Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 11 - Evidence for morning session
OTTAWA, Monday, December 15, 1997
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:39 a.m. to examine the regulation proposed by the Chief Electoral Officer; and to give consideration to Bill C-16, to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings).
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Senators, we have before us Mr. Jacques Girard from Elections Canada.
I believe there is something that you should like us to do for you, Mr. Girard.
[Translation]
Mr. Jacques Girard, Director, Legal Services and Registrar of Political Parties, Elections Canada: As required by the Act, we have provided members of the committee with a draft amendment of what can be referred to informally as the "referendum regulation." I will very quickly explain what it is all about.
On December 18, 1996, Parliament adopted a bill that amended the Elections Act, namely to set up a permanent voters' list. The list has been in place since last April, following the enumeration that was carried out in Canada. When the list came into force, the Elections Act contained provisions governing door-to-door enumeration, which has occurred in Canada for 75 years.
These provisions are no longer necessary since we now have a permanent voters' list. As soon as an election is called, the preliminary lists to be used for the election are extracted from a permanent list. Last December 1st, by order, the government adopted sections 20 and 21(2) of Bill C-63 that will repeal the provisions on enumeration in the Elections Act.
The procedure for a referendum is such that the Elections Act adopted for a referendum is applicable in the context of a referendum. It became necessary to make the same amendment to the referendum regulation and that is essentially the purpose of the regulation that we sent you last week. It will repeal the provisions that made enumeration mandatory.
Senator Beaudoin: The amendment that you are suggesting does not affect the Elections Act but only the regulation to adapt it to the new system?
Mr. Girard: That is correct.
Senator Beaudoin: The amendment you are proposing would be necessary during the referendum?
Mr. Girard: If the provisions on enumeration are not repealed, there would technically be ambiguity. The Act contains the provisions according to which preliminary lists are extracted from the permanent list if there is an election or a referendum. At the same time, in the regulations, some provisions would remain. For example, that enumerators must go door-to-door. The ambiguity should no longer exist since there is now a permanent list.
Senator Beaudoin: The purpose of this amendment is to make the regulations clear in the event of a federal referendum?
Mr. Girard: That is correct. Since our mission at Elections Canada is to always be prepared, this amendment brings us up-to-date. This also enables us to prepare the office consolidation.
Senator Beaudoin: The Elections Act for the referendum is also ready?
Mr. Girard: Yes, it is ready. This is the only amendment that is necessary to ensure that if there were a referendum, at any time, we have the legislation necessary to conduct it.
Senator Nolin: I assume that you are in the process of working on an amendment to enable Saskatchewan to vote at the same time as the other provinces?
Mr. Girard: We recommended that Parliament look into this problem in a report that was tabled last September. The problem in Saskatchewan is particular, because some provinces do not change time like other provinces. We suggest giving the Chief Electoral Officer the authority to determine the time of the vote by taking into account the time of year when the election is held. That way, it could be adapted from sea to sea in accordance with the amendment's initial objective.
Senator Nolin: That was the objective of the amendment adopted?
Mr. Girard: Yes.
Senator Nolin: It was discovered later on that not everything had been foreseen.
Mr. Girard: Yes, if the election had taken place in the winter, we would not have had this problem.
[English]
The Chairman: Mr. Girard, I understand that on the income tax form there is a box to check off to indicate whether you want your information used to put you on the electoral list. Do you have any idea yet of how many people opted out at tax time this year?
Mr. Girard: That modification to the tax form will be for the 1997 fiscal year. It will appear on tax forms next April. Thus far, 257 people of 20 million have opted out of the register.
The Chairman: Since the election in June, have you used any other electoral lists to update the register? Are you in the process of updating already?
Mr. Girard: We are in the process of updating the register from lists of driver's licences and vital statistics from provincial authorities. We are expecting to receive data from Revenue Canada for this year because they took the summer and part of the fall to process the information that was contained in the fiscal returns that were sent in April. Yes, we are in the process of updating the register now.
The Chairman: There being no further questions, we thank you very much.
Mr. Girard: Thank you.
The Chairman: Honourable senators, shall I table the report on the committee's behalf? In that way, we will have taken the necessary steps on this.
Senator Cools: When you say "table the report", you mean the committee report?
The Chairman: Yes, indicating that we have heard the official.
Senator Cools: You are asking for the committee's approval that you report this?
The Chairman: Yes, but to table the report rather than present it. In that way, no further action is required.
Senator Cools: Why would you want to do that rather than go through the usual process of presenting the report?
The Chairman: Because these regulations are already within the purview of the Chief Electoral Officer to change. He has done so and he has reported to us that he has done so. All we need do is table the fact that we have received the report.
Senator Cools: To the extent that the Chief Electoral Officer is one of the four servants of Parliament, I see nothing wrong with moving the report in the usual way that we move and adopt reports.
The Chairman: This committee has done this before on things that were presented to us as a pro forma situation.
Senator Beaudoin: Is there a precedent?
The Chairman: Yes, we have precedents.
Senator Beaudoin: I have no objection to what Senator Cools says. It is quite acceptable to me. You are suggesting this because we have done this in the past?
The Chairman: I understand that it would be procedurally wrong to present the report rather than to table it because this report requires no action by the Senate.
Senator Beaudoin: I see.
Senator Cools: However, unanimous reports of committees usually require very little action. They are adopted if they are unanimous.
The Chairman: Yes, but there is precedent for this. If there is no further action required, it keeps the people who prepare the daily agenda in the Senate busy putting it on the Order Paper until it eventually falls off.
Is it the wish of the committee that I table or present?
Senator Beaudoin: I do not care one way or the other.
Senator Cools: You must put a motion so that we can vote on it.
The Chairman: I am advised that it is procedurally wrong to present it.
Will all those in favour of tabling the report so indicate.
Some Hon. Senators: Agreed.
The Chairman: Carried.
We will move on to the next item on the agenda, which is the consideration of Bill C-16.
Senator Cools: Before we call the witnesses, perhaps we should have a discussion on the witnesses that we will hear and how the committee will proceed for the day.
Since we have before us a list of witnesses which I assume came forward from the steering committee, it would seem to me that, at minimum, we should discuss the acceptability of this list and the agenda before the committee today.
Perhaps the witnesses could wait for a few minutes.
Senator Nolin: That is a valid point. Before we go into that, did we receive answers from the provincial attorneys general?
The Chairman: Yes. Senator Cogger wanted us to approach the Attorney General of B.C., and we did so. He is unable to attend here.
Senator Nolin: Are they able to attend later this week?
The Chairman: We did not ask them about that.
Senator Beaudoin: Were they invited?
The Chairman: Yes.
Senator Beaudoin: They were all invited?
The Chairman: B.C. was invited.
Senator Cools: It is my position that the committee should hear the provincial attorneys general. Is it correct that only one was invited?
The Chairman: Only the Attorney General of B.C. was invited, because that is where the problem arose. He was invited on Friday after the steering committee meeting.
Senator Cools: When could he get to Ottawa?
The Chairman: We would have to ask him. He could not make it today.
Senator Cools: Perhaps someone could tell us exactly when the invitation was extended, exactly what he said, and what his time preference was to attend the committee.
These are very serious questions. I am amazed that all of the attorneys general, or representatives thereof, were not invited. I understand the haste with which some of these decisions were made on Friday. I believe that some of these decisions were taken in a very few seconds, but I really should like to know.
The Chairman: Our clerk was the person who spoke to him after the steering committee meeting, as she was directed to do.
Madam Clerk, what did he say?
Senator Cools: For the clerk to speak to us she must have permission.
The Chairman: Does she have permission to answer the question?
Senator Cools: Yes, permission granted.
Dr. Heather Lank, Clerk of the Committee: I spoke to the office of the Attorney General several times on Friday, calling first immediately following the steering committee meeting, which would have been late on Friday morning. His office spoke to the Attorney General to see if it would have been possible for him to appear. At the time, we had officially scheduled hearings on Bill C-16 only for today and therefore I was instructed to find out if he would be available today.
The Attorney General, having looked at his schedule, told his staff that he would not be able to attend a meeting today.
Senator Cools: And neither would a representative?
Ms Lank: That is correct. I asked whether he could send someone and they said "no".
Senator Cools: That was for today. My understanding is that the authority granted for the committee to sit included Tuesday. Did you put to him the question of Tuesday?
Ms Lank: No.
Senator Cools: Why did you not put the question to him for Tuesday, since the committee had the authority to sit on Tuesday?
The Chairman: Senator Cools --
Senator Cools: I am sorry. I am asking her. Since you have given her permission to sit at this table and to answer questions, I have put a question to her.
Why did you not put it to the Attorney General of British Columbia that the committee could sit on Tuesday?
Ms Lank: Because, senator, my instruction from the steering committee was to see whether he was available to come on Monday, which is when we had scheduled the hearings on Bill C-16. I have no authority independent of the steering committee on this, senator.
Senator Cools: I would also submit that the steering committee has not that much power independent of the Senate committee.
Perhaps, Senator Milne, you could tell us, since you yourself asked me for authority for the Senate committee to sit on Tuesday, why the agenda has taken on the form it has. Second, why have the attorneys general not been invited? If the Attorney General of British Columbia was not able to attend on Monday, why was he not offered the opportunity to appear on Tuesday?
Perhaps, honourable senators, we should go in camera to discuss this subject matter. To the extent that the steering committee brought today's agenda forward, it seems to me that it should meet with the approval and support of the entire committee.
The Chairman: The committee will continue in camera.
The committee continued in camera.
Upon resuming.
The Chairman: It has been agreed that the committee will hear from the minister tomorrow. As well, we will invite the Attorneys General of British Columbia, Alberta, Ontario and Quebec to appear before us to make presentations.
We will now hear from Mr. Roy.
[Translation]
Mr. Yvan Roy, Senior General Counsel, Criminal Law Policy, Department of Justice: My name is Yvan Roy, and I am accompanied this morning by Ms. Gillian Blackell and Mr. Michael Zigayer.
[English]
We are here, honourable senators, to try to explain as best we can what Bill C-16 is all about. In order to do that, I will make my presentation in three different segments.
We will attempt to explain as best we can what the decision in Feeney was not about -- that is, what the court did not decide. That will be helpful in understanding why and how the Minister of Justice identified the issues that needed to be addressed in Bill C-16. Ultimately, we will discuss what is to be found in Bill C-16.
I invite senators to stop me whenever they feel it is necessary if they wish to hear some more explanations about a particular point.
Madam Chairman, in my presentation I will try to be as factual as I can. I do not mean to be argumentative in any way, shape or form.
The first thing that must be put on the record is that the court in Feeney did not order Parliament in any way, shape or form to legislate in this area.
The decision in Feeney deals basically with a very narrow issue. That issue is the right of the state to enter into a dwelling-house for the purpose of arresting someone about whom it is believed that they have committed a crime. The court had to decide at common law whether it is still possible to enter a dwelling-house and arrest someone without having obtained in the first place a judicial authorization to enter into that dwelling-house. The common law, which is judge made, as we all know, was clear on this subject.
In 1986, the Supreme Court in a case called Landry decided that it was possible at common law, without having considered the Charter of Rights and Freedoms, for the state to enter into a dwelling-house for the purpose of arresting someone without having judicial authorization. That was the law as of 1986 and onward.
In Feeney, the court took notice of the fact that in Landry it had stated quite clearly that the decision as rendered in 1986 did not take into account the Charter of Rights and Freedoms. There was no need in Landry to do that because the facts of that case took place prior to 1982, which is when the Charter of Rights and Freedoms came into effect.
In Feeney, the court decided that in order to arrest someone in a dwelling-house it is necessary and mandated by the Constitution that the state obtain a prior judicial authorization. The court noted that there is nothing in our law that allows a judge to issue such an authorization. The court stated clearly in its judgment that such a power should be read in. As far as I am concerned, this means that there is no need as such for Parliament to intervene because it is possible in law to read into the Criminal Code the power to obtain an authorization from a judge in order to enter into a dwelling-house.
The decision in Feeney was handed down on May 22, 1997. In the days that followed the decision of the Supreme Court of Canada, the Attorney General instructed counsel to speak with the other attorneys general to see what was to be read in and read in where because the court was not explicit as to how that should be done.
Discussions took place in the weeks that followed to the point that attorneys general came to the realization that there were problems with how this would be read in and what was to be read in. I took part in some of those discussions that took place with the provinces. It became quite clear to us in early June 1997 that there was no one solution. British Columbia wanted to do something. Quebec was doing something else, as was New Brunswick. Ontario had some reservations about what Quebec and British Columbia wanted to do, and so on.
It was at that stage that the Attorney General of British Columbia sought from the Supreme Court of Canada a stay of the execution of its judgment. Why the Attorney General of British Columbia? The answer is simple. He was the only attorney general who had standing before the Supreme Court of Canada. The case of R. v Feeney was handled by the Attorney General of British Columbia; no other attorney general intervened in the matter. Therefore, the only attorney general who could have done this was the Attorney General of British Columbia; and that attorney general was supported, in particular, by the provinces of Quebec and Ontario, as well as the federal attorney general.
These attorneys general asked the Supreme Court of Canada to suspend the execution of its decision for a period of six months, or to clarify what it meant by its decision. The court gave the attorneys general what they asked for, that is, a period of six months in which to do whatever would be appropriate in the circumstances.
Candidly, as early as June 1997, the Attorney General of Canada, who is also wearing the hat of Minister of Justice, was considering the possibility of asking Parliament to address the issue. As the consultation with the provinces went on, it became apparent that there were problems other than what should be read in and where in the Criminal Code it should be read in.
What are the problems we are talking about? It is clear from the decision of the majority that they have decided not to -- I repeat, not to -- decide whether exigent circumstances exist for the purpose of arresting someone in a dwelling-house. They leave the issue open. The Minister of Justice was of the view that there was room for Parliament to state what Parliament considers to be the law. As you can see from the bill itself, there is actually something in this bill to deal with exigent circumstances.
Another issue that was not addressed by the Supreme Court of Canada was what to do when other federal legislation is implicated by this decision. I ask you to think in terms of the Immigration Act under which authorities might want to arrest a person in a dwelling-house for the purpose of expelling that person from the country. We think there is a good chance that the decision in Feeney would apply to such situations. It would be rather difficult to figure out what should be read in and where in the Immigration Act.
Please consider the Conditional Release Act and a parolee who is walking the street and he or she is in breach of some condition. There is a power in the law to arrest that person in a dwelling-house. That piece of legislation does not take into account the decision in Feeney. We thought that there was a need for the law to be clear on this. Again, this piece of legislation addresses that very issue.
Finally, there was the issue of whether it should not be possible --
Senator Cools: Madam Chairman, I should like Mr. Roy to clarify one thing. This is in response to the issue that at the time of the Feeney decision in point of fact the Attorney General of Canada did not respond and that the only attorney general who responded was the Attorney General of British Columbia. You said something to the effect that only the Attorney General of British Columbia had standing.
Mr. Roy: That is correct, before the Supreme Court.
Senator Cools: I understand that very clearly.
Is there not a section of either the rules governing the Supreme Court of Canada or the Supreme Court of Canada Act under which the Supreme Court of Canada has an obligation to inform attorneys general, both federal and provincial, if there are matters before the court of tremendous interest to them? Tell us why only the AG had standing.
Mr. Roy: Thank you for that question.
The Supreme Court Act and the rules that the court can adopt pursuant to the Supreme Court Act provide that when it is legislation that is at play, notice must be given to the attorneys general. However, under the common law, no such obligation is created either by statute or by the rules themselves as to whether notice should be given to the attorneys general prior to a decision being made.
Senator Cools: Very well. Basically, what you are saying is extraordinary. The Courts of Justice Act of Ontario makes it clear that in any matter in a court that is of interest to the attorneys general, notification must be made. You are saying the Supreme Court of Canada is under no such obligation. That is the first question, but it is an important question.
I have copies of the relevant statutes, if you like.
The Chairman: This is for clarification only, and then we will continue.
Senator Cools: He said that he was open for questions.
Why did the Supreme Court of Canada feel no obligation to call the attorneys general of the provinces or of the country before it so that they could make representations to the court as to the impact of this decision? I find this extraordinary. I also note that in the dissenting opinions, the dissenting judges took issue with that as well.
You may continue.
Mr. Roy: It would be difficult for me to answer the question as to why they did that other than by saying that the statute does not require that notice be given. In other jurisdictions, for instance, in some provinces, you may have a rule of that nature.
Senator Cools: Precisely.
Mr. Roy: It does not exist either in the Supreme Court of Canada Act or in the rules that have been passed by the court.
Senator Cools: That is important.
[Translation]
Senator Nolin: Mr. Roy, I understand that the decision refers to common law, but when the police officers entered the trailer, they had section 495 in mind. It was the Criminal Code that gave them the power to enter, with everything jurisprudence added to section 495. It is a statutory provision of section 495(1).
Mr. Roy: Absolutely.
Senator Nolin: The issue is important. The court made a decision that again disrupts the administration of criminal justice in Canada, and jeopardizes the application of section 495(1), without notifying the Attorney General of Canada. Is that what the issue is all about?
Mr. Roy: Yes.
Senator Nolin: It is important, because arguments have been raised. The court invoked the Charter and did not render any legal provisions unconstitutional.
Mr. Roy: That is correct. Section 495 of the Criminal Code, by way of clarification, is the section of the Code that grants a peace officer the power to make an arrest without a warrant. The legislation specifically sets out the circumstances in which that can be done, but the legislation does not say where this power can be exercised.
Senator Nolin: So it is in Canada?
Mr. Roy: It is in Canada, according to where you are. The Supreme Court, in the Feeney case, says that in a dwelling-house, you must have judicial authorization before exercising this power. If you exercise it in the streets or in a public place, you do not need this prior authorization, because you are in a public place. What common law said in the Landry case is that when you use the power to arrest under section 495, even in a dwelling-house, you do not need prior judicial authorization. The Feeney case changed that by stating that: In the future, when you use your power to arrest, if you exercise this power in a dwelling-house, you must have, in your possession, a judicial authorization to enter the dwelling-house. That is all that was decided in the Feeney case, nothing more, nothing less.
Senator Beaudoin: You say that according to common law, there is no need to provide notice, because it is common law. I find that logical. The Feeney case says: You cannot enter a dwelling-house without a warrant and that decision applied the Charter of Rights. But once the Charter of Rights was applied, none of the attorneys general were ever notified, only the decision was passed on.
[English]
I could keep going, but something in here is quite technical.
[Translation]
Senator Nolin: It is the danger that creates for the future. That is the problem.
Senator Beaudoin: But I follow your logic. If it is a case of common law, there is no notice.
[English]
If it is a case of division of power or Charter rights, then we need a notice to all attorneys general.
Mr. Roy: Notice is required if a particular piece of legislation is before the court and there is a possibility that this piece of legislation will be quashed as being unconstitutional. In the present case, section 495 was not in play because the power to arrest without a warrant continues to exist. It is only that the court, looking at judge-made law, which is what common law is all about, said, "In order to satisfy the Charter requirements, judge-made law in the future must be such that you will need to have a warrant, a judicial authorization, in order to enter into a dwelling-house." They have not touched section 495.
Senator Beaudoin: That is right.
Mr. Roy: They have simply said that section 495, when applied in circumstances having to do with a dwelling-house, requires that there be a judicial authorization.
Senator Beaudoin: Your distinction is correct. It is not a division of power case or a Charter case. At that time, it was a principle of common law. The judge said, "When you do that, from now on you will need a warrant."
Mr. Roy: Exactly.
Senator Nolin: It is a special type of warrant.
Mr. Roy: That is my segue to my third part. Let us talk about the warrant and what it is doing.
The Chairman: Please continue.
Mr. Roy: The attorneys general asked that the order of the court be suspended for six months, and they were granted that. During the summer months, consultations took place among the interested parties. We are talking about the attorneys general, territorial and provincial, as well as the police community, the Canadian Bar Association, and the Barreau du Québec.
Ultimately, a piece of legislation was tabled by the Minister of Justice on October 30 last. What does that piece of legislation do? At the heart of this piece of legislation is what would become section 529.1, the new warrant created by Bill C-16.
I said in my earlier presentation that there were several obvious problems with the decision in Feeney, such as what was to be read in and where. This piece of legislation proposes that the warrant to be created is a warrant to enter into a dwelling-house for the purpose of arresting someone. You might say that that is stating the obvious; however, let me try to show you that it is not stating the obvious.
When looking into this legislation, one of your options could be to say, "What if we require, for the purpose of arresting someone in a dwelling-house, that the state obtain first and foremost an arrest warrant?" That shows the distinction between what we have in section 529.1 and the arrest warrant. The warrant for the arrest of someone requires that the person be charged with a crime.
Senator Cools: Of course.
Mr. Roy: What you have in section 529.1 is not the same. There is no requirement that the person be charged before you obtain the warrant to enter into the private premises. Section 529 permits the state to get the warrant and then apply the power that is given by law in section 495 of the Criminal Code in order to arrest the person without a warrant.
An officer has a warrant to get into the dwelling-house, but once inside, he applies his power under section 495 in order to arrest the person, instead of having, ahead of this, obtained from a justice of the peace a warrant for the arrest of that individual. To be technical, that means the officer has charged that person with a crime. That puts into the law the flexibility that the police say they need and which the attorneys general say they need.
Why? Right now in this country, in four of the ten provinces -- we can talk later about the territories -- before you can charge someone with a crime, the police have to go to a Crown prosecutor, who does some vetting. He looks at the allegations and makes a decision as to whether the charge should go forward.
As you can well imagine, this would be problematic if an arrest warrant must be obtained ahead of time because the warrant of arrest requires that the person be charged with that crime. The four jurisdictions requiring that are New Brunswick, Quebec, Manitoba and British Columbia.
Instead, the Minister of Justice has put before Parliament a proposal to provide that flexibility. The police, under the law, need to do this: When the police have reason to believe that someone who has committed a crime is in a dwelling-house, they need to go before a justice of the peace and obtain an authorization to enter into the premises without having to charge that person with that crime. If they have reason to believe, they can go in and then they can apply section 495.
If the police enter the dwelling and the person inside claims innocence and gives a good explanation for what has taken place, then the police need not arrest. Whereas if you have a warrant to arrest the person, it is an order under our law that the peace officer must arrest the person; they have no choice.
At both ends of the spectrum, there is some flexibility in this particular proposal. At one end, the police must satisfy a Crown attorney first and then a justice of the peace in order to get an arrest warrant. At the other end of the spectrum, the citizen can make explanations to the police and the police will not be forced to arrest him.
This proposal provides flexibility which we think is constitutional and is needed. It is supported by those who have the task of enforcing the law in this country.
Senator Beaudoin: You have two warrants or two authorizations.
Mr. Roy: Under this proposal, you would have one.
Senator Beaudoin: The authorization to enter and the authorization to arrest are two different things. When you say the flexibility is constitutional, I would ask you to explain that. Having two warrants is probably very constitutional because you cannot have more than that.
Mr. Roy: I would refer the committee to paragraph 48 of the Supreme Court of Canada decision in Feeney where the majority of the court states quite clearly what it is that they have decided.
Justice Dickson concluded:
While I agree that an arrest warrant fails to safeguard privacy adequately, I disagree that since the Code is silent on prior authorization of a search for persons, warrantless searches for persons are permissible.
This is the important sentence:
In my view, privacy rights under the Charter demand that the police, in general, obtain prior judicial authorization of entry into the dwelling-house in order to arrest the person.
The court is asking that, before the police decide to go into a dwelling-house, someone should look at balancing of the interests of a private citizen in his or her private dwelling against the interests of the state to arrest someone for the purpose of bringing that person to justice.
Before Feeney, it was possible for the state to go into a dwelling-house, without permission, and arrest anyone in that home. In Feeney, the court states that the police must get an authorization from a judge to enter a dwelling and make an arrest. The authorization will not be open-ended. The law will require a police officer to provide to a justice of the peace his reasons for believing that the person to be arrested in the dwelling-house is a person who has committed a crime. That is required. Otherwise, that looks to me like a fishing expedition, quite frankly. That would not be allowable under the Charter.
That was what they decided in Feeney and that is not what section 529 is doing. Otherwise, we would have a problem. We did not go so far as to require, in this piece of legislation, that the police obtain a warrant to arrest. Again, that is a critical point. The warrant to arrest requires that there be a person charged. No one is charged on the basis of section 529.1. We have not reached that stage yet.
If after entering a dwelling and speaking to the person the police are satisfied that either he is not the right person or they have made a mistake, or something of the sort, there is no order given to them to arrest the person and bring the person back before a justice of the peace, which is what an arrest warrant does. An arrest warrant is an order given to the police to bring someone back on the basis that that person has been charged with a crime. That is not what proposed section 529.1 is doing.
Section 529.1, to repeat myself, merely says that the court requires a judge between the decision to enter and the actual entering. That judge must be satisfied that you need to go in and that you have reason to believe that that person has committed a crime. That is all that is being asked here. That provides flexibility for law enforcement and for the citizen. There is no order here to bring the person back to the station, which is what the arrest warrant requires.
Senator Jessiman: Does he have to get another warrant then?
Mr. Roy: No, he does not.
[Translation]
Senator Nolin: You are referring to section 529.1?
Mr. Roy: Yes.
Senator Nolin: In section 529.1, there must be a kind of situation that shows that an arrest warrant exists?
Mr. Roy: No.
Senator Nolin: But (a) says:
A warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in force anywhere in Canada.
According to (b) grounds exist to arrest the person without warrant under the Criminal Code, and according to (c), grounds exist to arrest or apprehend without warrant the person under an Act of Parliament other than this Act. One of these three situations must exist for section 529.1 to apply?
Mr. Roy: That is correct, but the arrest warrant that we are talking about is not carried out under section 529.1. You know that it exists and you arrest the person without a warrant.
Senator Nolin: But this power already exists?
Mr. Roy: Absolutely, it is in the Act.
Senator Nolin: All that you do is ask the judge before, as opposed to after. Before knocking on the door, I need to be in one of the three situations set out in section 529.1. Can I proceed then?
Mr. Roy: That is correct.
Senator Nolin: It is not an arrest warrant, it is an authorization to enter.
Mr. Roy: That is correct.
Senator Beaudoin: You can go in, but you cannot make the arrest? Once you have entered with a warrant?
Mr. Roy: Once you have gone in, you use your powers set out in section 495 -- or in another federal act -- to arrest the person without warrant.
[English]
Senator Watt: I should like some further clarification. I think I understand what you are saying, which is that the police will have flexibility if they enter the dwelling with some kind of a warrant but that that warrant does not empower them to pull somebody out of the dwelling. Is that correct?
Mr. Roy: What do you mean? I would like you to provide some clarification before I answer.
Senator Watt: What is bothering me is this: When does the second warrant kicks in. Does it kick in when the judge orders it to kick in, only once it reaches court? I do not understand it.
Mr. Roy: Let us say you are a peace officer and you recognize someone on the street about whom you have reasonable grounds to believe that he has committed an offence: You can arrest that person without a warrant; you need no prior judicial authorization of any sort.
Senator Jessiman: That is both before and after?
Mr. Roy: Before and after.
Senator Watt: So the legislation will give an authorization automatically to the police officer but he does not require a document to prove that he has to get someone out?
Mr. Roy: No. You will have a document that will be issued on the basis of this legislation. Again, going to the next step in the analysis, if the person is on the street in a public place, you can arrest the person without a warrant. That was the law before Feeney and that is the law after Feeney. You already have that.
What Feeney says is that if you want to arrest that same person on the same grounds in a dwelling-house, then you must have a judicial authorization given by a judge -- which is now provided in the legislation -- a piece of paper telling you as a police office that you can go into such dwelling-house for the purpose of arresting that individual. What the law does not require -- and this is an important distinction; actually, it is more than a distinction, it is a difference -- is that you obtain for that purpose a warrant for the arrest of the individual because that implies that the person has been charged with a crime.
Senator Watt: That he has already been charged with a crime?
Mr. Roy: Yes. That is not required here.
Senator Watt: Suppose he has never been convicted. What happens in that case? Where does the second authorization kick in? That is my point.
Mr. Roy: May I ask you what second authorization you had in mind?
Senator Watt: You said that on the one hand this piece of legislation will empower the police officer to be able to enter the dwelling without any authorization whatsoever, without anything more than what you are describing here.
Mr. Roy: Exactly. It is an authorization to enter the dwelling.
Senator Watt: That is understandable. That gives the flexibility to the police officer to determine whether or not the person is guilty, correct?
Senator Jessiman: No.
Senator Cools: No. This is all about charging and arrest, not trials.
Senator Watt: That is what I understand: The person is already proven guilty before it is even taken to trial.
Senator Jessiman: No. They could charge him, could they not, on the street, as you said, but they could not when he got into a house? So now they allow them into the house and he has the same rights now in the house as he would have on the street, is that right?
Mr. Roy: Yes.
Senator Watt: That is the point.
Senator Petten: The police officer goes in with his warrant. At that point, the police officer can make up his mind whether the person in question has or has not committed a crime. Therefore, he can take the person out or leave him there. Is that correct?
Mr. Roy: Let me take that point and try to go one step further. When the police officer obtains the authorization to enter the dwelling, which is what proposed section 529.1 provides, he or she must tell the Justice of the Peace: "I have reason to believe that the person I want to arrest has committed a crime," and the judge must be satisfied that there is something there.
That standard we are talking about is not different from any other situation outside of the dwelling-house where the police want to arrest someone.
Senator Jessiman: They do not need a warrant?
Mr. Roy: They do not need a warrant whatsoever. A peace officer must always have reasons to believe that someone has committed a crime. Otherwise, it becomes a police state.
The standard, in order to try to answer Senator Watt's concern, applicable for you to be found guilty of that crime is quite different. Having reason to believe that someone has committed a crime is one thing. The judge who will ultimately have to rule on whether or not the person is guilty will have to be satisfied beyond a reasonable doubt that the individual arrested is the one who has committed the crime. Those are completely different standards.
The police will be able to arrest that individual, bring that person to justice, for the judge or the jury, if this is the election made by the accused -- the trier of fact -- to make a determination as to whether or not the person arrested is the person who has committed the crime. However, that standard is very different from what we are talking about to arrest the individual.
Is that helpful?
Senator Petten: I misunderstood you, then. I thought I heard you say that if the police officer went in and determined that it was the wrong chap, or that this fellow had not done it, then he does not bring it back to the justice to say he has or has not. That is the part I wanted clarified.
Mr. Roy: You did not misunderstand me because that is what I said; and that, in my view, is the state of the law.
Again, let us be careful. What we have here is not an arrest warrant. It is a warrant for entry. Let us make the terminology clear. The warrant I am talking about is a warrant for entry; there is also an arrest warrant. In the case of an arrest warrant, you have charged a person with a crime and the warrant is an order from the judge to bring that person back with you. That is what we are talking about.
What I said was on the basis of the warrant in section 529.1, wherein a police officer is telling the judge, "I have reasons to believe that this person has committed a crime; he is to be found in location "X", which happens to be a dwelling-house. "Give me a warrant to enter, and then I will arrest that person without an arrest warrant."
Senator Jessiman: Just as you could do on the street.
Mr. Roy: Just as the officer could do on the street.
Once the officer is in there and speaks with the person, the person may say: "Hold on just a second, officer. I was not there when you say I was there. If you check with my wife and my children, they will tell you that I was here." Let's assume that the officer verifies the person's story. The officer may then say: "I may have made a mistake. I do not have here an order to take you back. I do not have an arrest warrant." The officer can then apologize to the person in question and then go and try to find the culprit. That is the flexibility that this provides.
Senator Jessiman: I have a question regarding a letter from the Quebec bar about proposed section 529.1. It was written on November 5, 1997 and then they confirm it in their letter of December 1 of 1997.
They state:
The Bill would amend section 487.3(1) of the Criminal Code by incorporating a reference to a new section, 529. However, Parliament has neglected to include a reference to the warrant to enter a dwelling-house covered in section 529.1...
Is this the one that you have been discussing? They say that the legislation has not covered that.
Mr. Roy: I said that at the heart of this bill is proposed section 529.1, which is the new instrument that is created to address squarely what the Supreme Court of Canada said in Feeney. The Supreme Court said that such a provision "should be read in", and that is the "something". I also said earlier in the presentation that there were other problems that emerged as we were trying to find a way to satisfy the Supreme Court of Canada decision. Section 529 is one of those problems. You will have situations where the police have obtained warrants for the arrest of someone.
Senator Jessiman: As opposed to a warrant to enter?
Mr. Roy: Yes, a warrant to enter. Therefore, they will have charged someone with a crime, and they will have said, "I want to be able to arrest that person." The judge will say, "Yes, you can."
The Supreme Court in Feeney -- and that is the passage I read following a question from Senator Beaudoin -- says quite clearly that the warrant to arrest is not sufficient. The law says that if you are to have a warrant to arrest, you will need something over and above that, which is the warrant to enter. This is what you have in section 529, which is the section just preceding 529.1.
We had to put in the law a power for the police that when they obtain a warrant to arrest someone, they must also have the power to enter into the premises, which is what proposed section 529 is all about. It is nothing more. You do not need an arrest warrant, but if you get an arrest warrant, you need the power to enter.
Senator Jessiman: Do you think the bill satisfies their concern? The Quebec bar says that you have not. Have you read their letter?
Mr. Roy: Yes, I have.
Senator Jessiman: They say that Parliament has neglected to include a reference to the warrant to enter, but you have just said the bill does this.
Mr. Roy: It does in section 529.
Senator Nolin: They are referring to the first clause of Bill C-16, and it was corrected in the House of Commons.
Senator Jessiman: Has it been corrected?
Senator Nolin: Yes.
Senator Jessiman: All right.
Mr. Roy: Only one motion was entertained in the other place, and it was to address that problem. We are talking about a different problem altogether.
Senator Beaudoin: When was it corrected in the House of Commons?
Senator Nolin: It was at the committee level.
Mr. Roy: It was passed on November 7 in the House of Commons.
Senator Jessiman: December 1.
Senator Beaudoin: You are right. The Quebec bar said that in December.
Senator Jessiman: They state in their letter:
The Act as passed does not invalidate any of the suggestions made by the Barreau du Québec in its letter of November 5.
Mr. Roy: I have not seen that. You are talking about a document that came after the bill was passed in the other place.
Senator Jessiman: On November 5, they wrote a letter. Then on December 1, there was a fax stating that there have been some changes, but they still state:
Our analysis was done on the basis of the text tabled at First Reading in the House of Commons. We have reviewed the version passed by the House on November 7 and can thus confirm that our comments are still applicable. The Act as passed does not invalidate any of the suggestions made by the Barreau du Québec in its letter of November 5.
Senator Cools: Are these witnesses appearing before us on this legislation? I am sure that Senator Nolin, when he met with the chairman and the steering committee on Friday, would have insisted on the right of the Barreau du Québec to come before the committee. I know how the senator stands up for his province.
Senator Nolin: They have been asked, but they have declined to appear. They said, "Read our brief."
Senator Beaudoin: If they asked us to read their brief, this is what we will do.
Mr. Roy: I am not clear as to their problem, then. First, the issue of the arrest warrant is dealt with in the legislation as tabled. A warrant to enter is provided for in section 529. The change was made in the other place through a motion to add words to what is now clause (1), which is the creation of a new section, section 487.3. I can explain what this proposed section is all about, if you wish. However, I thought it would preferable, before we move to what is basically a peripheral issue, to finish what is at the heart of this bill.
I have spoken about section 529.1. We talked about section 529, which is the warrant of arrest, coupled with an entry warrant. Then we need to talk about the issue of exigent circumstances.
I said in the first few stages of my presentation that the majority of the court in Feeney left the issue open as to whether there would be exigent circumstances other than hot pursuit, where it would be feasible for the state to enter into a dwelling-house for the purpose of arresting someone without having obtained the warrant. This bill provides Parliament an opportunity to state unequivocally that there are circumstances where that should be the case. Two of these circumstances are identified clearly, and that is section 529.3.
What are those two situations? First, there are cases where there is a suspicion -- and I want to emphasize the words here -- that imminent bodily harm will be caused to someone. The best way of illustrating a case like this would be domestic violence. If the police have reasonable suspicion that imminent bodily harm will be caused to someone, on the basis of this legislation they would be allowed to enter into a dwelling-house in order to either prevent this from happening or arresting the person from doing the deed.
Senator Cools: Without two warrants or without one warrant?
Mr. Roy: Without any warrant.
Senator Beaudoin: But that is very exceptional.
Mr. Roy: That is very exceptional with respect to imminent bodily harm being caused to someone, not on the basis of speculation. That would not be covered by this section.
Senator Cools: I want a clarification on the warrant question, but first I want to follow up on what Mr. Roy had to say.
This is very interesting in the instance of domestic violence. I know a lot about domestic violence. In questions of domestic violence, usually the private dwelling or the whereabouts of a private dwelling is never a problem. Problems arise around private dwellings where one is trying to apprehend a possible criminal, and he is moving from other people's private dwellings or his own.
In the instance of domestic violence, if a husband is beating a wife, or a wife is beating a husband or a child, when the police are called, the dwelling-house is pretty constant. It is not that good an example. Domestic violence usually occurs in the homes of the victims and the assailants. It is glamorous to use domestic violence as an example, but domestic violence is one of the offences where the location of the crime is never at issue.
If one is in a housing project, for example, and a potential accused is skipping from dwelling-house to dwelling-house, this is a problem. The particular dwelling-houses that the person is going in and out of are not particularly clear or evident.
I know that you always like to throw in domestic violence because it is always so timely.
What is the difference between a warrant and a judicial authorization? This issue was raised by the Attorney General of British Columbia in a submission. Perhaps you could tell the committee the difference between a warrant, as we have known a warrant for hundreds of years, and the judicial authorization, as proposed in the Feeney case.
Mr. Roy: Senator, from my perspective, it is the very same thing. A warrant is an authorization from a judge telling you that you can do something.
Senator Cools: I knew you would say that.
Mr. Roy: It is true of an arrest; it is true of a search warrant; it is true of a DNA warrant. Several of them exist. When we are talking about judicial authorization, it is the long form for a warrant.
Senator Cools: No, it is not, Mr. Roy. Then why in the submission from the Attorney General of British Columbia does it state that:
The Respondent submits that it is important that this power --
-- meaning this new power
-- should be one which can be exercised by a Justice of the Peace.
The submission goes on to say that they are not justices under section 96. Why does the Attorney General of British Columbia see fit to mention it in his application if it is one and the same thing?
Mr. Roy: With all due respect, there is no contradiction between what the Attorney General of B.C. is saying and what I am telling you. They are only talking about having a particular level of judges in order to obtain those warrants.
A judge under section 96 of the Constitution Act, 1867 -- what we used to call the BNA Act -- is basically a superior court judge. The Attorney General of British Columbia is saying: "If you are to be getting a warrant from a judge, do not ask that the judge be a superior court judge. Go to a different level. We would be happy with a justice of the peace." They are all judges, which is what this bill is doing.
Senator Cools: Not quite. Bill C-16 attempts to satisfy what the attorney general raised in his application. There is no doubt about that. However, it is not clear that Bill C-16 sets out what was the original intention of the Supreme Court of Canada. When the Supreme Court of Canada was using the term "judicial authorization", it was not clear that they meant a classical warrant. That is the question that the attorney general is raising. How is that power to be exercised? In the attorney general's application, he is basically saying that it is important for the administration of justice that such authority be issuable by a justice of the peace, or the old magistrates, as he said. It is not that clear that the two were the same in the original judgment. The bill clarifies it. With due respect for the bill, I laud that. However, when you appear before us you should make it quite clear that one of the issues that had to be sorted out at law what was the Supreme Court meant by "judicial authorization".
Mr. Roy: You are making a good point. The court was not saying in Feeney which judge should issue the warrant. The court was simply talking in terms of a judicial authorization. The Minister of Justice had to decide what level of judge would be needed in those circumstances. Since an arrest warrant can be obtained from a justice of the peace, the Minister of Justice was of the view there was no reason that the warrant for entry should be from a different judge.
Be aware that if you are a superior court judge, you are certainly a justice of the peace. However, the reverse is not true. Going with a justice of the peace provides more flexibility to the system. Think of the Northwest Territories where there are superior court judges for the whole area. You need to have justices of the peace who are on location and who can issue those authorizations after they have weighed the competing interests. The ministry is suggesting here that that is the case.
The Chairman: If I may interject here, Senator Nolin has indicated to me that he has a question. I should like to find out from you, gentlemen, if have you a further presentation to make to us because, if you do, perhaps we should continue with the presentation and then come back to the questions.
Senator Cools: He said he was finished the presentation.
The Chairman: He said this was the first of three parts.
Mr. Roy: Perhaps on the issue of exigent circumstances, I should simply state for the record that there is a second possibility of going into a dwelling-house without having obtained ahead of time the judicial authorization or warrant to enter. That case is where the police have reasonable grounds to believe that evidence will be destroyed imminently if they do not intervene. We are talking about the different thresholds here. We are not talking about reasonable suspicions but reasonable grounds.
The Minister of Justice did not state in her bill, and we are not proposing, the possibility for the state to intervene where there are grounds to believe that property will be destroyed. The only property that would justify going in without a warrant is the property that would be destroyed where that property is evidence of a crime. Then, it is felt that in a democratic society it is something that can and should be done by the state to ensure that the administration of justice will not be brought into disrepute by the police sitting outside a dwelling-house waiting for an authorization while the evidence is disappearing. This is what the proposed section 529.3 is all about.
I should like to say one last word on exigent circumstances. These are the exigent circumstances about which Parliament would be expressing itself, that is, stating the law. There may be other exigent circumstances in the future that will develop and the law will provide for that flexibility by leaving the common law to grow. Parliament expresses itself on these two situations that have been identified as requiring that something be said. There may be all sorts of other situations out there that may or may not happen; and it may be that in some of those circumstances the police will feel that they have to intervene without a warrant. We would then suggest that these situations be sorted out by the courts as they happen. Therefore, the proposed section 529.3 is not exhaustive. It is for Parliament to state clearly that in these two situations it should be recognized that they are exigent circumstances. We think this is important because, in a number of cases, the Supreme Court of Canada has said quite clearly that a measure of deference should be given to decisions made by Parliament with respect to particular provisions that could be seen by some as being in violation of constitutional rights.
In this particular case, we think that in a free and democratic society it should be possible for the state to go into a dwelling-house where, at the very least, someone will suffer imminent bodily harm or where there are reasons to believe that evidence will be destroyed. The criterion which is important here is that it is imminent danger of bodily harm or imminent destruction of evidence.
Senator Jessiman: On that point, are you suggesting that the words "without limiting or restricting any power of a peace officer" also refer to the exigent circumstances and are applicable to both subsections (1) and (2)?
Mr. Roy: Yes.
Senator Jessiman: I wonder if some court may interpret that otherwise. You say that the powers may be, but you have exigent circumstances. It could include other things, although it does not say that.
Mr. Roy: I wonder if it is the right time to continue with the presentation, Madam Chairman, and to talk briefly about the preamble. I know Senator Nolin has a particular interest in the preamble.
The Chairman: I would like to hear the rest of your presentation, if I may, without too many further interruptions.
Mr. Roy: I have been saying, Madam Chairman, that this bill is trying as best it can to provide flexibility for law enforcement, at the same time as protecting the rights of Canadians as recognized by the Supreme Court in Feeney.
The Supreme Court has said that a judicial authorization or warrant must be obtained. That is provided for in this legislation. How this warrant can be obtained is also important. There will be circumstances in which it will be difficult for the police to speak face to face with a justice of the peace. The law will provide so much flexibility that it will be feasible to obtain the warrant we are talking about through a tele-warrant, which means that the warrant can be obtained by telephone. That possibility is particularly important in northern areas of Canada. We are talking of course about the Northwest Territories, but also the northern parts of Ontario, Quebec and the western provinces. In circumstances where there are not exigent circumstances it will be possible for the police to obtain the warrant by speaking by phone to a justice of the peace. The law already provides for how this is to be obtained. A record is created for those who would have concerns about it, and there already exists a scheme for search warrants. The law is importing that for the purpose of obtaining a warrant for entry. You will find that provision at page 5 of my version of the bill. It will be new section 529.5 if it passes through Parliament.
Finally, I have told you that another problem we encountered when we looked more closely at the Feeney situation was the fact that other pieces of legislation may not be enforceable because there is no way of reading into these pieces of legislation the kind of scheme that the Supreme Court had in mind in Feeney. I refer in particular to the Immigration Act, the Conditional Release Act, and the Exhibition Act. In order to address that problem, the Minister of Justice is proposing an amendment to the Interpretation Act by creating new section 34.1 which would allow the "reading in" that we mentioned with respect to Feeney to be done with respect to the Immigration Act, for instance. Right now there is no way of obtaining the warrants for entry. In the future, it would be possible for the person issuing the warrant for the arrest of someone with respect to the Immigration Act to issue the warrant for entry. It would extend the scheme being proposed in the Criminal Code to other federal legislation, such as the Immigration Act.
I would be remiss if I did not say just a few words about the preamble. The preamble here is for the purpose of stating as clearly as possible the legislative facts taken into account by Parliament in making its decision as to what would be appropriate. It has been suggested by some in the past that the preamble disappear since it is worth nothing. Madam Chairman, I would like to correct that misperception on the part of some. The preamble stays. I have brought with me, for circulation to members of the committee, copies of the Statutes of Canada. In another piece of legislation that was passed by this Parliament to deal with a Supreme Court of Canada decision -- some of you will remember that decision in the case of Daviault, which had to do with extreme intoxication -- Parliament was asked to look into this issue and make some changes to the law. We ended up with a new section 33.1 of the Criminal Code. Parliament was able to rely on legislative facts, as I call them, and they ended up being part of our law. If you look at the Statutes of Canada of 1995, you will find under Chapter 32 the piece of legislation to which I referred.
The Chairman: We have a problem in that there are only five copies of this.
Senator Cools: Obviously they were expecting only five members of the committee to show.
The Chairman: We will have copies made.
Mr. Roy: It is my fault. I apologize for that.
Senator Jessiman: Where does this preamble end up?
Mr. Roy: It ends up in the Statutes of Canada.
Senator Jessiman: Which part of the Statutes of Canada? Is it in the Criminal Code as well?
Mr. Roy: It is part of the Criminal Code. However, when you go to Martin's administrative codification or Tremeear's, or others, you will not find it there because space is at a premium in those publications. They are part of the law. They are being used by the courts to establish the intent of the Parliament, which is useful, but, more important, they are used as part of the evidence and the argument presented by the Attorney General to justify a piece of legislation as being something that should be done in a free and democratic society. We have the Section 1 argument under the Charter: What did Parliament have in mind when it passed that particular piece of legislation, and what were they trying to remedy?
This is why you have, in Bill C-16, a preamble which states the problem and, to a large extent, the solution to be given. As Senator Jessiman mentioned, in section 529.3 we refer to the word "include" when talking about exigent circumstances. The preamble says quite clearly that the common law continues to exist. When you read 529.3 and the preamble, there is no doubt in anyone's mind that it is meant for the common law to continue to expand and to address new situations which arise in the foreseeable future.
The preamble is important because it serves to justify the legislation. It is also important because it helps with the interpretation of what is in the legislation.
Madam Chairman, I would enjoy entertaining more questions.
Senator Cools: Mr. Roy, I read an affidavit of yours, and I wonder if you could tell me your basis in law and in parliamentary practice for the submission of a proceeding in Parliament to the Supreme Court of Canada.
Mr. Roy: You are referring, Senator Cools --
Senator Cools: Perhaps I should say what I was referring to.
Mr. Roy: The bill was tabled on October 30 and was passed by the other house on November 7.
Senator Cools: We know that.
Mr. Roy: The Order of the Supreme Court, which was obtained by the Attorney General of British Columbia, supported by, among others, the Attorney General for Canada, expired on November 22.
Senator Cools: I know that.
Mr. Roy: I am just trying to --
Senator Cools: Perhaps I should put the question more clearly. I have in my hands a copy of a Notice of Motion to the Supreme Court of Canada in the case of Michael Feeney v. Her Majesty the Queen and the Attorney General of Canada which was submitted after Bill C-16 had passed the House of Commons, so the House of Commons is no longer in the picture on this question.
In particular, attached to the Notice of Motion is an affidavit of Mr. Yvan Roy. Mr. Yvan Roy swears in paragraph after paragraph for a substantial number of paragraphs the essential movement of the bill through the House of Commons and not quite to the Senate because it had not yet arrived in the Senate.
My question comes at paragraph 25 of this particular affidavit.
Mr. Roy says "a copy of Bill C-16 is attached as Exhibit A herein." I am asking, Mr. Roy: What is the basis in law and in parliamentary practice to submit a proceeding of Parliament -- because Bill C-16 is not a law, it is a bill -- before the Supreme Court of Canada for an opinion?
Senator Nolin: Before Mr. Roy answers that question, I should like to ask him something.
[Translation]
Senator Nolin: Mr. Roy, an initial motion was filed in June?
Mr. Roy: Yes.
Senator Nolin: To ensure that we fully understand the sequence of events and your affidavits, would it be possible to have a copy of the initial motion before you answer the question?
Mr. Roy: Of course. These documents are public and they are easily accessible. In fact, Senator Cools contacted us to request a copy and we were pleased to send it to her.
[English]
I do not know if I have extra copies here, but I certainly have my copies of these documents. If you wish to have a copy of this, during the break it will be a pleasure for me to ask the clerk to provide copies to you.
What this is all about, Senator Cools, is simply this: The Attorney General of British Columbia and the Attorney General of Canada got an order staying the execution of the Supreme Court of Canada decision in June. The bill was tabled and it was considered in the House of Commons. Witnesses were heard and the house passed the bill on November 7. As we all know, the following week Parliament was not sitting. Consequently, beginning Monday, November 17, the Senate would have less than one week to table the legislation, to have the debate at second reading, to conduct hearings in committee, and to pass the legislation at third reading before the 22nd.
The Minister of Justice instructed counsel to seek from the court an extension of its order to stay its decision in Feeney, knowing full well that it would be possible for the court to deny the application. Why is that? It is because the court is put in a difficult situation. As of May 22, 1992, they had ruled that the constitutional rights of Canadians are violated -- that is, after that date -- when the police are going into a dwelling-house for the purpose of arresting someone without having a warrant. The court is being asked to give its imprimatur to something like this. We sought a period of six months from the court, which is the period that has been granted in other cases. If you are going back to the court to say, "The process has not been completed", you are asking the court, in effect, to give you an extension so that you can continue, as a state, to violate the rights of Canadians. This is why the minister instructed us to seek an extension for the period that the standing order was then providing. According to the standing order, the Senate was to sit until December 19. That is what my affidavit is all about. When I tell the court, as part of the affidavit, "Here is a copy of Bill C-16", I am not asking the court to give us an opinion as to whether this is constitutional or anything of the sort. I am providing them a copy of the bill for the purpose of telling the court, "Here is the document that has been tabled." Actually, this is a public document that is available on the web site. I am saying, "Here it is. Instead of having to look for it, I am tabling this with you. Here is the process that we have followed in order to get to the stage where we are as of the date of this affidavit." For the purpose of the discussion this morning, that date is November 7, 1997.
Senator Cools: I know the chronology, Mr. Roy. I asked you for your basis in law, in parliamentary practice, and in the constitutional usage of this country. What you do is recite to me a chronology that I have in front of me and, quite frankly, one that I know quite well.
I was not asking you to recite the chronology. If the department or the Minister of Justice, the Attorney General of Canada, had wanted to go back to the court to ask for an extension of the stay, then, they, he, she -- that is, her representatives -- could have done so without submitting proceedings in Parliament before the court.
I shall repeat my question, so, please, do not recite the chronology to me; I know it very well. I have read your documents. They have provided me with an excellent chronology. I am asking you: What is the basis in law, in our parliamentary practice or in our constitutional practices and usages in this country, for submitting a proceeding of Parliament as evidence before a court of the land? That act is unprecedented. I am asking you for your basis in law, not the political exigencies that existed. We know the political exigencies. We are the politicians. Leave the politics to us.
Mr. Roy: Senator Cools, an affidavit in law --
Senator Cools: No. I want to know your basis in law for submitting it before the court. You could cite the law to me.
The Chairman: Give him a chance to answer, please.
Senator Nolin: We already have that answer.
Senator Cools: You have it, I do not. He has cited me no law or precedence or rules of Parliament. As a matter of fact, the rules of Parliament expressly forbid it.
Mr. Roy: Forbid what?
Senator Cools: The law of Parliament expressly upholds that Parliament has exclusivity over its proceedings in Parliament. You do not believe that, Mr. Roy. You make it evident, but that is the rule. That is the law.
Mr. Roy: You are asking me for the basis in law.
Senator Cools: Yes, your basis in law.
Mr. Roy: You have a motion that is presented to the Supreme Court of Canada for the purpose of extending its order.
Senator Cools: I know all that.
Mr. Roy: In order to obtain such an order, you must satisfy the court that something has taken place. Otherwise, the court, in my humble view, would be bound to say, "Sorry, but you are not getting it." An affidavit, in law, is a statement made under oath by someone about facts as to, in this particular case, what has taken place. You are asking someone who has personal knowledge about those facts to state that under oath. It was a fact and continues to be a fact that a bill was tabled by the Minister of Justice on October 30, 1997. That bill bears number C-16. When one goes before the Supreme Court of Canada to obtain an extension of an order, it is incumbent upon that person to provide court with the basis for which you obtained that order. In order to do that, you give them the appropriate documents, one of which is a public document that is called Bill C-16. That is all that is doing and that appears at paragraph 26 of my affidavit of November 7.
Senator Cools: The fact, honourable senators, that Bill C-16 is a public document means nothing. The constitutional practices of this country are that Parliament's proceedings are exclusively Parliament's until the enactment is made. The fact that it is a public document means absolutely nothing. There are lots of precedents on the record for what I have said.
When you swore out this affidavit, did you show a copy of it to the minister and did you expressly seek the minister's instructions to put Bill C-16 into your evidence?
Mr. Roy: I cannot answer either "yes" or "no". If the question is whether I have spoken to the minister on this myself, I can give you a clear answer; the answer is, no, I have not.
Senator Cools: That is very good. Then let me put the question another way. Was the minister invited by you to give her instructions on your wish to submit Bill C-16 to the court?
Mr. Roy: Senator Cools, I cannot answer that question because it is, with all due respect, incorrect.
Senator Cools: The question is incorrect?
Mr. Roy: I have not, nor has anyone else, submitted Bill C-16 to the court. That is simply not the case. It has not been submitted to court. It would be completely improper to submit to the court a piece of legislation which has not yet become legislation.
Senator Cools: You have answered the question yourself. It is improper, Mr. Roy.
Mr. Roy: It has not been done.
Senator Cools: It has been done. It says clearly here that a copy of Bill C-16 was attached as Exhibit A. It is part of the court's evidence. What do you mean that it has not been submitted? It has been filed. It is in the court.
Mr. Roy: It has not been submitted to the Supreme Court of Canada for a determination of any sort.
Senator Cools: I did not say that.
Mr. Roy: That is not what this is all about. My point is simply this: When you file an affidavit, you are stating facts. This paragraph states that a bill called so and so was tabled on October 30, 1997. That bill is now identified as Bill C-17 and, Supreme Court of Canada, here it is.
Senator Cools: What I am saying to you is the opposite, Mr. Roy. I am saying that it is extremely improper and unusual for anyone, particularly a member of the staff of the Attorney General of Canada, to submit as evidence a copy of a proceeding in Parliament. That is number one.
I want to know this from you very clearly: What advice or instruction did you seek from the minister in doing this? I am hearing you say that the minister had no awareness that you were doing this. I just want this perfectly clear.
The Chairman: Senator Cools --
Senator Cools: He said that. Let him clarify.
The Chairman: We will allow Mr. Roy to answer that and then move on to other questioners.
Mr. Roy: Senator Cools, that is not what I said.
Senator Cools: You tell me what you meant.
Mr. Roy: Purely and simply, you asked me: Have you spoken to Minister McLellan about this? The answer is no, which is what I said.
Senator Nolin: That is referring to the affidavit?
Mr. Roy: I have not gone with my affidavit to Minister McLellan to say: "Here it is, Minister McLellan, and as we are speaking to each other, please have a look at this."
This was shared with people in her office. Whether she has seen the affidavit or not, I do not know.
Senator Cools: My question to you is very particular. I want to know if the minister knows you were placing a proceeding of Parliament before the court.
Mr. Roy: The answer to that is yes.
Senator Cools: She had notice. He said "yes". That is what I want.
Senator Beaudoin: I heard someone say that we cannot submit a bill to the Supreme Court. That is wrong. We may submit a bill to the Supreme Court for advice about constitutionality. That may be done.
Senator Cools: Only the Attorney General can, for her reference.
Senator Beaudoin: Yes, but she is still a Canadian as far as I know. It is possible in our country for any citizen to challenge a law before the court for constitutionality. It is not the same in all other democracies, mind you.
In Canada, we do not have to wait until the bill has become legislation before submitting it to the courts. It is in the Supreme Court Act. Of course we have the right to do that.
Mr. Roy: My point, Senator Beaudoin, is that we did not do that in this case.
Senator Beaudoin: That is right, and I want you to say that also.
Mr. Roy: Purely and simply, it was not submitted for the purpose of obtaining any opinion from the Supreme Court of Canada and they did not give any opinion on this.
Senator Beaudoin: So we all agree that we may ask the opinion of the court on a bill. We do not have to wait until it is legislated.
Your reasoning is that this fact, because it is a fact, was brought to the attention of the court for support, for obtaining the extension. This is what you say.
Mr. Roy: Yes, exactly, and that is what paragraph 26 states very clearly, in my humble view at the very least.
Senator Beaudoin: I am satisfied with that answer. You said that the "reading-in theory" will be enshrined in the Interpretation Act. That is fascinating. I like it, but that is the first time in my life that I have seen this.
Mr. Roy: If I said something to the effect that there was to be some "reading in" of something into the law, I certainly did not mean to use "read in" as it is understood by the Supreme Court of Canada in Feeney.
On the last page of the bill, there is to be an amendment to section 34.1 of the Interpretation Act for the purpose of applying to other federal legislation the same scheme mutatis mutandis that is created with respect to the Criminal Code. For instance, with respect to immigration, under the Immigration Act it is possible to obtain a warrant to arrest someone for the purpose of expelling that person from the country.
We are not talking here about an offence having been committed. We are merely talking about an administrative process. This will provide for the scheme which will now exist under the criminal law to apply in immigration matters.
The same is true of parolees who are in breach of one of their conditions. A warrant is issued so they can be arrested and brought back. Section 34.1 says that if you need to enter into a dwelling-house for the purpose of arresting this person, apply mutatis mutandis the provision you have in the Criminal Code. Therefore, you will be able to go to the person who issues the warrant and that person will be able to give you a warrant to enter private premises for the purpose of arresting, but only in circumstances where the criminal law does not apply.
If the criminal law applies, it is the Criminal Code that governs. This is done to import into the immigration scheme that which is already in the Criminal Code.
Senator Beaudoin: It is purely a question of interpretation.
Mr. Roy: Absolutely. You are right. If I used the expression "read in," I apologize.
Senator Beaudoin: You do not have to apologize. I take your explanation.
[Translation]
Senator Nolin: Mr. Roy, I would like a copy of your affidavit for the month of June. I think it will clarify several points.
Mr. Roy: Of course.
Senator Nolin: I would like to go back to the period preceding the decision rendered in Feeney. The Supreme Court was preparing to amend a statutory rule of common law: "prior notification." Before the Supreme Court made its decision, were you notified that it was preparing to take this stand, either by the Attorney General of the province or by the court itself?
Mr. Roy: In the Feeney case?
Senator Nolin: Yes.
Mr. Roy: The answer is no. There are other examples in the past where similar situations occurred. I handed out what became chapter 32 of the Statutes of 1995, the Daviault case. This is a somewhat similar case where the court, having no legal obligation, created a new common law rule that, in the opinion of the court, would be more consistent with the Charter. As I said on several occasions, in such cases, there is no obligation.
What was proposed in the House of Commons was that there be efforts made to ensure that such situations don't recur. The attorneys general should be notified and could obtain standing to provide another point of view. That could be done through legislation or through rules of the Supreme Court. It could develop into a practice.
I was told this morning, subject to confirmation, that during hearings last week, when a somewhat similar issue arose, the court decided to give no further consideration to an issue that would involve changing a common law rule on the basis of the Charter, because that had caused difficulties in the past.
I would say that in our opinion, the court should be contacted first and made aware of the difficulties involved, if it is not already aware of them. We hope that the court will decide, perhaps through rules of the court, to change its procedures to eventually allow attorneys general to obtain standing if they deem it appropriate.
This bill does not contain anything that would end up in the Supreme Court Act. There are other ways of moving things along in such a matter. What we are proposing to do is continue our discussions with the members of the court.
Senator Nolin: In its decision, the Supreme Court ordered a new trial. Do you plan to obtain standing? Do you think that all of the arguments have been presented to the court so that it can make an informed decision?
Mr. Roy: The trial is to start in February. The legal status is such that the trial judge will not have to determine if the intrusion into the trailer was legal and if the evidence obtained could be used. The Supreme Court disposed of that matter. At first sight, there is no reason for the Attorney General of Canada to request standing at the trial.
Senator Nolin: No, I am thinking more about the questions than the arguments. I do not want to take Mr. Feeney's guilt or innocence for granted, but clearly, there are pieces of evidence that were left out by the Supreme Court decision. The British Columbia Attorney General's action against Mr. Feeney is based on this evidence. A man was killed, there was a confession, and someone today is free.
A new trial has been ordered. Do you think that the Supreme Court has dealt with all of the arguments necessary so that the Act can be applied? I refer you to your preamble, because it is fundamental. We want the administration of justice to be harmonious, and in accordance with respect for everyone's human rights.
If you put yourself in the shoes of the average Canadian who is examining the sequence of events, he or she could question the quality and the way in which justice was rendered in Canada. You can find articles in the papers, as we saw recently, on how the Supreme Court carries out its duties. These points were raised by Senator Cools during debate at second reading. Since it is a new trial, does the Attorney General of Canada intend to obtain standing at all stages of the new trial?
Mr. Roy: The trial itself, as you noted, will not allow the use of evidence that has already been excluded by the Supreme Court, that is the blood-covered shirt and some of the statements made by the accused. The Attorney General of British Columbia must consider that he has other evidence to present to the jury so that they will return with a guilty verdict. What is this evidence? I do not know.
As you said, the accused in this case continues to be considered innocent. If, during the course of the trial, new Charter arguments are invoked with respect to other evidence, it will then be up to the Attorney General of British Columbia or Canada to determine whether to request standing at that point.
I would like to remind members of the committee that normally, the Attorney General of Canada, for political reasons, does not request standing during the trial, but rather in a court of appeal when the debate has been clearly set out and when the implication for the law are considerable.
At the trial, more often than not, it is left in the hands of the local attorney general who must obtain standing and state the arguments to be presented. Why? Simply because there would not be enough lawyers to cover all of the criminal courts where Charter arguments are currently being invoked.
Senator Nolin: If possible, I would now like to go back over the sequence of events between May 22, which is the date the Supreme Court brought down its decision, and October 30, when the bill was tabled.
As an affiant, your name was part of a debate in the Senate. I want this to be crystal clear and for us to fully understand what happened exactly. In his speech during second reading, Senator Moore made some statements that I would like to check with you.
I am quoting Senator Moore:
In a letter dated June 20, 1997, officials of the Department of Justice canvassed their provincial colleagues with respect to interim procedures taken in each jurisdiction prior to the state of the Feeney ruling.
What are these interim procedures to which your colleagues at the department were referring?
Mr. Roy: You will see that in my affidavit, in paragraph 8, I refer to this letter that preceded the discussions that took place with my colleagues in the provinces, to determine essentially what solutions were arrived at following the Feeney case.
As you will recall, it contained the words "read it in." The question is: what is the "it" and "in where"? The opinions in this respect vary considerably from one province to the other. If I remember correctly, some provinces wanted to use a general warrant that exists in the code and that is now contained in section 487.01.
Others said: "No, you cannot do that." Subsection 487.01(2) states if the warrant you want to obtain affects the physical integrity of a person, you cannot use it. There is a clause that excludes it.
Others said: "Ok, we would like to have an arrest warrant." But the arrest warrant does not have the clause needed to allow entry into a dwelling-house. "How do we do that?. Will we need to obtain a completely different warrant or can we obtain it with the warrant we have? Will it be necessary to go before a justice of the peace, a provincial court judge or a superior court judge?" Several questions arose.
In Quebec, New Brunswick, Manitoba and British Columbia, arrest warrants can be obtained only once the allegations have been reviewed by a Crown prosecutor. These provinces ask the following: Should we maintain our policy or should we let the police proceed in such cases? And if we let them proceed in these cases, why shouldn't we do the same in other cases?
The discussion, which lasted a good two hours during the first conference call, made us realize that there were some minor problems. No one agreed on what needs to be done. It became quite clear that with respect to immigration and extradition --
Senator Nolin: That is what resulted from the discussions with your federal colleagues?
Mr. Roy: That is correct. As we progressed.
Senator Nolin: I'd like to go back to Senator Moore's speech, because I had not read your affidavits.
[English]
The Chairman: Senator Nolin, Senator Moore will be here to ask his own questions in a little while, I am led to believe. You have had your two questions. We will come back to you in the next round.
Senator Gigantès: On a point of order, we are not allowed to have electronic equipment of our own in the chamber. Does that mean that we cannot have it in a committee? May I come here with several computers?
Senator Nolin: I feel this question is directed at me.
The Chairman: I have an interpretation of the Rules of the Senate here for you, Senator Gigantès. In specific reference to Senator Nolin's computer, he has been told he can keep it here in committee only as long as it is absolutely silent.
Senator Nolin: Not only in committee. It is allowed even in the chamber, as long as it is silent. Have you heard the silence?
Senator Cools: You ought to be careful because silence can be defective. This is what the court said: Parliamentary silence is constitutionally defective.
The Chairman: We have before us, from the Canadian Police Association, Mr. Scott Newark, Executive Director; from the Canadian Association of Chiefs of Police, Mr. Brian Ford, President, and Mr. Vince Westwick, Legal Advisor.
They have given us a brief but it is in English only, so for anyone who wants to follow it or see it, it is on the table back here.
Mr. Scott Newark, Executive Director, Canadian Police Association: For the record, Madam Chairman, we supplied your committee with a brief two weeks ago fully translated. If anyone does not have a copy, we have copies here in both official languages.
[Translation]
Mr. Brian Ford, President, Law Amendments Committee, Chief, Ottawa-Carleton Police Service, Canadian Association of Chiefs of Police: Madam Chairman, we apologize, but we did not have time to translate the presentation for the Senate Committee. We had a presentation for the House of Commons Committee in both official languages. I will give it to the clerk so that she can make photocopies.
[English]
Also, I am not the President of the Canadian Association of Chiefs of Police; I am the Chairman of the Law Amendments Committee. I am the Chief of Police in the Region of Ottawa-Carleton.
The Chairman: We are in your hands if you want to start your presentation.
Mr. Ford: I shall be very brief. Our message is simple. We believe that Bill C-16 should be passed, and passed before December 19. We are very concerned about that from a policing perspective.
On May 22, the Supreme Court of Canada released the Feeney decision. That case involved the brutal murder of Frank Boyle, a 85-year-old resident of B.C. Shortly after the murder, the accused, Michael Feeney, was arrested in his trailer still wearing a blood-spattered T-shirt. In a controversial decision, the late Mr. Justice John Sopinka, writing for the majority of the court, held that the arrest of the accused in his own house was unconstitutional, thereby setting aside Mr. Feeney's conviction for murder and ordering a new trial. The effect of the decision was to dramatically alter the law governing the arrest of accused persons in their own houses and to require that new practices and procedures be adopted by the police.
As it now stands, no provision in the Criminal Code of Canada or the common law addresses the Feeney situation. Bill C-16 represents those new practices and procedures which police must follow, and we support the passage of the bill.
I will not misrepresent our position to you. The Canadian Association of Chiefs of Police and police across Canada were very unhappy about the Feeney decision. It had a dramatic effect on the way we do business. To put it bluntly, it was probably one of the worst decisions from a policing perspective we have ever felt. It imposed the need for a warrant to arrest someone for which a warrant already exists if they are in a dwelling-house. In other words, if I have an arrest warrant for someone charged with murder, I must get another warrant to go into the place and arrest the person for whom the warrant of arrest already exists. There is no basis in law for that, and now new law must be developed because of this decision.
We sometimes wonder whether the courts really appreciate the problem of front-line officers and the situations they face on a day-to-day basis. The police understand and respect the Canadian Charter of Rights and Freedoms. We know that the process is fundamental to the preservation of basic human rights. However, we live in a difficult and complex world, and it falls to the police, often under difficult conditions, to enforce the law.
We believe that Bill C-16 gives us the necessary tools to do our job effectively, although it encumbers us with another load of administrative responsibilities. It takes away from the ability of police officers to do their job in the field and requires them to go through more bureaucratic work to do their job well.
In our brief, which we presented to your colleagues in the House of Commons in early November, we also argued that there will come a time when the complexities of criminal law will dictate that the notwithstanding clause -- which we asked for -- be used to address some of these serious problems in the criminal justice system. Perhaps this is not the best time, but we feel it is our duty to remind lawmakers of the realities police officers must face on a day-to-day basis.
The Canadian Association of Chiefs of Police supports Bill C-16. It is the beginning of a thousand-mile journey, and we will take one step at a time.
We are not pleased to have a bill like C-16 passed by Parliament. Certainly it was caused by the Feeney decision, but, nonetheless, it is a bill that we need to do our job according to the law.
Mr. Newark: Honourable senators, the Canadian Police Association has appeared before this committee of the Senate and a couple of other committees over the years. I think I am safe in saying that this will be the very first time we will ever say "Please pass the bill as is." The reason for that is not because we happen to think it is a great bill; the reason is the artificially imposed time deadline that has consequences for police officers. It would be nothing short of horrendous and chaotic if the amendments contained in this bill were not enacted by the Supreme Court's arbitrarily affixed date.
I want to mention something about procedure. A lady in my office who was dealing with your clerk in setting dates actually took note of something and passed it on to me. It is of real concern to us as witnesses.
The cause of our concern is that we were given direction as to what we should testify about when we came before your committee or, more accurately, things we should not testify about when we came before your committee. I understand some of the debate that has taken place in the Senate prior to this bill arriving, but, with respect, in my world, direction to a witness about the evidence they should be giving -- and I was a Crown prosecutor for 12 years before taking up my position with the Canadian Police Association -- is frowned on.
In general terms, it is not a good idea that witnesses be given that kind of direction. If what we have to say were not relevant, I am sure the Chairman would direct us in that regard. If we what we have to say makes little sense, I am sure you will not ask us back as witnesses. However, we have been advised in advance that we should not be talking about the ramifications between the legislative authority traditionally resident in Parliament and the reality of courts making law. Quite frankly, I cannot do my job for my members across this country nor can I do it properly for you if I am somehow restricted from talking about the truth.
The truth is that the Feeney decision and the bill the department has worked on very hard -- and we have had much consultation with them -- is a response to the growing reality of law being made by people other than Parliament.
You heard Mr. Roy talking this morning about the importance of a preamble. The reason we have had difficulty with respect to the Feeney case is that the Supreme Court, without any notice to the Crown, decided to change the rules of the game in the middle of the game. They had to balance the legitimate social interests of privacy with the public interest in arresting people for whom there are warrants. Those are legitimate interests; there is a balancing involved in that process. Given that we have not had a history in this country of a Supreme Court with a Charter of Rights, Parliament has traditionally not passed legislation with lengthy preambles, where the elected representatives explain the different interests and why we passed this law.
When a court takes upon itself or is asked to consider whether a section a unconstitutional, it looks at competing interests. In the Feeney case, quite literally, those five judges decided what to do without any guidance from Parliament.
That is why a preamble is critically important in legislation. If you go back probably three or four years, you will see examples of Parliament using those kinds of preambles. When the Supreme Court rules on the constitutional validity of legislation -- and that happens with everything now -- at least there is some direction from Parliament as to what is at stake.
Senator Cools: Madam Chairman, I would like this clarified because I do not believe anyone here would tell the witnesses what to say.
Who told you what you should say?
Mr. Newark: Our office was notified in conversations with the clerk's office that we should comment specifically on the content of the bill and not on the larger issues of the dispute between Parliament and the courts in relation to legislative authority or on the reasoned amendments.
Senator Cools: This is improper, Madam Chairman. Certainly no one would instruct a witness as to what to say.
The Chairman: The steering committee agreed that the clerk tell the witnesses that this committee has before it only Bill C-16. We are not empowered to examine anything other than Bill C-16. We are not empowered to go into the matter of the relationship between Parliament and the Supreme Court. We are not empowered to go into the reasoned amendments that Senator Cools raised. We have Bill C-16 before us, and that is all we are empowered to deal with.
Mr. Newark: I understand that.
Senator Cools: I have never heard of any instruction to the committee clerk that would have the effect of influencing what a witness has to say. Perhaps this particular committee steering does that, and if so, we should certainly review that practice. This is the first time I have ever heard of any committee clerk being instructed by the steering committee as to what a witness should say.
Madam Chairman, if I cannot raise this issue here, I will raise it on the floor of chamber. This is very improper. If your instruction, Madam Chairman -- which I believe it was -- was to stay within the purview of the bill, then obviously that is not what was told to Mr. Newark. We should be very careful. However, it is my clear understanding that once Bill C-16 is before us -- or any bill is before a committee -- anything that is of relevance to that bill is before the committee.
Senator Gigantès: As I understand it, according to the 1982 Constitution, the Supreme Court can decide whether a practice in the justice system for a law is unconstitutional. That is its right, its duty. It did so. This is not the only case.
Mr. Newark: That is correct.
Senator Gigantès: For instance, it declared that the laws of Manitoba that had not been translated into French were unconstitutional. It fixed a date, thus giving them time to do something about it. That is exactly what happened here. It said that a particular practice -- and I sympathize with your view -- in the view of the majority of the court was unconstitutional and time was given to the legislators to do something about it. They could do nothing about it, or they could do something about it. The court did not tell the legislators what to do.
It is legitimate for a committee that is considering a specific bill to say, because of the pressure of time -- and we do have a pressure of time -- or for any other reason, that we want the witnesses to talk about the bill itself and not to talk about the larger issue of whether or not we should have a Charter of Rights or not, or whether the Supreme Court justices in executing their duties under the Charter are a good thing rather than what existed in the middle ages or before 1982. That is all you were told.
Mr. Newark: No, that is not accurate. I take from your remarks, senator, that you have not read the brief we submitted.
Senator Gigantès: I have not read your brief. I was referring to your comments which I found offensive.
Mr. Newark: I must tell you, sir, I found it shocking that a clerk of a committee of Parliament would suggest to us that what was, frankly, a draft amendment which we suggested to this bill had constitutional ramifications for the role of the courts in excluding evidence. With respect, pigeon-holing the evidence that people give is not a very good way of getting a thorough examination of the issue. With respect, senator, you hit the nail right on the head when you talked about the time deadline. The issue with respect to that is the fact that we here will be crunched into about another 14 minutes debating a bill that I promise will have serious ramifications for the law enforcement community and the public of this country. That is something over which I certainly have not control. If the truth be known, I do not have think any of us have any control over that. I certainly think at least someone should mention it.
The Chairman: Mr. Newark, you have mentioned it. I have explained to you that it was agreed that the clerk tell the witnesses that the committee has a mandate to examine Bill C-16 as passed at second reading and not the larger issue of the role of Parliament versus the Supreme Court. We are wasting time here, I suggest, and may we get on with your presentation.
Mr. Newark: I agree. I felt it appropriate to put it on the record.
You will recall that I opened my remarks by saying, "Please pass this bill."
We were involved in discussions with the department on an unprecedented basis in a positive way in being able to get some discussion about what was required. I certainly agree with Chief Ford in that the bill itself is not everything we think it either could be or should be. However, in our judgment, it is immeasurably preferable to the decision of the Supreme Court of Canada. As such, it is something that requires your urgent attention.
If this legislation is not passed, the alternative, from a law enforcement perspective, is one that will be chaotic. That is not an exaggeration in any sense of the word.
Although they do not deal directly with amendments, the two things that I would like to suggest to you, that you may want to look at, are in relation to the essence of the scheme, that is, the use of tele-warrants. Mr. Roy spoke about that this morning. Originally, we had recommended that a better way of doing this would be to statutorily include authorizations to enter dwelling-houses for indictable offences when warrants were actually issued. That would be at first instance when a charge was laid or when someone failed to appear. The recognition is that in Canada in the 1990s most people live in dwelling-houses. There should be an authorization by the court at that point to comply with what the Feeney case said was necessary, that is, that there be an authorization to enter into the dwelling-house. The department and the minister did not accept that as a recommendation and instead went with what is in effect this tele-warrant system.
Please understand that the importance of this is that when the police are phoning someone at two o'clock in the morning trying to get authorization to enter a dwelling-house, there has to be someone at the other end of the telephone or the whole thing does not work. That is not what is currently the state of affairs in this country in relation to the supply of resources -- money and people -- to be able to do that.
When we asked about that, the minister's response was that because this was not a new policy of the federal government no federal commitment of dollars was therefore necessary. I know this was discussed last week at the provincial ministers' meeting as well. If the people are not there to answer the telephone calls, this well intentioned scheme will not work. Frankly, the result will be yet another interference with public safety that is unjustified. That is not something that can be dealt with in legislation.
However, just like the committee in the Commons did, once they had considered this bill, they passed -- and I am sure you probably are aware of it -- a second report dealing with issues arising out of the Feeney case. Theirs dealt with a question raised by someone this morning. That is to say, how was the Supreme Court able to issue this decision without any notice to the Crown that they were actually doing it? We raised that with the Commons committee.
We urge you to consider the importance of the administrative backup, if you will, of this system of tele-warrants being in place. To repeat, if that is not there, this regime contemplated by Bill C-16 will not work.
We urge you to pass the bill.
Senator Nolin: I have one comment to make. We have to go to the chamber. However, we will be back. Please feel free to make all the comments and all the recommendations you want. We will take the week, if we need to take the week. However, we will make a decision.
Senator Gigantès: My comment is that we are under a severe time constraint. However, the issues you want to raise as a citizen are issues that you can ask us to raise on another occasion and ask us to study and even report upon them. The Senate is here for that. Right now, we do have this December 19 corset.
Mr. Newark: Having weighed those issues as well in the context of the corset, senator, it was clear for our association representing front-line police officers that getting this legislation passed was the most important priority.
Senator Gigantès: That is why we wanted you to stick to the points rather than to discuss the other issue, a very important issue, of the relation between Parliament and the court.
Senator Nolin: You have referred to chaos. I think it would be proper for us non-police officers to have explained to us how the situation worked pre-Feeney, as well as how it has worked since then and during the limbo period. What will Bill C-16 give you as tools or problems?
Mr. Newark: The law in relation to arrest with or without warrant was a combination of enactments by Parliament in the Criminal Code, as well as the common law.
In the early 1990s, the Supreme Court had even drawn the attention of the world to the fact that there was no specific legislative authorization in relation to the fact situation of arrest without warrant in a dwelling-house. No legislation was enacted to deal with that specific situation and, as a result, when the Feeney case made its way to the Supreme Court of Canada, that is the factual background which existed. There was no legislative direction from Parliament about this fact situation.
It is perhaps more helpful to view the Supreme Court's law-making, if I could use that phrase, in that context. There has been a legislative vacuum, and the court has essentially said, "Well, this is what we think should be the case." One of our recommendations is not to leave those legislative vacuums where there is, in fact, a clear parliamentary intent. You must determine what that intent is and then move on and actually pass the legislation because it is preferable that that be done here rather than just down the street.
The real problem comes from the perspective of actual efficiency and public safety because the ill-defined terms in the Feeney case create circumstances where police officers would not be able to do what they had always done, which is to go in and arrest people, not on a random basis but on grounds specified by the Criminal Code, without obtaining an additional judicial approval. The real reason was not that people had a disinclination to talk to judges or JPs but rather the delay which would necessarily be involved and which could compromise the safety of individuals inside the dwelling-house as well as evidence.
The Feeney case included some remarks about the requirements on police officers to give notification prior to entry. One of the best aspects of the bill is that it is a far more practical and reasoned analysis of what is required. Literally, at least in our judgment, the decision of the majority written by Justice Sopinka would have put police officers and public at risk if we complied with it to the letter. The basis of the approach is to recognize that there will now be an additional judicial stamp of approval, if you will, where the arrest is contemplated in a dwelling-house. You can get it at first instance when you apply for the arrest warrant, and I think the practical effect of that will be to get police officers to change the way they record information on a file. We will need a little separate entry for residences linked to the suspect. When you go to get that warrant in the first instance, you can list multiple residences, for example but must know what they are. When someone fails to appear, you would have the information listing those residences. That is not something which is done traditionally now and, if we are to comply and make maximum use of Feeney, we will be required to do that.
Senator Nolin: Are you indicating that you can have multiple dwellings referenced in one form?
Mr. Newark: Yes, and that is the minister's view as well. I can tell you that from conversation and from her evidence before the house below.
Senator Nolin: That was one of the questions raised in the other place. We will hear from the department on that.
Mr. Newark: In fact, we asked if some members might ask the question of the minister.
The best summary I can put on it is that, as Chief Ford put it, there is once again more bureaucracy to go through, if you will. We are all seriously concerned that what tends to happen is either the court or Parliament enacts an administrative scheme and does not put in the resources to be able to deal with it, leaving it to existing police managers to figure out where to come up with the resources. Bill C-16 is better than what arose from the Feeney case, and that is generally why we are asking you to pass the bill.
The Chairman: Mr. Newark and Mr. Ford, what is your perception of what would happen if we do not pass this bill in time?
Mr. Ford: Clearly our police officers would not know what to do or how to proceed in a particular case. As it stands now, if this bill is not passed, what are we to do when we go to arrest a person? There is no process in the law for us to follow. Unless the Supreme Court gives another extension, it will be chaos. Crown attorneys will not know what to do. The other side of that coin is that a good number of cases, very serious cases including murder cases, could be in jeopardy because we do not have a legal process to follow. It is critically important that we have a legal process to follow in the absence of any extension by the Supreme Court.
Mr. Newark: The Supreme Court of Canada told police officers to follow a legal process that did not exist. That is the best way I can put it. Then they said, "We will give you a deadline." They turned around, looked up the street to Parliament, and said, "We will give these people a deadline to create the process; and if they create the process, they will back-date the effect of it to the date they made the decision." That is how serious it is.
Senator Gigantès: They had no other choice.
Mr. Newark: I would like to get into a debate with you about that some time.
Senator Gigantès: Once they decided that what was occurring was wrong and unconstitutional, they had no other choice but to say fix it any way you like or allow the chaos. It is up to you, but make the decision by a certain date. They gave us two extensions.
Mr. Newark: It would have been nice if they had asked for argument from the people directly affected before they decided to do what they did, which is one of the things that is contained in the committee brief. We suggested amendments to the Supreme Court Act which would have made it impossible for this form of ambush to occur in the future. That was not accepted by the committee.
Mr. Vince Westwick, Legal Advisor, Law Amendments Committee, Canadian Association of Chiefs of Police: If it comes to pass that the bill is not passed and the extension is not renewed, police officers are damned if they do and damned if they do not. If they follow a Feeney-like situation, the Supreme Court has already been very clear on the unconstitutionality of that. If for example a police officer, prudent and cautious, were to approach a judge and seek some kind of a warrant, that will likely be used as evidence against the prosecution in the trial, regardless of whether or not a judge were inclined to issue a warrant that was vague in law. So, it would be a very awkward situation to be in because no one in the system, not only police officers, but judges, prosecutors, judges issuing warrants and trial judges, will all be very unsure of what the grounds are.
The result of having uncertainty in a criminal trial is that there is an acquittal. That is clearly not in the public interest. Therefore, it is not merely an inconvenience and trouble for police officers; it has a very serious public interest aspect to it.
Senator Moore: Mr. Newark, do you have a copy of the report of the Standing Committee on Justice and Human Rights from the House of Commons?
Mr. Newark: Yes.
Senator Moore: Are you aware of the recommendation at the end of that report, the section that is in bold?
Mr. Newark: Yes.
Senator Moore: Is that what you were referring to vis-à-vis providing some type of a mechanism so that things do not drop between the chairs in the future?
Mr. Newark: In the brief, page 14, as an amendment to the Supreme Court Act -- we actually drafted it in our discussions with the Department of Justice as a draft bill. This would have been the last section that would have amended the Supreme Court Act. This is the beginning of the same thing. We went a bit farther and gave the specifics.
Senator Moore: Maybe it is a recommendation that we make outside of whatever we agree to do here.
The Chairman: Recommendation of the same thing that the House of Commons ---
Senator Moore: Yes, that might be useful.
The Chairman: It might be something we should look at, yes.
Senator Gigantès: We can repair things. You may remember that it was much easier before the amendment to the Criminal Code to use the drunken defence. I am the proud author of this. It started in the Senate so you may come to us and say things do not work this way and we can do something about it. It is not perfect. It can still be tightened up. That is all we could get the lawyers in the Justice Department to accept.
I wanted a new offence entitled "dangerous intoxication". In that case, if you say, "I beat the bitch because I was drunk," you then confess to being guilty of dangerous intoxication.
Mr. Newark: I am familiar with all of the background of it.
Senator Gigantès: We in the Senate listen to you and do things for you. Right now, we have to pass this bill, period.
The Chairman: Senator Gigantès is firmly on your side. Thank you very much for appearing before us.
The committee suspended.