House of Commons Hansard #140 of the 40th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was arrest.

Topics

Citizen's Arrest and Self-defence Act
Government Orders

5:05 p.m.

Conservative

Steven Fletcher Charleswood—St. James—Assiniboia, MB

Mr. Speaker, I rise on a point of order. I have listened to the member for quite some time now. I question the relevancy of his comments. We are supposed to be talking about Bill C-60. He is talking about things that are not related.

Citizen's Arrest and Self-defence Act
Government Orders

5:05 p.m.

Conservative

The Deputy Speaker Andrew Scheer

I would urge the member to be mindful of the subject matter of Bill C-60. He has about a minute left, so perhaps he could bring his remarks back to the subject matter of the bill.

Citizen's Arrest and Self-defence Act
Government Orders

5:05 p.m.

NDP

Bruce Hyer Thunder Bay—Superior North, ON

Mr. Speaker, it is clear to me and clear to most, other than the government, that any way we can help small businesses helps to offset the many other liabilities that have been placed upon them by the government.

We should not be burdening our small businesses with unfair taxes, exorbitant fees, mountains of paperwork and the inability to deal with crime that affects their business.

I urge all members in the House to support our small business people by giving them another important tool to protect their property and their businesses.

Citizen's Arrest and Self-defence Act
Government Orders

5:05 p.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Mr. Speaker, I listened to the entire speech of my friend and his laudable words about small, medium and larger enterprises. I know from his background as an evolutionary biologist that we were all hoping that the remarks would evolve into commentary about Bill C-60.

I do not want to take too much of his time in asking my question, so what does he think about Bill C-60, with respect to self-defence and a citizen's arrest? Does he think it goes too far as drafted? Is it beyond what his colleague from Trinity—Spadina had suggested, or is it the right fit ?

I will give him all the time to evolve an answer on that one.

Citizen's Arrest and Self-defence Act
Government Orders

5:05 p.m.

NDP

Bruce Hyer Thunder Bay—Superior North, ON

Mr. Speaker, as an evolutionary biologist I also know that evolution did not all occur in the past; it is an ongoing process. It is happening today, it is happening this afternoon and it will continue to happen as long as there is life on earth.

The portions of this bill that were drafted by the hon. member for Trinity—Spadina are just right. I am still looking at the rest of the bill and thinking about the important balance between the rights of citizens, the rights of small business people and how important it is to make sure that those rights are not exceeded and that we do not stray into areas that are dangerous for them or society.

Citizen's Arrest and Self-defence Act
Government Orders

5:05 p.m.

Charleswood—St. James—Assiniboia
Manitoba

Conservative

Steven Fletcher Minister of State (Democratic Reform)

Mr. Speaker, as an evolutionary biologist I am surprised that it has taken the member so long to figure out that crime is bad and bad people need to be arrested and that good people need to conduct their affairs conducive to the Canadian way of life. Bad people go to jail and good people help keep the bad people in jail.

I wonder if the member's evolution as a member of Parliament coincides with the advanced thoughts of his constituents rather than the de-evolution which often occurs when the NDP talk about hugging a thug rather than keeping the thugs in jail.

Citizen's Arrest and Self-defence Act
Government Orders

5:05 p.m.

NDP

Bruce Hyer Thunder Bay—Superior North, ON

Mr. Speaker, I will give a serious answer to a sarcastic question.

As a biologist I know that much of evolution is not about competition only. It is also about co-operation. Charles Darwin was brilliant but he did not go quite far enough. Social Darwinists throughout a century and now alive and well on that side of the House believe that competition, tooth and claw, and winners and losers make evolution and government work.

People in this party and I believe that more often it is about co-operation between different aspects of society helping everybody who wants help. There are a few who are hopeless, but most of the people in prisons today are going to need our help to become functioning members of society.

The idea that it is only about punishment is unfortunately antediluvian.

Citizen's Arrest and Self-defence Act
Government Orders

5:10 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Mr. Speaker, my hon. colleague from Thunder Bay—Superior North represents not only his constituents well but many of the small businesses that operate in his riding.

I am really quite surprised at the questions from members of both the Liberal Party and the government. They are questioning the bill's relevance to small business.

The bill's genesis was based on a store owner who was defending his property. One of the reasons he was defending his property was that he was so frustrated at the pilfering going on at his store. Why was he concerned about that besides the obvious problems facing his business? He was concerned because small business owners in this country operate on tight margins. If we listened to Mr. Chen speak at committee, which I am sure most members of the House did, they would have heard him say just how marginal his business is and how important it is that he have the ability to protect his property.

To hear the Liberals and the Conservatives just dispense with that and wonder why the bill has anything to do with the precarious situation of small business owners across this country is quite surprising to me. I would like to congratulate my hon. colleague for bringing that important aspect of the bill to the attention of the House.

I would ask him to explain how businesses are operating in his riding and how they may react to this bill before the House.

Citizen's Arrest and Self-defence Act
Government Orders

5:10 p.m.

NDP

Bruce Hyer Thunder Bay—Superior North, ON

Mr. Speaker, the hon. member for Vancouver Kingsway was a successful lawyer for many years. He understands, as a justice here in Canada explained, that the middle class most of the time can no longer afford to go to court and defend themselves and that we see increasingly laws and justice for only the rich and powerful.

It is sad when stockbrokers and bankers steal and defraud. It is sad when politicians sometimes lie and steal and misrepresent the law. The worst these people get is a slap on the wrist or they never are fully prosecuted. Middle-class business people often do not have the resources to properly defend themselves in the courts.

Citizen's Arrest and Self-defence Act
Government Orders

5:10 p.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Mr. Speaker, I am going to use most of my time speaking about Bill C-60. I will open by summarizing what I think the pith and substance of the bill is, namely, two sections of the Criminal Code.

The Criminal Code is a large book that stuck together all kinds of laws in the 1890s after Confederation. The book is that old. It is a compendium that started out with a bunch of general provisions, including regarding cattle stealing, treason and things that we do not see a lot of these days; high treason indeed is not something that we often see. The code has often been amended, however, and appended to it are all of the fact situations that we have lived through as a country and community over our great history.

What we are seeing today is a call for two things, the modernization of the code with respect to two parts of a citizen's life, that of self-defence against an offence and the powers they may have on behalf of the state in arresting or stopping the action of a fellow citizen. Thus the bill deals with what we commonly call self-defence and citizen's arrest. We are looking either to modernize the general provisions that have been around a long time and/or are reacting to a specific fact situation or a number of them that have happened in this country.

We have to step back as parliamentarians and say that it is always good to modernize or harmonize the law, in this case the code and its antiquated language, with respect to what is happening now. There is no question about that. It is not always a good thing to have the Criminal Code or any law chase after a particular fact situation, no matter how compelling the reason is.

Whatever is enacted to react to a specific situation had better go through the prism of the general welfare and good of communities so that it fits every other fact situation in these two important areas of self-defence and citizen's arrest.

The two aspects, self-defence and citizen's arrest, are so different from each another that they are about 400 sections apart in the code. The self-defence provisions, which are among our oldest provisions, are in the 30s and 40s sections of the code, and the so-called citizen's arrest provision is way up in section 494. They are very different. However, they are tied together in this instance here, because what we are really reacting to as parliamentarians are a number of fact situations where specific individuals, shopkeepers or small businessmen or homeowners, have taken action to protect either their property or themselves and, in many instances, detained individuals.

It is extremely important to look at it from the point of view of asking people that if this were to happen to them, would they want that protection in the law. Let us look at both citizens. There is a citizen who did something wrong by taking goods from a shopkeeper, from another citizen, which is wrong. If we were to say there were nothing in the code that covered that theft or public nuisance, I would say we ought to put something in it.

However, let us not look at this in isolation. There are various sections covering these. If there is theft, nuisance, harassment, racist acts or violent acts, these are now covered by the Criminal Code. Let us be clear about that. There are provisions that cover the fact situations we have all been listening to and talking about today.

The question is, in the absence of action by the state, should a person be able to stop or prevent the action as it affects his or her personal safety or property?

Again, those sections are now in the code. They do allow citizens to take the law, as we say quite frequently and pejoratively, into their own hands. The Criminal Code now provides for that. Anyone who says there are no provisions in the code for a person to apprehend and stop another citizen from doing something is not telling the whole truth. Those provisions exist.

The issue is how far should those powers go.

This is a delegation of a state power. The state has the right, and the obligation in some cases, to arrest an individual who is breaking the law. In the section in the 490s, as I mentioned, about citizen's arrest, a citizen who is not a peace officer can also undertake that task that has not been performed by a peace officer.

We would expect, therefore, that if that were to be the case, it would have to be done with great care, greater care than by a peace officer, who also has to provide reasonable grounds for arresting someone and to abide by all the laws, including our Charter of Rights and Freedoms. The onus is even higher on someone who takes the citizen's arrest route to protecting him or herself, or property.

What we are trying to do here is have a debate as to whether the law as it sits is adequate, or whether we need to expand that law so greatly that judges and police officers would even have some doubts as to whether it would lead to increased vigilantism and the taking of the law into one's own hands.

I do not think there is anyone on any side of the House who is going to say that this is a simple question. It is a question of degree. The degree to which someone takes the law into their own hands on behalf of the state to protect themselves or their property is not a simple question; it is a metered question, a question that depends very much on the facts.

There was a saying in my days of reading the law that cases do not stand for grand propositions but turn neatly on their facts. That is really what we are talking about here. In the case of a shopkeeper in Toronto who was terrorized and humiliated and who had seen his livelihood, and perhaps his own personal safety, put in peril on many occasions, he decided that he knew who the perpetrator was and that he would apprehend the perpetrator after the fact.

What we are finding here is that if that action had been taken at the time of the incident, he would not have been charged with unlawful confinement. It is academic, but he probably would have had every right under the section as it now exists to take his citizen's arrest role seriously and have it ratified by police officers, prosecutors and the judges, if it have ever gone that far.

When this case really first came up, I knew many members of Parliament, and not just from the greater Toronto area and all parties, who felt very badly that this shopkeeper who had merely been defending his security had been charged. I do not think there is a person who did not feel for that citizen of Canada.

The question at that time seemed simple, I suppose, to me. I thought that at some point, on the volition of the government or that of the opposition or someone else's, we would change the Criminal Code, as I mentioned in my first remarks, so that it would evolve into a modern document. I thought that we would respond to this by suggesting that a reasonable time could elapse from the time of the offence to the time of the apprehension and that we would provide not just that defence but also the ability to apprehend someone under the citizen's arrest provision. I really thought that was maybe all we would be facing with respect to this whole area.

Let us remember that this could not have been a burning issue for the government before that incident in Toronto. Let us recall, as we do profoundly on this side, that the government has been in power for over five years and has had multiple opportunities to bring forward justice legislation. It has brought forward many justice bills that it has killed itself. At no time until Bill C-60, some five years after coming into power on a law and order agenda, a putative or Pyrrhic law and order agenda, did the government do anything with respect to these two issues in the code. It did nothing. These were not burning issues.

From year one to year five of a mandate, there is a fact situation that all members of Parliament react to in a positive way. That is, they want to help, and the Conservatives came forward with Bill C-60. However, the bill does not make that little change to the code that would fit the fact situation and make the criminal law more modern and responsive. The bill perhaps goes too far, which is the argument being made as bill moves along to committee.

I say this because the Prime Minister visited Chinatown in Toronto, as reported in The Toronto Star, where he said that previous governments had refrained from stiffening the law because:

they [had] wanted to avoid vigilantism, which is a genuine threat to the rule of law.

However, he added that many Canadians believed that “the right balance [had] been lost in the justice system“ and that there was a sense that criminals were protected at the expense of victims.

I had my researcher look back to see if there were any quotes specifically on this aspect of vigilantism and self-defence and the provisions for citizen's arrest. However, there had been no comments made by the Prime Minister or his justice minister on reforming this law, until this fact occurred.

So we have a Prime Minister who is commenting on previous governments. I would say that the indictment is against the Prime Minister and his various justice ministers who, for five years, have done nothing about this problem, which they seem to think existed for some time. It is a bit misleading for the Prime Minister to say that in a political scene, of course. However, he also wanted to make the police feel secure by saying at that time that the:

—police are the first line of protection against crime—

—which everyone would agree with—

[And that] Police officers will continue to have the responsibility to preserve and maintain public peace as Canada’s first and foremost criminal law enforcement body.

That is fine, but what this act would go ahead and do is perhaps to give people the view that as citizens they are now going to have more powers to prevent wrongdoing as they see it on their property. This is not me saying this, but the deputy chief of the Halifax Regional Police service, not that of a minor, inconsequential backwoods or half-professional force but one of the best police forces in Canada. The deputy chief of the Halifax Regional Police said of the law as it is that:

It doesn’t give any great power of citizens to go out and grab people on the street.

He said that as part of a round table discussion with the Minister of Justice at the time. Throughout the article by the Canadian Press reporting what he said, he was very cautious in suggesting that any accretions to public arrest powers should be exercised very conservatively, which is not a word that I use very often. He said that these were not matters that people should engage in without some caution. He said that the law enforcement agencies had enough of a challenge in teaching experienced officers how to interpret the law, and wondered if it meant now that they would have to go out and give citizens courses on how to perform a citizen's arrest.

Experts outside the government and outside of Parliament have also recognized that the rules around self-defence, the extension of citizen's arrest, tell us that if someone performs an action in reaction to an assault or an invasion or perceived invasion or threat to personal property, he or she might act in a physically, emotionally, or other harmful way to another person.

The person would then have to have a defence to not be charged or convicted, and that is generally in those provisions that I mentioned in the low 30s and 40s of the Criminal Code on self-defence.

The idea that one could tinker with self-defence on a situational basis is rather appalling. The police officers who participate in round tables do not come to those round tables with written amendments to the laws that the government then puts up on the television screen the next day after consulting with Department of Justice lawyers.

I heard today at committee that a number of provincial prosecutors who were talking about amendments to a bill were not consulted on the bill as presented. There is something wrong when ministers of justice and prime ministers do not consult police officers and crown prosecutors when amending legislation.

We have had experts from the police and prosecutorial communities say that because each case is unique with widely diverse and sometimes contradictory evidence, no broad policy statement is intended with respect to the use of a firearm in the defence of one's home, for instance. This was in response to a situation where certain charges were dropped against a person who was defending his home. This tells us that these are very complex issues.

While the government has put forth a bill that seemingly reacts to a very small set of circumstances, it has in fact opened up a Pandora's box that must be studied very vigilantly and diligently at committee to make sure that the box is not too wide open.

As I said, everyone has sympathy for the shopkeeper in Toronto. This is one of those issues that unifies all parties. I heard the NDP speak eloquently about the situation, as have the Liberal Party and the Conservative Party. However, instead of bringing a bouquet, the Conservatives bring an entire flower garden to the issue. It is confusing. Are we just responding to a particular set of circumstances for which minor amendments to the code would suffice, or are the Conservatives trying to open up a very dangerous Pandora's box that might lead certain people to believe that the law of Canada has changed?

I saw the Prime Minister on television for the usual 6.8 seconds. He said that we were allowed to take that law, and we do not really need the charter, but if someone goes across the corner of our property with a Ski-Doo, we can defend that.

This is not an urban or rural issue. It is not a male or female issue. It is not an issue that divides on the basis of race, religion, or in what part of the country one lives. It is the Criminal Code of Canada and it has to apply in every fact circumstance.

The good people of Grand Manan Island in my province of New Brunswick had a problem several years ago. People from the mainland were going there and selling drugs to their young people. They frequented or lived in a house which the community felt was the centre of this activity. It is alleged that the people got together as a community and burned the house down and ran those people off the island.

As a father of three young children and a former mayor of a city, I understand local politics. I understand about protecting the community. On one level we would say, good for them that they cleaned up the community. However, we might recoil and think that if an illegal activity was going on, where were the police? Why were the police not able to do the job that should been done?

We might ask the question of the police and they might say that they are severely under-resourced, that the troops the RCMP in rural New Brunswick were supposed to get did not come, that the resources they are supposed to have are not there and it is a rural and remote community and they just cannot enforce the laws that are on the books. We would have an understanding of that.

However, to open up the law to let people burn other people's houses down is not necessarily a solution. In the trial sentencing, if there was wide open judicial discretion in this case, a judge might take into consideration the volition of the community and, while saying it was wrong, be a little merciful on the sentence. In fact, that is what happened in my province and it showed that the system worked. It is under-resourced, but it works.

However, not all of this law is good law and we will take a good look at it at committee. I want to commend those who spoke in favour of the good provisions that helped the store owner in Toronto.

Citizen's Arrest and Self-defence Act
Government Orders

5:30 p.m.

Liberal

Rodger Cuzner Cape Breton—Canso, NS

Mr. Speaker, throughout his entire speech, my colleague did not mention a single word about small business in Canada, in contrast to the speech that was delivered earlier by a member of the NDP.

If we proceed with this, is there a greater risk of putting citizens in harm's way? We have highly trained police forces. In some of the police shows on television, we see police officers going after somebody who is totally enraged. The person may be on drugs or in an unsettled mental state for whatever reason. They are very intense situations. Are we placing citizens at risk if we proceed with this legislation?

Citizen's Arrest and Self-defence Act
Government Orders

5:30 p.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Mr. Speaker, in fact, I did mention small businesses and shopkeepers. I just did not spend 20 minutes on that sector of the economy and I apologize because I know my friend wanted to hear more on that.

His principal point is whether this is opening a Pandora's box where vigilantism might be encouraged. As drafted, let us hear what the experts, police, prosecutors, professors who study this area of the law, and victims have to say on this. Let us hear from victims whose loved ones have been killed mistakenly, whether by police officers or private citizens who took the law into their own hands. Let us hear from those victims.

The government is all about victims. Let us hear from all stakeholders on this issue and decide whether this is going too far for public political purposes or whether there can be a balance achieved with respect to righting and modernizing some of the code provisions that did not protect the storekeeper in metro Toronto.

Citizen's Arrest and Self-defence Act
Government Orders

5:35 p.m.

Charleswood—St. James—Assiniboia
Manitoba

Conservative

Steven Fletcher Minister of State (Democratic Reform)

Mr. Speaker, I would like to thank the member for actually speaking to the bill. That helps with the debate.

I wonder if the member could comment on the situation that led to the introduction of this bill. The shopkeeper ended up being re-victimized when, after being robbed, the police charged him. That is double victimization. The robber got off. That is ridiculous.

I wonder if the member could at least agree that the person who does the crime should do the time and the people using common sense and good judgment to apprehend the criminal should not be penalized for that.

I wonder if the member could at least agree that the thrust of the bill is not to punish victims of the original crime but to keep the bad guys away from the citizenry.

Citizen's Arrest and Self-defence Act
Government Orders

March 7th, 2011 / 5:35 p.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Mr. Speaker, there is a very specific amendment to the citizen's arrest portion of the code which would basically correct what was wrong in this fact situation.

Yes, it is wrong that the person who did the crime did not do the time. He was let off because he was unlawfully confined in that Mr. Chen allegedly confined him after the event occurred.

As we see in the government bill, clause 3 would amend subsection 494(2) to add very important words to say that the owner or a person in lawful possession of property may arrest a person if “they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest”.

That is the specific fact situation that would have assisted in the case of Mr. Chen. I say bravo on one section of five pages and we will take a look at the rest.

Citizen's Arrest and Self-defence Act
Government Orders

5:35 p.m.

NDP

Nathan Cullen Skeena—Bulkley Valley, BC

Mr. Speaker, I listened with great interest to my colleague.

When we look at the aspect of citizen's arrest, one of the problems we have seen with the law is the time limit component, which one part of the bill deals with quite explicitly.

From the member's speech and others from the Liberals, the Bloc and certainly from the New Democrats, because it was the member for Trinity—Spadina who came up with the suggestion, and the member for Windsor—Tecumseh, who will be speaking soon, it seems there is agreement.

The idea was to extend the time allowed for someone to make a citizen's arrest, so that if the alleged theft happened at two o'clock and the person missed the offender right at that moment, at three, four or five o'clock the person would be able to make that citizen's arrest if the person was not able to secure some support from the police. That is the piece where we seem to have agreement from the other parties, and obviously from the Conservatives, because they put it in the bill, although they took it from the New Democrats which is fine.

Can we not simply fast-track that element of the bill that does not seem to require a great deal of study or hearing of witnesses? We could then study the other two parts that have more nuance on how they get applied. Would that be something the Liberals would support? Since the Liberals are clearly in support of the case of Mr. Chen and others like that around the country, a little more permission on the time aspect would be supported by all members in the House and we could get this bill done even before the budget is seen by this place.