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 reasonable.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Joanne Klineberg  Senior Counsel, Criminal Law Policy Section, Department of Justice
  • Catherine Kane  Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice

11:35 a.m.

Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice

Catherine Kane

That would be a possibility: we can't say with certainty whether the wrong person is arrested. Obviously, there's embarrassment there, and there could be other damages. It's possible that the person may want to pursue civil charges. That's also why, in the context of citizen's arrest, we've added the “reasonable” period of time requirement. The farther away you get from the “finds committing” to the arresting at some point in the future, the greater the risk is that the wrong person will be identified.

It's part of the balancing act between what is reasonable and whether extending the time beyond “finds committing”, which is in the very act of the offence being committed, to some reasonable point past that, creates those risks. For the average shop owner, they may be less reluctant to arrest a day later than would a private security guard, who may have more confidence that they've identified the right person.

We're not foreclosing a person's civil remedies; if they are entitled to pursue those remedies, they will.

11:40 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Wilks has joined the panel as a guest. I just need consent from everyone; if there's no problem, he can ask questions.

11:40 a.m.

Some hon. members

D'accord.

11:40 a.m.

Conservative

The Chair Dave MacKenzie

Okay, Mr. Wilks.

11:40 a.m.

Conservative

David Wilks Kootenay—Columbia, BC

Thank you, Mr. Chair.

Thank you for allowing me to ask a question.

Thank you for coming today.

There was an inference from your comments with regard to excessive force by the police. From my 20 years of experience as a police officer, I can tell you that it's normally not what occurs, but it does happen from time to time. But here's what I'm getting at. You made an inference that if a police officer is arresting a person, and that person deems the arrest to be excessive in terms of arrest, that person may believe that excessive force is being used and could potentially resist.

I would hope that there was no reference to that person committing a criminal act of resisting arrest. What most police officers will do if a person resists.... In my case, then, I up the ante: if you're going to resist, I'm going to put a little more pressure on you.

I come from a police day when there were no tasers and there was no pepper spray; it was just you and me and let's see what happens—

11:40 a.m.

Voices

Oh, oh!

11:40 a.m.

Conservative

David Wilks Kootenay—Columbia, BC

And I didn't lose too often.

The fact of the matter is that if we are going to encourage people to resist the police because the person believes the arrest is not proper, you potentially could put someone in imminent harm.

11:40 a.m.

Conservative

The Chair Dave MacKenzie

Mr. Wilks, this is only about citizen's arrest.

11:40 a.m.

Conservative

David Wilks Kootenay—Columbia, BC

But it was raised when—

11:40 a.m.

Conservative

The Chair Dave MacKenzie

I appreciate that, but the bill itself is just citizen's arrest.

11:40 a.m.

Conservative

David Wilks Kootenay—Columbia, BC

I understand.

11:40 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

I don't think there's anything in the legislation that seeks to encourage anyone to resist law enforcement activities. However, it is already part of the law of self-defence that if a person has a reasonable belief that they're being assaulted—and this includes if a police officer is using excessive force or attacking them, as opposed to using force within the necessary parameters to arrest them—then the present law of self-defence allows a claim of self-defence against that conduct.

All we are seeking to do here is maintain that aspect of the law, which is going to be lost from where it is presently located as a by-product of other changes to the law of self-defence. This is just a restatement in a slightly different way of what the existing law is in respect of self-defence in these cases. I don't think there's anything in the legislation...and that this is something Canadians should consider doing certainly wouldn't form a part of our public education materials.

11:40 a.m.

Conservative

David Wilks Kootenay—Columbia, BC

Thank you very much.

11:40 a.m.

Conservative

The Chair Dave MacKenzie

Please go ahead, Madam Borg.

March 6th, 2012 / 11:40 a.m.

NDP

Charmaine Borg Terrebonne—Blainville, QC

Thank you.

Thank you for being here.

You have already answered most of my questions. However, a number of witnesses have said that security guards and citizens were not subject to the charter. If that is the case, how can we ensure that the arrested individual’s constitutional rights are respected? Could you comment on that?