Justice Committee on Feb. 7th, 2012

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm sorry, in your fact situation, he wasn't—

[Judy Sgro, Liberal, York West, ON]

He was defending his own house and his property, which is much of what Bill C-26 is talking about.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, of course.

[Judy Sgro, Liberal, York West, ON]

Ultimately he had to hire a lawyer and go through the process when he was defending his home and family.

Under Bill C-26, how is that going to be different?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I never comment directly on any particular case that's before the courts, or any fact situation. I'm satisfied that this law will clarify the circumstances under which an individual is entitled to defend their property.

Distinctions as to either ownership or how much possession you had unnecessarily complicated the defences of self-defence and the defence of property. So for me this was an easy sell when I was shown this and how it was difficult. I quoted you the one law enforcement agency that said let the courts figure it out. As far as the individual who should not be charged, and the individual who acted reasonably to protect themselves, their house, or their family, we don't want them in court in the first place. This only adds to the clogging of our courts. It's an additional expense to litigate these matters. We don't want to go there if the person has acted reasonably.

I'm satisfied that the clarifications of this law will address fact situations similar to the types you're giving to me, without commenting on any specific case.

[Judy Sgro, Liberal, York West, ON]

Thank you.

Under the new section 34, the distinction between provocation and intention to use deadly force will not be as explicit. How will that have an effect on the battered woman syndrome? Will it still be open to accused persons?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I would point out that if there's provocation or something, that's completely different.

I might ask Joanne Klineberg, who is an expert on the law in this area, to comment.

[Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice]

I believe the section you're referring to sets out what provocation may look like for the purpose of self-defence. That would not be part of the new law on self-defence. That's actually a provision that's invoked very infrequently. I'm not aware of any cases where it has actually been an issue in a battered spouse type of situation. So its removal certainly wouldn't have any impact on that particular situation.

The presence of that provision really only serves one function, which is to determine whether self-defence would be available under section 34 or section 35. By collapsing all of the multiple self-defence provisions into one single, more generally applicable provision, there really is no need to have anything that defines what provocation would be. It simply would become a factor to consider in determining the defence overall, but it wouldn't be determinative of anything.

[Judy Sgro, Liberal, York West, ON]

Why is gender referred to in this legislation when it isn't referred to in the Criminal Code anywhere else?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, size, gender, age—all these things play into whether a person might have acted reasonably. You could have an individual who was six-foot-six and 250 pounds and another person who was five-foot-one and 110 pounds. These are the kinds of things you want them to take into consideration, in terms of who has acted reasonably and who has used a reasonable amount of force. Those are just a number of factors to take into consideration.

[Judy Sgro, Liberal, York West, ON]

Thanks very much.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Ms. Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chairman.

This is always a very interesting aspect. I remember that in my criminal law classes my fellow law students found this one of the most interesting topics, because there is a large measure of subjectivity and objectivity in this. So finding the proper equilibrium in all of that is not always an easy task.

My colleagues have already broached the points I wanted to raise, but I would simply like you to reassure me. When you developed the new criteria in clause 34.1, was this after studying all of the criteria that had already been established in jurisprudence?

My concern is the following. When defence attorneys look at the changes to the legislation, they will certainly examine jurisprudence and the criteria and grounds that have been invoked to claim self-defence. In fact, that is based to some extent on existing caselaw. Can we be reasonably certain that all of this was looked at, so that we do not wind up with costs, so that people don't say that this was already pleaded successfully and that the legislator did not include it again?

Would that be an indication that those are not grounds to be considered? Do you understand what I am trying to say? Did you look at all of the criteria? That does not mean that the list is exhaustive, because there could be others in years to come, but I am referring to what existed before and to current jurisprudence.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think you've made a very good point. It is not intended to supplant existing jurisdiction, and I think you're quite correct. What is reasonable under the circumstances will continue to be argued, and past cases would be a good indication of just what is reasonable or not reasonable under the circumstances.

You point out something else as well. We deliberately put the list to be non-exhaustive because, as you say, you want the law to develop. There may be other criteria or situations here that we're not aware of or that may develop in the future. We don't want to close it off and say you didn't come within section 2 through 8, so therefore you're out of luck in trying to use this self-defence provision.

The list is a non-exhaustive list, but again this is not intended to supplant existing jurisdiction. You're quite correct. We don't want to be clogging up the courts and taking the time to go over areas that have already been decided, that have already been adjudicated. Much of what we are doing in this law is just clarifying so that it's not overly complicated for any individual or person or agency or court to figure out just what we're talking about when we're talking about the defence of a person or a property.

[Françoise Boivin, NDP, Gatineau, QC]

Very well.

One clause in particular concerns me. Vigilante groups always worry me a bit. It is always worrying when you see people taking justice into their own hands, with the dramatic consequences that that can have.

I also have another concern. Subsection 3(1) contains the following words: “or a person authorized by the owner”. I wonder who they are referring to in that passage.

According to me, the term “person authorized by the owner” and the fact that this can be done in a reasonable period of time is a problem. In fact, don't you think that the expression “within a reasonable time after the offence” is a rather vague expression? I am having trouble understanding this. Once again, the vaguer the text, the greater the leeway the defence will have to invoke all sorts of arguments.

I would like some reassurance in this regard.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You'll notice that with respect to the citizen's arrest we provide a little more clarification and an expansion of the category of individuals who may conduct a citizen's arrest. Obviously, the first person you think of is the owner or the person in lawful possession, but, for instance, a business may have employed private security, so they're in lawful possession. They are there, and we don't want to exclude an individual like that, who sees somebody committing a crime and they initiate the arrest. It's not just a question of the person owning their property; it's a person who is authorized by the owner or the person in possession of the property.

[Françoise Boivin, NDP, Gatineau, QC]

So it could be an employee of a dépanneur or something like that?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Exactly, but in terms of your comments about vigilantism, you'll see that we don't go the next step and say that anybody who believes that somebody has committed a crime anywhere can then exercise the citizen's arrest. We're not saying that. We're saying if you come within that category as we've described, if you see somebody, if you become aware of somebody committing that crime, then you can, within that reasonable period of time.... That includes the case whereby if you saw somebody committing a crime and then you ran into that person an hour or two later. It seems to me that's within a reasonable time.

You'll notice that we can include those provisions where it is unreasonable to get a peace officer to effect the arrest. That has to be a part of it, and we don't want you imprisoning this individual. We want you to turn over this individual to law enforcement agencies as soon as reasonable.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Minister.

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, and thank you for being here, Minister Nicholson, Ms. Klineberg, and Ms. Kane to assist us this morning.

As you outlined, Minister, in your earlier remarks, Bill C-26 makes it a requirement that the arrester finds someone committing an offence, and that arrest has to be effective at the time of the offence, and also that an arrest occur within a reasonable time.

I'm curious as to your comments as to why our government decided not to adopt the opposition party's proposed private member's bill's test of reasonable grounds to believe that an offence has been committed.

[Rob Nicholson, Conservative, Niagara Falls, ON]

There were a couple of versions that were introduced in the previous parliament with respect to citizen's arrest, and we had a close look at all of them when we developed the government's legislation.

It seems to me that we are better off confining it to individuals who are witnesses to the offence themselves. Just since I've been here this morning, on at least two different occasions from two speakers, I've had the question of vigilantism. Nobody wants Canada to go down that road. We have confidence in law enforcement agencies in this country. We want to work with them, but we know that an arrest by somebody in law enforcement may not always be feasible, may not be able to be timely, so we want to have these provisions.

To have a situation where anybody at any time would be able to arrest an individual because they reasonably believe an offence had been committed somewhere at some time I think would be a huge expansion of the citizen's arrest provisions. I don't think that is justified. To have it more focused on situations that do arise where people see somebody committing a crime I think is the best compromise.

We looked at all these issues, but it was time to have a look at citizen's arrest, and to change those provisions so that if you caught somebody out in the alley three hours later, there's no question about that. Again, if you're acting reasonably, if you witnessed the crime and it's within a reasonable period of time—you have that and other qualifications—as I say, I think that is a good fit for this.

We weren't trying to expand this into some other area that I think would be quite foreign to the people of this country.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

I was also wondering if you believe this legislation would prevent incidents like the 2009 arrest of Mr. David Chen for kidnapping after he detained a shoplifting suspect. I know he received an acquittal ultimately, but my understanding is that one of the issues that figured in Mr. Chen's case was the period of time between the commission of the offence and the arrest, and that resulted in the kidnapping charge.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't get into the particulars of any exact case. I have heard, though, from law enforcement agencies that they find the whole area very complicated and not as helpful, quite frankly, as it should be.

You will note, though, in the legislation that we have, first of all, corrected the problem with respect to the timeliness of the arrest by putting in the reasonable period of time. But you will notice as well that there are provisions within here that you have to only exercise this right when it is unreasonable or unfeasible to have somebody in the law enforcement community do this. This is so we don't have people doing this themselves unless it's necessary, because these are inherently dangerous situations here, and we don't want people to unnecessarily hurt themselves and get involved with something much more serious than what they are trying to correct.

I think that is a reasonable provision to put into the Criminal Code, as is the provision that you must, within a reasonable period of time, turn that individual over to law enforcement agencies. We don't want to have a situation where people have some sort of a right to detain someone or imprison someone. That's not the role of an individual citizen. After they have effected a citizen's arrest, it's to turn that individual over to law enforcement agencies as quickly as possible, and that is what is preserved and made explicit in this piece of legislation.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Jacob.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Good afternoon, Minister.

I have some questions for you on the consequences Bill C-26 is going to have on the work of private security agencies.

First, will the changes proposed in this bill affect the work of security agents? And moreover, by broadening the provisions governing citizens' arrests, are we not opening the door to possible abuse on the part of security agents? Finally, should there not be more restrictive regulations governing security agents in order to limit their powers, so as to distinguish between ordinary citizens and merchants?