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.
11:30 a.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I agree with Ms. Findlay. It's like a cart pulling the horse; I think the horse has been beaten to death, and we should get on with it.
11:30 a.m.
Conservative
The Chair Conservative Dave MacKenzie
We have heard the interventions on amendment NDP-1.1.
(Amendment negatived)
We are now on amendment NDP-2.
Go ahead, Mr. Harris.
11:30 a.m.
NDP
11:35 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
Thank you, Mr. Chair.
This is further to the discussions we had on Tuesday with the witnesses who are here today. I want to clarify that the reasonableness of the act committed in the circumstances is perceived by the accused. We are simply making a clarification. I believe that addresses what the witnesses told us before. It removes any confusion.
Let us not forget something. There is an aspect of Bill C-26 that I like. I was not here when that incident occurred in the Toronto convenience store, the incident that may have led to the introduction of Bill C-26. I have been here since the new Parliament began, so after May 2, 2011. And I am very pleased to see that Parliament is finally reviewing certain sections of the Criminal Code that had not been subject to review for some time. Courts and judges have long been saying that certain components of the Criminal Code needed to be clarified.
I think that those who drafted these provisions did an exceptional job, which is not always easy under the circumstances. That is clear from the level of our debate. This is just one example of what could happen in court, with defence counsel. Anyone who has practised criminal law—our colleague Brian Jean has considerable experience in that area and will no doubt agree with me—knows that this is the kind of thing that happens in these situations. Commas get moved around, a few minor words get moved over to the right or left.
That is not what I want to do. I want to make sure that things are so clear that these types of questions do not come up. I simply want to repeat the comments that were made and the gist of the discussion we began on Tuesday.
11:35 a.m.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
Thank you, Mr. Chair.
My objection to this is the same, really, as I voiced on the earlier amendment. This one is very similar in that it focuses only on the perceptions of the person being attacked, and not on the more objective assessments of all the circumstances.
Under the existing law, the court is only able to take into account the reasonable perceptions of the accused, and to me what this opens up is that unreasonable perceptions would be discarded, which I don't think meets what we're trying to do here.
This proposal, to me, raises some serious concerns, because on its face it would allow a court to consider those unreasonable perceptions in determining what is reasonable. Again, we need to have both the subjective and the objective elements, in my view, as the analysis is done and as the courts use their discretion to decide in all the circumstances what was reasonable.
11:35 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much.
The problem I have with this amendment is that it takes a requirement for a completely objective test—that is, what is reasonable in the circumstances—and converts it to a completely subjective test, namely the circumstances as perceived by the individual.
I think that we definitely need, as a safeguard, the requirement of a completely objective test for whether the act is reasonable.
Thank you.
11:35 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
I will be even more specific. As far as reasonableness and the whole subjective versus objective debate go, I want to pick up on the last question I asked you on Tuesday. It appears in the blues and reads as follows:
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 or, on the contrary, eliminate a problem by sending a clearly defined message, one that is more or less already being delivered by the courts, at least to settle the matter once and for all.
Ms. Klineberg gave the following response: 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.
In her opinion, it is acting reasonably in the circumstances. We attempted to bear in mind what various groups and department officials told us and then clarify certain points. If you don't want us to make any amendments, tell us at the start, instead of letting us waste our time bringing in witnesses and discussing the issues with them. Unless the answer is no longer the same today, this amendment is entirely in keeping with current case law. If we do not include it, the case law will once again serve as the sole basis for analysis.
I can tell you that, as a lawyer, when I argue a case, I much prefer basing my argument on a law rather than on decisional law that is easily distinguishable in terms of the facts. If a law stipulates the test to be used, I do not challenge it.
11:40 a.m.
Conservative
The Chair Conservative Dave MacKenzie
I think you're a little early. We've only dealt with—what, two amendments?
11:40 a.m.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
With respect, I think we all believe that these are well-intentioned amendments that are being brought forward for discussion, and we're receiving them in that vein, but on this particular one there is a concern about focusing in on, or making paramount, the perceptions of the individual, because they may in fact be unreasonable in the objective test.
The point here is to keep it open for both to be looked at, because as far as I am aware, the jurisprudence, over my years of practice, is that both elements are looked at in the analysis. There's how that person perceives it at the time, and all the other factors that are still here in the legislation and that in fact have been identified as we go through this; there's also the idea of an objective look at it, because there are people who might perceive a threat, while any of us sitting here would think that it was unreasonable to perceive a threat in those circumstances.
We're trying to keep that balance there.
11:40 a.m.
NDP
Jack Harris NDP St. John's East, NL
I think it needs to be said that this amendment, and a couple of the others, are brought forward on the basis of the submissions we received from the Canadian Bar Association. The CBA recognizes that there needs to be a balance, as has been suggested, between the subjective and objective tests that we use there. They were concerned that the balance was not even enough and made this recommendation for a more even balance of the objective and subjective wording, so that's why it's here. That's why we support it.
11:40 a.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
I think the amendment is both well intentioned and well founded. I think it's well founded for the reasons my colleague gave. Having listened to witness testimony, I think we need to have a balance between the objective and subjective considerations and put ourselves in the shoes of those exercising the act of self-defence. I'm thinking in particular of the situation of a battered woman; in this situation, this kind of balance would facilitate the court's interpretation and appreciation of what has happened.
11:40 a.m.
Conservative
11:40 a.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I was just wondering if the officials could give us an estimate of what they think the ramifications of inserting this change would be.
11:40 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I can respond with my own words from Tuesday.
This is not quite the same as what I was suggesting that the current approach is. If I look at the English version of what you've proposed, the act that is committed has to be found to be reasonable. If we say, “From the circumstances as perceived by the accused,” and we don't say, “the reasonable perceptions of the accused,” we are permitting the analysis of the reasonableness of the actions to be framed according to the purely subjective and potentially unreasonable viewpoint of the accused.
This is different from what I was suggesting on Tuesday, which was that the reasonable perceptions of the accused are a factor to be taken into account, along with all of the other factors, in determining whether the action itself was reasonable from an objective viewpoint.
I see what this motion is trying to accomplish. It's just slightly different from the discussion we had on Tuesday. It's a bit problematic, because there's confusion over whether or not the unreasonable perceptions of the accused guide the determination of what's reasonable in the circumstances.
11:40 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
Once again, I repeat that the clause cannot be read in isolation. Clause 34 contains provisions (a), (b) and (c). Adding this provides some information, but immediately after, clause (2) says the following:
“in determining whether the act committed is reasonable”. I'm referring to subsection 34(1)—I guess—if I'm following the Criminal Code.
Yes, it's a perception of the person, but it still needs to follow after that too. What are we trying to do here?
Do we want to support the notion of self-defence to make things clearer for the courts or do we want to complicate it to make it less accessible? If we knew what the intention was, that would help. In my view, we need to opt for clarity.
The example Ms. Findlay gave earlier comes to mind, as does a report you might hear on the radio of a woman killing her husband. From the outside, it may come off as a cold-blooded crime and appear to be completely unreasonable, but it may have been completely reasonable from her perspective. Clause 34(2) sets out the criteria that the court must assess, the nature of the force or threat, the size of the parties and so forth. Say the woman is six foot seven and her husband is four foot eight; that will be taken into account.
I don't understand the government's concern over this clarification. The perception of the accused has to be mentioned somewhere, even though it must not be the sole or most important consideration. The goal is not to create a free-for-all and allow profiling, for instance, where someone assaults a person simply because they don't like them and feels it is reasonable. That is not all what I am trying to do. I am trying to make it logical. I thought that was the gist of our conversation on Tuesday. That is why we are proposing this clarification, with the full knowledge that clause (2) specifies
whether the act committed is reasonable. It's not just one test. It's two tests.
11:45 a.m.
Conservative
March 8th, 2012 / 11:45 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I can try to clarify that.
The first element of self-defence is the reasonable perception of the accused that there is a threat. The second element is the accused's subjective intention to act for a defensive purpose and not another purpose. Both of those requirements are certainly factors in the third requirement, along with all the other relevant factors, in determining whether, from the objective man's perspective, the act of the accused, who reasonably and subjectively perceived a threat and acted solely for a defensive purpose, was reasonable. Given everything else we know of the circumstances, do we the jury consider that action to be reasonable, given the reasonable perception and given the subjective defensive purpose?
When one looks at all of the elements together, there is still quite a lot of emphasis on the subjective perceptions and intentions of the accused. Along with the list of all other factors that may be relevant, it's through that door that the courts will also consider any other reasonable perceptions of the accused that factor into the determination.
Overall, our view would be that the balance is appropriate.