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 property.

Topics

Citizen's Arrest and Self-defence Act
Government Orders

11:50 a.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

Madam Speaker, this matter will be referred to the Standing Committee on Justice and Human Rights where it will be considered, as any legislation is considered.

The member may have misunderstood me last week. I did not say that research was unnecessary. I said that, in fact, there are so many comments about the justice system and the lack of confidence in it generally that this is something we can also take into account. However, this matter will definitely go to committee to be studied there. We will await those outcomes.

Citizen's Arrest and Self-defence Act
Government Orders

11:50 a.m.

NDP

Jack Harris St. John's East, NL

Madam Speaker, I wonder if the parliamentary secretary would like to comment on the circumstances which gave rise to the citizen's arrest changes because they were concerning. The owner of the store was charged by the police who arrived on the scene, after being called by the individual. He was then charged with kidnapping, possession of a dangerous weapon, unlawful confinement and assault.

This gave rise to a lot of the publicity and concern about the case. Does that indicate some lack of clarity in the citizen's arrest provision?

Does the member think that what we are doing here is the minimal amount that needs to be done because we do not want to encourage people to effect citizen's arrests when other alternatives are available?

One would not know the state of mind of the person, and quite often those effecting citizen's arrests do not have any training as to how to handle people.

Would the member comment on that and whether she thinks there are sufficient safeguards in the citizen's arrest provision?

Citizen's Arrest and Self-defence Act
Government Orders

11:50 a.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

Madam Speaker, I thank the hon. member for his question and his hard work on the justice committee.

This is not in response to any particular situation and I really cannot comment on the specifics that the hon. member has alluded to.

There are many areas in the Criminal Code where the law has been so long standing. In the modern world and the unfolding of many different circumstances, it is very hard to comprehend for all involved, the judicial system, judges, law enforcement and citizens, as to what is appropriate and what they can and cannot do in a given situation. Of course, for law enforcement it is much clearer. We are trying to modernize the law and simplify it to the extent that it makes it clearer what the citizen's arrest powers are.

This would allow for the understanding that it may not be just at the exact time of the committing of an offence but a certain time after, if the police cannot be brought into the situation, where a citizen's arrest would still be appropriate within reasonable circumstances.

Citizen's Arrest and Self-defence Act
Government Orders

December 1st, 2011 / 11:50 a.m.

NDP

Don Davies Vancouver Kingsway, BC

Madam Speaker, I am pleased to stand in the House today and speak to Bill C-26, an act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

This is an excellent example, an all too uncommon example I would submit, of a government making sound legislation because consensus was sought and achieved with respect to the substance of the bill.

All parties agree with the essence of this legislation. All parties have commented publicly and foreshadowed to the government over the last two years that this legislation would be a positive amendment to our Criminal Code. As I will touch on a bit later in my remarks, that does not mean that certain provisions of the bill do not require careful scrutiny. That, I am sure, will happen at committee.

The bill would basically alter a person's ability to make a citizen's arrest. It clarifies the times when a person is entitled to defend either his or her person or property. These are both positive and overdue steps.

This legislation is an example of good law being made. The government can ensure widespread support when it seeks consensus. That also ensures smooth and timely passage of legislation, which all Canadians want to see as opposed to seeing contentious legislation put forward that eventually gets slowed down, obstructed and criticized heavily.

I want to contrast this legislation briefly for a moment with what I think is the typical and common approach of the government, and that is to generally plow ahead with highly partisan, ideological and often controversial pieces of legislation that do not reflect the majority of support in Canada.

Government members have obviously memorized their speaking lines well. It is a rare day in the House when we do not hear four or five government members stand up and say that they received a strong mandate from the Canadian people for their platform. We know that is political spin and is not correct because we all understand math.

We know that in the last federal election 61% of Canadians voted and the government secured the support of 39% of that 61%. We also know that 61% of Canadians did not give a mandate to the Conservative government. It is useful for the government to keep that in mind. In order for the government to have a positive and successful legislative agenda, it would do well to remember the fact that seeking consensus, as the government has done on the bill, is a much sounder and more democratic way to proceed as a government.

I do want to congratulate the government on this piece of legislation. Our late leader, Jack Layton, valued fairness above all other attributes in political life. He often stated that it is the job of an opposition to propose as well as to oppose, and when we do oppose to do so constructively. He would have been the first person in the House to advocate that we should give credit where credit is due.

In this case, I am pleased to give credit to the government for introducing this legislation. That is not hard to do in this case because the substance of this legislation was really an idea that was proposed by the New Democrats, in particular, by my hon. colleague from Trinity—Spadina. I will talk about that in a moment.

I want to talk a bit about the bill and where it came from. Bill C-26 would specifically amend section 494 of the Criminal Code, dealing with citizen's arrest, to provide greater flexibility. These changes would permit a citizen's arrest without a warrant within a reasonable period of the commission of the offence. Currently, section 494 requires any citizen's arrest to occur while the offence is being committed.

As I go through the history of the genesis of the bill, members will see why the current definition in the Criminal Code has proven to be problematic.

Bill C-26 would do more. It would also change sections of the Criminal Code that relate to self-defence and defence of property currently encoded in sections 35 to 42 of the Criminal Code of Canada. According to the government, these changes would bring much-needed reforms to simplify and clarify complex Criminal Code provisions on self-defence and defence of property. They would also clarify where reasonable use of force is permitted.

I am advised that the current language has been in the Criminal Code for a very long time. I am led to believe it may even be original language or language that certainly is well over 50 years old, or even closer to 100 years old. It is always positive for us as legislators to review language in our statutes to ensure the language is up to date and clear to Canadians.

As we know, it is one of the precepts of Canadian law that citizens are presumed to know the law. In order for citizens to be able to comply with the criminal law in this country, obviously they must understand it.

It is a positive step that we are actually looking at these sections of the Criminal Code. I am not 100% sure that the language in the legislation is exactly what we want it to be. However, I commend the government for putting the focus on these sections. I do think the bill goes a long way, even in its present form, in clarifying those complex provisions.

Half of the bill proposes measures that New Democrats have called for previously through my colleague from Trinity—Spadina's private member's bill which she introduced a year and a half ago. Therefore, it follows that we will support the bill at least at second reading. The part of the bill that we proposed is the part that amends section 494, which deals with citizen's arrest, to permit arrest without a warrant within a reasonable period of the commission of the offence.

I want to make it clear that we must tread a careful line, because expanding the role of citizens to become involved in arrests or to use force to defend themselves or their property is a carefully balanced one. We want to ensure that we do not encourage an unhealthy or dangerous form of vigilantism. The balance between ensuring our citizens have the right to act rationally, logically and reasonably in protecting themselves and their property and doing their part to ensure that criminals are apprehended can be done so in a fair, safe and legal manner.

I will talk briefly about the background to the bill, which is what brought the legislation to the attention of the House.

On May 23, 2009, Mr. David Chen, who is the owner of the Lucky Moose Food Mart in Toronto, apprehended a man, Mr. Anthony Bennett, who had stolen previously from his store. After Mr. Bennett was initially caught on security camera footage stealing from the store, he left the store, but returned to the Lucky Moose one hour later. At that time, Mr. Chen, the proprietor, and two employees apprehended Mr. Bennett. They tied him up, locked him in the back of a delivery van, and called the police. When the police arrived, they assessed the situation and applied the Criminal Code as it currently reads. They ended up, perversely, charging Mr. Chen with kidnapping, carrying a dangerous weapon--a box cutter, which most grocery store workers would normally have on their person--assault, and forceable confinement.

We were left with the perverse situation of a person who was defending his property in his store, who had 100% concrete evidence that the person had stolen from him not only hours earlier but I believe on several occasions in the past, did what I think any reasonable person would do in that circumstance. He apprehended that person and called the police.

Crown prosecutors later dropped the kidnapping and weapon charges, but proceeded with the charges of forceable confinement and assault.

Again, according to the Criminal Code as it is currently written, a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act. Ultimately, Mr. Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. We often talk about court cases that we do not like, or we criticize judges when we feel they have not made the right decision. This is a case where all Canadians would applaud the wisdom of the judge who, notwithstanding the Criminal Code's provisions, saw that justice was done.

Anthony Bennett for his part pleaded guilty in August 2009 to stealing from the store and he was sentenced to 30 days in jail.

I want to pause for a moment and say to those people who feel that the bill encourages vigilantism, I would respectfully suggest that is not the case. It does not expand any powers of a citizen to make an arrest over what he or she has now. It simply alters the timeframe in which that arrest can be made. Right now if Mr. Chen had caught Mr. Bennett in the act of stealing from his store, he would have been perfectly entitled to do what he did, but the fact that it happened an hour later, under the current law renders that same act a criminal act. I think all Canadians would join with all members of the House in asserting that this is not a reasonable or logical approach to the law.

In February 2011, the government introduced Bill C-60, which was based on my hon. colleague from Trinity—Spadina's private member's bill. I should pause and say that immediately after Mr. Chen was charged, it was my colleague from Trinity--Spadina who met with Mr. Chen, helped translate his position to the media and to the public. She then went to work as she often does so diligently and drafted and introduced a private member's bill that would have done exactly what Bill C-26 proposes to do with respect to lengthening the amount of time that a citizen's arrest is possible.

Again, I will commend the government one more time in saying that the government, wisely and to its credit, adopted that bill. The Conservatives saw a good idea when one was introduced. That also shows that Parliament can work very well, contrary to what some Canadians might think about this place. It is sometimes the case that we do co-operate and make a law of general improvement to our country.

Unfortunately, my colleague's private member's bill and Bill C-60 died on the order paper when Parliament dissolved in March 2011. Bill C-26 was introduced in the 41st Parliament in a virtually identical form to Bill C-60 from the previous Parliament.

I want to turn to the other sections of the Criminal Code that the bill deals with. In addition to amending section 494 of the Criminal Code, Bill C-26, like its predecessor Bill C-60, also proposes amendments to the sections in the Criminal Code dealing with self-defence of property and person. Bill C-26 proposes a substantive overhaul of the statutory language in sections 34 to 42 of the Criminal Code. Five of these sections are from the original Criminal Code of 1892. As I said earlier, modernizing and clarifying this language is long overdue.

The courts for their part have also indicated that there are problems with clarity with respect to these sections. For example, the current self-defence provisions of the Criminal Code have been described as unwieldy and confusing and have been much criticized as a result. In the Supreme Court of Canada case of Regina v. McIntosh, Chief Justice Lamer, as he then was, stated that sections 34 and 35 are “highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects”.

The judgment of the majority in the McIntosh case, however, has itself been called highly unfortunate for further muddying the waters around the self-defence provisions. The majority in McIntosh held that section 34(2) of the code was available as a defence when the accused was the initial aggressor. The argument was that Parliament must have intended for section 34(2) to be limited to unprovoked assaults because it enacted section 35 to deal specifically with situations where the accused was the initial aggressor.

That argument failed. The ruling seemed to go against the history of self-defence law, which pointed to a sharp distinction between unprovoked and provoked attacks.

I have read the bill from beginning to end. This bill does a commendable job of clarifying that confusion which the highest court in our land pointed out.

As I said before, crime and complying with the law has been a dominant theme of the government. We all want Canadians to comply with the law. It is incumbent on us as parliamentarians to review that law and make sure it is clear and understandable. It is hard to expect people to comply with law that they do not understand. I must say that in reading this bill, it does a great job of clarifying when a person can use self-defence when the person is feeling a threat to his or her physical security and also when there is a threat to the person's property.

There are important considerations to this bill that I certainly expect the committee will study when it reviews the bill.

A citizen's arrest is a serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain public peace, nor properly trained to apprehend suspected criminals. In most cases, an arrest consists of either actually seizing or touching a person's body in an effort to detain the person, or where the person submits to the arrest. It can be dangerous both to the person making the arrest and the person being arrested, and in fact anybody that is around those two people.

A citizen's arrest made without careful consideration of the risk factors may have serious unintended consequences for those involved. When deciding whether to make a citizen's arrest, a person should be aware of the current law and consider the following: his or her safety and the safety of others; reporting information to police, which is usually and I would say overwhelmingly the best course of action instead of the person taking action on his or her own; and ensuring that the person has correctly identified the suspect and the criminal conduct.

I would hasten to add that the bill does not authorize a person making an arrest to undertake whatever actions the person believes are possible under law. What it does is put careful constraints around when a person may make a citizen's arrest and when a person may actually employ the defence of self-defence, whether it is against the person or his or her property.

For instance, the bill has a number of provisions that import the concept of reasonableness. This is a concept that is well known and often used in Canadian law in many different respects, both civil and criminal. It ensures that before people can avail themselves of these provisions of the Criminal Code, they must be acting reasonably; they must have a reasonable basis to act before they do; and in the course of carrying out their self-defence, they are not entitled to break the law themselves. They are not entitled to assault someone. They are not entitled to use unreasonable force. They are entitled to take reasonable, minimally invasive steps that are necessary to accomplish three basic goals: make the arrest, if that is the only reasonable prospect in the circumstances; defend their person; or defend their property.

This is something the committee, when it goes over the bill, should keep firmly in mind. We must make sure in clarifying, improving and modernizing the law that that balance is carefully met. Some people have criticized the concept of the bill because they are worried that this is going to open the door to some form of unreasonable vigilantism. They are right to have that concern. That is what we must make sure is not done in this bill.

I conclude by pointing out that what is more concerning is the defence of property as opposed to defence of person. I believe those are two slightly different circumstances and what is reasonable in terms of people defending the integrity of their physical persons may be a different circumstance than what may be reasonable in defending property. Although property is important to defend, I believe there is a meaningful distinction between those two things.

I congratulate the government on bringing the bill forward. The New Democrats support this at second reading and look forward to working co-operatively in making this bill law for all Canadians.

Citizen's Arrest and Self-defence Act
Government Orders

12:15 p.m.

NDP

Hélène LeBlanc LaSalle—Émard, QC

Mr. Speaker, I would like to thank the hon. member for his speech and the clarification he provided.

He mentioned the importance of judges and the judicial system in the rendering of decisions. In the case he presented, the judge rendered a very wise decision, which showed that he had taken into account all the circumstances. This case also shows the importance of our judicial system and the trust we must have in it and in judges.

I would like the hon. member to expand upon the importance of our judicial system and the profession of judge.

Citizen's Arrest and Self-defence Act
Government Orders

12:15 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Mr. Speaker, that question raises a number of important considerations. In order for people to have respect for criminal law and the public to have broad public buy-in to our law, they must believe the law accords with their own common sense and what are reasonable circumstances. That is what the genesis of bill raises.

Canadians from coast to coast were legitimately shocked and very opposed to the concept that a store owner who was doing nothing more than apprehending someone, without assaulting the person, while defending his property and waiting for the police to arrive, would be arrested. It is that kind of application of the law that can breed disrespect. As parliamentarians we must be vigilant to guard against that.

In terms of judges, I again point out that there is a live issue in the House about how much discretion judges should have. We often point to cases in which we do not like what the judges have done. However, in this case there was a very wise and prudent decision by the judge and I think that in itself has helped to engender greater respect by the public for our legal system.

Citizen's Arrest and Self-defence Act
Government Orders

12:15 p.m.

NDP

Anne Minh-Thu Quach Beauharnois—Salaberry, QC

Mr. Speaker, I thank my colleague for providing some explanations, especially concerning the care that was taken in drafting this bill and the importance of having the time to study each of these measures in committee.

I would specifically like to talk about the potential dangers facing crime victims. I worked for 10 years in a corner store and I was the victim of armed robbery. It ended well, but you do not know how you will react in such a situation. You do not know the kind of strength you have when you are scared or when your adrenalin is pumping. Serious accidents can happen.

I would like to know what he thinks about the danger that this bill could present. This bill is very important, but we have to frame it in order to minimize the risks.

Citizen's Arrest and Self-defence Act
Government Orders

12:15 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Mr. Speaker, that is an excellent point that cuts to the essence of where the balance must be found in this bill. An individual who is unlawfully threatened or attacked must be accorded the right to respond. I think we would all agree with that concept.

If Canadians are at home and awaken at 2:00 in the morning to find an intruder in their living room, down the hallway from where their children are sleeping, I do not think anyone would disagree with the concept that they must, as citizens, have the right to defend their person, their family and their property. However, that right of response is not an unlimited one. It is not currently unlimited under the present law and it would not be unlimited under this legislation either.

The law does require, and under this bill would require, a person who uses force to do so in a measured way and to only utilize force that is necessary and proportionate to the threat and only in circumstances where it would be reasonable to do so. We can all imagine situations where people could abuse this right, just like we can imagine situations like the example I just gave where people should be able to utilize force.

This is why it is very important for a committee to examine that balance, to hear from witnesses and ensure the language carefully meets that balance. I personally think the government has done a very good job in achieving that balance in its draft of the bill in its present form. I do not want to second-guess committee. As it studies the bill further, there may be improvements made to the language. However, the government has recognized that a balance needs to be struck. We want to send a message to Canadians that they have the right to defend their persons or property, but they are not entitled to abuse that right for the purposes of assaulting someone or defending their property in unreasonable circumstances.

Our law is filled with those kinds of balances and I am confident we can achieve that balance in the current legislation.

Citizen's Arrest and Self-defence Act
Government Orders

12:20 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Mr. Speaker, it is an honour for me to rise and add my contribution to the debate regarding Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Bill C-26 will clarify for Canadians how they may respond to immediate threats to their property or to any person and the criminal acts necessitating urgent arrest situations.

Many members of the House will be familiar with well-publicized stories about Canadians being charged with crimes arising from situations where they were defending themselves, their family or their property. We can all imagine cases where people charged with a violent offence would claim that they had used violence to defend themselves without that necessarily being the true story. It is also likely that, from time to time, someone would use a minor threat or insult as a pretext to launching a violent attack against another.

We want to ensure that our laws do not allow for such cases, because if this were so, many innocent Canadians could be victimized with no repercussions against the wrongdoer.

On the other hand, the law must also provide greater clarity for force that is authorized and must set out the conditions which the aforementioned defensive action is acceptable. It is these very conditions that distinguish between revenge and genuine defence and between reasonable and unreasonable conduct.

Bill C-26 would extend the power of citizen's arrest in relation to property offences and would clarify the laws of self-defence and defence of property. These reforms are first and foremost about ensuring that Canadians understand the law in this area and that they are able to defend their vital interests and apprehend wrongdoers.

They are not required to stand by and watch their property be taken or destroyed or a stranger get assaulted. When the police are not around, Canadians need not be helpless. They can help themselves and their fellow citizens and, where necessary, assist in bringing wrongdoers to justice.

The reforms are also intended to assist police officers and prosecutors who exercise their discretion on a daily basis in respect to the charging and prosecuting, so as to minimize criminal charges being laid in situations where a defence is clearly available. Clarity in the law will hopefully weed out the cases of reasonable action, which need not result in criminal charges at all, and distinguish them from cases where there are discrepancies in the accounts given by witnesses, or where the threat posed was small, relative to the harm or injury caused. or other cases where there is some uncertainty about the reasonableness of the actions that were taken.

Finally, clarity in the law will help speed up trial process when charges are genuinely justified. It will also reduce unnecessary appeals and save precious time for our admittedly overworked court system.

How will Bill C-26 accomplish all of this?

First, it makes a modest extension of the existing power of citizen's arrest in the cases of property crime. Right now people can only arrest another if they find the person committing an act. This means that if there is no opportunity to arrest at the very moment, say for instance because the thief is faster and runs away, but there is an opportunity to arrest at some reasonable time afterwards, the law currently says that the arrest is unlawful. One literally has to catch the person in the act under the current law. This applies to people who try to bring to justice people who have committed an offence on or in relation to their property and stand to be charged and potentially convicted of a serious Criminal Code offence that they may have committed in the course of apprehending the suspect under those circumstances.

I hope all members can agree, and it sounds like all members do agree, that allowing people to arrest within a reasonable time of having witnessed a crime makes good sense. We do not want to criminalize otherwise law-abiding citizens and business owners who are trying to protect their property from thieves and mischief-makers. We know that situations occur where the person observed to have committed an offence returns to the scene of the crime or is seen elsewhere and can be easily identified. Arrest should also be possible in these limited circumstances.

Let us be clear that this proposal is a modest extension of the existing law. However, I know some Canadians are concerned that the proposed expansion of citizen's arrest powers will encourage vigilantism, but I do not agree.

The law of citizen's arrest already contains a very important safeguard against the arrester using the laws for improper purposes. The safeguard is a requirement in 494(3) of the Criminal Code, which states:

Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

This requirement ensures that a citizen's arrest becomes a matter of police attention as soon as is possible.

A new safeguard against vigilantism is included in this legislation, Bill C-26, in relation to the expanded powers of citizen's arrest. A person would now be able to arrest someone who they have witnessed committing an offence in relation to property within a “reasonable period of time” after the offence was committed.

However, where a person seeks to use this expanded power as a precondition, he or she must first determine whether it is feasible for a peace officer to make the arrest instead. There would now a double safety net against abuse of arrests where the arrest happens at some point in time after the original offence was witnessed.

The citizen arresters must turn their mind to the possibility of the police making the arrest. If they determine that under the circumstances that is not feasible, once they have made the arrest they must contact the police as quickly as is practicable and turn the suspect over.

Of course, the overarching rules with respect to using force during an arrest continue to apply. These rules ensure that a person making an arrest can use force but any such force must be reasonable in the circumstances. If the suspect willingly submits to the arrest, then no force is necessary. If he or she resists, then some force may be called for but the force must still be reasonable under the circumstances.

Excessive force, is, by definition, not reasonable. Deadly force, whether used by the police or by the citizen, can only be justified where human life is at risk. These rules are clearly set down in section 25 of the Criminal Code. Bill C-26 makes a reference to section 25 so that it is clear to everyone which rules apply.

This legislation would not increase the potential for vigilantism. The government discourages vigilantism. Bill C-26 is designed to allow citizens to protect themselves and their property only when police are not able to do that for them. It strikes a reasonable balance.

Bill C-26 would do more than increase the period of time in which a citizen's arrest can be made. A citizen's arrest situations often overlap with the defence of property, so Bill C-26 would ensure that the law governing the defence of property is clear and effective.

Currently, the defence of property is set out over five provisions that make many distinctions between slightly different circumstances, such as where the property in question is an object or land.

There is no need for different variations covering different cases when they are all based on the same general principle, that people should not be held responsible for a criminal offence if they act reasonably in an effort to protect property in their possession from being taken, damaged, destroyed or trespassed upon.

Bill C-26 would replace all of the existing rules with a single general defence that is capable of being applied to any type of property defence situation.

I must admit that I read the existing provisions just prior to standing up in the House and they are complicated and complex. I had a difficult time applying each rule to a specific fact situation. This is why Bill C-26 clarifies the rules with respect to defence of property. This is precisely the sort of simplification that will help the police gather evidence and make decisions or recommendations about whether criminal charges are appropriate. It is also the kind of simplification that Canadians need.

Property disputes often arise when someone is doing something unlawful, such as stealing a car or breaking into a house, but the defence can also arise in cases of genuine property disputes involving people who are all behaving lawfully but simply disagree about which of them is entitled to a particular item of property and what exactly they are allowed to do or not do with it.

For instance, disputes over access to a right-of-way or over where the a boundary is between two houses can and do lead to violence, just as conflict between a property owner and a thief or a criminal intruder can. The defence of property can apply to all these situations.

For that reason, it is inescapable that matters of property law must inform the criminal defence of property. That is why the defence of property is premised on the concept of “peaceable possession” of property. This concept has been interpreted by the courts to mean that the possession of property must not be seriously challenged by others. The seriousness of the challenge is assessed by looking to whether the challenge to the possession is likely to result in a breach of the peace. Of course, anyone who actually possesses property in circumstances that would involve a breach of the peace, such as protestors occupying a government building, should not be entitled to use force to defend their possession of that property in that circumstance.

Another aspect of the law that Canadians should know is that our courts have consistently held that intentionally causing death in defence of property alone, as opposed to in the defence of a person, is never reasonable. This principle is founded on the greater value to our society and to the value that it accords to human life over the value accorded to property. I am sure we can all agree with this reasonable approach. Nothing in this approach limits the availability of self-defence, which is the other defence that would be simplified by Bill C-26.

Any situation that creates a reasonable perception of a threat to a person, and this would clearly include a home invasion, or could even include a carjacking and other types of situations, gives rise to the ability to defend the person being threatened. Deadly force is permitted in defence of the person but, of course, as always, it must be a reasonable response given all of the circumstances.

The proposed new defences in Bill C-26 would capture the essence of the current law but in a much simpler way. The new laws would clearly and simply set out the conditions for a defensive action.

First, there must be a reasonable perception of a threat to property that someone possesses. Threats to property can involve threats to damage or destroy the property or to somehow render it inoperative. It can also include threats to enter certain types of property without lawful position, such as dwellings or other buildings or even a vehicle.

It is important to note that people can be mistaken about the threat that they perceive. What matters in these cases is whether the mistake was one a reasonable person could also make in identical circumstances. We cannot take away a defence where a person behaved reasonably and perceived the situation in a reasonable manner, even if the person were factually mistaken.

However, on the other side, if people make an unreasonable mistake, that is to say, if they fall below the standard of reasonable action and perception, they would lose the defence.

My friend from Vancouver Kingsway talked about the importance of the concept of reasonableness and the reasonable man in both civil and criminal law. I agree with his interpretation and its importance to both these situations and to this legislation.

The second element of the defence is that the person must genuinely act for a defensive purpose. Defence of property can never be a pretext for revenge. If the person does not really care about the property but to use the other person's threat as an excuse to assault him or her, the law would not justify that conduct.

Third, whatever actions are taken for that defensive purpose, they must be actions that a reasonable person in the same circumstances could also have contemplated and taken.

There is no way to describe what reasonable actions are because what is reasonable to defend a particular item of property against a particular type of threat is likely to be different from actions that could be reasonable to defend other property from a more or less serious type of threat. That is a very long sentence to say that these situations are all fact specific. It all comes down to the circumstances of each case.

These conditions are easy for Canadians to understand. They should also be relatively easy for the police to assess and juries as well, if charges are appropriate. Canadians will understand that they must genuinely be acting to protect property and not acting to take revenge against someone. They should also understand they must conduct themselves within socially acceptable standards within which a range of conduct is likely to be reasonable. As long as Canadians bring themselves within this range, they will be justified in using the force that they need to in order to keep themselves, their families and their homes safe.

Bill C-26 would also bring greater clarity and simplicity to the defence of self-defence. The proposed new defence would also apply in cases where a person uses force to protect a third person.

Today, the Criminal Code says that a person can only defend another person who is “under his protection”. The courts have given this phrase different meanings. It is not as clear as it should be that citizens can defend not just their children or their elderly parents, but they can also defend their fellow Canadians, even strangers, when they come upon them in a situation that presents a grave threat. The bill would clear up this aspect of the law, and appropriately so.

However, the reforms to self-defence would do more than just that. They would simplify the law in other ways and bring a variety of different rules into one single rule that would be applied no matter what the circumstances. The basic elements of self-defence mirror those of defence of property but they are even simpler because complicated property concepts are not involved.

Right now, four separate sections of the Criminal Code set out various versions of the defence of the person, each of which applies in a slightly different set of circumstances. The law simply is way too complicated and confusing. The fact is that such complexity is unnecessary because the basic elements of the defence are relatively straightforward. Bill C-26 seeks to reduce the defence to its core elements.

The conditions for defence of the person under Bill C-26 can be stated relatively briefly. First, the person reasonably believes that he or she or another person is being threatened with force. Second, the person acts for the purpose of defending himself or herself or the other person from that force. Third, the person's actions are reasonable in the circumstances.

As with the defence of property, mistakes can be made by the defending person as long as those mistakes are reasonable. The defending person must genuinely be acting with a defensive purpose and must not be using the threat as a pretext to engage in violence that he or she would otherwise desire to engage in. The reasonableness of the actions taken in defence of the person must be assessed in relation to all of the relevant facts and circumstances.

Bill C-26 proposes a list of factors to help guide this determination. These factors frequently arise in the self-defence context. Factors on this list include: whether any party had a weapon; the nature of the threat the person was facing; whether the individuals involved had a pre-existing relationship, especially if it is a relationship that involved violence or threats; and the proportionality between the threat and the response will be a critical factor in determining whether under the circumstances the defence was reasonable.

These factors are drawn from real cases and from the courts' interpretation of the current law. The purpose behind these provisions is to signal to courts, as well as to police and to prosecutors, that the essence of self-defence is not changing. Reasonable actions under the current law should continue to be reasonable under the proposed new law.

These are the sorts of determinations our courts make regularly. However, by simplifying the law, by clearing away the clutter and putting in the Criminal Code the crucial questions and crucial factors, Bill C-26 would clear the path for them to get straight to the important questions.

The bill would also make it easier for police at the scene of a crime to apply the law before making charging decisions. Bringing clarity to the law will mean that legitimate self-defence actions lead police and prosecutors toward the decision that laying a charge would not be in the interests of justice. In this way, the bill continues to stand up for victims.

The bill is a delicate balance but, as previous speakers have said, this is the appropriate balance to balance the rights of individuals versus the rights of people who cause threat to those individuals or to their property.

Citizen's Arrest and Self-defence Act
Government Orders

12:40 p.m.

NDP

Lysane Blanchette-Lamothe Pierrefonds—Dollard, QC

Mr. Speaker, earlier, my colleague said that we would support this bill at second reading so it can be studied in committee. He also said that we had to ensure that we did not encourage vigilante justice or excessive force.

Does my colleague think that we should perhaps modify the wording of Bill C-26 to ensure that it does not open the doors to using force to protect oneself against theft or to having people take the law into their own hands and perhaps misinterpret this law, which could lead to things we would not want?

Citizen's Arrest and Self-defence Act
Government Orders

12:40 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Mr. Speaker, the hon. member is right. I am on the justice committee and public safety committee, and I know that when this bill was being drafted, great consideration given not to send the signal that vigilantism is to be promoted or encouraged, or that individuals ought to take the law into their own hands.

This bill, as other members from that side of the House have correctly pointed out, strikes a very close balance. I admit there are cases that come close to that line. Nonetheless as legislators we have to try to balance the rights of individuals to protect themselves, their families and property against those who would cause harm. The issue becomes one of reasonableness. The test will vary from situation to situation.

I represent urban constituents where access to police is relatively expeditious. Individuals in rural and remote areas have different challenges. The test in each circumstance, which I said in my comments will be fact specific, is one of reasonableness. If people act reasonably, they will have the protection of this law. If they do not act reasonably, they will be charged.

Citizen's Arrest and Self-defence Act
Government Orders

12:40 p.m.

NDP

Anne-Marie Day Charlesbourg—Haute-Saint-Charles, QC

Mr. Speaker, we currently have groups of citizens who essentially form their own patrols to defend themselves or protect an area in their city or municipality. These people replace police officers, use force and arrest other citizens. In the heat of the moment, they often do not take the time to call the police or to see whether a police officer could intervene.

Does the member think that this bill could encourage people to take the law into their own hands? This is similar to the previous question, but we are talking about groups here.

Citizen's Arrest and Self-defence Act
Government Orders

12:40 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Mr. Speaker, in my constituency there are those types of groups, although they are very passive, such as Neighbourhood Watch, for example, where people watch out for suspicious activity in their neighbourhoods and then contact police. I do not know exactly which groups she is referring to in her riding or elsewhere, but I am not concerned that this legislation would give licence to vigilantism, whether it is organized or otherwise.

This law would make it very clear and specific that police are to be called as soon as possible when it is practicable, and that the right for citizens to make arrests are very limited to circumstances where it is not practicable to call the police, when they use only reasonable force and turn the individual over to the police as soon as it is practicable.

It is quite the opposite. This law would clarify to potential groups that take it upon themselves to provide safety for their neighbourhoods what they can and cannot do legally.

Citizen's Arrest and Self-defence Act
Government Orders

12:45 p.m.

NDP

Hélène LeBlanc LaSalle—Émard, QC

Mr. Speaker, I thank the member for Edmonton—St. Albert for his presentation and clarifications. Reasonably discussing Bill C-26 presently before the House is a very good exercise and I really appreciated his presentation.

I understood from his presentation that he has a legal background. He mentioned that just for this special provision in this bill the Criminal Code is very complicated and complex. I want to compare and contrast that with Bill C-10 that we just passed at report stage in the House, which contains many provisions of the Criminal Code. Why did we not have the same approach in breaking down Bill C-10 as we are doing right now with Bill C-26?

Citizen's Arrest and Self-defence Act
Government Orders

12:45 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Mr. Speaker, I am not sure that I fully understood that question. What I said in my comments was that the bill before the House, Bill C-26, clarifies the existing provisions, specifically sections 34 to 42, which create a rather complex and convoluted set of circumstances with respect to when reasonableness in defence of property would apply, depending on whether it is real property or personal property. This bill aims to, and I think succeeds in that aim, clarify when the defences of property and person would apply.

The member made some reference to Bill C-10 that I did not quite understand. However, certainly this bill fits in the entire umbrella philosophy between this bill and Bill C-10 in that the government continues to stand up for the rights of victims. This bill fits into that umbrella because when victims of crime take measures to defend themselves or to defend their property, as long as they act reasonably they ought to have the protection of the law.