STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 12, 1999

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[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): I will now convene the meeting for the discussion of Bill C-440. We have with us the proposer of the bill, Mr. Dan McTeague.

Welcome, Mr. McTeague.

Mr. Dan McTeague, M.P. (Pickering—Ajax—Uxbridge, Lib.): Thank you, Mr. Chairman.

The Chair: Do you have a presentation for us?

Mr. Dan McTeague: It's good to see you again and to be able to deal with an issue that I think touches a lot of us here.

Mr. Chairman, first of all, I want to thank my co-sponsor, who couldn't be here. Joe Jordan, the member for Leeds-Grenville, along with myself, have discussed a number of issues and have had similar circumstances in our vicinities in the past year or so. We were somewhat troubled by the fact that the reckless act of taking a 2,000-pound vehicle and driving it with the purpose of fleeing police often winds up with injury or death—and that it was simply the police that would receive the punishment. We felt that there was some need to at least provide some balance, and I wanted to begin by making that opening statement. I think it's important to understand that these things don't arrive simply because of one person thinking about a bill.

I'm also pleased that, respectively, the Sub-Committee on Private Members' Business chose this to be a votable motion and that there was unanimous consent from the House after one hour of debate to bring it to your committee, sir.

Members, I think the issue is very straightforward. Bill C-440 is really about adding to the Criminal Code a section dealing with the matter of flight. It would actually be under section 249 of the Criminal Code, and it would, I believe, telegraph a message to those who flee police with impunity that to do so without reasonable grounds would have them wind up with clear and very predictable penalties.

I don't need to challenge members here, Mr. Chairman. We all have incidents that have occurred in our regions and our provinces in recent times, incidents that are testimony to the carnage we have seen as a result. I remember speaking not too long ago to Madam the Parliamentary Secretary to the Minister of Justice about the death of Father Ilce Miovski in my riding. He was a community leader of great repute, an individual who had really been a pillar in a in Macedonian community of well over 10,000 in my community in Toronto. He was tragically struck as a result of someone who was apparently fleeing. In this case, of course, it was not the police he was fleeing but the owner of another vehicle.

I think the point has been made by the deaths of Constable Richard Sonnenberg in Alberta, Sarah Bowman in Brampton, Ilce Miovski, and by the deaths of so many others, like Mr. Clyde Barnaby, for instance, who was killed not too long ago, just outside my riding.

Mr. Chairman, I think what is required and what this bill seeks to do, really, is to send a message, not simply of deterrence in itself but to have some predictable penalties for those who contemplate simply leaving police as a means of trying to evade other sanctions or for whatever reason, notwithstanding reasonable grounds.

Currently, as most of you will probably know—I know there are some lawyers in this crowd—there are two sections that touch on the issue of sanctions when it comes to operation of a motor vehicle, those being sections 249 and 220, one dealing with the dangerous operation of a motor vehicle and the other one dealing with causing death by criminal negligence.

Mr. Chairman, I think it's clear that there is a a unanimous desire from all quarters of this country to send a very strong and very unequivocal message to individuals, that being that society holds the irresponsibility of fleeing to be something that is extremely objectionable and that should get a measured degree of punishment, perhaps the kind of punishment that would outweigh the very reasons or motives for the person to evade in the first place.

It's for that reason that anybody who engages in the reckless disregard of innocent victims or who places our police, our public safety officers, our peace officers, at risk and at variance with the public should receive a degree of recognition for those acts, and those acts should themselves carry with them an opprobrium sufficient to prevent this from happening in the future.

Obviously I hope there will be some questions from the members of the committee, because I think it's fairly straightforward.

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One of the interesting parts of this bill is the fact that if we do believe that there are other instruments, which were announced, for instance, by the provincial minister, the Solicitor General, just some weeks ago, about the use of more regulations for police and perhaps even helicopters.... This bill may serve to provide an opportunity wherein once the identification is made of the potential assailant, the potential criminal, one could simply break off the chase, not put the public at risk, and then apprehend the individual at some point down the road with the understanding that the penalties would be measures that would not be something that would be “trade-off-able” as in what we see currently under section 249, the dangerous operation of a motor vehicle, where an offence is punishable for a certain period of time...or summary offences.

Mr. Chairman, I think the bill at least gives us an opportunity to provide more than simply deterrence. It gives us an opportunity to actually respond to something that I think is very much needed in all quarters of our population.

For the purposes of the members,

[Translation]

I will distribute copies of the speech that I gave in the House. It is in both official languages. I can also answer your questions in either language.

I look forward to your comments. This is a process that will require amendment to ensure the survival of this bill. Obviously, nothing is carved in stone. There is room for some flexibility. I am here to help innocent victims who are threatened by irresponsible acts of individuals who fail to assume the responsibilities we all have toward other members of society.

I am now ready to answer your questions. Thank you, Mr. Chairman.

[English]

The Chair: Thank you, Mr. McTeague.

Seven-minute rounds, with Mr. Cadman first.

Mr. Chuck Cadman (Surrey North, Ref.): Thank you, Mr. Chair.

I don't have any real questions. As I say, I think the bill is pretty well straightforward. I'd just like to make a brief comment about something that I recollect from a couple of years ago. I was coming home after playing hockey one night and came around a corner to see flashing red lights about three blocks ahead of me. My wife and I were in the car. I got to that intersection, saw a total wreck, and feared it was my own daughter, because I knew that she and her friend were right in front of us, about five minutes in front of us.

What I found out later—from talking to the police after I went around the corner and spoke to some of the members I knew—was that we had a fellow there who was well known to police. He was already on probation for stealing vehicles and running. He was taunting the police. He went by them with his car lights out, waving and yelling out the window at them at 2 in the morning. He went through a red light and T-boned a lady coming home from a church meeting, killing her instantly, on the spot.

I just wanted to make that comment on the record as to why I'll wholeheartedly support anything we can do to do something with these people who do these things.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Cadman.

Mr. Reynolds, do you want to take the balance of that time?

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): Yes, I'll take the balance.

I want to congratulate Dan McTeague for this bill. I think it's very good. I put in an amendment on the sentencing aspect, which I guess you'll bring out at the next meeting, but I think this is something that we can all agree is a good idea.

The Chair: Thank you.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm): I haven't read your speech and perhaps it contains a partial answer to my question. Assuming your bill passes and section 249.1 takes effect, does this mean a person could be charged with both the dangerous operation of a vehicle and with failing to stop while being pursued by a peace officer? Could a person be charged with both offences?

Mr. Dan McTeague: I don't think so. If Parliament does pass this bill, it will be up to a judge to rule on the reason why Parliament included this specific provision in the Criminal Code.

I also think that the penalties in the bill are harsher than the ones set out in section 249.

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Mr. Michel Bellehumeur: On the question of penalties, section 249 states the following:

(2) Every one who commits an offence under subsection (1)...

That offence would be dangerous driving.

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

There is no distinction made when the flight causes death. Is that the distinction being made here?

Mr. Dan McTeague: No. The difference, Mr. Bellehumeur, is not simply that the term of imprisonment is now five years. The difference is that the offence is now punishable on summary conviction.

Mr. Michel Bellehumeur: I see. Subsection (3), moreover, notes the following:

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

While your bill does have some merit, there is a problem. If there is something that the lawmakers have failed to mention and that they should do, then I don't have a problem and I will support your bill. Today, if a person is being pursued by a peace officer, fails to stop and in the process, kills someone standing on the sidewalk, in my view, that person could be charged under section 249.1(3), which is somewhat similar to the proposed section 249.1(1). Could you explain the difference to me?

Mr. Dan McTeague: I think I understand your question now. There are three parts to section 249. The existing provision call for a term of imprisonment of five years or summary conviction; in the case of the bill, the penalty is imprisonment for life, not for a term of 14 years. There are similarities, however, between the two. You will note that subsection (3) of the bill is similar to the existing provision, but that the two new provisions I am proposing in the bill are not the same as the existing ones.

Mr. Michel Bellehumeur: You're talking about penalties. As for the substance of this section and the offence itself, would you not agree that the person charged under your proposed section 249.1(1) could also be charged under section 249.1, although the punishment would be slightly different?

Mr. Dan McTeague: Perhaps, but we must take into account the fact that purpose of this bill is to address the issue of flight, rather than simply stating that anything other than flight can constitute the dangerous operation of a vehicle.

We want to send out a message, namely that fleeing the police is a criminal act abhorrent to society and we want this to be spelled out clearly in the Criminal Code.

Mr. Michel Bellehumeur: I have to tell you that I have a bit of problem with this. I'm trying to understand.

I can appreciate that some clarification is in order and that you have a specific objective in mind, namely to address the problem of persons fleeing the police, but if we have to amend every single section of the Criminal Code to cover every possible situation, we'll end up with 5,000 sections, not the current 1,200 or thereabouts.

I trained as a lawyer, but I have not practised law in 25 years. Peter, who was once a crown attorney, may approach the matter differently than I do, but it seems to me that...

Mr. Jacques Saada (Brossard—La Prairie, Lib.): That makes 25 years between the two of you.

Mr. Michel Bellehumeur: Maybe so.

As I see it, the Criminal Code is drafted in such a way as not to target specific offences, because in any case, some are certain to be overlooked. The provisions are drafted in general terms and case law is developed over time.

I recall some cases heard in court involving flight, cases where peace officers had pursued a person driving a motor vehicle. There was one case in Joliette where a driver crashed his vehicle into a store window and injured several people. The driver was charged with the dangerous operation of a motor vehicle and the fact that some people had been injured came into play. He did not get off lightly.

I can understand that what you are proposing might be clearer, but why draft a new provision when there is an existing one that covers the same offence?

Mr. Dan McTeague: I think we need to take into consideration the fact that the provision you're referring to would not, without my amendment and my bill, be specific enough or cover a situation with a person is fleeing the police. They say that dangerous driving is a catch-all, it does everything else except. It doesn't include flight as such. There is nothing saying that a person fleeing the police will be automatically charged with dangerous driving.

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You must understand that the sole objective of this bill is to make up for the omission in the Criminal Code of a section covering a specific act, in this case, flight without reasonable grounds from the police. I realize I'm not a lawyer. There is also the question of beating up a police officer.

[English]

What is the one about beating up a policeman? Assault...?

A voice: Aggravated assault.

[Translation]

Mr. Dan McTeague: We are asking for the inclusion in the Criminal Code of a specific section to address this issue, instead of settling for a provision of a more general nature.

[English]

The Chair: Mr. Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

Mr. McTeague, I too want to congratulate you for the initiative you've taken. As you know, I've spoken to this bill. I'm supportive of the bill, but I do have a couple of questions, some of which Mr. Bellehumeur has touched upon.

I know what you're seeking to accomplish and what in effect this bill will accomplish, and that is to bring together.... There are two elements that I see happening. It brings together some Criminal Code sections that already exist. The dangerous driving section exists. The flight element...there are sections of the code that you've referred to, such as resisting arrest and fleeing lawful custody, and you use the example of taking assault and adding the element of assault on a police officer. I would use another example: committing an offence while using a weapon, which I think is more analogous to what you're accomplishing here.

But having practised criminal law, I know that one of the biggest challenges that the crown prosecutor and, by extension, the police face in securing a conviction is proving all the elements of the offence. What this new section of the Criminal Code does is to put a new element to this offence, which now has to be proved, mainly, flight.

It's obviously viewed now by the courts as an aggravating circumstance, extremely so, this fact that a person kills another individual using a vehicle as a weapon. This bill in and of itself highlights that fact. The weapon here is the vehicle, which is being used in a dangerous fashion and results in death. But I can't help but wonder aloud why a prosecutor would choose to go with this particular section when they already have available to them the Criminal Code section that you're aware of: dangerous use or operation of a motor vehicle causing death.

Aside from the fact that it has a higher sanction, I would be fearful that the crown would view this as the crown being required to prove the element of flight beyond a reasonable doubt, along with every other element, along with jurisdictional requirements, identification, the driving element—the entire caseload and presumption carried by the crown. We now have to additionally prove flight and have witnesses to that and be able to prove this additional evidentiary requirement beyond a reasonable doubt through our evidence and through the presentation of our case.

Mr. Dan McTeague: That's a good question, Mr. MacKay. I suppose that is probably the task of both crown and defence in terms of looking after the discharge of the Criminal Code, in terms of the process in which we adjudge people to be guilty or innocent.

I suspect that in this case.... Let me first of all say that there is a provision within this bill that deals with double jeopardy. I'm sorry; I was trying to get that out with Mr. Bellehumeur. I want to make sure that is on the record as well. If my clear reading of the bill.... I will get back to him in just a second and he'll have another chance to respond to that.

Richard Sonnenberg was killed in 1993. Under the same provisions of the law, the offender in this case received a sentence of merely six years for the life of a police officer.

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I realize that in many instances the person who has committed an offence or is about to commit an offence under this bill may be simply trying to evade something as simple as a suspended driver's licence. In many of those cases, I think, it would be a question of experts coming forward at some point down the road. I'm sure there are witnesses who will be able to talk to you at greater length about the need and the necessity to send a specific message, certainly in those instances.

As for the ability to prove why someone would not take dangerous driving...I suppose that in this case it would probably be because we want to telegraph a message to the public at large that leaving the scene or leaving the apprehension of an officer carries with it a fairly serious sanction. Whether the crown could prove that or not, I suppose, to make that argument is another tool at the disposal of the crown. You have infinitely more experience in that area than probably any of us here. I would only suggest that this does send more than just a political message. It does provide another legal tool. Whether it is used or not, I think it is really a question of discretion that will fit the circumstances.

I can say this: the circumstances surrounding many of these evasions deal, again, with people who are fleeing for probably the most inane of reasons and who can do so by simply saying that they are going to put the police officer or whoever is chasing them in harm's way, in front of the public, so that in that case they can probably force them to disengage, or they can shake off whatever it is they're evading.

I think what the public seeks from all of us here is a solution to a very specific problem, a unique problem, which I frankly think requires a unique response in the Criminal Code.

Mr. Peter MacKay: I think that's a perfect answer, and it's one that I agree with. You can add to that as well that even though this is probably a very narrow gap in the Criminal Code, it's one that will send a message of general and specific deterrence. I suspect that there will be occasion...that this could be used, and it is aimed, I suppose, at embodying in the code a specific message for the police themselves—that choosing to flee, for whatever reason, is going to be met with a greater sanction.

That brings me to what I suppose is a statement as opposed to a question. It appears that over the years there has been somewhat of a back-and-forth on the issue of pursuit, with the police themselves making the decision as to whether they will in fact pursue a criminal that's fleeing in a motor vehicle.

I'm sure that in the research that led up to your introduction of this bill, you encountered some of those cases and the precedents where police themselves have been accused of exercising poor discretion in pursuing a vehicle, particularly through a residential area, or in any event, where it ended in a tragedy and the result was death or injury on the part of either the person who was fleeing or a bystander. Do you feel that this is consistent, then, with the police and their most recent policy—as opposed to a legislative initiative—that they will in fact pursue, in most instances, a criminal who is fleeing apprehension?

Mr. Dan McTeague: Mr. MacKay, that's an excellent question. I'm not sure that this is going to be the ultimate panacea for a problem which is, frankly, a constant in every one of our communities. I can say this: in my province, Ontario, the Solicitor General has of course released the Suspect Apprehension Pursuits Report. The night Father Ilce Miovski was killed, the media did not report the fact that two other evasions had taken place that evening. In both those instances, to my understanding, to my knowledge, the police actually broke off the chase, fearing, of course, that these individuals who were engaging in reckless and wanton abandon—a risk to the public—were prepared to use the public as a wedge between themselves and being apprehended.

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My fear with all of this is that if we don't have a bill that demonstrates some goodwill rather than regulating the police, where we're in a situation where we're not regulating the criminals but the police, I suppose the incentive might be for an officer or those that command not to engage in the chase in the first place. The question becomes, how do you enforce the laws that are there in some circumstances when it's made almost practically impossible to do so? It's easy to simply say yes, let them go.

In the Brampton case, you had someone who had broken into several homes—the case is before the courts, obviously—and you had somebody who was then pursuing. They had gone through seven red lights, and fortunately no one was hurt in that, but at the eighth light, Sarah Bowman, a 20-year-old girl, was killed, her life knocked out of her by someone who frankly couldn't care. Very little of this had to do with the police chase.

In all those instances that I can think of, the SIU has actually cleared the police, and I think the SIU has done its job. I think the problem is that we as legislators may have missed the boat for a couple of years, and it takes more.... I'm not one to believe that it takes the death of a person to convince us of how to do the right thing, but I think in this case we have to look very clearly at the message that I think is being sent from all-political, all-community, all-gender quarters of our society, which is that.... For instance, I was so surprised to see that in my neighbourhood The Toronto Sun, The Toronto Star, The Globe and Mail, and a bunch of other papers are all saying the same thing. They're saying okay, the provinces and the police are doing their jobs, and in fact if they don't do their job, there are a number of sanctions, but what about those who knowingly engage in this kind of activity? It places all of us at risk, and it's just a numbers game before one of our loved ones get hurt.

We talk about the deaths, but no one talks about the injuries, and there are many injuries. What's the cost to society?

Mr. MacKay, I know of an instance that happened shortly after I was speaking to the CPA in Belleville. I think you were there as well that day. There were two instances where the police simply refused to engage because of the concern they had, the ultimate concern about risk to themselves. Where is the ability to uphold the law there?

The Chair: Thank you, Mr. MacKay.

Mr. Saada.

[Translation]

Mr. Jacques Saada: I have a fairly basic question for you. It's not technical at all. I'm not a lawyer.

If I understand correctly, a person can be charged with dangerous driving under existing provisions in the Criminal Code. Your bill would make flight as such a criminal offence.

Mr. Dan McTeague: This is not a case of double jeopardy. The penalty would be different.

Mr. Jacques Saada: I understand. I'm simply trying to understand Mr. Bellehumeur's question. Existing Criminal Code provisions, specifically section 249, cover the offence of dangerous driving. Is that correct?

Mr. Dan McTeague: Yes.

Mr. Jacques Saada: You're referring to behaviour which, while not necessarily constituting dangerous driving, would nevertheless be considered criminal.

Mr. Dan McTeague: Yes.

Mr. Jacques Saada: Is that in fact your objective?

Mr. Dan McTeague: Yes, it is. However, I would like to direct your attention to subsections (3) and (4) which concern

[English]

double jeopardy. You can't be charged for both things, Jacques.

[Translation]

Mr. Jacques Saada: I understand.

Mr. Dan McTeague: At present, this can be done, although discretion can be exercised. The Crown may decide that this falls under section 249 or section 220. However, in both of these instances, there is no specific reference to the behaviour or to the act of fleeing the police.

Secondly, as I mentioned earlier, the penalty set out in the bill is different.

Mr. Jacques Saada: I understand. Let's take a straightforward example, to further our understanding.

A police officer is pursuing a vehicle and the driver attempts to flee. He arrives at a level crossing, doesn't stop, proceeds through the crossing and continues on. The police officer pursuing the vehicle must stop and wait for a train to pass. In this particular case, could the driver be charged under a provision in your bill?

Mr. Dan McTeague: Yes.

Mr. Jacques Saada: However, he could not be charged with dangerous driving under section 249?

Mr. Dan McTeague: That depends. If he was driving dangerously in this instance, then the answer is yes. The new provision is meant to address a different situation, but in this case, the answer would be yes.

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Mr. Jacques Saada: This provision is a little more inclusive.

Mr. Dan McTeague: It addresses specific behaviour. These two sections of the Criminal Code and even others can always be invoked. However, this clause covers specific behaviour in a particular instance and provides for specific penalties.

Mr. Jacques Saada: Thank you.

[English]

The Chair: Mr. Lee, do you want to take the balance of his seven minutes?

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Sure, Mr. Chairman.

I want to congratulate Mr. McTeague on attempting to address this perceived gap in the Criminal Code.

You're a fairly prolific contributor to private members' business legislation—

Some hon. members: Oh, oh!

Mr. Derek Lee: —and I congratulate you, but you've also learned how picky your colleagues can be when bills do come forward.

Just to give you an idea of how picky some of us can be, the essence of this bill is described in the margin as “flight”, but as I read the proposed section, it is perhaps “failure to stop”. The essential legal element here is failure to stop, and if I may, I will just read the proposed section in layman's terms with a kind of a charter perspective on it, because nowhere here, apparently, is there an element that the individual has done anything wrong—as the section commences.

Let's just assume in my hypothetical case, as I read this with layman's words, that you have a citizen who has done nothing wrong and is driving a motor vehicle. The proposed section reads, essentially, that a policeman may pursue a citizen, but if the citizen fails to stop, the policeman may charge and try to convict.

I don't think that's what you have in mind. I think you have a bad guy in mind. If there is an agent of the state who is also a police officer and who happens to be pursuing the citizen, I think the courts will have some difficulty embracing that relationship at first blush. Now, if the individual has done something wrong and the policeman has reasonable cause to take up a pursuit, that's okay. But if that isn't the case, how would the citizen even know he's being pursued?

Mr. Dan McTeague: Good question, Mr. Lee, but I think the way I had structured the wording of the bill.... Right off in the first paragraph it says, anyone operating a motor vehicle who is pursued by a police officer and who fails to stop, “without reasonable cause and in order to evade the peace officer”. I think one would have to be able to prove it. I think this was the question that was asked a little earlier. One would have to get into the whole question of whether or not the person had intended to do so.

Reasonable cause would probably not, I suspect, include something along the lines of “I just didn't even notice he was there”. However, it's a different thing to say, “I saw him and I went for 15 miles and there was a spike belt put in front of me, I avoided that, killed a cop along the way, and ran around the corner.” I understand that you're concerned about what this does to the reasonable man or woman in the street who says they just didn't see them or a peace officer that doesn't have the cherries flashing.... In those cases, how would a judge look at that? I suspect that in those cases a judge would probably not agree that a person like that would be construed as having engaged in not stopping or failing to stop or engaging in flight, however you want to arrange it.

By the way, I point out to you that if you have some technical...some concerns in terms of this bill, if it creates greater certainty for our enforcers and for those who interpret law, then by all means—you are collectively far better at writing law and improving a bill than I am. I would say that the question of reasonable cause in my mind, in the way I understand it, would mean that if I didn't see the person pulling me over and it was a dark night or if I thought it was someone trying to do something or play a game with me, then, I think, that person would not have to be subjected to.... A charge could always be made. Anyone can make a charge.

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Mr. Derek Lee: Close to 100% of our peace officers operate in good faith out there, but if there is one bad circumstance, let's say, like a peace officer who follows for five miles, is just following and is curious, and the driver isn't paying attention and doesn't know he's being followed.... He's in a bad mood and he's distracted. The policeman ultimately pulls him over. The guy rolls down the window and says, “You son of a bitch. What did you pull me over for? I haven't done anything wrong.” The policeman says, “I'll show you why I pulled you over. It's section 249.1. I've been following you for five miles, and you can tell your story to the judge. If you have a reasonable case, fine, but right now you have a bad attitude, buddy, and you get a criminal charge.” That's something I'm concerned about. There isn't an answer here, but we'll be thinking about that.

The good thing about this is that you've built in the concept of pursuit, but maybe the bad news is that pursuit is built in as well, because in urban scenarios—and I guess even in suburban or rural scenarios—police pursuits are dangerous. They increase the risk to the innocent public. So if the pursuit is there, those kinds of pursuits are usually seen to be risky and should be avoided. But then, I suppose, your section allows the breaking off of a pursuit where there has already been a pursuit. That charge could be laid later—

Mr. Dan McTeague: Exactly.

Mr. Derek Lee: —because there has been a flight, but you would still have to show that the driver knew he was being pursued.

Mr. Dan McTeague: Mr. Lee, on that point, I'd just like to point out that in the case of the government's Suspect Apprehension Pursuits Report in our province, that's in fact the genius, if I can call it that, behind what they are trying to accomplish. In the cases where it might put the public at risk, obviously mere identification would be the best way of doing it—otherwise, don't try to engage.

I'm not going to defend or talk about the Government of Ontario's policies. That's not what I'm here to achieve. I'm here to try to look at the best means by which to signal to the public in general that society holds in certain contempt the act of fleeing a peace officer for grounds that are totally unreasonable and for which often.... No one takes into account the mourning of the young girl in Brampton or the leader of the community in Scarborough.

This is not what I would call “the perfect bill”, but I do believe that some of the concerns that might be addressed in this bill can be ironed out before the courts. Peace officers may not always make the right assumption when it comes to charging someone. Just look at the Highway Traffic Act in our province. What's the rate of people who beat the accusation, who beat the charge? Often the identification is not right, etc., but rather than dealing with the niceties of what might happen in unique and particular circumstances—and this is probably to respond not just to your question but to the questions from Monsieur Saada and Monsieur Bellehumeur—the very last subclause here deals with double jeopardy and says that “the accused may be convicted of an offence under section 249 or 249.1, as the case may be”. I tried to provide the flexibility to have both.

Mr. Derek Lee: That's good. Thank you.

The Chair: Thank you, Mr. Lee.

Round two, Mr. MacKay.

Mr. Peter MacKay: Taking advantage of the fact that Mr. McTeague's here, I know we are going to be studying this in detail, but I agree with the seriousness that would lead to the designation of this as an indictable offence. I totally embrace that, because I think that in most instances a person fleeing the police is doing so, as you pointed out in the wording, “to evade” the police, and probably to evade the police for some criminal offence that they've already committed.

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However, picking up where Mr. Lee left off, I'm going to give you sort of a hypothetical here. I can envision a young driver who panics, who is in the process of being pulled over by the police and engages in a chase for a short period of time—be it in a rural area or an urban centre, a very dangerous act—and who now faces conviction for an indictable offence. I'm putting that forward and I'd like your response or your feeling about the possibility of designating at least this proposed section 249.1 as hybrid, where the crown would have an election to go by way of summary or indictable.

As you know, there's going to be an election and, in most cases, if the accused has an election, they're going to go to the Supreme Court and they're going to elect trial by jury. I'm not saying the cost is the overriding concern here; I'm more concerned about delay. You can get most cases into provincial court within six months. In my province of Nova Scotia, you're looking at upwards of two to three years sometimes before you get a jury trial. I'd just be interested in hearing your reaction.

Mr. Dan McTeague: I suspect that one of the distinguishing factors of the bill versus the Criminal Code, certainly as it relates to criminal negligence, and certainly as far as dangerous driving goes, is the fact that the term “indictable” is there and the term “summary” is not there for a good reason. Again, the question is the message that you want to send out.

I take your point about the person who panics, the young individual who, for whatever reason, just doesn't know what to do and is scared, who has never committed a serious act or contemplated doing such a thing, and yes, they engaged in a reckless act that could have killed people. I suppose, Mr. MacKay, I come back to the responsibility one has when one operates a 2,000-pound bullet. I say that we would look at this in a very different light if, for instance, the person said they had a really tough day at business, went out and had 15 glasses of beer and then went out, gunned it, and killed somebody, saying that he panicked, damn it, that he shouldn't have done that, that he was having a really bad day. I'm not sure if in those circumstances.... Yes, there are always mitigating circumstances, and I think that's why the word “reasonable” is in there, in “without reasonable cause”. I think it would be better for a jury or a judge to actually make that decision.

As to the question of election, I can only suggest that if the bill is deemed not to be strong enough to send that kind of a message such that it is traded off on another lesser charge that society would be rather concerned about, then this bill would need fine-tuning upwards, not downwards. I'm trying to give a sort of minimum here. Again, as I said, I'm not married to the final product, but I would say that if it's a summary offence or summary conviction, one that's going to get a proverbial slap on the wrist, then I'd suggest that the election would already be made and that someone would simply go to what is currently in the code.

Mr. Peter MacKay: Don't get me wrong. I'm not trying to water it down.

Mr. Dan McTeague: I understand that.

Mr. Peter MacKay: All I'm suggesting is that if it is a hybrid offence, then there's a crown election as to how to pursue the case and, in my opinion, it would encompass more because you would enable the crown and the police to have that circumstance, that type of scenario that I'm putting forward, without having an all-or-nothing decision to make. Do we pursue this individual who panicked and led the police on a .5 kilometre chase and then regained his senses and stopped the vehicle before anybody was endangered? Do we just forget about that altogether or do we try to pursue a flimsy case through the Supreme Court? It's not to diminish the seriousness of it.

Mr. Dan McTeague: No, I hope you didn't take my response as being a concern about that, but I have brought the issue as far as I can, to this stage, so that these kinds of questions are asked not just of me, as the proposer of the bill, but also to provide yourselves and arm yourselves with the kind of expert witnesses that might be able to, in some way, deal with the potential—albeit not as probable, but then again, we don't know what the future holds—pitfalls that might be associated with the bill in its current form. I'm pleased to be here as one member with an idea, based on something that I think in pretty well every corner of this country some consensus is developing on. Something is better than nothing—

Mr. Peter MacKay: Sure.

Mr. Dan McTeague: —and I think the status quo is totally unacceptable, certainly to those who are today six feet under the ground as a result of the fact that we could have done something in the past and perhaps didn't have the foresight to do it.

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Mr. Peter MacKay: I appreciate that. We're looking forward to having experts testify on this. I'm sure we'll get into some of the finer tuning that you refer to. But you wouldn't take offence, then, to the suggestion of, in the first instance, where there is no accident, no death, no injury involved, perhaps making this a hybrid offence.

Mr. Dan McTeague: It would currently be that, I would suspect, in other provisions of the act, and in subclause 4(5), “For greater certainty...”, I have listed the options that are there. To say that the bill would be better improved by doing something like that if.... I guess the proviso, the concern I have here, is to not deter or detract from the concern we have, which is to send that proper message. In those circumstances where you do have someone, if it simply isn't caught by the catchphrase “without reasonable cause”, then, I think, a bill would be doomed. It would be folly not to accept the collective wisdom of this Parliament in order to ensure that it's viable.

Mr. Peter MacKay: I don't have the Criminal Code with me, unfortunately—

Mr. Dan McTeague: Neither do I.

Mr. Peter MacKay: —but I'm just looking at the words “reasonable cause”. This is very nitpicky, with all respect. I know that we sometimes tend to approach these Criminal Code sections like trying to separate pepper from fly manure with boxing gloves on, but the wording is very important at times. It's open not only to lawyers' interpretations but to judicial interpretation. Where it states “reasonable cause”...I'm not sure if in other sections it uses “reasonable excuse”—in dangerous driving causing death or bodily harm, for example.

Mr. Dan McTeague: Mr. MacKay, I don't have an answer to that. I would suspect that the wording “reasonable cause” is in other sections of the Criminal Code that are very similar to this, but I don't have that here in front of me and it would take me a few minutes to try to go through parts that I do have in front of me in order to be able to tell you whether that's there or not.

Mr. Peter MacKay: I think the wording is “excuse”. That's most often used. That's a section that I'm more familiar with, but again, I think we'll have a chance—

Mr. Dan McTeague: If the word “excuse” is there, as a layman, I suppose, the word “excuse” would suffice and would probably go some distance towards satisfying the rightful concern you presented about that individual who may have panicked, who did whatever he did. But again, I don't want to take away from what we're trying to accomplish here, and in this case that's a firm and clear but understanding response to a problem that has obviously gripped the public. In some circumstances and some quarters where Derek and I and others come from, it has reached epidemic proportions—if not for the fact the media from time to time doesn't report them.

Mr. Peter MacKay: Thank you very much.

The Chair: Mr. Lee.

Mr. Derek Lee: I just want to suggest that we put a proviso on the intent of the police officer. I'm sure Mr. McTeague wouldn't object either. I was thinking along these lines: everyone who commits an offence who's operating a motor vehicle while being pursued by a police officer who has reasonable grounds to apprehend the motor vehicle or an occupant of it. That kind of a proviso would make it necessary for the policeman who was pursuing to have a reason to pursue in the first place.

What is your reaction to that suggestion?

Mr. Dan McTeague: I suppose the reason to pursue would be.... I don't know, Mr. Lee. I think the question is better...if someone has fled with a body in the trunk of the car, I would not have known that if were not for the fact.... I suppose those who have those statistics may be able to give you those statistics. Again, perhaps coming back to why people flee in the first place, it may be for such trivial reasons that the peace officer or police officer might never have taken notice in the first instance.

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What we're trying to penalize is not the person simply trying to evade something else but the fact that they have engaged in an act that is inherently dangerous to the public at large. So gunning it, on its own, is an act that places society at risk, puts innocent bystanders at risk, and often winds up either harming someone in the public domain or, worse perhaps, undermining our administration of justice by placing the police in a position where they actually commit an error that would never have happened if the person had exercised responsibility, not recklessness.

Mr. Derek Lee: Thank you.

The Chair: Mr. MacKay had another quick question.

Mr. Peter MacKay: Just arising out of that, there are two things.

It's “peace officer”, Derek. It's something that you run into all the time because there's—

Mr. Derek Lee: What did I say?

Mr. Peter MacKay: You said “police officer”.

Mr. Derek Lee: Sorry. I meant “peace officer”.

Mr. Peter MacKay: There are forestry officers, fisheries officers, lands and forests officers.

Mr. Derek Lee: I intended “peace officer”.

Mr. Peter MacKay: But I think what might address that is an insertion in proposed subclause 249.1(1), where it reads “without reasonable”. I'm suggesting that we insert “excuse” for “cause” and “in order to evade lawful apprehension”. I know we're not doing clause-by-clause, but I'm just making some notes on the draft bill. I think the wording “and in order to evade lawful apprehension” addresses the concern that Mr. Lee had about whether the police have the right in the first place to be trying to stop this person. It—

[Editor's Note: Inaudible]

Mr. Derek Lee: ...occupant.

Mr. Peter MacKay: Right. It highlights this element of pursuit and why the person is evading the peace officer in the first place.

Mr. Derek Lee: That's constructive.

Mr. Peter MacKay: So “in order to evade lawful apprehension”....

Mr. Dan McTeague: There's one thing I want to be very clear on. I want to understand this between both of you. It will help me formulate a response. Let's say that a person who has done no wrong but happens to be pulled over, say, in a spot check, as we see at Christmastime or any holiday time, decides, gee, I've had too many wines here, and guns it. You must stay at that position and have whatever inquiry is there. If not, you engage in a high-speed pursuit that could endanger the public. That's the act that we want to try—

Mr. Peter MacKay: It's still a lawful apprehension.

Mr. Dan McTeague: Exactly. And I want to make sure—

Mr. Derek Lee: A spot check is a lawful apprehension.

Mr. Dan McTeague: —that it's very clear that's exactly what's intended, as opposed to simply saying, well, we had no grounds in which to apprehend you and you just happened to be in a random check. I want to be very clear on that. Random checks have been disputed before in various courts. I certainly don't want to have this bill watered down with those kinds of circumstances.

Mr. Derek Lee: I understand. It's a good point.

The Chair: Are there more questions?

I have just a couple of questions, Mr. McTeague. You indicated why you have brought this bill forward. It's the epidemic that we have on our highways. Our bills dealing with dangerous driving, impaired driving, deal not only with motor vehicles but with vessels, aircraft, etc. Could you envisage an expansion of this bill to deal, say, with vessels at least, keeping in mind the problems that we have in perhaps Toronto Harbour or Lake Muskoka or the Rideau system or the Niagara River, etc.?

Mr. Dan McTeague: Yes. I—

The Chair: Which are patrolled by peace officers.

Mr. Dan McTeague: That's a good question, Mr. Chairman. By “motor vehicle” I had assumed any type of vehicle that operates, although one could argue that vessels for greater certainty...aircraft, bulldozers, I don't know, whatever the case may be.... If anything, that kind of proposal would improve the bill.

The Chair: A motor vehicle is defined very generally as something that's propelled or driven, etc., which could include a boat, but I have some concerns about it. They obviously distinguish it in impaired driving, in dangerous driving. There has to be a loophole there...it's more like a car, a truck, as opposed to—

Mr. Dan McTeague: Exactly. One could think of a circumstance that might occur tragically this summer, where the police pull over a boat and the person decides that they have a bigger motor and they can outgun the police boat. In the process, they hit someone in a canoe and kill them. So I suppose the application is equal.

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Going back to the question of apprehension by a peace officer, again, if it happens on our highways, it is apt to happen.... Again, I would probably ask that question of the witnesses in terms of their experience with that occurring on the waterways and in other areas, of locomotives, etc., but I would think that waterways is certainly one. Aircraft might be another.

The Chair: Will that then also require deleting in your third sentence of proposed subclause 249.1(1) “a peace officer operating a motor vehicle”? Because in that case, say, on the waterways, it wouldn't necessarily be a motor vehicle.

Also, I'll bring up another point. The phrase “a motor vehicle” does not include bicycles, and a lot of our police forces are utilizing bikes in law enforcement; sometimes they're quicker in traffic. Obviously a car and a bike are no match, but in certain circumstances I can envisage an officer on a bike.

Mr. Dan McTeague: One could even say “resisting arrest on foot” or something like that. That's not to trivialize that; it's a good point, but I think they have something called dispatch and they have a radio. Of course, hopefully it doesn't take very long for a helicopter or a cruiser to get on site.

I'd suspect that in those circumstances the question is that someone who flees from a peace officer without reasonable grounds has in fact committed a fairly serious offence. If that offence should simply mean knowingly fleeing from a peace officer who, as your wording has proposed, has tried to provide lawful arrest, then, I think—or worse, in that a car mows somebody down and that person is injured or killed—the circumstances are pretty much the same.

I don't think you necessarily need to have the red lights and a Ford Crown Victoria behind you. We often come up to a simple spot check on the road, Mr. Chairman, where the person signals to you to pull over. He or she is not obviously an officer in a vehicle. They've simply pointed to you, you've seen them, and you've gunned it. In those circumstances, I suppose this bill would say that this person has fled or is about to flee, and, more importantly, that the length to which they have evaded, at the speeds at which they have been clocked or followed, would only further illustrate the fact the act committed was one that violates the spirit of this bill.

The Chair: You might want to consider discussing some of these points with the justice department officials. I'm sure you've been talking with them. Maybe we can even improve upon this bill.

Mr. Dan McTeague: Mr. Chairman, I'm very open, and I'm inviting the committee to do what it can to create a better bill. I am not by any means the quintessential architect of private members' bills, as my colleague and former boss and everything else, Derek Lee, has pointed out. I have had some experience with private members' bills.

Mr. Peter MacKay: Were you his boss, Derek?

Mr. Dan McTeague: Derek was my boss many years ago, but we'll get to that a little later on.

An hon. member: Now you can blame all of your problems on him.

Some hon. members: Oh, oh!

Mr. Dan McTeague: Actually, Mr. Chairman, with your indulgence, I was going to read the comments by Councillor Brad Duguid of Toronto, which is a resolution passed in support of such similar legislation. It turns out that Mr. Duguid was also a previous employee of Mr. Lee—and I just want to put that on the record as well.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): They're all over the place!

Mr. Dan McTeague: Mr. Lee has spawned us.

An hon. member: I think that's a conflict of interest, Mr. Lee.

Mr. Dan McTeague: Mr. Chairman, I leave this bill in its skeletal form to the better hands and views of a committee that has had the opportunity to speak to witnesses. We are all busy, obviously, but this is an area that I think concerns all of us. I invite the committee to make the necessary changes to make sure that this is a viable bill and that it does improve our Criminal Code so that both peace officers and the public have a greater measure of security. If we've done that as a Parliament, collectively as all parties, I think we've earned our pay today.

The Chair: Ms. Bakopanos has a quick question.

Ms. Eleni Bakopanos: I was waiting until the end, Mr. Chairman, to say that first of all I want to congratulate the honourable member for bringing forth this bill. I also want to thank him for acknowledging the fact the Minister of Justice and the justice department officials are prepared to come to an agreement to perhaps incorporate this private members bill in an omnibus bill, which will come forward “in a timely fashion”, to use—

Some hon. members: Oh, oh!

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Ms. Eleni Bakopanos: Seriously, I know that the member has shown every willingness to sit down with the officials of the Department of Justice to assure that this is good legislation and that it actually achieves the purpose for which the member has brought it forward. So there will be ongoing negotiations, I hope. I'm not putting any words in your mouth—

Mr. Dan McTeague: No.

Ms. Eleni Bakopanos: —but I know that the minister and the officials have already begun to sit down with the member to assure that the intention of this bill becomes government legislation. I want to put that on the record, Mr. Chairman.

The Chair: Thank you, Ms. Bakopanos.

Mr. McTeague, have you indicated to the clerk any additional witnesses that you would like us to hear?

Mr. Dan McTeague: I have. We have supplied the witness list. There may be a few others as result of some of the concerns that have been raised here, which we may want to discuss.

But as suggested by Ms. Bakopanos, I would like to hear from some of the experts within the justice department in order to improve this bill. I have spoken to the minister and to her parliamentary secretary on various occasions, and I think it's the spirit of trying to make this a lasting bill that will probably help this bill along. Again, I'm not married to it; I think the bill itself is just a start. I look for the collective wisdom of all members here—who have far more knowledge in this field than I do—to be able to build on something so that we can accomplish something at the end of the day.

The Chair: Thank you.

We have one further request for a comment.

Mr. Peter MacKay: I have just a comment for Mr. McTeague's information, if he doesn't already know this. We had prior notice that this was coming our way by virtue of discussions that took place in the context of changes to the impaired driving legislation. That was ample warning for this and it made for good discussion at that time. I just wanted you to know that for much of what you have accomplished here today, there was groundwork laid in the discussions beforehand.

Mr. Dan McTeague: I'm honoured, Mr. MacKay. Thank you. Maybe I'll be doubly honoured some day when I actually learn your field and become a full member of your committee.

Some hon. members: Oh, oh!

The Chair: We'll adjourn until tomorrow at 9 a.m.