Good morning.
My name is Vanessa MacDonnell. I'm a law professor at the University of New Brunswick Faculty of Law. I teach and research in the areas of criminal and constitutional law. This past summer I authored a paper with Mr. Russomanno on the changes being proposed to the power of citizen's arrest by what was then Bill C-60 and is now Bill C-26.
I'd like to touch on four points in my opening statement this morning. I would welcome questions from members of the committee on any of these points or on other aspects of the bill.
First, I'd like to talk about what I'd call temporal concerns with the changes being proposed to the power of citizen's arrest.
The existing law permits an individual to effect an arrest where that individual finds a person committing an offence. The arrest takes place immediately and in most of these cases there's no serious question as to whether the offence has been committed and whether the individual performing the arrest has the right person.
Once you start to stray from this paradigm, though, certain concerns arise: there's a higher possibility of a false arrest; the individual performing the arrest might have the wrong person, the wrong arrestee; and, the person being arrested may have no idea why he or she is being arrested and might resist arrest, either lawfully or otherwise.
These are all circumstances where, in my submission, we would want the police, rather than a private citizen, involved. There's actual police work to be done here. This isn't the kind of case where a thief is caught red-handed, for example, and there may be evidence to seize or an investigation to be conducted. In my view, in this category of cases, we've exceeded what the citizen can meaningfully do. In this respect, the expansion of the powers of citizen's arrest being proposed by Bill C-26 is concerning.
Second, it's important, I think, to highlight that the provisions related to defence of property that are being proposed in this bill are also relevant to our discussion of citizen's arrest. These provisions, like the existing defence-of-property provisions in the code, provide an individual with a defence in circumstances where he or she is defending property. So defence of property, and the self-defence provisions more broadly, provide some protection to an individual who uses force in performing a citizen's arrest.
Included in this broader web of protections are also provisions that protect individuals who use force to prevent the commission of an offence, and protection for individuals who take steps to prevent a breach of the peace. You can read about some of these provisions in the legislative summary for the bill that has been provided by the Library of Parliament.
But the point here is that there's a broad web of provisions that already provide protections to persons who perform citizen arrests. Again I would make the point that situations that fall outside the scope of this broad web of protections likely require the professional expertise of the police.
Third, the major beneficiaries of the expansion of powers being proposed by this bill are not actually small shop owners like Mr. Chen, but rather the private security industry. I'm sure that Professor Rigakos is going to speak more about this in his remarks.
Society is increasingly relying on private security forces as the first line of defence to a number of security threats. These forces are often highly sophisticated. They are well resourced. They police a range of environments and places.
The academic literature and the empirical literature suggest that where marginalized groups are being policed by private security forces, especially in low-income housing communities, there's a real potential for harassment, and the powers being proposed by Bill C-26 may exacerbate this situation. I think we should be very concerned about the liberty and equality concerns that arise when we expand the powers of private security forces, especially if we end up doing so sort of unintentionally.
This bill was really aimed at the David Chen situation and not, perhaps, at expanding the powers of private security forces more broadly. I would simply point out that, unlike police officers, there is very little in the way of regulation of the private security industry.
When we're talking about police officers, of course, their powers are constrained. They have only those powers that are given to them by statute or the powers they have at common law. They're also required to observe the limits of the charter in their duties.
This takes me to my fourth point, and that is the question of whether the charter applies to the actions of an individual performing a citizen's arrest. On this point, I'd just say that the case law, to date, is unclear about whether the charter applies when a person is performing a citizen's arrest. The Supreme Court of Canada has yet to rule definitively on this point. So there's no guarantee the charter would serve as a meaningful check on individuals performing a citizen's arrest.
Perhaps I'll stop there.
Thank you.