Evidence of meeting #24 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 person.
A recording is available from Parliament.
11:50 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
Thank you.
I’m not sure I understood your answer to my colleague. Would it be inappropriate to amend the provision so that is reads as follows: “they make the arrest at the first opportunity, within a reasonable time”? I think that could be a good way to take into account the valid examples we have been provided with. As urbanites, we tend to forget that, in rural areas, the police is not very close. Therefore, the reasonable time frame may vary from one place to the next.
I understood the arguments you put forward when answering my earlier questions. However, the person could still act within a reasonable time without acting at the first opportunity. I don’t know if you follow my reasoning. In such a context, I don’t think things should be handled like that. Normally, the arrest is made right away, but in this case, the time period is extended. I think that people realize that may be necessary in some cases. That’s not an issue. However, it would be prudent and reasonable for the legislator to stipulate that the arrest should be made at the first opportunity. It is not a matter of providing a free pass.
11:50 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I think the idea is to extend the time period in cases where an immediate arrest is not possible. Under such conditions, I don’t see how that could be disadvantageous. It is not up to you to decide when the arrest should be made. That must be done when possible, as soon as possible.
11:50 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
So there is no problem. I don’t think that goes against the current objective or that it changes the intended effect. It may even be a bit more specific.
11:50 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Perhaps a bit. Be that as it may, we hope that the courts will take it to mean “as soon as possible”, as in other areas where something must be done within a reasonable time. It is highly likely that the courts will interpret it that way even if nothing is added.
11:50 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
If that amendment is passed, it will not change the original objective of the bill, as introduced. It would not take anything away from the bill. That is what I wanted to know. The amendment would not add a burden. You think that the courts will interpret it that way, but our amendment would remove all ambiguity. That would give the courts one less issue to decide on. Thank you for the clarification.
11:50 a.m.
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
Excuse me. If there was a thought to add “at the first opportunity”, it's almost like reverting back to the current law as it is, which has the element of “finds committing”. We're giving—
11:55 a.m.
NDP
11:55 a.m.
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
But it's almost a mixed message, because if we say “reasonable”, we want to give the courts—if the case gets to the court's attention—the opportunity to look at what was reasonable in the circumstances of that person arresting someone who they found committing....
Obviously, if they had an opportunity the day after, and the subsequent day, and so on, to arrest and they didn't, and they did it on day three, that might not be found to have been reasonable because they had previous opportunities. But if we add in the requirement or the guidance “at the first opportunity” and “reasonable”, it's sending a confusing message about whether reasonable is only at the first opportunity. In other cases you could have—
11:55 a.m.
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
—an opportunity and you can't take it, because there's a risk there or you're not going to be able to carry it out, or whatever. You have to let that opportunity go by and hope that you'll have a second opportunity.
11:55 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
They make the arrest at the first opportunity within a reasonable...and stop there. If you read the rest, I don't think it has that implication: If you read it as I would see it read, it would be that they make the arrest at the first opportunity within a reasonable...and then we continue:
reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
We are past (a), so we are obviously in a second type of a situation.
It would be limiting. It would be sending a message that if you're not able to do it right now, the new law permits an extension. You have an extended period of another situation that can happen, as long as you're in a reasonable time and it is at the first opportunity.
You don't say, I'll go get two of my friends and we'll do the arrest because I don't feel comfortable doing it on my own, or something like that. It's really sending...you want to do it.
In the literature that you're going to prepare for people who could be interested in this new law, stress again that first we don't want to let citizens loose and tell them to please make a citizen's arrest. Second, if you're going to do it later than the immediate moment that you spotted the contravention, do it in a reasonable time, but do it at the first occasion. Don't start thinking, well, maybe I'm not ready right now, maybe I'll wait for a bit, until later on.
That's what I'm aiming at by saying that.
No comments? Excellent. Perfect. I'm so convincing. I love it.
11:55 a.m.
Voices
Oh, oh!
11:55 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
Would you object to something being added? Do you think that adding something would be a fundamental change?
Currently, the bill suggests that paragraph 34(2)(f) be added. It reads as follows:
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
What would you say to adding subparagraph 34(2)(f)(i), which would talk about “the person’s ability to evaluate the degree of force in the circumstances”?
11:55 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
That is related to the issue I talked about earlier, that of determining the reasonableness of someone's actions. The reason why the person has difficulty evaluating the degree of force may make their actions unreasonable. It may be a matter of racism or something similar.
The wording you suggested is pretty general. It can include elements that are not currently included, but it can also include other elements. That depends somewhat on why the person is unable to evaluate the degree of force properly.
Noon
NDP
Françoise Boivin NDP Gatineau, QC
Shouldn’t that be taken into consideration? Do you think that adding that kind of a provision would be useful, or would it complicate things?
Noon
Senior Counsel, Criminal Law Policy Section, Department of Justice
I think it would lead to more questions than answers. That is already something that the courts understand well, when it is relevant. In many cases, it’s not at all relevant anyway. In the case of such a factor, we must really consider the wording used. There truly is a risk in this case.
Noon
NDP
Françoise Boivin NDP Gatineau, QC
I have one last question, further to the first point I raised with you, about reasonableness and the subjective-objective distinction. Would it not behoove us to specify that the perception of reasonableness is precisely on the part of the person who used the force? Would that give rise to a problem? Would it solve a problem? Would we be able to clearly define the message, which is something the courts already often do? The courts are always criticizing lawmakers, saying that the legislation is vague and that they have a burden. They are criticized for creating law, but for once, we would tell them how to interpret matters.
Noon
Senior Counsel, Criminal Law Policy Section, Department of Justice
Generally speaking, that is how the courts deal with it. It is a matter of taking the perception of the accused into account, but insofar as that perception is reasonable.
I don’t think your suggestion would change how the legislation is interpreted or applied.
Noon
NDP
Françoise Boivin NDP Gatineau, QC
However, it does not change the lawmaker’s intention behind Bill C-26.
Noon
Senior Counsel, Criminal Law Policy Section, Department of Justice
It wouldn’t do that either.
Noon
Conservative
The Chair Conservative Dave MacKenzie
We have no further people on our list, and I think, Madam Boivin, we went way over on all of our time. I'm just thinking, if we have the answers to your questions....
Noon
NDP
Pierre Jacob NDP Brome—Missisquoi, QC
I have another question.
The Barreau du Québec concludes its brief by stressing that subsection 494(2) of the Criminal Code should remain as it is. In the brief, the following is said:
We believe that an approach based on protecting the safety of individuals, including both the offender and victim of theft or property damage who enforces the law, is vastly preferable to an approach that could endanger individuals' safety.
I would like to hear what you think about the Barreau du Québec's opinion regarding subsection 494(2) of the Criminal Code.
Noon
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
We're always interested in the views of the various bar associations, but the position of le Barreau is basically that we shouldn't be changing the law at all. When the minister appeared before a committee, and in other statements he's made, he made it clear that the government is of the view that the law should be modernized, and that the current law for citizen's arrest is too constraining in its treatment of fines. The bill wouldn't be before the House or your committee if the view of le Barreau was agreed to by the government. So as in other instances, the law will evolve. The citizen's arrest law hasn't been changed for a number of years, and it's time there was a bit more flexibility provided.