Bill C-26

André Bellavance Richmond—Arthabaska, QC

Madam Speaker, I would like to thank my colleague for her question and comment.

In fact, the Bloc Québécois would not support this kind of bill if the aim were to have people become vigilantes and start running around the streets with weapons to arrest thieves. That is obviously not the case. This was necessary to remedy a flaw that became particularly apparent in 2009.

As I said, I had not heard about a lot of cases. This is not a bill that would necessarily have been brought forward if charges had not been laid against an honest store owner who decided to make an arrest himself. Fortunately, it went well. He arrested the person who had come back an hour later after already committing a theft in his store; he tied him up and he called the police. He did his job. But charges were laid against the store owner, and that is what was unjust.

Bill C-26 simply clarifies the reasonable time a person has for arresting someone. The fact that it happened an hour earlier does not mean that a person has to let a thief who has the gall to come back to their business get away with it. You do not know what they are going to do; you have reason to believe they are going to keep stealing or committing more serious crimes; and you do not know whether they are armed or not.

Therefore it was not proper to lay charges against that store owner, but that is what happened. By clarifying the situation, we will ensure that in future, charges will not be laid against people who are fully entitled to defend their property and their person.

André Bellavance Richmond—Arthabaska, QC

Madam Speaker, I am pleased to rise on Bill C–26. This is a rare event. For once, the Conservative Minister of Justice has introduced a balanced bill that is realistic and even includes a number of recommendations from the opposition parties. For once, we can be glad to have a bill before us that will probably receive unanimous support. The Bloc Québécois intends to support this bill.

The problem with the current legislation was also identified. Everyone gave the example of what occurred in 2009, in Toronto, when Mr. Chen, a store owner, arrested someone who had stolen from him. It became apparent that the law was problematic when charges were laid against the store owner.

In my opinion, what happened to Mr. Chen is not a frequent problem, but the situation really upset a lot of people, and with good reason. It was important to amend the legislation so that what happened to this store owner would not happen again.

The law already gives people the right to defend themselves and even to arrest somebody they catch committing an offence on or in relation to their property. Bill C-26 allows such arrests to be made within a reasonable time after the offence and even to extend this period of time. That is a big difference. In the case we have been talking about since the beginning of the debate, Mr. Chen made an arrest one hour after the offence had been committed. He noticed the thief when he came back to his shop one hour later. That takes the cake. A person would have to have some nerve. It makes perfect sense that the shop owner decided to catch and tie up the thief and call the police. He did what needed to be done.

Nevertheless, we have to ensure that we do not become a wild west society when it comes to protecting our property. That must always be considered, first and foremost, the job of police officers. It is possible to defend oneself and even to make an arrest without being charged as Mr. Chen was. The bill will correct this situation.

Fortunately, even though charges were laid against Mr. Chen, the judge did his job properly by finding that there were no grounds to charge him with anything. It could therefore be said that justice was done and that the individual was ultimately not charged with making an arbitrary arrest or breaking the law, even though the arrest was made one hour after the crime was committed.

The matter did not finish there, and that is a good thing. It was raised not only by the government, but also by the opposition parties, which introduced bills, made recommendations and acted to ensure the situation did not happen again. In my opinion, Bill C-26 corrects the injustice—and it can be called that—that occurred when charges were laid against a person who was ultimately only defending his property.

The right of self-defence is important, but we should not become vigilantes, and our streets should not become the wild west. By clarifying the law, we are solving a problem that perhaps did not arise frequently, although once is undoubtedly once too often. We are therefore in favour of this bill, although some questions still remain about the actual enforcement of the new provisions of the bill, particularly those respecting the time that may elapse between when the crime is committed and when citizens arrest the offender.

It is normal to allow citizens to protect themselves and their property, if they act in a reasonable manner without using excessive force. Ultimately, this is all a matter of self-defence. Far from promoting a society in which every individual takes justice into his own hands, the Bloc Québécois advocates a measured approach whereby citizens are entitled to defend themselves but are of course encouraged to call upon the police to protect them and to arrest criminals. We do not believe Bill C-26 runs counter to that principle.

As I said earlier, intervening or making an arrest ourselves must be a last resort, because our physical safety and that of those close to us may also be compromised if we decide to take justice into our own hands.

However, there are circumstances in which we have no choice and must absolutely ensure that the person who is attacking our family or our property is stopped. I do not always want to talk about things that happened to me, but when I was younger, three individuals broke into my parents' home. I was alone with my young girlfriend at the time—I believe we have all done that. I say young girlfriend, but I was young too. I was very much afraid at the time, not just for my physical safety, but for that of the person who was with me that evening.

I had a vague feeling that there was more than one person in the house because I could hear them walking and talking. I knew that alone, without a weapon of any sort, there could be a problem. Outnumbered, I could possibly lose a fight, if it came to that. Gripped with fear, I decided to take action. I did not necessarily intend to show myself, to try to confront these people, but I wanted at least to let them know that someone was home, that I was armed and that I would deal with them if they did not get out. I was not armed, but they did not take a chance and they ran away. That was how I handled the situation.

However, what would have happened if these people had looked all around the house? If I had remained silent, they would have ended up in my bedroom. Whether we like it or not, we are all afraid that the people who are with us will be attacked by these individuals. I could have become much more violent and I would have done anything to defend the person who was with me. It is quite normal to react that way. At the time, I also did not have access to a telephone; I could not call the police. I do not know if cell phones existed back then; in any case I did not have one at the time. I was a teenager. It obviously all depends on how you look at it and on the circumstances.

In that sense, there is nothing to suggest that the current legislation was applied inappropriately, as I was saying. Other than Mr. Chen's case, very few cases have been brought to our attention where self-defence came as a delayed reaction. The legislation advocated proceeding with an arrest or an intervention if the perpetrator is caught red-handed. In Mr. Chen's case we know that he reacted an hour later, but what about people who see the same thief who stole from them 24 hours later? I think the justice system needs to find a balance between what is reasonable and what is not, when it comes to how much time passes after the offence.

Let us not forget the case being used to justify this measure, namely that of the Toronto store owner who arrested a thief and then was charged with assault and forcible confinement. The store owner was acquitted, as I was saying earlier. The judge did his job. Nonetheless, Bill C-26 clarifies this situation.

I will not list all the changes in Bill C-26, but there are some important ones that we need to talk about here in this House. The bill completely changes the part of the Criminal Code on self-defence and protection of property. In fact, the bill amends sections 34 to 42 of the Code. Those sections are being replaced by what may be called a simpler system. That is not a bad thing. The bill also significantly amends the right of property owners to make a citizen's arrest under section 494 of the Criminal Code.

It seems to me that Bill C-26 no longer separates the various self-defence clauses according to the attitude of the person invoking self-defence, namely whether that person provoked the attack or whether it is a question of an attack against the person citing self-defence or a person under his or her responsibility. Everything has been combined under one section—section 34—which lays down a general rule that reads:

A person is not guilty of an offence if

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

c) the act committed is reasonable in the circumstances.

It was important to clarify this measure. These changes were and are adequate. That is why the Bloc Québécois will support Bill C-26.

Judy Sgro York West, ON

Madam Speaker, I am pleased to have an opportunity to speak to Bill C-26 on citizen's arrest, an issue in which a lot of us have an interest.

Most of us in the House are familiar with an Ontario man by the name of David Chen. Mr. Chen is a Toronto shopkeeper who faced criminal charges after he subdued and held a shoplifter at his store in 2009. Mr. Chen held a repeat shoplifter after the man stole some plants and then had the nerve to return to the store. This defensive action caused Mr. Chen, unfortunately, to be charged with assault and forcible confinement.

There is a lot of confusion on this issue, which is why I welcome the opportunity to try to clarify it and remove the ambiguity.

While Mr. Chen was eventually acquitted of all criminal charges in this matter, the nature of this case shocked many Canadians. Canadians had a hard time believing that defending one's property could potentially be criminal.

Worse yet, while the notion of a citizen's arrest had been a common law tradition for several decades, this case raised serious concern among police and legal experts. Bill C-26 is the government's response to that surprise and concern.

I accept and believe that Canada's self-defence laws are complex and antiquated and clearly need to be brought into the 21st century. The Chen case has highlighted this fact for many of us. It is time for Parliament to remedy any ambiguity.

Bill C-26 would provide much greater clarity to prosecutors, judges and juries, as well as to private citizens who find themselves in a similar situation as Mr. Chen.

However, I am concerned with comments made by Eric Gottardi, the vice-chair of the Canadian Bar Association's National Criminal Justice Section, in reference to some of those who may use the provisions of this legislation. While referencing non-professional security personnel, Mr. Gottardi said, “Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances”. The proportionality of the response is a key point.

These warnings need to be addressed along with Bill C-26.

For the sake of clarity, it is my intention and my party's intention to support the legislation but I continue to have concerns about the scope of the self-defence provisions of the bill.

Tom Stamatakis, president of the Canadian Police Association, also has concerns about the bill. He indicated that Canadians should leave law enforcement to the professionals. Specifically, he warned, “We should take care that any changes made within this legislation do not have the unintended consequence of broadening the current mandate of private security”.

We need to ensure that political considerations do not override our primary responsibility here in the House of Commons, that being the enactment of responsible and sound laws. One could question whether some of the crime legislation and so on that has been passed through the House was really sound and responsible.

On the matter of the property provisions, the right balance has been struck.

I will tell members the reasons for some of my concerns.

I represent a riding that is inviting, friendly and ethnically diverse. York West is a place that is home to countless different cultures and traditions and I can say, without hesitation, that I believe it is the best riding in Canada. Despite this, like many places struggling with certain negative employment, education and economic factors, combatting crime is a challenge at times. Recently, the local media has reported some criminal occurrences within the neighbourhood, something that has put many of our community members on edge. This heightens people's awareness and edginess and it becomes a concern for some.

A citizen's arrest should never be made without careful consideration of certain factors. First, personal safety and the safety of others should be paramount in these discussions. Second, is reporting the matter to police for its response a better option? Third, is an actual crime occurring and has the suspect been correctly identified? Failure to look at those three factors could lead us down a path that could have very dangerous consequences for many people, including the overall community.

I want to talk a bit about a law that is in force the U.S., in particular, in Florida. It is the “stand your ground” law. We are all quite familiar with the tragic Florida case where Trayvon Martin was shot at close range by an individual named George Zimmerman.

I am not passing judgment with respect to guilt or innocence. Either way, the loss of any young life is tragic. However, it also quite possibly can ruin the life of Mr. Zimmerman as well.

Mr. Zimmerman is a 28-year-old, armed, neighbourhood watch volunteer. It is totally legal in the U.S., especially in Florida. He has admitted to pulling the trigger and killing the 17 year old inside a gated community.

For those who have not followed the story, this was a young man who was going to visit his father. He was carrying a bag of Skittles, some sort of candy, and was talking on the phone with his girlfriend. He was unarmed, a good student and a young man whose parents were very proud of, not someone who was into crime and all the rest of it. He was wearing a hoodie. That right away alarmed the individual.

Therefore, guilt or innocence aside, I believe this entire matter is a consequence of an emboldened volunteer, with inadequate training, acting as though he was a law enforcement professional. Again, a proportionate response was not present. He was told to turn around and leave, that police officers were on their way. However, he thought he could do far more than what he should have done. Now his life has been ruined. There is also the loss of the life of a young 17 year old.

My point is that tough on crime means to be smart on crime. The two of them have to go together.

Protecting one's home or business is important, but it has to be tempered with responsible action. The proportionality of any response to criminal behaviour is essential. We do not need any more instances like the Trayvon Martin case because too many young lives are already lost to crime.

Police officers are there and that is their job to protect us. Not everyone can or should be a police officer. Police officers are psychologically tested and professionally trained on how to best protect and preserve life and property. They should always be the first call in any case of a suspected crime.

Laws should give citizens the option to act in the most extreme of circumstances. I am hopeful that Bill C-26 will strike that balance.

I recall a few years ago, when I was a city councillor, one of my constituents heard someone breaking into his house. He was a hunter and had a rifle. He got the rifle and shot the intruder. The intruder was not seriously injured but, in the meantime, my constituent was charged, much as Mr. Chen was. He was defending his own property. As in the case of Mr. Chen, my constituent was charged and had to go through a court process, which then was dismissed. However, that cost him a lot of money, a lot of aggravation and left him very fearful of some of the things that were ongoing.

Bill C-26 tries to remove the ambiguity, but we must move very cautiously as we move forward on these issues. Therefore, we will support Bill C-26.

Guy Caron Rimouski-Neigette—Témiscouata—Les Basques, QC

Madam Speaker, I am pleased to rise in this House to speak to Bill C-26. A number of my colleagues who have spoken thus far have raised interesting points. I will not be using my time to repeat what has already been said, even though they are important points. However, there are some things that should be highlighted. I mentioned a few in the questions that I was able to ask this morning about this bill.

One of the important aspects of this bill is that it renews or updates some elements of an older law that does not necessarily reflect today's realities. I am referring to the provisions on self-defence, which need to be updated. This bill accomplishes that.

Concerns have been raised and, in my opinion, they are legitimate. When laws are created or amended, we sometimes venture into unknown territory. However, I am generally very satisfied with the committee's work on the proposed amendments. Naturally, we would have liked to have achieved some of the amendments that we, the official opposition, had proposed and that were highlighted earlier by my colleague from British Columbia.

However, in its current form, the bill addresses some of our concerns that were first raised by the member for Trinity—Spadina pertaining to a very specific situation. My neighbour from the riding of Montmagny—L'Islet—Kamouraska—Rivière-du-Loup also mentioned the case of David Chen.

However, there are other cases that illustrate the need to protect the people who defend themselves and defend their property. I will not rehash Mr. Chen's case, but there was another specific case that caught my attention and also upset me, quite frankly. In a rural region of Ontario, last August, a man woke up in his house to find three masked men outside who were starting to throw Molotov cocktails at his house. The individual grabbed a firearm and fired off two or three shots in order to protect himself—we all agree that a Molotov cocktail is an extremely dangerous weapon for the property and also for the individual. The police arrived and charged the individual with possession and use of a dangerous firearm.

Again we have a situation where the law does not protect individuals like Mr. Chen or this person from rural Ontario, when they want to protect themselves or protect their property.

The issue of whether the use of force is proportional to the offence is important. I think this bill addresses that quite well. Clearly, if a person commits an offence against property, such as shoplifting at a convenience store, then deadly force is not appropriate. The bill as worded does not propose that. In fact, it is a fine and properly worded bill.

In my opinion, the proportional force aspect is central to the proposed changes here. It makes the bill well balanced. According to the text of the bill, “the nature and proportionality of the person’s response to the use or threat of force” is a factor in determining reasonableness. Thus, deadly force cannot be used to protect property.

There is another point I also raised in my questions, and I would like to come back to that point in my presentation. The current version of the bill does not give greater powers to what are known as vigilantes, that is, groups of people who create watch committees to protect their territory. That is not the case. That is not what this bill proposes, which is good, because we know that this can ultimately lead to abuse.

Furthermore, it is important to point out that the bill allows individuals to protect themselves and their property and allows other authorized, delegated people to also do so. Thus, one cannot witness an offence involving someone else and take action as a result. That is what watch groups or vigilantes would be doing.

It is important that we have a bill like this one in order to clarify the situation of security guards in big box stores, for instance.

The way things are going, and as demonstrated by the fact that Mr. Chen was charged in the first place—although the charges were dropped—as was that person in Ontario, it seems that security guards in big box stores can, in their role, detain people who have shoplifted, for instance.

For example, someone who shoplifts and is caught by a security guard is usually taken to an office in the back of the store until the police arrive. This is a form of citizen's arrest. The security guard has the legal authorization, conferred by the store, to carry out this kind of surveillance and arrest. Thus, there is no abuse happening here.

However, if we went by what happened to Mr. Chen and that other person in Ontario, the legal vacuum that existed at the time could have meant that a security guard who was simply doing his job could have been arrested for kidnapping.

Thus, it was important that the House examine this issue in order to prevent such abuses from being committed simply because that is how the legislation is currently written, since frankly, that would be illogical. It is the duty of this House to propose these kinds of amendments.

I think any objections have been noted. Clearly, we would have liked to see the bill go a little further.

The NDP proposed nine amendments. Seven were rejected and two were accepted. As my colleague said—I think it is worth repeating—we really wanted to see the subjective element in the bill to ensure that the courts can take all of the circumstances surrounding an incident into account.

Of course, the cases members have been mentioning often involve theft, property offences or threats, such as when an individual seeks to harm someone by throwing Molotov cocktails. There are also specific situations that I feel fall into a grey area, such as spousal abuse cases where one spouse has to resort to violence to escape. For cases like these, the courts have to take the history of the relationship and everything that happened into account.

That is why the NDP, at the request of certain groups, proposed the amendment that was rejected.

However, the NDP also proposed another amendment that was accepted. It was one of two that were accepted. The courts will have to take into account the relevant circumstances of the person, the other parties and the act. That definition will be integrated into the bill. We are pleased with that. It does not go quite as far as incorporating the subjective element and is not quite as broad as that would have been, but it is still a commendable and welcome improvement.

The Canadian Bar Association and the Canadian Association of Elizabeth Fry Societies recommended including a subjective element. Even though the NDP is not completely satisfied with the amendment, it is a good first step toward better protection from abuse and domestic violence.

In that sense, we are satisfied with the bill in general. I am very happy to see that there is widespread agreement among members of the House to support this bill. The NDP will support it, too, and we will gladly vote in favour of the bill at third reading.

With regard to the hon. member for Saanich—Gulf Islands' concerns, they are clearly understood, and I think that they have been well received by the House. Amendments likely should be made. As with any bill, situations will result where we will eventually be able to see whether there are aspects missing in the application of the legislation or whether certain aspects go too far. That is why we are here in this House. We will have the opportunity to address the issues, make changes and propose additional amendments that will put a stop to any problems that may arise.

I am very pleased to support this bill. I would like to reassure people by telling them that the bill does not go too far and that it does not allow groups to take justice into their own hands, which often leads to abuse, as demonstrated by the case that is currently making the headlines in Florida, in the United States. Since this is a well structured bill, we will be happy to vote in favour of it, and we are pleased to see that there is a strong consensus in the House.

François Lapointe Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC

Madam Speaker, I am pleased to rise in the House today to comment on Bill C-26 which is, at the end of the day, a societal debate among all members of the House.

We are all attempting, collectively, to create civilized societies, but we have all had very chaotic experiences. Even though we have been tremendously successful on some levels, and even though crime rates are much lower than they were a hundred years ago or in the Middle Ages, our relationship with sometimes aggressive and violent situations is still difficult.

The bill specifically deals with this grey area. Unfortunately, some people have violent habits. What must be done about these behaviours?

The NDP intends to support Bill C-26 because it contains a lot of similarities to the bill introduced by my colleague from Trinity—Spadina. Throughout my speech, I am going to focus on the very well-known case of Mr. Chen, who owned a grocery store with his family. This case is what got my colleague from Trinity–Spadina interested in the issue. David Chen was accused of unlawful confinement, kidnapping and assault after having tied up a person who was stealing from his shop. It was not the first time the thief had stolen from his shop.

Mr. Chen tied the person up, he did not beat him, and he certainly did not beat him to death. There are some key words in this situation: he tied somebody up and was dealing with a repeat offender. This situation applies perfectly to the questions being asked today. It is not a simple situation. Somebody tied up, but did not beat up, a repeat offender. It is not a situation involving two people where a shop owner is suddenly threatened by somebody with a machete and has to act. There were a lot of shades of grey. We all understand why our colleague asked at the time that the law help simplify complicated situations, in other words simplify the outcomes for people facing complicated situations involving self-defence.

These very difficult concepts require a lot of distinctions and proper context. Here is a simple example. No one here would want a teenager who stole two cans of Pepsi to be beaten with a baseball bat. However, that is the kind of message, which we do not want to see acted upon, that this bill might send to a small segment of the population. We constantly see concepts such as “reasonable” in the bill. I did a count, and the word “reasonable” came up some 30 times, just in the amendments to the act recommended by Bill C-26. Here again, such terms must always be nuanced.

There are difficult concepts here, such as self-defence. There has to be a clear definition of what it is, when it applies and the line beyond which an action no longer constitutes self-defence. Here again, we are in a grey area.

The question is whether an assault is provoked or unprovoked. At what point does an assault become significant enough for a shop owner’s reaction to the attack to be considered provoked? Here again, the distinction is very important.

Several NDP members have advocated an amendment on subjective perception. For example, they talked about battered wife syndrome. That is a term that I do not really like but the understanding is that, even if the assault was perhaps not that “serious”, an energetic reaction might be understood, justified and not be penalized if it came in response to numerous assaults.

Consider the assault on Mr. Chen, the owner, in this context. Say, for example, that I own a business and am assaulted, but not seriously, by a single individual who is lightly armed or totally unarmed, but that my children are in the aisles of my grocery store.

My reaction might possibly be different because I would not simply be protecting myself from someone who is threatening me with a jackknife in order to commit a minor offence. In fact, he would not really be threatening me because I would be relatively well protected behind my counter. And I would know that my children are in the store, since they are in the aisles. So the issue would be this area of perception in which it would be possible for an individual to react more strongly in a context such as that. You have to consider the perception of the situation perceived by the assaulted individual before he reacted.

This places us under an obligation to demand that this government, which has an annoying tendency to avoid giving the committee the necessary time to consider potential amendments, submit to the democratic process in this case and allow the committee to consider all these issues, because they involve a lot of subtle distinctions.

This will prevent us from abandoning a principle as important as our responsibility to ensure public safety. When I analyze all this, I conclude that there is another threat that may weigh on us: that we may abandon our collective responsibility for public safety. The message must not be that we should take justice into our own hands. We must absolutely not get to that point.

Why? Two fundamental reasons seem obvious to me. No one wants to relive the wild west of 1875. It makes no sense. We have become much more civilized since that time. Furthermore, even to people who support taking a tough stance on crime, vigilante justice is fundamentally and systematically unfair.

Let us imagine that my family and I own a store and, tomorrow morning, a teenager or someone panics and steals a box of cereal and threatens me with his fists. Now, if I were behind the counter—and I weigh 225 pounds—I could take the law into my own hands. However, suppose it was my 76-year-old mother behind the counter, with her poor eyesight and bad knees. We would both have the same rights as citizens. We would have the same opportunity to defend ourselves, but no one could claim that the two situations are equal.

We must, therefore, never get to that point. We must maintain the simple notion that our civic duty is to ensure that the panic button under the counter is in working order. That is our only civic duty. If this bill leads us to move away from that goal, collectively, we have a serious problem. People need to be able to ask for help and they need to get the help they need from police forces within a reasonable time frame. That is one aspect that worries me and that relates to the potential consequences of such a bill. Are we collectively abandoning what should be the only goal of civil defence? If it were my mother behind the counter in that situation, unable to defend herself and certainly unable to defend herself the same way I could—or the same way as my colleague who has been practising karate for 25 years—she would deserve the same protection. That should be our collective goal in this House. We must not hide behind principles that would take us back to the wild west.

So I repeat my request that there be no form of closure when the committee examines these issues. Let us allow the committee to work on every nuance in this bill. That is what will ensure an excellent bill, one that can make things easier for people like Mr. Chen in situations like the one he faced at his store.

I would like to make another argument in support of my request to let the committee do its work. There is no need to panic. Yes, under the existing laws, Mr. Chen went through six months of complications from the time he had to defend himself to the time when he and the people working with him were acquitted. Let us hope that this bill will prevent people involved in similar incidents from enduring six months of complications. In the end, they were acquitted.

It is not as though there are hundreds of Canadians coping with great injustice because they acted reasonably in defending their property and businesses. There is no need to panic. I hope that the government will not behave as it did in connection with other public safety bills and tell us that if we question this bill, we must be on the side of thieves and shoplifters.

We will support this bill, but please give the committee members time to study all of the ethical and moral nuances of this bill.

Elizabeth May Saanich—Gulf Islands, BC

Madam Speaker, as we approach Bill C-26, a lot of members of Parliament are mindful of the notion that hard cases can make bad law. There is the specific case of David Chen and the Lucky Moose. We would have wished that the police on the scene had exercised some common sense and discretion by not prosecuting the individual. Now we have a law where a lot of us are concerned that there could be an increase in injuries, and even deaths, from people trying to take the law into their own hands, feeling empowered by what the House is doing with Bill C-26.

Since I am the only person planning to vote against this legislation, its passage is a certain thing. I ask my friend whether he thinks there is any way the House can send a message to Canadians that they should avoid taking the law into their own hands.

Sean Casey Charlottetown, PE

Madam Speaker, I am pleased to have the opportunity to speak to Bill C-26.

This particular piece of legislation would amend the Criminal Code to allow an individual who owns or has lawful possession of property, or persons authorized by them, to arrest, within a reasonable time, a person whom they find committing a criminal offence.

As well, the bill attempts to clarify in law the self-defence provisions. I have some concerns with respect to these and will elaborate on them momentarily. However, I do want to say from the outset that the Liberal Party will support this bill, although we do have concerns about certain aspects of it.

Currently the Criminal Code allows Canadians the right to claim self-defence in the event they are assaulted without provocation. The Criminal Code also allows for Canadians to rely on the defence to property provisions in certain circumstances, so there is a Criminal Code defence of self-defence and defence of property. There is also a common law defence for each of them as well.

The point I wish to make is that we are not dealing with a legislative vacuum. There are laws with respect to self-defence and defence of property, both codified and under the common law. It is true that some aspects of the Criminal Code in this regard are outdated and in need of modernization. Indeed, the provisions of the Criminal Code with respect to defence of property span five sections and with respect to self-defence span four sections, sections 34 to 37 of the Criminal Code.

While Liberals support the bill, I do wish to raise again what has already been articulated by the hon. member for Mount Royal, a couple of areas of the bill, and there are more.

Two areas will be the focus of my remarks. The first concern relates to the property defence provisions of the bill. I have some concerns with respect to the consequences of their new breadth. They have been expanded and there are, understandably, consequences associated with that expansion.

In particular, it is clause 3 of the bill that is the operative clause here. I would like for those Canadians watching and those who are unaware of the contents of clause 3 to quickly read into the record exactly what it says. Clause 3 of this bill amends subsection 494(2) of the Criminal Code with the following:

(2) The owner or a person in lawful possession of property, or a person authorized by the owner...

—“authorized by the owner” is important wording, for reasons that I will come back to—

...or a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence or in relation to that property and

(a) they make the arrest at that time; or

(b) they make that arrest...

—and these are the key words in this section—

within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

One of my concerns with respect to this section relates to private security agents. As I indicated, this section allows for persons “authorized by the owner” to make an arrest “within a reasonable time after” the commission of an offence.

We are all aware of private security firms and private security officers. We see them at hockey games. They are often out in full force on the weekends, watching over a particular business or providing security in a mall.

The amendments contemplated in this bill prescribe new powers to private security agents and in some cases provide them with powers incongruent with their training and experience as private security agents. It needs to be borne in mind that private security officers are accountable to the property owners, accountable to their employers, as opposed to the accountability that peace officers have to their code of conduct.

We know that peace officers, or police officers, are duly authorized individuals who we entrust to enforce the Criminal Code and other statutes in this country. They exercise considerable power only after a process of extensive training. Peace officers in this country are well trained in police tactics, arrest procedures and the Criminal Code. More importantly among the list of requirements, these individuals are properly vetted for temperament and balance. After that training, we entrust these individuals with a gun.

All that is well and good in this country. We need our police to protect us. I am concerned that this particular clause of the bill may lead to serious difficulties, including vigilantism. Allow me to provide what is now a very well known example.

We are all very well aware of the situation in Florida recently where an individual acting as a neighbourhood watch person now stands accused of committing second degree murder. He is up on charges because, as we understand it, he is being accused of using excessive force. The facts in this matter are now very well publicized. A young man is now dead as a result of another individual who, while functioning as a neighbourhood watch person and in possession of a weapon, acted in what he claims was a lawful manner because he was defending property.

I share this example only to point out that when laws are enacted in which we provide individuals the right under the Criminal Code to act in the protection of their property or of their person, or act in the stead or at the behest of another in an employee-employer relationship, we must be very careful. I have no doubt there will be a time when we will face a situation perhaps not unlike what we have seen in Florida.

Therefore I am concerned about this particular provision in the bill, and I hope the government might take another look at it as it proceeds to the Senate for legislative scrutiny. Certainly allowing for a piece of prime legislation to be amended at the Senate is not without precedent, even in this particular session of the House.

Another source of concern for me can be found in proposed section 34. This section does not deal with defence of property, but with self-defence. Again, for the record and for those who are not in possession of the bill, proposed subsection 34(1) states that a person is not guilty of an offence if :

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

That is the new law that has been proposed. The current Criminal Code with respect to self-defence reads, and I quote:

Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force

I have two concerns with respect to this section. The first is the removal of provocation as a relevant consideration for self-defence. The second is the removal of the necessity of an unlawful assault, preferring instead the word “force”. The question becomes how broad the word “force” is. The law used to say that one could rely on self-defence if one were being assaulted, which implies a violation of the person. However, the word “force” is broader than that and arguably could have an economic force element. Therefore, it broadens the situations in which a claim of self-defence may be made. I will state again that I hope the government might take another look at this matter and perhaps be open to further discussion.

I will conclude by suggesting that we are in general agreement with the thrust of this bill. As suggested by the member for Mount Royal, the bill does provide elements of clarity for prosecutors, judges and juries as well as those who may find themselves in a circumstance where they need to defend themselves or their property. Time and jurisprudence arising out of the application of these provisions in our courts will inform us if the amendments have gone too far.

Alex Atamanenko British Columbia Southern Interior, BC

Madam Speaker, I thank my colleague who just spoke, and I will continue to elaborate on this bill.

As he mentioned, the bill makes good sense.

This bill seems to make a lot of common sense by directing that a citizen is able to assist in the arrest of someone who commits a crime, even if there is delay. I think that makes sense.

Bill C-26 amends subsection 494(2) of the Criminal Code, which deals with citizen's arrest, to provide greater flexibility.

The amendments will allow citizens to make arrests without a warrant within a reasonable time. The main change is the introduction of the concept of reasonable time. At present, subsection 494(2) requires the citizen to make the arrest when the crime is being committed. That is the difference between the existing law and the proposed bill.

Bill C-26 also includes amendments to sections 35 to 42 of the Criminal Code, which deal with self-defence and defence of property. These amendments will make long-awaited changes and simplify the complex provisions of the Criminal Code on self-defence and defence of property, as called for by the courts.

As several of my colleagues have already mentioned, members on this side of the House support the bill. Half of the bill consists of measures that the NDP had already proposed in the private member's bill introduced by the member for Trinity—Spadina. This part of the bill amends subsection 494(2) of the Criminal Code, which deals with citizen's arrest, making it possible for citizens to make arrests without a warrant within a reasonable time.

The other part of the bill seeks to clarify the sections of the Criminal Code on self-defence and defence of property. After a thorough review of the bill was conducted and expert witnesses were heard at committee stage, it was established that the changes made the legislative measure clearer. Our main goal in examining the bill was to ensure that it did not encourage citizens to take justice into their own hands or put their own safety at risk. Even though some concerns were raised about these issues with regard to citizen's arrest, self-defence and defence of property, we determined that the bill proposed some acceptable changes.

It should be noted that each of these three concepts already exist in the Criminal Code. Accordingly, the proposed changes in the bill will only affect existing aspects of our current legislation and will not add anything completely new.

This is what happened in committee. A diverse group of witnesses appeared before the Standing Committee on Justice and Human Rights, including representatives from the Barreau du Québec, the Canadian Convenience Stores Association, the Association of Elizabeth Fry Societies, the Association of Professional Security Agencies, the Canadian Bar Association and the Canadian Police Association, as well as academics and practising lawyers. In other words, experts testified before the committee.

So while we already supported the intent of the bill, we did propose a number of amendments arising out of the recommendations made by witnesses, as is our usual practice. That is the logical process: we listen to the witnesses and we propose amendments. Two of those amendments were agreed to and seven were rejected. More specifically, we should mention that the amendment to incorporate the subjective element in the part of the bill relating to self-defence was rejected.

That amendment would have covered all of the things done in self-defence that are commonly referred to as “battered wife syndrome”. For example, the subjective element means that a person who has been a victim of family violence may reasonably perceive a greater threat from a person who has previously been violent than a person without that background would perceive.

In other words, it is important to take into account the subjective perception of the circumstances, rather than to have a purely objective perception of the situation. We believed that the wording relating to the history of the two parties was not sufficiently precise in Bill C-26, and of course we wanted to ensure that the fact that “the act committed is reasonable in the circumstances as perceived by the person” would be taken into consideration in this kind of situation.

This was also the first time that Parliament had an opportunity to incorporate the concept of the subjective element, which had until now been developed in the case law, into the Criminal Code itself. The Canadian Bar Association and the Canadian Association of Elizabeth Fry Societies both recommended this amendment.

We did, however, succeed in having the amendment that requires that the court “consider the relevant circumstances of the person, the other parties and the act” agreed to. While that wording is not as specific as “the act committed is reasonable in the circumstances as perceived by the person”, the amendment we did get agreement to will put a greater onus on the courts to consider the history of the relationship between the individuals.

We recognize here that these sections of the Criminal Code need to be included, and even though most of our proposed amendments were rejected, we still believe the bill updates the legislation appropriately and we support the bill.

I would like to give a little context in the minute I have left. As my colleagues know, on May 23, 2009, David Chen, the owner of the Lucky Moose Food Mart in Toronto, arrested a man who had committed a theft in his store. Everyone knows the story here. I am going to conclude by saying that even though all the amendments were not agreed to, we support the bill on this side.

Elizabeth May Saanich—Gulf Islands, BC

Madam Speaker, I thank the hon. member for Hamilton East—Stoney Creek for his speech on Bill C-26. As the House will know at this point, I think I am the only member of Parliament who feels I must vote against this bill because of my concerns about the expansion of citizen's arrest powers.

I tried to obtain the opportunity to put forward an amendment to delete one section of the bill, which was recommended by the Canadian Bar Association. That section deals with the expansion of citizen's arrest powers. I wonder, could the hon. member for Hamilton East—Stoney Creek explain why the official opposition was not willing to second my amendment, which would have at least given us a chance to fix the one section of the bill that gives people the most trouble?