Justice Committee on Feb. 7th, 2012

[Joanne Klineberg]

Right.

I can add a little more detail. You're exactly right that section 38, one of the defences for protection of movable property, doesn't allow very much force to be used to defend that possession. But section 39 is another defence that exists for a person to use to defend their possession of movable property. The difference in the case of section 39 is that the person defending the property has a claim of right to the property, which is an element missing from section 38.

If you look at section 39, it's not limited in the same way that section 38 is limited. It talks about how this person “is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary”.

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

That's part of the confusion in the existing law. I recognize that.

[Joanne Klineberg]

That's right.

I think the key thing is that, even at present in the Criminal Code with respect to protection of movable property, the law's not limited only to very minimal force. So if we were to introduce a rule, we would end up pretty quickly back in the same sort of situation the objective of simplification is seeking, which is a variety of different rules, depending on the circumstances. So, really, the objective is to simplify.

I think the objective that Parliament had back in 1892 when they enacted the multitude of provisions was laudable. They were trying to address finely nuanced distinctions between different types of circumstances. But in practice the problem is that it just leads to really complicated jury instructions and difficulties, as we know, for the police in applying the law. So, simplification, unfortunately, requires a level of generality.

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

I have a technical question on a word that's used there. We're not going to have a chance to talk to these officials who draft the legislation.

[A voice]

You can't do that now.

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

Well, I wasn't, but I had no control over how long they spoke.

[The Chair, Conservative, Dave MacKenzie]

Will you give him...?

Your colleague across the table will give you a moment.

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

Thanks very much.

I have a question on the wording chosen in proposed paragraph 34(1)(b), and it appears also in proposed paragraph 35(1)(c). It says:

(b) the act that constitutes the offence is committed for the purpose of

Well, this is all about a person who is not guilty of an offence, so how could you use the words “the act that constitutes the offence is committed for the purpose of”? I'm not an expert in legislative drafting, but I wonder if some consideration should be given to changing that to “the act that would otherwise constitute the offence”, or “the act that gives rise to the charge”, or something like that, because “the act that constitutes the offence” is a bit of a tautology there. It assumes that it is an offence, and you're really talking about a defence, in which case it wouldn't be an offence.

Anyway, that's the lawyer in me. I'm sure other lawyers sitting around here might have the same question if they looked carefully at it.

[Joanne Klineberg]

That's a very valid point. It's a neat little problem to solve from a legislative drafting perspective. It seems to be that oftentimes in the code we do use the language of “the act that constitutes the offence”, even in circumstances where ultimately it's not an offence for which a person is going to be criminally responsible. There may in fact be better words that don't lead to a sort of legal conflict by their nature. However, we are quite confident that the courts will not be confused by the meaning of this language and that in practice it won't diminish what the defence is seeking to provide.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Wilks.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Chair.

I'll bring out the policeman side of me now. I'm just curious, with regard to this bill, as to whether it also covers the situation of a police officer directing a civilian to apprehend an individual, with regard to how much force can be used in that circumstance.

[Catherine Kane]

Could you elaborate on the type of scenario you have in mind when a police officer would be asking a civilian to apprehend someone on their behalf?

[David Wilks, Conservative, Kootenay—Columbia, BC]

Sure. Let's use section 68 of the Criminal Code in which a proclamation has been set out with regard to rioting. A number of police officers show up at the scene, are overwhelmed, and direct person A to apprehend a certain person, and they say, “Do what you need to do to keep him in custody”.

[Catherine Kane]

If the person A has found another person committing an offence, but it's not in relation to their property, I don't think that scenario would be covered by what we're contemplating in the citizen's arrest context. We're changing the law only with respect to the person's property, because they are effecting the arrest due to lost or damaged property.

[David Wilks, Conservative, Kootenay—Columbia, BC]

We're also dealing with apprehension, though, are we not, rather than just property? I guess what I'm getting at is that a lot of police officers, including me in my previous life, from time to time would use the opportunity, if need be, to have a citizen make an arrest on their behalf because they were detained at the time doing something else, but they had seen a crime occur. I saw the crime occur; now I'm going to direct that person to make the arrest.

[Catherine Kane]

That conduct is I think still covered by subsection 494(1) of the Criminal Code, which is not being changed by Bill C-26. We're only changing subsection 494(2), which deals only with citizen's arrest in the property context, if someone finds someone committing an offence.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you.

Mr. Chair, I'd like to ask one more quick question, if I may. With regard to what was always my understanding from the perspective of a police officer, that you may use as much force as is necessary, is that going to be the term under subsection 494(2)?

[Catherine Kane]

Subsection 494(2) adopts or cross-references with section 25 of the Criminal Code, so it's the same standard of force. I'll just go back to section 25 to get the proper wording. Section 25 refers to somebody who is doing:

anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[The Chair, Conservative, Dave MacKenzie]

That brings us to the end of the agenda. As members can see, there is some committee business.

I would like to thank the witnesses for being with us today. I think you provided us with clarification of a number of the issues, and I think the committee will obviously go forward well armed with the information.

Thank you again for being with us.

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

On a point of order, I understand that we had a short time and we were dealing with policy in general with the minister. Would it be the understanding that once we've heard from other witnesses—academics and others, if it's necessary—to get further clarification or ask some information of the justice department officials, that they could be made available at that time? Is that your understanding as to how we might do it?

It may not be necessary, but we didn't have very much time to get into the technical information, and we may be more enlightened ourselves as to the permutations and combinations by the time we hear from other witnesses. I would just like to bring that up.

[The Chair, Conservative, Dave MacKenzie]

Mr. Harris, you know that the officials are always more than eager to come and make things clear for committee members. The committee will have to make a decision on whether they want witnesses called back, but I think these witnesses will be available for you.

Thank you again.

We'll suspend just for a minute.

[The Chair, Conservative, Dave MacKenzie]

We're in public.

The subcommittee has a report to come back to the whole committee dealing with the future agenda. It's been circulated. We need a motion to accept the third report from the Subcommittee on Agenda and Procedure for the Standing Committee of Justice and Human Rights, if somebody would like to move that.

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Our clerk sent us a notice stating that we may need to consider a nomination. I know that this was done after the subcommittee met, but I would like to know how to go about adding a missing item to a report.

[The Chair, Conservative, Dave MacKenzie]

We can do that, but we should still deal with this report. Would somebody move the adoption of this report?

Madam Boivin so moves. Do we need someone to second it?

We don't need a seconder.

(Motion agreed to)

[The Chair, Conservative, Dave MacKenzie]

There are a couple of other things hanging out there that we need to do to help the clerk and everybody else. The list of witnesses has been provided. The government witnesses and the opposition witnesses have been provided to the clerk. The clerk has been able to schedule February 9 and February 14, and has four witnesses for each of those days. February 16 has not been scheduled at this point, but I do believe the clerk has heard from the RCMP and the Criminal Intelligence Service of Canada that they would be able to appear so that we could maybe get that other organized crime report finished.

It's the will of the committee at this point what we do on February 16. Either we have those witnesses come or we have more witnesses on this bill that we're dealing with.