House of Commons Hansard #58 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was arrest.

Topics

Citizen's Arrest and Self-defence Act
Government Orders

11:05 a.m.

Moncton—Riverview—Dieppe
New Brunswick

Conservative

Robert Goguen Parliamentary Secretary to the Minister of Justice

Madam Speaker, I would like to touch on three issues that the hon. member discussed: vigilantism, the use of excessive force, and the jurisprudence that has guided us on the provisions that we are amending.

I acknowledge, as the hon. member has said, that the question of excessive force remains intact. Certainly that is a question of public order and should be maintained.

One of the triggering points in the ability to make a citizen's arrest is that the person making the citizen's arrest has reason to believe that there is no prospect of an enforcement officer being able to respond.

First, in the member's opinion, is that a reasonable safeguard in trying to guard against vigilantism? Would he agree that although it is perhaps not an absolute guard against it, it is a reasonable attempt?

Second, we talked about the body of law that has interpreted the various provisions of the act that are being consolidated now. Would the member agree that there is a cycle to the law? An enactment is made and is interpreted by jurisprudence; now we have a recodification, and the cycle will recommence with the interpretation of the new provisions. Certainly we will still be able to draw from the previous jurisprudence in guiding us on what the boundaries of these new provisions will be.

Citizen's Arrest and Self-defence Act
Government Orders

11:05 a.m.

NDP

Jack Harris St. John's East, NL

Madam Speaker, I agree with the parliamentary secretary that there must be a reasonable grounds for believing that the police cannot effect the arrest. That is a safeguard against vigilantism. It is a minimalist approach, but it does take into account those circumstances.

Of course we want people to rely on the police in all cases, because it is dangerous to arrest someone if we do not have any training or do not know how someone is going to react or do not know the individual's mental condition. If the person is in an excited state or reacts with violence, we might not be able to control it. We do not really want to encourage it, but at the same time a defence would be provided. That is okay.

I agree as well that there is a cycle. However, if we are recodifying based on the jurisprudence, that is one thing; if we are starting off on a fresh tack and saying we are not going to do it this way anymore but will do it another way, then we have a whole different set of concepts, with different language being used. We are really losing the benefit of the analysis.

I am a new justice critic, so I am not going to suggest that I can pronounce on this legislation immediately. We do need to look at it carefully and have the benefit of experts to help us analyze it to see whether we are going to be able to use that jurisprudence in the new sections.

Citizen's Arrest and Self-defence Act
Government Orders

11:05 a.m.

NDP

Libby Davies Vancouver East, BC

Madam Speaker, I am familiar with the case that brought this issue forward. It was the member for Trinity—Spadina who first brought this issue to the House.

I understand my hon. colleague's explanation that there are existing laws to prevent an aggressive reaction so that there is some protection for people who may be charged under the new law.

However, I have a concern. Would the very existence of this new provision, if it is approved, create an environment of permission through which certain individuals could be targeted?

For example, I represent a very low-income riding. There is often tension between business owners and people who are homeless and on the street. Some of them are probably ripping off stores, so we do get into this very fine area.

Besides the specifics of the law, would its existence create a more open environment that could lead to situations of people being targeted, for example, by private security forces? We have these forces in my riding, and they can be very aggressive with people.

There are issues and rights on both sides. I wonder if my colleague might comment on that.

Citizen's Arrest and Self-defence Act
Government Orders

11:10 a.m.

NDP

Jack Harris St. John's East, NL

Madam Speaker, unfortunately we do have extreme circumstances in some communities because of the situations people find themselves in. We do not want to encourage vigilantism, and that is why we, as legislators, must be vigilant ourselves. That is why there is a requirement for an offence being committed. A store owner cannot take it out on someone who shoplifted something from the store two weeks ago. Individuals cannot set up their own police force. They cannot take it out on people.

I certainly hope that no store owner or security firm would think this legislation would give them permission to act in a way that they have not been able to act in the past. This legislation is extremely narrow and does not give permission to individuals to make a citizen's arrest.

Citizen's arrest has been around for a thousand years. I hope nobody will take this legislation as permission to act aggressively or to discriminate against people or target people on a list or whatever. That would be wrong and it would be contrary to this legislation.

Citizen's Arrest and Self-defence Act
Government Orders

11:10 a.m.

Liberal

Irwin Cotler Mount Royal, QC

Madam Speaker, I am pleased to rise to participate in this debate on Bill C-26, the citizen's arrest and self-defence act. While I may not agree with much of the government's crime and punishment agenda, this legislation is something that I can support in principle, although I do have some concerns that I believe may be able to be adequately addressed in committee.

As my colleagues have noted, this legislation replaces the current Criminal Code provisions on self-defence and defence of property. This change is welcome, because Canada's self-defence laws are complex and out of date, as the jurisprudence itself has demonstrated. This has been further highlighted by recent high-profile cases that have produced some less than ideal results, as already referenced in the chamber debate this morning. The bill would provide greater clarity, therefore, for prosecutors, judges and juries, as well as for those who may find themselves in a circumstance requiring them to defend themselves or their property.

Simply put, I support this necessary law reform. Indeed, a review and simplification of the entire Criminal Code is needed, as I indicated during the period that I served as Minister of Justice and Attorney General. I trust that the government will commit itself to a comprehensive criminal law reform and in that regard reinstate the Law Commission of Canada, which I and others found to be a very valuable resource in this regard.

While this legislation fixes on one particular section of the Criminal Code, much more remains to be done. It is important to point out, for example, that although it was raised at committee, a textual inconsistency that we have yet to correct in Bill C-10 adds, perhaps inadvertently, another error to the Criminal Code. Indeed, in the committee deliberations we found at least four errors in the French text of the Criminal Code as it is now, and errors with respect to the English and French texts when compared to each other. My point is that if we are going to add another piece to the Criminal Code, as in Bill C-10, we should correct it to the extent that we can.

Returning to Bill C-26, the changes to the self-defence provisions would repeal the current complex self-defence provisions, which are spread over four sections of the Criminal Code, and create one new self-defence provision. Currently sections 34 to 37 of the Criminal Code provide distinct defences to those who use force to protect themselves or another from attack, depending on whether they provoked the attack or not and whether they intended to use deadly force. In that particular regard, the use of deadly force is permitted only in very exceptional circumstances, such as when it is necessary to protect a person from death or grievous bodily harm.

The new legislation in Bill C-26 would, as one section of the Criminal Code alone, permit persons who reasonably believe themselves or others to be at risk of the threat of force or of acts of force to commit a reasonable act to protect themselves or others. The act outlines factors to consider when assessing reasonableness, something I will address shortly.

With regard to defence of property, sections 38 to 42 of the Criminal Code currently outline multiple defences for the “peaceable possession” of property. The defences respecting the type of property relate to whether the property is either personal or real property, the possessory right of the possessor and of the other person, and the issue of proportionality in the threat to the property. In addition, the code requires that one consider the amount of force used when a property defence is raised.

I do not intend to address in particular the legislation with respect to these property defences in particular. Briefly, Bill C-26 would repeal what jurisprudence and experts have held as the confusing defence-of-property language, now spread over five sections of the Criminal Code, and remove in part the distinction between defence of real and personal property.

Under Bill C-26, one new defence-of-property provision would be created, eliminating the many other distinctions that currently exist in the code and arguably serve no purpose but to confuse and confound the matter. Simply put, the new provisions would permit a person in peaceable possession of a property to commit a reasonable act, including the use of force, for the purpose of protecting that property from being taken, damaged or trespassed upon.

In particular, my concern is not with the defence of property provisions, with which I agree, but rather with the new self defence provision, which I believe, while I support again this approach to amendment, may in and of itself arguably be overbroad.

I will state at the outset that it is not as though, without the bill, there is no right of self defence or citizen's arrest. Both exist as a matter of the common law. Both have been codified as statutes. Indeed, if we did not have a statutory basis, we would have the common law. Statutory reform now would in fact refine and, hopefully in this instance, improve our approach and understanding of this matter.

Primarily, the concern is that the current Criminal Code provision with respect to self defence provides that, “Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling, force by force”. Thereby, confining self-defence to assault situations and noting that it could not have been the result of provocation.

This new legislation would remove the assault requirement entirely, speaking of force or threat of force, and also would remove provocation. This is where I believe that committee study of the bill will be helpful.

What force or threat of force is contemplated by the new legislation? While one may consider that it refers to physical force, we might want to specify that, or we might also want to ask the question whether the legislation also envisages the threat of economic force in a bargaining situation, for example. This is not to say that the current limitation of the Criminal Code is self-defence only in assaults is the correct approach, but it may be that we would inadvertently be opening the door to other claims and concerns.

The legislation offers a list of factors to consider when determining whether or not the action taken was reasonable in the circumstances, and where the current Criminal Code, as I noted, speaks of provocation, something which this legislation would remove, the new legislation includes in its factors the person's role and the incident.

The question is whether this provision is meant to account for provocation. Might we want to amend it to say, “including whether there was provocation on his or her part”. To my mind, that would clarify the rules and what it is meant to address, as it may be inappropriate to eliminate the entire line of jurisprudence surrounding the notion of provocation.

I would like to focus on some of the factors list, as this is where I believe we may have to address it in committee, though again, as I say, I am supportive of the bill in principle.

The most concerning or disconcerting factor here is found in (e) in what would become section 34.2 of the Criminal Code. The factor, again with respect to determining the reasonableness of someone's self defence action, refers to the size, age and gender of the parties to the incident. Size and age I can appreciate. As one of the older members in the House, I can attest that people sometimes make certain assumptions about age, including sometimes about the imminent retirement of a member, which may be far from the mark.

The use of gender in this factor warrants a certain approach or critique. Indeed, some might call it a feminist critique, but I propose it just as a critique on the merits. What does “gender” itself have to do with reasonableness? If we are trying to address a size imbalance between the parties to a incident, is not the size factor itself sufficient? If we are trying to address a power or strength imbalance, might we use those words or some other phrase such as perception of potential force that could be exerted. As soon as we put in gender, we may be opening the door to the resurgence of a series of myths and stereotypes, which have, regrettably, undermined our criminal law, as we have observed most notably in the area of sexual assault.

This would open the door to all sorts of assumptions about gender playing out, either in police decisions to prosecute or in judges' rulings and the like.

The concern here is that we may see some relying upon and the furthering of the outdated notion of a weak, defenceless woman. If she is unarmed, we have a factor, as set forth in (d), whether any party to the incident used or threatened to use a weapon. Again, the question is what gender may be adding.

Its presence in the statute implies that there is some fundamental difference between capacities of men and women to protect themselves. While I remain unconvinced that this itself is something we should be addressing in this fashion, the point is that if there is a size or power or weapons imbalance, that is what the issue is, not the gender of the person.

On this point, too, we may have certain stereotypes about masculinity as well. Some men who are attacked or feel an attack is imminent, may respond aggressively, others more passively. Again, the question is whether this factor implies that only one type of response is appropriate. I think this is something that may warrant addressing on deliberation in committee.

A final factor that we may want to address is in (f), which refers to the nature, duration and history of any relationship between the parties to the incident, including any prior use of threat or force and the nature of that force, or threat. I can imagine that this could raise difficulties in conjugal relationships where there is a long and complex history between the partners and the focus of the police service or the judge may be on the physical relationship or force, not taking into account considerations like economic dependency or psychological force that are also important.

Indeed, I have a particular concern here that couples that may have had a disturbing relationship over time and then one partner crosses the line, a judge may pass it off as par for the course instead of addressing it as a serious act of conjugal violence. Again, this is something best addressed in committee.

The final concern I have with the bill has been raised by numerous academics and has been raised this morning as well. It is the potential risk for vigilantism, which we certainly do not want to promote this.

With reference to my comments earlier about the scope of self-defence no longer being just assault and the addition of the word “threat” of force, it may be that we are somewhat overbroadening this bill such that we may give a pass to those who really should not be engaging in matters best left to our informed and uniformed first responders.

I welcome this modification to Canada's criminal law. It would clarify and streamline self-defence and defence of property. However, as I mentioned, I have some concerns with some of the factors enunciated in this legislation. It is my hope that, through thoughtful and informed deliberation and debate in committee, we may be able to address these issues and favourably resolve them. The bill can then enjoy the full support of the House, as it now has, as a matter of principle, but then can be more fully supported with regard to any considerations that may raise some matters for concern.

Citizen's Arrest and Self-defence Act
Government Orders

11:20 a.m.

NDP

Matthew Dubé Chambly—Borduas, QC

Madam Speaker, the issue addressed by this bill is so delicate that it is important to obtain expert legal opinions. My colleague from St. John's East spoke about the importance of studying this bill in committee to find just the right balance in order to ensure that it does not lead to the abuse of the defence of property and the person.

Could my hon. colleague tell me how we could go about finding this balance? We must protect people who want to defend themselves and the rest of the population in order to ensure that abuses do not occur and that people do not become de facto police officers.

Citizen's Arrest and Self-defence Act
Government Orders

11:25 a.m.

Liberal

Irwin Cotler Mount Royal, QC

Madam Speaker, I tried to include these considerations in my remarks. The question is whether the response is rational and proportionate. This bill is an improvement over the existing legislation, which, as the case law shows, includes some vague and complex provisions. It is thus very important to have a debate to talk about the principles of the bill and to discuss the bill in committee, where witnesses can come and share their expertise on these issues.

Citizen's Arrest and Self-defence Act
Government Orders

11:25 a.m.

Conservative

Blaine Calkins Wetaskiwin, AB

Madam Speaker, I appreciate my hon. colleague's wisdom and guidance in this. He is very experienced. I appreciate that he is bringing these concerns forward prior to his pending retirement. I am just kidding.

The reality is that this is an issue that is near and dear to the hearts of my constituents. There have been several occurrences in my riding. I noticed that he talked a bit about some of the exceptions he had. I am wondering if, from his perspective, he has any experience with this.

I represent a fairly large rural constituency where response times by law enforcement officials are somewhat less than what one would expect in a municipal area. I am wondering if the member would like to speak to that and if he has any issues, concerns or prior knowledge with respect to self-defence and citizen's arrest provisions. Also, does he have any foresight or wisdom he could share with the chamber in regard to situations where someone might be 45 minutes to a couple of hours away from having a law enforcement officer respond to an emergency situation?

Citizen's Arrest and Self-defence Act
Government Orders

11:25 a.m.

Liberal

Irwin Cotler Mount Royal, QC

Madam Speaker, I do think those are considerations that are important because different issues can play out in different contexts in different places. Therefore, the notion of what constitutes reasonableness may vary given the context, both geographical and otherwise, as well as what may determine proportionality, these being the two main criteria in this regard.

I will take this opportunity to address another factor that may pose a concern, which is (h), which reads:

whether the act committed was in response to a use or threat of force that the person knew was lawful.

The question is whether “knew was lawful” is enough or should it be “knew or ought to have known”.

I can imagine a situation with an undercover police officer and the person saying that he or she did not know the action was lawful and therefore he or she was justified in assaulting the officer in self-defence. Again, this may be another factor we may want to clarify. Therefore, should “including whether the person identified his or her lawful authority” be added, or is “knew or ought to have known” be sufficient?

The question points out, and I have used this particular consideration or factor by way of response, that there are a number of issues that will be best addressed in committee.

As the Supreme Court said, the contextual principle is crucial with regard to the interpretation and application of legislation and would it apply with regard to that geographical context and in relation to that contextual principle and the application of the notion of reasonableness and proportionality.

Citizen's Arrest and Self-defence Act
Government Orders

11:25 a.m.

NDP

Jack Harris St. John's East, NL

Madam Speaker, I know we will be studying this in committee in great detail but I noticed the term “proportionality” is relevant to the defence of persons. Does the member believe there is a place for a similar concept in defence of property?

Obviously, some people have different notions of what is the proper way to defend one's property from a trespasser. Is the word “reasonable” enough or should we have more? Is that something that the member would give some consideration to?

Citizen's Arrest and Self-defence Act
Government Orders

11:30 a.m.

Liberal

Irwin Cotler Mount Royal, QC

Madam Speaker, as I mentioned, I was addressing most of my remarks to the issue of self-defence. I was not addressing the matter of property, which I felt was not the particular provisions that were eliciting concern.

I do believe the issue of reasonableness, as my hon. colleague mentioned, while being the generic principle, would apply clearly to both self-defence and in relation to property and proportionality in matters of self-defence.

I also tend to regard the notion of proportionality as being a relevant principle, if not also a generic principle and may also be applicable in matters of property as it is with regard to self-defence.

Citizen's Arrest and Self-defence Act
Government Orders

11:30 a.m.

Green

Elizabeth May Saanich—Gulf Islands, BC

Madam Speaker, I appreciate the speech by the hon. member for Mount Royal, particularly for bringing us back to the need for broader Criminal Code reform, particularly to look at bringing back the Law Reform Commission of Canada.

We have a situation where we generally agree with the objects of the bill, as I know the hon. member for Mount Royal and I did back in June when we looked at the megatrials bill. The efforts made to improve that bill so that it would work were gavelled out of order and we went right through to passing a bill with no changes.

We have just experienced the same thing with Bill C-10. The efforts made to improve that bill in the government's interest and toward the goals that it put forward were rushed through and, unfortunately, the amendments put forward yesterday by the Minister of Public Safety, which were so closely parallelled with what the hon. member for Mount Royal had put forth before, were ruled out of order, and appropriately, by the Speaker.

What chance do we have of his very sensible approaches being taken seriously at committee? Does he have any indication that we will have a different atmosphere around the committee with respect to Bill C-26 from what we have had with previous bills in this session?

Citizen's Arrest and Self-defence Act
Government Orders

11:30 a.m.

Liberal

Irwin Cotler Mount Royal, QC

Madam Speaker, the hon. member has been very attentive and present at the deliberations of the Standing Committee on Justice and Legal Affairs, and knows of what she speaks.

I hope that when our committee deliberations return, we will do so in a way that permits for the informed and considered appreciation of legislation before us. I still believe the real problem with regard to the deliberations on Bill C-10 was that it was not, as some feel when they look at it, one bill; it was nine bills. They should have been unbundled. We should have addressed each of them separately.

My colleague mentioned the justice for victims of terror bill. I proposed four amendments, which were rejected by the committee. The government then reintroduced those same four amendments that it had rejected in committee. The Speaker, understandably, ruled them out of order. Maybe if we had time and consideration to put on that one bill alone, we could have come up with a better bill. The bill, as I have said, is transformative legislation that would have had a positive historical impact to give victims of terror a civil remedy that they had not yet had. It would have allowed them to hold their perpetrators liable.

I believe that is the same with the other eight bills that we had to consider altogether in one big bundle.

I would like to see the government take that principle of bundling and attach it to the whole question of a comprehensive reform of our criminal law, which is long overdue. Also, we need to reinstate the Law Commission of Canada to assist us in this very compelling, overdue and necessary task of comprehensive law reform in our country.

Citizen's Arrest and Self-defence Act
Government Orders

11:30 a.m.

Delta—Richmond East
B.C.

Conservative

Kerry-Lynne Findlay Parliamentary Secretary to the Minister of Justice

Madam Speaker, I am pleased to speak today to Bill C-26, An Act to amend the Criminal Code to address the issues of citizen's arrest and the defences of property and persons.

Bill C-26 represents a responsible expansion of the citizen's power of arrest as well as a simplification of the self-defence and defence of property provisions in the Criminal Code. These reforms are balanced and necessary. Today, I would like to address some of the details of the law of citizen's arrest.

Many members will know the background to the citizen's arrest reforms proposed in the bill. For members who perhaps are not as familiar with this issue, let me begin with a description of what arrest actually is. An arrest consists of the actual seizure or touching of a person's body with a view to detention. Uttering the words, “you are under arrest” can constitute an arrest if the person being arrested submits to the request.

Arrest powers are found in a range of federal and provincial laws. The Criminal Code provides for several distinct arrest powers. Currently, under section 495, the police officers are empowered to arrest, without a warrant, any person who they find committing a criminal offence. Police officers may also arrest without a warrant any person who they reasonably believe has committed or is about to commit an indictable offence.

For an arrest to be lawful, the arresting officer must personally believe that he or she possess the required grounds to arrest and those grounds must be objectively reasonable. This means that a reasonable person standing in the shoes of the officer would believe that there are reasonable and probable grounds to make an arrest, which depends upon reasonable and probable grounds to believe that an offence has been committed.

In comparison to the power of arrest that every police officer has, section 494 of the Criminal Code also authorizes private citizens to arrest, again without a warrant, those found committing indictable offences, those being pursued by others who have authority to arrest and those found committing criminal offences in relation to their property. In all cases of a citizen's arrest, there is a legal duty on the citizen making the arrest, under section 494, to deliver an arrested person to the police forthwith. This term “forthwith” basically means as soon as reasonably practicable in all the circumstances.

As members can see, there is a clear distinction between the power of arrest for police officers and the power given to citizens. There are good reasons for these differences, many of which are obvious. Police officers are professionally responsible for enforcing the criminal law. They are trained in the use of force, including how not to get hurt themselves and how to minimize any injuries that may be inflicted on others, as well as being trained in the legal requirements for lawful arrest. As well, police officers are subject to oversight so that in cases where things go wrong, a citizen who may have been unlawfully assaulted can seek redress.

Private citizens are not subject to any of these conditions but, nonetheless, the law does recognize that sometimes only the private citizen is in a position to act in the face of criminality. The law would not be doing its job of promoting public peace if it left the citizen with no choice but to stand and watch as criminals committed their crime. No, the law must and does empower the citizen, in limited circumstances, to take part in the administration of justice where necessary.

In this regard, the particular power of citizen's arrest we are concerned with is the power to arrest people found committing an offence on or in relation to property. As I have already mentioned, the power of arrest for the private citizen arises where the citizen finds someone committing an offence on or in relation to property. In other words, the person must be found actually in the process of committing the offence for a private arrest to be lawful. This is a limited power and the law does not permit an arrest even a short while after the offence was detected.

I think we can all appreciate that the limitation of “found committing” can produce unjust results in certain situations. Canadians do not agree with criminal charges against a citizen who tries to arrest someone a short while after he or she was found committing a crime, for instance where the person returns to the scene and is readily identified as the person who stole property a few hours before.

Bill C-26 therefore proposes a straightforward reform to extend the period of time allowed for making a citizen's arrest. Specifically, the bill would expand subsection 494(2) of the Criminal Code of Canada to permit property owners, or persons authorized by them, to arrest a person, not just when found committing a criminal offence on or in relation to property but also within a reasonable time after the offence is committed.

Many questions have been asked about what constitutes a reasonable period of time for making an arrest. It is not feasible to impose a rigid time limit on an arrest, such as an authority to arrest within four hours of an offence. A rigid time limit would likely produce unfairness in some cases, just as the existing rule that limits arrest at the time of the commission of the crime does.

It is also not possible to define or describe what constitutes a reasonable period of time. Whether an arrest was or was not made in a reasonable period of time must be determined on a case-by-case basis based on all the relevant facts and circumstances. Facts and circumstances that are likely to be relevant to such a determination include the length of delay, the reasons for the delay and the conduct of the suspect and the arrester, among others.

The proposed reforms also add an additional requirement where the arrest is made after the crime has been committed. This requirement is that the arrest will only be lawful if the person making the arrest reasonably believes it is not feasible for police officers to make the arrest themselves. This is a new safeguard that Bill C-26 would bring into law to ensure the law would not encourage or promote vigilantism. This requirement would ensure that citizens would only use this expanded power of arrest in cases of urgency and only after they turned their minds to the question of whether polices officers would be able to make the arrest.

It should not be forgotten that this new safeguard complements other safeguards already in the law of citizen's arrest. For instance, as I mentioned earlier, there is a duty upon any citizen who arrests someone to deliver that person as soon as possible to the police. This is another safeguard that ensures citizens are not in a position to apprehend a possible criminal and keep him or her confined for an extended period of time. Once apprehended, the suspect must be turned over to police. Failure to do so puts the lawfulness of the arrest in jeopardy and leaves the arresting person subject to prosecution.

These requirements are reasonable and appropriately balance the right of the citizen to take steps to prevent crime and apprehend criminals against the overarching objective of ensuring that it is the police who deal with suspects. The police have a duty to preserve and maintain the public peace and must remain our first and foremost criminal law enforcement body. This new safeguard, especially when coupled with existing ones, would ensure that they will so remain.

Finally, for even greater certainty, the reforms also specify that the existing provisions in relation to the use of force and effecting an arrest apply to citizen's arrest. These rules are set out in section 25 of the Criminal Code and apply to all actions taken by police officers and private citizens where they are acting for the purpose of administering or enforcing the law. According to section 25 of the Criminal Code, an individual who makes a citizen's arrest is “if he acts on reasonable grounds, justified in...using as much force as is necessary for that purpose”.

However, I would note that a person making an arrest will never be justified in using force that is intended or is likely to cause death or grievous bodily harm unless he or she believes on reasonable grounds that it is necessary for self-preservation or to protect anyone under his or her protection from death or grievous bodily harm. This is the same rule that applies to the police. Its benefits and objectives are clear and obvious.

These are important reforms that will give Canadians confidence that when they act to arrest someone they have found committing an offence, the law will view them as law enforcers in an emergency situation and not as criminals.

However, Bill C-26 would do more than this. It would also simplify the law relating to defence of property and defence of persons, which are in dire need of clarification. Law societies, bar associations and judges have been calling for such reforms for decades. It is not that the law does not give Canadians the power they need to defend themselves. Rather the problem is that the way the law is written is so confusing that it makes it very difficult to understand what is and is not permitted.

However, there are additional consequences. Once they are raised in court, confusing laws require prosecutors and defence counsel to devote energy and arguments about the proper interpretation and they cause judges difficulty in explaining to juries how they should govern their decision making. The end result is lengthier trials, unnecessary appeals and additional cost to the system.

In a nutshell, the legislation seeks to simplify both defences so Canadians can understand the rules and govern their ability to defend themselves, their families and their property. Simpler laws would also provide better guidance to police officers who are called to the scene of a crime. They will be better able to make appropriate decisions about whether charges are or are not warranted.

The proposed new defences would boil down to a few simple considerations. In the case of defence of the person, did the defenders reasonably perceive that they were or that another person was being threatened with force or were they actually being assaulted?

In the case of defence of property, did the defenders reasonably perceive that property they peaceably possessed was or was about to be interfered with, such as by someone taking, damaging, destroying or entering property without legal entitlement?

In both types of cases, did the defenders respond for the purpose of protecting themselves or another person from force or for the purpose of protecting the property in question from interference?

Finally, in both types of cases, did the defender act reasonably in the circumstances?

These are the key components for defences which allow a person in emergency situations to engage in conduct that would otherwise be criminal. Just as it is not possible to provide a definition or an answer in the abstract to the question of what is a reasonable period of time for making an arrest, it is also not possible to set out what actions are reasonable in self-defence or in defence of property.

What is reasonable depends entirely on the circumstances and the reasonable perceptions of the person faced with the threat. There are many relevant considerations; in fact, a list of factors that may be considered is provided in relation to self-defence and defence of another. This list includes a range of factors which frequently arise in self-defence cases, such as the nature of the threat, the presence of weapons, and any pre-existing relationship between the parties, and the proportionality between the threat and the defence of response.

In the case of defence of property, the nature of the threat to the property is likely to be the most important consideration. If someone is threatening to burn down their neighbour's house, such a threat would likely permit a greater defensive response than if the threat were merely to place an unwanted sticker on a neighbour's car.

I trust that it is now apparent why the reasonableness of the defensive conduct can only be assessed in relation to all the facts.

I would just like to address a few small points that relate to the defence of property. It is crucial to understand the limits of the legal ability to use force to defend property. This is not a defence that allows people to use force to protect or assert ownership rights.

Ownership rights, and many other legal interests in property, are matters of property law, which is a matter of provincial responsibility. Disputes over these types of issues must be decided by the civil courts if the parties cannot agree among themselves.

The defence of property only applies where there are real time threats to physical possession of property or threats to the state of property in someone's possession, such as a threat to destroy or render property useless and ineffective. That is because in emergency situations there is no recourse to the courts. If someone steals or destroys another's belongings, they are gone before the civil courts can assist.

The overarching function of the criminal law is to promote public order and public peace. The law therefore cannot sanction the use of force to protect property in any circumstances other than where a present lawful situation is threatened in a manner such that seeking civil recourse at some later date creates the risk of a permanent deprivation or loss of the property in question.

The law allows people to preserve the status quo, not to solve ongoing disputes with violence.

There is one last matter that I must address in relation to the defence of property. The new law of defence of property, like the current law, does not put any express limits on what can be done to defend property; however, I would like to note for members that our criminal courts have unequivocally rejected the use of intentional deadly force in defence of property alone as unreasonable.

In the case of self-defence or defence of another, these defences allow for the use of intentional deadly force, depending on the circumstances. This is because it is a life that is being threatened. It is only reasonable for individuals who face a serious threat from another person to protect themselves. If the nature of the threat is such that it is reasonable to counter that threat with deadly force, that may be acceptable, depending on the circumstances.

Threats to property are not the same. Human life always outweighs our interest in property. So when the situation is one where damage or destruction of property must be balanced against the determination of human life, the property interest must give way to the greater interest in human life.

Some conflicts which appear on the surface to involve threats to property only do in fact also pose a risk to human life. For instance, individuals whose homes are invaded are likely to feel that their property is being interfered with and on that basis does have the right to use force to evict the trespasser; however, this does not mean that a homeowner is without recourse and must submit to anything the trespasser intends. Rather the homeowner is also likely to feel personally threatened by the presence of the trespasser in such circumstances.

In any case, where a person has succeeded in entering a home without permission, especially if it is at night, that presents a situation in which any reasonable individuals would perceive danger to themselves and other occupants. Where such a threat is reasonably perceived, self-defence and defence of others becomes available and indeed may be the operative defence if deadly force is ultimately used.

I think all members can agree that clear and simple defences and a citizen's arrest law that provides flexibility for variations in the circumstances will allow all Canadians to take necessary and reasonable steps when the circumstances leave them no other reasonable options.

I urge all members to support this important legislation.

Citizen's Arrest and Self-defence Act
Government Orders

11:50 a.m.

NDP

Lysane Blanchette-Lamothe Pierrefonds—Dollard, QC

Madam Speaker, this week, the hon. member for Delta—Richmond East said that it was not necessary to consult experts or do research to draft a bill and that it was enough to simply consult Canadian families.

I find this somewhat worrisome since, today, the opposition is trying to pass this bill at second reading so that a serious discussion can occur in committee. The hon. member for St. John's East mentioned that he expected to hear from legal specialists about self-defence and defence of property in committee.

Today, what does the hon. member think about these specific expectations?