An Act to amend the Criminal Code (arrest by owner)

This bill was last introduced in the 40th Parliament, 3rd Session, which ended in March 2011.

Sponsor

Joe Volpe  Liberal

Introduced as a private member’s bill. (These don’t often become law.)

Status

Introduced, as of June 16, 2010
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to give the owner or person in lawful possession of property the power to arrest without warrant a person he finds committing, or he believes has committed, a criminal offence on or in relation to that property.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

February 28th, 2012 / 11:30 a.m.
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Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

Thank you very much, Mr. Chair.

Thanks as well to the witnesses for being here.

To Ms. Shi and Mr. Chen, I say xie xie, thank you very much for coming here. We always appreciate it when Canadians who are not affiliated with any group but are here simply to make our laws better come to speak to us.

And I don't mean to overlook you either, Mr. Abergel. Thank you as well.

I have some questions for Ms. Dufour that I will have to ask in English because my French is not very good.

I have questions regarding the section of your brief on citizen's arrest, and in particular the extracts from your previous letter, which are found on page four, some of which could be quite misleading if there are those who read them and are not informed about the facts.

In particular, the second-last paragraph on page four refers to Bill C-547, extending the power of arrest so that it can be exercised by citizens who believe on reasonable grounds that an offence has been committed. I would like you to acknowledge publicly here that you are aware that our bill does not extend section 494 in the same manner that Bill C-547 did. You're aware of that, I take it?

February 28th, 2012 / 11:05 a.m.
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Nicole Dufour Lawyer and Coordinator, Criminal Law Committee, Barreau du Québec

Thank you very much.

I am here with Giuseppe Battista, who is chair of the Barreau du Québec's criminal law committee. That committee consists in equal parts of defence lawyers and crown attorneys, as well as a few university professors.

On reading Bill C-26, we note that, to a large extent, it reiterates the content of Bill C-60, which had the same title, and bills C-547 and C-565, which dealt with the same subjects and on which the Barreau has previously commented.

We note that certain expressions in the French version of Bill C-26 are inconsistent with the English version and should be corrected. The words "unlawfully" and "lawfully" in the English version are translated by expressions using the word "légitime", which, in our view, does not necessarily convey the purpose intended by the English version. For example, section 34(3) as proposed by the bill contains the expression "agir de façon légitime". We submit that the phrase "autorisée par la loi" would be more accurate than the word "légitime".

The Barreau du Québec would like to offer its congratulations on the effort to simplify the legislation relating to self-defence, which has been criticized by the courts and by law enforcement bodies. In our opinion, these amendments do not alter the current case law, since the proposed provisions address the conduct and actions of a person who uses force, and not the outcome, for deciding whether the use of force in the circumstances is reasonable and lawful.

However, we believe that the choice to legislate in the negative is not advisable in the circumstances. We submit that it would be preferable to use an affirmative formula that refers to the right to repel force, or the threat of force, by force.

Bill C-26 reiterates the elements of Bill C-60, which provided that an arrest may be made within a reasonable time after the commission of an offence if a person believes on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. The Barreau du Québec believes that the proposed amendments are potentially dangerous in terms of the safety of the individuals involved in exercising a power of this nature and for the persons who would be subject to it.

In addition, the fact that a citizen's arrest must be made "within a reasonable time" after the commission of the alleged offence leaves the way open for a possible abuse of power. Any arrest includes elements of unforeseeability arising from the use of the force that is needed in order to make an arrest, peaceful though it may be. By definition, an arrest implies the use of force: a person who makes an arrest must physically control the person and restrict their movements and, if necessary, may use reasonable force to compel the person to submit to their authority. When police make an arrest, they are identified by their uniform or otherwise, and persons arrested by police know that the police are entitled to make arrests, even if they believe the police are in error in their case, and police are required to inform the person arrested of the grounds for the arrest and of their rights. The police are trained to make arrests, and even with their training and skills, arrests sometimes go wrong, even where the persons involved are not criminals. A member of the public does not have the training and resources available to police forces. The power of arrest is an important power that must be exercised in accordance with the law, and the rights of a person who is arrested must be respected.

The power to arrest granted to individuals must be an exceptional one and must be subject to strict guidance. We believe that the use of the expression "reasonable time", as proposed in section 492(2), is problematic, in view of the risks associated with a citizen's arrest.

Citizen's Arrest and Self-defence ActGovernment Orders

March 21st, 2011 / noon
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Liberal

Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL

Mr. Speaker, it is an honour to rise to speak to this particular issue about citizen's arrest and the events that precede it.

We are here today to look at an amendment to section 494 of the Criminal Code. In my opinion, we are righting a wrong by doing this. I fully support this idea and fully support this bill.

There have been several episodes in history where this has been looked at and analyzed as a way of fixing an issue that has arisen due to one particular case that was featured in the city of Toronto. That was the story of David Chen. There has been a lot of media attention around this situation and his particular circumstance. If I may, I would like to talk about that very briefly.

In his security videos and from his own personal observations Mr. Chen noticed a particular individual time and time again stealing certain merchandise. The perpetrator was known in the area for having committed certain crimes. As a result, he appeared very suspicious.

The perpetrator went to Mr. Chen's place of business and stole a particular item. He then returned a half hour later only to be confined by Mr. Chen. The police moved in right away, but they went after Mr. Chen, not the perpetrator. As a result, there were several charges laid that we have talked about in detail. I will get to that in just a moment. The important fact is that Mr. Chen made the citizen's arrest after the incident had taken place. Therein lies the meaning of this particular legislation, and I am sure many Canadians would agree, that a certain period of time be allotted to act upon this or that there is a reasonable amount of time allotted wherein one can make a citizen's arrest.

The bill seeks to amend the Criminal Code to allow private citizens who own or have lawful possession of property to arrest a person they find committing a criminal offence on or in relation to that property within a “reasonable amount of time”. This power of arrest is permitted only in circumstances where there are reasonable grounds to believe that it is not feasible for the arrest to be made by law enforcement officials. Therein lies the other part of this, which is to say that in the case of Mr. Chen, which is the example we are using, he was put in a position where he was called into action. There were no peace officers there at the time. Therefore, in the absence of law enforcement officials, his judgment call was to make a citizen's arrest on that particular person he felt would steal something from his business. I imagine most of us would feel that his acts are justified.

As a result of this action, therein lies the crux of this particular amendment, which talks to the reasonable amount of time one has to do this. Currently, the legislation deals with the acts or actions one may take in making a citizen's arrest within a specific period of time. Therefore, the emphasis is on the particular amount of time that one has to make a citizen's arrest.

If a person, having witnessed a crime wherein the perpetrator has left the scene only to return, in David Chen's case it was 30 minutes, feels that he or she must take action, I believe the majority of Canadians feel that making a citizen's arrest at that time is indeed justifiable.

This has been an issue since I believe September 27, 2009, when the minister originally mused about it. As a result, almost two years later we are now looking at the legislation being tabled as we debate it in the House.

There does not seem to be a tremendous amount of debate here as the government put this bill forward and the Liberal Party and the NDP have endorsed it. Of course there have been private members' bills from the Liberal Party, by my colleague for Eglinton—Lawrence, and also my colleague from the NDP in the riding of Trinity—Spadina reflecting this issue.

As many people can imagine, there are some concerns around the term “a reasonable amount of time”.

Every time we talk about legal issues and legislation that makes an amendment to the Criminal Code, we always talk about and sometimes consider what is a reasonable amount of time and actions that are deemed to be reasonable in a court of law. Therefore it is open to interpretation.

Because we are at second reading of the bill and by accepting this in principle, it would now be sent to committee to find out what is a reasonable amount of time and to flesh out some of the parameters around this piece of legislation.

There is a certain amount of ambiguity that constitutes what is a reasonable amount of time between when an act of violence is committed and when a citizen's arrest is made.

We know that some police officers have raised concerns in the past about this legislation. We certainly look forward to hearing what input they bring to this and I will get to a few examples in a few moments.

Many months ago this issue was moved on when we saw the situation with David Chen. Private member's Bill C-547 was introduced by the member for Eglinton—Lawrence. We now find ourselves debating a government bill but two years ago we were dealing with all kinds of amendments to the Criminal Code. How this issue did not manage to pop up in the debate over the two-year period is slightly questionable.

The amendments that are being made, whether they be mandatory minimums, whether they be Internet crime and things we have seen over the last little while, especially when it comes to mandatory minimums, there has been a lot of debate in the House regarding amendments to the Criminal Code.

I am not a lawyer, but nonetheless I have heard from many legal experts who have said that the Conservatives could have done all of this in a much shorter period of time if they had done the amendments through, say, four, five or maybe even six bills as opposed to the 15 to 20, in that range, that we currently have. This could have been done two years ago, or the Conservatives could have accepted my colleague's private member's bill at the time. That probably would have been the most prudent way to go. Nonetheless, we find ourselves in the House today debating this legislation.

I look forward to what will be talked about at committee. I talked earlier about the ambiguity surrounding this. In the circumstances, we do have a legitimate concern to be addressed, but nonetheless, the principle of the bill is a sound one, which is the ability for citizens to make arrests. The situation with David Chen in Toronto is really an illustration of why we are debating this and why, I assume, most members of the House accept the bill in principle.

The incident of David Chen took place in October 2010. At that time there was a lot of debate and it received quite a bit of notoriety from coast to coast to coast. As a result of that, the debate became apropos of the times. Citizen's arrest is something we talked about. It has not been as publicized as it is now. The David Chen video tapes became news everywhere. I am from Newfoundland and Labrador and it was a big story there as well. It was featured prominently. It was not just a local Toronto story. Therefore, the issue gained that much more weight as a result of it.

The Criminal Code allows for a citizen's arrest as it stands right now. The amendment to section 494 would address that, but where an individual is caught in the act of committing a crime on a person or property and a citizen immediately detains the subject, therein lies the current state of the Criminal Code which addresses a citizen's arrest. The provision allows for an arrest to occur without having to wait for law enforcement to arrive on the scene. There are several examples over the years that would address this. Certainly an amendment to section 494 would address the situation regarding a reasonable amount of time. There is no doubt in my mind that a reasonable amount of time, which was illustrated by the David Chen case, perfectly justified a citizen's arrest. I believe the time was 30 minutes after the first encounter.

Therefore, in that particular case, it illustrates that a reasonable amount of time would be justified by this amendment. However, to put the parameters around this particular piece of legislation requires it going to committee and I look forward to hearing the debate on that.

The bill would also expand the scope of a citizen's arrest to allow for such detention to occur within a reasonable amount of time. It is not clearly defined what constitutes the reasonable amount of time, which will certainly be debated. The bill states clearly that no individual is entitled to use excessive force in the process of detention of another individual.

There have been other groups and stakeholders who want to discuss this as well and I am sure they will be given ample opportunity once they arrive at committee. I implore all my colleagues to support this bill in principle and send it to committee.

Citizen's Arrest and Self-defence ActGovernment Orders

March 7th, 2011 / 6:10 p.m.
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Liberal

Joe Volpe Liberal 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 ActGovernment Orders

March 7th, 2011 / 3:20 p.m.
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Liberal

Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, before question period I had set out some arguments that reflected the concerns already raised by some hon. members that this bill may not be a good start in terms of the intent. There may be good reasons that this bill should have been referred to committee before second reading to allow some expert testimony from witnesses to assist in making whatever changes they felt necessary before it came to the House for debate.

I pulled up the minister's speech from Friday on this matter, and it strikes me that this has been going around for a long time. In fact, we are talking about an incident that took place in 2009. Mr. Chen was acquitted on February 17, 2011. It has taken a very long time for this bill to be received. I think it was only on February 17 that the bill was tabled at first reading, and here we are in March.

I wonder why the minister would not take the opportunity for a bill that includes, in the opinions of a number of hon. members, potentially some confusing areas that may be very problematic. The factors that would determine whether or not there was a reasonable amount of time, a reasonable expectation, et cetera, are very long and when these incidents occur on a snap basis, the public at large will not be familiar with them. This bill may encourage people to feel empowered that they can undertake a citizen's arrest without knowing that they may very well still be charged. Ultimately, it would be up to the courts to determine whether or not they met the test under the bill. This is not a black and white situation.

Given that is the case, the only explanation I can think for why the minister did not refer the bill directly to committee was that the justice committee right now, as usual, is bogged down with several pieces of legislation. Considering the average time it would take to discharge those pieces of legislation, it is likely that this particular bill would not come back to the House after committee until sometime in the fall. We may not see this bill go to the Senate until the Christmas break, and then the Senate will deal with it at some point.

That is an awfully long time, even though it still presumes that the bill would go through the process very expeditiously. However, I do not believe that would be the case. I much suspect there will be substantial amendments sought at committee, first of all, to delete a number of clauses and, second, to add others, which may be challenged as beyond the scope or intent of the bill. There may be other problems with it.

As much as I hate to admit it, this particular case has been used as a bit of a political football.

I was reminded by another member that the member for Eglinton—Lawrence introduced a private member's bill on June 16, 2010, after Mr. Chen was acquitted and when the government still had not taken action.

On September 27, 2009, the minister of immigration actually visited Chinatown for a photo op and made an empty promise to raise the issue of amending the Criminal Code with the government.

On June 16, 2010, after nine months of inaction, the member for Eglinton—Lawrence introduced his private member's bill.

On October 10, 2010, Mr. Chen was acquitted. I was in error when I said it was February 2010; it was actually October 2010.

On November 4, 2010, the member for Eglinton—Lawrence held a press conference calling on the government to adopt his bill, Bill C-547.

On January 21, 2011, the Prime Minister met with Mr. Chen and promised legislation would be introduced soon.

On February 15, the government put a notice on the notice paper by the Minister of Justice that there would be a bill. It was in fact tabled in February and debated in the House for the first time on Friday.

This was an important case of clarification necessary in the Criminal Code for Mr. Chen and for other citizens who are victims of robbery, but there are certain elements that have to be taken in the law.

For most Canadians, it is a slam dunk. They are going to protect their property even if they have to tackle the guy, whoever he might be, and hold him until the police come. They do not think about whether or not they are using unreasonable force. If they happen to see this person the next day and recognize him they will tackle him. They are not sure whether that is a reasonable period of time.

That is precisely what the bill deals with, the various factors on how the courts are going to be asked to interpret our intent for this legislation. From listening to a couple of the speakers, I think the conclusion is that it is going to add confusion. Let me give some examples.

When people think about the amendments they will understand that in a heated moment, in a snap decision they might not have considered some of the following.

First, a person is not guilty of an offence if he or she believes on reasonable grounds that force is being used against him or her, or another person, or that the threat of force is being made against him or her by another person, if the act that constitutes the offence is committed for the purpose of defending or protecting himself or herself from another person, and the act committed is reasonable in the circumstances.

That is where the problem starts. What constitutes being reasonable in the circumstances to use force to arrest someone? In determining whether the act committed is reasonable in the circumstances, the bill suggests that the court may consider certain things. It is not that the individual should consider them, but I doubt that the public at large would be able to deal with it.

The court is going to have to consider the nature of the force or the threat being used and the extent to which the force was imminent or whether there were other means available to respond to the potential use of force. For example, were there any options. The court will have to consider the person's role and intent in the incident, what he or she was doing, was the person a party to it at some point in some way. The court will have to consider whether the party to the incident used or threatened to use a weapon. Sometimes it is unknown and people are not sure what constitutes a weapon.

The court will have to consider the size, age and gender of the parties to the incident. I am not sure many people would even think about that. I suppose if the individual is a very large person and the other person is intimidated by that individual, it may have some influence on the person's judgment about whether or not the person is going to attempt to arrest the individual. The nature, duration and history of any relationship between the parties becomes relevant, as does the nature and proportionality of the person's response to the threat of use of force, and whether the act committed was in response to the use of threat or force the person knew was lawful. That is part of it.

There is another whole part that goes into the whole aspect of defence of property, but there is a lot of parallel of what constitutes a defence of property. The point, without reading the various provisions, is that the bill does not propose a change in the Criminal Code, which is going to make a defence of property by apprehending or arresting someone because it is one's property.

I have a feeling that Canadians may not be comfortable understanding that we are balancing off the interests of defending and protecting our property and civil liberties. There are certain things that cannot be done to other people. Where is that balance?

When I looked at the speech the justice minister gave on Friday, he used terminology to say that the bill was balanced and necessary, but the speeches so far do not concur. The commentary so far is that although the amendments to sections 34 through 42 in the Criminal Code would cause some confusion, there seems to be some support for the amendments to section 495 and section 494.

Currently section 495 of the Criminal Code says that a peace officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, the peace officer believes has committed or is about to commit an indictable offence; a person whom the peace officer finds committing a criminal offence; as well as any person whom the peace officer believes, on reasonable grounds, has committed or is about to commit an indictable offence.

What the courts have told us is that for an arrest to be valid on the basis of reasonable grounds, the grounds must be objectively established, in the sense that a reasonable person standing in the shoes of the officer would believe that there are reasonable and probable grounds to make the arrest.

Section 494 of the Criminal Code deals with a private citizen making an arrest. Currently section 494 of the code says that a private citizen may arrest those found committing indictable offences, those being pursued by others who have the authority to arrest, or those committing criminal offences in relation to property.

It is important to note, and the minister agrees, that there is a legal duty under section 494 to arrest and deliver the person to the police forthwith. This has been interpreted by the courts to mean as soon as reasonably practical under all the circumstances.

All of a sudden, “reasonable” and “interpretation” become a big part of the bill.

The bill would expand section 494(2) to permit the property owner or a person authorized by the property owner to arrest a person if he or she finds that the person who committed a criminal offence on or in relation to his or her property is just at the time when the offence is being committed or also within a reasonable time after the offence is committed.

Here again is the concept of a reasonable time and, all of a sudden, it is subject to interpretation, so caution has to be taken.

I think I have made my point with regard to the changes being made. I would like to briefly comment on a couple of other points.

We have had two private members' bills on this issue already. It is clear that the government has not taken this seriously. In fact, it has politicized it by having photo ops and saying that it is going to do things, which it did not do for almost a year. Then, when we look at the calendar and what is going on at the justice committee, it is very clear that the bill is a long time away from ever becoming law, if at all.

I also note that the very last clause of the bill says that the bill will come into force when it gets fixed by an order of Governor in Council.

After the legislation goes through the House and the Senate and receives royal assent, the provinces have to get involved. It becomes even more problematic because the provincial policing authorities are probably the ones which are going to have to enforce this law. The government has not done its homework. It should have been done already. I do not believe that the government is serious about this. I hope it does not stand in the way of getting the bill through the justice committee expeditiously.

Citizen's Arrest and Self-defence ActGovernment Orders

March 7th, 2011 / 12:35 p.m.
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Mississauga—Erindale Ontario

Conservative

Bob Dechert ConservativeParliamentary Secretary to the Minister of Justice

Mr. Speaker, I am pleased to speak today on Bill C-60, An Act to amend the Criminal Code, which addresses the issues of citizen's arrest, defence of property and defence of persons.

I would like to begin by addressing the reforms to the law of self-defence and defence of property. Defences arise when a person is alleged to have committed a criminal offence. The availability of a defence means that, although a person did commit an act that would otherwise be a crime, he or she should not be convicted for it because of some other circumstance amounting to a defence at law. If a person is defending themself from an attack or defending their property from being stolen, they might need to behave in a way that would normally attract criminal responsibility, such as an assault against the person threatening them. The defences are the law's way of balancing the generally applicable offences with exceptional circumstances that can validate the commission of crimes.

In the McIntosh case in 1995, the Supreme Court of Canada issued a very stark assessment of the law of self-defence. Here is what former Chief Justice Antonio Lamer had to say:

I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.... It is to be expected that trial judges may encounter difficulties in explaining the provisions to a jury, and that jurors may find them confusing.

Chief Justice Lamer went on to say:

I am of the view that any interpretation which attempts to make sense of the provisions will have some undesirable or illogical results. It is clear that legislative action is required to clarify the Criminal Code’s self-defence regime.

Confusing law is not just a matter of passing concern; when laws are difficult to understand, there are real consequences. People will not be able to read the law and understand the rules that govern their conduct; and police will have a difficult time assessing whether a person has a valid defence for the conduct and may end up laying charges just to be on the safe side, in the hope that the court will sort out the confusion.

I have spoken with dozens of police officers who have told me that this is exactly what they do. I believe that this is probably what happened in the case of Mr. Chen. The police were faced with a series of confusing provisions in the Criminal Code. Their duty is to uphold the law, and so their duty is to lay a charge and seek the court's determination. That is what they did in this case.

That is why these types of cases and these provisions in the Criminal Code really require very close scrutiny, and that is what Bill C-60 is intended to do.

Prosecutors and defence counsel will spend considerable time making arguments about the meaning and the scope of the law; courts will have tremendous difficulty explaining the law to juries; juries will be asked to apply laws that even lawyers and judges do not fully understand; and even if the jury comes to the right conclusion, there are likely to be grounds for the losing party to appeal, causing delay in the final resolution of the outcome for the person charged, and the cost to the justice system will be significant and unnecessary.

We are right to be concerned about confusing laws. It is Parliament's duty to ensure that the law is accessible and clear to all Canadians. The time has come to do so in regard to these provisions.

When we looked at these provisions, we realized that there were nine provisions in the Criminal Code that were very confusing and, in some ways, contradictory. And when we looked further into it, we realized that these provisions of the Criminal Code had not actually been substantially revised since 1960. Thus it was the right time to do so.

The case of Mr. Chen was certainly a catalyst for change and gave rise to an opportunity for us to examine these provisions. However, when we actually sat down and spoke to shop owners, and here I hope that the member for Winnipeg North who spoke previously had an opportunity to do so in his city, we came to the conclusion that there was a lot more that needed to be fixed than just the timing of the citizen's arrest provision.

Prior to and after the Supreme Court of Canada's pronouncements in the McIntosh case, there were numerous attempts to reform the law.

First, the former Law Reform Commission of Canada proposed in 1987 a re-codified general part of the Criminal Code, the part that contains many general rules, such as the defences and rules surrounding participation in crime. This report included a reformed law of self-defence and defence of property.

The Canadian Bar Association also produced a report in 1992 for a reformed general part of the code and proposed a slightly different, but vastly simpler, defence of the person and defence of property.

Around the same time, the Department of Justice issued a white paper that was a draft of a new general part of the Criminal Code. It included yet another version of a simplified defence for self-defence and defence of person.

Again in 1998, the Department of Justice consulted with Canadians on various ways in which the defences could be simplified and clarified. However, law reform never came until now.

Bill C-60 presents the first legislative response in many decades to the confusing law on self-defence and defence of property. In a nutshell, the legislation seeks to simplify both defences in order to provide clear guidance to Canadians about what they can do in an emergency situation where they are forced by a threat to themselves or their property.

Simpler laws will provide better guidance to police officers who are called to the scene of a crime, who will, as a result, be better able to make appropriate decisions about whether charges are warranted or not. Simpler laws will also allow courts to instruct juries in a sensible manner. This will reduce successful appeals and retrials, saving the justice system unnecessary time and expense.

The proposed new law of self-defence will boil down to a few simple considerations: did the person reasonably perceive that they or another person was being threatened with force, or were they actually being assaulted; did they respond for the purpose of protecting themselves or the other person from that force; did they act reasonably in the circumstances?

These are the key components that permit a person to do what would otherwise be criminal, whether it be using force against force, or doing something else such as breaking into a property to escape an attacker. These components are very similar to those that are currently part of the law of self-defence, but the defence in Bill C-60 provides a single, simple, general rule. The law on the books today, by contrast, is based on the same basic principles but is written in a very complicated and overly detailed way.

Why does the law need to be more complicated than these three principles? The answer is that it does not. One new feature of the defence of persons is the addition of a non-exhaustive list of factors to help guide the judge or jury in determining whether the conduct was reasonable in the circumstances.

Our government believes this additional feature will be welcomed by the courts, which will be called upon to interpret the law and instruct juries on a more simple defence. The factors on the list are well known in the case law dealing with self-defence, because they often arise in all kinds of different cases.

The list will include the nature of the force that was threatened and the proportionality of the response to it, whether there were weapons present and whether the parties had a pre-existing relationship, including in particular whether there were previous incidents of violence.

This last factor will be particularly important in cases where a battered spouse uses force. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury to understand how a battered spouse might stay in a relationship or how they might come to understand the patterns of violence of their partner.

The list of factors to consider will help ground the jury's consideration of the facts by clearly identifying this factor, among others, as relevant to its assessment of reasonableness.

The current defence of property scheme has the same flaws as those of self-defence. There are too many overlapping provisions that set out specific situations and they are far too complicated to know which to apply and in what circumstances.

The reform proposed in Bill C-60 would dramatically simplify the law by setting out one single general rule for the defence. The same level of protection that is currently provided by five separate defences would be captured in one simplified defence. In the simplest of terms, a person will be able to do what is reasonable in the circumstances to protect property in their possession from being taken, destroyed or trespassed upon.

Bill C-60 expands the time in which a property owner can arrest a person who is committing an offence in relation to their property. This change will bring flexibility to the power of citizen's arrest, which will complement the other reforms in the bill by helping Canadians to protect their interests when the situation calls for urgent action.

I think all members can agree that clear and simple defences and a citizen's arrest law that provides flexibility for variations in the circumstances will allow all Canadians to take necessary and reasonable steps when the circumstances leave them with no other reasonable options.

I urge all members to support this important legislation.

If time allows, I would like to distinguish for all of the members present today the difference between Bill C-60 and the two private members' bills.

As I mentioned in my remarks, the government's bill is broader in scope. It clarifies and simplifies the law of self-defence and defence of property, and would expand the provisions governing citizen's arrest. The two private members' bills deal only with citizen's arrest.

With respect to the reforms to the citizen's arrest provisions, the government's bill would expand the time period for a citizen to make an arrest, but in a carefully and articulated way so as not to invite citizens to make such arrests where it is instead feasible and advisable for the police to do so.

Bill C-565, the NDP bill, proposes to allow a person to make a citizen's arrest of another person whom, on reasonable grounds, he or she believes has committed an offence and where the arrest occurs within a reasonable time following commission of the offence.

Bill C-547, the Liberal private member's bill proposed by the member for Eglinton—Lawrence, proposes amendments similar to Bill C-565 but without the reasonable time requirement.

Perhaps the member for Winnipeg Centre may want to read his colleague's bill. He mentioned something about reasonable time for a citizen's arrest, but that is not even included in that bill.

These two private members' bills would allow for a citizen's arrest based on reasonable grounds that an offence has been committed. However, there is no time limit within which this belief must be formed and the time could extend to weeks or months later.

The government's proposal, requiring that the arrester find someone committing an offence and make the arrest within a reasonable time only when it is not feasible in the circumstances for a peace officer to make the arrest, is more limited and more responsible. It does not equate the citizen's arrest power with that of the police.

JusticeOral Questions

November 2nd, 2010 / 2:55 p.m.
See context

Liberal

Joe Volpe Liberal Eglinton—Lawrence, ON

Mr. Speaker, after two disgraceful broken promises and inaction by the Conservative government to assist Toronto merchant David Chen, I introduced Bill C-547 to amend the Criminal Code regarding the section on citizen's arrest.

Now that Mr. Chen has been acquitted of all charges, thus validating the changes in my proposed legislation, will the Prime Minister stand up today, adopt my bill and pass it, or will he continue to allow victims of crime to be victimized twice?

JusticeStatements by Members

October 6th, 2010 / 2:15 p.m.
See context

Liberal

Joe Volpe Liberal Eglinton—Lawrence, ON

Mr. Speaker, for 18 months, while the Conservatives have been making empty promises on their tough on crime agenda, Toronto resident David Chen has been forced to defend himself in the judicial system for protecting his property.

Arrested and charged for apprehending a known and convicted criminal who robbed his store, Mr. Chen now faces the full weight of the legal system pressed against him.

In September 2009, in an obvious public relations exercise, the Minister of Citizenship and Immigration visited Mr. Chen, called him a victim of crime and promised to right the wrong. The current Parliamentary Secretary to the Minister of Justice even promised legislation. A year has passed and nothing.

Last June, given government inaction, I proposed Bill C-547 as a solution. It would amend section 494 of the Criminal Code. If passed, the bill would signal Parliament's will to end this double victimization of citizens.

However, the Prime Minister can today adopt my bill and honour his government's commitment to end this injustice, or he can ignore it and feed the impression that this is yet another Conservative broken promise.

Criminal CodeRoutine Proceedings

June 16th, 2010 / 3:25 p.m.
See context

Liberal

Joe Volpe Liberal Eglinton—Lawrence, ON

moved for leave to introduce Bill C-547, An Act to amend the Criminal Code (arrest by owner).

Mr. Speaker, I am pleased to rise today to introduce a bill that would amend subsection 494(2) of the Criminal Code where a citizen's arrest is only permissible if a perpetrator is in the process of committing a crime, a very short and often impractical window, even if the proprietor knows the individual, saw the individual, and the perpetrator has already committed the act.

I thank my colleague from Mississauga—Streetsville for seconding this.

Imagine homeowners who witness an individual vandalizing their home or property. Under the current act, they have no legal right to detain the perpetrator because by the time they reach him, the act has already been committed.

For example, a shop owner has been repeatedly robbed by a known career criminal, and yet one day, an hour after stealing something from the owner's store, the criminal comes back for more. The shop owner cannot capture him and call the police. Under the current law the shop owner would be charged with assault and forcible confinement and would be thrown into jail.

When just such an incident occurred last year in Toronto's Chinatown, the Minister of Citizenship, Immigration and Multiculturalism vowed to change the law, as did the Parliamentary Secretary to the Minister of Justice. A year later all they have delivered is false hope and disappointment.

Our laws should attack criminals, not the victims. My solution is in this bill. Now it is up to the Conservative government, so I ask, are the Conservatives going to stand up for victims or aid criminals?

(Motions deemed adopted, bill read the first time and printed)