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

11:30 a.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

Didn't Palmer also speak in relation to escalation between the parties?

11:30 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

11:30 a.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

Could you confirm what the court said in relation to that?

11:30 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

If you could be a little more specific, that would help me.

11:30 a.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

They mentioned that when the parties are in the emotional throes of a battle, the escalation itself has to do with perception by the defence on what is reasonable in the circumstances: simply that the parties can get out of hand, but that should be considered as well by the jury.

11:30 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

11:30 a.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

Notwithstanding that the opposition may disagree, I think I'm a very reasonable man. I'm sure everybody in the room does as well. That's the difficulty for courts, to find what is reasonable in the circumstances given everything they have.

In the case of Mr. Scarpaleggia, that was a particularly interesting case because the accused did not understand who the parties were. It went a little bit beyond his sixth sense.

The only other question I have is whether you anticipate any need to change any other statutes besides the Criminal Code, particularly in regard to provincial statues for seizures and things like that. Is there any anticipation by the department that the provinces might have to make some amendments relating to their—

11:30 a.m.

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

Catherine Kane

That issue would be canvassed with our provincial and territorial colleagues. We meet with them very regularly and give them updates on the status of legislation progressing through the House. We would leave it to them to determine if they have to do anything to bring their provincial laws in line.

At the present time, we don't think that will be necessary. Usually our provincial colleagues wait until they see imminence in terms of passage and royal assent before they specifically turn their mind to the need for any adjustments.

As noted previously, we will also be embarking on some public education material so we can explain to various audiences what these changes mean. That may stimulate provinces and others to look at whether there is a need for any adjustments to be made in provincial laws.

11:30 a.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

Thank you very much.

Those are all of my questions, Mr. Chair.

11:30 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Jacob.

March 6th, 2012 / 11:30 a.m.

NDP

Pierre Jacob Brome—Missisquoi, QC

Good morning. My question is for Ms. Klineberg or Ms. Kane.

In the brief the Barreau du Québec submitted when it testified, there are important elements regarding citizen arrests that leap out at me. The brief states the following:

In addition, the fact that a citizen's arrest must be made "within a reasonable time" after the commission of the alleged offence leaves the way open for a possible abuse of power. Any arrest includes elements of unforeseeability arising from the use of the force [...]

The Barreau provides examples and says that, in many cases, although police officers are well trained and very skilled, things can go wrong during an arrest, even when the people involved are not criminals.

I would like to know if you have considered minimizing risks in citizen arrests. That remains a considerable power. It’s a matter of respecting the law and the rights of the arrested person.

11:35 a.m.

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

Catherine Kane

Thank you for the question.

I think you're drawing a comparison, perhaps between the police, who are very well trained, and private security guards, who would be effecting a number of citizen's arrests. We can't necessarily expect the private citizen to be familiar with what an arrest is and so on.

As I mentioned, we are going to be providing some public education materials to advise the public that this is not meant to encourage them to take the law into their own hands; their first resort should always be to the police.

I don't think we would have concerns about private security companies not being well trained. Certainly in our meetings with them, when we were looking at options for law reform, and in their testimony before the committee, they did indicate how very frequently they are engaged in this activity.

It's a very sophisticated and well-trained organization. Because so many businesses do rely on private security guards, they would not be wanting them to engage in conduct that was abusive. And they are monitored and regulated in other ways than through the Criminal Code.

I don't think we have concerns that there will be abuses because of these reforms that would be any different from what might occur now. In fact, our hope would be that because the law will be changed and there will be more public awareness of this, it will be the opposite. There will be more rigour in terms of avoiding any potential abuse.

11:35 a.m.

NDP

Pierre Jacob Brome—Missisquoi, QC

The Barreau du Québec asked some questions about arrests made by a citizen or, in the case of larger companies, by a security agency. What would be done with arrested individuals? Where would they be taken? How would the arrested person's constitutional rights be ensured? What would happen in the event of an unlawful arrest? Would the citizen have civil or criminal immunity?

11:35 a.m.

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

Catherine Kane

As to how this would arise, potentially, in the department store context, perhaps a person is observed by security officers—whether by a closed-circuit television or face to face—while stealing merchandise. They would see the person leave the store and would effect the arrest at that time. They could detain the person, but there's an obligation for them to turn the person over to police as soon as possible.

What we have been advised happens in the ordinary course of events is that they would then contact the police by telephone, indicating that they have a person in custody, so to speak. Sometimes, if it's a less serious offence, the police give them a number over the phone. They get the person's details, their contact information and so on, and then they release that person immediately. The person would then receive at home a notice to appear or a summons to appear in court.

So it wouldn't be a situation where the thief would be locked up in jail or detained for a prolonged period of time. Otherwise, the police would attend, and the police would take over at that point in time and would remove the person if the person were disruptive in any way or potentially causing threats to other people in the vicinity.

Is that getting at the heart of your question?

11:35 a.m.

NDP

Pierre Jacob Brome—Missisquoi, QC

In part.

Let’s assume that the arrest turned out to be unlawful. Would the citizen be prosecuted if the arrested individual basically considered the arrest to be unlawful confinement? Would the individual be able to sue the private security agency?