House of Commons Hansard #114 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was railway.

Topics

Citizen's Arrest and Self-defence Act
Government Orders

10:20 a.m.

NDP

Wayne Marston Hamilton East—Stoney Creek, ON

Madam Speaker, I appreciate that. I tend to tell stories and get away from my prepared text.

There is self-defence relative to a situation called battered spouse syndrome. Our proposed amendments on that did not succeed. Those were to introduce a subjective element. Subjective circumstances are related to the person's preservation of the right to protect oneself in a reasonable manner.

That element means it is possible that a person, based on a history of domestic violence, can reasonably perceive a greater threat of violence because it has been repeated by the same perpetrator. We thought it was important to add that historical context to this bill. Unfortunately, it was not successful at committee because the government did not see our view.

Citizen's Arrest and Self-defence Act
Government Orders

10:20 a.m.

Green

Elizabeth May Saanich—Gulf Islands, BC

Madam Speaker, I thank the hon. member for Hamilton East—Stoney Creek for his speech on Bill C-26. As the House will know at this point, I think I am the only member of Parliament who feels I must vote against this bill because of my concerns about the expansion of citizen's arrest powers.

I tried to obtain the opportunity to put forward an amendment to delete one section of the bill, which was recommended by the Canadian Bar Association. That section deals with the expansion of citizen's arrest powers. I wonder, could the hon. member for Hamilton East—Stoney Creek explain why the official opposition was not willing to second my amendment, which would have at least given us a chance to fix the one section of the bill that gives people the most trouble?

Citizen's Arrest and Self-defence Act
Government Orders

10:20 a.m.

NDP

Wayne Marston Hamilton East—Stoney Creek, ON

Madam Speaker, I was not at the committee. I am not privy to the reason that our members of the committee chose to not support the amendment. Obviously, they gave it due consideration and felt it did not address the situation in a manner that was appropriate to the bill.

Citizen's Arrest and Self-defence Act
Government Orders

10:20 a.m.

NDP

Guy Caron Rimouski-Neigette—Témiscouata—Les Basques, QC

Madam Speaker, I also listened carefully to the speech by my colleague from Hamilton East—Stoney Creek.

The NDP will obviously support the bill. However, some groups have raised legitimate concerns, which have been addressed in part by the committee. One concern is the perception that this will encourage groups of citizens to somehow take justice into their own hands. In English, we call them vigilantes.

I would like to hear what my colleague has to say about this, and I would like to know whether he believes that the bill will lead to more incidents of vigilantism.

Citizen's Arrest and Self-defence Act
Government Orders

10:25 a.m.

NDP

Wayne Marston Hamilton East—Stoney Creek, ON

Madam Speaker, there was a situation in the United States where an unarmed young man was shot. There is legislation in that country called Stand Your Ground, which gives permission to people who feel under threat of physical harm to take a life. That is 100% different from what we are talking about here.

In that instance, there was subjectivity in deciding that person was a threat. They are, obviously, if the person is armed or actually proceeds to strike another. In that instance, apparently, the young man was shot because of things that were said as opposed to things that were done.

This bill does not provide for that to happen in Canada. Our committee members who looked at this were satisfied at the end of the day that it would not generate that kind of response.

Citizen's Arrest and Self-defence Act
Government Orders

10:25 a.m.

NDP

Alex Atamanenko British Columbia Southern Interior, BC

Madam Speaker, I thank my colleague who just spoke, and I will continue to elaborate on this bill.

As he mentioned, the bill makes good sense.

This bill seems to make a lot of common sense by directing that a citizen is able to assist in the arrest of someone who commits a crime, even if there is delay. I think that makes sense.

Bill C-26 amends subsection 494(2) of the Criminal Code, which deals with citizen's arrest, to provide greater flexibility.

The amendments will allow citizens to make arrests without a warrant within a reasonable time. The main change is the introduction of the concept of reasonable time. At present, subsection 494(2) requires the citizen to make the arrest when the crime is being committed. That is the difference between the existing law and the proposed bill.

Bill C-26 also includes amendments to sections 35 to 42 of the Criminal Code, which deal with self-defence and defence of property. These amendments will make long-awaited changes and simplify the complex provisions of the Criminal Code on self-defence and defence of property, as called for by the courts.

As several of my colleagues have already mentioned, members on this side of the House support the bill. Half of the bill consists of measures that the NDP had already proposed in the private member's bill introduced by the member for Trinity—Spadina. This part of the bill amends subsection 494(2) of the Criminal Code, which deals with citizen's arrest, making it possible for citizens to make arrests without a warrant within a reasonable time.

The other part of the bill seeks to clarify the sections of the Criminal Code on self-defence and defence of property. After a thorough review of the bill was conducted and expert witnesses were heard at committee stage, it was established that the changes made the legislative measure clearer. Our main goal in examining the bill was to ensure that it did not encourage citizens to take justice into their own hands or put their own safety at risk. Even though some concerns were raised about these issues with regard to citizen's arrest, self-defence and defence of property, we determined that the bill proposed some acceptable changes.

It should be noted that each of these three concepts already exist in the Criminal Code. Accordingly, the proposed changes in the bill will only affect existing aspects of our current legislation and will not add anything completely new.

This is what happened in committee. A diverse group of witnesses appeared before the Standing Committee on Justice and Human Rights, including representatives from the Barreau du Québec, the Canadian Convenience Stores Association, the Association of Elizabeth Fry Societies, the Association of Professional Security Agencies, the Canadian Bar Association and the Canadian Police Association, as well as academics and practising lawyers. In other words, experts testified before the committee.

So while we already supported the intent of the bill, we did propose a number of amendments arising out of the recommendations made by witnesses, as is our usual practice. That is the logical process: we listen to the witnesses and we propose amendments. Two of those amendments were agreed to and seven were rejected. More specifically, we should mention that the amendment to incorporate the subjective element in the part of the bill relating to self-defence was rejected.

That amendment would have covered all of the things done in self-defence that are commonly referred to as “battered wife syndrome”. For example, the subjective element means that a person who has been a victim of family violence may reasonably perceive a greater threat from a person who has previously been violent than a person without that background would perceive.

In other words, it is important to take into account the subjective perception of the circumstances, rather than to have a purely objective perception of the situation. We believed that the wording relating to the history of the two parties was not sufficiently precise in Bill C-26, and of course we wanted to ensure that the fact that “the act committed is reasonable in the circumstances as perceived by the person” would be taken into consideration in this kind of situation.

This was also the first time that Parliament had an opportunity to incorporate the concept of the subjective element, which had until now been developed in the case law, into the Criminal Code itself. The Canadian Bar Association and the Canadian Association of Elizabeth Fry Societies both recommended this amendment.

We did, however, succeed in having the amendment that requires that the court “consider the relevant circumstances of the person, the other parties and the act” agreed to. While that wording is not as specific as “the act committed is reasonable in the circumstances as perceived by the person”, the amendment we did get agreement to will put a greater onus on the courts to consider the history of the relationship between the individuals.

We recognize here that these sections of the Criminal Code need to be included, and even though most of our proposed amendments were rejected, we still believe the bill updates the legislation appropriately and we support the bill.

I would like to give a little context in the minute I have left. As my colleagues know, on May 23, 2009, David Chen, the owner of the Lucky Moose Food Mart in Toronto, arrested a man who had committed a theft in his store. Everyone knows the story here. I am going to conclude by saying that even though all the amendments were not agreed to, we support the bill on this side.

Citizen's Arrest and Self-defence Act
Government Orders

10:35 a.m.

Liberal

Sean Casey Charlottetown, PE

Madam Speaker, I would like to thank the member for his speech. He stated a few concerns regarding clause 2, which contains exceptions and relevant considerations.

My question for the member relates to the list of factors enumerated in the new bill with respect to when self-defence is available, in particular the list of factors at proposed paragraph 34(2)(f) that allow for a court to consider the nature, duration and history of the relationship between the parties. I did hear his comments with respect to that section.

Our concerns with respect to that section are that it could cause problems in two ways, in that self-defence may be available in circumstances where it now is not and that the presence of the section could result in a claim of self-defence not being taken seriously simply because it is there.

I would be interested in any further comments the hon. member has with respect to that factor being included in the self-defence provisions.

Citizen's Arrest and Self-defence Act
Government Orders

10:35 a.m.

NDP

Alex Atamanenko British Columbia Southern Interior, BC

Madam Speaker, the way I read the bill is that there is discretion. The bill allows the judge the discretion to determine when looking at self-defence or reasonable cause.

I do not think it is the intent of the bill to allow unreasonable use of force as a means of self-defence. I understand that concept because I have spent the last 30 years studying martial arts and self-defence and I understand that it could go overboard.

The way it stands, there is probably sufficient protection in the law to ensure that the judge or those who look at this would understand that there will not be an overuse of self-defence and that reasonable cause and the background would be taken into consideration.

Citizen's Arrest and Self-defence Act
Government Orders

10:35 a.m.

Green

Elizabeth May Saanich—Gulf Islands, BC

Madam Speaker, my question is also a commentary on our procedure in Parliament and how we handle legislation. I raised this issue earlier with the member for Hamilton East—Stoney Creek and was slightly misunderstand.

As a member in this place for the Green Party, I am not a member of committee, but I have the right to put forward amendments at report stage, which I think provides the House with an ideal opportunity to further improve legislation. That is indeed why there is the opportunity for amendments at report stage.

What increasingly happens is that when political parties as entities decide that they are satisfied with deals struck at committee, they are no longer willing to consider improvements that are even advocated by such a group as the Canadian Bar Association. That is why not a single member of this Parliament was willing to second an amendment that would have improved the legislation.

I would like my hon. friend's thoughts on this problem that we face, the problem of groupthink within parties.

Citizen's Arrest and Self-defence Act
Government Orders

10:40 a.m.

NDP

Alex Atamanenko British Columbia Southern Interior, BC

Madam Speaker, I would like to thank my colleague from Saanich—Gulf Islands for her question and once again welcome her here. I always enjoy hearing her her comments and her take on matters in the House.

All of us in political parties, when the political party gets bigger—and one day, hopefully, her party will also grow—have a tendency to not allow discussion from outside the party. I think we have to be very vigilant with that. Even though we may have a majority and another party may have only two or three members, it is part of the democratic process in the House, and we owe it to the Canadian public to allow this democratic process to function.

I look at the debate on proportional representation. We talk about that, and I am glad my party supports this concept. I know that other parties have supported it in the past, but once they got into power, they forgot about it because they did not need it.

We have to be constantly vigilant about democratic debate and allowing all members to express their views and to have input into any legislation.

Citizen's Arrest and Self-defence Act
Government Orders

10:40 a.m.

Liberal

Sean Casey Charlottetown, PE

Madam Speaker, I am pleased to have the opportunity to speak to Bill C-26.

This particular piece of legislation would amend the Criminal Code to allow an individual who owns or has lawful possession of property, or persons authorized by them, to arrest, within a reasonable time, a person whom they find committing a criminal offence.

As well, the bill attempts to clarify in law the self-defence provisions. I have some concerns with respect to these and will elaborate on them momentarily. However, I do want to say from the outset that the Liberal Party will support this bill, although we do have concerns about certain aspects of it.

Currently the Criminal Code allows Canadians the right to claim self-defence in the event they are assaulted without provocation. The Criminal Code also allows for Canadians to rely on the defence to property provisions in certain circumstances, so there is a Criminal Code defence of self-defence and defence of property. There is also a common law defence for each of them as well.

The point I wish to make is that we are not dealing with a legislative vacuum. There are laws with respect to self-defence and defence of property, both codified and under the common law. It is true that some aspects of the Criminal Code in this regard are outdated and in need of modernization. Indeed, the provisions of the Criminal Code with respect to defence of property span five sections and with respect to self-defence span four sections, sections 34 to 37 of the Criminal Code.

While Liberals support the bill, I do wish to raise again what has already been articulated by the hon. member for Mount Royal, a couple of areas of the bill, and there are more.

Two areas will be the focus of my remarks. The first concern relates to the property defence provisions of the bill. I have some concerns with respect to the consequences of their new breadth. They have been expanded and there are, understandably, consequences associated with that expansion.

In particular, it is clause 3 of the bill that is the operative clause here. I would like for those Canadians watching and those who are unaware of the contents of clause 3 to quickly read into the record exactly what it says. Clause 3 of this bill amends subsection 494(2) of the Criminal Code with the following:

(2) The owner or a person in lawful possession of property, or a person authorized by the owner...

—“authorized by the owner” is important wording, for reasons that I will come back to—

...or a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence or in relation to that property and

(a) they make the arrest at that time; or

(b) they make that arrest...

—and these are the key words in this section—

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.

One of my concerns with respect to this section relates to private security agents. As I indicated, this section allows for persons “authorized by the owner” to make an arrest “within a reasonable time after” the commission of an offence.

We are all aware of private security firms and private security officers. We see them at hockey games. They are often out in full force on the weekends, watching over a particular business or providing security in a mall.

The amendments contemplated in this bill prescribe new powers to private security agents and in some cases provide them with powers incongruent with their training and experience as private security agents. It needs to be borne in mind that private security officers are accountable to the property owners, accountable to their employers, as opposed to the accountability that peace officers have to their code of conduct.

We know that peace officers, or police officers, are duly authorized individuals who we entrust to enforce the Criminal Code and other statutes in this country. They exercise considerable power only after a process of extensive training. Peace officers in this country are well trained in police tactics, arrest procedures and the Criminal Code. More importantly among the list of requirements, these individuals are properly vetted for temperament and balance. After that training, we entrust these individuals with a gun.

All that is well and good in this country. We need our police to protect us. I am concerned that this particular clause of the bill may lead to serious difficulties, including vigilantism. Allow me to provide what is now a very well known example.

We are all very well aware of the situation in Florida recently where an individual acting as a neighbourhood watch person now stands accused of committing second degree murder. He is up on charges because, as we understand it, he is being accused of using excessive force. The facts in this matter are now very well publicized. A young man is now dead as a result of another individual who, while functioning as a neighbourhood watch person and in possession of a weapon, acted in what he claims was a lawful manner because he was defending property.

I share this example only to point out that when laws are enacted in which we provide individuals the right under the Criminal Code to act in the protection of their property or of their person, or act in the stead or at the behest of another in an employee-employer relationship, we must be very careful. I have no doubt there will be a time when we will face a situation perhaps not unlike what we have seen in Florida.

Therefore I am concerned about this particular provision in the bill, and I hope the government might take another look at it as it proceeds to the Senate for legislative scrutiny. Certainly allowing for a piece of prime legislation to be amended at the Senate is not without precedent, even in this particular session of the House.

Another source of concern for me can be found in proposed section 34. This section does not deal with defence of property, but with self-defence. Again, for the record and for those who are not in possession of the bill, proposed subsection 34(1) states that a person is not guilty of an offence if :

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

That is the new law that has been proposed. The current Criminal Code with respect to self-defence reads, and I quote:

Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force

I have two concerns with respect to this section. The first is the removal of provocation as a relevant consideration for self-defence. The second is the removal of the necessity of an unlawful assault, preferring instead the word “force”. The question becomes how broad the word “force” is. The law used to say that one could rely on self-defence if one were being assaulted, which implies a violation of the person. However, the word “force” is broader than that and arguably could have an economic force element. Therefore, it broadens the situations in which a claim of self-defence may be made. I will state again that I hope the government might take another look at this matter and perhaps be open to further discussion.

I will conclude by suggesting that we are in general agreement with the thrust of this bill. As suggested by the member for Mount Royal, the bill does provide elements of clarity for prosecutors, judges and juries as well as those who may find themselves in a circumstance where they need to defend themselves or their property. Time and jurisprudence arising out of the application of these provisions in our courts will inform us if the amendments have gone too far.

Citizen's Arrest and Self-defence Act
Government Orders

10:50 a.m.

NDP

Guy Caron Rimouski-Neigette—Témiscouata—Les Basques, QC

Madam Speaker, once again, I listened attentively to the speech by my colleague from Charlottetown.

In fact, I would like to ask more or less the same question that I asked previously, but I would appreciate the perspective of the third party on the sometimes legitimate fears regarding people who might try to take justice into their own hands, as a group. These people roam around certain neighbourhoods and are called vigilantes.

I would like to know what my colleague thinks about the bill before us. Could he say a little more about his point of view, his fears and his concerns regarding the scope of the bill and certain groups or individuals?

Citizen's Arrest and Self-defence Act
Government Orders

10:50 a.m.

Liberal

Sean Casey Charlottetown, PE

Madam Speaker, of course it is important. I touched on that in my speech. I hope we can count on judges and the courts to act judiciously when they consider this legislation.

My response to my colleague is that, with the expansion of the rights with respect to defence of property, there is always a concern about vigilantism. I focused my comments on the expanded rights for private security officers, but this also goes for private citizens. The bill itself does not promote vigilantism, but the problem is that the public perception of the expanded rights of citizen's arrest does raise that flag.

My colleague is right to be concerned about it. It is incumbent upon the judges in the country as they interpret the new provisions to make sure that there is a governor on that and that the jurisprudence around this is reported by the media in such a way that the public awareness does not result in those unintended consequences.

Citizen's Arrest and Self-defence Act
Government Orders

May 1st, 2012 / 10:50 a.m.

Green

Elizabeth May Saanich—Gulf Islands, BC

Madam Speaker, as we approach Bill C-26, a lot of members of Parliament are mindful of the notion that hard cases can make bad law. There is the specific case of David Chen and the Lucky Moose. We would have wished that the police on the scene had exercised some common sense and discretion by not prosecuting the individual. Now we have a law where a lot of us are concerned that there could be an increase in injuries, and even deaths, from people trying to take the law into their own hands, feeling empowered by what the House is doing with Bill C-26.

Since I am the only person planning to vote against this legislation, its passage is a certain thing. I ask my friend whether he thinks there is any way the House can send a message to Canadians that they should avoid taking the law into their own hands.

Citizen's Arrest and Self-defence Act
Government Orders

10:50 a.m.

Liberal

Sean Casey Charlottetown, PE

Madam Speaker, that is a difficult question because here we stand as legislators expanding the rights of citizen's arrest. We as legislators debate the bill and express our concerns over it, but what enters the public psyche is what it reads through the media.

We as legislators can do so much, and I believe we are doing it here today, but it is extremely difficult to control the message. There will be elements of society who, as my colleague points out, would feel empowered by these expanded notions. As she indicated, hard cases make bad law. There will undoubtedly be cases going forward where the expanded right of self-defence or defence of property will be used to justify inappropriate actions.

It is my hope and expectation that the coverage around those hard cases informs Canadian judgment. I think it is more likely that will impact public opinion than the debates we have here as legislators, which by necessity are at times on the theoretical as opposed to practical level.