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This document was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. Legislative summaries are not government documents. They have no official legal status and do not constitute legal advice or opinion. Please note, the Legislative Summary describes the bill as of the date shown at the beginning of the document. For the latest published version of the bill, please consult the parliamentary internet site at www.parl.gc.ca.

LS-303E

TABLE OF CONTENTS

BACKGROUND

DESCRIPTION AND ANALYSIS

   Clause 1

   A.  Proposed Section 163.4

   B.  Proposed Section 163.5

      1.  Section 163.5(1)
      2.  Section 163.5(2)
      3.  Section 163.5(3)
      4.  Section 163.5(4)
      5.  Likely Issues

COMMENTARY

BILL C-18: AN ACT TO AMEND THE
CUSTOMS ACT AND THE CRIMINAL CODE*

Bill C-18 was introduced in the House of Commons on 31 October 1997. The bill would, in prescribed circumstances, extend customs officers’ enforcement powers under the Customs Act(1) to criminal offences in the Criminal Code(2) and other federal statutes. Bill C-18 was given second reading on 18 November; it was reported back to the House of Commons without amendments on 10 December 1998 following consideration by the Standing Committee on Justice and Human Rights. The bill received third reading and was passed, unamended, by the House of Commons, on 6 February 1998.

Introduced in the Senate on 10 February, Bill C-18 was referred to the Standing Senate Committee on Legal and Constitutional Affairs on 18 February and returned to the Senate unamended on 2 April 1998. The bill in its original form, was adopted by the Senate, on 28 April.

BACKGROUND

Under the division of powers in sections 91 and 92 of the Constitution Act, 1867, legislative authority over customs matters falls to Parliament, while the administration of justice is within provincial jurisdiction. The latter includes enforcement of the Criminal Code.

At present, the enforcement powers of customs officers, set out in Part VI of the Customs Act ("the Act"),(3) describe customs functions involving the monitor and control of the flow of goods imported into, or exported from, Canada. These include searches of the person for evidence of contravention of the Act or for goods the importation or exportation of which is prohibited under federal law, as well as search, examination, detention or seizure of goods.(4) They do not provide for the enforcement of the Criminal Code ("the Code") or other federal laws at points of entry into Canada.

Although the Code defines "peace officer" to include "an officer or person having the powers of a customs ... officer when performing any duty in the administration of the Customs Act ...,"(5) customs officers act as "peace officers" within the Code definition and for Code purposes only when fulfilling their functions as set out in the Act. As a result, a customs officer may, on the one hand - under circumstances set out in the Code(6) - exercise the power of a "peace officer" to arrest without warrant in relation to offences under the Act,(7) since, in so doing, she or he would be performing a duty in the administration of the Act. On the other hand, under the existing law customs officers may not act as "peace officers" within the terms of Code enforcement provisions relating to Code offences. These provisions include, for example, those describing the authority of a "peace officer" in relation to impaired driving offences.(8)

For some time, various directly or indirectly interested groups(9) have argued that customs officers should be authorized to enforce the criminal law at points of entry into Canada. Concerns have focused largely, but not exclusively, on safety implications arising from the officers’ inability to detain impaired drivers at the border.(10) In 1995, a study into the matter cited over 4,000 incidents purportedly warranting some form of criminal law enforcement at 160 air and highway ports of entry over a 17-month period.(11) Most involved suspected impaired driving offences.(12) The study surveyed a number of options for the enhancement of enforcement capabilities at border crossings, and concluded that the most viable would be to extend customs officers’ powers under the Act to include criminal offences. It suggested that this approach would enable bridging of the "enforcement gap" between detection of Code offences at the border and police response, with only a limited impact on the primary mandate of customs officers. Furthermore, amending the Act rather than the Code would "provide for legislative clarity," "eliminate potential confusion among officers" and "respect the government’s objective to limit the attribution of peace officer status."(13)

Bill C-18 reflects the conclusion of this 1995 report as to the choice of means to address perceived enforcement needs.

DESCRIPTION AND ANALYSIS

Bill C-18 contains four clauses. Clause 1 would effect substantive modifications to the Act and is the bill’s key provision. Clauses 2 and 3 would make minor consequential amendments to two provisions of the Code. Clause 4 is a standard "coming into force" provision. Clauses 2 to 4 will not be referred to further.

   Clause 1

Bill C-18 would add an additional enforcement heading to the Act. Proposed Part VI.I, consisting of sections 163.4 and 163.5, would be entitled "Enforcement of Criminal Offences other than Offences under this Act." Code provisions referred to in the bill are set out in an Appendix to this document.

   A. Proposed Section 163.4

This provision would authorize, but not require, the Minister of National Revenue to designate customs officers(14) for the purposes of implementing new Part VI.I; upon exercise of that authority, the Minister would be required to provide certificates of designation.(15) The proposed provision does not identify which officers would be designated or otherwise set out criteria related to designated status. According to Revenue Canada documentation, only non-student customs officers at points of entry into Canada would be involved. Those officers number between 2,000 and 2,500.(16) Revenue Canada officials indicate that other criteria relevant to designation are being developed as policy guidelines rather than through the regulatory process.

   B. Proposed Section 163.5

      1. Section 163.5(1)

Proposed section 163.5(1) would invest a "designated" officer with the powers and obligations of a peace officer under sections 495 through 497 of the Code in relation to a criminal offence under any other federal statute.

From an enforcement perspective, section 495 is the most significant of these Code provisions. It authorizes - but does not oblige - a peace officer to arrest without warrant a person who has committed, or is believed on reasonable grounds to have committed or to be about to commit, an indictable offence, or a person whom the peace officer finds committing a criminal offence, or in respect of whom the peace officer has reasonable grounds to believe an arrest warrant is outstanding. This arrest authority is not absolute. Section 495 also provides that it "shall not" be exercised in prescribed contexts unless it is reasonably believed that such exercise would be in the public interest, in order, for instance, to establish identity or secure evidence.(17) Under section 497, where an arrest without warrant is made in such cases, a peace officer is required to release the person arrested "as soon as practicable," unless there are reasonable grounds to believe that continued detention is necessary in the public interest or to ensure attendance in court.

The effect of proposed section 163.5(1) would be to extend a designated customs officer’s section 495 "peace officer" authority to arrest without warrant, hitherto limited to enforcing provisions of the Act, not only to the Code, but also to provisions creating criminal offences in other federal statutes. Bill C-18 would not, however, confer additional "peace officer" status or jurisdiction for purposes other than those specifically set out in the bill. Proposed section 163.5(1) would state explicitly that the expanded powers and obligations under Code sections 495-497 would come into play only when a designated officer was at a customs office(18) - in this case a point of entry into Canada - and performing her or his normal duties. That is, any off-duty, off-limits "peace officer" activity by designated officers would not be authorized by Part VI.I.(19) Such activity would in any event prove constitutionally and practically problematic, in light of the "administration of justice" jurisdiction of provincial law enforcement authorities.

In this respect, it is worth noting that the approach of Bill C-18 would not alter the definition of "peace officer" at section 2 of the Code. Designated officers acting under the expanded enforcement authority of proposed Part VI.I of the Act would continue to fall within that definition as officers "performing any duty in the administration of the Customs Act." The extension to designated customs officers of "peace officer" powers to arrest would not affect the authority of provincial authorities to prosecute those arrested for Code offences at the border.

      2. Section 163.5(2)

In addition to the arrest authority conferred by proposed section 163.5(1) in relation to criminal offences generally, this provision would give designated customs officers the specific powers and obligations of peace officers under sections 254 and 256 of the Code. Both describe enforcement measures relating to impaired driving.

Under section 254(2), a "peace officer" who reasonably suspects that a person operating or having care and control of a motor vehicle has alcohol in her or his body may demand that the person provide a sample of breath for screening "forthwith." A "peace officer" having reasonable grounds to believe that a person is committing or has committed an impaired driving offence under section 253(20) may, by virtue of section 254(3), also demand that a breath sample or, under certain circumstances, a blood sample, be provided. Section 256 provides for the issuance of a judicial warrant, under prescribed circumstances relating to more serious instances of suspected impaired driving, authorizing a peace officer to require the taking of blood samples to determine blood alcohol levels.

Proposed section 163.5(2) would also specify that a designated officer might require a person from whom she or he had demanded a sample under section 254(3), to accompany her or him, or a police officer,(21) for the purpose of taking the samples. Revenue Canada documentation indicates that designated customs officers "would administer the preliminary roadside screening test [section 254(2)]. Individuals who registered high would be turned over to the police for administration of a breathalyzer test."(22) Revenue Canada officials confirm that this is the intent of the provision. Furthermore, as previously discussed, the powers and obligations conferred by proposed section 163.5(2) might only be exercised at a customs office during the course of a designated officer’s normal duties.

      3. Section 163.5(3)

Under proposed section 163.5(3), a designated customs officer exercising the power of arrest conferred by section 163.5(1) would be authorized to detain the person arrested "until the person can be placed in the custody" of a police officer or constable. No time limit would be specified for the transfer of custody.

This provision presupposes detention capabilities at points of entry into Canada. According to Revenue Canada officials, all 80 land border facilities are to be equipped with holding cells meeting R.C.M.P. standards. It is intended that this capability be implemented on the basis of risk, that is, beginning with the highest need ports such as Windsor. In fact, this and other large border posts already house cells meeting R.C.M.P. specifications; analyses to determine costs associated with renovation or construction required at other land borders have been completed, with construction to take place only if and when Bill C-18 is proclaimed.

      4. Section 163.5(4)

This proposed provision would circumscribe the new enforcement powers of designated officers by stipulating that they might not use any enforcement power under the Act "for the sole purpose" of looking for evidence of a criminal offence under the Code or other federal statute. These terms are designed to preclude customs officers, during the normal course of their duties - including enforcement under Part VI of the Act - from embarking on "fishing expedition" searches for evidence of other criminal activity. In the event of court proceedings, the question of whether enforcement powers had been used in any particular instance for the sole purpose of detecting evidence of crime, or whether such evidence had come to light as a result of the legitimate use of the powers for customs purposes, could prove difficult to resolve.

      5. Likely Issues

The approach taken in proposed section 163.5 of Bill C-18 called into play a number of features related to its implementation. These include:

• the need for adequate training to enable designated officers to fulfil a broadened criminal law enforcement role;

• the need for a collaborative process with provincial law enforcement authorities in order to ensure the effectiveness of this new role;(23)

• the question of whether and to what extent activities associated with implementing sections 495-497, 254 and 256 of the Code could, in practice, divert designated officers from their primary customs mandate;

• the question of whether the new enforcement powers would ensure equal justice across the country; that is, whether they would or could be exercised uniformly, given the great variation in human and physical resources at border crossings and the practical enforcement difficulties arising from that variation;(24)

• evidentiary issues, such as whether the introduction of a new, "intermediate" enforcement authority might jeopardize the chain of custody of evidence required for purposes of eventual criminal prosecution; and

• the likelihood of legal challenges to customs officers’ application of Code provisions reviewed above; provisions of the Canadian Charter of Rights and Freedoms guaranteeing the right to counsel and the right not to be arbitrarily detained have formed the basis for numerous court proceedings contesting police application of section 254 of the Code, as has application of the "reasonable grounds" criterion for proceeding to arrest.

COMMENTARY

The President of CEUDA and the founder of CAVEAT, both of which organizations have long advocated expanded enforcement capabilities at border crossings, welcomed identical proposals when they were introduced in the House of Commons in March 1997 as Bill C-89. At that time, police and editorial reaction in the Windsor area, site of the country’s busiest land border crossing, also responded positively to that proposed legislation, which, as noted earlier, died on the Order Paper in April 1997. Reported areas of outstanding concern with respect to the earlier bill included the question of whether designated officers should be armed, a matter on which CEUDA members were divided, and the need to improve computerized data bases used by different enforcement bodies.

Little additional public reaction accompanied the bill’s re-introduction as Bill C-18. CEUDA’s briefs to the House of Commons Standing Committee on Justice and Human Rights and to the Standing Senate Committee on Legal and Constitutional Affairs observed that, like CAVEAT, the Canadian Police Association, the Association of Chiefs of Police, Mothers Against Drunk Driving (MADD) and Child Find Canada all supported the proposed legislation. The testimony of CEUDA representatives before both parliamentary committees reiterated the organization’s expected support for Bill C-18, and underscored its role in lobbying for the legislation.

In addition, however, this testimony identified a number of areas of potential concern with respect to the bill’s implementation. Specific issues raised included:

• whether Revenue Canada would devote sufficient resources to training and equipping CEUDA members for expanded law enforcement responsibilities; for example in relation to Charter, Criminal Code and liability matters;

• whether training would be sufficiently timely;

• whether Revenue Canada had been justified in relying on a dated study when deciding not to arm customs officers;

• health and and safety implications for customs personnel from the decision not to confer designated status on all permanent customs officers;

• health and safety implications of expanded enforcement powers at smaller, typically one-person, border crossings;

• how designated status might or should affect job classification and compensation;

• the need for extra staffing to handle the increased workload the bill would create;

• cost increases associated with the bill’s implementation; and

• whether Revenue Canada would maintain the necessary level of co-operation and consultation with various police forces across the country to achieve satisfactory implementation of the bill.

CEUDA did not propose that Bill C-18 be amended, in light of its view that, for the time being, the proposed legislation would satisfactorily bridge the existing gap in law enforcement. CEUDA did recommend to both House and Senate committees that the federal government should without delay mandate a committee to study the issue of whether customs officers should be armed.

APPENDIX

CRIMINAL CODE PROVISIONS

To obtain a copy of the appendix, please call 996-3942.