Mr. Speaker, the bill is really two bills and probably should not be drafted in this way.
If we deal with the part that it appears all parties agree with, and perhaps picking up where my colleague from Moncton—Riverview—Dieppe finished off, section 494 of the Criminal Code as it is now places restrictions on the use of citizen's arrest. In particular, in the simple reading over the years there have been two conditions where it is not a police officer who does the arrest. The first is the arrest has to occur on or immediately adjacent to the property where the crime occurred and it has to be done contemporaneous with the event.
I think everybody in the House and the vast majority of Canadians know the situation in the Toronto Chen case. The individual was suspected of committing a crime of theft once before. He returned to the property and was confronted by the owner. He fled and then was seen subsequently by the owner and then apprehended, away from the property and clearly not contemporaneous with the potential additional theft that it was suspected he would have perpetuated on that day. The shop owner was subsequently charged.
I have had a great deal of discussion with police officers, including chiefs of police, across the country. Generally there is this sense that they would have found other ways of not charging the shop owner in that case. However, they recognized, as well, that to clarify the Criminal Code, section 494, at this period of time, both because of that case and because of other incidents where police officers and prosecutors had been caught by a strict interpretation of that section, they had to proceed with charges when they would have preferred not to.
As my colleague from British Columbia mentioned earlier, and we have heard repeatedly in the House, our colleague from Trinity—Spadina had proposed some amendments to the section some time ago, shortly after the Chen case became public and notorious. It was to introduce two concepts of reasonableness, a reasonable length of time and with a reasonable apprehension that the person would not be brought into custody and charged because there were no police officers available.
The government has added an additional provision to clarify the issue around the role the owner of property must perform. It is not only that it has to be within a reasonable period of time, but the government has put in specific wording, in addition to the reasonable time test, that the individual citizen who considers making a citizen's arrest must also “believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest”.
We have heard a number of comments in the public, from the legal community and occasionally from a police officer, around vigilantism being fostered or encouraged by this amendment. The very fact that we have put in this criteria that people have to make the apprehension within a reasonable period of time and be under the belief that if they do not make the arrest, there will be no police officer available to make the arrest, the individual will escape responsibility for the alleged criminal act.
The government's proposed amendment to section 494 is very similar to what the NDP had proposed, with that one additional strengthening of it, which we would be in support of and, as we heard today and previous days, the other opposition parties would be in support of that as well. Unfortunately, the bill does not end there and it should have. We should have run this through quite quickly with all party support.
Instead, the government has lumped in a bunch of other amendments, which it so commonly does. It has taken sections 34 to 42 of the Criminal Code and compressed them down into sections, which would now be sections 34 and 35. I am not sure what the government will do with the numbering of the rest of the code because it would shrink by six sections, if my math is correct, if these amendments were to go through.
The government seems to be somehow drawing an analogy of the principles that are contained in section 494 with those in sections 34 to 42, and that does not follow. If we look at the rest of the sections around section 494, they are very much about the authority of police officers to arrest, either with or without warrants, and the role of both the prosecutor and the judiciary in that regard as well.
There are a number of sections, starting at around 492-493, running down through to about section 200, that deal with that issue. Section 494 should properly be there. The concept of citizen's arrest fits in very appropriately there. It is not the same as the provisions in sections 34 to 42.
If I do a quick summary, what is in sections 42 down to 34 are provisions for self-defence of our person, defence of our principal residence, defence of commercial property with regard to trespass and other crimes on those properties and our right to defend our ownership of personal property, from cars to jewellery to furniture to clothing, et cetera.
The sections in that part of the Criminal Code, and it is early on in the Criminal Code, reflect law that has been in the code since it started back in the 1890s in Canada and back to even before we had criminal codes and criminal legislation in England. These would have been fiats from the king when these concepts began to evolve, and they have evolved over hundreds of years, to the point where we have them now encoded in the Criminal Code.
What is being proposed, and I cannot put it any other way, are radical changes to those sections. I have looked at it quite closely over the last few weeks since we first saw the initial draft of the bill. What jumped out at me was some wording that, clearly, the government had taken from interpretations of those sections 34 to 42, which are judicial decisions. Because the language was more modern than what was in the Criminal Code, it thought it would be a good to add it. Unfortunately, it also seems to have left out some very important legal principles, and I say this from the vantage point of both lawyers who prosecute offences and our police and defence lawyers who defend.
I will use as one example the provisions in those sections 34 to 42 with regard to the concept of provocation. I will do it in a three-step process.
If the perpetrator of the provocation is assaulted, that perpetrator is then entitled to self-defend but to a lesser degree because that individual caused the provocation of the assault. There is a sort of quasi-defence there, both to the assault and then the defence of that assault. That concept has evolved and been interpreted by our courts and is quite well understood, not by the average citizen but by lawyers and judges in our criminal courts.
I do not see any reference at all to the concept of justification. This one is certainly more complicated, but it is not the same as provocation. People have reason to believe they can use physical force on other people and similarly they can use perhaps excessive force to repel what is perceived as an assault on either them or their property. That concept does not appear in either of the sections that are purported to replace sections 34 to 42.
Another concept that appears vaguely is the concept of what we used to refer to either as colour of right or claim of right. I feel like I am back at law school. I have instructed at university and I feel I am back doing that same kind of thing. These are very basic legal concepts that are usually taken in the first term of first year law school, but are sometimes repeated in later years if specialty courses are taken in criminal law.
The concept of colour of right or claim of right crops up quite regularly in matrimonial disputes. Someone says that he or she is the registered owner of the property and threatens to throw out someone who has been living at that property as a partner for a lengthy period of time. The person being evicted has a claim of right to stay there. That concept does not appear, at least clearly, in the proposed amendments.
There is a similar type of concept in commercial relationships involving multiple business partners. One person may be the registered owner of the business, with the majority of shares, and the other person may want to come back on the property to remove stuff or whatever. This claim of right allows an individual to go back on to the property. That only appears once in the proposed amendments and it seems to be absent in other areas.
Going back to my first year at law school, I have to wonder if this bill was drafted as we were dealing with the issue of Mr. Chen and his citizen's arrest. These principles should be in the amendments. It may be done in a different way. An argument could be made that the sections are being modernized, brought into the 21st century. I am a strong advocate of the need to bring our Criminal Code into the 21st century because there are all kinds of problems with it.
I do not know if the government was trying to do that. I do have serious doubts, at least in part, that the it did not accomplish that in terms of keeping those principles but modernizing the wording around them. If that is what the government is doing, then I have serious problems with the bill because it did not accomplish this.
On the other hand, there may be another agenda here, and I am not sure what it is other than to move toward a more U.S.-style of what we in law talk about as self-help. Perhaps the agenda is to move more toward that which is allowed much more broadly in the U.S. criminal justice system than it is in Canada, Britain, Australia or New Zealand, countries that have similar jurisdictions both in terms of the way our law developed and the way we deal with the issue of crime and the ability to use self-help to fight crime.
Whether that other political ideological agenda exists is not clear, but there must be concerns that with some of these proposed changes we may in fact go that way.
Due to our support of section 494 and wanting to correct the problem in the Chen situation, I believe most of us will support the bill to go to committee. However, when the bill gets to committee, we will need very clear explanations as to the drafting behind the bill and whether the concepts of provocation, justification and claim of right have been done away with in most cases.
Having set out those parameters and limitations in the bill, it goes without saying that this will be a source of great wealth for lawyers. Both prosecutors and the defence bar will literally spend years reinterpreting the concepts in the bill because the historical principles that applied around the use of self-help appear to have changed so radically. After listening to the speeches from the government, I have determined that we have not had any rational explanation as to why it has made this move. It just does not seem to add up.
It is unfortunate that the government coupled it with the amendments to section 494. It would have been nice to get that as a separate bill. I know my colleague from Trinity—Spadina had offered the government to make it a short separate bill containing a two-paragraph amendment to the existing section 494 to be able to get it through the House rapidly.
As it stands now, once this bill gets to the justice committee it will be backed up behind other bills that are already there. We will need to spend a great deal of time to determine if there are unintended consequences, whether long-standing legal principles will be undermined and, if so, what that would mean to the practice of law in Canada and the right of citizens to defend themselves and their property, whether it be their home or their commercial interests. We will need a great deal of evidence in order to understand that.
As I have indicated, the NDP will be supporting this going to committee because of our support for the amendments to section 494 and the whole concept of making it clear when the power of a citizen's arrest can be used. However, we have very grave concerns about the balance of the bill. That will require a great deal of work at the justice committee in order to understand it.
