Evidence of meeting #20 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was reasonable.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Hamish Stewart  Professor, Faculty of Law, University of Toronto, As an Individual
  • Greg Preston  Edmonton Police Service, Legislative Amendments Committee of CACP, Canadian Association of Chiefs of Police
  • Alex Scholten  President, Canadian Convenience Stores Association

11:40 a.m.

Conservative

The Chair Dave MacKenzie

We'll call the meeting to order, this being the 20th meeting of the Standing Committee on Justice and Human Rights.

Today we're continuing our study on Bill C-26, an act to amend the Criminal Code. We have some witnesses before us today.

Just before we start, I'll just remind the committee that on Thursday we're going to deal with Mr. Comartin's Bill C-290. He has one witness. I believe that we'll be able to deal with that witness and do the clause-by-clause on Thursday. Hopefully we can finish that bill off. Then we're going to deal with a couple of groups that are going to come before us. And hopefully we can finalize the organized crime study.

Today we have three witnesses before us: Mr. Stewart, Mr. Preston, and Mr. Scholten. You're each given ten minutes, if you wish, for introductory statements, and then the questioning goes back and forth. It's a total of five minutes for questions and answers.

Whoever would like to go first, please feel free to do so.

11:40 a.m.

Hamish Stewart Professor, Faculty of Law, University of Toronto, As an Individual

All right, then. We'll just go in the order we were listed. I'll start.

The aspect of Bill C-26 I'm going to focus on is proposed section 34, the proposed amendments to the self-defence provisions. I'm focusing on this because this is the most significant proposed changed to the law of self-defence in Canada since the Criminal Code first came into force in 1892. This bill potentially has a very significant impact on the law of self-defence.

What I'd like to do first is say a few words about the role of self-defence, generally speaking, in the criminal law. Second, I'm going to outline what I think is the essence of a self-defence claim and the elements a self-defence claim should have. And finally, I'm going to say something about proposed section 34 in light of those first two points.

First, I'll make a few general comments about self-defence.

In a society that's governed by law and institutions, as Canada is, we generally rely on those institutions to protect our most basic interests. We rely on the police. We rely on the courts to settle disputes. We typically don't exert force ourselves to solve our problems, but there are times when it's not possible for the institutions to protect us. In an emergency situation, the problem arises suddenly, and it's not possible to call the police or it's not possible to wait for a court to decide the dispute. In those situations, criminal law recognizes that private individuals can do things that otherwise would be crimes—sometimes quite serious crimes. The law of self-defence, in particular, permits individuals to commit acts that would otherwise be assaults, or even murders, when it is not possible to obtain protection from wrongful threats through the usual method of calling the police or other means.

Provisions governing defence of property function in a similar way, but I'm going to focus mainly on defence of person--proposed section 34.

On the one hand, we hope that self-defence is exceptional, in the sense that we hope that most of the time individuals will be able to rely on the police and other institutions to protect them. On the other hand, when self-defence is required, it's there to protect our most basic interests and bodily integrity. I think the law of self-defence needs to take both of these aspects into account. It needs to take into account the need to protect everyone's most fundamental interests and to also recognize that this should not be the first resort but the last resort, in a way, for citizens who face wrongful threats.

I would suggest that in a successful self-defence claim, there should be three elements. When these three elements are present a self-defence claim should succeed, but when any one of them is lacking a self-defence claim should fail.

First, the person who is defending himself or herself--I'll just call that person the defender, for short--is faced with a wrongful application of force, or the threat of a wrongful application of force, to his or her person. So a wrongful threat is the first element.

The second element is that whatever force the defender uses in response—the defensive response—is necessary to repel the wrongful force or the threat of force.

Third, the force the defender uses is proportionate to the threat posed to him or her in the first place.

Typically, the law of self-defence requires the defender to have a reasonable belief that these three elements are present. They don't actually have to be present, but there should be at least a reasonable belief that they are.

Many criminal codes, many systems of criminal law, require if not these exact three elements, then something like them. The existing provisions of the Criminal Code—the existing subsection 34(2) of the Criminal Code--doesn't track them exactly, but it's often been interpreted to require something along these three elements of self-defence. In my written notes I give a few examples from other legal systems, and you can find something similar in English law.

I want to suggest to you that these three requirements make perfect sense. Take the first one, the requirement that there be a wrongful threat. If someone is faced with an application of force that's not wrongful, then the person should submit to that. They should not resist it. The clearest example of this would be a lawful arrest. You're not supposed to resist a lawful arrest. In fact, it's a separate offence to resist a lawful arrest, because the threat of force that you face is lawful. It's not wrongful.

Second is the requirement of necessity. If there's some way you can avert the threat without using force—particularly deadly force—against your attacker, then you should do that instead of committing what would otherwise be an offence.

Finally, if the response is disproportionate, then there's a sense in which the defender has gone too far in protecting his or her own interest and has upset the balance that the law of self-defence tries to create between everyone's interests in bodily integrity.

Now, if those are the three elements that a self-defence claim should have, how does proposed section 34 affect that? What would proposed section 34 do to the law of self-defence?

Well, the first thing I'd like to say about proposed section 34 is that in one respect it's extremely welcome. The existing provisions of the Criminal Code have often been criticized for being unclear, for overlapping in ways that are not always clear, and for being difficult to explain to juries. There has been a long stream of criticism from lawyers, judges, and academics about the difficulty of interpreting and applying the existing provisions. So the attempt to take all these ideas of self-defence and put them into one section that would be clear and that would apply to all potential crimes I think is very welcome.

Having said that, though, I'm concerned that proposed section 34 in its current form does not adequately reflect the principles governing self-defence that I have laid out. I'm concerned that there's a structural problem in the way the proposed section is set up.

The section does require “a threat of force”. It then says that the defence is available if the response is for the purpose of self-defence—that part is fine—and if the act is “reasonable in the circumstances”.

Proposed subsection 34(2) then goes on to list a number of factors that are relevant to assessing whether the response is reasonable in the circumstances. Now, my discomfort about this is not the list of factors as such; it's that the key elements of self-defence—namely, necessity and proportionality—have been placed in as mere factors to be considered, which means that they potentially could be outweighed by other factors.

In my view, the requirements of the wrongful threat, the necessity of the response, and the proportionality of the response should be the required elements of self-defence. The factors listed in proposed subsection 34(2) are relevant to those elements of self-defence. They shouldn't be allowed to outweigh them.

Since my time is running short, let me just give you one example that I'm particularly concerned about. Proposed paragraph 34(2)(h) says that one of the factors to be considered is “whether the act committed was in response to a use or threat of force that the person” defending himself or herself “knew was lawful”. This is listed as a factor to be considered.

In my view, this factor should always defeat a self-defence claim. If the defender is facing a threat of force that he or she knows to be lawful, then he or she ought to submit to that threat of force. It shouldn't be considered a factor that could potentially be outweighed by other factors, such as the size, age, and gender of the parties to the incident. That's an example, I think, of how self-defence under proposed section 34 could lead to an acquittal in a situation where it ought not to.

The reverse is also possible. Because necessity and proportionality are listed only as factors, it's conceivable under this proposed section that a person could use necessary and proportionate force to defend himself or herself against a wrongful threat and nonetheless be convicted because, in the eyes of the judge or the jury, some of these other factors might outweigh the necessity and the proportionality of the response. So a person might be convicted even though his or her conduct satisfies what I take to be the core elements of the self-defence claim.

My suggestion for proposed subsection 34(2) is not that these factors are irrelevant, but that they should be subordinated to the elements of self-defence claim: the wrongful threat, the necessity of the response, and the proportionality of the response.

Thank you.

11:50 a.m.

Conservative

The Chair Dave MacKenzie

Thank you, Mr. Stewart.

Mr. Preston.

11:50 a.m.

Superintendent Greg Preston Edmonton Police Service, Legislative Amendments Committee of CACP, Canadian Association of Chiefs of Police

Good morning. By way of introduction, really quick, I'm Acting Superintendent Greg Preston of the Edmonton Police Service, but I'm here representing the Canadian Association of Chiefs of Police, the CACP, and its law amendments committee.

I'd like to say at the outset that CACP does support the passage of Bill C-26. We think it's important that citizens be recognized, that when they do act, they have self-defence available to them. We believe that this will assist the police in understanding, to be able to better determine whether or not somebody who does act does so lawfully. The streamlined process that's proposed here will do that, and that will assist us.

The other area we'd like to comment on is that while we would prefer that trained and equipped police officers engage in the actual arrest, we do realize that the reality is that there will be certain situations where citizens do respond, whether that's as a good citizen to the neighbour or just to any other person they see. So the reality is that people will act. As I said at the outset, we'd prefer if we were on every street corner, but that's not the reality of the world. It is inevitable, and as such we certainly support the idea that they would be recognized for that.

There is one area I would like to comment on that's open for some discussion, possibly, by the committee in considering whether maybe an amendment might be necessary. That has to do with the way that subsection 494(2) is currently worded, as well as the proposed amendments, in that the bill still speaks of "if they find them committing". That's the current wording of the section, “finds committing”, as well as the proposed piece to it. As the backgrounder, the bill speaks to being caught in the act.

I just want to highlight that there's been a change in technology, obviously, over the last number of years, and that's through CCTV--closed-circuit television. Quite often we're finding that many department stores, for example--and it's not just department stores, but we are called to many of these--utilize CCTV in their loss prevention. The LPOs, or loss prevention officers, will be monitoring their store and looking for thefts through CCTV, so you'll have somebody in a monitor room, and they'll be watching the CCTV. They might observe somebody who appears to be committing an offence. What they then do is they'll call down to the floor LPO. They'll do that normally through radio or through a cellphone. They'll be relaying their observations of what is going on and why they believe that somebody's committing a crime. They relay that to the floor LPO. That particular floor LPO will then, at some point, generally speaking, be the one that will then move in to make the arrest.

I would submit to you that in a certain situation like that, and in many cases, they have never observed any aspect of the commission of the offence. In fact, quite often they will stay out of the area so as not to heat the individual up, not to spook them. So they want to see if the person really is committing an offence or if they're just going about their business. When the offence is committed, and it's been relayed to them that the person did select the item, did conceal the item, and now they're walking towards the exit, that's when the floor LPO will move in.

I would submit that at that point in time, when they move in to make the arrest, it's not "finds committing". In essence what they are relying on is reasonable and probable grounds. I know that some might debate and say that the offence is still an ongoing crime at that point in time, and therefore it's still "finds committing". I would suggest that it's not the case, that it really is reasonable and probable grounds they're operating under.

I would submit to you the case of the Queen v. Biron. It's a 1976 Supreme Court decision. It's cited in the materials I provided, but for ease of reference, it's [1976] 2 S.C.R. 56 - page 72. I believe that supports my position that what you have here really is an RPG, not a "finds committing".

If that is the case, and I know that this is not an issue where it's directly the police being involved, I still speak to it because the police are called to these incidents where we are required under subsection 494(3) to be called forthwith, to have this person delivered to us, so we still have to be satisfied that the arrest was lawful. Otherwise, we arguably are taking on an unlawful arrest, unless we can form some other grounds to continue the arrest. On occasion, we'll be called to investigate that loss prevention officer for the unlawful arrest, an assault.

We do have an interest in this, and we do believe that some consideration should be had to that particular element. Beyond that basis, we do support the passing of the bill.

I want to thank you for the time and giving the opportunity for the police community to have some input. Obviously I'll be willing to answer any questions you may have.

11:55 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Scholten.

11:55 a.m.

Alex Scholten President, Canadian Convenience Stores Association

Good afternoon.

My name is Alex Scholten. I'm the president of the Canadian Convenience Stores Association. The Canadian Convenience Stores Association, or CCSA, represents the economic interests of the 25,000 convenience stores located in communities across Canada.

My discussion today will focus more on practical aspects of what our retail members experience in terms of shoplifting and the existing criminal laws regarding citizen's arrest. The CCSA is pleased to offer its views on these provisions and to provide background supporting our perspective.

I'll briefly review the following three topics. The first is the convenience store industry's environment and the impact shoplifting has on our profitability. The second is the issues facing convenience store owners under the current citizen's arrest provisions of the Criminal Code. Third is the case of David Chen, a store owner who was charged under the current citizen's arrest provisions of the Criminal Code for detaining a shoplifter.

I'll conclude this brief by making specific recommendations on the provisions of Bill C-26, specifically proposed subsection 494(2), dealing with amendments to the Criminal Code provisions on citizen's arrest.

For ordinary Canadians, the likelihood of having their property stolen is fortunately not an everyday occurrence. For convenience store owners, however, it's a constant preoccupation. By virtue of the nature of the convenience store industry, where stores operate for long hours, in many cases 24 hours a day, in both rural and urban areas, the issues of shoplifting and theft arise constantly. In addition, as many as 10 million Canadians frequent our association's 25,000 stores every day. The openness of our industry increases our exposure to theft and robbery on a daily basis.

Therefore our perspective on the proposed citizen's arrest legislation is quite relevant, since unlike the average Canadian, the typical convenience store owner is faced with theft issues that challenge property rights on a regular basis. In addition, losses and inventory shrinkage resulting from this type of crime have a direct impact on a store owner's ability to survive in today's competitive environment.

In 2007 a member survey conducted by the Retail Council of Canada identified the mean retail shrink rate, or the measurement of losses due to store theft and fraud, reported by their respondents as 1.54% of net sales. With total convenience store industry sales of $33.8 billion in 2010, this would equate to losses of more than $500 million for Canadian convenience stores.

Through member surveys we have conducted, we have found that pre-tax net profits for our industry members do not surpass 1% to 1.5% of net sales, which is a very small profit margin. I point out that this is almost equivalent to the losses due to theft and fraud, using the Retail Council of Canada figures.

While the CCSA recognizes the importance of police work and the enforcement of criminal laws, we're very concerned that the pursuit of shoplifters is not a high priority for police. We understand why this is the case, as enforcement around this type of criminal activity and its sheer volume can be overwhelmingly taxing on our police forces. As a result, though, convenience store owners are left with very limited recourse in the face of this type of crime.

How do convenience store owners behave in terms of shoplifting? When convenience store owners or one of their employees choose to react to theft in the store, they're left with very little room to manoeuvre. Not only must they make a quick decision on whether or not a crime has been committed; they must also determine what action to take. Typically this will involve reviewing security recordings and confirming actions with management.

Unlike what Mr. Preston talked about with large department stores, this is not done with multiple levels of staff. Typically in our stores we have one or two people working at one time. So this takes more time. It's more of a process for those two people to do these things.

But typically, in reviewing the tapes and actually determining whether to apprehend someone, time is of the essence. Shoplifters are in and out of the stores very quickly.

Within the current Criminal Code provisions, the ability to make a citizen's arrest is very restrictive. It's only allowed in situations where an individual is caught actively engaged in a criminal offence. This means that the offender must be caught in the act, and the store owners therefore must react on the spur of the moment to make their decision.

The CCSA does not encourage its members to take law enforcement matters into their own hands. However, we must recognize that interactions of this nature are unavoidable. Due to the extremely low profitability inherent in our industry, theft of even very small amounts can present very challenging situations for our members. The fact that C-store owners are protecting their property in such instances, and could be prosecuted under current legislation if they detain a shoplifter after they've had property stolen, goes beyond most people's common sense. That a victim can suddenly be accused goes against our shared principles of justice and fairness. Due to these factors, we believe there is a need for less restrictive citizen's arrest provisions in the Criminal Code, and clear guidelines to ensure the victims of crime do not become targeted by the justice system.

To illustrate that, I'll give you the recent case involving a convenience store retailer in the city of Toronto. On May 23, 2009, David Chen, the owner of the Lucky Moose Food Mart on Dundas Street West in Toronto, and his two employees apprehended and detained a man who had been stealing plants from his store. The man who was detained had a long history of shoplifting convictions. At trial, it was indicated that he had over 40 previous convictions for shoplifting. He had previously been banned from Chinatown and the nearby Kensington Market area in Toronto for three years because of his repeated pilfering of area businesses. In August 2009 he pleaded guilty to the shoplifting charges that stemmed from this incident, and he was sentenced to 30 days in jail.

The offender was initially caught on security footage stealing from the store, but he managed to leave the store without being caught. He then returned to the store an hour later, at which time Mr. Chen recognized him from surveillance footage. Mr. Chen and his two employees confronted the man, apprehended him, and then detained him by locking him in the back of a store delivery van to await arrival of police. The reason he was put in a store delivery van was that it was a small store and they didn't have any other space to put this gentleman in.

When the police arrived, they arrested the shoplifter, and he was subsequently charged with two counts of theft under $5,000. Mr. Chen and his two employees were also arrested and charged with forceable confinement, carrying a concealed weapon—which was a box cutter that Mr. Chen had been using to cut cardboard boxes in his store—and also assault. These charges were far more serious than the charges the shoplifter had faced in this case.

What was Mr. Chen's offence in this case? He was charged because he detained a shoplifter who had already successfully stolen goods from his store. Since the thief had already left his store and was successful in his illegal activity, Mr. Chen had no right under present Criminal Code provisions to apprehend him when the thief re-entered the store an hour later.

Crown prosecutors eventually withdrew the concealed weapon charges against Mr. Chen, but proceeded with the charges of forceable confinement and assault. To add insult to injury, the shoplifter was the crown's key witness in their case against Mr. Chen and his two employees. Fortunately, 18 months after the accusations, the charges against Mr. Chen and his two employees were dismissed. The judge trying the case concluded that Mr. Chen tried to fill the void where the justice system failed.

Mr. Chen has been called both a vigilante and a people's champion. We believe he's simply an honest, hard-working business owner trying to survive in a very difficult business environment.

The citizen's arrest provisions found in subsection 494(2) of the Criminal Code are too narrow to allow people to protect their property. Instead of allowing a citizen's arrest only when a person is found committing a criminal offence, these provisions must be amended to also allow private citizens, within a reasonable time after an offence has been committed, to arrest people they suspect have committed a crime, and they believe on reasonable grounds it is not feasible in the circumstances for a peace officer to make such an arrest. The proposed changes noted in C-26 allow for such flexibility.

The CCSA supports the provisions of Bill C-26 dealing with citizen's arrests and the expansion of circumstances under which law-abiding Canadians can make a citizen's arrest, when appropriate, as it provides more clarity and guidelines to our small-business members about their rights and acceptable level of involvement in law enforcement.

Even if the proposed changes to the Criminal Code are made, we would still not encourage convenience store owners to take the law into their own hands, as that should be a policing responsibility. However, given that shoplifting is not a high-priority offence for police, victims of crime in the convenience store industry should not be re-victimized by the criminal justice system when they attempt to protect their property in the absence of police support.

In conclusion, we thank the standing committee for giving us an opportunity to express our views.

12:05 p.m.

Conservative

The Chair Dave MacKenzie

Thank you, Mr. Scholten.

Now we'll begin the questions from the committee.

Madame Boivin is first.

12:05 p.m.

NDP

Françoise Boivin Gatineau, QC

Thank you, Mr. Chairman. I also thank the three witnesses, who made very interesting presentations.

I would like to go back to some statements made by Professor Stewart. If I understood the brief you submitted correctly, the current provisions of the Criminal Code that concern self-defence and the defence of property have been in effect since around 1892. This will be one of the most important changes ever made with regard to the matter of self-defence and the defence of property. That is one more reason to do things right.

I'll address my first comment to Mr. Preston, who represents the Association of Chiefs of Police. Last week, we heard from Mr. McLeod, who is the president of an association of professional security agencies. I understand that you support the proposed amendments and that does not concern me. That said, I still am under the impression, based on the statements we've heard, that security agencies would like to do the work that police officers cannot do because of a lack of resources, such as deal with shoplifting, for instance.

Would you be favourable to allowing security agencies greater powers of arrest in the context of Bill C-26 and other amendments that may be submitted to deal with those aspects which should normally be your responsibility?

12:05 p.m.

Supt Greg Preston

Thank you.

I apologize, I don't speak French, so I'll have to respond in English.

The CACP does support the amendments. We recognize that we cannot be in all places at all times. As I said, we certainly would prefer if the police were able to make the arrest. We are trained. We are equipped. Obviously it would make the most sense if we were to do that, but we recognize the reality that this is not going to happen.

While shoplifting is certainly not a high priority, it is something the police will still investigate if we have the resources. It all depends on the time of the call. As has been identified, these are typically quick occurrences. The vast majority of these crimes involve people going in and coming out very quickly, so that the shop owner or one of his lawful employees, as an agent of the shop owner, really are the only people who, practically, can make the arrest at that point in time.

They have really two options. The first is to let them go and then call the police and see if we are able to track them down and to recognize that the resources are such that this will be investigated, but it's not going to be investigated with the same resources that one would get if there were a break-in to a home, for example. The second option is that they intervene.

12:05 p.m.

NDP

Françoise Boivin Gatineau, QC

Do you have a problem with the expression "reasonable delay"?

You talked about this a little. One thing worries me. The expression “within a reasonable time” is rather vague and could be interpreted different ways. As a police officer, are you not worried to see investigators who would like to do the work of police officers, and generate more business? What is “a reasonable time”? Is that precise enough for police forces?

12:10 p.m.

Supt Greg Preston

I would say that it is as specific as you're going to get. Our situation is that the inevitable does happen. People do flee. The individual trying to make the arrest does lose sight, and arguably under the current version you've now lost that arrest power.

It's trying to address what is going on in reality, the fact that people need to have the ability to arrest somebody who has committed a crime--in a timely fashion.

When we go to the proposed amendments to the act, we're talking about a situation where they have to find them a reasonable time after. Again, “reasonable” is used throughout all of our laws. I think we have to look at it and say that if we have that in every other area of our Criminal Code, we have to assume that people, and most importantly the police, will understand what that means. So when it comes time to apply that situation, the facts dictate in all cases what is reasonable.

The idea here, though, is that it's meant to be relatively contemporaneous with the event. That's our view of it. That's how it would be instructed to our members, that it has to be somewhat contemporaneous with it. Days after the event I suspect would not be the situation. We can't pull out a stopwatch and say “If you get him within the first hour, that's good. Anything beyond that is not reasonable.” I don't believe that the law has ever tried to put any aspect of use of force or of lawful authority into a box like that.

Is there room for debate? There will always be room for debate whenever you bring in the concept of reasonableness. I would submit that we are comfortable with this, and that we will let the facts dictate and guide us. Really, this is the reality of what's currently going on, and as it has been pointed out, I think we need the protections for those individuals who are going to act. Whether we want them to or not, they're going to. Let's recognize that and give them reasonable powers. I would say that what we have here is a balance of what is reasonable, so we're comfortable.

12:10 p.m.

Conservative

The Chair Dave MacKenzie

Thank you, Madame Boivin.

Mr. Rathgeber.

12:10 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Thank you, Mr. Chair.

Thank you to all the witnesses for your attendance. It's especially great to see one of Edmonton's finest officers with us here today.

My questions are for Professor Stewart. I listened to your opening comments quite carefully, and I made some notes. I'm still confused. Do you support this legislation, Bill C-26? Do you support it with reservations, or are you opposed to it? You seem to see some good and some not-so-good in it.

12:10 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

I'd say “support with reservations” would be the most accurate description of my position. I support the idea. The existing provisions in sections 34 through 37 are widely recognized to be confusing and difficult to explain to juries. They don't cover the territory in a very neat way, and this has been pointed out over the years.

Justice Moldaver, when he was a trial judge, tried to sort some of this out in the McIntosh case in the early 1990s. The Supreme Court disagreed with him and said that the provisions were a bit messy, but Parliament had made them that way and he should just leave them as they were.

The problems with the existing provisions have been recognized for a long time. The aspect I support is bringing one concept of self-defence into one section that is potentially applicable to all offences. What I'm uncomfortable with is the structure of the proposed section.

12:10 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Perhaps Justice Moldaver will have the opportunity to revisit his former theory.