Evidence of meeting #25 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 amendment.
A recording is available from Parliament.
1 p.m.
Conservative
1 p.m.
NDP
Françoise Boivin NDP Gatineau, QC
I have to leave also at 1:30 at the latest, because I have House duties also.
1 p.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
We have one more amendment. How much time would it take?
1 p.m.
Conservative
1 p.m.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
I won't talk for too long. I just wanted to add the fact that, in English, it is “first reasonable opportunity”. It has to be reasonable to make the arrest. If you are surrounded by ten very strong people, obviously it is not reasonable to arrest those individuals in the circumstances. The way it is written and proposed, it is reasonable. Everyone should support that.
1 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I was going to say that I agree with Mr. Woodworth. I was surprised at all the different case law, when you actually practice law and get into the courts, and at all the different circumstances that can arise to suggest one thing would be reasonable in one particular circumstance but another would be reasonable in another. If you're on a trapline in the northern Yukon, it's going to be a totally different circumstance that would be reasonable.
As for first opportunity, if it's one guy against four, that's not very reasonable in relation to citizen's arrest when you can't have a police officer up there for three months.
1 p.m.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
It's not the first opportunity; it's the first reasonable opportunity.
1 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
That's what I think is the best thing to do: leave it with judges to decide what is reasonable in the circumstances and not be prescriptive in relation to it.
1 p.m.
NDP
Françoise Boivin NDP Gatineau, QC
What matters here is not only the reasonable time, but also the situation in which it is reasonable to act. That is what we are adding. It is not just us. The vast majority of the witnesses who appeared found this provision problematic.
I always take exception when I hear comments like yours, Mr. Woodworth. I am not trying to single you out necessarily. But when I try to define the notion of reasonableness, it is not with a criminal or a victim in mind. I do it with our goal in mind.
If we are establishing lines of defence, there is a reason for it. I am always in pursuit of justice and truth, regardless of which side they are found on. I will always take exception to that kind of comment.
Seriously, we proposed this because it was a concern. The government must be aware of the fact that almost all the witnesses told us there were problems. Some told us not to touch it.
We are willing to touch it and to introduce our amendments. It may be possible to move forward with the proposed amendment, which in no way detracts from the notion of a reasonable time, by clarifying things with the words:
“at the first reasonable opportunity”.
If we go back to the example given by my colleague Brian Jean. If it's me up against four tough guys, I might wait until my three brothers get there to feel a bit more comfortable in making the arrest. The proposed amendment would cover that very scenario.
1:05 p.m.
Conservative
March 8th, 2012 / 1:05 p.m.
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
I'd just point out a few things for your added consideration.
We have the provision in this citizen's arrest that it's only when you're not able to engage the police to make the arrests, so I don't think we would be in the scenario of somebody waiting around to get their buddies together to go and effect an arrest, because if that were the circumstance, then clearly that person could have made an attempt to engage the police to arrest the person.
The extension of time in these amendments is designed for the situation in which the person can't effect the arrest at that very moment because the person runs off or whatever, and then they encounter them at some other opportunity and they can't get the police to effect the arrest.
Therefore, we would prefer that the wording be left “reasonable”. The courts will interpret that appropriately, and if we added in “at the first reasonable opportunity”, the discussion could be around when was the first reasonable opportunity rather than whether the person's action was reasonable in effecting the citizen's arrest at that time, looking at all the circumstances and whether they had any ability to engage the police and so on.
When you're changing the law, you look at a variety of considerations, and in this one, moving from the precise idea of finding someone committing an offense and arresting them at that time to some extension.... Obviously we don't want it to be in perpetuity or in an unreasonable timeframe, but the thinking is that by saying “reasonable”, there is sufficient guidance to the courts. The circumstances will govern it, as many members have noted, depending on where you are and what the case is.
1:05 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you.
Seeing no further intervention, shall amendment NDP-10.1 carry?
(Amendment negatived)
NDP-12 is next.
1:05 p.m.
NDP
Jack Harris NDP St. John's East, NL
NDP-12 is changing line 39 on page 3, after the word “time”. The effect would be that it would be within a reasonable time after the offence was committed at a place that was within reasonable proximity of the place where the offence was committed.
Again, this is to avoid the scenario in which either you would have the posse chasing somebody over days, or, as was suggested quite forcefully, one in which the private investigation groups would see an opportunity to turn themselves into investigative arms of the owner and potentially offer a service that would include going after somebody and finding them.
Phrasing it as “reasonable proximity” avoids the consequence and dangers associated with grabbing somebody at a shopping mall because you see them the next day there, or at a bus stop, when the person doesn't know who you are, why you're grabbing them, or what you're doing. The problem can be avoided by saying that the citizen's arrest is designed to deal with situations such as in the David Chen case, when a guy comes back to the store, whether it's within an hour or within a day—or two days, for that matter.
Again, “reasonable proximity” uses the word “reasonable”, but it indicates that there's some constraint as to place.
1:10 p.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chair.
I understand the spirit of what's attempted; however, this puts another constraint on what is an attempt to expand the power of arrest.
What's important to remember is that the power of arrest is in relation to the property. Maybe if there's a shoplifting theft in a convenience store like Mr. Chen's, that might work, but what do you do when there's a break-in in a parking lot? Somebody smashes the window and grabs objects from your car. You don't own the parking lot, obviously. Maybe you do, but it would be certainly an unusual circumstance. What do you do if this person flees with the stuff or if you find the person perhaps a day later because you've somehow stumbled across them? Better yet, the vehicle is stolen, and they take off. If they cross town or cross the county line as they would do to avoid the revenuers in the rum-running days....
It just constrains the power of arrest and I think it could add some confusion to interpretation before the courts. For that reason, we're not favourable to this amendment.
1:10 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I don't think there's anything to add.
1:10 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Seeing no further intervenors, all those in favour of NDP-12, please signify.
(Amendment negatived)
Shall clause 3 carry? There are no amendments.
(Clause 3 agreed to)
