House of Commons Hansard #68 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was person.

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The House resumed from December 1 consideration of the motion that Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.

Citizen's Arrest and Self-defence Act
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10:10 a.m.

Conservative

The Speaker Andrew Scheer

The hon. member for York South—Weston has three minutes left for his speech.

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10:10 a.m.

NDP

Mike Sullivan York South—Weston, ON

Mr. Speaker, part of this bill is a reprise of a bill that was put forward originally by the member for Trinity—Spadina in Toronto, called the Lucky Moose bill, after a store owner in her riding who, after a robbery, arrested a man by himself and then was himself charged with forceable confinement after apprehending the suspect.

The second part of the bill has to do with a redefinition in the Criminal Code of what constitutes self-defence in law, in other words, what issues can and what circumstances can give rise to the successful application of the self-defence principle and, therefore, allow a person to remain immune from prosecution because of his or her actions.

With regard to the first part, I would remind hon. members that in my previous speech I talked about a personal event in which I arrested a suspect who had been robbing cars along the street and who was clearly inebriated. I, at some personal risk, took the steps of apprehending him and calling the police. The police came in great numbers because they knew I had caught somebody, an ambulance came because he had cut himself, and the firemen came, too. When I asked the firemen why they were there, they said, “If he catches on fire, we'll put him out”.

However, my point is that I acted with some immediate feeling of necessity without thinking what the law might say. In fact, I was probably outside the law because it was not my property.

The second occasion that I gave an example of was of an ice cream truck in my riding that had been held up at gun point. This is the more concerning of the two portions of the bill: the issue of whether the definition of self-defence now has expanded to include the ability to defend someone else, the ability to enter into a robbery in progress or any other threatening situation as a bystander and attempt to defend the life or the property of someone else using this self-defence law.

The law, as it currently stands, would seem to limit the ability of people to defend themselves. That is the limit upon which that law is based.

However, it appears that the law would now be expanded to include the ability to defend a third party. We think that might lead to vigilantism and therefore would require more discussion at committee in a fulsome way with many witnesses.

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10:15 a.m.

NDP

Denis Blanchette Louis-Hébert, QC

Madam Speaker, I would like to take this opportunity to wish you and all the members in the House a merry Christmas and happy new year.

The member mentioned that this bill seems to create a grey area with respect to the method of intervention. Could the member give more details on his concerns about this grey area in specific situations?

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10:15 a.m.

NDP

Mike Sullivan York South—Weston, ON

Madam Speaker, that is precisely our fear. The apparent expansion of the definition of self-defence, because it is somewhat unclear in the legislation, to include a person not being in harm's way but defending someone else who is in harm's way could, we fear, lead to unintended consequences. The example I gave was of the ice cream truck being held up at gunpoint, which ended peacefully. No one was injured.

However, if this law had been in place, one could imagine that a citizen from a dwelling nearby may decide to take action using self-defence as the reason for taking action and cause much greater harm than was caused at the time.

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10:15 a.m.

Liberal

Kevin Lamoureux Winnipeg North, MB

Madam Speaker, it is somewhat refreshing that we are debating Bill C-26. One could argue the merits of the bill because we see an active interest from citizens to be able to protect their property. Yet some concerns have been expressed with regard to the whole vigilante concept. We do not want to put people in situations where their involvement creates more danger. We hope the government will pay attention to what is happening at the committee stage.

Does the NDP have some amendments it would like to put forward on this bill at this time?

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10:15 a.m.

NDP

Mike Sullivan York South—Weston, ON

Madam Speaker, the NDP is certainly considering whether this bill is in fact what it says it is: merely a clarification of the right to self-defence. We will not know until there has been fulsome discussion in committee with many witnesses and representations from police forces, prosecutors and defence attorneys about whether this bill would actually solve the problems they see with the self-defence jurisprudence or whether it would create new problems.

We will not know whether New Democrats have particular amendments until after the bill has gone through committee. However, we hope that in this particular case the government will listen to potential amendments. We hope the government will work with us to create a clearer bill that has a better chance of actually being useful to Canadians.

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10:15 a.m.

NDP

Pat Martin Winnipeg Centre, MB

Madam Speaker, I am still concerned with elements of this bill. I appreciate the efforts by my colleague from York South—Weston to explain the inconsistencies inherent in the Criminal Code associated with the right to self-defence. I am interested in his personal experience in trying to detain someone in the act of a crime, or the rights of an individual.

I am particularly concerned with the legal interpretation. When there is ambiguity, one has to look at the intent of Parliament when that clause was crafted. Chief Justice Lamer pointed out that Parliament must have intended section 34 to be limited to unprovoked assaults because it went on to enact section 35 to deal specifically with situations where the accused was the initial aggressor.

Can my colleague bring any clarity to the intent then and the intent of Parliament now as expressed in Bill C-26?

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10:20 a.m.

NDP

Mike Sullivan York South—Weston, ON

Madam Speaker, yes, indeed, we have hit upon the nub of the concern in law. This particular self-defence clause in the Criminal Code has been on the books for over 100 years. It is the subject of much jurisprudence, which would appear to have twisted the original intent, giving perpetrators of crime the ability to use self-defence as a way of escaping punishment for their actions. That twisting of the law by jurisprudence is part of what the present bill would appear to try to solve.

However, New Democrats are not certain if the clarification that this bill provides goes too far. If the clarification creates a system in which vigilantism becomes possible, that is something we are opposed to. We do not accept that citizens become vigilantes who attempt to enforce the law and defend other citizens from harm in a manner which will cause more harm. That is one of our concerns with this bill.

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10:20 a.m.

NDP

Marc-André Morin Laurentides—Labelle, QC

Madam Speaker, I would like to know whether my colleague agrees with me. The original idea of protecting people who defend their property is a good one, but what I am questioning is the context in which this bill was introduced. It was introduced as the last in a series of tough on crime bills, as they like to say on the other side. I see a danger for this to be interpreted differently by the people who support this type of policy. I fear that people will start acting like police officers and intervene in all kinds of situations. I think we should be cautious and think about this bill carefully to prevent people from thinking they are on a mission from God and intervening in all kinds of situations.

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10:20 a.m.

NDP

Mike Sullivan York South—Weston, ON

Madam Speaker, I appreciate my colleague's comment. That is partly what concerns us if the bill and the possibility of amendments are not studied thoroughly at committee. There are aspects of this law that, as the hon. member suggests, might allow people to believe they are on a mission from God and protected by legislation allowing self-defence as a defence in situations in which they are acting as vigilantes.

We are concerned that the bill is not clear about whether or not that is the intent. It appears to expand the definition of self-defence beyond defending oneself, creating an understanding that one can defend a third party. If that is the case, how far does that go? Does that then become the rule of law?

We are also concerned that the bill will not be fully discussed at committee, as has been the case with many other bills on the crime agenda of the government. We are concerned that if this is rammed through without the possibility of amendments, where those amendments would make sense and actually clarify the law, then of course we would not be doing Canadians a service.

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10:20 a.m.

Conservative

Harold Albrecht Kitchener—Conestoga, ON

Madam Speaker, I am pleased to rise to speak to this bill on citizen's arrest.

The bill is simply an extension of our government's work in trying to bring balance back into the criminal justice system in our country. For too many years, the needs of victims have been ignored. Because of that, many of our constituents have lost faith in the criminal justice system.

I want to outline a couple of areas where I have been personally influenced by people in my riding who have brought these matters to my attention. I will never forget receiving a call about a week or two after I was first elected from the family member of a young man who had just been murdered. I met the family member at Tim Hortons. I had never met this gentleman before. He pleaded with me to do what I could to bring some balance back into the system. There was no revenge in his voice. It was more a cry for help in the sense of: please help young people find the resources they need so they will not get involved in a life of crime. A young man had been murdered by another youth, who was not allowed to be named. It was simply a call for action to bring some early intervention possibilities into the system.

Following that, because of my interest in that particular case, I hosted a round table in my office with a number of people from the legal profession, community groups and private citizens. The one area that became very clear again was the call for early intervention. I heard from a mother whose son had been in trouble with the law on a number of occasions. She told me that because of the Youth Criminal Justice Act there was nothing the judge could do because her son had not done something bad enough yet. There was a sense of hopelessness in her voice. She actually wanted our criminal justice system to take action that would direct her son to preventive measures and possibly early intervention.

As well, we have all heard too many stories of young people who have been sexually abused. The damage that is done to the lives of people who have experienced sexual abuse early in life or even as teenagers is just horrendous. Lives are virtually destroyed by the actions of sexual offenders. Our government is trying to give a clear message that these kinds of offences will not be tolerated.

I do not think any of us in this room who are parents or grandparents can argue with the fact that we need to be decisive in our actions as they relate to gangs and drugs. This is especially true when those drugs are being marketed near our schools where children and youth are most vulnerable. Lives are being destroyed by youth getting hooked on drugs early in life when they virtually had no choice.

With respect to arson, we have taken action to make it very unlikely that a person who has burned down someone's house would now be allowed to serve his or her sentence in his or her own house.

I have heard from victims of violent crimes whose families have been murdered. When the parole hearings come up they are forced to be subjected over and over again to the same kind of pain and reopening of wounds because of what used to be called the faint hope clause.

In all of these areas, we are trying to bring back a sense of balance into our criminal justice system. The current bill before us is no different. Far too many people may have thought about intervening when someone was being attacked or their property was being stolen or vandalized, yet felt an innate fear that if they took any steps to prevent that crime from happening they could find themselves on the wrong side of the law. Therefore, we need to address that fear with some sense of balance. Simply by having this conversation we can attempt to alleviate that fear.

I repeat that there is always a sense of balance. In terms of balance, I would point out that our government has taken decisive steps in the area of prevention.

It has made large investments in the area of youth gang prevention and an anti-drug strategy. In my area there is a very active restorative justice program. The program does an excellent job of bringing the victim and the offender together in trying to bring resolution, restoration and reconciliation between the parties. We all know that particular initiative cannot always work. There still needs to be criminal justice measures in place to take care of the situations that do not fit under that restorative justice system.

We have also invested heavily in the circles program. People who have served their sentence are now allowed to be back in society. They work with a group that keeps them accountable as they re-enter society. It is important that these individuals are not released without any support mechanisms to help them reintegrate back into society.

As it relates to this bill, it is important that we work hard to maintain public order. Public order is the responsibility of Canada's trained and professional law enforcement agencies. We all agree they are the ones we have to rely on, but there should always be that option for the citizen if there are no public order officials nearby, whether they are police officers or security guards. Citizens should always be able to defend their own lives or their own property.

The first step we should be taking in any of those situations, if it is at all possible, is to contact the police if someone's life or personal safety is being threatened. The government recognizes that it is not always feasible in those circumstances for a peace officer to make the arrest when a crime occurs, especially if it is in relation to property. This proposed legislation expands, simplifies and clarifies the law governing situations where individuals need to respond to immediate threats to their property or to their person.

The proposed amendments in the bill would authorize a private citizen to make an arrest within a reasonable period of time, and I would underline within a reasonable period of time, after he or she finds someone committing a criminal offence that occurs on or in relation to property. This power would only exist if there are reasonable grounds to believe it is not feasible for a peace officer to make the arrest. We cannot simply allow citizens to take matters into their own hands. Obviously, the first course of action is still to call the police and try to get help to the scene as quickly as possible.

In all cases, it is important to remind citizens that they need to be careful in the decision they are making to get involved. There is a high degree of danger when making these kinds of decisions. Making a citizen's arrest is a potentially dangerous undertaking. Before attempting a citizen's arrest, Canadians should consider other factors such as: their own safety and the safety of other people who may be in the area; the advisability of reporting information to the police rather than acting on their own; the level of certainty they have that the person they are about to arrest is actually the person they found committing the crime; and finally, the requirement to turn over the suspect to the police without delay once an arrest is made. I think that goes without saying. We are not going to suggest that people can make a citizen's arrest and then not turn the person over to police officers as soon as practically possible.

The proposed amendments to these defences will simplify provisions of the Criminal Code, making it easier for police and prosecutors to determine whether the actions taken by individuals to protect themselves, others, or their property were reasonable and therefore could provide a defence to a criminal offence.

The amendments also replace the current complex self-defence provisions with one new and clear provision permitting a person's reasonable acts committed for the purpose of defending against threats or force against themselves or another person to be a defence to a criminal charge. It is important that they have that option to defend against that potential criminal charge. We saw that in the situation with Mr. Chen where, yes, fortunately after court proceedings he was acquitted, but certainly for a number of days and weeks he had hanging over his head the possibility that he would be charged with a criminal offence, even though he was simply standing up and protecting his own property.

Also, the defence of property provisions would be greatly simplified if a person in “peaceable possession” of a property commits a reasonable act. If an individual steals something and is sitting at the corner with those stolen goods, the individual would not be allowed to defend those stolen goods against the person who is coming to retrieve them. If a person in peaceable possession of a property commits a reasonable act in order to protect that property from being taken, damaged or trespassed upon, that would be a defence to a criminal charge.

A number of different prospects in the bill would bring balance back to the system so that those who are facing the possibility of either injury to themselves or their loved ones, or are facing the possibility of having their property stolen or damaged, would be able to take action and as quickly as possible call the appropriate authorities to take over. It is important that we bring this sense of balance back to this area that has been left for too long.

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10:35 a.m.

NDP

Alain Giguère Marc-Aurèle-Fortin, QC

Madam Speaker, the hon. member opposite has introduced a bill whose intention is commendable. The question is whether it is balanced, and that is a very important question. Any time someone is arrested, it inevitably involves the use of physical restraint. When someone is arrested, they are put in detention. It is not hard to imagine a situation in which conflict arises and a scuffle ensues. That is the crux of the question. Any time police officers arrest someone, they know they must use an appropriate level of physical force. They must not use excessive force, for there is always the presumption of innocence. People who are arrested have the right to present a defence before they are punished. That is why police officers are trained to use a minimum of physical force.

We noticed that this sense of proportion is missing from the bill. In self-defence cases, the law provides a framework for the use of violence in response to a violent assault. This bill does not have that. I would like an explanation. How will such reactions be dealt with?

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10:35 a.m.

Conservative

Harold Albrecht Kitchener—Conestoga, ON

Madam Speaker, I did highlight in my speech that the person making the arrest would need to consider that carefully in terms of the risk and the potential for further harm. Obviously, we do not want the situation to escalate. It is important that we send out that message.

I do not serve on the justice committee but I have faith that when the bill is referred to it for further study, if there are areas like that which need to be further clarified or possibly adjusted, I am convinced that those changes will come back.

When deciding whether to make a citizen's arrest, the person needs to be aware of the law and consider his or her safety and the safety of others. The person needs to report that information to the police, which is usually the best course of action instead of taking action on his or her own, and ensure that the suspect is correctly identified as well as the suspect's criminal conduct.

Citizen's Arrest and Self-defence Act
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10:35 a.m.

Liberal

Kevin Lamoureux Winnipeg North, MB

Madam Speaker, I am somewhat encouraged by the member's comments. He gave the impression that the government would be open to having amendments.

I want to send a message directly to the Prime Minister. People are concerned about crime and safety in their communities. They expect that legislation will have a direct impact on preventing crimes. There is a great sense of disappointment in terms of Bill C-10 as an example, which has the bigger jails mentality which is being rejected in the American states that were big advocates for it at one point in time. We brought in amendments to that bill and those amendments were crushed at committee. With the legislation before us, we already get the sense that some changes will be needed.

Is the government prepared to entertain genuine amendments brought forward by the Liberal Party or the New Democratic Party that could strengthen Bill C-26? Is the government open to receiving and approving amendments on merit?