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

5:40 p.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Yes and no, Mr. Speaker.

Obviously the Liberals would support those parts that I just read in the previous answer about extending the time to make an arrest within a reasonable time after the offence is committed. If that is what my friend is talking about, that would be good law. That would be an easy amendment.

The no part is, I have been here for only five years and I have been on the justice committee all that time. Even when we make reasonable suggestions to Conservatives, it is the baby with the bathwater scenario with them. The member for Windsor—Tecumseh has been here a lot longer. He has been on this earth a lot longer too. Every time he makes a suggestion, it may be a good one, but the baby goes out with the bathwater because the Conservatives want the whole bill so they can go to the six o'clock news with it. They really do not want to make the incremental changes that would prevent this fact situation from occurring

Citizen's Arrest and Self-defence Act
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5:40 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, the bill is really two bills and probably should not be drafted in this way.

If we deal with the part that it appears all parties agree with, and perhaps picking up where my colleague from Moncton—Riverview—Dieppe finished off, section 494 of the Criminal Code as it is now places restrictions on the use of citizen's arrest. In particular, in the simple reading over the years there have been two conditions where it is not a police officer who does the arrest. The first is the arrest has to occur on or immediately adjacent to the property where the crime occurred and it has to be done contemporaneous with the event.

I think everybody in the House and the vast majority of Canadians know the situation in the Toronto Chen case. The individual was suspected of committing a crime of theft once before. He returned to the property and was confronted by the owner. He fled and then was seen subsequently by the owner and then apprehended, away from the property and clearly not contemporaneous with the potential additional theft that it was suspected he would have perpetuated on that day. The shop owner was subsequently charged.

I have had a great deal of discussion with police officers, including chiefs of police, across the country. Generally there is this sense that they would have found other ways of not charging the shop owner in that case. However, they recognized, as well, that to clarify the Criminal Code, section 494, at this period of time, both because of that case and because of other incidents where police officers and prosecutors had been caught by a strict interpretation of that section, they had to proceed with charges when they would have preferred not to.

As my colleague from British Columbia mentioned earlier, and we have heard repeatedly in the House, our colleague from Trinity—Spadina had proposed some amendments to the section some time ago, shortly after the Chen case became public and notorious. It was to introduce two concepts of reasonableness, a reasonable length of time and with a reasonable apprehension that the person would not be brought into custody and charged because there were no police officers available.

The government has added an additional provision to clarify the issue around the role the owner of property must perform. It is not only that it has to be within a reasonable period of time, but the government has put in specific wording, in addition to the reasonable time test, that the individual citizen who considers making a citizen's arrest must also “believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest”.

We have heard a number of comments in the public, from the legal community and occasionally from a police officer, around vigilantism being fostered or encouraged by this amendment. The very fact that we have put in this criteria that people have to make the apprehension within a reasonable period of time and be under the belief that if they do not make the arrest, there will be no police officer available to make the arrest, the individual will escape responsibility for the alleged criminal act.

The government's proposed amendment to section 494 is very similar to what the NDP had proposed, with that one additional strengthening of it, which we would be in support of and, as we heard today and previous days, the other opposition parties would be in support of that as well. Unfortunately, the bill does not end there and it should have. We should have run this through quite quickly with all party support.

Instead, the government has lumped in a bunch of other amendments, which it so commonly does. It has taken sections 34 to 42 of the Criminal Code and compressed them down into sections, which would now be sections 34 and 35. I am not sure what the government will do with the numbering of the rest of the code because it would shrink by six sections, if my math is correct, if these amendments were to go through.

The government seems to be somehow drawing an analogy of the principles that are contained in section 494 with those in sections 34 to 42, and that does not follow. If we look at the rest of the sections around section 494, they are very much about the authority of police officers to arrest, either with or without warrants, and the role of both the prosecutor and the judiciary in that regard as well.

There are a number of sections, starting at around 492-493, running down through to about section 200, that deal with that issue. Section 494 should properly be there. The concept of citizen's arrest fits in very appropriately there. It is not the same as the provisions in sections 34 to 42.

If I do a quick summary, what is in sections 42 down to 34 are provisions for self-defence of our person, defence of our principal residence, defence of commercial property with regard to trespass and other crimes on those properties and our right to defend our ownership of personal property, from cars to jewellery to furniture to clothing, et cetera.

The sections in that part of the Criminal Code, and it is early on in the Criminal Code, reflect law that has been in the code since it started back in the 1890s in Canada and back to even before we had criminal codes and criminal legislation in England. These would have been fiats from the king when these concepts began to evolve, and they have evolved over hundreds of years, to the point where we have them now encoded in the Criminal Code.

What is being proposed, and I cannot put it any other way, are radical changes to those sections. I have looked at it quite closely over the last few weeks since we first saw the initial draft of the bill. What jumped out at me was some wording that, clearly, the government had taken from interpretations of those sections 34 to 42, which are judicial decisions. Because the language was more modern than what was in the Criminal Code, it thought it would be a good to add it. Unfortunately, it also seems to have left out some very important legal principles, and I say this from the vantage point of both lawyers who prosecute offences and our police and defence lawyers who defend.

I will use as one example the provisions in those sections 34 to 42 with regard to the concept of provocation. I will do it in a three-step process.

If the perpetrator of the provocation is assaulted, that perpetrator is then entitled to self-defend but to a lesser degree because that individual caused the provocation of the assault. There is a sort of quasi-defence there, both to the assault and then the defence of that assault. That concept has evolved and been interpreted by our courts and is quite well understood, not by the average citizen but by lawyers and judges in our criminal courts.

I do not see any reference at all to the concept of justification. This one is certainly more complicated, but it is not the same as provocation. People have reason to believe they can use physical force on other people and similarly they can use perhaps excessive force to repel what is perceived as an assault on either them or their property. That concept does not appear in either of the sections that are purported to replace sections 34 to 42.

Another concept that appears vaguely is the concept of what we used to refer to either as colour of right or claim of right. I feel like I am back at law school. I have instructed at university and I feel I am back doing that same kind of thing. These are very basic legal concepts that are usually taken in the first term of first year law school, but are sometimes repeated in later years if specialty courses are taken in criminal law.

The concept of colour of right or claim of right crops up quite regularly in matrimonial disputes. Someone says that he or she is the registered owner of the property and threatens to throw out someone who has been living at that property as a partner for a lengthy period of time. The person being evicted has a claim of right to stay there. That concept does not appear, at least clearly, in the proposed amendments.

There is a similar type of concept in commercial relationships involving multiple business partners. One person may be the registered owner of the business, with the majority of shares, and the other person may want to come back on the property to remove stuff or whatever. This claim of right allows an individual to go back on to the property. That only appears once in the proposed amendments and it seems to be absent in other areas.

Going back to my first year at law school, I have to wonder if this bill was drafted as we were dealing with the issue of Mr. Chen and his citizen's arrest. These principles should be in the amendments. It may be done in a different way. An argument could be made that the sections are being modernized, brought into the 21st century. I am a strong advocate of the need to bring our Criminal Code into the 21st century because there are all kinds of problems with it.

I do not know if the government was trying to do that. I do have serious doubts, at least in part, that the it did not accomplish that in terms of keeping those principles but modernizing the wording around them. If that is what the government is doing, then I have serious problems with the bill because it did not accomplish this.

On the other hand, there may be another agenda here, and I am not sure what it is other than to move toward a more U.S.-style of what we in law talk about as self-help. Perhaps the agenda is to move more toward that which is allowed much more broadly in the U.S. criminal justice system than it is in Canada, Britain, Australia or New Zealand, countries that have similar jurisdictions both in terms of the way our law developed and the way we deal with the issue of crime and the ability to use self-help to fight crime.

Whether that other political ideological agenda exists is not clear, but there must be concerns that with some of these proposed changes we may in fact go that way.

Due to our support of section 494 and wanting to correct the problem in the Chen situation, I believe most of us will support the bill to go to committee. However, when the bill gets to committee, we will need very clear explanations as to the drafting behind the bill and whether the concepts of provocation, justification and claim of right have been done away with in most cases.

Having set out those parameters and limitations in the bill, it goes without saying that this will be a source of great wealth for lawyers. Both prosecutors and the defence bar will literally spend years reinterpreting the concepts in the bill because the historical principles that applied around the use of self-help appear to have changed so radically. After listening to the speeches from the government, I have determined that we have not had any rational explanation as to why it has made this move. It just does not seem to add up.

It is unfortunate that the government coupled it with the amendments to section 494. It would have been nice to get that as a separate bill. I know my colleague from Trinity—Spadina had offered the government to make it a short separate bill containing a two-paragraph amendment to the existing section 494 to be able to get it through the House rapidly.

As it stands now, once this bill gets to the justice committee it will be backed up behind other bills that are already there. We will need to spend a great deal of time to determine if there are unintended consequences, whether long-standing legal principles will be undermined and, if so, what that would mean to the practice of law in Canada and the right of citizens to defend themselves and their property, whether it be their home or their commercial interests. We will need a great deal of evidence in order to understand that.

As I have indicated, the NDP will be supporting this going to committee because of our support for the amendments to section 494 and the whole concept of making it clear when the power of a citizen's arrest can be used. However, we have very grave concerns about the balance of the bill. That will require a great deal of work at the justice committee in order to understand it.

Citizen's Arrest and Self-defence Act
Government Orders

6 p.m.

Liberal

Joe Volpe Eglinton—Lawrence, ON

Mr. Speaker, I want to take advantage of the fact that my hon. colleague has introduced himself as a former law professor and, therefore, an esteemed person, a knowledgeable person and someone who is aware of the consequences of the law, the intent behind what the laws may say and how the courts may interpret the legislation.

I noted that he wanted his colleague from Trinity—Spadina, in her presentation, to serve as a model for the government.

I want to ask him if he would share with us just what his interpretation was of the court case dealing with Mr. David Chen in Toronto that prompted two opposition members, both from Toronto, to present legislation for the government's consideration.

As I read the decision, the judge interpreted the actions of Mr. Chen to be one continuous activity and therefore interpreted the concept of reasonableness in all of its permutations into one very basic issue and said that it was very reasonable for Mr. Chen to do what he had to do.

I am wondering whether that was the interpretation, in his capacity as a former professor of law, that he came to. Does he agree with Professor Anand and Professor Young who have expounded on this and whether that is the basis for his position that the government should have cut this short, should have focused on what is the very simple crux of the matter and then asked all parties to pass this all in one hearing, one very quick decision? The courts have already ruled on this. Would that be his interpretation as well?

Citizen's Arrest and Self-defence Act
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6 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, one needs to be careful of the factual situation. My colleague is correct about the decision by the court, that it saw this as a continuous event.

In effect, after the original theft, Mr. Chen believed he was able to recognize the thief who was in his shop again acting in a fashion that led Mr. Chen to believe he was at risk of a further theft occurring. The continuous nature of it was not just the original offence and then Mr. Chen identifying the person. It was identifying the thief and being concerned that another theft was about to occur.

When we consider that, it was quite reasonable for the court to say that it was reasonable that when Mr. Chen saw the person a very short time later on the street, this was one continuous event: the original theft, the suspected attempt at another theft and now the apprehension. That is the way the court drew those conclusions.

I need to be blunt. When we look at the rigidity of the wording in section 494 as it is, the court was being very, although I hate to say it, liberal in its interpretation.

Citizen's Arrest and Self-defence Act
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6 p.m.

Liberal

Joe Volpe Eglinton—Lawrence, ON

It's a good word.

Citizen's Arrest and Self-defence Act
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6 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

I want to be very clear that I mean small “l” liberal in its interpretation of the section because a small “c” conservative interpretation of it could have very easily come to a different conclusion.

That brings me to the second part of the member's question, which is the importance of getting this amendment through. The same kind of fact situation could come up, but there then may be a judge applying a rigid conservative interpretation and convicting somebody like Mr. Chen with maybe the facts being slightly different.

Citizen's Arrest and Self-defence Act
Government Orders

6 p.m.

NDP

Don Davies Vancouver Kingsway, BC

Mr. Speaker, I was proud to second Bill C-565 introduced by my hon. colleague from Trinity—Spadina, a bill that would repair the situation when Mr. Chen was arrested for simply detaining someone who had stolen from his store mere hours earlier.

I walked up Victoria Drive in Vancouver Kingsway with my colleague and we visited store owners. We visited flower shops, restaurants and retail outlets of all types and asked store owners in Vancouver Kingsway how they felt about the situation. Every one of them felt that it was completely inappropriate to have a law that would see a store owner charged for simply detaining someone who had stolen from the store owner mere hours earlier.

My hon. colleague's bill, Bill C-565, repaired that situation by expanding the Criminal Code in a very prudent manner, allowing people to arrest make a citizen's arrest, as it is called, within a reasonable time of the commission of an offence.

Does my hon. colleague agree that is an amendment to our law that we really need to make in the House and leave the issues of defence of property and defence of person to further prudent, careful and cautious study as we hear from witnesses before we make amendments to those areas of the law that may actually have far-reaching consequences beyond that which is necessary to solve the Chen situation?

Citizen's Arrest and Self-defence Act
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6:05 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, let me emphasize that it is important to get that through. I have been on the justice committee for over seven years now and up to this point we have not heard from any government witnesses, ministers or officials that there is a crying need to amend those other eight sections of the Criminal Code.

After I saw what was being proposed in the bill, I had the opportunity to spend time with criminal defence lawyers, prosecutors and, more important, police officers and police chiefs. They are all telling me that they do not see any problem. They understand we want the amendment to section 494 because of the Chen case but they are not aware of any problem with sections 34 to 42, the provisions that allow for self-defence of the person or property. There just does not seem to be a crying need for it.

Why the government would have combined them when there is a crying need for amendments to section 494 and why it is moving down that road at all really begs the question. There is no crisis that needs to be addressed. That much is fairly clear.

Citizen's Arrest and Self-defence Act
Government Orders

6:05 p.m.

Liberal

Brian Murphy Moncton—Riverview—Dieppe, NB

Mr. Speaker, my hon. friend did all this talking about the liberal interpretation and about being conservative, but let us talk about a socialist perspective on the defence of property, the means of production, the defence of property amendments that are here.

The Department of Justice memo talks about the bill and says that the defence of property aspects are spread out over a number of sections and they differentiate based on personal property or real property. It seems that the bill attempts to concentrate it and make it coherent.

In the defence of property proposal, does the member think it would give homeowners or property owners more justification to use violence? Is that his interpretation or not?

Citizen's Arrest and Self-defence Act
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6:05 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, I have not come to a conclusion on that. I can see where there is that possible interpretation but it is not at all clear.

As I said in my comments, the whole concept of justification is very poorly treated in these amendments. Therefore, it is really hard to understand what the end result will be. I do not think it is stretching it all, nor fearmongering, that we are looking at unintended consequences because it is drafted so generally as opposed to a number of the specifics that we have in the existing section.

I will add one additional point around the responsibility that we have as citizens to protect ourselves. Our courts have made it quite clear, and this goes back into all sorts of interpretations and decisions from England, that as we develop our society we place police officers in the position of playing this role. The role of the citizen for self-help is always the exception.

I will make one further point. Our courts have made it quite clear that in this situation, for instance, if the person is being arrested, the police officer must give the warnings under the charter, which are the right not to self-incriminate, et cetera. There has been one decision that citizens do not have that responsibility, but it comes back to the point that our courts have been very clear that they want to see the use of self-help as the exception and they want our police officers to be doing the job that they have been mandated to do.

Citizen's Arrest and Self-defence Act
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6:10 p.m.

Conservative

The Deputy Speaker Andrew Scheer

I will just take this opportunity to inform members that we have concluded the first five hours of debate, so now speeches will be 10 minutes and the questions and comments periods will be five minutes.

Resuming debate. The hon. member for Eglinton—Lawrence.

Citizen's Arrest and Self-defence Act
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6:10 p.m.

Liberal

Joe Volpe Eglinton—Lawrence, ON

Mr. Speaker, the bill should be named the David Chen bill, or the we thank David Chen for opening our eyes to the deficiencies of the Criminal Code, section 494, bill or, even more importantly, the why David Chen deserves credit when the Conservatives want to give Canadians none bill.

Why do I say that? Members might think me a little harsh, but David Chen, a legitimate store owner who runs a family business, who minds his own business, who calls in the police whenever there is a problem and there is a problem virtually on a daily basis, and he asks the court system, the justice system to help him make a living in Canada, like so many Canadians, and what happens? One day he sees a thief, someone who has stolen from him in the past, someone who has appeared on his video screen, someone on whom he has called the police on several occasions, someone who has more than 47 convictions for theft. He sees him come back not one-half hour after he has stolen from him.

He seized the thief and held him. He called the police and the police came, but they arrested him. They charged him with a whole slew of charges, including forcible confinement, arrest, kidnapping. Imagine, in a country like Canada where due process is a very important element of our life, the store owner, the defender of his own property, is the one who is charged.

For a government which likes to have these news bite type of titles to its legislation, it does not do that this time. Instead it sends its senior minister, the Minister of Citizenship, Immigration and Multiculturalism, because of course this is an immigration issue. It is not a law issue. It is not a justice issue, it is not a tough-on-crime issue. This is an immigration, citizenship and political issue.

Off the Minister of Citizenship, Immigration and Multiculturalism goes, to demonstrate that the Government of Canada, no, I am sorry; what is its new title? It is not the Government of Canada. It has been personalized. The one individual, the guy who makes all the rules, the guy whose initials are S.H., dispatches his senior minister on a citizenship, immigration and political issue.

On September 27, 2009, and let us keep that date in mind because it is an important date, he says that this is an egregious problem and we are going to change this. I notice that the Parliamentary Secretary to the Minister of Justice accompanied him. He said that this is a real problem and we are going to correct it because this is unjust, untrue and it is not right that a guy who tries to run a family business gets put through a process where he is a victim of somebody else's crime. He is a victim, again. He says that the Conservatives are going to change the law. That was on September 27, 2009. What is the date today? I am not sure if the government members can actually read a calendar, but the last time I looked we were in the month of March in 2011.

The government finally decided to present a piece of legislation. If I seem angry, it is because I am angry for all those citizens who, like David Chen, were looking for the government to do something right. They were looking to the Government of Canada, before it became the S.H. government, but it is all about evolution.

The interesting thing about September 27, 2009 is two things were happening concurrently. There was paranoia on the government benches about the potential of an election and the Minister of Justice was dialoguing with his colleagues, the attorneys general of the various provinces, about precisely what to do in a case like David Chen's, which apparently happens more often than not.

I asked my colleague from Windsor what he thought in his capacity as a former professor of law, about making this particular minor change that would have given direction to everybody. Just a few days ago, the Minister of Justice spoke on the bill and said that they are doing this because the courts pay attention to what Parliament says when they look for direction in law. Then he proceeded to give three, four, five, a million reasons as to why he wanted to consolidate the concept of reasonableness in law. However, the Minister of Justice knew in 2009 when David Chen was first ordered to appear at court that the law was going to change because everyone agreed it needed to be changed. What did he do? He allowed David Chen to use his own resources, at his own expense and stress in order to test that concept in court, to see what the courts would do. They did it for him.

So instead of thanking David Chen for saving the government all this money, the Conservatives said they are going to have a piece of legislation. Everyone wants to glory in the victory that appears on behalf of all Canadians. David Chen deserves not just a medal, but he also deserves to be compensated for all his work.

Two members of Parliament, the member of Parliament for Eglinton—Lawrence on June 16 last year presented a very brief proposal to amend section 494 of the Criminal Code, and the member for Trinity—Spadina did a similar thing in September 2010. We come to October 29, 2010 and the courts decide in favour of David Chen. The government rushes to congratulate him. The Prime Minister, the one who runs the government, for whom the government is named, says the government is going to make this its first priority and it is going to change the law. However, David Chen already had to go to court.

What does the Prime Minister do? Instead of taking up the offer of members of the House, the member for Eglinton—Lawrence and the member for Trinity—Spadina, he decided to have his justice minister come forward with a hugely complicated piece of legislation because he has to solve all the problems of the world, except this one. Why is there such urgency now? Because, as I understand it, he may decide he does not want to deal with Parliament anymore and he may want to go to an election.

I want to indicate a timeline here. As the member of Parliament for Eglinton—Lawrence, on November 2 during question period I asked to change the act. I suggested the government take the bill as we had already done all the drafting. The member for Windsor—Tecumseh acknowledged that there is a possibility of interpreting issues on reasonable grounds. Other professors have already done this. There have been all kinds of people who have decided to have input on this.

On November 4, we held a press conference and asked the government to come forward and accept the principle of Bill C-547 and the other one as well. However, on January 21, the Prime Minister finally decided he wanted to go to see David Chen again, to use him as a prop once more so he could say the Conservatives were going to come forward with legislation right away. Right away turned out to be March 4. February 15 was really when the Conservatives wanted to go ahead and give an indication that they were going to act.

I am not sure about the sincerity of all of this and I am equally suspicious about all the remonstrations of the Parliamentary Secretary to the Minister of Justice who was part of the discussions going on in November 2009. Finally, during some of this negotiating after he had actually approved some of the wording that appeared in Bill C-547, he said that now he has been appointed parliamentary secretary he can no longer deal with the legislation, and by the way, he is not aware of anything that the Minister of Justice might want to do in this matter.

He washed his hands of the whole affair leaving all of the people who had been looking to the Government of Canada, that is the real Government of Canada, for some guidance and assistance in a lurch to look to members of the opposition to give them some guidance.

What did the government do? It came forward with an unnecessarily complicated bill in order to stall for time and do away with this.

Citizen's Arrest and Self-defence Act
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6:20 p.m.

Conservative

The Deputy Speaker Andrew Scheer

The hon. member for Ancaster—Dundas—Flamborough—Westdale is rising on a point of order.

Business of the House
Government Orders

March 7th, 2011 / 6:20 p.m.

Conservative

David Sweet Ancaster—Dundas—Flamborough—Westdale, ON

Mr. Speaker, on a point of order, the minister responsible for the Status of Women Canada will be delivering a ministerial statement tomorrow on the 100th anniversary of International Women's Day. Therefore, I believe you will find unanimous consent of the House for the following motion:

That, notwithstanding any Standing Order or usual practice of the House, on Tuesday, March 8, 2011, statements by ministers, pursuant to Standing Order 33, shall be taken up at 3 p.m.

Business of the House
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6:20 p.m.

Conservative

The Deputy Speaker Andrew Scheer

Does the hon. member have unanimous consent of the House to propose this motion?