Bill C-26 (Historical)

Citizen's Arrest and Self-defence Act

An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons)

This enactment amends the Criminal Code to enable a person 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 on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons.

Citizen's Arrest and Self-defence Act

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I want to thank my colleague for his speech and for his affirmation that his party will support this bill at second reading and get it to committee for further study. We are definitely open to that idea.

I want to thank him as well for highlighting the key elements that the bill talks about: that an arrest needs to be made within a reasonable amount of time and that there must be reasonable grounds to believe it was not feasible, in the circumstances, for a police officer to make the arrest.

There is one comment that I may have misunderstood in the first part of his speech. I would like clarification, not just for my own purpose but also for people who are listening to this debate, that this bill differs substantially from the private member's bill tabled in the last Parliament, which required only reasonable grounds as the criterion. This bill clearly makes the point that the person must have seen an incident occurring, seen someone committing an offence, and that an arrest must occur within a reasonable period of time. I think it is an important improvement on the previous private member's bill that was tabled. Would my colleague agree?

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I would like to thank the hon. member for his question.

I agree with his statement to the effect that the citizen must have seen the person committing an offence to be able to arrest him. What I said about probable grounds applies to sections 495 and 499 of the Criminal Code for police officers. It does not really apply to this bill. I agree with the hon. member's statement with regard to citizen's arrest.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, my question has to do with the nature of the part of the bill that deals with the revisions to the self-defence portions. My concern is that without more clarity in that section, we may end up with potential vigilantism or potential erroneous use of force that would cause harm or damage to people because the bill would apparently give more breadth or power to individuals who believe they are acting in self-defence. Could the member comment?

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I would like to thank the hon. member for his question. Some parts of the current bill are indeed vague.

We want to prevent people from using greater force than necessary to make an arrest or defend themselves. Some provisions will have to be clarified in committee. I am not a legislative drafter, but some provisions of the bill seem unclear to me, including the part that the hon. member mentioned. I therefore think that it is very important to hear from legislative drafters and experts in the field in committee to clarify the situation. We do not want people to use more force than necessary in self-defence. It is important to clarify certain provisions in this part of the bill.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I wish to thank all my colleagues in the House from all political corners for allowing me to speak to Bill C-26, which deals with changes and amendments to the Criminal Code regarding citizen's arrest and the defences of property and persons.

We have a bill that would streamline in many fashions many of the laws concerning the defence of property which are good and necessary. Some things need to be studied in committee to see if some of the provisions may be a little overbearing. Nonetheless, we do have the responsibility, and I think we are on the right track in dealing with this issue so far as we have evidenced in the media in the past year.

Several incidents took place, one in particular in Toronto. Other members in the House have talked about it so I will leave it at that for now.

The rationale of all this needs to be looked at in a broader context when it comes to self-defence. Self-defence, in many cases, has been used but with a very narrow definition. Other jurisdictions around the world have certainly made better use of it. I would look at it in the context of making it far easier for our court systems, our prosecutors, certainly, and our judges and juries.

In some cases the complex and out of date rules we are talking about were highlighted by recent high profile cases. Primarily the concern is that the old Criminal Code provision concerning self-defence provided that “Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force”. Thereby, it is confining self-defence to assault and noting that it could not have been the result of provocation.

The new legislation would remove the assault requirement entirely in speaking of force or threat of force, and also removes provocation. As such the bill may run into some aspects that may be going a little overboard, but nonetheless, it is certainly something we should analyze and discuss at committee. The principal thrust of the bill is one that is just.

People may invoke self-defence, both in common law and under statute itself. It is not as though, without the legislation, there is no right to self-defence in Canada. The legislation would reform and streamline the Criminal Code, which I have mentioned.

In regard to self-defence and defence of property, which is where the emphasis lies on that second part, the concern that should be addressed by committee is whether the Criminal Code would be changed too significantly.

The self-defence provision in section 34 now reads, “Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force”. That confines defence to assault, whereas this legislation makes no reference to assault or provocation, for that matter, and it speaks to the force or the threat of force.

Beyond the general risk that the bill may encourage vigilantism, there are concerns just how far the bill broadens itself with self-defence, which can be invoked and by whom it can be invoked.

I know we discussed this in the former bill, which was Bill C-60 in the last Parliament, and it was brought forth as a result of these high profile cases, one of which took place in Toronto.

The current law in Canada discussing self-defence is in section 34 of the Criminal Code, which defines the extent to which force is justified in repelling an unprovoked assault. Subsection 34(1) is a general defence that can be employed only by non-aggressors who never intend to cause grievous bodily harm or death through their actions.

This section requires that the following four elements be established by a person accused of using force against another person: first, the accused was unlawfully assaulted; second, the accused did not provoke the assault; third, the force used by the accused was not intended to cause death or grievous bodily harm; and fourth, the force used by the accused was no more than was necessary to defend himself or herself.

Back to section 34(1) of the Criminal Code. It states:

--permits the accused to stand his or her ground, even when there is a possibility of escaping the situation. The question for the court is whether the force used was necessary to enable the accused to defend him or herself, not whether such a defence was wise in the circumstances.

Let us move on to subsection 34(2), which is interesting. It applies where the accused causes bodily harm or death, whether intentionally or unintentionally, in responding to an assault. Therefore, the accused is justified in using such force where he or she was under a reasonable apprehension of death or grievous bodily harm from the initial or continuing violence of the assault and believed, on reasonable grounds, that he or she must use such force to preserve himself or herself.

Section 35 of the Criminal Code outlines the application of self-defence in those instances where the person seeking to rely on self-defence initiated or provoked the assault. It applies where the accused first assaulted the other person, but without intent to cause death or serious bodily harm. The law permits a limited defence where the response of the person attacked escalates matters and the accused must respond to defend himself or herself.

Therefore, we see the myriad of circumstances that are being painted by all of this and how, by streamlining the legislation, this would certainly make a lot of sense.

The proposed amendments that we are discussing here to the Criminal Code, section 494.1(2) on citizen's arrest, would authorize a private citizen to make an arrest within a reasonable period of time after he or she finds someone committing a criminal offence that occurred on or in relation to property. This power of arrest would only be authorized when there are reasonable grounds to believe that it is not feasible in the circumstances for the arrest to be made by a police officer. Therefore, we must not take it upon ourselves to replace an existing security service that is in charge of maintaining peace and the law.

The reasonable use of force is also stressed in this particular application because it is very important that we outline this in order to make it easier for the courts to interpret, certainly for prosecutors, judges and juries.

It makes it clear in this legislation, by cross-reference to the Criminal Code, that the use of force is authorized in what we know is a citizen's arrest, but there are limits placed on how much force can be used.

In essence, the laws permit the reasonable use of force, taking into account all the circumstances of this particular case. A person is not entitled to use excessive force in a citizen's arrest. Therefore, we see, in this clear parameter that is set out, how this is to be enforced, how reasonable people, if we want to use that test, which we should, are to enact or protect themselves and their property.

Under section 494.(1)(ii), with respect to the current law itself, anyone may arrest a person whom they find committing an indictable offence of a person who, on reasonable grounds, they believe has committed a criminal offence and is escaping from, and freshly pursued by, persons who have lawful authority to arrest that particular person.

If we are caught in that situation where we are defending ourselves or protecting our property, and we are in a situation where we do not know if we have crossed the line in a particular case because we certainly do not want to, hopefully with legislation like this and the lengthy debate that hopefully will follow, we will be able to flesh out an idea as to just how in certain circumstances like this a reasonable person can behave.

A citizen's arrest may, without careful consideration of the risk factors, have serious unintended consequences for those involved. When deciding whether to make a citizen's arrest, a person should be aware of the current law. In the current law there is safety or the safety of others, reporting the information to the police, which is usually the best course of action of course as we all know, instead of individuals just taking action on their own. Therefore, there is also a great deal of responsibility on individuals to notify the authorities in addition to defending themselves or their property.

One must also ensure that they have correctly identified the suspects and their criminal conduct. Therefore, we must be clear of mind on the offence.

Of course, being rational human beings, sometimes rationality takes over and, in particular cases, acts of desperation take place. Nonetheless, in these circumstances, I believe what we need to provide the courts with the ability to interpret and bring justice to the fore so that this particular case can be looked at in the right way. Again, I remind all members in the House that the function there is to provide that type of clarity for judges, prosecutors, and of course juries.

Moving on to the proposed amendments, there are new Criminal Code provisions being proposed to clarify the laws on self-defence and defence of property, so that again the police, prosecutors and the courts can more easily understand and apply the law. Clarifying the law and streamlining statutory defences may assist prosecutors, and certainly the police, in their discretion not to lay a charge or proceed with prosecution if it is found to be excessive.

Amendments to the self-defence provisions would repeal the current complex self-defence provisions I spoke of earlier. In particular, it ranges over four sections. The sections I speak of are sections 34 to 37. This is part of what this bill would do, which is to provide that clarification, certainly in this particular case. As we saw the high profile cases unfold, we realized that discrepancies took place and it was hard to interpret. Therefore, we have done this in a responsible way. When I say “responsible”, it leaves this House, it goes to committee for further study, and that I look forward to seeing.

Amendments to the defence of property provisions would repeal the confusing defence of property language that is now spread over five sections, those being sections 38 to 42. One new defence of property provision would be created, eliminating the many distinctions regarding acts a person can take in defence of different types of property. The new provision would permit a person in “peaceable possession” of a property to commit a reasonable act. Again, that reasonable person test that I spoke of. Therein lies the key to this. The person has been defined as owning a piece of property, a possession, and therefore the spirit of this would assume that the person would be allowed to act accordingly to protect that peaceable property, and for the purpose of protecting that property from being damaged or trespassed upon.

Under sections 34 to 37 of the Criminal Code, distinct defences are provided for people who use force to protect themselves or another from attack, depending on whether they have provoked the attack and whether they intended to use deadly force. Again, I understand that the impacts of this could be severe in many cases. They are in defence of an irrational act and therefore, when in that position, defending their own property or person, under irrational behaviour. It is not an easy circumstance to be in. However, certainly for the sake of the courts dealing with and prosecuting cases like this and coming to a logical conclusion, we must provide that clarity for prosecutors, judges and juries in many of these particular cases.

The use of deadly force is also something we have talked about, both with Bill C-26 and Bill C-60. We realize that the use of deadly force is talked about quite a bit and there is not a great understanding of it, but it is permitted in very exceptional circumstances; for example, where it is necessary to protect a person from death or bodily harm.

The courts have clearly stated that deadly force is never considered reasonable in defence of property alone. The legislative reforms currently being proposed would not make any change to the law relating to deadly force, so the courts would therefore continue to make any necessary changes on a case by case basis, developing the common law if and where applicable. As I mentioned before, this is the common law aspect and also the statutory law.

There are some issues that have been raised by stakeholders. Many people remember the high profile media reports that came from many cases where self-defence was used, not just for the right of individuals but also for property, as I mentioned in the high profile case that took place in Toronto. One of the issues that came up was that of encouraging vigilantism. People have been sounding the alarm bells over that and it is something that needs to be discussed and filtered when it comes to committee.

In principle, I think we are on the right track here, but certainly this is something that has to be of great concern. Obviously there are legal minds far greater than mine, as I have no formal training in law, so I look forward to hearing some of the witness testimony that will come at committee regarding the particular ways in which this could be abused. Nonetheless, I am sure that potential witnesses would agree that the intent here is to make this a clear, decisive law that allows our courts to function, and to prosecute any particular cases where the defence of one's self or property pertains.

A Canadian press article notes that “Several provinces have complained the new legislation will cost them millions as jail and prison populations inevitably rise”. That is a debate we have had here before. It is an extension of Bill C-10. I have mentioned this before in my deliberations about Bill C-10 and I will not go into it further.

A lot of the provinces have complained that they are now in a position where the incarceration of individuals and the increased rate of incarceration will have an effect on how they handle their budgets and how they spend money on health care and education. That applies to people who are sentenced to less than two years. We have heard from several provinces over the past little while that this could be particularly onerous for them in light of some of the budget deficits that they want to downgrade.

Section 35 of the Criminal Code outlines the application of self-defence in those instances where persons seeking to rely on self-defence initiated or provoked the assault. That is an important part of this. This is the part of the Criminal Code that we need to consider.

Other criteria apply is that the defender did not at any time before the need to protect himself or herself from death or bodily harm endeavour to cause the death or bodily harm. There is an obligation upon the defender to decline further conflict and leave or retreat as far as is feasible before the need to defend from death or bodily harm arises. This could be contentious in many forms.

As I reiterated earlier, I believe there is a case here in principle and scope for us to push this legislation forward, send it to committee and take notice of potential witness testimony, so we are able to change legislation if need be by amendments and make the necessary changes to the Criminal Code regarding the defence of oneself and the defence of property. We can do this for the efficiency of our courts.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I always enjoy the presentations by the hon. member from my grandfather's homeland.

The hon. member made reference to a clause, which I cannot find in the bill. He may have been simply describing a situation. He referenced “escaping from”, that the property owner is able to intervene and arrest or take some action against the person who the owner has reasonable grounds to believe is illegally doing something and that the action is allowed if that person is “escaping from”.

Could the member clarify that. If those words are in the bill, they may be a bit of a problem because someone could be caught in the act, but not actually escape from the scene? Could he elaborate on that?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, sometimes we meander on with little attention as to what we said. I apologize.

The member brought up a good point. The member may be talking about section 35. That is the overbearing part of the bill that has to be addressed. I hope we consider that because sometimes this stuff is not quite defined as to how one acts in particular situations.

My colleague brought up the point that in this case, if it is over excessive, then the courts need to have this legislation and that change in order to exercise due caution, certainly when it comes to prosecutors, judges and juries.

[Glenn Thibeault, NDP, Sudbury, ON]

Mr. Speaker, we call this the “Lucky Moose” bill as it relates to what happened in Toronto in 2009. I can think of many small retailers in my great riding of Sudbury who would have done the same thing. The outcry right across the country was about what happened to the shopkeeper. He was charged with kidnapping and all of the charges that went along with that. We are seeing some important changes to the Criminal Code in the bill that would allow shopkeepers to move forward.

My hon. colleague talked a bit about the fact that we are not supporting anything that would encourage vigilante justice. We are not encouraging people to put their own safety at risk. That is important. We need to have a little more discussion and intervention at committee level on that.

Would my colleague comment on that piece of the legislation and what we should discuss at committee?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, this situation, certainly for shopkeepers, must be incredibly difficult. I have seen this in small shops that do not have money to spend on a security system to put eyes everywhere. We know what is going on as a result of them not having the right amount of security. I am sure this happens in the member's riding as it does in mine. In many cases, people make a move to protect their own property, but then what do we do after that? We do not want to be too excessive.

On the other hand, on the point about vigilante justice, there are many cases that come forward, but we have to be incredibly measured as to what we do. Some of this stuff is decided well in advance and one may do a particular act to ensure justice is served. The problem then is that the courts have to deal with it in the case of an assault or theft of property. There is a myriad of rules involved with different interpretations and these cases get bogged down, which is unfortunate.

The one good thing of the bill is that those laws would be brought together so the courts could easily justify how they would go about bringing the right ruling for those involved, certainly for those who have assaulted someone or who have been assaulted. Where does that put them when it comes to protecting themselves or their property and how far do they go?

The member brings up a valid point. Like him, I certainly look forward to how the great legal minds of the land interpret this legislation.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, as always, my colleague for Bonavista—Gander—Grand Falls—Windsor has come right to the point.

I have some difficulty with the part of the bill that deals with self-defence. There was an incident in my riding last year in which an ice cream truck, with children all around it, was robbed at gunpoint by criminals. The bill appears to give permission for people to come out of their homes with a gun and start shooting at somebody else who also has a gun. I am concerned that a very dangerous situation could ensue.

This incident happened in full daylight. People everywhere saw what was going on and they saw the gun. It was all extremely upsetting to everyone. Luckily there are not a lot of guns in our neighbourhood and no one had a long gun that one could get to start firing. However, I am very concerned the bill appears to give that permission. The people believed there was a threat of force being made on the owner of the ice cream truck and the children who were standing around. This would have given them permission to come out with equivalent force.

Could the member comment on that?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I listened intently to the member's story and it is a great illustration of what we are talking about.

The member used the words, “equivalent force”. I notice that the legislation and the Criminal Code mention “force met with force”, or “force by force”. We need to come up with a justified response as to what defending oneself and property is. As the situation was described, I agree, it could have easily escalated into being excessive. That is a situation that could get out of control incredibly quickly.

I would like to think that clarity would come to this in committee where we will be able to hear how this type of situation could be handled in the courts. The whole point of this is to provide our people who administer justice guidelines on how this would operate, how we are supposed to conduct ourselves within society and where we draw that line to say that we have the right to protect ourselves and our property, but to what degree. One cannot be too excessive with force in response.

I agree with the member's illustration. The problem is that irrational behaviour is met with irrational behaviour. Human nature is such that sometimes we are excessive without meaning to be.

I hope the legislation would look at cases and illustrations such the one my hon. friend raised. It is a good example of what we should be talking about in committee in order to make the legislation work for everybody, especially for the victims.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Mr. Speaker, for me, this is a troubling bill. We saw situations in Toronto and in Montreal where good Samaritans stepped in to help out in a situation and were shot and/or stabbed for their trouble. I think in both cases they were domestic disputes.

Police officers are trained to intercede and to think a certain way. In many instances, in many municipalities, police officers have actually been told after a certain point to break off car chases because of safety issues, and these are trained individuals.

My concern, and it kind of mirrors what was said before, is that we are opening a Pandora's box here, where people can take the law into their own hands, not fearing retribution by the law.

Could my hon. colleague comment on that?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, let me preface this by saying this is why I do not like allotment and curtailing of speeches. The two illustrations brought forward by my colleague are very good examples of how a debate in the House can be furthered with the illustrations we bring out.

I did not mention this my speech, but how police officers go about their job is underrated. They know their job and are trained to do this. Sometimes when vigilante justice takes over, the problem is we do not allow the right people to be involved in the justice the way we see it. The member brings up a good point when he talks about when police officers engage and disengage as an illustration of how we handle these situations. These are trained people. I hope this comes up in committee as well.

[The Acting Speaker, Conservative, Barry Devolin]

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Sudbury, Financial Institutions; the hon. member for Jeanne-Le Ber, Arts and Culture; the hon. member for Rimouski-Neigette—Témiscouata—Les Basques, Employment.

Resuming debate, the hon. member for Sudbury.

[Glenn Thibeault, NDP, Sudbury, ON]

Mr. Speaker, I am pleased to rise in the House today to engage and speak to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), commonly referred to as the Lucky Moose bill.

Let me begin my statements by highlighting the incidents that have led to the introduction of legislation of this kind by both the government and by the member for Trinity—Spadina.

On May 23, 2009, David Chen, owner of the Lucky Moose Food Mart in Toronto apprehended a man, Anthony Bennett, who had stolen from his store. After Bennett was initially caught on security footage stealing from the store, he returned an hour later. At that time, Chen, who was 36 and had two employees, tied up the man and locked him in the back of a delivery van.

When police arrived, they charged Chen with kidnapping, carrying a dangerous weapon--a box cutter, which most grocery store workers would normally have on their person--assault and forcible confinement. Crown prosecutors later dropped the kidnapping and weapons charges but proceeded with the charges of forcible confinement and assault.

Although Anthony Bennett, the suspect in question, ultimately pleaded guilty in August 2009 to stealing from the store and was sentenced to 30 days in jail, the crown moved ahead with the charges against Mr. Chen and his employees, since the Criminal Code, as it is currently written, stipulates that a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act.

Obviously in this case the circumstances of the suspect's returning to the scene shortly after the offence was committed exposed a fatal flaw in the legislation, and this flaw has led us to this point.

It is also important to note that the suspect in question had stolen repeatedly from the same store, so this was certainly not a case of mistaken identity. We can be assured of that.

Eventually, after a court ordeal lasting a year and a half, Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. Obviously the process of a lengthy trial was distressing for Mr. Chen and his family, while also tallying significant administrative costs borne by taxpayers and tying up the valuable time of police, prosecutors and the courts.

In response to the ongoing concerns New Democrats heard from individuals across the country regarding a citizen's ability to make a lawful citizen's arrest, in September 2010 the New Democratic MP for Trinity—Spadina introduced a private member's bill to amend the Criminal Code in order to protect individuals like David Chen from facing criminal charges.

New Democrats have consistently welcomed the government's decision to incorporate the member for Trinity—Spadina's proposals into its legislation, first tabled in February 2011 during the 40th Parliament and now again in the 41st Parliament.

Let me now move to the specifics of the bill in order to parse out what is actually being proposed by the government at this juncture. Let me begin with the sections dealing specifically with citizen's arrest.

Currently, under subsection 494(1) of the Criminal Code, any individual can make an arrest without a warrant of a person he or she finds committing an indictable offence or who he or she believes on reasonable grounds has committed a criminal offence and is escaping from and freshly pursued by those with lawful authority to arrest the suspect in question.

Under Bill C-26, this section of the Criminal Code relating to citizen's arrest would remain unaltered.

Therefore the amendments being proposed apply solely to section 494(2), which applies to the owner or other persons in lawful possession of property or a person authorized by the owner or lawful possessor.

Currently such a person may make a warrantless arrest of a person whom he or she finds committing a criminal offence on or in relation to that property. The proposed amendments would subsequently allow such a person to make an arrest within a reasonable time after the offence is committed.

Under the amendment, business owners or persons under their delegated authority would be rightfully allowed to make an arrest if they believed, on reasonable grounds, that it was not feasible in the circumstances for a police officer to make that arrest.

The final piece of Bill C-26 as it relates to citizen's arrest is the proposed new subsection 494(4). This section specifically clarifies that a person who makes an arrest under section 494 is a person who is authorized by law to do so for the purposes of section 25 of the code. Essentially, the purpose of this amendment seems to be to denote that although the use of force is authorized in a citizen's arrest, there remain limits on how much force can be used.

For those who are not fluent in legal jargon, essentially these amendments would permit citizen's arrests without a warrant within a reasonable period of time after a criminal offence is observed. This means that in the case of Mr. Chen, he would have been acting within his rights as a business owner to protect his property by detaining Mr. Bennett. By removing the onerous provision that requires the citizen's arrest to occur while the offence is being committed, we are moving in the right direction to ensure that business and property owners can properly assert their rights in defending their property.

I have heard from many small business owners in my great riding of Sudbury who were shocked at the prosecution of Mr. Chen. They support these changes, which I must again reiterate have been proposed from parties from all sides of the House. It is vital that we provide citizens with the lawful power to detain offenders when the situation warrants, and these amendments to the citizen's arrest sections of the Criminal Code strike an appropriate balance.

In addition to amending section 494(2) of the Criminal Code, this bill and its predecessor, Bill C-60, also propose amendments to the sections in the Criminal Code dealing with self-defence and defence of property. The bill proposes a substantive overhaul of the statutory language pursuant to sections 34 to 42 of the Criminal Code. Five of these sections are from the original Criminal Code of 1892, and the courts have indicated that there are problems with clarity in regard to these sections.

For example, the self-defence provisions in the Criminal Code have been described as confusing and have been much criticized as a result. In the case of R. v. McIntosh, Chief Justice Lamer stated that sections 35 and 34 are

highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.

The judgment of the majority in McIntosh, however, has itself been called “highly unfortunate” for further muddying of the waters around the self-defence provisions.

The majority in R. v. McIntosh held that subsection 34(2) of the code was available as a defence when the accused was the initial aggressor. The argument was that Parliament must have intended for subsection 34(2) to be limited to unprovoked assaults, because it enacted section 35 to deal specifically with situations where the accused was the initial aggressor. This argument failed. The ruling seemed to go against the history of self-defence law, which pointed to a sharp distinction between unprovoked and provoked attacks.

The bill would remove current sections 34 through 37 and replace them with a new self-defence provision that would apply to all offences. The new provision would ensure that a person would not be guilty of an offence if they believed on reasonable grounds that force or a threat of force was to be used against them or another person, that any acts committed were for the purpose of defending or protecting themselves or that other person, and that the act committed was reasonable in the circumstances.

The bill also lists a number of factors that might, among others, be considered when determining whether or not the act committed was reasonable in the circumstances. This list includes, among others, imminence of a threat; the use of a weapon by the aggressor; the size, age and gender of the aggressor; and the history of the relationship between the actors.

Furthermore, the bill specifically states that the defence would not be available when responding to threats from people acting in their official capacity to enforce the law--for example, police officers--unless the accused had reasonable grounds to believe that the person was acting unlawfully.

As they stand, sections 38 through 42 of the Criminal Code refer to the legal rights of people to use force legally in protection of their property against theft or damage. The first two sections refer to the defence of movable property and the latter three sections to real property and dwellings, as the code permits the use of more force to defend real property than movable property.

The Criminal Code also recognizes that it is often difficult to distinguish where defence of property ends and self-defence begins. As a father and husband, I know that if someone were to break into my home, my first concern would be for my daughters and wife, not for my home and belongings. Fortunately, the Criminal Code recognizes this fact, and because of this, it explicitly outlines situations in which self-defence can be evoked, such as when a trespasser refuses to leave a property.

It is important at this point to give a brief outline of what the five sections of the code authorize as they stand. Section 38 provides that a person can take back possessions from a trespasser provided that he or she does not strike the person or cause bodily harm, unless the trespasser continues to attempt to retain or take the items. At this point, the trespasser is deemed to have committed an unprovoked assault, and the provisions regarding self-defence come into play.

Section 39 provides a defence to an individual using force to defend property being taken by someone else with a legal right to it. Subsection 39(1) of the provision refers to someone defending property to which they also have legal right; subsection 39(2) refers to someone defending property to which they have no legal right. It appears that the aim of this section is to encourage people to reclaim property through legal means rather than through force.

Section 40 allows an individual to use as much force as necessary to prevent someone from breaking into his or her legally owned home. Section 41 sets out the amount of force an individual can defensibly use to prevent or remove a trespasser. Like section 38, this provision deems trespassers to be committing an unprovoked assault if they resist attempts to prevent or remove them, and therefore brings into play the provisions applying to self-defence.

The final provision on this issue, section 42, provides information regarding the force that can be used when taking back possession of real property from trespassers and the effect of a trespasser assaulting someone who is attempting to take back legal possession of their real property.

Under the bill being considered by the House today, these five sections would be repealed and replaced with a new single provision for the defence of property. Under this provision, individuals would not be considered guilty of an offence if they believed on reasonable grounds that they were peaceably possessing property or assisting an individual who they believed was in peaceable possession of the property; believed on reasonable grounds that another person was about to enter, was entering, or had entered the property unlawfully, and was taking the property or was about to do so or had done so, and was about to damage or was in the process of damaging the property; were acting to prevent or end such action; and the act committed was reasonable in such circumstances.

These provisions would not apply if a person who did not have legal right to property used force against someone with a legal right to it or, as in the self-defence provisions, if the person committed any acts against people with the authority to enforce the law, unless the person believed that they were acting unlawfully.

Having considered what this bill would do to the Criminal Code regarding self-defence and protection of property, it is now important to consider whether these changes are desirable and constitute good public policy.

Whenever looking at changes to the Criminal Code, a good place to look is to the organizations that represent the organizations that enforce the law. The courts have already indicated that the language in these sections of the Criminal Code require some clarification, so it is important that we work to clear up such problems. However, we must ensure that any change has a positive effect. For that reason, I am looking forward to following this bill at committee stage where I am hopeful that the legal experts will be on hand to shed more light on the ramifications of these changes.

Both the Canadian Association of Chiefs of Police and the Canadian Police Association, which represents 41,000 front line police personnel across Canada, have been generally supportive of the changes brought forward in this bill in terms of self-defence and protection of property. However, they have also stated that they have some reservations and some concerns. Again, I look forward to these organizations speaking to this bill at committee to hear if there is any way that we can address the concerns that they have brought forward.

I am sure that both the police chiefs and the front line officers share my concerns that we do not want to make changes to the Criminal Code that would encourage people to participate in vigilante justice or to put their own safety at risk. While I know this is not the intention of the bill, I also look forward to hearing from people with a background in sociology and in criminology to ensure that this will not be the case and to strengthen the bill in this regard, if it is required.

I am happy that the government has brought forward this bill and I am happy to support it at second reading. The issues of citizen's arrest, self-defence and defence of property are all issues that need to be clarified in the Criminal Code and I am happy that we have this opportunity to do so.

I will be following this bill very closely through the committee stage and I hope that the government will be willing to work with the NDP to ensure that we are able to have the strongest legislation possible ready for debate at third reading.

I will take that acknowledgement from my colleague on the other side of the House as something that we all look forward to and is making Parliament work.