An Act to amend the Criminal Code (arrest without warrant by owner)

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

Sponsor

Olivia Chow  NDP

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

Status

Introduced, as of Sept. 29, 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 / 11:35 a.m.
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Conservative

Stephen Woodworth Conservative Kitchener Centre, ON

The same comment is made in the final paragraph on page four in relation to Bill C-565. So again, the government legislation does not carry forward that issue from either C-547 or C-565, correct?

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 / 12:45 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I am pleased to stand today to speak to Bill C-60, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

The New Democrats are happy to support the bill, at least insofar as it would expand the legal authority for private citizens to make an arrest within a reasonable amount of time after they find that person committing a criminal offence.

It is important to understand that the bill would do three things: first, it would extend the time period from the present Criminal Code situation in which a person may make a citizen's arrest; second, it would amend the defence of persons provisions of the Criminal Code; and, third, it would amend the defence of property provisions of the Criminal Code.

It is the New Democrat Party's position that the first part of the bill is an appropriate amendment to our law that our party supports. With respect to the other two sections, we believe that those sections should be split from the bill or otherwise studied independently in committee prior to making any changes in that regard.

Again, the legislation would expand the legal authority for private citizens to make an arrest from the present situation which allows citizens to make that arrest if they catch someone in the commission of a crime; that is, any citizen of Canada can make a citizen's arrest lawfully under the Criminal Code provided that they make that arrest during the commission of that offence.

Canadians saw a spectacle last summer where a Toronto shopkeeper arrested a person who had come to his store on multiple occasions and stolen from him. His name was David Chen and the name of his store was the Lucky Moose. The thief returned to the store within a very close amount of time from having robbed it earlier, I think within the last day or two, and entered the store again. Mr. Chen had a videotape of this person, so identification was not an issue. Mr. Chen and his staff held that person until the police arrived.

What happened next is something that I think revealed the problem with the current law, which is that upon arriving at Mr. Chen's store, the police did not arrest the alleged thief, but arrested Mr. Chen and charged him with a number of offences, including unlawful confinement and other such, I think, completely unreasonable offences.

Of course, at the time, the police really had no choice but to do so because the law, as it currently stands, says that a person may only make that arrest during the commission of an offence. Since the thief had arrived at Mr. Chen's store not during the commission of the offence but within a day or two later, Mr. Chen was not within his rights, under the Criminal Code, to make that arrest.

The bill would also bring reforms to simplify or clarify, according to the government, the Criminal Code provisions on self-defence and defence of property, and clarify where reasonable use of force is permitted in relation to those issues.

The amendments to subsection 494(2) of the Criminal Code, on citizen's arrest, would authorize private citizens to make that arrest within a reasonable amount of time after they find someone committing a criminal offence that occurs in relation to property and the power of arrest would only be authorized when that person has reasonable grounds to believe that it is not feasible in the circumstances for the arrest to be made by a peace officer or, in other words, a police officer.

The legislation would also attempt to clarify, by cross-reference to the Criminal Code, that use of force is authorized in a citizen's arrest but that there are specific and concrete limits placed on how much force could be used.

In essence, the laws currently permit the reasonable use of force, taking into account all of the circumstances of a particular case and, of course, the current Criminal Code and the bill would continue to make it clear that a person is not entitled to use excessive force in a citizen's arrest.

There are very important considerations in the bill. A citizen's arrest is a very serious, potentially dangerous undertaking. Unlike a peace officer, a private citizen is neither tasked with the duty to preserve and maintain public peace nor, generally speaking, properly trained to apprehend suspected criminals.

In most cases, an arrest consists of either actually seizing or touching a person's body, with a view to detaining him or her, or by using words where the person submits to the arrest. Citizen's arrests made without careful consideration of the risk factors may have serious, unintended, physical or legal consequences for everybody involved.

When deciding if a citizen's arrest is appropriate, people should consider a number of factors, including whether a peace officer is available to intervene at that time, their personal safety or the safety of others, and whether that safety would be compromised by attempting an arrest. They should report information about the crime to police instead of taking action on their own wherever possible. They must have a reasonable belief regarding the suspect's criminal conduct and identity, and of course, they must turn over the suspect to the police without delay once an arrest is made.

I want to give credit where credit is due. My colleague from Trinity—Spadina, upon learning of Mr. Chen's situation, immediately went to work, as New Democrat MPs are renowned in the House for doing, by drafting a private member's bill, Bill C-565. The NDP responded to the situation before any other party in the House did.

My colleague drafted a bill that dealt surgically and precisely with the situation at hand. It could have been law today if the government had simply agreed to pass Bill C-565 by unanimous consent. In fact, all the parties could have done that. That bill would have expanded the time in which a citizen could make a citizen's arrest, which is all that is required.

The situation Mr. Chen faced was that he made an arrest after the commission of the offence and that is what put him in jeopardy. If we had amended the Criminal Code, we could have clarified that situation. The problem with the bill the government has put forward is that it goes beyond that. It purports to amend the sections of defence of property and persons in the Criminal Code, which are not situations that were required to be amended because of the Lucky Moose situation and which, of course, will slow down this legislation because now all parties in the House have to study carefully what those sections mean.

After my colleague drafted her bill, I was proud to second it. My colleague and I then toured small businesses in Vancouver Kingsway where I brought up the situation of Mr. Chen and the Lucky Moose to small business owners and asked their opinion. I also drafted a petition asking whether or not small business people would support my colleague's bill and there was overwhelming support.

The conversations I had with small business owners in Vancouver Kingsway made it clear that small business people are very concerned about theft, pilferage in their stores, the very slow response time of police, and the inability of police to deal adequately with the problem of shoplifting. These are hard-working store owners who employ thousands of my constituents and deserve to be better protected from those who would steal from them. I heard from small business people that their margins of profit are very thin and the difference between a small business owner making a living or not very often depends on the amount of crime, whether vandalism or theft.

I also met with the head of the Vancouver Chinatown Business Improvement Society and Tony Lam, and I heard their experiences. The shop owners in Chinatown in Vancouver tell me that their very existence is threatened by the crime experienced in the Downtown Eastside. They have to hire private security. They say that police are so over-stretched they are unable to respond. I want to talk for just a minute about that because part of the problem underlying this bill is the problem of over-stretched police.

I have met with police board representatives, police officers, chiefs of police, and with municipalities across this country. They tell me that the 2,500 police officer positions the government promised to create have not materialized. They have said that the $500 million in federal policing costs are being downloaded to municipalities. They told me that in order to make their streets safer, and ensure that citizens and businesses are protected, they need more community policing.

That is the underlying problem that this bill seeks to remediate. Citizens are now placed in the position of having to do what they pay taxes for, which is to get police to respond to crime. However, that does not happen when the government does not provide the necessary funding for long-term positions, does not target the money to provinces to create the positions, and does not create enough funds to hire the civilian staff necessary to support the police officers.

I am proud to support this bill and small businesses in this country, and to ensure they can protect themselves from crime.

Citizen's Arrest and Self-defence ActGovernment Orders

March 7th, 2011 / 6:25 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, I am pleased to speak to Bill C-60. I know others have outlined this but I want to put it once more on the record. What we have here is a government bill that is a result of some of the very good work that the member for Trinity—Spadina had done.

The member for Trinity—Spadina had introduced a private member's bill, Bill C-565, and we have talked about it already. It was as a result of an incident in a convenience store called the Lucky Moose in Toronto where the owner apprehended an individual who had stolen from the store some time after the theft had taken place.

I know other members in this House have spoken about the challenges for small business owners in this country to make a living. When a small business owner, who is trying very hard to make a living, has a theft, it is a huge problem, and we have somebody who is trying to prevent that theft from happening and he is apprehended.

Bill C-60, unfortunately, went far beyond the scope of what the member for Trinity—Spadina had introduced in Bill C-565. I know the member for Windsor—Tecumseh has done a very good job of outlining the much broader scope of the bill and the challenges with it. I want to focus on one particular aspect of the bill, which is clause 3.

Clause 3 of the bill states:

3. (1) Subsection 494(2) of the Act is replaced by the following:

The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

they make the arrest at that time; or

they make the arrest 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 would wonder why the Conservative government did not simply take that one part of the bill and put it into a piece of legislation that this House could rapidly pass. That would have dealt with the situation at the Lucky Moose.

Instead of ensuring that the House could discuss it and refer it to committee and get it passed, the government has needlessly complicated the legislation. It could have introduced two separate bills: one to deal with the situation at the Lucky Moose and one to deal with the other issues that it has brought forward.

The member for Windsor—Tecumseh has talked about the fact that there could be unintended consequences and it is incumbent upon us in this House to study those consequences.

Citizen's Arrest and Self-defence ActGovernment Orders

March 7th, 2011 / 6 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

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

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

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

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

Citizen's Arrest and Self-defence ActGovernment Orders

March 7th, 2011 / 4:35 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I know my hon. colleague said that he was seeking answers to why the government has added what appear to be unnecessary provisions to this bill. I will suggest a possible answer for him and I would like his comment on it.

The issue that spawned this was when Mr. Chen arrested someone after the commission of an offence but within a reasonable time. My colleague from Trinity—Spadina quickly drafted a private member's bill, Bill C-565, which dealt exactly with that scenario. It would have amended the Criminal Code to permit a citizen to arrest someone, not only during the commission of an offence but within a reasonable time. Had we stopped there, the problem would have been solved.

However, if the government had adopted that common sense solution, it would have given the New Democrats credit for fixing the solution, which it could not tolerate. Instead, it had to draft a bill to add two further and unnecessary aspects to this bill, which is to radically alter the way we deal with self defence of person and property in this country.

I would submit for my hon. colleague that the reason the government did this was that it did not want anybody else in this House, be it the Liberal Party, the New Democrats or the Bloc, taking meaningful measures that protect community. In the government's view, it is the only one that can do that. Of course, Canadians know that is not the case.

Could my hon. colleague comment on that as being a potential theory as to why the government added two very unusual aspects to this bill that were not called upon by the situation of Mr. Chen and which cause more confusion than any solutions they offer?

Citizen's Arrest and Self-defence ActGovernment Orders

March 7th, 2011 / 12:55 p.m.
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NDP

Olivia Chow NDP Trinity—Spadina, ON

Mr. Speaker, first, I want to say that David Chen of the Lucky Moose Food Mart would never want to assault another human being. Therefore, this whole question of self-defence is a red herring, because he was not being attacked by the person who stole things from his store. It is not a question of self-defence we are dealing with. We are talking about his right to make a citizen's arrest.

Why do we need the part of this bill that deals with citizen's arrest? From coast to coast to coast we have heard from small business owners, not just from the one group the Conservative government spoke of having one or two meetings with. I have in fact met with store owners not just in Toronto but in Vancouver and Montreal also. They are saying that they work long hours, their profit margins are small and, unlike large stores, they have no money to hire security guards and do not want to do so. They really do not have a lot of extra staff on hand. They work such long hours and their profit margins are very low, so every dollar they lose from shoplifting means that they must work many more hours.

Let me describe Mr. Chen's situation. I believe that a large number of Canadians are now familiar with the story.

Mr. Chen works at least 16 to 18 hours a day, seven days a week, every week of the year. Most times he and his wife stay upstairs above the store in order to wake up early in the morning to go to the market to buy the merchandise they sell in their store. They hire a number of employees. However, on average they make around minimum wage, so every $100 they lose means they have to work another 10 or 15 hours. When they noticed that a person was repeatedly coming to their store to steal plants and food items, they wanted to take action. It is not that they wanted to cause any harm to anyone. They called the police several times and yet the police for some reason did not come.

An hour later the thief came back with the intent to steal more plants, because the first time around the thief was unable to carry all the plants that he wanted to take. He came back to steal more, but did not get to do that. David Chen proceeded to give chase and held the person in his van. Once the police arrived, Mr. Chen was charged with the very serious offences of assault, confinement, carrying a concealed weapon, et cetera.

Mr. Chen had difficulty finding the time and financial resources to hire a lawyer to go to court over and over again to defend himself. Members of the community in Toronto organized a fundraising banquet in order to support him because they felt that what had happened to him was unjust.

In my riding, we have noticed that what occurred to David Chen is not an isolated incident. Another store owner in the Kensington market area, Jeff Ing, who sells fruits and vegetables at his store, Jungle Fruit, has lost a lot of business because of the same person who was shoplifting at the Lucky Moose.

I then went with the member for Vancouver Kingsway to talk to other store owners. We walked along Victoria Street with a petition in support of my private member's bill, Bill C-565, that would allow a citizen's arrest to happen, not at a time when the offence is taking place but within a reasonable amount of time after an offence has taken place, with reasonable grounds. Every shop on Victoria Street and every shopper with whom we spoke were willing to sign the petition. They thought it was important that the Criminal Code be amended with a very common-sense amendment and that it was high time for such an amendment to take place.

Some people asked whether the amendment would encourage vigilantism. No, it would not because the code would not be changed in a way that would allow a citizen's arrest to be done in a way that would cause harm. The “arrest” is basically detaining the person while waiting for the police officers to come and make the actual arrest. The amendment would not change any part of the code dealing with using force.

Some may ask if it means that the employees of some stores would be requested to put their lives in danger in order to apprehend shoplifters. Absolutely not. People do not need to detain shoplifters. We encourage people to call the police and wait for them to come. It is only when there is no other choice that they would make a citizen's arrest. No employees would be under any duress, because they are protected by the provincial labour code, to put themselves in any kind of dangerous situation. It would not justify any use of force because that is not what it is all about.

We believe it is up to peace officers, RCMP, provincial police and the local police force to do their job. We need to ensure that community policing is the order of the day. We need to ensure the police are visible in the community, work closely with the communities and the business improvement area so we can reduce shoplifting incidents in the first place, rather than waiting for them to happen and a citizen's arrest having to be made. It is also important that the Conservative government honour its campaign promise to hire more police officers. However, in some cities across Canada, we have not see the increase of police officers as promised.

We must also invest in crime prevention. The person shoplifting should have drug treatment programs to ensure he or she quits the drug habit. The shoplifter admitted to that. For young people who may fall into gang situations, we need to find ways to ensure they have good role models and good employment programs before they start shoplifting in the first place.

Bill C-60, however, is not just about citizen's arrest. Two other portions in Bill C-60 are far more complex. I fail to see why the government would not allow this portion, which has the unanimous support of all parties, to move ahead, which is precisely the request that came from the community.

The member from Mississauga—Erindale, the Parliamentary Secretary to the Minister of Justice, was in receipt of suggestions for a private member's bill from the community with the precise wording that both myself and other members of Parliament have submitted. The community was interested in the citizen's arrest portion of the Criminal Code.

Adding in the defence of property and self-defence muddies the water. If the Conservatives are not willing to split the bill and do a quick consent for citizen's arrest, then the bill will go to the justice committee where it must go through a very detailed study of the two portions.

Some elements that modernize the Criminal Code may be worthy of support but some of the other amendments may have unintended consequences. For example, removing the requirements on the use force in self-defence could lead to troubling incidents and may result in the escalation of violence. I certainly hope not but we do not know.

The guideline right now is very straightforward in that ordinary Canadians are not allowed to use force that could result in the death of the attacker unless they believe their life is at risk. The use of force must be proven in order to defend oneself. If the definition of the type of threat is removed, then unintended consequences may result for people who believe they are under any kind of threat. In the Criminal Code now, the amount of force needed to repel an attack should be used, but not more. Why do we need to change that aspect of it?

This part of the bill is quite complex and causes some unease in terms of what precisely the Conservative government is trying to do, which is why we are calling upon the Conservatives to immediately split the bill and allow the other two portions of the bill to undergo careful examination. If the government is not willing to do so, then it is playing politics with incidents like David Chen's incident at the Lucky Moose Food Mart. Instead of working with other parties to get results and make Parliament work, the Conservatives want to take this incident and play partisan games with it, which is most unfortunate.

I hope that is not the government's intention, and I do not detect that intention. I sense a willingness of all parties to work together to ensure that incidents, like David Chen's incident, never happen again.

Perhaps all members of Parliament have heard the petitioners from coast to coast to coast who have petitioned Parliament to take action. I recently submitted 10,000 names to Parliament of people urging us to take immediate action.

This debate on amending the Criminal Code for citizen's arrests has been requested by the community for over a year and a half. The incident that led to this discussion, David Chen's incident, occurred in May 2009. It is not as if this just occurred. We have had a long time to look at the Criminal Code and a long time to discuss what needs to be done. On my private member's bill, which came forward in September of last year, there were numerous discussions on the citizen's arrest portion. A lot of store owners from Montreal have talked about this and they want us to work together.

It is my sincere wish that we do not muddy the water with the other two portions of this bill and allow the citizen's arrest portion to move ahead. There is no doubt that the whole notion of self-defence and protection of property in the Criminal Code, which was written a long time ago, will eventually need some kind of adjustment and amendment with more modernized wording so that the different sections can be compressed into a few sections. I understand why that is necessary but to tack it on to Bill C-60 is unfortunate.

The other element of this is that we do not know whether the Conservative government will bring forward a budget that is supportable by all parties. If the budget comes forward and one of the opposition parties makes a decision not to support it, then Parliament will not survive past the end of March. If that is the case, then all the work that has been done to amend the Criminal Code, specifically on citizen's arrests, will not occur.

We are in early March and there are only a few weeks before the coming budget. For this bill to get through second reading today or tomorrow, then go to the justice committee where it has a large number of justice bills in front it, and then, assuming it passes there, to come back to the House of Commons at report stage and then third reading will take quite a bit of time. After that, it still needs to go to the Senate for approval.

Leaving this bill so late, in terms of the upcoming budget, is most unfortunate. I do hope the government will work with the opposition members of Parliament to split the bill and allow the citizen's arrest portion to move ahead with unanimous consent.

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.

March 4th, 2011 / 1:05 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, we have seen this kind of positioning before by the Conservatives, where they are willing to cut off their noses to spite their faces. Although, with respect to the case of Karla Homolka, they were willing to separate that off and get it through in one or two days. It did work there. If it worked there, then why do we not try the same thing here?

We have made it clear that we are prepared to be expeditious with this part of the bill because it is essentially what is in Bill C-565, sponsored by the member for Trinity—Spadina. We have no problem with expediting that part of the bill because it is fairly straightforward. We would simply be extending the timeline for a citizen's arrest.

As I indicated, all those other points may or may not be valid amendments. By insisting that we keep these things bundled will basically slow the whole process down too much. Then the committee process will take an excessive amount of time and we may be unable to get the bill done as expeditiously as we could if we separated out that provision.

March 4th, 2011 / 12:35 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, I am pleased to speak today to Bill C-60. I have been watching this issue, like the rest of us have, for some time now. In fact, my colleague, the member for Trinity—Spadina, took the initiative and presented Bill C-565 in the House, which was a private member's bill designed to deal with this issue. I give her full credit for responding to her constituent. I suggest that this man is not alone in what he went through. There are many similar cases across the country every year. It is serious and important that this Parliament respond to these situations.

Mr. David Chen, as many of us now know, is the owner of the Lucky Moose Food Mart. He caught a thief who had repeatedly stolen from his store. Mr. Chen was charged with forcible confinement, assault and kidnapping because he caught the criminal an hour later outside he store and held him until the police arrived.

As was indicated by the member for Trinity—Spadina, many store owners in her constituency have had a similar experience as the Lucky Moose owner. She also mentioned at least nine other similar examples. The amendment in her bill would allow the owners to arrest criminals without warrant so that they could be turned over to the police. I believe she presented a petition signed by 10,000 people.

We need to consider what the store owner has gone through. My notes indicate that he has 20 to 40 cameras in the store, which is certainly a large expense for his small business. It sounds to me like he is constantly under attack by people stealing from his store. When Mr. Chen apprehended the thief, he had to go through at least nine months, perhaps longer, of stress and legal bills. I think the prosecution perhaps over-reacted, which is why we have this bill before us in the first place. If the prosecution had been reasonable and not charged him with all of these offences, I do not think we would see the bill we have in front of us today. However, that is the genesis of why this bill has come to the fore.

The government, never wanting to miss an opportunity given an election may be forthcoming, charged onto the scene. The Prime Minister, with the Minister of Justice and the press in tow, rolled into Mr. Chen's store and announced that he would adopt the provisions of the bill.

I believe the Liberal member for Eglinton—Lawrence has a similar bill that was later produced. The government was going to incorporate these bills into his bill. Of course, as we have seen from the government, when its bills come out they do not exactly mirror 100% what the other bills do. There are some considerations and concerns that we have with respect to Bill C-60, which is why we are interested in seeing this bill proceed to committee where some amendments can be made at that time.

As indicated, our party is recommending support for splitting the bill. We want to pass the amendments to section 494 of the Criminal Code at all stages without additional debate. Then we would like to refer the additional changes to the committee for a detailed study. The minister this morning and other members have indicated that we are dealing with five sections from the original Criminal Code of 1892. These five separate provisions create distinct defences and they all depend on the type of property and severity of the offences. So we are talking about something here that is going to need more detailed study at committee.

If we could split the bill, pass the amendments to section 494 of the Criminal Code at all stages without additional debate, and then refer the additional changes to the committee for study, that would be the way to proceed.

In terms of the amendments to section 494(2) of the Criminal Code, dealing with citizen's arrest, to permit arrest without warrant within a reasonable period, we would want to change the present wording. This change was originally proposed by the NDP and by the member for Trinity—Spadina in her private member's bill, Bill C-565, as a result of the “Lucky Moose” situation, which I have explained.

The amendment to section 494 of the Criminal Code has been supported in principle by the chiefs of police and the prosecutors and defence counsels. However, there has been no significant call for the additional changes by those who enforce and prosecute the law. That is why we would like to have this looked at further in terms of those provisions.

We would also recommend splitting the bill because Bill C-60 proposes compressing sections 34-42 of the Criminal Code which deal with: the defence of the person, sections 34-37; and property, sections 38-42 into two new parts. The stated rationale being:

--to clarify the laws on self-defence and defence of property so that Canadians--including the police, prosecutors and the courts–can more easily understand and apply the law.

We also have serious concerns about the overreaching nature of these changes and the possible unintended consequences that may result. There are already press reports concerning this bill and this incident which would give rise to some of the concerns mentioned by my colleagues. The members for Nanaimo—Cowichan; Skeena—Bulkley Valley; and the Western Arctic have all indicated concerns about how far things could develop in terms of vigilantism and how this would be communicated through the press.

As I said, we barely have the bill before Parliament and I have numerous press clippings indicating those very concerns, and perhaps exaggerating the case, because that is how we sell newspapers in this country. This could be misinterpreted by certain people who might feel that somehow the law has been changed and there is no limitation on what they can do to arrest a person.

The reality is we are simply providing that the person will have the power of arrest but on the basis that should there be a police officer available or if one can be reached then he or she must turn that person over to the police in short order. This is not designed to let people become vigilantes and mete out their own justice when and where they like. They will have to deal with the situation as it exists right now.

Another reality is that the bill has come about because of prosecution misjudgments. There is no other way to describe it. We have had prosecutions, such as this case, where a person has been charged with kidnapping. When the prosecution overreacts like that, then it is reasonable to have a law in place to specify that there is some leeway. However, on the other side of the coin, how far do we take this? These are some of the concerns that our colleagues and other members have indicated in their questions.

In terms of Bill C-60 itself, the legislation would:

--expand the legal authority for a private citizen to make an arrest within a reasonable period of time after they find that person committing a criminal offence either on or in relation to their property, ensuring the proper balance between the powers of citizens and those of the police. It would also bring much-needed reforms to simplify the complex Criminal Code provisions on self-defence and defence of property, and clarify where reasonable use of force is permitted in relation to the above.

I did mention that the Criminal Code was promulgated in 1892. The original Criminal Code has these five separate provisions from 1892. They are all in separate sections and vary depending on the distinct defences. However, those depend on the type of property and severity of the offences.

It sounds like a very confusing mess to try to sort out. Pulling these things together in one area is probably the way that we should resolve the issue. But as I had indicated, we want to ensure that we spend some time looking at that and the fact that particular aspect of it is not something that has been the subject of a lot of concern to the police forces and those applying the law. It gives us more reason to want to take a closer look at it. Perhaps it is something that had not been considered.

The proposed amendments to section 494(2) of the Criminal Code on citizen's arrest would:

--authorize a private citizen to make an arrest within a reasonable period of time after he or she finds someone committing a criminal offence that occurs on or in relation to property. This power of arrest would only be authorized when there are reasonable grounds to believe that it is not feasible in the circumstances for the arrest to be made by a peace officer--

That deals with the concern that somehow people would just simply ignore the police. They would still have to contact the police and turn the person over to the police as quickly as possible.

In terms of reasonable use of force, the legislation will make it clear by a cross-reference to the Criminal Code that the use of force is authorized in the citizen's arrest, but there are limits placed on how much force can be used. One cannot arrest a shoplifter and take him out back and beat him unrecognizable. That is unacceptable and would get one into a lot of trouble. However, one would be able to simply make the arrest using reasonable force knowing that he or she would not be charged with kidnapping or have to defend themselves in court for a couple of years and run up huge legal fees as a result.

In essence, the laws permit the reasonable use of force taking into account all of the circumstances of a particular case. That is how the courts look at it. They look at all of the circumstances, not just one.

That is why reading press reports is not always a very accurate way of understanding what really happened. The press view is simply one person trying to fit the story into two or three columns, once again, wanting to sell newspapers, there could be a sensational element thrown into the case. People should not believe everything they read in the press.

A person is not entitled to use excessive force in a citizen's arrest. That is very clear. I want to repeat that, a person is not entitled to use excessive force in a citizen's arrest. It can only be reasonable force.

In terms of other important considerations, a citizen's arrest is a very serious and potentially dangerous undertaking. Unlike a peace officer, a private citizen is neither tasked with the duty to preserve and maintain the public peace nor, generally speaking, properly trained to apprehend suspected criminals.

We do not want people who may be watching too many movies thinking that somehow they are going to be able to go out there and take on knife-wielding criminals, trying to stop them. We want people to do exactly what they are doing right now, reporting incidents to the police and getting them on the scene as quickly as possible.

In most cases an arrest consists of either actually seizing or touching a person's body with a view to detaining them, or by using words whereby the person submits to the arrest. Citizen's arrests made without careful consideration of the risk factors may have serious unintended physical or legal consequences for those involved.

When deciding if a citizen's arrest is appropriate, a person should consider whether a peace officer is available to intervene at that time. If their personal safety or that of others will be compromised by attempting an arrest, they should report information about the crime to the police instead of taking action on their own. If they have the reasonable belief regarding the suspect's criminal conduct and identity, then they can turn over the suspect to the police without delay once an arrest is made.

I have been in the insurance business for 32 years and we have had instances of robbery. Many other agencies have as well. Our staff has been instructed by the police force to just simply give up the money. We do not want people being heroes. We do not want people trying to attack the person who is holding up the office. Whether they can see a gun, or a knife, or whether it is just a fake gun, the fact of the matter is the police do not want staff in businesses or offices taking action against these people because of the possibility that things could go wrong. It is not worth losing one's life over $100 out of a till. We instruct our staff to simply turn over whatever money they have to the thief, then phone the police afterwards and let things develop as they might.

In some ways things will not change. The practices we have will simply continue as they have before. The police will be called, the police will do the arrests. In those few cases where the store owners, shop owners or homeowners take action on their own, at least they are not going to be faced with kidnapping or confinement charges and all the other ridiculous charges that this man was charged with, as well as the cost and stress of having to fight it.

I have quite a number of other points to make. I will simply defer to questioners and perhaps will answer some more points there.

Standing Committee on International TradeCommittees of the HouseRoutine Proceedings

November 2nd, 2010 / 10 a.m.
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NDP

Olivia Chow NDP Trinity—Spadina, ON

Mr. Speaker, I rise today to seek unanimous consent for the following motion, seconded by my colleague from Timmins—James Bay: That Bill C-565, An Act to amend the Criminal Code (arrest without warrant by owner), better known as the lucky moose bill, be deemed read a second time, deemed referred to a committee of the whole, deemed reported back from the committee of the whole without amendment, deemed concurred in at report stage and deemed read a third time and passed.

Criminal CodeRoutine Proceedings

September 29th, 2010 / 3:20 p.m.
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NDP

Olivia Chow NDP Trinity—Spadina, ON

moved for leave to introduce Bill C-565, An Act to amend the Criminal Code (arrest without warrant by owner).

Mr. Speaker, it is my pleasure to present this bill to amend the Criminal Code so small business owners can protect themselves.

David Chen, the owner of Lucky Moose grocery store who caught the thief who had repeatedly stolen from his store, was charged with forcible confinement, assault and kidnapping because he caught the criminal an hour later outside the store and held him until the police arrived.

Many store owners experience the same frustration as the Lucky Moose owner, Mr. Chen. Just in my riding I have nine concrete examples.

My amendment to the Criminal Code would allow owners to arrest criminals without warrant so they can be turned over to the police.

In support of David Chen, I am calling this bill, the Lucky Moose bill. I also want to thank Chi Kun Shi who is here today, and the 10,000 good citizens who signed the petition in support of this change.

My mother shops at Lucky Moose every day and said that it was about time Parliament protected these small business owners. I call on all parties to support this bill so it can become law.

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