JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND LEGAL AFFAIRS

COMITÉ PERMANENT DE LA JUSTICE ET DES QUESTIONS JURIDIQUES

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, November 5, 1997

• 1541

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Welcome back. I see we have one new member again today. Thanks for coming.

There are a couple of things that I want to clarify first. I think, Mrs. Caplan, you had a request.

Ms. Elinor Caplan (Thornhill, Lib.): Yes. Thank you very much.

With me today is Catherine Kuntz, who is participating in the Take a Student to Work program, and I wondered if it was acceptable to all members of the committee if she actually had the chance to sit at the table, if there is a chair available. It appears there is.

Some hon. members: No problem.

The Chair: Great.

Ms. Elinor Caplan: I'd like to introduce Catherine to the committee.

The Chair: Welcome, Catherine. I hope you feel suitably singled out now.

Some hon. members: Oh, oh!

The Chair: We also have with us a group of teachers. I'm going to say that with no editorial comment, although I hope there are some here from Ontario.

We have the Teachers' Institute on Canadian Parliamentary Democracy, who were introduced in the House today and who are here learning about the workings of Parliament. They can stay with us until about 4.30. They don't want us to think they're being rude when they leave. Obviously they've never been here to see us come and go.

We want to welcome you. We're glad to have you here.

Because they're here and because of a request from that group, I'm going to ask the members of the committee to introduce themselves by riding, and if they have a title, by title.

I'll start. My name is Shaughnessy Cohen, and I'm from the centre of the universe, Windsor—St. Clair, in Ontario. I chair the justice committee.

Jack.

Mr. Jack Ramsay (Crowfoot, Ref.): I'm Jack Ramsay. My riding is Crowfoot. I'm from Alberta. I'm the chief justice critic for the Reform Party of Canada.

Mr. Chuck Cadman (Surrey North, Ref.): I'm Chuck Cadman. I'm from Surrey North, British Columbia. I'm an associate member of this committee. I'm also an associate justice critic for the Reform Party.

[Translation]

Mr. Richard Marceau (Charlesbourg, BQ): I'm Richard Marceau and I represent the riding of Charlesbourg for the Bloc Québécois. I am the critic for the Solicitor General.

[English]

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): My name is Peter MacKay. I'm the Progressive Conservative justice critic. I'm from Pictou—Antigonish—Guysborough, which is in Nova Scotia.

The Chair: Mr. MacKay is also the Conservative House leader.

Ms. Elinor Caplan: I'm Elinor Caplan, the member from Thornhill. I'm subbing in at this committee. I'm not a regular member; I'm here replacing Eleni Bakopanos for this session.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): I'm Derek Lee from Scarborough—Rouge River.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Andrew Telegdi, Waterloo, Ontario.

Mr. John Maloney (Erie—Lincoln, Lib.): I'm John Maloney from the riding of Erie—Lincoln, which is in the Niagara Peninsula in Ontario, and I'm with the justice committee.

The Chair: Also, at the front of the room with me are Marilyn Pilon, who's from the Library of Parliament and one of our researchers; Phil Rosen, who's the senior policy analyst for this committee; Luc Fortin, co-clerk of the committee; and Roger Préfontaine, our other co-clerk.

Over here, I don't have names.

Mr. Jean-Louis Lauzon (Committee Messenger): Jean-Louis Lauzon. I'm a messenger at the House of Commons.

Ms. Géraldine Valiquette (Committee Receptionist): Géraldine Valiquette. I'm the receptionist.

The Chair: And at the back we have our interpreters, behind glass, and our console operator, who makes sure that the lights are on when we forget and that they're off when we forget. Sometimes we have some interesting conversations, forgetting that these lights are on or off.

We also have Gurbax Malhi, who is from Brampton and is also a member of the committee and chair of the Library of Parliament committee as well.

Our first witness today is Steve Sullivan. Steve, I'll let you introduce yourself.

Mr. Steve Sullivan (Executive Director, Canadian Resource Centre for Victims of Crime): Thank you, Madam Chair. I'm with the Canadian Resource Centre for Victims of Crime. We're a national advocacy group on behalf of victims across the country.

I want to thank the chair and the committee for allowing me to be one of the few witnesses who will actually have a chance to speak to the bill as you examine it. I know we heard a lot yesterday about the process, and I expect you'll hear a little bit more about it today.

• 1545

To begin, I don't normally take the time to justify our presence before this committee. In a general sense we have an interest in anything that affects public safety. Of course, as I'm sure you will all agree, anything that affects the police's ability to do their job affects public safety. We have a concern in that. But not being a police officer or a crown attorney or a constitutional expert, you may be wondering what I'm doing here.

I'm here to talk about someone whose name you may not have heard yet, if you haven't read the actual case from the Supreme Court, or a name you haven't heard at these hearings and may not hear at these hearings. That's Frank Boyle. Frank Boyle was the 86-year-old man who was beaten to death in his own home. That was where this case started, not with the Supreme Court of Canada's decision.

It's important that you keep in mind a little bit about Frank Boyle as you go into these deliberations and this process. Frank Boyle was a quiet man who went to church every Sunday. He took the time to feed the squirrels and the birds outside his home in Likely, B.C. He would deliver groceries to his neighbours who couldn't get around as well as he did. He took time out of his own schedule to repair broken toys and deliver them to children in hospitals at Christmastime.

Frank Boyle was a good man. I can say that with some authority, because I actually had a chance to meet with Mr. Boyle's family this summer. I met with Richard and Leona Heard. Richard is Mr. Boyle's stepson.

The purpose of the meeting was to attempt to answer the questions they had about this process. Please keep in mind that while we're just now dealing with this, Frank Boyle was actually murdered in 1991. Over the past six years, Mr. and Mrs. Heard have gone through preliminary hearings, have gone through trials, have gone through appeals, and then actually travelled to Ottawa for the Supreme Court hearing.

I know we talked yesterday about the inconvenience that we as witnesses have sometimes in preparing briefs rather quickly, perhaps the inconvenience the minister may think she would have if she went to the Supreme Court once again and asked for an extension, and the inconvenience of the court's decision in itself. But we could all take a lesson about inconvenience when we look at what Richard and Leona Heard have been going through for the last six years.

So when we talk about process and taking our time to do this, they spent six years waiting for justice, and they're going to have to begin this process anew as Mr. Feeney is once again going to have to go through the process.

In a general sense, that's why we're here: to talk about Frank Boyle, to make sure that when you go into your deliberations, you remember who Frank Boyle was.

Last week the Department of Justice gave a short debriefing of the bill. I went back to my office and called Mr. Heard and explained to him what was going on. I promised to keep him informed.

When we met this summer, we went through the decision and what the Supreme Court's reasoning was. The major question that Mrs. Heard kept asking me was, “What about the truth? Doesn't the Supreme Court care about the truth?” What about the evidence the police gathered? Whether they violated rights or not is debatable, but what about the evidence they gathered? Doesn't that matter? Shouldn't it matter?

That's one of the few times when I sit down with a victim and don't have an answer. I can normally give some kind of answer, but there is no answer. The truth didn't matter in this case. It was hardly even mentioned in the decision. If you have time to read the decision, you'll see that.

I went back last week and called Mr. Heard to keep him updated on the progress of the situation. I went over the bill with them. He agreed that it was a good bill and it addressed most of the concerns that the Supreme Court had.

Later on that afternoon, Mrs. Heard actually called me from her hospital bed. She's recovering from surgery. I went over the bill with her and she had the same sentiments. The two things she said to me were “Make sure they do it right” and “Make sure it works”.

The first thing refers to the process. We heard about that yesterday. There was a vote on whether or not the minister should be asked to once again go to the Supreme Court and ask for another delay of this decision.

When you have bills before you that deal with public safety, you need to take the time to make sure all the questions are answered. I know I'm not a police officer, but Mr. Newark and Detective Sergeant Jessop yesterday raised serious questions about this bill and about what the effect of it would be on their ability to do their jobs, and I suspect you'll hear similar questions from the CACP about this bill.

If you pass this bill without answering those questions, you are doing a disservice to Canadians. For those who think that because you had consultations prior to this, you don't need to do that, let me remind you of another bill that was fast-tracked through this committee and this process. That was Bill C-45, which dealt with amendments to section 745. I think there was probably a day or two days of hearings for that.

• 1550

One of the things that bill did was take away the right of victims to present victim impact statements. We appeared before this committee and the victims' groups raised that question with this committee, and we were told not to worry, because it would be looked into. It wasn't. That bill passed and it took away a right that this government gave victims only months prior.

That's been fixed in another piece of legislation, but the point I'm trying to make is that when you fast-track bills, when you pass them as quickly as this bill is probably going to be passed, you may miss things and you may have to go back and fix them. The problem with that is you put people like Richard and Leona Heard through hell when the mistake comes to light. So I will ask you again if you will please take your time and do this right.

The second issue Mrs. Heard was trying to get to was, whatever happens in this room, whatever bill you pass, make sure it's actually going to work. I think Mr. Newark raised some questions yesterday about practical things that police have to be concerned with. One of them was, when a police officer is on the scene and has a warrant to enter someone's house but doesn't have prior authorization not to make an announcement to go into the house, does he or she then have to go and get that authorization? I don't know that the question is clear, but it's something that needs to be addressed for police officers who are on the scene.

Remember, the police don't have six years, as did Mr. Justice Sopinka. It's not six years after the fact. They're not 2,000 miles away from the scene of the crime, years later. They're dealing with it there and then. They have to worry about issues such as public safety and accountability. Remember the police don't have the amount of time the Supreme Court has.

Some of the issues raised in the brief were covered yesterday by Mr. Newark. The one issue I would raise—and I raise it because I don't know the answer—is the issue of hot pursuit. I know in the decision there was mention of the issue of fresh pursuit. I think we all know what hot pursuit is—it's when you're chasing someone and they go into a home—but what about fresh pursuit? Madam Justice L'Heureux-Dubé referred to it and used the words “the police were in continuous and direct investigation”.

This took place, not weeks after the murder, but it was literally hours after Mr. Boyle was murdered that the police identified a suspect. They were in fresh pursuit. That may be something Parliament may wish to speak on. If you leave it up to the Supreme Court, we all know what's going to happen, or what possibly might happen.

As you're entering this process, it's important to really understand what the result of this decision was for the policing community. I'll refer you to page 4 of my brief, in which I take a section from a letter that was written by a young lady from Kitimat, B.C. Her brother was one of three individuals who was shot to death this summer.

There were actually four people shot. The final individual survived and identified a suspect, and police actually went to this individual's house. They knew where he was. His truck was parked outside, so they assumed he was in the house.

Not knowing what they could and could not do because of the Feeney decision, they waited and got all the paperwork in place and got authorizations and all that. When they finally went into his house, he wasn't there, and to this day he has not been apprehended. The point was they wasted valuable time because they didn't know what they could and couldn't do.

As you talk about this bill and debate the issues, you should understand the effect of the Supreme Court's decision, what it did. Actually Sandra would have liked to have appeared before you if there had been ample time to do so.

Finally, I want to touch on something that Detective Sergeant Jessop touched on yesterday in his speech, and probably a lot more effectively than I ever could—a lot more bluntly anyway—and that's really what's going on in this country with the Supreme Court of Canada.

Mr. Jessop used some very strong words. To quote him, he said “Canadian police officers are tired of the Supreme Court”. I'd go a little bit further. I'd say the Canadian public is tired of the Supreme Court, tired of situations that they continually put Canadians in with no regard for what the effect of their decisions will be.

Perhaps the only other group that has been more affected by the Supreme Court's decision is sexual assault victims, and this government actually had to pass two bills in the last session of Parliament to address decisions by the Supreme Court affecting sexual assault victims.

The broader issue is, who is running the country? We elect you to do that. We elect you to make law, not the Supreme Court.

Finally, what I want to leave you with is Mrs. Heard's other remark: “Make sure this bill's going to work”. That means if you pass it as is, the police need the tools to do their job.

• 1555

Yesterday Mr. Newark talked about, and I think the minister addressed as well, making sure that in the middle of night, when the police are looking for that warrant, there's someone on the other end of that phone who will give them authorization to do so. In some communities there is no one. I guess it's a question of whose responsibility it is. I think you need to weed that out. Is it the minister's responsibility or is it a provincial responsibility? Those are questions that need to have answers.

This process is unfortunate. I know there are certain time constraints placed on us by the Supreme Court. It seems as though they have us hostage here. There is a solution, of course, and the minister seems reluctant to take it, but I think this process requires the proper attention. We owe it to Frank Boyle to do so.

In closing, I want to read a quote I took from a speech Madame L'Heureux-Dubé gave to the Canadian Criminal Justice Association. I think it sums up her dissent rather well:

When an attacker or a murderer is acquitted in the name of the regularity of the criminal process, it is not only past victims who are ignored, but also future victims who are sacrificed...Perhaps it is time to recall that public respect and confidence in the justice system lies not only in protection against public abuse but also in the system's capacity to uncover the truth and assure that, at the end of the day, it is more likely than not that justice will have been done.

Justice wasn't done in this case. I think you have an opportunity now to address a bill that will prevent future situations like this. I just hope you will take the time to do it and answer the questions that need to be answered.

Thank you, Madam Chair.

The Chair: Thank you.

I'm going to start with five-minute rounds. Mr. Ramsay.

Mr. Jack Ramsay: Mr. Sullivan, I want to thank you for being here and for presenting a written brief to us on such short notice.

We have to wrestle with some decisions as well, because we're very much opposed to rushing bills through before we hear witnesses from both sides. Regardless of our own personal positions on issues of law, experience has taught us, certainly me, that if we don't have people with vested interest and experience on both sides of an issue expressing their viewpoints, we cannot be assured when we get done with the bill that the bill is going to stand the scrutiny and the heat of day.

So we have agreed to meet the deadline if we can. We've agreed not to interfere with the deadline that would cause a real problem if the Supreme Court of Canada didn't extend the six-month suspension of their order. So we are faced with a dilemma. Do we insist...and we can, because all we have to do is withdraw our approval to move this bill through, waiving the 48-hour requirement that's there from the time we finish with a clause-by-clause, which is going to be tonight, and when it appears in the House for report stage?

We have to weigh that, is in the best interests of the people and the public. We are getting to a point where not only can we not rely with confidence in the laws we're passing, because of decisions like this, but this kind of a process also leaves us in doubt as to whether or not we have the best possible bill because we've not had witnesses who can expose to us weaknesses they may see in the bill, or know are there, because of their own personal experiences.

So we're very aware of the comments you've made, and we're concerned about that. We would like to have witnesses here. We had a list of ten, a short list to accommodate the time, but I think we're going to get four. If we get more than that, we'll be fortunate. So we have to hope that we can get answers to technical questions and other questions from the witnesses that will be available. We'll see whether or not we are able to do that.

I ask myself now, what question can I ask you that will help us with this bill? I think the only question I can ask you doesn't have too much to do with the bill. It has to do with what appears to be a growing lack, or loss, of faith by the people of Canada in not just our justice system but our courts as well.

• 1600

I was disturbed but perhaps not surprised when the Angus Reid poll in July of this year indicated that 52% of Canadians have little faith, not in the justice system, but in our court system. When they say “in our courts”, that means our judges and the decisions they're making, decisions that people weigh and look at and try to understand, perhaps like the Supreme Court of Canada's decision on the Feeney case, which shocked everyone in law enforcement and in the justice system and caused reverberations that we now are trying to silence through the passage of this bill.

You deal with victims. You're dealing with people who never get an opportunity to appear before the committee, the average individual who's been subjected to a violent crime or simply a crime. What would you like to leave with the committee concerning that issue? Maybe we're so close to it that we sometimes lose our objectivity. What do you feel is happening in our society with regard to the faith of our people in our justice system, particularly our court system?

I recall reading statement after statement submitted in case law rendered by the Supreme Court of Canada, and they emphasized over and over the need to maintain that faith of the public in judicial independence of the judges and so on. Would you like to comment?

Mr. Steve Sullivan: Yes. I have a couple of comments.

With respect to your comments about the position you find yourself in, and whether or not to support the bill and see it fast-tracked, I guess it would be an easier decision to make if you knew whether the Supreme Court would give you the extension. At this point we don't know, so I understand that everyone is in a difficult position because of not knowing what the Supreme Court might do.

With respect to people's confidence in the justice system—or maybe lack of confidence is a better term—I think the minister described this in one of her first speeches she gave as minister, to the Canadian Bar Association, I think. She talked about how people are losing faith in the justice system. We can see that, I think.

Statistics are often difficult to interpret, but last year we saw a drop in the number of sexual assaults that were reported to police. One can interpret that as good news and say that we've had fewer rapes. The other interpretation could be that sexual assault victims see what's going on in the courts; they see the Supreme Court giving a decision like Daviault, that if you're really drunk, you're not a criminal and you didn't commit rape because you were too drunk. The government had to address that issue in a bill and essentially overturned it.

Again, I think it was in R. v. O'Connor, if the defence asks for the sexual assault victim's or complainant's personal medical records, they may get them. When victims, sexual assault victims in particular, see that, they question whether it's worth going through the system. And I think when they decide not to, we all lose, because justice isn't being done.

We've seen that recently in Toronto with a man who came forward years after he and a number of young people were abused. When he saw that the court sentence of the man who had admitted to hundreds of counts of sexual assault, I think, was two years less a day, he jumped off the bridge and killed himself. When people see that, they lose faith in the system. And when they lose faith, we all lose, because people don't turn to the system and we have fewer dangerous individuals being taken off the street.

A decision like this one, for example, when people read about this and see that there was no question about this person's guilt, that there was no question about who murdered Frank Boyle, and see that the truth never even entered into the debate.... I don't think Justice Sopinka mentioned once what the truth was. He criticized the police for this litany of abuses that he claimed took place, but never once criticized the murderer.

We could talk all day, I think, about people's loss of faith in the justice system. It is a very serious issue; it's not just a question of people not being happy with it. When they lose faith in the justice system, they won't turn to the justice system when they need it, and that creates a dangerous situation. Vigilantism has happened in this country. It's not something anybody wants or wants to see or encourages, but unless the system starts to address those concerns, I think it's going to continue and the loss of faith is going to continue to grow.

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The Chair: Thank you. That was eight minutes and 22 seconds, over five minutes of which was your question.

Mr. Jack Ramsay: Five minutes?

The Chair: Five minutes and fifteen seconds. I have the clock.

Mr. Marceau, I'm sure you will be much more prompt.

[Translation]

Mr. Richard Marceau: Madam Chair, you know I'm always brief. I will try to bring the discussion back to the bill, but first I would like to point out that I have received a brief written in English only and I find that most unfortunate for those who speak only French.

I know that Mr. Sullivan had little time, but it demonstrates once again the political situation we find ourselves in. That being said I have two or three brief questions for Mr. Sullivan.

To begin, let us go to page 6 of your brief. I will read from the second paragraph:

[English]

This causes some concern since reasonable grounds is a high standard....

[Translation]

First I would like to know if you consider that to be to high a standard and, if so, what would you like to see in its place. Would you allow a peace officer to enter dwellings without having "reasonable grounds to believe"?

I feel the question is important because we are trying to protect citizens. Of course, victims' rights are important, as are the rights of society has a whole. But in this country there are also some fundamental rights and freedoms. I would like to know what would seem reasonable in Mr. Sullivan's eyes and who would ensure the good management of peoples' rights and freedoms.

I will ask all my questions now and you can answer after.

My second question is on the following paragraph. In the bill, the government spells out those exigent circumstances where no warrant would be required. The government took the trouble to give a non-exhaustive list by using the word "include" and I wonder if, in your opinion, it wouldn't be to dangerous to grant to much discretionary power by allowing someone to decide whether the circumstances are exigent or not.

And here is my third question. On page 7, third paragraph, you say:

[English]

The police officers involved in this case should be commended for being concerned first with public safety. The Supreme Court of Canada should take a lesson from them.

[Translation]

Once again, following your logic, is there now a danger that we might upset the delicate balance we are trying to obtain, for the good of individuals, between the powers of the State on the one hand and the rights and freedoms of individuals on the other?

I think I'm under five minutes.

[English]

Mr. Steve Sullivan: To begin, I apologize for the brief not being en français. As you mentioned, the time constraints that were placed on us and on other groups didn't really allow for that. As to the other comment, on the side, what I come to when I hear that is if the biggest concern is the language of the brief when you're looking at this case and these issues, that causes me concern.

However, as far as your questions go, as to reasonable grounds before entering a dwelling house—keeping in mind, of course, that I'm not a police officer or a crown attorney, and I made those comments when I started—I question the logic that when you require police to go get an arrest warrant, then you require them to go get an authorization for entry. What are reasonable grounds to know if someone's in the house? For example, in the case I referred to earlier in the brief, the person's truck was there. Would that be reasonable grounds? I raise that because I don't know. If someone went to the door and asked for Joe Blow, and the individual answering the door said he wasn't there, would that negate any reasonable grounds that the police thought they had?

• 1610

I raise those issues because I simply don't know what the requirement on police is. If you know, and if you're satisfied that it is met by this bill, then that's good.

The second point is about exigent circumstances and the fact that things are not limited to the two examples they've given. I think what the department has done is leave it open for court interpretation to ask if there are other circumstances that police can use. I look at this case, and I don't think we're going to see too much abuse of that discretion. I guess it's debatable whether or not there was abuse of a discretion in the first place.

If the Department of Justice had limited it to just those two, I think there would be conceivable circumstances that we may not be able to talk about or foresee at this table, and that would not allow police to go on when they need to. I think it's important that it wasn't limited to just these two circumstances.

Finally, as far as the balance goes between the interest of police to go in to arrest suspects—which is also a public safety issue—and the right of citizens to have privacy in their own homes, number one, privacy is useless if you don't feel safe in your own home; and number two, I think this bill strikes that balance.

The Department of Justice was faced with a decision from the Supreme Court, and I think it drafted a bill that overall sets the balance that is there between privacy interest and public safety interest. And when I say the Supreme Court should have taken a lesson from the police with regard to public safety, I think it's justifiable that the police put public safety first because the police, when they're there and have a murderer on the loose, don't know what he's going to do next.

The Chair: I'm going to have to get back to you, Mr. Marceau. I want to make sure that everybody gets an opportunity at least once.

[Translation]

Mr. Richard Marceau: We have five minutes each and I only used three. I would like to make just one short comment.

[English]

The Chair: I know it's question and answer, and I'll try to get back to you.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Madam Chair.

I want to extend our greeting as well, Mr. Sullivan. We appreciate it that you came on short notice. From your remarks, this is obviously something that you feel very passionately about. I think victims certainly have a good advocate in you.

I'm not going to take up much time with a preamble to my question, but I also just want to put on the record that I share your concerns and the concerns of others around this table with respect to the process itself being hurried along. I also take to heart your remarks, as I did yesterday with Detective Sergeant Jessop's, in relation to the responsibility that parliamentarians have to take by taking a lead role with respect to the administration of justice in this country.

I think your comments with respect to the loss of faith in our justice system and our courts could be extended to Parliament as well. Again, this is why I have grave concerns about putting through a bill basically at the gunpoint of the Supreme Court, and doing so in such a way that it may be flawed. Are we to hurry this bill through and have the same thing happen at some court level in this country, where again there is an interpretation put on a search, where evidence is excluded, and we wind up having to go through this process again? We should be very concerned about doing it right the first time.

Since you are coming from a background with respect to representing victims, I'd be very interested to hear your comments with respect to the funding aspect. You've mentioned that with respect to victims and their input into the system—and I think victims have come a long way in recent years, and I would hope you would agree, but I think there's still certainly room for improvement there—there's an indication that this bill is not going to address that problem. There is certainly no mention throughout any of the proposed sections that there will be improved funding for the availability of justices to ensure that 24 hours a day, seven days a week, police officers are going to have access to warrants.

• 1615

I would like to hear your comments on changes that you foresee or changes you would like to see in the area of victims' rights as they pertain to their participation in the process and, more specifically, their ability to have their say in court.

Mr. Steve Sullivan: The issue of funding is an important one, because when I spoke to Mrs. Heard, who was the victim's daughter-in-law, she said, “Make sure that whatever bill they pass is workable”.

I think what she was referring to is that, whatever scheme is set forth, police officers should be able actually to do their jobs. That requires—and I think you mentioned it—24 hours a day, seven days a week access to judges to get this authorization.

In her comments yesterday the minister indicated that there will be no funding coming from the federal government. Mr. Newark raised the issue that he thought that funding should come from the government. I don't know whether it should or it shouldn't, but if the federal government is going to pass a bill that says that police have to do this it is incumbent upon them to make sure that the police can do it.

That requires either that they pay out of their own pocket—frankly, I don't think Mrs. Heard or the victims really care where it comes from—or that they work with the provinces and make sure before they pass this that police can do this.

As for victims of crime in general, they really have come a long way. I noticed that this summer when I was in British Columbia for the Clifford Olson judicial review hearing. I saw the difference in the way the victims were treated. They actually had a voice, and their opinion was considered by the crown. They have come a long way.

They've come a long way as far as legislation being drafted is concerned as well, and having an opportunity to have input into that.

I fully expect that Mr. and Mrs. Heard would have been here today if they could, if Mrs. Heard wasn't in the hospital. I hope that I have represented their sentiments appropriately.

Victims and victims' groups have had in the last number of years an incredible opportunity to have their voice heard at this process. I hope that will continue.

I recognize your concerns about the process of this particular bill, and I certainly share them.

Mr. Andrew Telegdi: My questions were pretty well asked, but I am somewhat concerned about the blanket condemnation of the courts.

It was mentioned before that it's very important for the courts to maintain the respect of the public. I have no problem with picking specific issues and elaborating on them and in some cases, if need be, fixing them. But to put out a blanket condemnation I think undermines the courts themselves.

We cannot as a society have a situation where we judge the effectiveness of the courts on the basis of headlines or newspaper stories, although this often gets done.

I say that because there has been ample research, particularly by Dr. Anthony Doob of the Centre of Criminology at the University of Toronto. He actually took the public's perception of the judicial system with two separate groups, one group receiving the newspaper stories regarding the case and the other receiving the actual transcript of the case. It was found that the public was much more agreeable with the way the case was handled and the way the sentencing was done in cases where they had the benefit of the transcript versus in the cases where they had only the media accounts.

Certainly the courts will make mistakes, and it's our job as parliamentarians to come up with solutions to it. But I am worried because you expressed a concern; you were talking about fearing the breakdown of the system and vigilantism coming to the fore. We try to be fairly specific when we say that the courts made a mistake so we can at least deal with that particular issue instead of issuing a blanket kind of condemnation.

• 1620

But my question was raised, Madam Chair.

The Chair: Mr. Lee, there are two and a half minutes left on the government side.

Mr. Derek Lee: Thank you.

Mr. Sullivan, I've heard your approach to the bill, and I've listened closely. I have a tendency to be more technical sometimes than some witnesses want to be, but for the sake of getting it on the record, I'll put this to you.

We have a warrant issued to a police officer who is about to go in, with back-up, to a row of townhouses—one unit right in the middle. You knock on the door, you make the announcement, you're about to go in—under this new legislation you're all ready to go in—and you say “It's us, we've come to get you”. The person on the inside says “Well, you can't come in because he's just run out the back door and he's gone”.

As I read this law, you can't enter unless you're sure he's in there, so if you're told at the door that the accused has run out the back door, you can't go in to get him or run through to get him. It's a row of townhouses and you're sitting on Oak Street helpless—unless you have a helicopter or someone can do a pole vault over the row of townhouses. Do I have that right?

Mr. Steve Sullivan: That's one of the issues I tried to raise in the brief, about having that reasonable grounds to enter, or reasonable grounds to believe that the person is actually in the house. If someone at the door tells you he's not there, do you then have reasonable grounds? I don't know. I raised the question because I don't know the answer. You probably can't go in.

Mr. Derek Lee: It might be stupid to go and arrest somebody without having somebody at the back door, but that's another issue. I just wanted to ask that for the record.

The Chair: Well, God knows there have been lots of attempts to legislate stupidity, Mr. Lee. Thank you.

I understand that Reform has no other questions. Mr. Marceau wanted to ask a brief supplemental, so I'll let him do that.

Mr. Peter MacKay: Did I have any time left, Madam Chair?

The Chair: I just whacked past you. I thought you only had one question.

[Translation]

Mr. Richard Marceau: I would like to make one short comment to Mr. Sullivan although it is not in my habit to waste time on such things.

Mr. Sullivan has come today to tell us how important it is for Parliament and for members to take the lead in bills such as this one. Then he tells us that 25% of the population does not understand, that is 25% of victims and 25% of police officers and it is not important. I find that unacceptable and wanted to say it for the record.

[English]

The Chair: Thank you.

Did you have a supplemental question, Mr. MacKay?

Mr. Peter MacKay: It's more a commentary on the issue of section 1 in these charter challenges. It was raised yesterday—the issue of when something like this comes up in a decision of the Supreme Court that is going to affect an entire section of the Criminal Code—in essence, strike down the arrest provisions, the issue of notice the Supreme Court might give and allow the crown to then intervene and have a say, at least at that particular instance.

As well, when it comes to the issue of bringing the administration of justice into disrepute, of which the charter speaks, and which you referred to in your comments.... I guess as an overall comment, something as common sense and as fundamental as a person walking away from a murder charge—I don't think there's anything in this country that brings the administration of justice more into disrepute.

I would invite any comments you might have on those areas.

Mr. Steve Sullivan: I agree wholeheartedly. I think certainly the dissenting opinion in the case was a little more based on common sense. I think in her speech to the Canadian Criminal Justice Association Madam Justice L'Heureux-Dubé echoed the sentiments you just expressed.

Mr. Justice Sopinka makes the comment:

Any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society which is governed by the rule of law.

I don't see any justification for letting Michael Feeney walk away from murder.

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The issue of police abuse of power is an important one. It's one we have to continually be aware of, and one the courts have to be aware of and be mindful of when they're making decisions.

If the police don't jump through every single hoop the Supreme Court has laid out for them, does that automatically exclude the evidence, or should it exclude the evidence, in and of itself? I don't think it should. The evidence that was obtained in this case is real. It was independent of anything the police did. To simply exclude it because there was a perceived abuse of power—I agree, nothing brings the system in disrepute more than that.

The Chair: Thank you, Mr. Sullivan.

Just as a matter of record, of course, Mr. Feeney hasn't walked away from this. He is simply ordered to be retried. I think it's very important for anyone who perhaps hasn't read the case to know that.

All right. Thanks, Mr. Sullivan. See you soon.

Mr. Peter MacKay: He's walking around right now.

The Chair: He's going back to trial. He's still going to have a trial.

Without rising, I think we'll go to our next witnesses, the Canadian Association of Chiefs of Police. We have Brian McConnell, executive director; Chief Brian Ford, who is chair of the law amendments committee; and Vince Westwick, who is a member of the committee and legal adviser.

Please go ahead, Mr. McConnell.

[Translation]

Mr. Brian McConnell (Executive Director, Canadian Association of Chiefs of Police): To you, Madam Chair, to the members of the committee and particularly to Mr. Marceau, I would like to present the apologies of the Canadian Association of Chiefs of Police for not being able to table a document in French.

We usually present all our documents in both official languages but this time, given the notice—we received the call yesterday afternoon to come today—, we were unable to have the document translated. I apologize.

[English]

The Chair: Chief Ford.

Chief Brian Ford (Chair, Law Amendments Committee, Canadian Association of Chiefs of Police): I would like to concur with the statement by Mr. McConnell. We really do appreciate the need to present documents in both languages, and we feel rather unfortunate not to have had the opportunity to have the translation process in place. To have the document in both languages complements us as an association and it complements the documentation that we submit to the members of Parliament in this committee, and we do sincerely apologize for not having it in both languages. The time constraints were such that we just had to move fast, because we had a very, very narrow timeframe in which to do it.

If the chair and the members of the committee wish, we can supply shortly, by the end of this week, a copy in both languages. We would be willing to do that.

My name is Brian Ford. I am the chief of police of the police service in the region of Ottawa-Carleton, and I appear before you as chair of the law amendments committee of the Canadian Association of Chiefs of Police.

I'm here today with Brian McConnell, who has already spoken, the executive director of the CACP; and Vince Westwick, general counsel to the Ottawa-Carleton Regional Police, and also a member of the law amendments committee.

The CACP is an organization dedicated to the support and promotion of efficient and effective law enforcement, and to the protection and security of the people of Canada. The association's membership consists of five categories—active, associate, corporate, life, and honorary. The membership roll is approximately 786. The CACPs speak on behalf of executive police officers from across Canada—those people who are accountable and responsible for the delivery of law enforcement services in our communities.

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We are here today to make a submission to you on Bill C-16, an act to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings)—the so-called “Feeney bill”. We have divided up the topic. I will begin by making some introductory remarks and general comments about the bill and the effect of the Feeney decision. Mr. Westwick will present some very specific technical recommendations. Mr. McConnell will conclude with general recommendations.

I would like to begin by making a few comments about the Supreme Court of Canada. Contrary to what we say from time to time about the Supreme Court—and I think I myself made some comments about the air they breathe there—we understand that it rests with the court to interpret and apply the Canadian Charter of Rights and Freedoms. While we take no pleasure—and I sincerely mean that—in disagreeing with the court from time to time, we do feel it is right in a free and democratic society to voice our concerns on issues that arise out of the court and decisions that are made by the court, whether it be the Supreme Court of Canada or any other court. For us as chiefs of police it's not only important but our duty to raise these issues with you and with other bodies as needed at the time.

We in policing have a difficult job. We must arrive at murder scenes and other scenes of crime and try to bring some kind of order to the chaos that remains behind in these serious crimes. More importantly, we must deal with the victims, their families, and the community at large, struggling to explain to them a legal and judicial system which often appears in some ways insensitive to their concerns. What you hear from the police and victim is not disrespect but rather frustration, plain and simple frustration. It is not simply the frustration of police officers from across the country. To a large extent it is the frustration of the communities, large and small, which our members police.

I've been to community meetings since the Feeney decision and the question has been posed, what do I think of the decision and what is happening with the courts? But it's not only the Feeney decision. It's other decisions, such as the defence of drunkenness decision, which people see as what is happening. Parliament will have to rush in and pass bills to correct that situation. There is the recent decision by a court in Quebec where the justice didn't feel it was violence to hang somebody by their heels out the window. A lot of decisions like that cause frustration on the part of the community and on the part of the police.

The Canadian Charter of Rights and Freedoms is an important document, and we as an association support that document. We feel it is an important document and it's worthy of pride by our citizens and by our police services. Although we don't always agree with decisions that allow the guilty to go free in some cases, we understand and respect the larger issues the courts are protecting, the process and the fundamental rights of individuals in our country.

However, although the decision on Feeney may not fall within the Charter of Rights and Freedoms, and it may not have been exactly the way things should have been done from a process point of view, there is a test, and that is whether it will bring the system of justice into disrepute and whether it will offend the community conscience. I think those are tests that have to be kept in mind when courts are making decisions. Would this have offended the community conscience? No. Would this have brought the system of justice into disrepute? No.

I say that based on the fact that this was a very narrow decision in the Supreme Court. Nor was it a narrow decision based on the fact that the justices were very near in their opinions of the case. They were not. They were at opposite ends of the spectrum on the issue. One justice in particular commended the police for a job well done in how they handled this case. For the other part, Mr. Sopinka condemned the police. So it's one where there was quite a significant split in opinion within the court, and it went to the side which agreed with Mr. Sopinka.

I don't think one can ever say justice is completely blind, nor should it ever be. Although I realize the statue out there is like that, I still think we have to have some sort of sense that we have to impart to the people of Canada that there is a sense of justice. Concerning that sense of justice, does it offend the community conscience? Does it bring the system into disrepute? I think that has to be the test case.

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That brings about, in my view—and it has been said before, I believe yesterday by the Canadian Police Association—a problem with the competence in the criminal justice system. I believe you as lawmakers must address it. You must ask yourselves how it will advance the cause of justice if the police and citizens begin to lose confidence in our courts. And they are.

It is our opinion. We lay at your feet that frustration and we ask that you not dismiss our concerns. We're not projecting doom and gloom. However, we are saying there is a growing lack of confidence in our justice system and we ask you to think very carefully about that. There's something you can do, and we will call upon you to consider this.

When the courts make decisions like Feeney they are quick to say they only interpret the law and apply the charter. Changes to the law can only come from Parliament, the courts tell us; yet when we are consulted by the Department of Justice on new laws like Bill C-16 we are told that the law must be able to pass the charter test.

I draw your attention to the opening paragraph and preamble of Bill C-16, which says:

Whereas the Parliament of Canada recognizes that the measures provided for in this Act must be consistent with the rights and freedoms guaranteed in the Canadian Charter of Rights and Freedoms....

The argument, you can see, is somewhat circular. The courts say they cannot overrule the charter and Parliament says it must be consistent with the charter. We have faced this argument regularly over the past couple of years. We've been before this committee on numerous occasions on Bill C-17, Bill C-46, Bill C-55, and particularly on Bill C-95.

We understand the importance of the principles of the charter. We understand that a government will always be reluctant to use a notwithstanding clause, so it should be reluctant to use it. At some point, some of these matters are going to have to be addressed in a real and practical way or we will not be successful in stemming the erosion of public confidence in the legal system.

From a practical standpoint there are very real consequences to the added judicial process contemplated under these new bills. These consequences include a dramatic increase to the time, documentation, and resources within already overburdened police services across our country. The courts tell us that these are mere administrative matters and our worries about resources and practicalities should be brought to Parliament.

They are not mere administrative matters. As an administrator of police services I have to balance the ability of my resources to enforce the law on the one hand and be there to react to emergency situations on the other hand. I have to provide a community service that is partnered with all parts of the community, whether it be business or the specific interest groups within the community.

The enforcement part, the part that ends up in court, is a very small part of what we do. Yet more and more through the documentation process and the encumbrances involved we're required to have a warrant issued by a judge for the arrest of an individual and then we have to get another warrant to execute that warrant. That's how ridiculous this decision is.

Not only that, if I go to arrest somebody—you have to have somebody at the front door and you have to have somebody at the back door—now I also have to get them to wait while I get a telewarrant. There will be recommendations for this. How are we going to get somebody at two o'clock or three o'clock in the morning? It's really difficult to get a justice of the peace at two o'clock or three o'clock in the morning.

In our community 66% of the young people who come in negative contact with our organization, with the law, are not charged, because we have very strong community-based programs in here. We have very strong community-based diversion programs for adult offenders. These take time and these take resources.

I'm under pressure from my community to have community police centres in various quarters and jurisdictions within the area I'm responsible for. I like to have them there because I see the benefit. I see the benefit of a youth centre and how it reduces crime within a neighbourhood.

If there's going to be this administrative burden that's being put on officers, it's a strain on my resources. They have to get a warrant for this, they have to get a warrant for that, and there is all the documentation involved and all the time it takes. People have to wait for three or four hours while the officers get a warrant to execute a warrant.

Where do I cut? I can't cut on my reactive time. Whether it's two o'clock or three o'clock in the morning or five o'clock or six o'clock in the afternoon, people in the community want me there when there's an emergency. They want my officers there, and they have to be there.

• 1640

And they do a good job. They're out there day after day. They support the criminal justice system. It's just difficult from time to time for them to support it when they see decisions like this and see yet another thing they have to do to make sure this doesn't happen and that doesn't happen. There has to be a balance.

I have to balance my reactive and policing and enforcement side with delivery of service in a community fashion, where we can be partners with the community and work together with the community. We have 1,200 volunteers in our community alone who work with us. I have to balance all that with the ability to look after this very small facet.... And I'm trying to reduce the need for the courts to be burdened at the same time. I'm trying to save money on that side. What we do on the community side saves money in the long term.

And yes, when we come to you with this concern, we're passionate about it. We're passionate about it because we believe in what we're doing in our communities. We're saying that some people sitting in some courts sometimes see that it's just an administrative thing. It is not just an administrative thing; it's a burden. And it's a burden not at the federal or provincial level, but at the local level. We're where the buck stops. That's what we represent when we talk about the Canadian Association of Chiefs of Police. We're where the buck stops. It all falls down on the heads of the officers doing the work at the local level.

Having said that, I'm going to make the first recommendation. I know it won't pass and I know you won't do anything with it this time, but sometime you may have to in order to restore confidence. The recommendation is that the Criminal Code of Canada be redesigned so that a notwithstanding section can be created to allow for provisions to be implemented that address these very serious public safety issues and that when such issues arise Parliament can consider whether the situation is of such importance that a provision ought to be included.

It is our view that Feeney is such a case and that entry into a dwelling house in circumstances like Feeney is reasonable and logical and does not offend the balance of rights versus the protection of the community.

Please think about it. It is our respectful submission on an important point.

With respect to Bill C-16 and within the context of my opening remarks, we think the bill is about the best we're going to get. We do have some specific recommendations, which Mr. Westwick will present to you now.

Mr. Vincent Westwick (General Counsel to the Canadian Association of Chiefs of Police): Thank you.

Madam Chair, I'll present some specific recommendations, and I'll go over them quickly because the remarks and the technical points are in our brief.

I'd ask you, either now as you're listening to my comments or when you're reading them over, to put yourself in the shoes of a police officer who will be called upon to conduct his or her actions pursuant to this bill, because this is really a bill which governs the actions of police officers. That's what we're talking about here. When you're thinking about these concerns, think about them from the practical standpoint of a police officer, possibly in the middle of the night, possibly in a rural area, possibly in a situation like Feeney.

First, there is a typo here, for which I take full responsibility, but I can indicate to you that we were literally typing when the car came to get us to take us here today, so we were a bit rushed. I was somewhat heartened, though, to see that you spelt my name wrong, so I feel we're even. At the bottom of page 5, it should read 529.2, which says that you have to have reasonable grounds to obtain an authorization and that those reasonable grounds must be in writing and under oath. We take no exception to that. But in order to have reasonable grounds, in order to swear an oath, there has to be some degree of investigation, some degree of effort on the part of the police officers. Issuing judges will demand that and they have demanded that in past with respect to warrants in other areas, so we expect there will be no less demand in this regard.

Our concern with this section is the second part, what I call the ongoing demand for reasonable and probable grounds. It means that the officer, after having sworn those reasonable grounds in writing, must satisfy himself or herself that those reasonable grounds still exist just prior to executing the warrant, just prior to entering the house.

On the face of it that may seem reasonable, but, again, I ask you to put yourself in the shoes of a police officer standing outside of a door in the middle of the night, and I ask you if he or she must conduct a new investigation, or what steps must that officer take to re-establish the reasonable and probable grounds that existed when he or she appeared before the justice of the peace? In our submission, this serves no useful public purpose and will simply create grounds for cross-examination at a later date. So we would suggest to you that this section either be removed entirely, or at the very least that it be reworded down to a level of reasonable suspicion.

• 1645

The second one is at the top of page 7, with respect to proposed subsection 529.3(2), Exigent circumstances. I must admit the reason I raise this is that exigent is a word I have trouble pronouncing. It's not so much a matter of any questioning of the linguistic abilities of our police officers, who will do a much better job than I will, but I wonder whether we are creating a new term of art that the courts will then interpret, because every time Parliament puts a new term out there it creates a new standard. I suspect we may, in our attempts to facilitate things for police officers and for the courts, be creating a problem. We would suggest that you replace “exigent circumstances”, first so that I can say it, and secondly so that the courts will have more facility. We recommend the word “urgent circumstances”.

I'm not a linguist, but I would be prepared to accept an argument that “urgent” may in fact be narrower than “exigent”. But when you consider the context of the whole bill and the wording, it's our submission that it's not going to make that much difference anyway.

The next one we put forward is with respect to proposed paragraphs 529.3(2)(a) and 529.3(2)(b). I apologize for being technical, but if you take a quick look at the bill, in one place it says that you have to have reasonable grounds to suspect, and in proposed paragraph 529.3(2)(b) you have to have reasonable grounds to believe. That is a significant difference in law. It may be, as we say to a police officer standing at the door at two o'clock in the morning in a rural area, how is he or she supposed to distinguish between reasonable grounds to suspect and reasonable grounds to believe? This is what this bill will be asking our officers to address, and we feel that may be unreasonable. Again, it will simply open a line of cross-examination in subsequent criminal trials that will not advance the interests of the bill or advance the interests of the trial.

The second-to-last point I want to deal with is the use of the word “imminent”. You can see that I would have to say it eleven times. You'd have to say that eleven times in two sections, and we find that rather odd, because the whole bill is dealing with exigent circumstances, and in two of those subsections the word “immediately” precedes it. So it seems to me that we have a bit of overkill here in terms of what we're asking of officers, that before they do anything they must look and see if it is imminent bodily harm we're dealing with. What does that mean? What does that mean if you're standing outside the house at two in the morning in a rural area in a case like Feeney? What exactly does that mean? What does that add to it?

The kinds of warrants you see under Bill C-16 are never the kinds of warrants, in my view, where police officers are going to have the luxury of time. These contemplate situations that are fast-breaking and serious, and we feel that the inclusion of this word is simply overreaching and overburdens the process for the police officer.

I make two more references to where both the suspicion and the belief repeat themselves in subsequent sections, and I won't repeat the point. The last one I want to deal with is proposed subsections 529.4(2) and 529.4(3). This is dealing with an exemption to the requirement that you announce—that any time they're executing a warrant a police officer must announce before he or she actually goes through the door. They must say “police” and announce a recital of words. This particular subsection deals with an exception to that and it reads as follows. I'd like you, if you would, to listen to the wording, because this is what we're asking police officers, at two in the morning, to put their minds to:

(2) An authorization under this section is subject to the condition that the peace officer may not enter the dwelling-house without prior announcement despite being authorized to do so unless the peace officer has, immediately before entering the dwelling-house,

(a) reasonable grounds to suspect that prior announcement of the entry would expose the peace officer or any other person to imminent bodily harm or death; or

(b) reasonable grounds to believe that prior announcement of the entry would result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.

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We think it's overreaching to ask a police officer to address all of those things when they already have prior approval, prior authorization to omit the announcement. It seems that is burdensome for the police officer and serves no public purpose I can see.

With that, I'd ask Mr. McConnell to make the concluding recommendations.

Mr. Brian McConnell: I'd like to address proposed section 529(5), which is with respect to resources. That section clearly contemplates the use of telewarrants. We certainly do not object to the use of telewarrants, and indeed we endorse the concept, as we have with the broader application of telewarrants.

We must report to you, however, that the application of resources varies from province to province. In these days of cutbacks at the provincial level, at all levels, we express grave concern that judges and justices will not be available, which will have the result of rendering much of this law inoperable. Nothing will contribute more to increased frustration in the system than such an eventuality. We understand it is intended that this matter will be raised at the upcoming meeting of ministers responsible for justice issues. This does not necessarily mean the provinces will comply with the resources necessary to give true meaning to this bill.

We would make the following recommendation: that the guarantees for adequate resources be obtained from the provinces, failing which the federal government commit to fund the necessary resources, and further that the CACP be specifically consulted with respect to the resources.

Another issue is training materials. Over the last few years, criminal laws have become increasingly complicated. As examples, I would point to Bill C-17, the criminal omnibus bill; Bill C-55, the high-risk offenders; and Bill C-95, criminal organizations. While Bill C-16 is relatively short by legislation standards, it nonetheless presents some intricate legal concepts, not to mention the ongoing applicability and implication for the common law contemplated by the preamble. These new laws are passed by Parliament and then sent to police services across the country with a press release and a backgrounder. This means that every police service across the country must use their very scarce resources to read, to interpret, to understand, and to train its officers on the new law's application and what it means to the operational peace officer on the street.

This is an overwhelming task for all police services, but is impossible for smaller or rural-based services, which may not have access to resources like our friend, Mr. Westwick.

We call on the government, either through the Department of Justice or the Department of the Solicitor General, to prepare materials for use by police services. This would not only serve to achieve the intended implementation, but will enhance the public awareness and support for the legal system. The recommendation, therefore, is that training materials for Bill C-16 and other recently passed legislation be prepared for use by police and law enforcement officers.

May I say that the CACP would welcome the opportunity to work in partnership with government to implement this recommendation.

Chief Brian Ford: That is the end of our presentation, Madam Chair. We do thank you for taking time to listen to us today, and we're prepared to answer any questions.

The Chair: I'm going to start with five-minute rounds. If you use up the whole five minutes for the question—I'm speaking to all colleagues—then there has to be an answer to that and it's unfair to the others. Since we haven't regulated this by way of a motion at this point, some of you may need the help of others in terms of whatever motion it is you want to make. I caution you that it is unfair to your colleagues to take advantage of the limited time. I'm stuck with the circumstances here, and I'm simply trying to be as fair as I can to all parties.

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Five minutes, Mr. Ramsay.

Mr. Jack Ramsay: Thank you, Madam Chair. I'll certainly try to live within that.

Here again, it exposes the process. I have five minutes to ask you a question on a bill of enormous importance to law enforcement in this country. Saying that, I'll get back to the point I would like to make in the time I have.

It seems that this decision by the Supreme Court of Canada is the direct result of concerns about the abuse of police powers. Therefore, the powers are limited, and there's judicial constraint placed upon the powers of law enforcement officers.

We all remember when we used to have warrants of assistance where senior members of the RCMP, at least, used to have a warrant of assistance.

The Chair: A writ. Handy little things.

Mr. Jack Ramsay: Writs of assistance. Now, those were done away with because there was some concern about abuse of them. It seems the problem here is that the pendulum has moved so far it's almost in an extreme position. It's going to reduce the capacity and capability of peace officers to do their job and it's going to endanger society. It's going to make society less safe, because it's going to encumber police with the kinds of things you've been telling us about.

Let me ask you this. If the lack of capacity to obtain warrants under this new bill is not addressed, what's going to be the result?

Chief Brian Ford: The result of a lack of capacity to obtain a warrant will be that if we suspect an individual is in a particular residence, say, it will be a significant drain on resources. I mean, obviously we have an obligation when we come to arrest an individual to make sure that the arrest can be effected. That's a very serious concern of ours. Vince and Bryan talked about being able to get a warrant at 1 a.m. or 3 a.m or 9 p.m. It's very hard to get a justice of the peace to agree to giving a warrant at any time after the so-called business hours.

Mr. Jack Ramsay: What will this mean?

Chief Brian Ford: It will mean we'll have to tie up resources to make sure that all of the exits from that place, be it a window or a door...and also that they contain that particular place. It would be a minimum of four officers. In some cases, it might be a whole police service in some of the smaller....

Four officers out of a thousand may not seem significant, but we do this many times in an evening. We don't do this once in an evening, we do it many times. Toronto does it hundreds of times in an evening. In the larger cities, people say, well, you have a lot of resource; you have 5,000 or 1,000. Yes, we do, but it's all relative to the number of calls you have or the number of incidents you have to investigate.

It would be a significant drain on police resources. It would, in my view, hamper the ability of even major police services to respond adequately to emergency calls. It would hinder the ability of police executives in the deployment of resources within a community. If it hinders the ability to answer emergency calls, it also presents a factor of officer safety and community safety.

Mr. Jack Ramsay: Although this bill may restore some of the powers, the common law powers that existed prior to the Feeney decision, if there aren't the resources, particularly in the rural and more remote areas, such as the area in which this Feeney thing took place, then it's not going to enhance the safety of society. The bill is not on its own going do the job, without resources behind it, to provide the 24-hour services the police forces are going to have to have.

Is that an accurate assumption?

Chief Brian Ford: That's correct. That's a very accurate assumption.

Mr. Jack Ramsay: I'm done. My time is over. Well, I'm not done, but my time is over.

The Chair: Mr. Ramsay, let me tell you something. In four minutes and forty-one seconds you asked three questions. I'm very proud of you. That's a step forward.

• 1700

Mr. Jack Ramsay: Let's not get out of hand now.

The Chair: Mr. Marceau, see if you can top that.

[Translation]

Mr. Richard Marceau: First of all, I appreciate your apologies. I understand the time constraint and I will read the French version of your brief with great attention when we receive it towards the end of the week.

Now I have a few questions. I will ask them all and then you can answer.

The first question is on your fourth recommendation where you asked that the word "believe" be replaced by "suspect". I would think that the whole point of the bill, as I understand it, is to strike a balance. Once again, as I said earlier, it is a question of balancing the rights and freedoms of individuals with the powers of the State or the police to effect arrests or to enter into dwellings.

Isn't there a danger, if we replace "believe" by "suspect", that the balance sought by this bill between individual rights and police powers might be lost? That is my first question.

Secondly, Mr. Westwick was talking earlier about the word "imminent". He said it came too often and in recommendation 5 you wanted it removed from proposed paragraph 529.3(2). In my opinion these are examples again of exigent circumstances where one could enter without a warrant. By removing the word "imminent" would we not widen the meaning of exigent circumstances in allowing entry without warrant, upsetting once again that balance we are trying to achieve?

My third question is easier. On page 10 you talk about cuts in resources. I would like to know if most of the provinces, and in particular Quebec, do at present have sufficient resources to cover telewarrants?

And lastly. You've made several recommendations but I don't find anywhere your general opinion of the bill. Do you, generally speaking, support bill C-16?

[English]

Mr. Vince Westwick: Mr. Marceau, if I may, I'll address some of them.

In terms of reducing the standard, I don't think we're looking at reducing the overall standards. Your point is well taken. I don't think Parliament wants to pass bills that are giving wishy-washy guidelines to police, and we wouldn't endorse that either. But what you're doing is you're looking at the use.... If I can direct your attention to proposed section 529.3, for example, in proposed subsection 529.3(2), the word “reasonable grounds to suspect” is used in paragraph 529.3(2)(a), and “reasonable grounds to believe” is used in paragraph 529.3(2)(b). I know the reason why: (a) is talking about bodily harm, and (b) is talking about evidence. I understand that. I understand the difference, and I appreciate that.

My concern is whether there is any real practical difference for the police officer who is standing on the doorstep. What are we asking of the police officer in terms of the exercise of their moral responsibility to the act to distinguish between the reasonable grounds to suspect and the reasonable grounds to believe?

So it isn't an argument, Mr. Marceau, that talks about lowering standards. I suppose you could say, well, maybe we should make them both “reasonable grounds to believe”. I wouldn't suggest that, but it's open to you. But this is more a practical question of why do we need two different standards and two paragraphs of a bill? I don't see the purpose to it. And I don't believe it is a watering down of the overall impact and import of the bill.

• 1705

Your second question deals with recommendation five, “imminent”. My concern again is for the police officer. What does that mean?

Say the accused, the subject of the warrant is in the living room, and it's a domestic situation, for example. Many of these come out of domestic situations. Say the children or the wife, for example, or other family members are upstairs in the bedroom. Say the man is drunk and has a gun. Is that imminent danger to the family members?

Say they're downstairs watching TV, in the same room, out in the garage, or going to arrive home soon. What does “imminent” mean when you're talking about 2 a.m. outside a house when you know that a major crime has already been committed and an authorization, a warrant, or the application of the high standard of “exigent circumstances” has already been implied? What does it add to it?

My fear would be not, as I said only half facetiously, be about a police officer being subject to cross-examination; they do that every day, and they deal with that. My fear would be that a police officer might hesitate in his or her analysis of “imminent danger” and say to themselves that those children were upstairs, not in the same room where the suspect was. Based on that, they might feel they don't have the grounds to go into the house. Then a tragedy occurs.

I don't think the word adds anything in the context of this bill, which talks about urgent situations and serious situations. I don't see that it adds anything.

In terms of the sufficient resources in the province of Quebec, which was your third question, maybe Mr. McConnell can answer it. I personally don't have first-hand knowledge of the degree of resources in the province of Quebec. I only know from anecdotal conversations with the people across the country that there are concerns about access to telewarrants. I can't give you chapter and verse on the province of Quebec.

[Translation]

Mr. Brian McConnell: A few years ago I spent four years in Quebec where I was responsible for criminal operations and a national police service for the province of Quebec. I can tell you that many times we have had difficulty finding a judge to obtain a warrant.

[English]

In many provinces it's a problem. I received correspondence recently from London's police service. They detailed many problems in trying to contact a JP to get warrants in the off hours. London is not like some other of our cities. It's a problem.

[Translation]

I wouldn't presume to comment on the province of Quebec's capability to discharge its responsibilities.

[English]

It's a problem in many areas with the current resource levels. If this additional responsibility requirement is placed when a person is in some far-off part of Mr. Ramsay's riding, for instance, it could be difficult to make contact. Once contact is possible, there has to be someone at the other end of that telephone who has the authority to issue that authorization or warrant. Those conditions are simply not in place, in my view, sufficiently across the country. It's going to pose a problem.

Chief Brian Ford: Whether or not we support the bill.... We support the bill, but with the obvious comments we've made with respect to it. We support the need for the bill. That would be the best way to say that. We obviously have some issues we wanted to raise with this committee about what we think is significantly serious that should be addressed by this committee when consideration for the bill is done. Yes, we support the bill, but we still see need for change.

I'm sort of coming out of both sides of my mouth, I understand that, but nonetheless—

The Chair: Yes. You wouldn't be the first chief of police to do that, would you?

Some hon. members: Oh, oh.

The Chair: Mr. MacKay.

Mr. Peter MacKay: I'm not going to touch that.

• 1710

I find myself in a similar position, Chief. I think that all the opposition parties are generally going to be supportive of this. We just wish we had more time. I would echo the remarks made by Mr. Ramsay in this regard. I would have loved to see the opportunity to have your association here for several hours, because I know I have a dozen or more questions that I would like to pose.

With that in mind, I want to give a brief commentary on some of your remarks. I fully acknowledge your comments with respect to the time delay and resource aspect of the potentiality for this bill to become very cumbersome in the courts. I've seen occasions in which the admissibility of a warrant goes on for days. I also acknowledge the comments with respect to some of the onerous language. I do see a trend whereby we are more and more getting caught in a trap, such that a word like “exigent” is put forward, and we as legislators are forced to react.

More and more, this is becoming cumbersome and onerous for the rank and file police officers. It's not only the case law, but the wording. What does it mean exactly: “exigent circumstances”? We have to constantly flesh out these definitions by virtue of decisions like Feeney.

I'm pleased that we are going to have at least some balance in the discussions. I understand we're going to hear from the Criminal Lawyers' Association. I know because I've participated in myself the linguistic gymnastics that go on in a courtroom, so I take to heart your comments with respect to the language aspect.

I have some specific questions for you. This pertains to form 7.1, which accompanies this section, the identity of the person:

To the peace officers in the said (territorial division):

This warrant is issued in respect of the arrest of A.

And the person is named. Do you have concerns with respect to the person being named when the suspect is unknown, and should there be provisions in this section to include a physical description?

Further to that, I'm interested in your comments as they pertain to the retroactivity of this bill. If and when it comes to fruition in the House, should there be a reference to the effect that it should go back to date of the decision made by the B.C. Court of Appeal, or the arrest, I should say, on May 22, 1997?

Mr. Vince Westwick: Maybe I can answer those. I'm embarrassed to say that I didn't even look at the form in preparation for this. I simply didn't have the time to do it.

But I would say that I think it's a good point. Again, I'm repeating myself, but I do so for emphasis. I think this is not the normal kind of criminal situation we're dealing with; this is going to be a fast-breaking situation in which you don't know all of the information initially. So a provision for that kind of description, as opposed to a specific name, would be advantageous. I thank you for bringing that to our attention. We'd happily steal credit for that.

Second, with respect to retroactivity. I don't want to get into too deep a conversation. Since only warrants to which the bill would apply, obviously, will be executed subsequent to the passage of this bill, I wouldn't think that retroactivity would be a problem. But I haven't put my mind to it.

I guess all I would say is that if you, as a legislator, believe there's a question on that, I would certainly endorse that it be resolved in favour of retroactivity. But I wouldn't think that it applied. If you think it does, then by all means, we would be grateful for that addition.

Mr. Peter MacKay: With respect to not only the identity, I'm also interested in your comments from your practical experience in arrests involving multi-dwellings, where you would have the ability to name several locations where your suspect may be found.

Mr. Vince Westwick: Again, I think the answer would be the same to that.

Mr. Brian McConnell: No question.

Mr. Vince Westwick: In practical terms, if you have a suspect who lives at Oak Street—someone mentioned Oak Street here earlier—whose mother lives on Cambie, and whose brother lives on another street, and you know that's the circle this person deals with, it's essential.

Mr. Peter MacKay: Thank you.

Mr. Vince Westwick: Thank you for that.

The Chair: Thank you, Mr. MacKay. Mr. Lee.

• 1715

Mr. Derek Lee: I am almost overwhelmed by the technical aspects of this—so much so that I am confused myself about whether we can actually foist this upon the police community.

To continue on that, we have just talked about making room in the form for the warrants under 7.1, warrant for the rubric identifiable; in other words, white male with glasses in a blue suit, instead of a name. We addressed this yesterday. This has not been taken care of yet.

In terms of multiple dwellings—and I will direct this to any one of the witnesses here—given the wording of section 529, where there is a virtual condition precedent that you believe the person is present in the dwelling house, how could you possibly set out three separate residences? That would belie your belief that the individual was in the house, because you have set out three dwelling houses.

Chief Brian Ford: It is not uncommon during the course of an investigation when you have an arrest warrant for an individual, subpoena aside, to go to the most likely...or where you have received information that the person is in a particular residence or dwelling, to go there and find that that person has now gone to another dwelling, and then to go to the other dwelling and find out that they have gone to another dwelling. Number one, it could be their family home, then it could be somebody else's home, a friend's home that they frequent. We have reason to believe, because we have received information, that they are at this house; however, by the time we get there we find that they are not there and have gone elsewhere. That happens quite regularly in a criminal investigation.

Mr. Derek Lee: Yes, but, Chief Ford, you cannot do that any more with this new codification,—

Chief Brian Ford: I know we can't. We have to get a new warrant for each time.

Mr. Derek Lee: —because with this new codification you have to believe he is in the house. So you cannot do that any more. So surely you have a problem with it. You have reason to believe they are in the house—not the houses but the house.

Chief Brian Ford: I realize that, and that is why I was talking earlier about the burden of the administrative aspect of this, because for each place you have to go back and get a separate warrant.

Mr. Derek Lee: Yes. And we have not even thought this through yet.

I would like to walk through, if I could, the challenge for a police force or a police officer or a police service or a peace officer as he or she goes to make an arrest of someone they believe has committed a crime. I think it is a minefield that defence counsel are out there waiting for. I think it is going to be a really interesting little game as you walk the arresting officer through the process in the hope that, should you find a flaw in the process—any flaw will do—you will taint all of the evidence.

In order to arrest somebody, you have to get an arrest warrant. That is correct. Everyone here will agree with that.

Chief Brian Ford: Under certain circumstances you do not need a warrant.

Mr. Derek Lee: Hot pursuit.

Chief Brian Ford: Hot pursuit.

Mr. Derek Lee: We are not too sure about what are exigent circumstances, but hot pursuit we accept out of this.

Other than that, you are not in hot pursuit but you think you have found the guy at 21 Oak Street, which is a dwelling house. Let us say it is a row of townhouses with no alleyways, just a big block of townhouses. So you have to get a warrant to arrest the person. Then you have to get, arguably, a second warrant to go into the dwelling house. Now, you may be lucky enough to get a warrant that covers both off, but if you already have an arrest warrant without a dwelling house mentioned, you do have to go back and get a second warrant for the dwelling house.

Chief Brian Ford: True.

Mr. Derek Lee: Now you have your warrant. Is it true that before the police officer enters the dwelling house, the police officer has to have reasonable grounds to believe the person is in the house? Is that a fact? Therefore the defence counsel, if I may....

This is an awfully long question, but I suppose I could let them say yes every 30 seconds. But this is important, Madam Chairman, because now there is a test of reasonable grounds to enter, and if, as in Feeney, the defence counsel poses to the police officer the question, “What reasonable grounds did you have for believing that the suspect was in there?”, and the police officer says, well, we all just figured he was, because that's where all the things indicated.... But did you investigate to reassure yourself as to reasonable grounds? No, the sergeant told me to go there and execute the warrant. Well, then there may not be reasonable grounds.

• 1720

So am I correct in assuming before entry the police officer is going to have to stop and advert to reasonable grounds and make a note of it?

Mr. Vince Westwick: I was with you right up to the point when you said the reason the warrant was executed was that the sergeant said to do that. That wouldn't happen in 1997. The person in whose name the warrant is issued is the person who has reasonable grounds, and that person must be there. The delegation of that power is no longer on the table.

Mr. Derek Lee: So it's only the one person who can make the entry; only the one peace officer can make the entry.

Mr. Vince Westwick: No, the practice is that the person who sought the warrant, in whose name the warrant was issued, would be part of the team or at least at the location where the warrant is executed.

Mr. Derek Lee: Okay. I gather there is also the requirement of an announcement. Is there?

Mr. Vince Westwick: I may be misleading you on that point.

Mr. Derek Lee: Is there an announcement requirement?

Mr. Vince Westwick: Yes—unless.

Mr. Derek Lee: Where does that requirement come from?

Mr. Vince Westwick: Right here.

Mr. Derek Lee: Because you made reference to the clause in the requirement for an announcement—

Mr. Vince Westwick: Unless you have the exception. It's proposed section 529.4.

Mr. Derek Lee: No, that's the section dealing with the omission of an announcement. Where is the general obligation to make an announcement when you have a warrant?

Mr. Vince Westwick: I think it's in the common law. Yes, it's a matter of common law.

Mr. Derek Lee: That's what I thought. So now the requirement of an announcement is there in the common law, in the Landry test, which we have now imported into our procedure. It's not even in the codification we have prepared. The announcement that we believe is required by the common law isn't even in our codification. That's a fourth step. So we have to make an announcement even though it's not in here. It's in the policemen's manual somewhere: must make the announcement. So we have a warrant, plus a warrant, plus reasonable grounds to believe the person is in the house, plus an announcement.

Then we have the exemption of the announcement if the warrant says you don't have to make an announcement. The only problem is their codification says if you've been exempted from making the announcement in the warrant you still have to make the announcement or have reasonable grounds for not making the announcement. So now we have a fifth step.

Would I be correct in suggesting that if the policeman failed to do the reasonable grounds test for omitting the announcement—which isn't even required in the code in the first place—if he or she fails to advert to the grounds for omitting the announcement with the possibility of having to make the announcement, the entry would be illegal? It would be a trespass. If they broke down the door it would be a break and enter. The policeman would have committed an indictable offence. All the evidence would be tainted, and we would be back into Feeney 2.

Am I being unreasonable here?

Chief Brian Ford: I don't think the police officer would be breaking the law if he didn't make the announcement. As long as they did it with good conscience and—

Mr. Derek Lee: Chief Ford, that's the old law. That's the common law.

Chief Brian Ford: I know. Often I can see a case where an announcement and entry were made simultaneously. As long as the announcement is made.... All kinds of things are going to come out. You have to make an announcement within x minutes and all kinds of things come out.

Mr. Derek Lee: Would you agree that now you can't do the instantaneous announcement at entry because—

Chief Brian Ford: No, I would not. I would have to pause.

Mr. Derek Lee: You would have to pause and think about it for a minute.

Chief Brian Ford: No, I think announcement and entry can be simultaneous: “Police. We're coming in.”—boom, door down. There are a lot of cases where you have to do that. I think it's good they are not codifying the announcement, because if you codify the announcement, then how long should the announcement be? Should there be an announcement? How loud do you have to knock? Do you have to ring the bell? How many times? It becomes a really difficult process, and what you're doing is codifying an unnecessary part of common law.

• 1725

Announcement and entry can be made and are made simultaneously: “Police. We're coming in.”—boom, and the door is down. It's done to let them know you're there, to suppress as much evidence destruction as possible, and to gain an advantage for officer safety purposes.

Mr. Derek Lee: And with all of that you still support the bill in its current state because of the circumstances foist upon us; with some notable exceptions.

Chief Brian Ford: I think there's an old saying, a journey of a thousand miles begins with one step. This is a step.

The Chair: Thank you very much for your assistance.

We'll rise for about two minutes.

• 1726

• 1736

The Chair: Okay, we are back in session.

From the Criminal Lawyers' Association, we have Irwin Koziebrocki, who is the treasurer and who has appeared before us before. Welcome. You might want to tell us what you do.

Mr. Irwin Koziebrocki (Treasurer, Criminal Lawyers' Association of Ontario): Aside from sitting on the executive of the Criminal Lawyers' Association, I am also what they call the chair of the legislative committee. Whenever you people or the Province of Ontario decide to pass certain legislation that might have some effect in the area of criminal law, I get to look at it—and I ask members of my committee to look at it—so that our association can make representations to committees such as yours.

In terms of my background, I have been practising criminal law for about 23 years now. For the first number of years, I was counsel with the criminal appeals and special prosecutions branch in the Office of the Attorney General of Ontario, where we did exactly what that says: criminal appeals and special prosecutions. In 1982, just in time for the passing of the charter, I went into private practice, and I've practised criminal law in association with two other defence counsels for the past 15 or so years.

Most of my practice these days is in appellate practice, both in the Court of Appeal and the Supreme Court of Canada. I also do a number of trials that I am sure are impacted by your legislation. I have argued a number of cases on constitutional issues, both in the Court of Appeal and in the Supreme Court of Canada.

The Chair: Mr. Koziebrocki, I made a statement about you yesterday. I made a promise to Mr. Ramsay that you have done your share of charter arguments. Would that be fair to say?

Mr. Irwin Koziebrocki: That's fair to say. In fact, just for whatever it's worth, in his judgment Justice Sopinka refers to the judgment of Manninnen, which is a rather important case on section 10, the right-to-counsel rights. I had the good fortune of arguing that case in the Supreme Court of Canada, among some others.

If I could, your committee has asked us to speak about Bill C-16, an act to amend the Criminal Code with respect to police arrest powers in a dwelling house. As the bill and your request came to our office on rather short notice—I believe it was yesterday that we found out you wanted us to speak today—the normal kind of consultation and research that we would do to present a brief to you really wasn't done. What you are probably hearing are more or less my views as to what this legislation is all about, although there was some consultation over the phone with various members of our committee.

As I understand Bill C-16, it is a response to the judgment of the Supreme Court of Canada in Feeney, which was released on May 22 of this year. In the Feeney case, the Supreme Court of Canada held that generally a warrant is required to make an arrest in a dwelling house. I think that is the extent of the issue in terms of your dealings at this time.

A review of this particular legislation, in my respectful view, requires an understanding of the various principles that were established or reinforced in Feeney. In short, I would like to set out what I believe are the five principles that are established in Feeney, or are reinforced in that case.

• 1740

The first is that in the era of the charter, in general when balancing the individual's privacy interests in the dwelling house and society's interest in effective police protection, the privacy interest outweighs the interests of the police. That's what the Supreme Court of Canada says at page 154 of the Canadian Criminal Cases version of that judgment.

The second issue is that prior authorization is necessary to apply the purpose of the Charter—that is, to prevent unreasonable intrusions on privacy. Again, Justice Sopinka says that at page 155 of Canadian Criminal Cases.

The third issue that seems to be covered by the Supreme Court is that the Supreme Court concludes that a warrant is required to make an arrest in a dwelling house.

Fourth, the need for a warrant to make an arrest in a dwelling house was subject only to such exigent circumstances as hot pursuit.

Fifth, in addition to the need for a warrant for arrest in a dwelling house, the authorities are required before forcibly entering a dwelling house to make a proper announcement. This is to minimize the invasiveness of the arrest in the dwelling.

For whatever it's worth, these are summarized by Justice Sopinka in the following manner. I'll read it to you, because I think it's important to understand the basis from which we come to this proposed legislation. It's at page 158 of the judgment of the Supreme Court of Canada as set out in Canadian Criminal Cases. He says, in paragraph 51:

To summarize, in general, the following requirements must be met before an arrest for an indictable offence in a private dwelling is legal: a warrant must be obtained on the basis of reasonable and probable grounds to arrest and to believe the person sought is within the premises in question; and proper announcement must be made before entering. An exception to this rule occurs when there is a case of hot pursuit. Whether or not there is an exception for exigent circumstances generally has not been fully addressed by this Court, nor does it need to be decided in the present case given my view that exigent circumstances did not exist when the arrest was made.

That's what the Supreme Court says. A basic change seems to be that we now require this particular additional warrant, or in combination with an arrest warrant, to enter into a dwelling house.

Really, the main issue that seems to arise out of Bill C-16, as I see it, is this. It's not so much what the Supreme Court says requires, because I think that's pretty clear; more importantly, it's whether this particular bill you've put together here passes Charter scrutiny and is constitutional.

As an overview, I think I can give you some views generally with respect to these particular sections you're dealing with now. Basically I think it's fair to say that when you read this particular legislation, proposed sections 529, 529.1 and 529.2 do provide for the scheme to obtain a warrant for the purpose of arresting and apprehending a person in a dwelling house, as required by the Supreme Court of Canada. That's basically what the Supreme Court asked for, and that's what those particular sections seem to say in terms of providing that kind of scheme.

The only thing I would suggest with respect to proposed section 529 is that you look at it from the prospect of where and in what situations an arrest can be made. Are you intending to include, for example, summary conviction matters as opposed to indictable matters? Because the Supreme Court of Canada speaks about arrests made in indictable matters in their summary. It may well be, when you read proposed section 529, that it's open-ended in that respect and may even allow for police officers to enter into a premises on a relatively minor matter.

• 1745

My difficulty with respect to Bill C-16 is how this proposed legislation sets up a scheme to allow entry without a warrant in proposed section 529.3 or without prior announcement, in proposed section 529.4, or, most importantly, without both a warrant and proper announcement, in proposed subsection 529.4(3). It is suggested that in certain of these areas of the legislation it may well be that you are moving into areas of unconstitutionality.

In regard to proposed section 529.3, which is the situation involving an arrest without a warrant, an entry without a warrant, there are certain things that are required which may or may not fall upon defects that would render it unconstitutional.

Many of these things that I say with respect to all three of these particular issues are repeated in each one of the various sections.

For example, in proposed section 529.3, what you're talking about is where “by reason of exigent circumstances it would be impracticable to obtain a warrant”. Then certain circumstances are defined basically—not exclusively, but basically. The first is the suspicion that entry “is necessary to prevent imminent bodily harm or death to any person”, and the second is a belief that entry “is necessary to prevent imminent loss or imminent destruction of the evidence”.

In regard to the issue that's raised in the first proposed paragraph, 2(a), in dealing with imminent bodily harm and potential death to any person, the question is whether suspicion is an appropriate standard for entering without a warrant. In all likelihood, the need to prevent imminent bodily harm or death would withstand charter scrutiny. However, such a low standard as suspicion may not. Suspicion, in my view, could be raised by such matters as a simple CPIC check where, for example, a record shows that the person may have had an arrest for a dangerous weapon charge in the past, which may or may not have anything to do with the particular circumstances being looked at.

For example, a dangerous weapon charge can arise from any kind of circumstance. It could arise from the circumstance where somebody may have used a broomstick in a threatening manner. The next thing you know that raises a suspicion in the police officer's mind such that he or she feels justified in entering into a premises.

You should also look at the Criminal Code. In my view, there is only one other place where the Criminal Code uses the word suspicion—that I can find anyways—and that's section 254, I believe, the section dealing with roadside tests. In that particular section, a police officer, if he or she has suspicion that someone might have ingested alcohol while driving, can require someone to blow into this roadside device, and that suspicion is usually triggered by the faintest smell of alcohol on someone's breath while the officer is sticking his or her head through the window of your car. That's the type of standard you're looking at, and you're looking at it in that type of situation.

This is a far more serious situation. You're asking someone to enter into a person's home and you're asking the person to do it on the belief that someone is going to be harmed in that house. You provide for what I would suggest is a rather low threshold test, which may or may not be appropriate, but it seems that this is the type of issue that is subject to attack. If a police officer says “I know him and he's a bad guy and therefore I have a suspicion that he might harm other people in the house”, you're going to have a problem in a courtroom after that.

• 1750

Proposed paragraph 529.3(2)(b) is the issue with respect to allowing the entry for the purposes of preserving evidence in a non-warrant situation. In my respectful submission, that is even more problematic. Although it left open the question of what is exigent circumstances and whether preserving evidence was such a circumstance to another day in Feeney, as it didn't arise in that particular case, the Supreme Court of Canada also made clear, in my respectful submission, that preserving evidence was really not one of those factors you should look at in terms of an entry without a warrant.

They say, for example, that when the judge made his ruling in terms of the admissibility of evidence, the question of preserving evidence was not a proper consideration for that particular determination. That's an indication they're not looking to preserving evidence as a criterion in exigent circumstances.

Also, and more importantly, when they define exigent circumstances in Feeney, the Supreme Court gives two examples. The one example is the situation where a police officer just saw someone enter the premises. The second situation they give, and the one they latch onto as being the important one in terms of exigent circumstances, is hot pursuit. They deal with the case of Macooh, which is a case of hot pursuit. They are clear in those circumstances that you don't need a warrant to enter because you are pursuing somebody.

So certain circumstances the police describe as being important and spur-of-the-moment cases are covered. They're covered by the law; they're covered by the common law as we know it. That hasn't changed in any respect.

The Supreme Court of Canada made it clear that a warrant was necessary if police are not in hot pursuit, and also by rejecting outright, in my view, the dissenting judgment of Madam Justice L'Heureux-Dubé where she indicates that the preservation of evidence may be such an exigent circumstance. They make that quite clear in their judgment. Not only do they make it clear, but they reject her argument and they say her argument is based on another dissent that she gave in another case, which is not necessarily the way you make law.

The Chair: But it's consistent.

Mr. Irwin Koziebrocki: But it's consistent. So it is suggested from our view that the preservation of evidence is not the type of circumstance that was contemplated by the Supreme Court to permit a warrantless entry into a private dwelling house. It is to be remembered that for the purposes of these provisions, they are to effect an arrest, not to gather evidence; that's not the purpose of these particular provisions. That is the reason for Feeney. The police used it as a means to gather evidence.

That's the case in a number of other situations. Where there are charter violations, you can't justify it as a means to gather evidence. Almost every case that the Supreme Court of Canada has overruled on a charter basis has been a case where evidence has been thrown out, Manninnen being a perfect example where the accused person confessed to a robbery. That statement was thrown out, notwithstanding that he had confessed. Clarkson was another case where a person has confessed to a murder. In that case, the evidence was thrown out.

So we have to remember that when it comes to the issue of preserving evidence, there is a mechanism in the Criminal Code, and it's called the search warrant. We've used it for many, many years and it has been successful. Police officers are required to have reasonable grounds to believe there is evidence in a dwelling house when they make an arrest, and the police always have that option.

• 1755

There are also, as I'm sure you are aware, situations where the police come across evidence when they make an arrest, either in terms of a search upon arrest for their own protection or when they're entering into a particular house for the purposes of making an arrest and the goods are there. I don't think anybody's going to say you can't seize them or go out and get a warrant to allow you to seize them in those circumstances.

If you go to proposed subsection 529.4(1), the situation that allows for the removal of the common law requirement of prior announcement, it should be noted that the Supreme Court of Canada made no exception for a lack of announcement. Its requirement is that it is mandatory. Landry says that and Feeney says that. An announcement is mandatory for entry into a dwelling house with or without a warrant, whether in hot pursuit or not. This legislation intends to do away with this particular obligation, albeit with judicial authority.

It should be remembered why this requirement has been part of the common law system for the last 300 years. Announcement has historical significance. It tells the occupant that an official is entering, as it used to be said, “in the name of Her Majesty” and that person isn't an intruder. One has to question why, at this particular stage in the game, after 300 years or more of telling people you're there on Her Majesty's business, that announcement is no longer necessary.

This requirement, in my respectful submission, has significance beyond that mentioned in Feeney. Not only does it allow someone to respond with dignity by coming to the door when a police officer knocks on the door, it also allows the occupant to know the authorities are at the door and not an intruder. This is a significant factor. Someone entering unannounced may well be met with violence by someone believing he or she is being invaded by strangers. That's a significant issue that the law has always considered. If we go back to the initial concept that a person's home is his or her castle, there's a reason for that. We don't want people coming in and causing situations that could be violent in nature.

There may well be some justification in proposed paragraph 529.4(1)(a) involving one of those reasonable situations where announcement may be waived by a judicial authority when the police are exposing themselves to violence or death. There is no doubt that situation may be the type of thing that's saved. If it's necessary in the circumstances and a judicial officer says you can go in unannounced and it can be shown to some degree that police officers are going to be exposed to violence or death, that may well be an appropriate situation to waive an announcement.

But it's not justified to merely preserve evidence that “might be there”. A balancing between obtaining an ounce of hashish or cocaine and the potential for serious violence and subsequent tragedy would lead one to believe the avoidance of such a fundamental requirement of entry into a dwelling house would not be saved by section 1 of the charter.

In the time it takes the police to enter after announcement, what type of evidence can be destroyed? You heard Chief Ford, and he confirms my view on this. He told you what the entry and the announcement consist of. As far as he's concerned—this is the chief of police of this area—they are almost simultaneous: they make their announcement and they make their entry. They are done for three reasons: to let people know they're there, to grab evidence and avoid destruction, and to gain some form of tactical advantage over someone who might be there.

• 1800

Well, what are we talking about if you avoid this announcement? What type of evidence can be destroyed? It's hardly likely that anything more than a minimal type of evidence or destruction can take place. We're talking about small amounts of drugs; we're talking about at the most some paper documents that could be set ablaze; or, God forbid, somebody can push the erase button on the computer and all the information disappears.

If the chief of police is right and that's the way they do it—and in anything we've ever seen it looks as if that's what they do, they make their announcement and they enter almost simultaneously—the pound of heroin or cocaine is going to be there; the bloody knife is going to be there; and, contrary to the view of the minority in Feeney, it is highly unlikely that the bloody shirt will be destroyed in that period of time.

It is the position of the Criminal Lawyers' Association, as espoused by myself, that proposed subsection 529.4(3), particularly paragraph (b), is unconstitutional.

Mr. Jack Ramsay: I'm sorry; what was that again?

Mr. Irwin Koziebrocki: Proposed subsection 529.4(3). That's the provision that sanctions warrantless entry into a dwelling house without prior announcement, solely on the belief that evidence may be lost.

You're dealing with literally three things that the Supreme Court of Canada says you can't do. You need a warrant but you're waiving the warrant; you need an announcement but you're waiving the announcement; and you're using as your basis for that the likelihood or the possibility that there's evidence there, which is not, in my respectful view, an exigent circumstance.

I would suggest to you that that particular situation would not withstand charter scrutiny. It would invalidate what rights exist under sections 8 and 10 of the charter.

I would think that when the Supreme Court of Canada says to Parliament and to the people of Canada that we hold privacy rights to one's dwelling above the state's rights to find evidence, and then you couple that with the potential harm that might result where you could get mainly a minimal evidentiary gain, you really are in a situation where that particular section would not survive charter scrutiny.

With respect to 529.4(3)(a), that is directed to the potential for violence. That's the situation, again when you're looking at the potential for violence, that in certain circumstances could lead to valid police action without a warrant. That may well be appropriate in the circumstances; however, as indicated earlier, the suspicion standard that is imported in that particular proposed section may well be one that is too low and you might well consider replacing it with something like reasonable belief that violence could result in those circumstances.

Given the fact that I saw this legislation yesterday and I started typing my submissions this morning and I finished writing them as I was flying to Ottawa, I've got only half of them typed. If you so desire, I will finish typing them when I get back to my office in the morning and send them to you. But, on an overview of the provisions that we see here, those are the problems I foresee.

There are obviously some questions of wording and semantics. “Exigent” circumstances was a word my secretary had never heard of, and she's been doing this for 25 years, so I wouldn't doubt that a police officer may not understand that word. The word “impracticable” was a word that I had to look up in the dictionary. I thought it meant impractical, but it doesn't mean impractical; it means more than that.

• 1805

The Chair: You've certainly seen the word “practicable” before in the Criminal Code.

Mr. Irwin Koziebrocki: Yes, but not “impracticable”.

The Chair: It's the opposite.

Mr. Irwin Koziebrocki: Perhaps that is an unfeasible one that I might have heard.

So those are again situations that import legal connotations that may have some problem in the future because they are difficult to define. This is not the usual type of wording that one would see in legislation or that a police officer would deal with on a regular basis.

The Chair: Thanks.

Have you set that watch? We have to watch this one. Five minutes.

Mr. Jack Ramsay: I want to deal with the areas that you feel are unconstitutional. I will go first to proposed paragraph 529.3(2)(a).

It seemed clear to me that proposed paragraph 529.3(3)(b) was unconstitutional according to my understanding of the Supreme Court of Canada's decision on the Feeney case. You have reinforced that through your testimony when you referred to page 148(a) of the Supreme Court's decision.

So it seems very clear that exigent circumstances is not going to withstand a court challenge in terms of entering a dwelling without a warrant to collect evidence. To me that stood out from the beginning. You have indicated that you feel those two areas are not constitutional.

Then you went to paragraph 529.4(3)(b). You feel that particular clause is not constitutional. If I could take you down to proposed subsection 529.4(3), are you saying that proposed paragraph 529.4(3)(a) and proposed paragraph 529.4(3)(b), or just proposed paragraph 529.4(3)(b) may not be constitutional, or have I misunderstood you there?

Mr. Irwin Koziebrocki: Certainly proposed paragraph 529.4(3)(b) in my view is absolutely unconstitutional. It offends all other requirements of the Supreme Court of Canada and the common laws as we now know them.

Proposed paragraph 529.4(3)(a) is more difficult, as it deals with the situation of imminent violence and imminent death. That situation is closer to being constitutional, if not constitutional. It would be the type of situation under which proposed subsection 529.4(1) would say when you're dealing with a situation where someone is being held hostage in a house or there are shots being heard in a house, are you saying you have to run off and find the justice of the peace to sign a piece of paper before you can go in? In all candour, that type of situation would pass muster.

The only difficulty that I have is the use of this low standard you've put in. If you combine the low standard with all the other breaches of the charter and the common laws that exist now, you've put yourself in a situation where it may well find itself being charter challenged.

Mr. Jack Ramsay: Okay, then I want you to go to proposed section 529.1. This has to do with the issuance of a warrant to enter into a dwelling house.

• 1810

If I could go back to the Supreme Court of Canada's decision on page 158, paragraph 51, I'd like to direct your attention to the second sentence, which states this—actually, it's a continuation:

...a warrant must be obtained on the basis of reasonable and probable grounds to arrest and to believe the person sought is within the premises in question...

We had some discussion earlier today on whether or not a multiple-dwelling warrant could be issued based on Bill C-16 as well as based on what I have just quoted from the Supreme Court of Canada decision. I would like your opinion on that. In other words, can the police obtain a warrant under proposed section 529.1 to enter a dwelling to conduct an arrest and have the justice of the peace issue a warrant containing more than one dwelling, or, according to not only the bill but also, most importantly, the decision of the Supreme Court of Canada I referred to, is limited to one single dwelling and at the time the warrant is issued there must be reasonable or probable grounds to believe at least at a certain time on a certain day that person will be found in that dwelling?

Mr. Irwin Koziebrocki: My view is that you can't get multiple dwelling warrants. The way the criminal code would be set up in this particular proposed section, and what the Supreme Court of Canada was talking about, was your normal procedure when a police officer gets a warrant for somebody. Let's say they've done an investigation and they decide it's time to arrest someone. They go to the justice of the peace and they swear an information and say, we have reasonable and probable grounds to believe someone has committed a criminal act; we want you to issue a warrant. That's done on oath and that document is then issued. We say we need a warrant to arrest because this is not a summonsing case, this is not something we can send in the mail, this is serious, this is the type of thing where we have to arrest him because he might flee, or whatever.

At the same time, pursuant to this legislation and pursuant to the judgment of the Supreme Court of Canada, the police officer is going to have to give on reasonable and probable grounds his belief as to why this person is in this particular place; because you don't need to do this. You could get a warrant for somebody and pick him up on the street, or you can wait in your car and wait until that person walks out the door and say “Excuse me, I have a warrant for your arrest”.

We're dealing only with a situation where you're violating someone's residence. You're violating someone's “castle”, as the 400-year-old case talks about. It's those circumstances you're dealing with. If you want to go in and enter someone's castle or someone's home, you have to say he's there and these are the reasons for it.

Now, it may turn out that in the end result you're wrong. Reasonable and probable grounds doesn't mean you have to be right. They just have to be grounds that are reasonable in the circumstances. So you walk in there and you ask, where's Joe? They say, Joe isn't here, Joe's living down the street at such-and-such an address. How do you know that? Because I helped Joe move into that particular residence. You go back to the justice of the peace and you say, I need a new warrant for Joe at the residence down the street; and you go and get one.

Mr. Jack Ramsay: If you enter the dwelling house once he's not there, can you use the same warrant to come back?

Mr. Irwin Koziebrocki: The warrant for the residence or for the warrant for arrest?

Mr. Jack Ramsay: To enter the residence.

Mr. Irwin Koziebrocki: At a separate time? It depends what the warrant says. If the warrant is limited to a particular time you probably can't. You would have to get it amended. If the warrant is an open-ended warrant that says you can enter these premises I would think you could come back, once you have, again, reasonable and probable grounds to believe that person is there. If that person has said he's gone to work, he'll be back at 6 p.m.

Mr. Jack Ramsay: Thank you.

The Vice-Chairman (Mr. John Maloney): Mr. Marceau.

[Translation]

Mr. Richard Marceau: I have a few questions that I will ask one after the other and you can answer them all afterwards.

• 1815

One issue that keeps coming back repeatedly since we have started our work on this bill is that of the difference between reasonable grounds to "suspect" and reasonable grounds to "believe".

In theory, I agree with you that "to believe" would seem more difficult a test than "to suspect", but since you have been to the Supreme Court I would like you to tell me more precisely how the distinction is possible and how a police officer who comes to a door can be expected to distinguish between "believing" and "suspecting". That is my first question.

My second question is on exigent circumstances. Proposed subsection 529.3(2) has the word "notamment" in the french version which means that it is not an exhaustive list. Could you tell me if in your opinion it gives too much discretionary powers to the police and whether this open-ended definition of exigent circumstances might not be considered unconstitutional.

My third question—and it will be the last for now—is on proposed section 529.4 on omitting announcement before entry. It seems to me that there are already certain rules on this in common law. I wondered if it wouldn't be better to retain those exceptions that are already in common law rather than to try to codify imperfectly those situations where it might be acceptable to omit announcement before entry.

[English]

Mr. Irwin Koziebrocki: A police officer knows the difference between suspicion and belief. One of the things they teach at police school, so to speak, is what the various criteria are for different things. One of the things they teach them is how to run a breathalyser and how to do roadside tests. That's just a normal thing that police officers learn when they go to police school. Police officers speak in terms of suspicion on many occasions in terms of their investigative work. They know when a case is supicious and they know when they have belief that someone has done something.

With respect, I don't think those terms would cause any difficulty for police and I do believe that a police officer knows that there is not only a difference, but a quantitative difference, between those two issues. And the courts have said that there is a quantitative difference between those two. I don't see that as being a difficulty or just a matter of semantics.

With respect to proposed subsection 529.3(2), in terms of exigent circumstances, and the point that the list is not exhaustive, it isn't exhaustive, and the reason it isn't exhaustive is that it can't be exhaustive. We, as clever as we may be, will always find another circumstance which becomes an exigent circumstance in the circumstances of a particular case.

When you're dealing with this kind of thing, though I as a defence counsel would love to say that there were only two bases in this world upon which you could get this kind of warrant, I think I'm realistic enough to know that each case will turn on its own circumstances and its own situation.

There may well be circumstances that arise which would find their way into the unexhausted list. When a police officer uses it as a means to manoeuvre, he or she will be found out. When there are real grounds to do it, the courts will say there are real grounds to do it. I don't have the same problem that police officers will use it as a means to get around doing their duty.

• 1820

With respect to section 529.4 and codifying things that are the common law, I think that was the point I tried to make at the beginning. The Supreme Court of Canada asked only for one thing. In the first three sections of this particular act, they got that. For some reason this legislation has now decided it's going to be the codification not only of the common law but also the exceptions to the common law that haven't yet been dealt with by the courts.

In a sense, what's happened here is that not only is the legislature here trying to deal with the questions that the Supreme Court of Canada has posed to the legislators but it also has decided that they're going to see if they can do some good things for police officers, if they perceive them as that...or who are victims, if they perceive it as that.

With respect, it seems to me this legislation is going too far, to the point where I do say that by the time you get to the bottom of this legislation, you have questions of real constitutionality at stake.

The Chair: Thank you. Mr. MacKay.

Mr. Peter MacKay: Thank you, Madam Chair.

Keeping in mind your comments, I was listening particularly, and very carefully, to the sections you predict may not survive a charter challenge. As a general statement, would you agree that this legislation could be improved? I put you in a funny position as a defence lawyer, but don't you think there are some loopholes here that could be closed by further drafting?

Mr. Irwin Koziebrocki: Sure.

Mr. Peter MacKay: This is great, being able to cross-examine a defence lawyer.

Some hon. members: Oh, oh.

Mr. Irwin Koziebrocki: One of the things legislation does is create work for me.

The Chair: That was part of the red book—job creation.

Mr. Irwin Koziebrocki: I know. Unfortunately, the pay is lousy.

Yes, there are all kinds of problems here. If you're going to pass this legislation in this form, then you're going be met with people like me taking a whack at it in the Court of Appeal and the Supreme Court of Canada.

Mr. Peter MacKay: Okay.

Further to that, just on...I'd say “cosmetic”, but there appears to be language here—words like “imminent” and “exigent”—that, again, could be tempered, or tampered with. I suggest to you again that there is much room for improvement in the wording alone of a number of these proposed sections.

Mr. Irwin Koziebrocki: There's no doubt about that. If you use a word like “imminent”, as you say, that opens up the defence counsel to stand up and make an argument on the basis that it wasn't imminent.

Mr. Peter MacKay: On the entire section Mr. Ramsay put to you, the one that sanctions a warrantless entry, your opinion—and I want this to be very clear—is that this would not withstand a constitutional challenge. This is in terms of proposed subsection 529.4(3), proposed paragraph 529.(3)(b) in particular, where it pertains to the destruction or loss of evidence, the preservation of evidence. This is the reason the police would be going in.

You feel that in it's present form it would result in the exclusion of evidence for unconstitutionality.

Mr. Irwin Koziebrocki: I would go further. I'd say that section would be struck down.

Mr. Peter MacKay: Okay. Thank you.

The Chair: Mr. Lee.

Mr. Derek Lee: To touch on the issue of hot pursuit, which came up earlier, am I correct in assuming that a hot pursuit can arise from a situation where there isn't a crime or crime scene? Could a hot pursuit develop subsequent to a crime—a week later, two weeks later?

• 1825

Mr. Irwin Koziebrocki: Sure. For example, if the police are looking for a particular person and they know who that person is and they see him on Wellington Street running down the street—though it's very difficult today to run down Wellington Street—

Mr. Derek Lee: It's very dangerous.

Mr. Irwin Koziebrocki: —in that kind of situation if they take off after that person and he ends up in a dwelling house, then there's nothing to stop the police at the door in those circumstances. That's the common law; that's always been the common law. The Supreme Court of Canada acknowledges it, and specifically acknowledges it in Feeney, as being an appropriate exercise of police authority.

Mr. Derek Lee: It strikes me that, in terms of having somebody cornered in a dwelling house, it might be cheaper to just offer him $5,000, $10,000 or $20,000 to come out. It would be cheaper to do that than going through all the litigation that may ensue in relation to the warrant—I say that with tongue in cheek.

May I ask this question? I was curious about the perspective you come from, because there are many other defence counsels out there who would probably have a similar perspective. You urged upon us the view that Parliament here, if we were to pass this, would be going too far or further than we had to. Yet I would have thought that our job is to legislate, codify, and deal with things like this, the gap or vacuum that has been created by the Feeney decision. Do you feel that by codifying and legislating in this case we go beyond a point where we should?

Mr. Irwin Koziebrocki: The question here is not whether you have a right to legislate. Of course you have a right to legislate. The question, as I see it here, is that you are responding with a piece of legislation to a judgment of the Supreme Court of Canada where the Supreme Court of Canada said you can't enter without a warrant; so, Parliament, you had better do something about it, because if you don't you're not going to be able to arrest anybody in a house. Right?

Mr. Derek Lee: Okay.

Mr. Irwin Koziebrocki: That's what the Supreme Court of Canada has done. And your counsel for the Minister of Justice has gone back to the Supreme Court of Canada and said we need some time so we can draft this legislation, so can you hold off on the effect of this judgment? Then you have to look at what you've done here, if you've addressed that particular issue or you've decided to use it as an opportunity to do other things.

I think you first address that issue and then also use it as an opportunity to do other things. Some of those things are just not legislated or mandated by the judgment in Feeney if you used it as a opportunity to present certain legislation. In my view, if you read the judgment of the Supreme Court of Canada, and other judgments of the Supreme Court of Canada, it would fly in the face of that judgment.

So if you're asking me whether you have the right to do it, of course you have the right to do it. I don't deny you that particular right. But I also would suggest that you look at the mandate here and also look at what you're doing in this legislation.

Mr. Derek Lee: Thank you.

Mr. Peter MacKay: Madam Chair, could I just ask a very brief, specific question arising from this exchange?

The Chair: Sure. Go ahead.

OMr. Peter MacKay: If I heard you correctly, you're saying that this legislation may be contrary to present case law existing from the Supreme Court level. I know that may be an impossible question, because you obviously haven't had much chance to review it, but that's what I just took your last remark to mean.

Mr. Irwin Koziebrocki: I think what I'm saying is exactly what I said before. If you look at, for example, the latter sections in this act and you look at what the Supreme Court of Canada says in Feeney and in Landry and in other cases, you will see that there are certain requirements that are set out by common law and mandated by the Supreme Court of Canada that are removed by this legislation. So then you have to consider whether in fact it is contrary to that judgment.

• 1830

The Chair: Mr. Bryden, did you have a question?

Mr. John Bryden (Wentworth—Burlington, Lib.): Yes. It reflects my lack of being a lawyer, but if this legislation is challenged under the charter or for its constitutionality and fails that challenge, is the entire bill struck down, or just the relevant clauses of the bill?

Mr. Irwin Koziebrocki: Just those clauses that are successfully challenged.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Getting back to this word “exigent”, is this defined in Black's Law Dictionary, or whatever? Do you know what it means to you and what it really means? Would you suggest to us a better word?

Mr. Irwin Koziebrocki: I don't know if it's defined. I'm sure it is defined. It's a word that lawyers have used on occasion, and the Supreme Court of Canada uses it, so it's obviously important.

It's not the kind of word I go around and use with my children or with anyone else I speak to on a regular basis. It's a difficult word. But what it does do is...it's a situation where it's not so much the word that's important as the circumstances that fall within the meaning of that word. What you look at is whether particular circumstances fall within that requirement of the legislation or the Supreme Court of Canada judgment.

For example “hot pursuit”, which is a word we know because it's something that's become vernacular, falls within those circumstances. Saving someone's life I think would fall within those circumstances because.... That's what you have to look at.

If you're looking for a better word, I haven't really had a chance to think about a better word, but I'm sure there are some.

Mr. Paul Forseth: There must be a reason for choosing that word for some legal precision, and I'm wondering if that is the best word or perhaps there might be another word.

Mr. Irwin Koziebrocki: That's the word the Supreme Court of Canada uses in their judgment, so they must think that's the appropriate word.

The Chair: Thank you, Mr. Koziebrocki. We appreciate your help, as usual, and we'll see you on the 22nd.

We have arranged for some sandwiches upstairs. You may want to caucus before we go to clause-by-clause. I don't know. If we can be back here in 15 minutes.... Okay.

We're adjourned.