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Friday, October 31, 1997 CANADA VOLUME 135 S NUMBER 025 S 1st SESSION S 36th PARLIAMENT OFFICIAL REPORT (HANSARD) Friday, October 31, 1997 Speaker: The Honourable Gilbert Parent CONTENTS (Table of Contents appears at back of this issue.) All parliamentary publications are available on the ``Parliamentary Internet Parlementaire'' at the following address: http://www.parl.gc.ca 1395 HOUSE OF COMMONS Friday, October 31, 1997 The House met at 10 a.m. [English] _______________ Given that the Criminal Code does not specifically provide a mechanism for obtaining judicial authorization prior to entering a Prayers dwelling for the purpose of arrest, a majority of the Supreme Court of Canada in R. v. Feeney suggested that such a provision be read in _______________ pending the appropriate legislative changes. It is to that invitation that Parliament is asked to respond today. GOVERNMENT ORDERS [Translation] D (1000) I can assure you that the judicial uncertainty caused by the decision in the Feeney case was of great concern to law enforce- [English] ment authorities across Canada. In fact, provinces and territories responded to this decision by proposing temporary and singularly CRIMINAL CODE different solutions to enable police forces to perform their duties as Hon. David M. Collenette (for the Minister of Justice and best they could while taking into account the new requirements of Attorney General of Canada) moved that Bill C-16, an act to the Canadian charter. amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings), be read the second time and referred to As requested by the attorneys general of British Columbia, a committee. Alberta, Canada, Ontario and Quebec in the days following the decision in the Feeney case, the Supreme Court of Canada granted Ms. Eleni Bakopanos (Parliamentary Secretary to Minister a stay of proceedings for six months from the date of the decision of Justice and Attorney General of Canada, Lib.): Mr. Speaker, I on application of the Feeney decision. Consequently, unless the am pleased to rise today in support of the motion to refer Bill C-16, stay is extended, any amendment to the Criminal Code should be the powers to enter dwellings to arrest act, to the justice committee made by November 1997 at the latest to prevent a legislative for second reading of that bill in this House. vacuum after that date. Bill C-16 will enable peace officers to enter dwellings for the The Minister of Justice is prepared to co-operate with the hon. purposes of arrest in a manner which conforms to constitutional members of this House, on both sides of the floor I might add, to requirements. The bill essentially creates a warrant scheme by meet the deadline set by the Supreme Court of Canada. which peace officers may obtain judicial authorization before entering a dwelling to arrest someone. The bill also sets out certain The Minister of Justice believes that Bill C-16 contains a system circumstances under which such warrants or authorizations are not to obtain entry warrants which, on the one hand, is designed to required. serve the interests of those responsible for law enforcement by D giving police forces the power to enter dwelling houses with or (1005) without an arrest warrant and, on the other hand, respects the [Translation] privacy of individuals in their dwelling houses, as guaranteed under the charter. As we all know, on May 22, 1997, the Supreme Court of Canada rendered a decision which has a significant impact on the way Members of the public and law enforcement officials could police forces may exercise their power of arrest. argue that the bill does not go far enough by not giving police It is a matter of determining whether, under common law, an officers the same powers of entry and arrest they had before, I arrest can take place in a dwelling house with no prior judicial repeat before, the Feeney decision. intervention. In the Queen v. Feeney decision, the five majority [English] judges ruled that, because of the Canadian Charter of Rights and Freedoms, police forces must first secure a warrant for entry to However, given that Feeney was decided on constitutional carry out an arrest in a dwelling house. grounds, it would not be possible to restore the common law power 1396 COMMONS DEBATES October 31, 1997 Government Orders to enter a dwelling to arrest. To put it plainly, the court has ruled First, when an arrest warrant has already been issued, a police that the privacy interests must be balanced against the interests of officer can request a warrant to enter a dwelling to make an arrest. the state to arrest in a dwelling house and that balancing of interests must be done by a judge. If the legal framework is flexible enough, Second, when no arrest warrant has been issued, a police officer there should be a way to balance those competing interests without can request a warrant to enter a dwelling to make an arrest, jeopardizing the safety of Canadians. Bill C-16 does just that. provided he has convinced a judge or a justice of the peace that there are grounds to make an arrest without a warrant, as provided At the other end of the spectrum, some people would argue that under section 495 of the Criminal Code. the supreme court has suggested that in all cases the police would have to obtain an arrest warrant which would be accompanied by an authorization to enter the dwelling. From this perspective the Third, if a police officer is requesting a warrant for the arrest of a police would have to formally charge someone before obtaining an specific person, he can, at the same time, ask the judge or the authorization to enter. We do not think that this is needed in order justice of the peace to authorize, in the warrant, the police to enter a to satisfy the constitutional requirements imposed by the supreme dwelling, particularly if the officer believes the person for whom court. the warrant is issued is in that dwelling or will be found in it. The authorization will be granted if, when the arrest warrant is later executed, the police officer has reasonable grounds to believe that D (1010 ) the person for whom the warrant is issued is in that dwelling. What is constitutionally mandated is that an impartial arbitrator [English] decide whether the entry on private premises should be permitted in order to effect an arrest. The bill also addresses exigent circumstances as an exception to the need for an authorization to enter. It is not always possible for In the view of the Minister of Justice, requiring that someone be the police to obtain a judicial authorization prior to entering a charged before a warrant for entry can be issued would result in a dwelling for the purposes of arrest or apprehension. rigid and ineffective warrant scheme which would frustrate the proper administration of justice in this country. In Feeney, the majority of the Supreme Court of Canada [Translation] acknowledged this fact and reaffirmed the common law power of entry in situations of hot pursuit. The Minister of Justice believes the legislation strikes a proper balance. Under the bill, the police could obtain the judicial Given that the court clearly recognized that hot pursuit is an authorization to enter a dwelling to arrest a person, without having exception to the requirement that there be a warrant for entry, this to formally charge this person. legislation does not address this issue which has been dealt with conclusively by the Supreme Court of Canada. The question of In other words, the bill will afford the police as much flexibility what other situations would justify an exemption from the require- as possible, given the limits imposed by the charter. ment of prior judicial authorization was left open by the supreme court. [English] This legislation, therefore, contains an non-exhaustive definition In fact the bill is the product of extensive consultations with of certain exigent circumstances under which entry into a dwelling interested parties such as the provincial attorneys general, the for the purposes of arrest or apprehension would be allowed in the RCMP, the Canadian Association of Chiefs of Police, the Canadian absence of prior judicial authorization. Association of Police and the Canadian Bar Association. D The legislation contains a realistic compromise between posi- (1015 ) tions that either lack necessary flexibility or are constitutionally flawed. The Minister of Justice believes it is important that parliament expresses itself on what exigent circumstances would justify the I would like to take this opportunity to review the different state entering a dwelling house without a warrant for entry to effect features of this legislation. an arrest. [Translation] Entry would be expressly allowed in the absence of a warrant where the police have reasonable grounds to suspect that entry into The bill primarily seeks to provide a legislative system under the dwelling is necessary to prevent imminent bodily harm or which the police can request the judicial authorization to enter death. The integrity of a human being is a value sufficiently dwellings to make an arrest. The system provides that such an important that the state can intervene without getting prior judicial authorization is required in the three situations listed below. authorization to enter. October 31, 1997 COMMONS DEBATES 1397 Government Orders Entry would likewise be expressly allowed where the police from both sides of the equation and fully flesh out all aspects of the have reasonable grounds to believe that evidence relating to the bill. commission of an indictable offence is present in the dwelling and where that entry is necessary to prevent the imminent destruction It has been a trademark of the justice department to bring in bills of such evidence.
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