Bill C-60 (Historical)

Citizen's Arrest and Self-defence Act

An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons)

This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons.

Citizen's Arrest and Self-defence Act

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I thank the hon. member for his declaration of support for what is very good and necessary legislation. I listened intently to his speech and that of the member of the NDP who spoke about the timing of the bill.

I met with members of the shop corners community immediately following the incident Mr. Chen was involved in before the hon. member was a member of the House. They told me that not only were they concerned about the timing of arrest, but what they were allowed to do in order to protect their property and themselves if they were threatened with personal physical harm.

Typically, the two opposition bills mentioned this morning said nothing about what people could do to defend their property or their person, because those bills were politically motivated. They were brought in simply to score a quick, cheap, political hit, but did not address the whole issue of citizen's arrest, property defence and defence of a person.

Perhaps the member could comment on that.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, we can tell a lot about what the Conservatives hope to really achieve by the way in which they will consult with people. For example, did the minister responsible for the bill have discussions with critics? To what degree were the Conservatives open to having feedback prior to the introduction of the bill? The ultimate goal should be to try to address the issue at hand to the very best of our ability.

We could have passed the bill about the amount of time it would take for a citizen to make an arrest. This is the primary concern, from my understanding, that Mr. Chen and many other Canadians had. That portion of the bill could have passed in June of 2010. Even if it were before committee at that time, we could have reviewed it and maybe looked at ways to improve the bill back then.

There are some good parts in the bill of which we are very supportive. We want to see it go to committee and we are open to other possible amendments, reviewing and giving due diligence to other aspects of the bill itself.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I notice my hon. colleague mentioned promises that were made by the government a few elections ago about providing 2,500 more police officers across the country.

I was visited by representatives of police boards across Canada in my office last week. They told me that they knew for a fact that those 2,500 officer positions had not been created for a few reasons. One was the federal government had not given long-tern funding commitments that would enable them to provide those positions. Also, the money was transferred to provinces without being tied to the creation of those positions. Therefore, some provinces put portions of that money into general revenue.

Considering that part of the bill is motivated by the fact that police are just not able to respond quickly enough to shop owners or people who find themselves perhaps being the victims of a crime, could my hon. colleague comment on the connection between having enough police officers in our communities and the need to have citizens be able to make their own arrests in the absence of quick, prompt responses by police officers?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I am a very strong advocate for community policing. For the city of Winnipeg, that promise would have meant 15 additional police officers for the city. Quite frankly, we could have used every one of those police officers in the field as community police officers.

The value of having community police officers going into the different businesses, explaining how citizen's arrests are made, among may other things, has phenomenal values.

Ultimately, the point I was trying to get at, when I made reference to it, was the fact that the government made a promise. It promised to put more police officers on the street. It has failed to follow through on that promise. The city of Winnipeg has still not hired one of those 15 police officers.

The issue is the Conservatives have brought forth the bill and have made this commitment, but they need to follow through with it. They need to turn what they talk about into reality. For Winnipeg North, crime and safety is number one. We need those police officers on the street. We need to have bills like this in some form passed.

[Jeff Watson, Conservative, Essex, ON]

Mr. Speaker, I have listened intently to the comments of the member opposite, particularly his assertion about the timing of this bill and his reference to the member for Eglinton—Lawrence on how this could have been handled sooner.

The reality is the member for Eglinton—Lawrence had a choice as well. The order of precedence allows him to move his bill forward quickly. He chose another bill and allowed his particular version of the bill with respect to self-defence to languish, where it would never be debated in Parliament. If the Liberals were truly tough on crime, that bill would have been on the order of precedence.

I remind the member opposite that the member for Eglinton—Lawrence's other bill, the one that he actually thought was a priority, has already been through committee. Would he like to comment on whether he spoke with the member for Eglinton—Lawrence about making this a priority instead of pretending it was a priority?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, one of the nice things about the chamber is the ability to get unanimous consent. If in fact the chamber and the Conservatives at any point in time saw the value of that bill and wanted to pick up on the issue, they would have been able to approach the Liberal Party, and vice-versa, the Liberal Party could have approached other members. It is up to the chamber to look for unanimous consent to bring forward a good idea.

At the end of the day, what I know is it would have been wonderful to have seen that bill passed. If the government knew it would bring in legislation of this nature, why would it not approach the Liberal Party and say that it liked the bill, that it would like to see some amendments to it, but it would work with the bill so it could be brought forward to the House? With the unanimous support of the House, it could have been debated back in June, passed and some Conservative amendments could have been made to it. Members of the Liberal Party are very open-minded in having good ideas brought forward, passed and turned into law.

[Bob Dechert, Conservative, Parliamentary 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.

[Cathy McLeod, Conservative, Parliamentary Secretary to the Minister of National Revenue]

Mr. Speaker, I would like to thank my colleague for articulating this important piece of legislation and detailing its different aspects.

The member talked about the difference between the two private members' pieces of legislation and our legislation. I would like him to articulate clearly the important changes in Bill C-60 that were not in those pieces of legislation.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Speaker, as we heard today, the opposition has proposed two bills that are very limited in scope, without taking the time to look into what is really behind all of the circumstances in these types of cases.

When shopowners are confronted by a shoplifter, as Mr. Chen was, they look at what they need to do both to defend their property and, potentially, defend themself or staff or customers.

All of these provisions are wrapped up together. We cannot simply make a change to the time of a citizen's arrest without examining what people have the right to do to defend themselves or their property. However, that is typical of the opposition when it finally gets engaged in a criminal justice matter. Most of the time the opposition is against criminal justice legislation, and most of the time those members side with the offender not the victim.

In this case the government took the time to look at all of the related provisions and to make the necessary amendments that will clarify the law for all Canadians for decades to come.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Mr. Speaker, I was going to thank the hon. member for his speech until he came out with a real cheap shot in saying that we do not believe in justice bills. That is blatantly untrue, and the member should realize that. It is time for those guys over there to work with us to come up with some good legislation, which is what we should be doing here in the House.

I would like to ask the hon. member if he recognizes that my colleague from Trinity—Spadina, with her private member's bill, and the tabler of the Liberal Party's private member's bill, have actually laid the groundwork for this piece of legislation? In other words, would he give them some credit for the fact this issue is being debated?

I wonder if he could outline what he considers to be a reasonable time. It is my understanding that the difference between this bill and what currently exists is that this bill would allow a shopkeeper some leeway, a couple of hours or a day, to apprehend a person, whereas that is not possible now. I would like some clarification on that.

Much of the time we have problems like this owes to inadequate policing. I wonder if my colleague recognizes the fact that we need the federal government to step up to the plate, especially when it concerns the RCMP and our small rural communities, so that we will not have situations where police officers go off duty and are not replaced.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Speaker, I thank the hon. member for his support for at least part of this legislation, and hopefully all of it.

My comment about the voting record of his party on justice bills is based on experience. He does not sit on the justice committee as I do, but I am there day after day listening to his colleagues on the justice committee present witness after witness against bills that are designed to rebalance the criminal law as between offenders and victims. I can say from experience day after day that they slow down and delay legislation by putting forward witnesses that only want to talk about the needs of offenders.

Let me talk about the timing of this bill. I and other members of the government met with shop owners, including Mr. Chen, immediately following the event that took place in his store. We heard what they think is necessary on a range of issues. It was not just the timing of the citizen's arrest in that particular case. That was one very narrow aspect.

What they are concerned about and face every single day working in their stores 16 to 18 hours serving their communities is that there are people who repeatedly and violently steal from them. They need to know what they can do to defend their property and to defend themselves, their staff and their customers when these people enter their stores.

It would be unreasonable to simply add the word “reasonable” to the Criminal Code, which is essentially what the NDP wanted to do. They wanted to insert one word so they could say they have done something in responding to people's needs without actually taking the time, which is typical of the opposition, to get to the root of the problem and make important reforms that would solve the problem and simplify the Criminal Code for police, judges and all Canadian citizens.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, my question relates to what a reasonable amount of time is. It would be of great benefit if he could expand upon what is a reasonable amount of time. I would appreciate whatever the member may be able to put on the record with regard to that.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Speaker, that is a good question. What is reasonable really has to depend on the circumstances. It is very difficult to say generally what would be reasonable. In the specific case that was a catalyst for this bill, the court actually found that the period of time was not really in question because the perpetrator was actually in the process of perpetrating a secondary crime at the time the citizen's arrest was made.

However, we have made it clear that in addition to a reasonable period of time, it must also be not feasible in the circumstances for the police to be called in to make the arrest, which is of course what we want to happen in the vast majority of cases. However, when that is not feasible and police are not available, it would be reasonable for a citizen to make an arrest.

If the member is a lawyer, he may know that Lord Denning, a famous member of the House of Lords, said that what is reasonable is what is in the mind of the man on the Clapham omnibus. If I could put that in Canadian terms, it is what citizens on the Burnhamthorpe Road West bus in my riding or on the GO train going to work every morning would think is a reasonable period of time in which they could make an arrest in order to protect their property.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, I do not see the relationship between a citizen's arrest in David Chen's case at the Lucky Moose and spousal abuse.

The bill in front of us has three parts. The first deals with citizen's arrest, the second with defence of property and the third with self-defence. Why has the Conservative government tacked on the two other elements when there is unanimous consent on the first element of citizen's arrest? The Bloc, the Liberals and the New Democrats are in agreement on changing the words to allow a reasonable amount of time on reasonable grounds. We have no problem with that. The other two parts basically remove the section that said “not intended to cause death or grievous bodily harm”. This means that the Conservatives are expanding the whole notion of when people can protect themselves. It gets into very muddy waters.

I cannot see how self-defence is connected with a citizen's arrest and why it is included in this bill.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Speaker, if the member actually took the time to speak to shopkeepers, she would understand that in the vast majority of cases they are actually defending themselves in addition to defending their property. They need to know what they can do in order to protect their personal health. Also, they need to know what steps they can take to protect their property. These things are all intertwined.

If members actually take the time to think about what is going on and what shopkeepers need to do when they see somebody come into a store and take something off the shelf, they will realize that we are taking nine very confusing provisions of the Criminal Code, section 34 to section 42, and section 494, and we are simplifying them into three provisions that everyone will be able to understand.