Justice Committee on March 1st, 2012

[Prof. George Rigakos]

I wish Chen and his colleague hadn't thrown someone in the van and hog-tied him. At the same time, if you read the decision—I guess I can say this, because I'm not a member of the bar—you see that it's written with an outcome in mind. Saying that the offence was ongoing.... Honestly, the whole goal here was to exonerate Mr. Chen. Most of us around this table would understand why that is.

What we're saying, though, is that it's not altogether clear to us that this proposed legislation can offer Mr. Chen any more than the courts are already trying to offer. The potential consequences of this with respect to what the private security industry does outweigh for me any benefit of trying to take into account the very rare instances of Mr. Chen's situation.

[The Chair, Conservative, Dave MacKenzie]

You have a minute.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

With those words, you have fallen on something interesting that is not all that clear. Typically, there's a jurisprudential cycle. We're happy to leave the self-defence as it is, yet there are principles that are drawn from Mr. Chen's case. As Mr. Rathgeber said, it's not only the Chen case that these principles are drawn from. In the cycle we draw the principles from the common law and we codify. The codification is an attempt to give more guidance to the court. What we've reformed here are laws that date back to the 1890s.

As a matter of practicality, since you've told us that you trust the judges to interpret properly, isn't this a step in the right direction towards knowing where people stand in this area of the law?

[Prof. Vanessa MacDonnell]

The concern really is what Professor Rigakos has just pointed out, which is how we deal not with the David Chen situations but with the empowerment of an industry that is driven by a profit motive and is likely to be inclined to be aggressive, at least until the contours of these powers are well established. You may well see these companies erring on the side of being aggressive.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Are not the courts the guardian of that?

[Prof. Vanessa MacDonnell]

The courts are the guardians of it if the case actually gets to court. This again is where we come back to the difficulties, certainly in the civil litigation context. Civil litigation is really out of the question for the vast majority of Canadians. It's not affordable; it's not an option. If you're a person who lives in social housing, you're not going to bring a civil action even if there is the possibility of a contingency agreement against the private security guard who roughed you up maybe once, twice, or multiple times.

It's a real concern. For all of us who are concerned about liberty and equality, these are basic things that Parliament in good faith is trying to get at with respect to Mr. Chen: the right not to have your property invaded. But there are competing liberty interests at stake here, and we have to be cognizant of how these changes will be operationalized. That's where this private security dimension comes in, and we really can't get around that.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

The chair would ask you a question a little differently.

There's one thing that gets missed in this issue. We always talk about Mr. Chen and the courts and so on, but do you not think the legislation gives some clarity to the police? They're the people who ended up charging Mr. Chen, with the crown. There hasn't been a lot of clarity in the legislation, and police are frequently left with letting the court decide. Do you not think that this provides some clarity for the crown attorneys and the police, going forward?

[Leonardo S. Russomanno]

No, I don't think it does.

As I said before with respect to the “reasonable time”, the police quite rightly err on the side of laying charges when they're unsure, for the protection of the public at large. In this case—and I'm certainly not criticizing the use of the word “reasonable”—there shouldn't necessarily be a strict time limit in the legislation. I'm not sure that this legislation provides clarity to the police, because a police officer coming upon this kind of scenario, in which an arrest is effected, only five or twelve hours or a day later is going to say: “The legislation says 'within a reasonable time afterwards'. I'm not sure what that means. Let's charge the person and let the court figure it out.”

[The Chair, Conservative, Dave MacKenzie]

Okay.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

Obviously, having former police officers and lawyers on this committee makes it interesting. I think Mr. Wilks' comments about rural areas are really important. We're all concerned about empowering a posse, for example, to hunt down somebody who you happen to know committed a crime but we don't know where he is. This concern about temporal restrictions ought to be looked at seriously.

In the Chen case the facts are difficult and so was the result, because the whole issue here was delay. The delay was papered over by a factual finding of a continuing offence. But the delay issue is still there. I'm personally sympathetic to that issue. I like the idea of a temporal limit of reasonableness. I also like the idea of a geographical limit.

I'm worried about the posse issue. I'm worried about the scenarios you've outlined, where some entrepreneurial private investigators decide they'll just take the pictures, do their investigation, wait three or four weeks, and then arrest them. That might not be a reasonable period of time. But that kind of investigative activity might actually take place and they'll make an opportunistic arrest, as opposed to an immediate one. I think the sense is that the delay was really only because the person wasn't there. You still have to act quickly, in my view.

You don't like the bill, so maybe you're not going to help us, but is there a way of amending the proposed legislation to help with these questions—geographical, temporal—and the requirement of immediacy? If there's going to be a citizen's arrest it has to be the next day when the guy who stole your watch shows up. You can't say, “Okay, I got him. I'll take his picture today. Next week when I have my hefty buddies with me I'll arrest him.” You can't have that.

Is there a way of amending this to fix it, or is it impossible?

[Prof. George Rigakos]

My preference is that it be left as is and you let the judiciary continue to perform the elasticity and legal gymnastics necessary to exonerate people like David Chen when the cases arise. Allow them to remain “find committing” rather than prescribed.

If this is an inevitability of some sort, I suggest that the two criteria of space and time need to be considered. I can't give you some example in text, or anything like that, but I can tell you that this is a really important issue. It will also be a very important issue for the private security industry. Private security companies already share information on persons wanted through their information network. Many security companies have multiple sites. In downtown Toronto one security company secures more square footage than the public police, especially in social housing. In fact, you had the president of that company speak to you.

They routinely share information from client to client and from security guard to security guard. There is no reason why you might imagine that someone would commit an offence on one property and they could easily arrest them. You may or may not want that. My purpose here today is to convey to you that it will definitely happen. The security industry will do this. You have to decide whether or not you want to build constraints around that. As a private citizen, I hope you do. If the law doesn't stay as is, I would very much appreciate a time and space constraint on these powers.

[Leonardo S. Russomanno]

I couldn't agree more. I have nothing to add to that.

[Prof. Vanessa MacDonnell]

The only thing I would add is that it's also important in this context to think about the provincial regulatory regimes. Most of the provincial acts on trespass to property are conditioned and have geographical limitations. One of the reasons why David Chen's arrest wasn't authorized under the Trespass to Property Act was that he was off the property. He was left to justify his arrest under the citizen's arrest provisions of the code, rather than the Trespass to Property Act.

You might want to look at some of the provincial analogues to see how these geographic restrictions are structured. There are certain geographic restrictions in the existing code provisions as well.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

I'd like to turn to Mr. Russomanno for a moment, if I may. We've had a lot of discussion about Mr. Chen's case. I recall your saying earlier, Mr. Russomanno, that in David Chen's case the system did work. I'd like to ask you if I might suggest what you really meant to say was that in David Chen's case the system reached the right result.

[Leonardo S. Russomanno]

Well, I do think so. As I said before in response to another member's question, I was very torn by the decision. However, at the end of the day, I do think the court arrived at the right decision.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

The distinction I'm making is that I don't think you, as a defence counsel, would like to hear yourself saying that when an innocent man is arrested and held in jail, put to thousands of dollars of legal expense and the potential vagaries of judges doing legal gymnastics or papering-over, and finally gets acquitted.... I don't think you, as a good defence counsel, would want to say that's the way we would really want the system to work, would you?

[Leonardo S. Russomanno]

No. I would prefer that an innocent person not be charged at all.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Exactly.

[Leonardo S. Russomanno]

Yes.

[Prof. Vanessa MacDonnell]

Or I'll just add—

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm sorry, but I'm talking to Mr. Russomanno. I wish I could continue our conversation, but my time is limited.

My point is that's exactly right. The system did not work in Mr. Chen's case, even if it reached the right result. If the system had worked, he never would have been charged, arrested, put in jail, or put through that trauma, correct?

[Leonardo S. Russomanno]

Yes, and I should note that none of the changes being proposed would possibly affect that.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

In that case, I want to ask you what amendment to the current law you would propose to make the system actually work for someone in Mr. Chen's position.

[Leonardo S. Russomanno]

That's a very difficult question. I don't think I can answer it, the reason being that this has to do.... The problem with the David Chen case is the use of police discretion and the use of crown discretion. There are very good reasons that police are given a wide latitude to lay charges or not lay charges and why crown attorneys are given wide latitude.