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

12:35 p.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

Do you feel that the changes our government is proposing would give your members some more confidence in how to deal with criminality when they are victimized or presented with it in their store?

12:35 p.m.

President, Canadian Convenience Stores Association

Alex Scholten

Absolutely. It creates a situation where we have more flexibility in how we can protect our property by not simply being able to act while a crime is being committed but in a reasonable time period afterwards. That definitely gives our members much more flexibility, and we'd very much encourage that.

12:35 p.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

I assume as well that part of your training you're talking about, or instructions, would be to continue to tell those who might be on the front line in the stores that they need to contact law enforcement in whatever way they can at the earliest time possible. Would that be correct?

12:35 p.m.

President, Canadian Convenience Stores Association

Alex Scholten

That is absolutely correct. Our members first and foremost want to make sure that they're not putting themselves or their customers and employees in harm's way. Unfortunately, the reality of the situation is they often have to.

I would note in the case of Mr. Chen that in his testimony he outlined the fact that the day before this incident came up he had a shoplifter who was caught in the act and they called police immediately and waited four hours for the police to show up at their site, just because of the priority of the situation and the priority level of the crime. That gives you an idea of what we as retailers go through on a day-to-day basis. So the laws we're talking about would give us much more flexibility, but we realize that we always want the police to be doing the law enforcement and not us. We can help them by having that flexibility.

12:35 p.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Madame Borg.

12:35 p.m.

NDP

Charmaine Borg Terrebonne—Blainville, QC

Thank you. My first question is for Mr. Stewart.

In the brief you submitted to the committee, which is indeed very complete, you mentioned a concern regarding the fact that a judge could choose to base his finding on only part of section 34, the list of reasonable grounds. I'd like to know how you think we might curtail judiciary discretion in this matter?

12:40 p.m.

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

Hamish Stewart

As I said before, and as Mr. Preston also said, in the law and particularly, I think, in the law of defences, we're never going to get away from the concepts of reasonableness and proportionality.

We're never going to have a completely precise standard for deciding these things. The reason I'm suggesting that it would be better to highlight the three elements I began with, and then treat the other factors as potentially relevant to them, rather than putting them all into one set of factors, is that I do think it would confine the discretion of the judge a little bit more. There's always going to be some discretion here, but I think it would confine it a little bit more.

I should say, this is not just the discretion of judges; it's the discretion of juries in murder cases. These will be where self-defence is raised. These will typically be tried by a jury. Under the bill as it stands, the jury would have to be instructed in accordance with this section: “Members of the jury, you need to decide whether the crown has proved beyond a reasonable doubt that this act was not reasonable in the circumstances, and in deciding that you should consider these factors.” Then when the jury comes back with its verdict, the crown, the accused, and the public are not really going to know exactly what it was that moved the jury one way or another.

If we put the jury instruction in terms of the elements being the wrongful threat, the necessity of the response, and the proportionality of the response, I think we'll have a better idea of what it is juries are deciding when they're deciding these questions.

I hope that answers your question.

12:40 p.m.

NDP

Charmaine Borg Terrebonne—Blainville, QC

Yes, thank you.

I would have a second question for you. You did not mention this in your brief, but you might have something to say about it.

Last week we heard about battered woman syndrome from some witnesses. With reference to section 34(2)(b), some felt that this could lead to some confusion if the woman did not go elsewhere, that is to say if she did not consult a group, for instance. Some wondered if she could still invoke self-defence.

Can you tell me your thoughts on this?

12:40 p.m.

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

Hamish Stewart

If I'm reading it correctly, I don't think the bill prevents the battered woman from raising the defence in that situation. It does, however, ask the fact-finder to consider whether the use of force was imminent, and whether there were other potential means, so that's going to be a factor to be considered along with the others.

In the leading case on this topic, the Lavallee decision from 1990, the Supreme Court of Canada interpreted the phrase “reasonable apprehension of death or grievous bodily harm” in subsection 34(2) as it now stands. The crown, the prosecution in that case, tried to persuade the court that this meant an imminent threat, and the court said it didn't have to be imminent but asks whether it was a reasonable threat. It could be coming along later.

I don't think this section excludes that, so it would still be possible to make that kind of argument in those types of cases. My suggested reframing of the section doesn't exclude it either, because the question would still be whether it was necessary to do what was done, whether it was a proportionate response in light of the situation the person was in. What the Supreme Court emphasized in Lavallee itself was the role of the expert witness's testimony in explaining to the jury the situation this person was in, which otherwise looked like a very unsympathetic case for self-defence. I don't think either this or my version would exclude that.

12:40 p.m.

Conservative

The Chair Dave MacKenzie

Thank you, Ms. Borg.

Go ahead, Mr. Woodworth.

February 14th, 2012 / 12:40 p.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

Thank you very much, Mr. Chair.

Thank you to all of the witnesses. I've appreciated your comments, each one of you, which I thought were very thoughtful.

I hope Superintendent Preston and Mr. Scholten won't mind if I say that I understand that you're here because you're representing others, whereas I will say to Professor Stewart that I doubly appreciate your attendance. I know that you're here because you love just and honest laws and sound principle. I hope that you and I are kindred souls in that respect. I appreciate that, and I wanted you to know it.

Having said that, though, I'd like to engage with you a little bit regarding your comments. In particular, I'd like to focus on proposed paragraph 34(2)(h): “whether the act committed was in response to a use or threat of force that the person knew was lawful”.

Now, we've already discussed the fact that this is subject to an overriding requirement of reasonableness. Quite frankly, I'm not sure that I can even imagine a case in which a judge or jury would conclude that defending against the lawful use of force was reasonable. Assume, for the sake of argument, that some judge or jury had specifically had their attention brought to the fact that a person knew that the use or threat of force he or she was defending against was lawful. If the judge and jury still concluded that it was reasonable for the accused to have offered whatever defence he or she did, I would be okay with that. In other words, the underlying principle on which I would be happy to rest is the notion that a judge or a jury should have some residual discretion to conclude that an individual's conduct was reasonable.

Is there any chance that I might convince you that residual discretion for a judge and jury to conclude that the conduct was reasonable isn't really a dramatically bad thing? Is there any chance I could convince you of that?

12:45 p.m.

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

Hamish Stewart

There's always a chance. I'd like to think of myself as not having completely settled views on any issue. Therefore, there's a chance.

I endorse the first thing you said very much. I do find it difficult to imagine a set of facts where this factor could be the decisive one, given all the other things that might be in play in a case of self-defence.

12:45 p.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

It would not be the decisive one, in other words.

12:45 p.m.

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

Hamish Stewart

Yes. To that extent, I think it's hard to imagine what role it's supposed to play. Of course that leads me to wonder why it's in there. I'm wondering whether this factor, the use of force by law enforcement, is clearly excluded by proposed subsection 34(3) of the bill, which clearly says that this self-defence provision doesn't apply if the person is responding to the authorized use of force by a law enforcement officer--

12:45 p.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

Because of our time limitations, I just would like your observations on whether it is not perhaps a good thing to leave a residual discretion for reasonableness with the judge or the jury.