Justice Committee on Feb. 7th, 2012

[The Chair, Conservative, Dave MacKenzie]

We'll call the meeting to order. We're a little late because there was a vote in the House.

It is meeting 18 of the Standing Committee on Justice and Human Rights, and joining us today is the Honourable Rob Nicholson, Minister of Justice. Mr. Nicholson has a couple of people from his office: Ms. Kane and Ms. Klineberg. We'd like to welcome you.

My understanding, Minister, is that you can't be here any longer than 12:30 because of other appointments.

[Rob Nicholson, Conservative, Minister of Justice]

Exactly, Mr. Chairman.

[The Chair, Conservative, Dave MacKenzie]

We understand that. If you have an opening you wish to address the committee with, Minister, please go ahead.

[Rob Nicholson, Conservative, Niagara Falls, ON]

By all means, and thank you, Mr. Chairman.

I'm pleased to appear before this committee to present the citizen's arrest and self-defence act. This legislation aims to do three things: number one, it aims to expand the time in which a citizen may arrest another citizen for an offence or in relation to property; number two, it aims to replace the existing laws on self-defence with a new and simplified defence; and number three, similarly, it aims to replace the existing laws on defence of property with a new and simplified defence.

The members of the committee are no doubt aware of recent very public events involving citizens who resorted to using force against persons they suspected had stolen or damaged their property.

In addition to raising concerns about the limits of the power of citizen's arrest, these cases have also generated confusion about the relationship between citizen's arrest and defence of property, which itself is closely associated with the defence of self-defence.

These three mechanisms share common elements and arise in similar fact situations, which is why our government is presenting all three in Bill C-26. They typically come before the courts as defences when a person has done something that would otherwise be an offence, which they did for the purpose of apprehending a suspect or defending property or a person. Each provision reflects a different purpose for acting in emergency situations.

The bill's proposal to change the law on citizen's arrest is straightforward. Subsection 494(2) currently permits a property owner or a person in lawful possession of property to arrest a person they find in the act of committing an offence on or in relation to that property. Currently this provision does not allow for the arrest of a suspect even a short period of time after they were detected committing the crime.

This bill will allow more flexibility in the timing of an arrest. Specifically, it would amend subsection 494(2) to allow a person to arrest another within a reasonable time of finding the suspect committing the offence.

Some stakeholders may express concerns about the risks associated with permitting more arrests by citizens and the possible encouragement of vigilantes. I agree that, wherever possible, arrests should be undertaken by trained law enforcement officers, but we know this may not always be possible. I'm confident that the expansion of the citizen's arrest powers will not lead to vigilantism. Indeed the approach of Bill C-26 sets out a reasonable compromise. It extends the period of time for a citizen's arrest, but any delay must be reasonable. This power is itself limited to the narrow set of cases involving crimes of or in relation to property.

In addition, before making use of the extended time period, the arresting person must believe on reasonable grounds that it's not feasible in the circumstances for a peace officer to make the arrest. The existing law also requires the arresting person to turn over the suspect to police as soon as possible. These safeguards will help ensure that individuals who make a citizen's arrest are involved in law enforcement only to the degree necessary, and that the police maintain their primary law enforcement function. Arrests are dangerous and unpredictable, and our government will continue to urge Canadians to leave this job to professionals wherever possible, and in every case to exercise extreme caution.

In terms of the defences of property and person, the bill replaces the current multitude of provisions, which are largely unchanged from the original text enacted in 1892, and actually they had a pretty extensive history for 1892. These are basically the provisions that were contained in the laws of Upper Canada in or about 1840.

We have replaced those provisions with a simple, easy-to-apply rule for each defence. For decades criminal practitioners, the Canadian Bar Association, the Supreme Court of Canada, academics, and many others have criticized the law of self-defence primarily, but also the law of defence of property, as being written in an unnecessarily complex and confusing way.

The complexity of the law is not without serious consequence. It can lead to charging decisions that fail to take into account the merits of the defences in particular situations. It can confuse juries, and it can give rise to unnecessary grounds of appeal, which cost the justice system valuable time and resources. The law should be clear and clearly understood by the public, the police, prosecutors, and the court.

Bill C-26 meets those objectives. It makes the act more specific and simplifies it without sacrificing existing legal protections.

The basic elements of both defences are the same and can be easily stated. Whether a person is defending themselves or another person, or defending property in their possession, the general rule will be that they can undertake any acts for the purposes of protecting or defending property or a person as long as they reasonably perceive a threat, and their acts, including their use of force, are reasonable in the circumstances.

There are some special features of each defence that I would like to briefly mention. In respect of self-defence, an additional feature proposed in this bill is a non-exhaustive list of factors to help guide the determination of whether acts taken for a defensive purpose are reasonable. Clearly, what is reasonable depends upon the circumstances of each individual case; however, a number of factors commonly arise in self-defence cases and are familiar to the courts.

For instance, relevant considerations include whether either or both parties had a weapon and whether there was a pre-existing relationship between the parties, in particular one that included violence. Proportionality between the threat and the response is also highly relevant. The greater the threat one faces, the greater the actions one can take to defend against that threat.

The list can be employed to facilitate and improve charging and prosecution decisions. In court, the list will no doubt be a useful reference for the judge to use in instructing the jury. A list such as this also indicates to the courts that existing jurisprudence on these issues should continue to apply. We don't have to start from scratch.

The right to defend oneself from threats is fundamental. It's therefore tremendously important that we get it right and that we provide guidance as we shift from a highly detailed set of laws to a defence based on more general elements.

Now, with respect to the defence of property, the defence of property has as its core the same basic elements as self-defence, namely, a reasonable perception of a threat, a defensive purpose, and actions that are reasonable in the circumstances. However, the defence of property is necessarily more complex than self-defence.

There are many different types of property claims and interests, most of which are governed by provincial laws. Property concepts are implicated in the defence. The idea of peaceable possession of property is an additional condition for accessing the defence of property.

This term is used in the current law and has been interpreted by the courts to mean possession that is not subject to a serious challenge or that is not likely to lead to violence: for example, a thief who stole property and is not in peaceable possession of that property and cannot legally use force to defend his possession. It makes sense.

The criminal law prioritizes the preservation of the public peace and the status quo. The law protects possession, not ownership. Ownership disputes must be resolved by the civil courts, not through criminal action. The law permits what would otherwise be a crime to defend against emergency threats that risk permanent loss of or destruction to property.

As a final note, I draw your attention to the fact that both defences contain a special rule in relation to their use by someone who claims to be defending against law enforcement actions, such as an arrest or the seizure of property pursuant to a warrant. The rule is this: unless the person reasonably believes that the peace officer is acting unlawfully in discharging their duties, defensive force may not be used in this context.

Bill C-26 is consistent with the current law in these situations, but hopefully—as I believe it does—expresses the law more clearly. I encourage the members to support this legislative package, which aims to allow citizens more latitude in arresting individuals they have seen commit an offence on or in relation to property and to bring our laws of self-defence and defence of property from the 19th century into the 21st century.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Minister.

Now we begin the rounds of questions with Mr. Harris. These rounds are five minutes long for both the questions and the answers.

Go ahead, Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

Thank you, Mr. Minister, for joining us today. We welcome the attempt to clarify the law of self-defence. I call it that because I guess our job is to have a good look at it and try to ensure that it does result in clarification, not in another series of decades or whatever of court interpretation.

On that score, in setting forth the examples, such as, for example, the factors in proposed subsection 34(2)—it's a non-exhaustive list of factors, as you pointed out—to be considered, are you satisfied that the current case law as it has existed over the last hundred years will still be useful and valid in helping to determine what's reasonable in terms of self-defence and that in fact all this is doing is clarifying the application of that?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think that's exactly what it does. You've made a very good point. You know, what is reasonable has been before our courts for quite some time, and that jurisprudence will continue to be of assistance. But as you point out, even with the non-exhaustive list contained within this bill, this is something that is, in my opinion, long overdue.

I've heard from law enforcement agencies that when they deal with these sections...and it doesn't matter whether you're a lawyer, a member of the public, or the courts; I've heard law enforcement agencies point out that they're very complicated, these defences.

I remember a comment from one individual who said that we were better off just letting the courts figure this out. I said, well, no, this is not what we want to do; if it's not necessary or not appropriate to lay a charge, we don't want to have that happen. It's not something where we just throw it to the courts and let them figure out these provisions, which have been largely unchanged for the last 172 years.

Like so many different sections of the Criminal Code, I think it's appropriate for us to have a look at this and try to clarify it, but with, as you say, the benefit of decades of jurisprudence as to what's reasonable and what's not reasonable.

[Jack Harris, NDP, St. John's East, NL]

One of the things these proposed amendments do is not make what the current code makes: a distinction between the amount of force allowed to be used to protect a dwelling-house, a home, or real property, and greater force is permitted there than to defend a movable property. That distinction is removed.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes.

[Jack Harris, NDP, St. John's East, NL]

Do you think there will still be a distinction in terms of the level of interpretation with regard to what you can or can't do when you're trying to stop someone from grabbing your purse as opposed to having someone invade your house?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it clarifies the law to the extent that some of those distinctions on legal ownership, and exactly what type of property, which is all through the existing law that we have there.... It's basically clarifying it so that if you're....

It's not just a question of defining whether a mobile home is a home, for instance, or whether that's the same thing as real property and all that. As I say, I think many of those distinctions were unhelpful in terms of trying to figure out whether these sections apply and whether a person has acted reasonably under the circumstances.

So a more general application, I think, is appropriate rather than getting into all the possible distinctions of property ownership that are possible under our law.

[Jack Harris, NDP, St. John's East, NL]

Finally, we might have to explore this later, but was consideration given, in looking at the changes to the self-defence provisions in particular, to the series of some pretty high-profile cases where spouses, the victims of spousal abuse, have in fact killed their spouses and raised self-defence as an issue? As you know, these are complicated and sometimes controversial cases. Was special consideration given to ensuring that the changes in the law would still give rise to the defence of self-defence, as it has been determined by the courts right now?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think you've raised a very good point.

That is certainly one of the valid considerations in putting this together. You'll notice that in that non-exhaustive list, the past history of the relationship between the individuals....

So in the cases of the type that you're talking about, where, for instance, an individual has been a previous recipient of violence from the individual who is approaching him or her, that's another consideration to be taken into the courts in terms of the level of reasonableness.

Again, it's not just a coincidence that this particular provision is put in there. It's a non-exhaustive list, but we wanted to make it clear that the previous relationship that, as you point out, in some circumstances involved violence...and threats are part of that as well, for consideration.

So it's a good point.

[Jack Harris, NDP, St. John's East, NL]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I want to thank Minister Nicholson and the two witnesses, Ms. Klineberg and Ms. Kane, for having come to testify before us today. I am sure that your clarifications will make the bill more comprehensible.

Minister, we certainly acknowledge that the police are the principal source of protection against crime amongst the public, and clearly Bill C-26 does not alter that.

I'm wondering if you could provide us with your thoughts on this. Some people have argued that perhaps the changes brought by Bill C-26 might encourage an atmosphere of vigilantism.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't think so. Again, if you look carefully at the section on citizen's arrest, as I am sure you are doing and will continue to do, we indicate that the person who has actually witnessed this—they haven't got it second- or third-hand that a crime had been committed and then they're getting involved with citizen's arrest—must be present to see the crime, but within a reasonable period of time after that they apprehend the individual.

I think it was fairly carefully crafted in that regard. I would be concerned that if a person believed that somebody had committed a crime at any time or anywhere and hadn't actually witnessed it themselves, it might lead to the situation you describe.

Again, it's very careful. I don't expect any increase of “vigilantism” as a result of this. As I say, it's carefully crafted, but it expands the ability of an individual who has been victimized or has witnessed a crime of this type to be able to do something about it.

But again, as you know, and that's part of the provision as well, you are to turn this individual over to a law enforcement agency as soon as possible. I think that's appropriate. This is what we want.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

And obviously those who feel they should express some vigilantism will be subject to the full expression of the laws against them.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, vigilantism is not something we've ever encouraged in this country, and certainly this bill doesn't do that either.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I'm wondering briefly about the issue of reasonable force. The defence of property does not explicitly spell out what limits should be placed on reasonable force. Obviously this can extend all the way to lethal force. How can we determine exactly what is reasonable in the circumstances?

[Rob Nicholson, Conservative, Niagara Falls, ON]

As you know—you've practised law in this country—that term “reasonable” shows up inside and outside of our laws. It's certainly a major component of the common law of this country: what is reasonable under the circumstances.

Again, those tests that have been applied in our courts for a couple of centuries now will be continued. They will look at each case to see what is reasonable under the circumstances. I'm just pleased that we've finally updated the laws to make it a little more comprehensible. Again, we don't just do these things for lawyers or the courts; we do them for the people who have to administer these laws.

As I say, when I get together with people in law enforcement, and many times this isn't the first topic they talk to me about—I might have been there for something else—they raise this and say this is overly complicated and difficult. Even as a lawyer you could look at all those different sections and say this isn't easy. As I say, I think it's in part a function of when it was originally drafted.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I'm wondering about the issue of lethal force. Certainly one could contemplate that perhaps lethal force in defence of oneself or others might be contemplated, but do you draw a line between the use of lethal force for self-defence versus the defence of property? Does that strike any difference, in your mind?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, we do. We do make a distinction. This is why we don't just combine this into one section. As you see, there is the section on self-defence, which is something different from the defence of property.

Again, what is reasonable under each circumstance can be different, and you've given me that opportunity to say that. There was no consideration in drafting this that we would put both of these together and just say what's reasonable. There has to be a distinction between whether you are protecting yourself or your loved ones from injury or harm and the defence of property. And that continues in this legislation.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Goguen.

Ms. Sgro.

[Judy Sgro, Liberal, York West, ON]

Thank you very much, Mr. Nicholson.

A couple of years ago I had a constituent call me. Someone broke into his home and he attacked the individual in self-defence—defending his home and his family. His wife called 911, but consequently he was charged as well as the intruder into the house.

Under Bill C-26, how is that going to make it—