminelle à toute autre loi fédérale; les paragraphes 495(3) et 497(3) du Code criminel [...]
Is this authority restricted to only the applicable offences --
[English]
Is this restricted to only the applicable offences under sections 495(3) and 497, but not to others? Is this what we are talking about? I am confused and I expect lawyers might be confused also. They are already confused with the wierd language they use normally.
The Chairman: The powers and obligations of a police officer under sections 495 to 497 of the Criminal Code and subsections, as you quoted, of that act apply to the designated officer as if he or she were a peace officer.
Senator Gigantès: What I am asking is whether subsections 495(3) and 497(3) are put in there as a restriction that applies only in those cases rather than in all of 495 and 497 cases.
Mary Hurley, Researcher Division, Library of Parliament: Senator Gigantès, I believe that that section can be divided into two. The first part outlines the additional enforcement powers. The second part which you are questions states that subsections 495(3) and 497(3) of that act apply to the designated officer as if he or she were a peace officer. Section 495(3) stipulates that peace officers acting under the authority of subsection (1) of section 495 -- which is the first part of the provision -- are deemed to be acting lawfully and in the execution of their duty for the purposes of any proceedings under this or any other act of Parliament. Subsection 497 (3) is to the same effect. Neither section confers substantive authority. Rather they are provisions deeming the designated officer to be acting lawfully.
Senator Gigantès: That being the case, Senator Cogger has a valid point. What does subsection 4 mean?
Senator Cogger: Let us go back to the testimony which you read to us. The law grants special powers, less restricted powers to custom officers under search and seizure provisions because of their special business. As long as they are there to protect the territory and they stick to that business we give them special powers and they are less restricted in the exercise of those powers than other police officers. That is what the testimony seems to say.
Now we are saying, however, that customs officers shall also be granted the powers of an ordinary police officer respecting any other criminal act in Canada. In other words, we will make them into super-duper policemen with the less limited powers of search and seizure which attach to the Customs role.
Senator Gigantès: That is an additional tool.
The Chairman: That is a good point to raise when the department witnesses are before us.
Senator Lewis: My remarks arise out from Senator Cogger's comment. It may not be a question for Mr. Dagley but it is something we should get straightened out.
This bill, in subclauses 163.5(1) and (2), where it empowers a designated customs officer with the ordinary powers of a police officer, has a qualification . It refers to a designated officer who is at a Customs office and is performing the normal duties of an officer. In other words, although Customs officers will have the authority and the powers and obligations of police officers while he they are the customs house or office if they were to leave the customs office and walk down the street they are not then performing any customs officer duties. They come off work and walk down the street and they do not, at that time, have those powers. If they see a crime happen as they go home they have no powers to do anything. It is only while they are at the customs office and are performing the normal duties of such an officer.
Senator Gigantès: Look at clause 4 again.
Senator Lewis: They are designated officers. They go off duty.
Senator Gigantès: We are not talking about that. Designated officers may not use any power even when they are on duty, presumably. What does this mean if they have the right already under subparagraph (1) to search anything? How do you say in subclause 4 that they must not search for anything "other than"? Other than what?
They are given the right to search for an offence under any act of Parliament in the first one.
We will have the deputy minister and two assistant deputy ministers giving us three different interpretations.
Senator Cogger: Senator Gigantès, that is strange. What you have just read seems to refer, in English, to a designated officer who is in a customs office. Physically the person must be there.
Read the French. It states:
[Translation]
[...] dans le cadre de l'exercice normal de ses attributions à un bureau de douane...[...]
[English]
In French it seems to say refer to powers on top of those that attach to the functions in any customs office. It does not say that they then leave their powers at the door. I do not know.
Ms Hurley: You interpret subclause (1) to mean that the customs officer can search for anything under any other act of Parliament. I do not read the provision exactly the same way, senator. I read it as saying that, in addition to the powers to search for contraband under the Customs Act, the person is also conferred the authority found under sections 495 and 497. Those sections 495 and 497 are not powers to search for anything. Under the Criminal Code, as has already been mentioned, the standard for search and seizure is higher than the standard under the Customs Act. I am not reading it in the same way as Senator Gigantès.
Senator Gigantès: You are no doubt correct. That is not what the English says.
The Chairman: Can we leave this point and allow Senator Pépin to ask her question?
Senator Pépin: You say you have 35 years of experience as a policemen. I believe that perhaps you were not in Windsor all the time.
Mr. Dagley: Thirty years in Windsor.
Senator Pépin: When you were speaking about the small Customs office you said the difficulty will be the time it takes the police officers to get to the Customs office. There may be other problems as well.
Since you have always worked in a large city my difficulty is that if you have one agent there that person must be designated. There must be two. I do not see how one person can arrest these people. What are your thoughts about that?
Mr. Dagley: As I said before, in Windsor it is OK.
Senator Pépin: Do you have friends working in a small towns who have had that experience?
Mr. Dagley: No, I am afraid not. It is possible that the same situation I know arises with police officers working outside of Windsor.
Let us take the Ontario Provincial Police as an example. When they are out on a rural road at 3 o'clock in the morning working by themselves, and they see a suspicious vehicle that in their hearts they know they should be pulling over they also know that the nearest help is maybe 20 miles away. It is quite possible that they will not pull that vehicle over under those circumstances. They are only human. I know that kind of thing happens.
I know in Windsor that it will not happen because help will be there within three or four minutes.
The Chairman: Mr. Dagley, you were saying that you see a need for probably more police services at the border arising out of this bill.
Mr. Dagley: Yes.
The Chairman: We were given the impression that it might call for a lesser amount of service under the simple premise that people who are driving drunk will begin to consider every border crossing as a RIDE program and will avoid crossing the border.
Mr. Dagley: That may be true. When the proposed legislation comes into force we may get awfully busy. However, once the message goes out that if you are driving across the border and have had a few drinks you stand a good chance of being arrested public awareness will kick in. You are quite right that this could happen -- time will tell.
That is one of the things we will have to monitor. If this bill passes the Windsor police obviously will be keeping statistics as to when we are going there and how much time we are spending there. We do not mind going there to arrest impaired drivers if it keeps them off the streets.
The Chairman: It may free up some of your officers for other duties.
Mr. Dagley: If it does that is good as well.
The Chairman: Thank you for appearing before us today.
The committee adjourned.