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.

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

March 6th, 2012 / 11:05 a.m.

Conservative

The Chair Dave MacKenzie

I will call this meeting to order. This is the 24th meeting of the Standing Committee on Justice and Human Rights. We are dealing with C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Today we have two officials from the Department of Justice at the table with us to help us get through the bill. There are other officials in the room if there are questions that need to be answered. We have Joanne Klineberg and Catherine Kane.

If you have some statements you wish to make to begin the meeting, please go ahead.

11:05 a.m.

Joanne Klineberg Senior Counsel, Criminal Law Policy Section, Department of Justice

Thank you for the opportunity to provide some additional information on just a few specific issues that were raised during the testimony of witnesses you heard over the last few weeks.

In relation to the use of technology and the citizen's arrest power, questions have been asked about whether the concept of “finds committing” can apply where technology, such as a closed-circuit TV camera, is used in observing the crime.

As several witnesses before you have noted, the courts make every effort to interpret “finds committing” in a very flexible manner. For instance, the courts have held that it is not required that the arrester see the entire transaction of the crime. It is sufficient to witness enough acts to give rise to a reasonable belief that a crime is in progress. The courts have also held that an arresting person may rely on reasonable inferences drawn from what he or she has seen transpire in his or her presence, and that it's not necessary that the arrester have personal knowledge of all the factors that lead them to conclude that a crime is in progress.

Specifically in relation to the use of technology, court cases have indeed held that observations of crime through closed-circuit television or other types of new technology are equivalent to observations through physical proximity and therefore don't detract from the “finds committing” requirement. Therefore, it appears that it would not be necessary to explicitly refer to technology in the citizen's arrest provisions.

In relation to self-defence, both Professor Stewart and Mr. Russomanno expressed concern about the new self-defence provision that would treat proportionality between the incoming threat and the defensive response as a factor to consider in determining whether the accused should be acquitted. By contrast, the current law treats proportionality between the threat and the response as a necessary criterion for the defence to succeed.

We do not consider this change to be a matter of concern. One reason for this shift is that the proportionality requirement is not actually applied literally in the courts. You've heard Professor Stewart refer to the principle that the accused need not weigh to a nicety the exact measure of defensive force he or she may use.

The courts recognize that in the heat of physical confrontation, people who perceive themselves to be at risk of harm are going to be frightened and agitated. Under these circumstances, the law does not expect a person to engage in detached reflection or to precisely calculate the amount of force that is just right to deflect the attack but no more than that. In other words, the courts recognize that actual proportionality between the threat and the response is too much to expect of a person caught up in a violent confrontation. The requirement of proportionality is, by virtue of the common law, interpreted more flexibly than its definition implies.

In simplifying the law of self-defence, the decision was made to avoid proportionality as a strict requirement, in part because it's not really a strict requirement under the law today. Instead, the ultimate measure of acceptable force would be reasonableness. Reasonableness is preferable, because by its very definition, it is flexible and slightly broader. It also certainly includes proportionality as a matter of logic.

For even greater clarity, proportionality is set out in the list of factors the court can consider, so there is really no possibility of the courts losing sight of its importance.

Logically and practically, something that is disproportionate cannot also be reasonable. For instance, if I shoot someone who is threatening to break my finger, my actions are completely disproportionate, and it is not conceivable that a court or a jury could find such actions to be reasonable in the circumstances.

Professor Stewart also testified before you that self-defence should be limited to responses to unlawful assaults. It is certainly true that the overwhelming majority of self-defence cases involve responses to unlawful attacks. These are precisely the situations that lead people to need to react defensively. It's natural to assume that this should be a limiting condition of self-defence.

However, there are rare circumstances in which a person should be entitled to act defensively against an attack that is not necessarily unlawful. Section 35 of the Criminal Code, one of the four sections on self-defence today, speaks directly to one such situation, namely where the initial instigator of an assault subsequently needs to act defensively because of the response of the other person. I would be pleased to provide further examples of such situations if you have additional questions on that.

The unlawful attack element is also removed because it causes a great deal of difficulty under the current law. This element complicates trials unnecessarily by placing the focus on the early stages of a confrontation. In asking the jury to determine who attacked whom first, the jury must look to which actions constituted the first assault. This in turn requires the jury to determine what the accused believed about the intentions of the other party. It's far preferable to focus attention on the thoughts and actions of the defender at the time when they committed the actions they are charged with.

The removal of this element is not a cause for concern for two reasons. First, the new law of self-defence would include an explicit “defensive purpose” requirement. This means that in any case where a person uses force against someone acting lawfully, they will not have the benefit of self-defence unless they were found to be genuinely acting defensively, and not for another purpose.

The second assurance is located in proposed subsection 34(3), which deals with the most common claims of self-defence against lawful conduct, namely against police action such as arrest. The new law would make it clear that in the case of police action, self-defence is only available if the defender reasonably believes the police are acting unlawfully, such as by using excessive force.

Those are my opening remarks.

Thank you.

11:10 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Madam Boivin.

11:10 a.m.

NDP

Françoise Boivin Gatineau, QC

Ladies, thank you for coming to help us before we move on to the clause-by-clause study, which will be carried out on Thursday. Hearing from the different witnesses has been extremely beneficial. It goes to show that this issue is not simple. Drafting these documents must not have been simple either. I would be surprised if anyone were fundamentally against the goal we hope to achieve with Bill C-26.

Considering what we have heard, I appreciate your comments on certain notions that were not entirely clear to me. I had to briefly discuss them with you this morning. I will set them aside because you have addressed them already.

However, I still have some concerns about the bill in light of some of the witnesses' comments. I am still unsure how my questions can be answered. They mostly pertain to citizen arrests and the fact that a new dimension is being added. I know that it all stems from a single case. We have all said that trying to resolve a legal problem based on a specific case could lead to difficulties. Be that as it may, the two are not mutually exclusive.

Clearly, it is a matter of making the arrest within a reasonable time. As a lawyer, I always struggle a bit with that kind of an issue. I do know that reasonableness is sometimes the most difficult consideration to interpret before the courts. That’s at the heart of the matter. Colleagues in attendance have talked about potential cases when it comes to reasonable time frames. We know that such questions will come up before the courts.

I would like to know whether you, as a Department of Justice expert, feel that it would be worthwhile to focus a bit more on reasonable time frames, to pre-set a maximum limit. Would it be beneficial to set a 48-hour time limit? The idea would be to avoid deficiencies of recollection three, four or five days later.

11:10 a.m.

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

Thank you for the question.

That is a good point. We're certainly aware of the witnesses who have expressed concerns about what would be considered reasonable. We've tried to make it quite clear that it's “reasonable in the circumstances”. If the committee were to consider adding a timeline, it would be very difficult to determine if that outer timeline was reasonable as well, because 24 or 48 hours, as an example, might not be reasonable if you were in a remote location, and it would be excessive if you were in an urban centre where the police could have been contacted within that period of time.

We're quite confident that the courts will interpret “reasonable in the circumstances”, and in those cases that get interpreted by the courts, the law will settle it quite quickly.

There are pros and cons to having any sort of time limit, as opposed to leaving it with “reasonable”. As you've noted, the courts deals with the term “reasonable” all the time in various contexts. I don't think we have any reservations that they won't deal with it appropriately in this context.

11:10 a.m.

NDP

Françoise Boivin Gatineau, QC

Would there be any advantage in being precise about the distance one could go to arrest somebody?

Would it be possible, for instance, for a security agency employee to send a colleague a person's photograph taken from a video after being informed that the person had moved? I just want to know whether there is a way to limit the area within which an arrest can be made.

11:15 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

That’s also an interesting idea. Section 494 may pose a problem in that regard. It states the following: “may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.” Let's apply that, for instance, to a situation where a wallet is stolen downtown. How can it be determined where exactly the offence was committed? How can the application be limited in that context? If it were only a matter of shoplifting, for instance, that provision would make sense, but I have a hard time understanding how it would work in other contexts the legislation applies to.

11:15 a.m.

NDP

Françoise Boivin Gatineau, QC

The issue that has been raised often concerns subjective and objective criteria. You actually spoke to some of the considerations nicely. You also talked about reasonableness, as far as the person's perception goes. Would it not be worthwhile to specify that it is a matter of the person's own perception? In different circumstances, we would be talking about reasonableness in the sense that a reasonable person is involved. As you said,

it's in the heat of the moment. It's very hard to put an objective person in those circumstances.

11:15 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

Let’s take into consideration the three elements of self-defence.

The first element requires the person to believe, on reasonable grounds, that they are under threat and that force must be used. That is both an objective and a subjective element. The subjective aspect—what the person thinks—is considered first. Then, the objective analysis is done, whereby it is determined if the act was reasonable.

The second element is exclusively subjective. The only thing considered is the person’s intention. It must be established that the person intended to defend themselves, rather than continue to commit the crime in progress.

The third element is purely objective, as the two other elements are used to determine the third. It must be decided what kind of reasonable grounds the person had regarding the threat and what that person’s subjective intention was. All that is taken into account when deciding whether the person acted reasonably.

11:15 a.m.

NDP

Françoise Boivin Gatineau, QC

Some of our witnesses told us that there may be an imbalance between the objective and the subjective criteria. Objective elements outnumber the subjective ones, although the issue is highly explosive, figuratively speaking.

In the heat of the moment....

11:15 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

I don’t think that’s the case for the three elements that define self-defence. As for the factors the court can consider, they are defined objectively. However, when deciding what is reasonable in the circumstances, the court or jury may take into account the person’s subjective thoughts.

11:15 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Ms. Findlay.

11:15 a.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

Thank you. Thank you to both of you for bringing some clarity, hopefully, here today.

I was particularly interested in your comments, Mr. Klineberg, on “finds committing” because that was an area that was causing some of the witnesses, and I think some of us, some concern in understanding it. I am not concerned about the use of the term “reasonableness” because the courts do deal with this every day, and we have such a history of jurisprudence in that area that I think it's pretty clear where we're going there.

You mentioned, in dealing with “finds committing”, that the case law talked about reasonable belief and reasonable inference. I was wondering if you would just comment on how that is a different test from reasonable and probable grounds, which is something law enforcement deals with all the time but is not in this legislation, in those words at least.

11:20 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

That's a good question. I don't think there's very much of a difference between those concepts. In fact I think much of the jurisprudence that deals with citizen's arrest when it comes to the core issues of “finds committing” and the nature of the offences and so on...the jurisprudence that deals with arrest by peace officers is looked to when a court is dealing with an arrest by a citizen. In other words, when we are talking about arrest without a warrant, which the police also have the power to do in certain circumstances, the elements would be interpreted in much the same way. So there would be consistency there.

11:20 a.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

Thank you.