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 self-defence.

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

12:10 p.m.

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

Hamish Stewart

He may indeed.

12:10 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

You set out a threefold test for when repelling force would be justified and therefore provide a defence. I tried to make notes, and I think I captured it. I'll try to paraphrase it: first, the defendant faced a wrongful application of force; second, the defendant's response was necessary; and third, it was proportionate to the unlawful force that was being applied.

If I look at the proposed subsection 34(1) in Bill C-26, it also sets out proposed paragraphs (a), (b), and (c), where a person's not guilty of an offence if (a) “they believe on reasonable grounds that force is being used”, which is more or less that the defendant faced wrongful application of force; and (b) that “the act that constitutes the offence is committed for the purpose of defending or protecting themselves”, which is roughly your number two, “the response was necessary”.

Really, the only thing we're quibbling about is the third prong, where it says “the act committed is reasonable in the circumstances”. That's the proposed legislation, but you would prefer it if “reasonable” said “proportionate”.

Did I capture your theory correctly?

12:10 p.m.

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

Hamish Stewart

I think my concern about this section is a little more serious than the way you described it in your summary of my remarks. So the first one, proposed paragraph 34.(1)(a), the person has to “believe on reasonable grounds that force is being used against them”, does sound a bit like the first element. I think it's important that it's wrongful force that's being used against the person that is the first element.

One might have thought that a court would be ready to read that in, except for the fact that the court is specifically directed by proposed paragraph 34.(2)(h) to treat the defender's knowledge of the lawfulness of the force as a mere factor, which seems to open up the possibility that this section could justify resistance to a lawful application of force. I don't think this can possibly be the correct way to think about self-defence.

On the first one, that would be my comment. On the second one, the proposed section says that the act has to be committed for the purpose of defending oneself. I agree with that, but I think it should also be necessary not just for the purpose of, but also necessary to that purpose. So one might commit force for the purpose of protecting oneself when one had other alternatives, such as calling the police, or closing the car door, perhaps, or using some means of protecting oneself that was less intrusive--

12:15 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

That goes to the reasonableness, which is in paragraph 34.(1)(c).

12:15 p.m.

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

Hamish Stewart

That's right. One way to deal with my concern would be to say these are all aspects of reasonableness and we have a list of factors. Certainly Canadian courts are no stranger to long, non-exhaustive lists of factors in guiding the application of a legal concept. That's certainly something we're quite familiar with.

My concern is that I would prefer to see the concepts of necessity and proportionality highlighted and the other factors subordinated to them, rather than it all just being put into the question of reasonableness.

12:15 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Thank you for that, Professor. I think that's very instructive, and this committee will certainly consider it.

Thank you.

12:15 p.m.

Conservative

The Chair Dave MacKenzie

Thank you, Mr. Rathgeber.

Now, ordinarily we would go to Mr. Cotler, but he's not present.

Mr. Jean.

12:15 p.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

Thank you, Mr. Chair.

Thank you, witnesses, for coming today.

This reminds me of my law school days. Criminal law, I have to tell you, was my worst class. I didn't understand most of the words that were spoken to me. Then when I got out of law school I actually attended a university in Australia, and when I got back to Canada I had to attend another Canadian university. Again I took criminal law. I did understand a lot more of it. But I have to say that in my original law school, most of my criminal law classes were taught by one professor. After practising criminal law for 12 years, I got back to actually listen to my criminal law professor and found out that, bluntly, he didn't know a lot about what he was talking about.

I'm sure that's not the case in relation to you, Mr. Stewart.

I see that you graduated from law at the University of Toronto in 1992.

12:15 p.m.

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

Hamish Stewart

Yes, that's correct.

12:15 p.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

And you clerked at the court in 1992 and 1993?

12:15 p.m.

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

Hamish Stewart

Yes, at the Ontario Court of Appeal; that's correct.

12:15 p.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

How long did you practise criminal law?

12:15 p.m.

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

Hamish Stewart

I have never practised criminal law except in the restricted setting of doing student legal aid work when I was a law student--where many of my clients were alleged shoplifters, I might add. But that's a long time ago.

12:15 p.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

And you passed the bar in 1998?

12:15 p.m.

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