House of Commons Hansard #139 of the 40th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was arrest.

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The House resumed from March 2 consideration of the motion that Bill C-55, An Act to amend the Canadian Forces Members and Veterans Re-establishment and Compensation Act and the Pension Act, be read the second time and referred to a committee.

Enhanced New Veterans Charter Act
Government Orders

10:05 a.m.

Liberal

The Speaker Peter Milliken

Pursuant to order made on Wednesday, March 2, Bill C-55, An Act to amend the Canadian Forces Members and Veterans Re-establishment and Compensation Act and the Pension Act, is deemed read a second time and referred to a committee.

Accordingly, the bill stands referred to the Standing Committee on Veterans Affairs.

(Motion agreed to, bill read the second time and referred to a committee)

Citizen's Arrest and Self-defence Act
Government Orders

March 4th, 2011 / 10:05 a.m.

Niagara Falls
Ontario

Conservative

Rob Nicholson Minister of Justice and Attorney General of Canada

moved that Bill C-60, 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.

Mr. Speaker, I am excited to get going on Bill C-60, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Bill C-60 represents a responsible expansion of a citizen's power of arrest as well as the simplification of the self-defence and defence of property provisions in the Criminal Code.

I want to thank the initiatives of a number of people and one of them is certainly the member for Mississauga—Erindale who is also my parliamentary secretary. He has been a champion of the reform in this law. I am pleased to join with my colleague, the member for Bruce—Grey—Owen Sound. I thank him and my colleagues who are in the House with me. They have been very supportive of our justice legislation.

Mr. Speaker, I can tell you that all Canadians are grateful for all the support that you have given us on these bills.

The bill before us today is balanced and necessary. In describing the particular amendments contained in this bill, the bill will focus on three main areas: first, what the law currently provides for; second, the policy rationale for reform; and third, most important for statutory interpretation purposes, the legislative intent behind the elements of the reforms.

On this last point, it is crucial for colleagues to be reminded that the debate in this place and the other provides guidance to our courts in finding the legislative intent of the laws we pass and is often cited by our courts in coming to a decision.

I will first deal with citizen's arrest reforms, followed by the defence of property and then self-defence.

With regard to citizen's arrest, it is important to recall that an arrest consists of the actual seizure or touching of a person's body with a view to detention. The pronouncing of words alone can constitute an arrest if the person submits to the request. A power of arrest is found in a range of federal and provincial law but for our purposes we are focused on the power that exists in the Criminal Code.

As members can imagine, there are substantial differences between the power of police and that of a citizen to make an arrest under the Criminal Code.

Currently, under section 495, a peace officer may arrest without a warrant any person whom he or she finds committing a criminal offence, as well as any person whom he or she believes, on reasonable grounds, has committed or is about to commit an indictable offence.

What the courts have told us is that for an arrest to be valid on the basis of reasonable grounds, the arresting officer must personally believe that he or she possesses the required grounds to arrest, and those grounds must be objectively established in the sense that a reasonable person standing in the shoes of the officer would believe that they are reasonable and probable grounds to make that arrest.

In comparison, currently under section 494 of the Criminal Code, the private citizen may arrest those found committing indictable offences, those being pursued by others who have authority to arrest and those committing criminal offences in relation to property.

It is important to note that there is a legal duty under section 494 to deliver an arrested person to the police forthwith, which has been interpreted by the courts to mean as soon as reasonably practical under all the circumstances.

As members can see, there is a clear distinction between the power of arrest for the police and the power given to citizens. There are good reasons for these differences. The focus of Bill C-60 relates to the power of arrest of persons found committing a criminal offence on or in relation to property.

In this regard, the bill would expand 494(2) of the Criminal Code to permit a property owner or a person authorized by the property owner to arrest a person if he or she finds the person committing a criminal offence on or in relation to his or her property, not just at the time when the offence is being committed, which is the current law, but also within a reasonable time after the offence is committed.

It is essential to ensure that the proper balance is maintained between citizen involvement in law enforcement and the role of the police as our primary law enforcers.

To this end, the new measures will include the requirement that before an arrest can be made at some time after the offence is committed, which is the expansion the bill provides for, the arresting person must believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest instead.

The intention behind this last requirement is to ensure that citizens use this expanded power of arrest in cases of urgency. Citizens must turn their mind to whether the police are able to make the arrest, which is a far preferable circumstance. However, if people reasonably believe that the police will not be able to respond in time and make the arrest, property owners would be authorized to do it themselves.

The courts are familiar and comfortable with assessing the reasonableness of beliefs and would consider each case on its merits. In practical terms, the court may choose to look at such factors as the urgency of the situation, the safety of the people involved and the location of the incident, whether adequate information to identify the suspect was available and perhaps even the past conduct of the suspect.

In a nutshell, what is the change in the law? I would summarize the essence of the reform in the following way. Under the current law, if people find someone committing a criminal offence, they are only allowed to arrest him or her at that time. Under the proposed change, the arrest can take place later, within a reasonable time of finding the person committing the offence, as long as there are reasonable grounds to believe a police officer cannot make the arrest.

Members may ask what a reasonable period of time is. The phrase is not defined in the bill. The intention behind the phrase is to allow the courts, on a case by case basis, as they have done in so many instances, to examine the facts and circumstances and to make a determination on whether the time was reasonable in that particular case. The courts would likely turn to such factors as the length of delay, the conduct of the suspect and the conduct of the arrester, among other things. Imposing a rigid time limit on an arrest, for example an authority arrest within 12 hours would not be sound policy. The law must provide flexibility, but at the same time, build in safeguards, as Bill C-60 does.

Some may argue that this reform encourages vigilantism. I would completely disagree with that. The bill requires that a person witnesses an offence being committed and provides a degree of flexibility in terms of when an arrest can be effected for that offence. The bill does not change the amount of force that can be used in making an arrest. In short, people must continue to act responsibly.

This reform is being advanced because we have been hearing clearly from Canadians that limitations on citizen's arrests require change. There have been well publicized cases of individuals being charged and prosecuted for citizen's arrests that occurred shortly after an offence was witnessed. The government's goal is, therefore, to provide a balanced extension of the period of time to make an arrest.

Finally, for greater certainty, the reforms specify that the existing requirements in relation to the use of force in effecting arrests, which are provided for under section 25 of the Criminal Code, apply to citizen's arrests. I think that is only reasonable. There is no change to the rules regarding how much force can be used to make a citizen's arrest. An individual who makes a citizen's arrest is, if he or she acts on reasonable grounds, justified in using as much force as necessary for that purpose.

It is important to highlight that a person making an arrest is never justified in using force intended or likely to cause death or grievous bodily harm unless he or she believes on reasonable grounds that it is necessary for self-preservation or for anyone under his or her protection from death or grievous bodily harm.

These legal standards have been in place for a long time and continue to reflect appropriate policy today. This reform and our discussions of it in this place give us an opportunity to speak directly to Canadians. In this regard, I would like to say that citizen's arrests made without careful consideration of the risk factors may have serious unintended physical consequences, as well as legal consequences for those involved.

When deciding if a citizen's arrest is appropriate, people should consider whether a peace officer is available to intervene, whether their personal safety or that of others would be compromised by attempting the arrest, whether they have reasonable belief regarding the suspect's criminal conduct and identity, and whether they can turn over the suspect to the police without delay once an arrest is made.

In developing these citizen's arrest reforms, we consider a number of options. We examine private members' bills currently before this place as well as the laws of other jurisdictions and certainly the representations that are made to me and to the government on this issue. I submit that we have taken the elements of all these efforts and have developed a proposal which makes sense to Canadians.

I would now like to turn the defence of property contained in the bill. The government decided to couple reform with the defence of property with citizen's arrest reforms because there is a logical and factual connection between the two.

Consider the example of a property owner who sees a theft taking place on his or her property. In this situation, he or she could attempt a citizen's arrest if the desire was to capture the thief so he or she could be charged and prosecuted. However, the person could also desire to get the suspected intruder off the property, without intending to make the arrest. In the latter case, the use of force by the property owner could be justified by a claim of defence of property.

The defence of property, like any defence, is a claim made by a person who is alleged to have committed a criminal offence and who asserts that he or she should not be held responsible for that alleged offence because of some countervailing policy. Defending one's property from a threat is just the kind of circumstance that might justify otherwise criminal conduct, such as the use of force against a would-be thief.

Our Criminal Code, since its inception in 1892, provided a defence for the use of force to protect one's possession of property. However, one of the unfortunate realities about the defence is the way it is worded in the code. There are five separate provisions, sections 38 to 42, of the code that could potentially apply to a defence of property circumstance. The provisions create a distinct defence depending on the precise circumstances, differentiating between types of property and the hierarchy of claims to the property as between the possessor and the person seeking to interfere with the property. They are extremely detailed and, in many cases, overlap with each other. This approach to the Criminal Code is well over a century old and does not meet the needs of Canadians today.

The idea behind the defence of property is simple. A person should not be held criminally responsible for the reasonable use of force to protect property in his or her possession from being taken, destroyed, or trespassed upon.

We cannot find many of these words in the law itself. However, we can find many other words which, rather than help to set out this idea, describe narrow subsets of it. This means that Canadians, including police, prosecutors, judges and ultimately juries, must consider too many words and words which overlap with each other to arrive at what, in essence, is a rather simple idea.

Bill C-60 will demystify and clarify these waters.

The defence of property reforms contained in the bill would replace five separate provisions with one simplified provision that captures the essence of the defence, while providing the same level of protection as the existing law and with some modest enhancements.

There are some essential property-related concepts that must be retained, such as the idea of peaceable possession of property. Because different people can have independent claims to property and because the defence must, to some degree, incorporate notions borrowed from property law, the defence must have some technical components.

One enhancement is that a defence could be raised as a defence to any type of act that otherwise would be criminal. The law justifies the use of force in defence of property, which is basically assaultive behaviour against the property trespasser.

In recognition of the fact that people might engage in other forms of otherwise criminal activity to defend their property, such as discharging a weapon into the air to scare away the trespassers, Bill C-60 would allow the defence to apply so long as the actions are reasonable in the circumstances.

Finally, the reform on defence would clearly deny its application in the cases of lawful police action, such as the execution of a search warrant.

The new law of property, like the current law, does not put any express limits on what can be done to defend property. However, it is absolutely essential to note that courts have unequivocally rejected the use of intentional deadly force in defence of property alone and have stated many times that deadly force cannot ever be justified where human life is in jeopardy.

Some property-related conflicts do pose a risk to human life, such as home invasions, and deadly force may be justified in these circumstances.

This brings me to the law of self-defence.

Like the defence of property, the self-defence provisions were enacted in Canada's first Criminal Code in 1892 and have remained largely unchanged since that time. Like the defence of property, the law governing self-defence is set out over several separate provisions that describe situation-specific defences which overlap or conflict with each other, depending on the facts of a particular case.

I would submit that this complexity in the law cannot remain, especially when we are delineating the legal tests to be used for people using force in self-defence.

The complexity of the law makes it extremely difficult for the police to assess whether charges should be laid, causes trial counsel to have to devote time and energy to making arguments about which version of the defence should apply and poses challenges for judges on instructing juries how to apply the law. We can only imagine what juries think when the law is read to them.

Described in a general way, the proposed reforms would replace all of the existing defences with a single, general test for the defence of the person. In essence, people would be protected from criminal responsibility if they reasonably believe that they or another person are being threatened with force and they act reasonably for the purpose of defending themselves or another person from that force.

The reforms would also include a list of factors the court could consider in determining whether the person's actions were reasonable, such as a pre-existing relationship between the parties, including any history of violence, and the proportionality between the harm threatened and the response.

The list of factors codifies well-recognized features of many self-defence situations and will help guide judges and juries in applying the new law.

Consistent with the present law and for sound policy reasons, the defence would not be available where the person would be responding to a peace officer or other person who would be acting lawfully for a law enforcement purpose, such as when a person is arrested.

I am pleased to report that the proposed reforms on self-defence are consistent with those agreed to in 2009 by federal, provincial and territorial ministers responsible for justice based on the collective work of their officials. These reforms also respond to calls for simplification by many criminal justice stakeholders.

The citizen's arrest reforms extend the time in which an arrest can be made for an offence committed on or in relation to property. There is a real need in doing so to keep a clear distinction between the powers of the police and those of citizens. Police officers are rightly cloaked in the duty to preserve and maintain the public peace. They are our first and foremost criminal law enforcement body and with this reform, they continue to be so.

With regard to the defence reforms, at a practical level, very few Canadians would be able to read the many existing provisions and understand what the law allows. The law should be accessible to Canadians, and these reforms will help accomplish that goal.

Bill C-60 represents a responsible expansion of the citizen's power of arrest as well as a simplification of the law relating to the defence of persons and property. I urge all members to support this law and, in doing so, support the calls for reform made by law-abiding Canadians.

Citizen's Arrest and Self-defence Act
Government Orders

10:20 a.m.

Liberal

Keith Martin Esquimalt—Juan de Fuca, BC

Mr. Speaker, I have a few questions.

I know where the minister is coming from on this, but the message he is giving to the public on how he is going to protect citizens in a number of circumstances perplexes me. The first is protecting the citizen who is engaging in a false arrest. The second is protecting the person who is being falsely arrested, Does he not think he is encouraging an environment for vigilantism? Also, how does the person engaging in the arrest of a citizen know what reasonable force is?

The minister mentioned that a person could do this when a police officer was not around. However, does this not run counter to what the police are telling individuals, that they should be very careful in trying to engage in an arrest when individuals possibly engaging in criminal activity could use force and hurt the person trying to intervene? We have seen many cases where this has happened.

I would be very interested to learn how the minister is going to deal with those issues under those circumstances.

Citizen's Arrest and Self-defence Act
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10:25 a.m.

Conservative

Rob Nicholson Niagara Falls, ON

First, Mr. Speaker, in these cases we are talking about victims. It would better protect victims and explain what they could or could not do. The legislation is all about that.

I am not alone on this. The member's colleague who sits diagonally to him in the House of Commons was among those who said that we had to clarify and expand the provisions with respect to citizen's arrest. My colleague, the member for Mississauga—Erindale, and the NDP have indicated that as well. There is widespread support for clarifying the rules and the laws as they relate to victims of crime. That is who we are talking about. This has been a consistent theme and priority for this government.

Again, the bill has set out as it does and as the laws have interpreted over the years that people must act responsibly. For instance, individuals are not entitled to use deadly force in a citizen's arrest unless their own safety comes into question. It seems to me that when we draw up these laws, we have to look at them in the light of protecting individuals and their right to protect their property or, as in the other provisions of the bill, to protect themselves.

No, it does not encourage vigilantism. The bill is very clear that in the existing provisions of the Criminal Code one makes these arrests when it is not practical or reasonable to have a peace officer do it. That is the first line of protection and that is what we encourage people to do. However, we know of situations where it is not reasonable or where police officers are not available and people should still have the right to protect their property. That is exactly what this bill would do.

Citizen's Arrest and Self-defence Act
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10:25 a.m.

Bloc

Mario Laframboise Argenteuil—Papineau—Mirabel, QC

Mr. Speaker, the Bloc Québécois would like to try to follow and understand the government. My question will be simple. In his speech, the minister spoke about self-defence, defence of property and the use of force. Could a citizen who uses force to defend his property—not himself—go so far as to do the unspeakable and kill a human being? Does the minister believe that a citizen could use such force to protect his property that he could kill another human being?

Citizen's Arrest and Self-defence Act
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10:25 a.m.

Conservative

Rob Nicholson Niagara Falls, ON

Mr. Speaker, I made it very clear that if people are protecting their property, they are not authorized to start using deadly force. That is very clear under the present law. With respect to protecting property, all the law does is clarify the provisions.

As I indicated, there are nine provisions in the existing Criminal Code which cover the protection of property and self-defence. They are very confusing. They were included in the Criminal Code in 1892, and I am told these provisions go back to colonial times before 1867. It has been a long time since they have been updated.

I have been told by law enforcement agencies that when people assert their right to protect themselves or their property, it is confusing what particular provision applies when they look at the Criminal Code. It is appropriate at this time for us to update the laws. As I indicated, in my discussions almost two years ago now with federal, provincial and territorial justice ministers, they too recognize that in this area it was time to start consolidating, simplifying and clarifying the law.

The Bloc members should think about the victims in these situations. I appreciate we need to have a very balanced approach. Think about individuals who are trying to protect their property and themselves. In no way does the existing law do what the hon. member seems to be suggesting. By clarifying the laws with respect to citizen's arrest, the defence of property and self-defence, we have not changed that.

Citizen's Arrest and Self-defence Act
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10:30 a.m.

NDP

Nathan Cullen Skeena—Bulkley Valley, BC

Mr. Speaker, I listened with great interest to the Minister of Justice on this bill. Our member for Trinity—Spadina has obviously been out front and centre on this and introduced a bill just prior to this that looks, in some parts, similar to what was introduced today by the minister.

I think the principle here is that we never want to create a situation where a victim is turned into an offender under what we would call reasonable grounds, that is, where someone who is attempting to defend themselves, their family, or their property, becomes a criminal themself. The minister did not mention it specifically, but the case of the Lucky Moose is something that has received attention. The prosecution in that case was over-zealous and brought exaggerated charges. A charge of kidnapping was a bit much and clearly out of line with the public's understanding of what the owner of that property was trying to do.

I have a couple of questions for the minister. Here I would say that I think that when this place is at its best, it takes good ideas and we go back and forth and try to understand how to make decent ideas better.

One question is about the education of the public. If we are going to change the way that people can defend themselves or their property and how much further they can they go in doing a citizen's arrest, I think it is incumbent upon the government to make sure that the public clearly understands where its rights have now been extended to. We do not want to have any situation later on where somebody goes too far in the spirit of this bill and causes grievous bodily harm.

If we proposed certain changes to this bill, potentially even hiving off sections of it to fast track, because we are facing an imminent budget, et cetera, would the government be willing to discuss the fast tracking of elements of the bill, on which I think we could find some consensus to move quickly through the process?

Citizen's Arrest and Self-defence Act
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10:30 a.m.

Conservative

Rob Nicholson Niagara Falls, ON

Mr. Speaker, we all have a responsibility with respect to educating the public. Just a couple of weeks ago, I was honoured to be in Toronto with the Prime Minister at the grocery store where the famous incident mentioned by the hon. member occurred. We were right there. This is part of our ongoing efforts to make sure that Canadians know what changes we are bringing about in the Criminal Code and how these changes might affect them. I very much appreciated the Prime Minister being there because when he gets involved with these issues, as he does, Canadians become more aware of them.

Again, we all do our best and, certainly, I see my colleagues in the House being very helpful to me and the government in getting the message out on these issues. I agree with the hon. member and support anything that we can do to bring publicity to all of these criminal law reforms that we are very much in favour of. The meeting with the Prime Minister in Toronto just a couple of weeks ago was an excellent example of getting that message out to the public, and so I thank the hon. member for his suggestion and recommendation.

The hon. member says that we should start splitting up the bill and hiving off sections. This bill is very straightforward. It consolidates the nine sections existing in the Criminal Code with respect to the defence of property and self-defence. It clarifies them. As I say, with respect to a number of those defences, all provincial and territorial justice ministers had recommended a number of these changes in 2009, in my meetings with them.

On the issue of extending the period of time for an individual to arrest someone, I would hope that the hon. member would get up and support all of this bill.

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

Liberal

Marlene Jennings Notre-Dame-de-Grâce—Lachine, QC

Mr. Speaker, I am pleased to participate in the debate on Bill C-60 as official opposition critic.

I managed to hear most of the speech by the Minister of Justice and Attorney General of Canada and I noticed that he was calling for this bill to be fast-tracked through the House. The Liberals agree with quickly sending this bill to committee to be studied.

The bill seeks to amend the Criminal Code to allow private citizens who own or have lawful possession of property to arrest a person whom they find committing a criminal offence, or in relation to that criminal offence on or in relation to that property within a reasonable amount of time. This power of arrest is permitted only in circumstances where there are reasonable grounds to believe that it is not feasible for the person to call in law enforcement to make the arrest.

All of this stems from a very high-profile case, that of a shopkeeper in the Toronto area, David Chen. There was a thief, a repeat offender, a small-time petty thief, who had been arrested and convicted on at least one previous occasion and who had charges of theft pending against him. He was victimizing shopkeepers in Chinatown. This particular shopkeeper had been the victim of a theft by this petty thief, whom the police patrolling the area were well aware of.

On this occasion, the person came into his shop and Mr. Chen effected a citizen's arrest with the assistance of a family member and an employee. When law enforcement actually showed up, Mr. Chen, his family member and his employee were the ones who were arrested and charged. I believe some of the charges brought against Mr. Chen were unlawful, forcible confinement, the use of force, et cetera. That is because under the current provisions of the Criminal Code, a citizen may make an arrest only when a criminal offence is being committed, or has been committed and the alleged criminal is in the process of fleeing, for instance.

However, if a citizen is aware that he or she has been a victim of theft, perhaps destruction of their property, and knows there are reasonable grounds to suspect a specific person and then sees that person at a later time when it is not feasible to call law enforcement, or when law enforcement would not arrive in time before the person flees from the premises or location, that citizen effects an arrest.

Under the current provision, if time has passed and it is the next day, that citizen cannot legally effect a citizen's arrest and cannot use force to restrain the alleged culprit.

Mr. Chen was charged.

A Liberal member called on the government, in the name of all Liberals, to immediately enact provisions to protect citizens in those circumstances. It is unfortunate that the government did not move at that time. That Liberal member tabled a private member's bill that would, in fact, have made those changes and ensured the protection of citizens.

An NDP member, on behalf of the NDP, also called on the government at that time to move to act. When the government did not do so, that NDP member also tabled a private member's bill.

Mr. Chen had to hire legal counsel and appear in court, as did the two other people charged alongside him. He incurred legal fees. He had to take time away from his business. He is a small business owner who has created some employment, including for members of his family and other residents of Canada. He pays taxes to the municipal government, to the provincial government and to the Government of Canada, or should I use the term that the Prime Minister has now instructed government employees to use, the “Harper Government”--

Citizen's Arrest and Self-defence Act
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10:40 a.m.

Liberal

The Speaker Peter Milliken

The hon. member will restrain herself in that respect. She knows it is out of order to use the names of members in the House. Clever as it may be to do that in the chamber, we will avoid that.

Citizen's Arrest and Self-defence Act
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10:40 a.m.

Liberal

Marlene Jennings Notre-Dame-de-Grâce—Lachine, QC

Mr. Speaker, I understand that it is against the rules of the House to use the names of other sitting members, but when a sitting member instructs the employees of the Government of Canada in their public communications to no longer use the term “Government of Canada” but instead to use his family name in conjunction with the word “government”, then it is a little difficult for members of Parliament to properly--

Citizen's Arrest and Self-defence Act
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10:40 a.m.

Liberal

The Speaker Peter Milliken

I will hear the point of order by the hon. member for Bruce—Grey—Owen Sound.

Citizen's Arrest and Self-defence Act
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10:40 a.m.

Conservative

Larry Miller Bruce—Grey—Owen Sound, ON

Mr. Speaker, I rise on a point of order. I think it is common practice, as you usually address, to inform anyone speaking here that he or she should stick to the topic. It is quite clear that the member is not doing that, and I would ask you to please enforce that policy.

Citizen's Arrest and Self-defence Act
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10:40 a.m.

Liberal

The Speaker Peter Milliken

We have gone off the topic in part because I stopped the member from using that name because she was discussing a government announcement or something, as I recall. The hon. member for Notre-Dame-de-Grâce—Lachine, I am sure, is going to return promptly to the bill before us.