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

• 1901

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We're back on the record.

There's one government amendment, and while we're passing it out, I'd like to do two things. First, we have a brief from the Barreau du Québec, and I'm sorry Mr. Marceau is not here, because it's only in French. But I'm going to tell them we accepted one that was only in French.

The second is that both Jack Ramsay and I received a call from a woman named Sandra Teves. She wrote me a letter and wanted to come as a witness. She didn't, but I decided after talking to her to ask for unanimous consent to table a letter from her as an exhibit.

I'm just going to read two paragraphs for you so it's on the record and she knows that the members of the committee and the representatives of the Department of Justice who are here heard this. I think it's fair to say she was in a lot of distress over the murder of her brother and his two friends. Just let me read this. She says:

For the following reasons and with much personal interest. On July 12, 1997 Kitimat, B.C. had its first encounters with the repercussions of the Supreme Court ruling entitled the “Feeney decision”. My 20 year old brother Mark along with his friends David Nunes and Michele Mauro had fallen victim to a heinous and bizarre encounter/murder with the accused Kevin Vermette.

These are her words, not mine.

This culprit had been identified by two eyewitnesses at the scene of the murder. After this triple homicide and during the current murder investigation commencing that evening, police were delayed numerous hours in the field gathering and documenting evidence in order [to] obtain a search warrant to enter a premise. Police, as a result of Feeney had to be concerned with Vermette's privacy rights after he had committed the most ultimate crime in society. In this type of situation, where a murder has just been committed, different circumstances should exist which allow police to exercise their duties to apprehend a known and eyewitnessed criminal.

Police were in the field, investigating a current and serious crime and with Feeney they were impeded by a judicial process for a judicial process. While parliament has put forward amendments with Bill C-16, as a family member of a murder victim and concerned citizen I believe it is important that [the] committee recognize how this ruling and future law has tied up police's hands. This story and our encounters with this ruling can perhaps provide and clarify emergency circumstances (hot pursuit/fresh pursuit) where police can better act to carry out a murder investigation.

Then she goes on:

Thank you for your consideration. With regards, Sandra Teves.

I just wanted to make sure we heard this and that Sandra knew that in some form, in any event, her voice had been heard. I know she expressed concern to Mr. Ramsay as well, and that will be an exhibit.

Thank you

Yes.

Ms. Elinor Caplan (Thornhill, Lib.): Is it possible, or practice, for the clerk to send a copy of the proceedings, which would include your reading of the letter to her?

• 1905

The Chair: Yes. I was just going to ask that the clerk notify her that this was done and that we send her the Hansard whenever it's available. Thank you.

Ms. Elinor Caplan: People really appreciate knowing their remarks were actually considered by the committee, and at this time, as we begin the clause-by-clause consideration, I appreciate you reading that into the record.

The Chair: Yes, Mr. Ramsay.

Mr. Jack Ramsay (Crowfoot, Ref.): Just before we begin the clause-by-clause, I would like to announce to the committee that we will not be introducing any amendments to this bill. Of course, we have not had time to really consider amendments, and if there are going to be amendments it will be at report stage.

The Chair: Thank you very much.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I agree with you. We won't have any here, nor in the House.

[English]

The Chair: I wanted you to know that the Barreau du Québec tabled a brief—

[Translation]

Mr. Michel Bellehumeur: Yes, I read it.

The Chair: It is only in French.

Mr. Michel Bellehumeur: Yes, I know. We did, however, tell them to present their brief in both official languages.

[English]

Mr. Jack Ramsay: I wanted it in French but it was only in English.

The Chair: Are we all set then?

Go ahead, Michel.

[Translation]

Mr. Michel Bellehumeur: Mr. Ramsay, I did talk to the members of the Quebec Bar, and I notified them that next time, they will have to provide us with the versions in both French and English. Moreover, when we adopt our procedures, I will table a motion asking that we refuse to accept briefs that are presented in only one of the official languages of this great, wonderful country.

Thank you very much.

[English]

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): In reference to amendments or proposed amendments, I certainly don't expect that they have to be in writing for today. I'm just wondering, in terms of notice at the report stage, what your feelings are on that.

The Chair: That would be governed by the rules of the House, and my feelings wouldn't amount to a hill of beans on that, you'd have to talk to our House leader. But if I can assist you in any way, I will do that.

(On clause 1)

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Madam Chair, if we're moving through and we're at clause 1, there is an amendment proposed by the government. I don't know whether copies are distributed.

The Chair: They are, in both official languages.

Mr. Derek Lee: This particular amendment is to clause 1. As you will note, proposed subsection 487.3 deals with the circumstance of sealing or protecting the access to the information that allowed the judge to make the decision for the giving of the warrant. Omitted from that section was the circumstance of the giving of information that would allow the authorization under proposed subsection 529(4), that is, the exemption from the announcement requirement, information to allow the judge to make the exemption. This scenario would be written into this clause 1 so that access to this type of information could similarly be protected. That's all it does.

• 1910

(Clause 1 as amended agreed to)

(Clauses 2 to 4 inclusive agreed to)

The Chair: Shall the preamble carry?

Some hon. members: Agreed.

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall I report the bill to the House?

Some hon. members: Agreed.

The Chair: I would ask for a motion that I table the bill in the House, with its amendment, as the first report of the committee.

Mr. Provenzano.

Mr. Derek Lee: Madam Chair, I was waiting for the motion so I could state something.

As we've gone through this bill, we have come across at least one major circumstance that I think we should note. I gather it's not appropriate to report it back to the House, but the circumstance involves the Supreme Court undermining a section of Canadian law that requires Parliament to jump right back in and fill a void or a vacuum at a time when Parliament is dissolved, or really at any time. When the Feeney decision was made, Parliament was dissolved. I'm sure the Supreme Court didn't plan it, but it's most unfair to say this is a job for Parliament at a time when Parliament is dissolved and it didn't have any real prospect of coming back for three, four or five months.

I think our government should develop a protocol for that purpose, one that we're all familiar with, that the Department of Justice is familiar with and the Supreme Court is familiar with, so that when something like this happens again, everybody knows because Parliament will have spoken. Hopefully, Parliament would adopt the protocol and say if this ever happens again, this is the procedure we want to use. It's like a temporary mini notwithstanding kind of protocol.

I'd like the committee to look at it. I'd like the government to consider that and take note of it.

The Chair: Let's do two things. Let's pass the bill; let's finish our last motion. Then let's stay for two minutes, because maybe there's a way we can deal with that.

Mr. Peter MacKay: Madam Chair, before we do that I do have a possible amendment I would like to put forward.

The Chair: To which section?

Mr. Peter MacKay: Proposed subsection 529.4(3).

The Chair: You're going to need unanimous consent.

Do I have unanimous consent for Mr. MacKay to propose an amendment at this point?

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): What I suggest is that before we entertain this we might just hear what he's proposing.

The Chair: Let's hear what it is, and then I'll ask.

Mr. Peter MacKay: It's proposed subsection 529.4(3). You will note just from the text that there is a difference between the French and the English in this section. That stems from the fact that the wording is different.

I propose that proposed subsection (3) be amended to read:

A peace officer who enters a dwelling-house without a warrant under section 529.3 may only

—crossing out the word “not”—

enter the dwelling-house without prior announcement if, before entering the dwelling-house, the reasonable grounds stated in subsection (2) exist.

That will then mesh. That's a literal translation of what exists in the French version in its present form.

The Chair: Before we decide if there's unanimous consent to the amendment, do you want to speak to that Mr. Roy.

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Madam Chairperson, you've heard me many times make the same kind of intervention. This is a style of drafting that in English is perfectly appropriate, using section, subsection, paragraphs, whereas in French oftentimes—and you will see that in the code and in other federal legislation—we have a different way of expressing this, which is reflected in proposed subsection (3) in this one. This is to the extent that the two subsections are saying the same thing in French and in English.

Our preference, with all due respect, is to leave it the way it is, because, as I like to say, it's la génie de la langue that's at play. How we express ourselves in English may be a little bit different from how we express ourselves in French. In legal drafting, this is particularly true.

• 1915

So I hope I'm not wrong, but my reading of both subsections tells me that they're saying exactly the same thing. It's just that it's expressed in a different fashion.

The Chair: The custom is developed differently in different languages, then.

Mr. Yvan Roy: True.

An hon. member: It's because they're distinct.

The Chair: You mean there are two cultures?

Some hon. members: Oh, oh.

An hon. member: Only two?

The Chair: In any event, we don't have unanimous consent, but we do have an explanation. Thank you for raising that. It was quite edifying.

I have a motion from Mr. Provenzano that the chair table the bill in the House, with amendment, as the first report of this committee. Shall that motion carry?

(Motion agreed to)

The Chair: Thank you.

Now, Mr. Lee, would you like us to make a little report to the minister about our concerns?

Mr. Derek Lee: I could just carry on where I left off, for another fifteen seconds. If it is appropriate to report in conjunction with this, i.e., a second report to the House or an add-on.... I don't think we can report back with something else added on. Maybe we can ask the clerk.

The Chair: We don't like to be told no.

Mr. Derek Lee: Prove it.

I therefore suggest that we've all had the benefit of the hearings here, and we'll never be any closer to recognizing the problem than we are now. This might be an appropriate time to cobble together a very short report that recognizes the problem and proposes that the government take steps to develop the protocol I described.

The Chair: I don't think anybody disagrees that we didn't like our feet put to the fire here.

Ms. Caplan.

Ms. Elinor Caplan: I think it's an excellent suggestion. My view is that the best would be a reference to the minister on the concerns of the committee following the representations, but also the chronology of events. We can then see if, through discussions with the Supreme Court, the minister could notify the committee whether or not it's possible to prepare a protocol to avoid this kind of situation. I know there was grave concern across the country about the effect of the Supreme Court decision, and the timing of the decision, when there could not be a response from Parliament because Parliament had been dissolved.

I think the point raised by my colleague is an excellent one. I would hope the minister would be able to respond with a suggestion on how these matters could be handled in the future.

The Chair: Mr. Ramsay, and then Mr. Provenzano.

Mr. Jack Ramsay: I appreciate the spirit in which Derek has raised this issue. However, what I find at issue here is the length of the suspension on the Supreme Court of Canada's decision. I do not think the Supreme Court of Canada can withhold a decision based upon the sitting of the House of Commons. So how do we alleviate the problem, and what really is the problem?

There are two things here, from my point of view. There's the practical problem of what it does to the law enforcement agencies across the country, but the suspension looked after that. The agencies continued with the old common law for six months, and will continue until November 22.

My concern is the length of time we've had to consider the bill, together with the suggestion made by Scott Newark that there should be an issue of notice by the Supreme Court so as to allow the crown—either the federal crown or in conjunction with perhaps the provincial crown involved—to make submissions to or arguments in the Supreme Court.

Section 1 of the charter, the override, was not even considered by either or any of the justices in this decision. Form the testimony of Mr. Newark on this matter, it seems that this should have been argued. If it was argued, it would have had to have been considered.

• 1920

So I would entertain that as a possible intervention in future cases like this. If the suspension had been another month or two longer or, on the other hand, had the justice department been able to get this thing to us as soon as we got back here, we wouldn't be in the pickle we're in with a deadline we're rushing to meet.

Those are my thoughts on that matter, Madam Chair.

The Chair: Mr. Provenzano.

Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): I have a thought to express to the committee members, Madam Chair.

You wouldn't want to put the minister in a position where the minister might be perceived as interfering in the function or the workings of the court.

It seems to me, Madam Chairman, that you would not be in that position, that you could communicate—

The Chair: Get Cohen to do it; she'll do anything.

Some hon. members: Oh, oh.

Mr. Carmen Provenzano: What I'm thinking, Madam Chairman, is that you could communicate the sentiments that have been expressed by the committee, with the consent of the committee, surely, and it doesn't have that same overtone to it.

The Chair: Thanks, Mr. Provenzano.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: At first sight, what Mr. Lee is proposing seems to be a good idea. However, six months would not necessarily have been unreasonable if we had started studying the bill as soon as the House was reconvened.

We should not deny it, nor delude ourselves. Departmental officials worked on the matter and not the Minister of Justice. The Minister of Justice probably did not look at the bill until it was completely drafted, and perhaps amended only two or three points. I think officials from the Department of Justice were more involved on working on this matter and held consultations without knowing who the Minister of Justice would be. They probably started as early as May 1997.

So the six-month period, even taking into account the federal election and a new Parliament, was reasonable in my view. However, the government should have perhaps been in more of a hurry, given the RCMP's time frame, and presented it as soon as the House was reconvened. Then we would probably have had three or four more weeks to hear witnesses.

So yes, at first sight, it is a good idea. However, before I give you the go-ahead on the proposal, I would like to see the protocol, the letter or the report. I have no idea what you are going to prepare. You obviously do not have it this evening, and I cannot approve a proposal if I have not seen the text. At first sight, it could seem reasonable, but in fact, I think it is going a little too far. We know very well that the government has some idea of what the Supreme Court judges think of parliamentarians when they say that they are the masters of the court and that they will make their own decisions when they are on the bench. We must admit that in a way, they are right.

So we should perhaps proceed carefully with this approach.

[English]

The Chair: I don't think anyone would suggest that we not go carefully. Mr. Rosen has said to me as an aside that he thinks he could cobble together something that would express what we're trying to express. Then we'll take a look at it. We'll put it on our future business for tomorrow.

Peter.

Mr. Peter MacKay: I'd like to make my remarks on this topic.

I tend to agree with my colleague from the Bloc with respect to the six-month waiting period. Although Parliament was not sitting, that's not to say that government per se grinds to a halt. I do find it somewhat questionable that this matter was brought forward in this Parliament less than four days ago.

The comments of Mr. Newark yesterday with respect to the consultation process and the fact that five and a half months of that process were spent by unelected officials drafting this legislation and we've had less than one week to have input into it...I find it problematic.

The Chair: I think it's fair to say that as parliamentarians, all of us, whether we're government or opposition, find the process difficult and difficult to manage. There were 100 more questions that could have been asked tonight, and everyone would feel more comfortable with more thought.

The facts are that we don't have the time this time, but there's nothing to stop us from saying to everyone involved in it that we didn't like the way this happened. There's absolutely nothing to stop us from doing that, nor is there a reason why we should shy away from it, for all of the reasons you mentioned. We haven't investigated it; we don't know. We just know that we have some questions. Why not express them? It's a free country and we have free speech.

• 1925

Mr. Peter MacKay: Is there a reason other than the fact that it would perhaps be embarrassing for the government that even the possibility of going to the court and asking for extension hasn't been explored? Is it going to make it through the Senate?

The Chair: Can I ask you, what would happen if they went to the court tomorrow and they were turned down?

Mr. Peter MacKay: We're on a fast track anyway.

The Chair: We're done. It's going back to the House. Let's let it go and see what happens in the Senate.

I'm sure there's an abundance of caution here in terms of timing.

Mr. Roy may or may not want to comment.

Mr. Yvan Roy: There hasn't been an application made to the Supreme Court for an extension of time because I have received advice from people who appear regularly before the court to the effect that it would not be prudent on our part to make such an application until the bill has been tabled and some consideration has been given to that piece of legislation by parliamentarians.

We find ourselves, however, in a bit of a catch-22 situation in that if I or the department have to wait for instructions from the minister to go ahead and do this until the bill has been tabled, and there has been some progress, then we are faced with a very tight deadline. If the court refuses the application, which is certainly possible, then you do not have a bill by November 22. If you do not have a bill passed by Parliament by November 22, we resort back to the situation as it was after Feeney, which prompted in the first place the attorneys general to intervene and go to the Supreme Court to seek an extension. It was basically chaos.

I can tell you that we are working on a motion that could be brought to the attention of the Supreme Court. Indeed, it would probably be my affidavit that would be in support of that motion.

Having said this, the rules require that there be a six-day period given to the other side to react to this, because there is another side. That takes us to next week. That is the reason why we've ended up in the situation we're in now.

Now, you have said—and we have taken note of this, be sure of that—that you do not like to be put in the situation in which we've ended up. Nor do we at Justice, the Minister of Justice in particular. But you have also heard from witnesses who said extensively yesterday that they have been consulted, and we have worked very closely with them.

Let me tell you how we ended up tabling a bill last week instead of early in September. The application of the Supreme Court was decided on June 27. We started the consultations at Justice the week after, in July, with the provinces, trying to get a sense of what would be feasible. We have been talking to a great extent over the last few days about telewarrants and the availability of resources.

Well, that's part of the discussions with the provinces; if we include something like this, will you have the resources available in order for the scheme to work?

Those discussions, with everything that takes place in July and August in this country, took us to the meeting of the Uniform Law Conference in Whitehorse in the second week in August. I sat down there with the provinces and said, listen, we haven't heard from you; we need to hear from you. Here it is; that's the situation. Take a look at the draft we have here on ideas as to where we want to go with this.

Having done research on the United States, other common law countries—and Gillian Blackell can speak to that, because she did most of it—and having tried to see what is feasible out there, and the options available, we started drafting during the first days of September.

You heard Mr. Newark say that over a period of six weeks there were at times daily meetings, and two or three times a day, in order to come up with something. Then you go to cabinet and then you're in a position to table this bill.

So you can fault us for not having been before you earlier. I'm willing to take responsibility for that. However, I have to tell you that there are some exigent circumstances, namely, the process that was followed in order to reach the situation we're in now.

• 1930

In an earlier case, the case of Swain—it was referred to yesterday—on the part of the government there has been an application made to the Supreme Court to extend that period by three months. However, the bill, in the case of Swain, had been developed over a period of 10 years prior to the decision of the Supreme Court, because there was work done by the Law Reform Commission and by the Department of Justice, thinking that was the direction in which we were going.

Even with all of that work done we had to make an application for an extension, which was granted by the court, given that it had moved in Parliament. The difference here is that nothing of that sort had been done.

Actually, as you have heard, we were taken a little by surprise by Feeney. That's the reason we ended up in this situation, with our apologies, because we understand the very difficult position in which you are put. Believe you me, it was not our doing and it was not done on purpose so that you would be put in the corner and wouldn't have a chance to consider the issues here. I am comforted in the fact that the witnesses you heard—from what we have seen of this issue—have put before you the weak points and the strong points of this matter.

There's no question that there are going to be charter challenges to this legislation. At the justice department we think there are very good arguments to present for each and every one of them. Otherwise the Minister of Justice would have told you so, as is her legal duty on the basis of the Department of Justice Act.

We have done what we think is the best in the circumstances and we're glad to hear that witnesses were able to come forward to tell you what the issues are. Hopefully that will help to enlighten you, as our presentations have tried to do too.

The Chair: Thank you. I'm glad you took the opportunity to clarify that.

Mr. MacKay.

Mr. Peter MacKay: I just want to respond very briefly.

I want to be clear. I'm not condemning the department or the process it has gone through, but you've made my case, because you've had five and a half months to look at this and we've had less than five days. Given the amount of information and the importance of this, that's the problem I have with it. My problem is not with what you've done.

The Chair: I think Mr. Lee made a good point. For this to happen without notice from the court at a time when Parliament is dissolved is truly problematic, because then we don't have any of the preparatory time or a chance to consult. The department often consults with us before legislation, but this has just been a mad dash. The fact that there's a level of discomfort is something that's worth exploring and communicating.

We have a meeting tomorrow morning to discuss future business.

Jack.

Mr. Jack Ramsay: I would be remiss if I didn't put this on the record.

For a bill that I'm going to be voting in favour of, a bill that probably has consequences as far-reaching as those of any bill that I have ever voted for since I've been a member of the House...there hasn't been a bill that gives me greater concern than this bill, because according to the testimony we heard we have a mess on our hands and we're dumping it on the front-line police officers.

I don't think we have properly addressed the problem created by the Supreme Court of Canada's decision on the Feeney case, and Madam Chair, that's all I'll say other than to.... I don't know whether the justice department had sufficient time or whether they were running up against a deadline that encompassed us as well, but I'm not satisfied with this bill. We'll be supporting the bill, but it's not going to answer the problem that the Supreme Court of Canada's decision on the Feeney case has created.

Thank you, Madam Chair.

The Chair: Thank you.

We're adjourned.