Justice Committee on Feb. 9th, 2012

[The Chair, Conservative, Dave MacKenzie]

We'll call the meeting to order. It's meeting number 19 of the Standing Committee on Justice and Human Rights.

Today we have some witnesses appearing before the committee, dealing with Bill C-26, An Act to amend the Criminal Code . We have Ms. Pate here today from the Canadian Association of Elizabeth Fry Societies and Mr. McLeod here from the Association of Professional Security Agencies.

We have by video conference two witnesses, one from the Canadian Bar Association, Mr. Gottardi, and one from the Canadian Police Association. I'm not sure if we have both video conferences. We have a little technical problem at this point with the Canadian Bar Association's connection, so we have Mr. Stamatakis here from the Canadian Police Association.

Welcome to you all. If you have an opening address, we'd like to keep them to five minutes. I'll let you know when you have one minute left, and then we'll begin the rounds of questions from each side.

Ms. Pate, would you like to go first, if you have an opening address?

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

Mr. Chair, I do. Thank you very much.

And thank you to the committee for inviting the Canadian Association of Elizabeth Fry Societies to present this morning. As some and perhaps all of you are aware, our organization is composed of 26 members who are across the country and provide services that range from early intervention to prison assistance and community re-entry. Our members work with marginalized, victimized, criminalized, and institutionalized women and girls throughout the country. As some of you know, some of our members are in fact the only groups who work with our victimized women and girls and are the only victim services in some of their areas.

We present on Bill C-26 from this perspective. We and our members thank you for the opportunity to present.

I'll try to keep our comments brief, and I'd be happy to have discussion.

[The Chair, Conservative, Dave MacKenzie]

Ms. Pate, I made a mistake here. You have 10 minutes. It was at our last one that we had a lot of witnesses, so we had cut it to five minutes. So you have 10 minutes. I'm sorry about that.

[Kim Pate]

Okay. Well, I've cut it down, so hopefully we'll have a lot of time for discussion.

Our organization has long been interested in this work. In fact, we responded to the 1993 white paper the Department of Justice put out on this issue, as well as the 1998 Department of Justice review of the defences of self-defence, defence of others, and defence of property. We certainly have a position, which I've provided to the clerk, that is a position from that time and is more comprehensive than this bill, but I thought it might be of use to the committee members as you're studying the bill.

I will refer to a few of the areas in that brief and also, obviously, comment specifically on the provisions of Bill C-26.

I also want to say that I've had the opportunity to read the brief from the Canadian Bar Association. In substance, we are in support of most of the recommendations. In particular, we are in agreement with the notion that the subjective element of proposed subsection 34(2) needs to be enhanced.

In fact, we would suggest that there needs to be some discussion of some particular areas in terms of the issues that battered women in particular face, because it's an area where they have not always been able to avail themselves of the self-defence provisions. We think of some of the systemic issues that were highlighted in the Malott case by the Supreme Court of Canada and then picked up by Madam Justice Ratushny when she did the self-defence review of the cases of women who had been jailed for using lethal force and who had not had the opportunity to avail themselves of self-defence, despite the decision of the Supreme Court of Canada in Lavallee.

In particular, we are concerned that the subjective pattern of reasonableness needs to take into account issues like course of control, issues like the histories of violence and abuse that have existed, and also that the particular features of the accused's experience need to be part of the explanation and part of the consideration that the court would give, so should be included in the self-defence provisions.

We have some concern that it also be a charter-driven analysis, so that when someone is making a mistake or perceives an ongoing risk, that it be a charter-driven process. So things like hate crimes, like homosexual panic, cannot be invoked in those sorts of situations, and we have to be talking about not only subjective perspectives, but subjective perspectives that are equality based and protected by our charter.

We also would like to see in the provisions that relate to defence of property a clear indication that there's a value that life will take precedence over property. That isn't there. It's certainly one of the recommendations we made in 1998 and 1999 to the Department of Justice. We would reiterate that view: that in fact we need to ensure the value of life over property.

We also think there should be some analysis of the impact on indigenous peoples who are attempting to invoke the protection of their property—historic property rights—and certainly that's not reflected in the current legislation.

We are not in agreement with expanding citizen arrest areas because we are extremely concerned about the potential consequences of largely untrained individuals attempting to arrest and attempting to assess the scale of risk or the risk. We therefore are concerned about that. I'm concerned that in fact it might encourage a proliferation of private security interests, instead of the publicly accountable policing services whose responsibility it is currently to undertake arrests.

We also think that it may in fact be a concern for security companies and for others who are engaged in criminal justice work, in that it may in fact be perceived at times as requiring some sort of obligation. Certainly, there has been raised by police officers—as well as parole officers—a concern that an extension of this might be that there would be an expectation that arrests be undertaken by individuals whose job it isn't usually to do that, who would themselves in fact call the police.

We also think there should be clearly indicated throughout these areas that there's a duty to retreat on the part of individuals who are using force and to whom those who might try to use these defences would be responding, so again, it would be part of the charter-based analysis.

Those are, very quickly and briefly, our comments. We look forward to the perspectives of our co-panellists and to the questions from the committee.

Thank you very much.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much.

Mr. McLeod, do you have an opening address?

[Ross McLeod, President, Association of Professional Security Agencies]

Yes. Our piece was submitted in due time, and I understand it has been translated so that your committee will have it.

I'll make just a few remarks and give a broad overview, and then—I think the devil's always in the details—we'll leave it for the questions.

In our piece we try to put things in context. We feel there are trends at play that are accelerating and that will accelerate into the future, so it's very timely that Bill C-26 is being brought forward.

The history of public agents as opposed to private agents, which our association represents, is a very brief one, less than 200 years old. Policing used to be an entirely private affair, and in the last almost 200 years it's become largely a public affair. The public model of policing probably reached its high-water mark in the sixties. Since then there has been a slow but inexorable move back towards private elements coming into the model.

The security industry as we know it today has risen to be a very robust, very large industry that now outnumbers public agents, police officers, by at least two to one. That's the most conservative estimate you can get. Some analysts go as high as five to one or six to one. This indicates that there are very real problems with the fully public model of policing.

The financial crisis that started in 2008 brought this into high relief. There are large layoffs taking place in public policing departments in the U.S. In Canada, there are various groups looking at policing. The financial model of public policing is non-sustainable as it's presently constructed.

In the future we will see more, not less, private agents being involved in enforcement. The drivers that started this industry in the seventies are still very much there, and the conditions are set to make the private sector even more prominent in the future. So Bill C-26 is timely.

We would like to also bring in the notion of technology that is starting to permeate certainly the private sector, which is ahead of the public sector in the use of technology in enforcement. In our recommendations, we draw attention to the requirement that “find committing” an indictable offence, that private agents or citizens...and they're the same thing here, for these purposes. The “find committing” requirement must take into account the use of electronics.

Picture a large modern regional shopping centre with a Walmart-type store with tens of thousands of square feet. The security is enhanced and abetted by pervasive CCTV surveillance. Crimes are observed in their commission with “virtual eyes”, with agents sitting in control rooms watching people stuff their booster bags or their garments with high-value small items and then heading out of the establishment past the last point of sale.

As a practical matter, these agents have to communicate with their peers on the floor through radio or texting and direct them to effect the arrest of the shop thief as they exit the premises.

Similarly, in malls, in what sociologists call semi-public spaces, which would include large malls, there's all sorts of activity that takes place—a whole range of criminal activity—and, once again, CCTV is pervasive: to protect the public. So when you redraft the “find committing”, please take into account that technology gives us new ways to find committing. Those should be held in mind as you draft this.

Also, in regard to the requirement that a private agent or a citizen—it's the same thing for these purposes—turn over an arrested person within “a reasonable time”, or make the arrest within reasonable time with a “find committing” of the offence, we should also take into account, once again, electronic aids that allow us to track, whether it be, through RFID, articles that are being stolen from retail environments, or whether it be large containers or tractor-trailers that are being stolen from terminals, which we detect through GPS tracking. Often before an apprehension can be made by public or private agents, significant time has elapsed and jurisdictions have been crossed as the stolen equipment is followed. This should be taken into account as well.

As we point out, the drivers that are growing the private industry are not going to abate any time soon. To go back to the example of loss prevention people, who make on average many more arrests than public police officers do, they spend an awful lot of time holding arrestees and holding prisoners while waiting for fully sworn public officers to arrive—for what are for the most part very, very minor offences—and to charge and release these folks at the scene. If we were to allow private agent citizens, who were trained and certified to do so, to charge and release at the scene, like bylaw officers can write various provincial offences tickets, this would represent a massive saving in police time. I think the police establishment would be very grateful if this could be envisioned in any redrafting.

By and large, we support these changes. We think they're in the spirit of what's actually happening out there and what's going to be happening over the next 20 or 30 years.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. McLeod.

Now joining us by audio and video, we have Mr. Tom Stamatakis, from the Canadian Police Association.

Sir, if you have an opening statement you wish to make, please go ahead and do it now.

[Tom Stamatakis, President, Canadian Police Association]

I do. Thank you, Mr. Chair.

I apologize for not being there in person today.

For those of you today who might not be familiar with the Canadian Police Association, we are the national voice for 41,000 of Canada's front-line law enforcement personnel. We represent police personnel serving in 160 police services across Canada, from Canada's smallest towns and villages to those working in our largest municipal and provincial police services, as well as members of the RCMP, railway police, and first nations police.

It's my pleasure to be able to speak to you today regarding Bill C-26. I would like to offer a few brief opening remarks in order to keep as much time as possible to answer any questions you might have regarding this legislation and the impact it will have on Canadian law enforcement personnel.

Obviously the December 2009 case of Toronto store owner David Chen showed that Canada's current laws regarding the right of citizens to effect an arrest in order to protect themselves or their property required some consideration. That being said, we should always take care to underline, particularly for the sake of public safety, the fact that the preservation of the public peace should always be the responsibility of professional, trained, and recognized law enforcement personnel.

I should note that before Bill C-26 was originally introduced in the last Parliament as the former Bill C-60, the Minister of Justice and his department consulted extensively with our association and other law enforcement stakeholders to ensure that our concerns were reflected in this legislation. We appreciate their efforts to reach out in this regard, and as always we look forward to further cooperation whenever it's possible.

With respect to this specific legislation, our association is generally supportive of the goals and methods contained within Bill C-26. I would like to take this opportunity, however, to outline a few brief concerns.

Obviously, law enforcement personnel are the beneficiaries of a significant amount of training in areas such as the proper use of force, methods of detention, and arrest powers, which average citizens are not privy to. Therefore, it's vitally important that we continue to educate the public that despite any changes to the powers of citizen's arrest in Canada, the first reaction people should have if they witness a crime being committed is to call the police and allow our law enforcement professionals to do the jobs they're trained to do.

We should also take care that any changes made within this legislation do not have the unintended consequence of broadening the current mandate of private security, particularly with respect to loss prevention in commercial settings. While I am sympathetic towards store owners and businesses that wish to minimize losses with respect to the very real concern of shoplifting, which costs us all in the long run, we must take care not to go too far in the pursuit of protecting property.

For instance, it can be tempting to believe that all shoplifters are teenagers committing a crime of opportunity. But factors such as the presence of accomplices or even, in the worst case, gang affiliation can lead to increased personal danger for private security personnel who try to effect an arrest. We definitely don't want to see a situation in which a citizen's arrest is made only to find the suspects' friends or accomplices returning for a measure of retribution.

In the end, property owners, shopkeepers, and businesses that are looking to prevent losses should take the basic steps necessary to assist law enforcement, including installing functioning and clear cameras where necessary, as well as quickly reporting any suspected activity to local police agencies, rather than looking to take the law into their own hands.

In summary, Bill C-26 does help clarify some of the situations in which it might be appropriate for a private citizen to act in defence of themselves or their property, but we must avoid any indication or implication that these actions should be a replacement for professional law enforcement personnel.

I do appreciate the opportunity to address you today and certainly welcome any and all questions you might have on how this legislation impacts our members.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much, sir.

We have a little problem with the video conferencing for Mr. Gottardi....

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Chair, while we're waiting, may I inquire as to whether or not we had a written submission from Ms. Pate? I don't seem to have one, if we do.

[The Chair, Conservative, Dave MacKenzie]

No.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Okay, thank you.

[Kim Pate]

Mr. Chair, while we're waiting, I would like to point out for Mr. Woodworth that if he is looking for some of our submissions, I did provide a copy of the position paper that we submitted to the Department of Justice. It's old now, but many of the comments that I raised are included in that.

[The Chair, Conservative, Dave MacKenzie]

I think our problem is that it's only in English. It will have to be translated.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

If I may, I really wasn't intending it to be a negative inquiry. In fact, I was very interested in what Ms. Pate had to say, so I thought a little more time to digest it would be helpful. Thank you.

[The Chair, Conservative, Dave MacKenzie]

Okay.

[Eric Gottardi, Vice-Chair, National Criminal Justice Section, Canadian Bar Association]

Hello?

[The Chair, Conservative, Dave MacKenzie]

Mr. Gottardi?

[Eric Gottardi]

Yes, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

We do apologize. We've obviously had some problems here. We have you now on audio. We don't have a video connection. If you have an opening address and would like to provide it now, that would be fine.

[Eric Gottardi]

Yes, thank you.

I think it might have been a lot easier just to come to Ottawa to appear before the committee today. I apologize for not being there in person. I know that we're a bit late because of the delay, so I'll curtail my remarks a little so we can get straight to the questions.

I want to thank the committee for the invitation to present today the CBA's views on Bill C-26. As some of you may know, the CBA is a national association of over 37,000 lawyers, law students, notaries, academics, and judges. An important aspect of our mandate is seeking improvements in the law and the administration of justice. That's the perspective from which I appear before you today.

Personally, my capacity is as the vice-chair of the CBA's national criminal justice section. This section consists of a balance of crown and defence lawyers from every part of the country. I am a lawyer in Vancouver who does both crown and defence work.

The Criminal Code provisions concerning self-defence, defence of others, and defence of property have been the subject of decades of criticism and frustration for lawyers and judges, due to the multiplicity of code sections and subsections and many variations among their elements. Many high-profile cases in Canada have faltered on jury instructions regarding self-defence.

The CBA national criminal justice section has called for reform of these provisions of the code for many years—for over 25 years, in fact—so it's with great happiness that we see this bill coming forward with the proposed amendments to the law of self-defence. In particular, we support the bill's creation of two comprehensive sections concerning the defence of self and the defence of others, and indeed including the defence of property as well.

This bill represents an historic and significant step in the evolution of the law and, hopefully, the simplification of the law of self-defence. It's in light of that historical context and the likelihood that if this bill is passed, this iteration of the law of self-defence will remain on the books for many decades, that there are some small amendments the CBA proposes to help fine-tune the provisions contained in Bill C-26 that are related to self-defence.

Hopefully, we'll get into some of those details later as questions come, but in particular, those suggested amendments are set out in detail at pages 2, 3, and 5 of our submission before you today.

The second aspect of the bill is the expansion of the powers of citizen's arrest. It's that aspect of the bill that the CBA does not support.

We're concerned that the bill may encourage citizens who are untrained in arrests to risk their own personal harm and risk liability for wrongful arrests. We know that arrestees are more likely to resist citizen's arrests than arrests by the police, and ordinary citizens are less likely to have a knowledge of physical controls or tactical communication to deal with individuals who actually resist those efforts of arrest.

We're also concerned that the changes will encourage unjustified arrests by private security personnel, who are not subject to public oversight in the same way that police agencies are. 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.

So it's a dual approach that we have to the bill today. We're excited and happy to support the long-awaited amendments to the law of self-defence. It's a welcome reform. On the other hand, or in our view, the changes to the law of citizen's arrest are just unnecessary, and in fact may put Canadians at further risk.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much.

Now we'll begin our rounds. They are five-minute rounds.

We'll begin with Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I'd like to thank all the witnesses who have joined us this morning.

Mr. Gottardi, I share the concerns of the Canadian Bar Association. I read your brief carefully. Anyone who has practised in the field would agree that these are not the easiest criminal provisions to read and understand, in terms of intent. But this is part of the everyday reality of crown attorneys, police officers, members of the controlling forces and defence lawyers. Everyone agrees that if everything were simplified and clarified, it would be better. But we need to be careful. If there's one thing I've learned as a lawyer, it's that simple legislative documents and lawyers aren't many. I haven't seen many in the course of my career.

We also heard from Mr. McLeod, of the Association of Professional Security Agencies. One of my concerns deals with citizen's arrests.

Mr. McLeod, according to the provision as drafted, I don't see how you could be involved closely or remotely in the arrest of someone without a warrant if you did not witness the incident. You aren't an extension of the person whose property was stolen. Is that how you interpret this provision? I felt like there had been a bit of lobbying, that you would be allowed to do a little more to lighten the load of the public authorities. But people from the police association told us that it should be left in their hands since they were properly trained to do this work.

I'd like to know what your position is with respect to Bill C-26.

[Ross McLeod]

We have two bases for arrests as security guards. One is the citizen's arrest, just as any other citizen in the age of majority can do. The other is as the owner of private property dealing with, say, a trespass issue in an apartment building, or even in a mall, where we have the delegated rights of the owners or occupiers or managers to tell people to leave the premises if, for instance, within the retail environment, they set up a stall and they're selling products in the mall without renting from the mall.

If we tell someone to leave and they don't leave when directed to do so—this is a direct quotation from the legislation—then we can arrest without warrant, and we can arrest for indictable offences, as citizens.

That's where it comes from.

[Françoise Boivin, NDP, Gatineau, QC]

Bill C-26 doesn't change anything from what you're already authorized to do.