House of Commons Hansard #110 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was inequality.

Topics

Citizen's Arrest and Self-defence Act
Government Orders

4 p.m.

Green

Elizabeth May Saanich—Gulf Islands, BC

Mr. Speaker, my question for my friend, the hon. member for Rivière-des-Mille-Îles, relates to the issue of private security firms.

Contrary to the advice of my friend from Winnipeg North, there are a lot of groups opposing the bill, including Tom Stamatakis, the president of the Canadian Police Association, who is quoted in today's press as saying:

We should take care that any changes made with this legislation do not have unintended consequence of broadening the current mandate of private security.

I noticed that my friend mentioned private security firms yesterday. One of her colleagues said that they do arrest and that this bill would not change things; however, the bill will allow them to leave the store and chase somebody and arrest them that day or later, so I remain concerned that the bill is opening the door to private security firms. I would appreciate my friend's comments.

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

NDP

Laurin Liu Rivière-des-Mille-Îles, QC

Mr. Speaker, that is a reasonable question that has already been dealt with in committee.

We see that this legislation is reasonable. This legislation is aimed at citizens such as David Chen, citizens who are protecting their own personal safety and property.

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

NDP

Charlie Angus Timmins—James Bay, ON

Mr. Speaker, as always, it is a real honour to stand in this House and represent the people of the great region of Timmins—James Bay.

When we talk about crime bills, crime prevention and crime strategies, it is unfortunate that much of the rhetoric in the House of Commons has not been to deal with the substantive issues but sometimes to create black and white caricatures or set up windmills. This is difficult because the issue of crime and law is complex and the solutions are sometimes not as simple. This is why the judges do need discretion in being able to interpret action and being able to interpret circumstances.

However, I find this has been a good instructive debate for Canadians to participate in and to watch, because we are trying to find a balance regarding the protection of ordinary citizens. This is something that communities have done from time immemorial.

For example, I live in the great little community of Cobalt, Ontario, where people look out for each other. I remember late one night I was coming home from a trip with my family and my little kids. I drove up in my beat-up little Toyota Tercel hatchback, which may not be the ugliest car ever built, but it was certainly in the top five. Barrelling in the driveway behind me was a big pickup truck with double wheels on the back. It sounded like a tank. Out jumped Bruce Miller, a big guy from Sherman Mine. He said, “Who goes there?” I almost fell over, and then he said, “Oh, it's you. I knew you were away. I just wanted to make sure when I saw the lights on at your house that nobody was robbing you”.

That is what neighbours do. We need to be able to say that it is okay for neighbours to check in on neighbours, that it is okay to stand up in a public square when something is wrong and say, “There are no police here, but a crime has been committed”.

In saying that, we have to be careful. We have seen in the United States where politicians fan the flames of vigilantism and horrible tragedies result, like the Trayvon Martin shooting in Florida. If we look at it, we wonder how could it be that a self-styled vigilante armed with a gun can patrol a neighbourhood and, when the police tell him to stand back, he believes his life is at threat. Under Florida law he only had to believe that. It is completely subjective. Issues of subjectivity do have a value in dealing with perception of violence or perception of threat, but they are not the only thing. We cannot just say, “I didn't like the looks of him. He seemed like a bad guy, so I shot him”. Yet, that is what is considered okay in the Florida legislature.

We have seen some of the crazy gun laws in many American states that think people should be able to carry a gun, a concealed weapon for self-defence, that they should be able to carry a weapon into a hospital because it is a citizen's right. That kind of over-the-top response creates dangerous situations.

I am looking at Bill C-26 from the sense of how we strike the balance between civic protection and ensuring that we are not putting people at risk. It is not about putting the so-called criminals at risk, but also the people who want to intervene. It is very difficult to intervene in a situation that could escalate. People need to have a sense of the ground rules. When the police are watching, they are certainly telling us to be careful about how we go about this.

There has been good discussion at committee. There has been good cross-party conversation.

On the issues of criminal justice, I had the great honour in the 1980s as a member of the Catholic Worker Movement to work with men coming out of prison and to live with men and women coming out of prison in the streets of Toronto. I saw a steady pattern in terms of recidivism. There were addictions. Addiction was probably the highest single cause of people committing crime. There were basic issues, such as a lack of a stable environment in which to actually get one's life together, and then there was plain stupidity.

I have known many cons through my work. Contrary to what we see in the movies, they are not criminal masterminds. That seems to be an oxymoron. Contrary to what my Conservative colleagues sometimes point out as these evil bandits who have to be locked up, sometimes they just make really stupid choices. I have talked to them about their choices.

I think that when we are looking at criminal policy, we have to remember that by far, the vast majority of people who end up in jail have made really bad choices. Should they be punished? Certainly. As a society do we need to have a plan to pull them back? Even more so.

I remember my friend, Robert, who died recently. In his day, Robert was a huge, massive expense on the health and criminal justice systems because of his horrific level of alcoholism. At the time, we could not get Robert into even a rooming house. There was no public housing. I remember the Conservative government of Mike Harris, and many of his old gang are on that side of the House now, telling us that social housing was a failed principle.

It was not a failed principle. We needed to get a guy like Robert a place to stay. Once we actually got him into secure housing, he sobered up. At that point he was never again a burden on the medical system or on the criminal justice system. I think he was 20-some years sober before he died. We needed to find ways to get men like him out of crisis, and it was possible.

That is where social policy comes in. If members believe that government should not be in the business of ensuring some level of social housing, then people like Robert will fall through the cracks. If people have levels of addiction, they might break into a car and get whatever change they can.

Last year I was moving and my car was broken into, probably because of the Oxy epidemic. Normally my beat-up old Chevy does not have much in it worth taking, but I was in the process of moving. There was a vacuum cleaner that my wife had given me. I did not mind sharing my vacuum cleaner with the criminal underground of Ottawa. I could have accepted that. That was in the car. There were a couple of brooms. They could have had them. But my God, my Bob Dylan collection, original vinyl, was in the back, as were my grandfather's favourite Scottish and Irish records. I have not brought forward a private member's bill about mandatory minimums for people who steal vinyl. I did manage to get some of it back. I went to the record store. I did not get any of my Bob Dylan collection; that was gone, but I got the Clancy Brothers and Kenneth McKellar records back.

I said to the guy, “Listen. These are my grandfather's records. They were stolen out of my car.” I do not think they could have even bought one Oxy pill. I said, “I do not mind paying for them. I just want the records.” The guy said, “We were only selling them for 50¢.” Being Scottish myself, I would have spent $5, maybe even $6 on each of those records.

I am not saying this to make light of the situation. Perhaps if I had been at the house that night and saw the guy stealing my records, I would have run out and stopped him. I would have at least tried to offer him the vacuum cleaner instead.

When I go home at night through the market I have seen some situations that have started to escalate. I am not out with the late, late night crowd because parliamentarians are always in bed at an early hour, so I do not see any of the stuff that happens outside the nightclubs. However, it tends to be my perception that we are dealing with people with addictions, and sometimes people with addictions do desperate things.

The question is, if someone sees something happening on the street, such as a shakedown, an escalation towards violence, what as a citizen does the person do if there are no police there? There is the question of someone intervening, such as a shopkeeper intervening and stopping someone from stealing by saying, “You cannot do this. I am going to hold you until the police come.” That is a reasonable citizen's response. That is a reasonable societal response.

In terms of the larger of issue of what people do when they see relentless situations, particularly when there is drug addiction and people are resorting to crime, we need a larger societal response. That is why I talked about the interventions and about the lack of treatment centres in northern Ontario. We do see levels of addiction, mostly involving Percocet and Oxy. There is no place for people to get treatment. That is an issue.

We cannot just leave it to the citizen to address the crime problem. We cannot just leave it to the jails. We need a larger, more comprehensive view. We have not had a holistic view of crime and crime response in this Parliament.

We will be supporting this bill. It is one little piece of a much larger puzzle. I am more than willing to take questions from any of my hon. colleagues.

Citizen's Arrest and Self-defence Act
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4:10 p.m.

Liberal

Kevin Lamoureux Winnipeg North, MB

Mr. Speaker, one of the earlier questions I had asked the member's colleague was in regard to how important it is that there be some sort of educational component to this bill with respect to citizen's arrest.

I profiled that there are some areas within our communities that would benefit more by having community policing, police officers visiting some of the stores in communities where there might be more value in terms of making sure people understand what the legislation actually enables a store owner to do in terms of making a citizen's arrest.

I wonder if the member would share some of his thoughts in regard to the value of and the need for an educational component. There is some misinformation out there in regard to what a citizen's arrest is.

Citizen's Arrest and Self-defence Act
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4:15 p.m.

NDP

Charlie Angus Timmins—James Bay, ON

Mr. Speaker, that is an excellent suggestion, because the question before us is about ensuring that we have the correct nuance, and nuance is difficult when we are talking about legislation. Legislation is like moving a massive glacier. We might move it two inches, but that two inches could have a huge effect on what is on the other side of the glacier. People do need to understand.

I find that in the north where we deal with the Nishnawbe-Aski Police Service and mostly with the OPP, we have some really good community outreach. However, people need to understand that this is about being able to stop the guy who is ripping off the albums out of someone's car. This is not about saying that the person gets to beat the guy up. This is not about that person getting to exercise justice. He or she has no right to decide appropriate punishment, or to make the guy pay. This is about stopping a crime from happening.

There is a level which people are not able to go beyond and if they do, they cannot go crying to the public if they are arrested by the police for going beyond it. The education component is going to be very important. I am sure the police will play a large role through community policing.

Citizen's Arrest and Self-defence Act
Government Orders

4:15 p.m.

Green

Elizabeth May Saanich—Gulf Islands, BC

Mr. Speaker, I know there are concerns within other parties in the House. I regret that having come to some consensus through the committee process members who have concerns seem to feel they have to hold their noses and pass a bill that may well open the door to some serious problems in our society.

I note that the vice-chair of the Canadian Bar Association, Eric Gottardi, is quoted in today's paper as saying this is a gift to the rent-a-cops. He said, “Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances”.

Even at this late stage we should insist that the sections relating to citizen's arrest be left alone and remain as they are now in the Criminal Code and not extend them, as this bill does.

Citizen's Arrest and Self-defence Act
Government Orders

4:15 p.m.

NDP

Charlie Angus Timmins—James Bay, ON

Mr. Speaker, the reality is that private security exists already and that is not going to change. Are there concerns about how private security contractors are used? Certainly, but the bill is not going to change their reality in our society.

We think that the bill is a good bill. It is good because there has been push-back on both sides in order to deal with some outstanding concerns. If my hon. colleague feels that she has to hold her nose to vote for it, well, making laws is like making sausages. It is not the easiest thing. We do not get everything we want. Law is not easy either and there are always going to be grey areas. That is what will be interpreted by the courts.

Citizen's Arrest and Self-defence Act
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4:15 p.m.

NDP

Wayne Marston Hamilton East—Stoney Creek, ON

Mr. Speaker, in Hamilton a number of years ago there was a situation where a Bell technician was outside a hotel and a husband and wife had a dispute. He held the husband because he thought the husband was going to injure the woman. The woman turned around and buried her shoe in the back of the Bell technician's head. It just shows us that when we give that kind of extra leverage to the public, there is a certain risk factor.

I wonder what the member's comments are on that.

Citizen's Arrest and Self-defence Act
Government Orders

4:15 p.m.

NDP

Charlie Angus Timmins—James Bay, ON

Mr. Speaker, I cannot say anything about what happens in Hamilton because I share a seat with a guy from Hamilton and I have played gigs in Hamilton and it is a pretty tough town. I was told when I went to Hamilton that I was in the big city and I had better behave, so I am not going to mention anything about what happened at that event.

There are always altercations. There is always going to be push-back. There are always going to be issues of how people defend themselves. What we are trying to do is clarify the laws. To use the example of the Lucky Moose that was being hit again and again and with no police there, it is not unreasonable for the shopkeeper to be able to stop the criminal.

My colleague's advice is wise. We have to ensure there is discretion. We have to remind people to be careful. It is better to wait and let the police do it. People should not get hurt over a box of Smarties.

Citizen's Arrest and Self-defence Act
Government Orders

4:20 p.m.

Conservative

The Acting Speaker Bruce Stanton

Before resuming debate, it is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Beaches—East York, National Defence; the hon. member for Edmonton—Strathcona, Aboriginal Affairs; the hon. member for Saint-Jean, Flooding in Montérégie.

Citizen's Arrest and Self-defence Act
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April 25th, 2012 / 4:20 p.m.

NDP

Craig Scott Toronto—Danforth, ON

Mr. Speaker, I will be splitting my time with the hon. member for Scarborough Southwest.

Bill C-26 demonstrates that the committee process in this House can actually work, when a bill starts out as reasonable in its aspirations and its general content. I will speak mostly to the self-defence provisions, which have not been getting as much attention during this debate, and I hope to have time to speak to citizen's arrest. If not, I am happy to answer questions.

The NDP worked in good faith within the committee and advanced a number of amendments, two of which were accepted. We feel that the legislation could be better yet, especially, from my point of view, on the citizen's arrest portions. However, we also feel that it has been somewhat improved and that, in general, it started out as worthy legislation. For that reason, we believe this bill should be supported, as my colleagues have been indicating.

With respect to the legislation that was originally tabled, I must commend the parliamentary secretary, the member for Moncton—Riverview—Dieppe, for his speech on December 1, 2011, when he introduced the bill. His speech was a model of thoughtfulness, tightness and elegance of exposition and, indeed, care taken to explain the bill's purpose and its relationship to the existing law and to the general principles of criminal law. That speech should be taken seriously when the legal profession begins to interpret Bill C-26, when it becomes part of the Criminal Code, with respect to the provisions on self-defence of the person, defence of property and citizen's arrest.

What is very interesting about both the reforms in Bill C-26 and the speech of the parliamentary secretary is the contrast with the approach of the current Criminal Code provisions. This is partly due to the origin of the current provisions in one of the original versions of the Criminal Code well over a century ago. However, the present Criminal Code provisions are best characterized as a patchwork quilt of relatively detailed provisions that are responding to a range of concrete situations. Partly because of that level of detail, these provisions have for some time been criticized, decried by some as needlessly complex and increasingly confusing, as we have had layer upon layer of judicial interpretation over the years.

The Bill C-26 provisions are, in contrast, a model of simplicity and distillation to the core principles in their essence. I dare say that their formulation owes a lot, although I cannot say this is for sure the case, to the civilian tradition within our multi-juridical heritage, with its preference for unifying principle and generality when we are codifying the core areas of the law.

A passage from the parliamentary secretary's speech speaks to this approach. When the hon. member for Moncton—Riverview—Dieppe spoke to the self-defence provisions in Bill C-26, he stated in part:

If we were to ask ordinary Canadians if they think self-defence is acceptable, they would say that it is acceptable when their physical integrity or that of another person is threatened. I think they would also say that the amount of force used should be reasonable and should be a direct response to the threat.

The reforms proposed in Bill C-26 are centred on those basic elements. Because of the general nature of these ideas, one law based on these fundamental principles should be able to regulate all situations that arise involving defence of the person. We simply do not need different regulations for every set of circumstances. All we need is a single principle that can be applied to all situations.

There is a lot of merit in the conceptual clarity and the focus on unifying principle that is represented by that passage. However, the common lawyer in me does worry a bit if the idea of “a single principle” is seized upon to the exclusion of what he also mentions, which is “all situations”.

General principles only live and breath and become coherent in the real world where, hopefully, most Canadians live, when they are brought to bear on concrete situations to allow more nuanced rules to emerge gradually. It is for this reason that it is a virtue of the new clause 34 in Bill C-26 on self-defence that it is grounded in a general idea, that of reasonableness of response, but this is also expressed, which is important, as “reasonableness in the circumstances”. That is clause 34(1)(c). However, it is all the better that clause 34(2) then goes on to list nine factors that are relevant to the contextualized approach to the general principle of reasonableness.

The NDP was very concerned that these factors would themselves be principled and at the same time useful for real world decision-making of ordinary citizens, then of police and prosecutors and, finally, of judges in their exercising of judgment as to whether a self-defence situation has arisen. In particular, an NDP amendment that was accepted modified the chapeau for clause 34(2) and that amendment is most welcome. It appears before the list of the nine factors and states:

In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors....

That sets up well the various factors. This phrasing interacts with factors (e), (f) and (f.1) in the provisions to provide a good basis for the criminal law to be responsive to the very particular challenges of applying self-defence in the context of abusive relationships, which is an area I know many members in the House have some concern about, especially where women have been subjected to patterns of violence and psychological abuse by their male partners. I think it is important to recognize that the parliamentary secretary himself, in his speech on December 1, recognized this when he said:

Another factor is whether there were any pre-existing relationships between the parties, including any history of violence and abuse.

This last factor is particularly important in cases where a battered spouse must defend against an abusive partner. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury of citizens to understand how a battered spouse might stay in an abusive relationship or how the person might come to understand the patterns of violence of the person's partner. These cases do not arise often but when they do, sensitivity to these factors is crucial.

Having praised the parliamentary secretary's speech on December 1, I would also like to add that the response speech from the previous justice critic, the member for St. John's East, was also a model of constructive and thoughtful parliamentary engagement. While he expressed general support and appreciation for the intent behind the bill, he also raised questions aimed at ensuring that, during the committee process, the overhauled existing provisions of the Criminal Code did not throw the proverbial baby out with the bathwater. In that respect, he said:

We need to examine it [Bill C-26] very carefully. We need to ensure that by making changes, we are not throwing away 100 years of precedent and all the advice that the courts have given. If we are starting off with a blank slate and a whole new law, it may take another 10 or 20 years of case law to understand what that means. Do we really need to go down that road?

I will end by saying that it is really important to understand that there is a conundrum built into law reform. Does judicial interpretation and the perceived understanding of the law go by the wayside when new law is enacted, especially when such detailed provisions are replaced by general provisions in criminal law? It must surely be the case that we, and by “we” I mean citizens and the legal profession, do not reinvent the law of self-defence from a whole cloth. We must engage with what was the living law under the old provisions and forge a new living law under the new ones that is in communication with what went before it.

Citizen's Arrest and Self-defence Act
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4:30 p.m.

Conservative

Brian Jean Fort McMurray—Athabasca, AB

Mr. Speaker, I know the member is new to his portfolio but he was not at committee to hear the testimony. We heard testimony that suggested that, in this particular case, judges should use their discretion for victims instead of criminals, as that member's party has been saying.

We also heard experts at committee say that for years they have been seeking clarification of the law on self-defence. During my time practising criminal law there was a tremendous amount of confusion to say the least relating to many aspects of self-defence. I wonder if the member would not agree that we should listen to the experts in this case. Even the Canadian Bar Association said that it wanted clarification of the law.

Would my colleague not agree that it is a good thing for the government to stand up for victims instead of criminals and allow judges to use their discretion as well?

Citizen's Arrest and Self-defence Act
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4:30 p.m.

NDP

Craig Scott Toronto—Danforth, ON

Mr. Speaker, I look forward to working with the member on the justice and human rights committee.

I do not think the premise needs to be accepted that the NDP views judicial discretion as only something that should be relinquished when it is a case of the wrongdoer. That is not at all what we have been saying. In general, judicial discretion needs to be respected in our legal system.

We are consistent that in the revised bill with respect to the very open textured rules on self-defence, we think discretion will work, keeping in mind that the judgment of ordinary citizens will be equally important. The law cannot wander too far away from basic common sense.

However, we also believe that when it comes to things like sentencing, judicial discretion is also needed. We are being consistent.

Citizen's Arrest and Self-defence Act
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4:30 p.m.

Green

Elizabeth May Saanich—Gulf Islands, BC

Mr. Speaker, I am happy to welcome my hon. friend to the House. This the first time I have had an opportunity to put a question for the hon. member for Toronto—Danforth. I hope he will not mind if I trespass on his time to follow-up on a response from one of his caucus colleagues.

The hon. member for Timmins—James Bay made the mistake of thinking that I planned to vote for this bill. I do not plan to vote for the bill. I am fairly certain that I am the only member of Parliament who finds it objectionable to expand the powers of citizen's arrest. I note particularly that, while the member for Timmins--James Bay said that this little change was nothing in terms of citizen's arrest and private security firms, it would in fact create a new opportunity for people to arrest some reasonable time after the offence.

How does my friend from Toronto—Danforth feel about that?

Citizen's Arrest and Self-defence Act
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4:30 p.m.

NDP

Craig Scott Toronto—Danforth, ON

Mr. Speaker, I was upfront in my remarks when I said that I, like many people, have qualms about playing around too much with the citizen's arrest provisions. However, the committee and ultimately the government in its proposed bill has this right.

The member is absolutely correct. It is true that there is a small extension of citizen's arrest to include the arrest within a reasonable time after someone has been found committing an offence. However, there are a number of safeguards. This cannot be done if it is at all reasonable to expect the police to show up and do the job.

There are a couple of other provisions that I do not have time to go into that really attempt to send the signal that the Lucky Moose shop case with David Chen is really the paradigm. We need to work out from that, use that as the analogy and not accept this as a licence for anything resembling citizen's arrest gone wild.