House of Commons Hansard #109 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was criminal.

Topics

Citizen's Arrest and Self-defence Act
Government Orders

12:30 p.m.

Conservative

Ryan Leef Yukon, YT

Mr. Speaker, I would like to thank my hon. colleague from Newton—North Delta on her speech. I thought it was great. Her focus on education and prevention was fantastic. I am also impressed and intrigued by the fact that she has a black belt in judo and would like to invite her to join me in the mixed martial arts caucus, which has a fundamental focus on education, youth communication, self-esteem development and positive relationships.

From that point of view, she called upon the government to do a little more on this legislation in terms of education, and I agree that is a step we could take. However, I am wondering if she could comment on her feelings—because I know what mine are—in terms of the role we need to play as members of Parliament when we speak to the media about this kind of legislation and when we address the concerns we have and how we could deal with it appropriately with our communities. I would see this legislation as expanded protection for Canadians versus expanded authority. If we message it like that, in my opinion we will move away from any fear of the vigilantism that has been raised as an issue.

Could she comment on the role we can play when we talk to the media of what we can do in our own communities? In her speech she talked about roles that need to be played in educating people in communities. In a vast and rural riding like the Yukon, one thing I do as a member of Parliament is promote positive relationships and the kind of education vein that she was going down, which I congratulate her for.

Citizen's Arrest and Self-defence Act
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12:30 p.m.

NDP

Jinny Sims Newton—North Delta, BC

Mr. Speaker, I am rather intrigued by the caucus that he just informed me about, so I will do some exploration.

Absolutely, we have a role as parliamentarians. When I am in my riding, such as in January when school was in session, I visit schools. I have community meetings. I am always having town hall meetings and I send out emails. We as parliamentarians have a huge role to play in our communities when it comes to education and prevention, but also in engaging people in the democratic process.

Last week I had the pleasure of visiting elementary schools. I met with students in grades 4, 5, 6 and 7, and they are very smart. They asked questions that would have floored most parliamentarians. They had done their homework before I got to my meetings with them. One little girl had a book with questions written down in it. They asked really smart questions. They asked questions about crime and what they can do.

Young people are very willing to be engaged, and that is where the prevention and proactive stuff starts. We would be foolish if we did not take advantage of whatever we can do as parliamentarians to give our own communities more security and knowledge, engage them in what is happening and build strong communities where they live.

Citizen's Arrest and Self-defence Act
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12:35 p.m.

NDP

Fin Donnelly New Westminster—Coquitlam, BC

Mr. Speaker, I want to provide a bit of background before I ask my question.

On May 23, 2009, David Chen, the owner of the Lucky Moose Food Mart in Toronto, apprehended Anthony Bennett, who stole from the store. After Bennett was initially caught on security footage stealing from the store, he returned to the store an hour later, at which time Chen, the owner, and two employees tied the man up and locked him up in the back of a delivery van.

When the police arrived, they charged Chen with kidnapping and carrying a dangerous weapon—which was a box cutter that most grocery store workers would normally have on their persons—assault and forcible confinement. The crown prosecutors later dropped the kidnapping and weapons charges, but proceeded with the charges of forcible confinement and assault.

According to the Criminal Code as it is currently written, a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act. Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault in October 2010. Anthony Bennett pleaded guilty in August 2009 to stealing from the store and was sentenced to 30 days in jail.

This bill seeks to clarify sections of the Criminal Code pertaining to self-defence and defence of property. After careful review of the bill and after hearing from expert witnesses at committee, it was determined that the changes do in fact provide legislation—

Citizen's Arrest and Self-defence Act
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12:35 p.m.

Conservative

The Acting Speaker Bruce Stanton

Order, please. I am sorry the time is limited here. We need to give time for the hon. member for Newton—North Delta to answer the question.

Citizen's Arrest and Self-defence Act
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12:35 p.m.

NDP

Jinny Sims Newton—North Delta, BC

Mr. Speaker, as my esteemed colleague did such a wonderful job of giving us a backdrop of what led to the legislation, I will keep my answer very brief.

Yes, the judiciary was concerned. It raised it, and parliamentarians are trying to address it.

Citizen's Arrest and Self-defence Act
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12:35 p.m.

NDP

Olivia Chow Trinity—Spadina, ON

Mr. Speaker, hard-working store owners trying to protect their own property should never be punished as criminals and the Criminal Code should not provide opportunities for that.

Since the David Chen Lucky Moose case, which I will go into a bit more, there was another instance in my riding. On Bloor Street, close to Euclid Avenue, there is a very nice restaurant called Maroli, which is owned by Mr. Naveen Polapady. Recently he faced multiple assault charges after confronting an apparent thief trying to steal his property.

I will not go into long detail as to what occurred during this incident, but his restaurant had been repeatedly broken into. He had called police. That did not have much impact. He felt the police had not been able to protect him. In the instance there was a struggle between he and the apparent thief and a noxious substance was thrown at the thief. It was a spice called masala. Some of my colleagues may know this noxious substance. It makes very good chicken. It is quite unbelievable that this spice could be called a noxious substance. Mr. Polapady was charged with assault.

Obviously, the law needs to be clarified and changed. Hard-working restaurant owners, such as in this case, should not be punished for trying to protect their restaurants.

The case of David Chen, owner of the Lucky Moose, occurred on May 23, 2009. He had been robbed quite a few times. The Lucky Moose is in my riding in Chinatown in downtown Toronto. His store is a very popular place where a lot of people shop.

A security camera showed that Anthony Bennett, a thief with a 32-year criminal record dating back to 1976, stole $60 worth of plants, which are called money plants, from Mr. Chen's store. Because the thief was not able to carry as many plants as he could, he came back an hour later to try to steal some more. He admitted that was what he wanted to do. Four or five were not enough. He wanted more.

Mr. Chen, after calling the police many times that past year, finally had it. He gave chase, caught the fellow and held him in a van. One could see bruises on Mr. Chen's body because Anthony Bennett had punched him. He was held and then police arrived four minutes later. Mr. Chen was charged with four charges: assault, kidnapping, forcible confinement and possession of a concealed weapon.

What was the concealed weapon? It was a box cutter, which any grocery store owner would have. They have to cut open cardboard boxes in order to get to the apples and oranges in those boxes. He carries a box cutter with him. He never used it and was not prepared to use it. He just had it because he was a grocery store owner. He was charged with possession of a concealed weapon.

As for forceable confinement, he wanted to ensure the police would come and arrest this person. Citizen's arrest is all about that. However, he was charged with kidnapping and forceable confinement.

The RCMP claimed that Robert Dziekanski had a stapler and that was an offensive weapon also. However, I digress.

Crown prosecutor, Colleen Hepburn, then offered to drop the kidnapping and assault charges if Chen pleaded guilty to forceable confinement and possession of a weapon. For this, he would receive an 18-month suspended sentence and a criminal record. Mr. Chen refused, and I am glad he did. The kidnapping and possession charges were dropped anyway. One of the reasons I suspect they were dropped was because it entitled the defendants to a jury.

By the way, Mr. Chen was not the only one charged. His cousin and his nephew, who assisted him, were also charged. It caused a tremendous amount of grief in the extended family. Mr. Chen spent a night in jail. His wife was worried sick.

The kidnapping charge was dropped. I think maybe the prosecutor was a bit worried that if there were a jury trial, Chen's peers would do the sensible thing and find everyone not guilty. Therefore, the two remaining charges were supposed to be heard in October by a judge sitting alone.

One might ask, what happened to Anthony Bennett? He received 90-days jail time, reduced to 30 days on the condition that he testify against David Chen, which he did.

What actually happened? The Criminal Code allows a citizen to arrest someone if caught committing a crime. It is a law that goes back to ancient times. Since then, surveillance cameras have been invented, so instead of a storekeeper standing guard all day, we have security cameras.

I have been in the Lucky Moose many times. Mr. Chen had installed large numbers of security cameras. Any reasonable judge would modernize the concept of citizen's arrest, including in Chen's situation, and accept camera evidence as sufficient grounds for later arrest. However, the act now states that one must arrest a person while he or she is committing a crime. If people are arrested inside the store, they have not actually committed the crime yet because they could say they were about to pay. If they do not pay at the cash register, which is right by the door, and leave the store, by that time they are outside which means the owner would have to give chase. This is what David Chen did. However, because it was after the actual crime being committed, the Criminal Code allowed police to arrest him.

The result was a lot of emotional and financial hardship. The case finally went to trial after a long time. By October 29, 2010, a year and a half later, the judge finally found David Chen, his cousin and his nephew not guilty. However, this was after a huge amount of money was spent on lawyer fees.

Given that the profit margins in these stores are extremely slim, David Chen did not ask for it, but the community came together, had fundraising banquets and drives to help him pay his lawyer fees. The community also said that the law did not protect hard-working store owners and that it must be changed. There was a petition with 10,000 signatures on it.

The Minister of Citizenship, Immigration and Multiculturalism promised some time in 2009 that the Conservative government would take action. One year later, nothing happened. I then introduced a private member's bill, which I termed as the Lucky Moose bill. Actually the moose was not that lucky on May 23, but I called it the Lucky Moose bill. The bill would allowed for a flexible interpretation that, as long as the citizens' arrests were done within a reasonable amount of time, the store owners would be entitled to make them.

Unfortunately, nothing happened in the fall of 2010. I tried to push my private member's bill forward. It was on February 17, 2011, that the Prime Minister promised to introduce a government bill.

It is unfortunate it has taken so long. The bill passed first and second reading, but died when the election was called. Therefore, I am quite happy that another version of it, Bill C-26, which is very similar to my original Lucky Moose private member's bill, is now before the House at third reading. I hope in a few days the bill will pass the House of Commons into the Senate for approval and become law. It cannot happen soon enough.

Amending the Criminal Code would only assist in a certain way. To a certain extent it would clarify the law. At the justice committee, there was a diverse group of witnesses, whether it was the Canadian Convenience Store Association, the Elizabeth Fry Society, Professional Security Agencies, Quebec Law Association, the Canadian Bar Association, the Canadian Police Association. They all agreed that this bill was good, but there were some flaws in it.

Our critic introduced nine amendments. Two of the amendments were successful and seven, unfortunately, were not. I really regret that. We did manage to get a related amendment passed, which would require a court to consider the relevant circumstances of the person, the other parties and the act. The second amendment would place a greater onus on the courts to consider the history of the relationship between individuals.

There is a great need for different sections of the Criminal Code to be updated. Even though at the end of the day seven of the amendments of the New Democrats were defeated, we still believe the bill will give an adequate update to legislation and that is why we support it.

My colleague is right in that we should also look at other issues connected to the case. We need better community-based policing. A store owner should not have to wait so long for the police to arrive. There needs to be much faster response time by police officers and they need to know their own community so they are familiar with the challenges some of the smaller store owners face. They also need to understand who are the regulars in the community who commit these crimes over and over again.

If we have community-based policing, then there would be a regular number of police who would become familiar with the neighbourhood. By and large, a lot of the people who are stealing are from the neighbourhood. The store owners who suffer from these kinds of offences and are victimized have by and large been in the community for a long time. They own small shops and cannot afford to hire private security guards, which is why they occasionally, unfortunately, resort to citizen's arrest or self-defence.

If the police had a much faster response time, then people like David Chen would not have to take the law into their own hands. When the charges were finally dropped and he was asked by the media whether he would do it again, give chase and perform a citizen's arrest, had he known what would happen, Mr. Chen said, “No, I would probably wait for the police to come”.

I think 99% of store owners would probably give that kind of response. They would rather have the police come to deal with a criminal offence. The problem is that there is not a faster police response time.

On the other side, we have a person like Bennett, who was living in the community and is not anymore. He was not able to get into treatment programs initially, maybe in the late 1970s or early 1980s when he started committing crimes because he was addicted to drugs.

I do not know whether he has any mental health issues, but I do know that a lot of these criminals who commit theft and break and enter are addicted to drugs, and others have mental health issues, and yet we have a system in Canada where we do not have sufficient mental health treatment programs, especially within the communities.

If people have access to drug treatment or mental health programs, they can get clean and are able to start again. However, once they come back to the community, because there is not a community-based program to support them where they live, some of these folks end up re-offending, end up being hooked on drugs again and end up committing petty theft, victimizing the local store owners.

That is why the NDP believes that aside from amending the Criminal Code, aside from helping hard-working store owners to protect their own property, we really need to be smart on crime. We need to find some ways to have better community-based policing. We must have community-based treatment programs, drug treatment and mental health support, because if we do not do that we will end up throwing a lot of people in jail who will come out and re-offend over and over again. People like Naveen Polapady, a restaurant owner, and David Chen, a grocery store owner, will continue to be victimized.

To conclude, I am very happy this bill is finally in front of us for third reading. I hope it will pass without any problems and that the Senate approves it so that at the end of the day David Chen and others can feel that justice is on their side, not against them.

Citizen's Arrest and Self-defence Act
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12:55 p.m.

Liberal

Kevin Lamoureux Winnipeg North, MB

Mr. Speaker, the member is right in the sense that we do anticipate passing this bill today. It has fairly widespread support within the chamber.

In her comments, she made reference to something that is a bit off topic but is quite relevant in terms of communities' needs as they try to deal with crime issues, and that is community policing, for which I have always been a strong advocate.

Would the member share with members her thoughts on community policing, that it could potentially have some role in providing education in commercial strips, where there is a greater likelihood of a citizen's arrest being made? Often through community policing there is a strong educational component. I would suggest to the House that, through community policing, people can help better educate our community as a whole on the role of citizen's arrest.

Citizen's Arrest and Self-defence Act
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12:55 p.m.

NDP

Olivia Chow Trinity—Spadina, ON

Mr. Speaker, the concept of community-based policing started in the Prairies, interestingly enough. I believe the Edmonton police and others piloted it. It means that in a certain district, depending on the size, the same four or six police officers would patrol an area regularly. They would have regular meetings with the store owners and the residents in the area. They would work with them to find ways to improve on safety. Sometimes it is the design of the community. It could be lighting or shrubs or a neighbourhood watch program, which the police officers would assist in setting up.

However, the problem with policing in big cities is that the scheduling means that different officers rotate in and out of the neighbourhood at different times of day. That means that sometimes officers who patrol the areas would not know their neighbourhood as well, so they are not familiar with the history of what is occurring in a store. Anyone who regularly patrols that area in Chinatown would know David Chen and the Lucky Moose store and would know he had been victimized by petty thefts over and over again. In this case, I am not sure the officers who came to arrest him knew the history of what occurred.

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

NDP

Jean Rousseau Compton—Stanstead, QC

Mr. Speaker, I would like to congratulate my colleague on her excellent speech. I will continue to speak on the same issue, that is, community-based policing.

Over the past few years, particularly in Quebec, we have been coping with the new issue. There are fewer and fewer services provided by the Sûreté du Québec in the regions. In some small communities, there are no police services.

I would like to ask my colleague to tell us a little bit more about the consequences that this might have in certain areas that are far away from major centres, neighbourhoods that more often experience crime precisely because of this, including resort areas near rivers and lakes, summer cottages and so on. More and more people are left to their own devices and have to defend their property and sometimes their lives.

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

NDP

Olivia Chow Trinity—Spadina, ON

Mr. Speaker, that is a concern. If there were less police coverage, no matter what level of policing, there would be more opportunities for break-ins at cottages, for example, or small stores. In some ways, people whose places have been broken into feel personally violated. It is not even about the property loss. It could be the loss of a very special ring or a memento from a grandfather or grandmother. These kinds of items can have a lot of sentimental value. They might not get a lot of money on the market, but it is devastating emotionally for the person who loses that item.

If the police get too busy dealing with more serious crimes, they may not have enough time to deal with break and enter crimes and theft, and that would be unfortunate.

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

NDP

Denis Blanchette Louis-Hébert, QC

Mr. Speaker, I would like to thank my colleague for her speech. In passing this bill, of course, we are opening the door to the possibility of overdoing it.

I would appreciate it if my colleague would tell us what the government should do to place safeguards around the bill, to make sure that, on the one hand, we reach the bill's objectives, and on the other, that we do not go over the top with it.

Citizen's Arrest and Self-defence Act
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1:05 p.m.

NDP

Olivia Chow Trinity—Spadina, ON

Mr. Speaker, it is critically important that we do not encourage vigilante justice. We do not want to encourage people to put their own personal safety at risk. We want to be very clear that if a crime is occurring, people should call the police. People should not get involved. That is the top priority.

There are already sections under the existing Criminal Code that deal with citizen's arrest, self-defence and defence of property. These three concepts already exist in the Criminal Code. The amendments we are doing here would only modify already-entrenched aspects of our current laws and do not really introduce any kind of radical new concepts.

I want to be very clear that we do not want people to take justice into their own hands. We believe that, if people do so, sometimes they put their personal safety at risk. The top priority is to call the police and leave the situation, if possible, if facing danger.

Citizen's Arrest and Self-defence Act
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April 24th, 2012 / 1:05 p.m.

NDP

Jonathan Tremblay Montmorency—Charlevoix—Haute-Côte-Nord, QC

Mr. Speaker, I thank my colleague for her very eloquent speech, which proves that it takes more than one measure to advance security in Canada. I am often in touch with community organizations and street workers in my riding, who often work outside the established order, if I can put it that way.

The NDP supports the current bill. We will study it in committee to ensure that it does not lead to abuses. I would like to expand the current debate somewhat to say that this type of bill is not enough to prevent crime.

Could my colleague give us some more details about that? What other solutions could we bring forward? These days, it seems that the current government is somewhat less interested in prevention. What solutions can we suggest to reduce crime in Canada?

Citizen's Arrest and Self-defence Act
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1:05 p.m.

NDP

Olivia Chow Trinity—Spadina, ON

Mr. Speaker, there is a disturbing trend. One of the fastest growing populations in prisons is women. Often they are in jail because they are stealing, and they are stealing because of deep poverty. I know of a person who stole diapers because she just did not have the money to buy them for her daughter, I believe. She was caught and put in jail. In some cases, especially for women, poverty is the root cause of some of their criminal activities. As legislators, we need to look at that and see if we could do something to make poverty history.

Citizen's Arrest and Self-defence Act
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1:05 p.m.

NDP

Ève Péclet La Pointe-de-l'Île, QC

Mr. Speaker, I wish to inform you that I will be sharing my time with my colleague from Compton—Stanstead.

This bill would amend the Criminal Code, in particular subsection 494(2) on citizen's arrest, self-defence and the protection of property. My speech will mainly focus on citizen's arrest and self-defence.

The amendments would make the legislation more flexible. For example, they would allow a person to arrest someone without a warrant within a reasonable time. Often, as In the case of a number of the examples provided today, a person is attacked, may not necessarily fight back immediately, but may do so subsequently. It will be up to the courts to decide what is a reasonable time based on the circumstances. The legislation provides the courts with a framework for making decisions.

The second part concerns self-defence. In committee, the NDP proposed nine amendments to the bill; only two were accepted and seven were rejected. Even though the NDP would have preferred that all nine amendments be accepted, it recognizes that the law needs to be amended and that the bill addresses certain shortcomings and updates the legislation. For that reason, the NDP members support Bill C-26.

It is important to mention—in case the government is listening—that the NDP had proposed an amendment in order to add a subjective aspect to self-defence and to include situations of spousal abuse. This amendment not only included spousal abuse, but also cases of 18-year-olds who still live with their parents and who are abused by one of their parents or a member of the family and have been for many years. This might include any situation where a person has a history of violence.

Battered woman syndrome often comes up in the courts. However, this syndrome is not necessarily recognized. A person who has been a victim of repeated acts of violence might perceive matters incorrectly when in a violent situation. Their reaction to their attacker might be unpredictable.

It is important to know, when we are talking about spousal abuse, that the attacker—the spouse, the husband, or whoever—will not necessarily expect that reaction. I am also thinking about the situation where an 18-year-old might want to protect his mother from being attacked by his father. Someone who is raised in a violent setting might have an unexpected reaction to a relative or loved one who commits an act of violence.

The proposed amendment asked that the court assess whether, in the person's eyes, the person's actions were reasonable in the circumstances. In some situations, the court might take into account this type of history. Including this in the legislation provides a framework for this type of situation. This principle was created through jurisprudence and might differ from one province to another or one judge to another.

Hence, the interpretation is really based instead on evidence and testimony. In certain cases, the fact that it is not included in the legislation may, perhaps, be damaging to certain victims. In fact, I am talking about victims. On several occasions, women who have simply sought to defend themselves against their spouses have themselves been accused of assault. As the member for Gatineau mentioned, we have even seen cases where people no longer wish to intervene. I remember a case in Quebec, for example, where a person dove into the river to save somebody. However, the person who was rescued got injured in the process of being removed from the river and sued the rescuer for assault and battery.

Simply including this in the legislation will give victims of crimes and people seeking to defend themselves the assurance that they themselves will not be prosecuted for battery or assault.

In fact, an historical context is really important here because in several sections of the Criminal Code, there is an objective component that deals not only with assault and battery, but also the intention to hurt somebody. In the case of assault causing bodily harm, the person must have had the intention of causing bodily harm. Bodily harm is identified, but so too is the intention behind it. In self-defence, the issue of intention is not relevant. For example, a victim of domestic violence who takes a pot and hits her attacker on the head with it did not intend to inflict a wound, but rather to defend herself.

I think that this is really important. There are several organizations that share this opinion, one being the Canadian Bar Association. I read in its recommendations, which were based on its review of the bill, that it proposes that the clause be amended to read “the act committed is reasonable in the circumstances as perceived by the accused”. Perception therefore plays a very important role.

The government’s amendment is slightly different to ours. The NDP nevertheless succeeded in having an amendment passed that requires the court to consider the personal situation of the person who used self-defence. The wording is, however, not as precise as what the NDP proposed.

For example, in a situation where two men fight, self-defence is often more difficult to prove. However, let us consider someone who is 18—I often use this example—and has grown up in a violent household. Every day, he sees his father beat his mother and one day he decides to stand up to him, because his mother refuses to defend herself.

In my opinion—and I hope that the government hears this—it is important to be precise about this kind of amendment. Often, the courts need legislators to guide them in the decision-making process. Legislator must take their role seriously and provide a legal framework for these kinds of situations.

I am not criticizing the bill. I am simply proposing some potential improvements. It is a step in the right direction. We proposed nine amendments. We will amend the Criminal Code in the hope that we might continue to improve it in the years to come.