This bill was last introduced in the 40th Parliament, 3rd Session, which ended in March 2011.
Rob Nicholson Conservative
In committee (House), as of March 22, 2011
(This bill did not become law.)
This is from the published bill. The Library of Parliament often publishes better independent summaries.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
The Deputy Speaker Conservative Andrew Scheer
I will just take this opportunity to inform members that we have concluded the first five hours of debate, so now speeches will be 10 minutes and the questions and comments periods will be five minutes.
Resuming debate. The hon. member for Eglinton—Lawrence.
Joe Volpe Liberal Eglinton—Lawrence, ON
Mr. Speaker, the bill should be named the David Chen bill, or the we thank David Chen for opening our eyes to the deficiencies of the Criminal Code, section 494, bill or, even more importantly, the why David Chen deserves credit when the Conservatives want to give Canadians none bill.
Why do I say that? Members might think me a little harsh, but David Chen, a legitimate store owner who runs a family business, who minds his own business, who calls in the police whenever there is a problem and there is a problem virtually on a daily basis, and he asks the court system, the justice system to help him make a living in Canada, like so many Canadians, and what happens? One day he sees a thief, someone who has stolen from him in the past, someone who has appeared on his video screen, someone on whom he has called the police on several occasions, someone who has more than 47 convictions for theft. He sees him come back not one-half hour after he has stolen from him.
He seized the thief and held him. He called the police and the police came, but they arrested him. They charged him with a whole slew of charges, including forcible confinement, arrest, kidnapping. Imagine, in a country like Canada where due process is a very important element of our life, the store owner, the defender of his own property, is the one who is charged.
For a government which likes to have these news bite type of titles to its legislation, it does not do that this time. Instead it sends its senior minister, the Minister of Citizenship, Immigration and Multiculturalism, because of course this is an immigration issue. It is not a law issue. It is not a justice issue, it is not a tough-on-crime issue. This is an immigration, citizenship and political issue.
Off the Minister of Citizenship, Immigration and Multiculturalism goes, to demonstrate that the Government of Canada, no, I am sorry; what is its new title? It is not the Government of Canada. It has been personalized. The one individual, the guy who makes all the rules, the guy whose initials are S.H., dispatches his senior minister on a citizenship, immigration and political issue.
On September 27, 2009, and let us keep that date in mind because it is an important date, he says that this is an egregious problem and we are going to change this. I notice that the Parliamentary Secretary to the Minister of Justice accompanied him. He said that this is a real problem and we are going to correct it because this is unjust, untrue and it is not right that a guy who tries to run a family business gets put through a process where he is a victim of somebody else's crime. He is a victim, again. He says that the Conservatives are going to change the law. That was on September 27, 2009. What is the date today? I am not sure if the government members can actually read a calendar, but the last time I looked we were in the month of March in 2011.
The government finally decided to present a piece of legislation. If I seem angry, it is because I am angry for all those citizens who, like David Chen, were looking for the government to do something right. They were looking to the Government of Canada, before it became the S.H. government, but it is all about evolution.
The interesting thing about September 27, 2009 is two things were happening concurrently. There was paranoia on the government benches about the potential of an election and the Minister of Justice was dialoguing with his colleagues, the attorneys general of the various provinces, about precisely what to do in a case like David Chen's, which apparently happens more often than not.
I asked my colleague from Windsor what he thought in his capacity as a former professor of law, about making this particular minor change that would have given direction to everybody. Just a few days ago, the Minister of Justice spoke on the bill and said that they are doing this because the courts pay attention to what Parliament says when they look for direction in law. Then he proceeded to give three, four, five, a million reasons as to why he wanted to consolidate the concept of reasonableness in law. However, the Minister of Justice knew in 2009 when David Chen was first ordered to appear at court that the law was going to change because everyone agreed it needed to be changed. What did he do? He allowed David Chen to use his own resources, at his own expense and stress in order to test that concept in court, to see what the courts would do. They did it for him.
So instead of thanking David Chen for saving the government all this money, the Conservatives said they are going to have a piece of legislation. Everyone wants to glory in the victory that appears on behalf of all Canadians. David Chen deserves not just a medal, but he also deserves to be compensated for all his work.
Two members of Parliament, the member of Parliament for Eglinton—Lawrence on June 16 last year presented a very brief proposal to amend section 494 of the Criminal Code, and the member for Trinity—Spadina did a similar thing in September 2010. We come to October 29, 2010 and the courts decide in favour of David Chen. The government rushes to congratulate him. The Prime Minister, the one who runs the government, for whom the government is named, says the government is going to make this its first priority and it is going to change the law. However, David Chen already had to go to court.
What does the Prime Minister do? Instead of taking up the offer of members of the House, the member for Eglinton—Lawrence and the member for Trinity—Spadina, he decided to have his justice minister come forward with a hugely complicated piece of legislation because he has to solve all the problems of the world, except this one. Why is there such urgency now? Because, as I understand it, he may decide he does not want to deal with Parliament anymore and he may want to go to an election.
I want to indicate a timeline here. As the member of Parliament for Eglinton—Lawrence, on November 2 during question period I asked to change the act. I suggested the government take the bill as we had already done all the drafting. The member for Windsor—Tecumseh acknowledged that there is a possibility of interpreting issues on reasonable grounds. Other professors have already done this. There have been all kinds of people who have decided to have input on this.
On November 4, we held a press conference and asked the government to come forward and accept the principle of Bill C-547 and the other one as well. However, on January 21, the Prime Minister finally decided he wanted to go to see David Chen again, to use him as a prop once more so he could say the Conservatives were going to come forward with legislation right away. Right away turned out to be March 4. February 15 was really when the Conservatives wanted to go ahead and give an indication that they were going to act.
I am not sure about the sincerity of all of this and I am equally suspicious about all the remonstrations of the Parliamentary Secretary to the Minister of Justice who was part of the discussions going on in November 2009. Finally, during some of this negotiating after he had actually approved some of the wording that appeared in Bill C-547, he said that now he has been appointed parliamentary secretary he can no longer deal with the legislation, and by the way, he is not aware of anything that the Minister of Justice might want to do in this matter.
He washed his hands of the whole affair leaving all of the people who had been looking to the Government of Canada, that is the real Government of Canada, for some guidance and assistance in a lurch to look to members of the opposition to give them some guidance.
What did the government do? It came forward with an unnecessarily complicated bill in order to stall for time and do away with this.
The Deputy Speaker Conservative Andrew Scheer
The hon. member for Ancaster—Dundas—Flamborough—Westdale is rising on a point of order.
The House resumed consideration of the motion that Bill C-60, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.
Don Davies NDP Vancouver Kingsway, BC
Mr. Speaker, I know that my colleague did some important work on this issue, along with my colleague from Trinity—Spadina, when Mr. Chen's situation came to the attention of members in the House.
My hon. colleague quite rightfully identified the absolute injustice of the store owner finding himself charged after doing nothing more than apprehend someone who had been continually robbing him. This was due to the Criminal Code's peculiar wording at the time, which basically said that one could only apprehend a person if that person was caught in the commission of an offence.
The private member's bills of my colleague from Trinity—Spadina and the hon. member sought to cure that situation by extending the time period for citizen's arrest to a reasonable period of time.
How does my hon. colleague feel about the other provisions the government has seen fit to introduce into this legislation which go far beyond that and actually alter the law by codifying the defence of property and defence of persons provisions? Does he think it might be better to simply deal with the original problem that was caused by the Chen situation and pass that legislation instead of dealing with other sections of the bill which we really do not know what the implications would be?
Joe Volpe Liberal Eglinton—Lawrence, ON
Mr. Speaker, I suspect that the S.H. government does not know either and that is why it has thrown it all into this package. It does not have any intention of passing this package at all.
All one has to do is take a look at what that same minister for propaganda did in September 2009. He speaks out against the courts that deal with immigration issues. He rails against judges. This sort of thing would never happen anywhere else. The member is right. This should be about store owners, property owners, like David Chen.
I am sure the hon. member would agree that what should happen is, first of all, the government should apologize to David Chen for having used him as a prop not once, not twice, not three times, but now a fourth time.
Second, it should pay him for all of his expenses for having forced him to go through such a situation.
The government could have pronounced itself, the way it is doing now, and the way it has done through the Minister of Citizenship, Immigration and Multiculturalism on other occasions on other issues. The government pulls back to say that it is sub judice, but it does not do it when it is inconvenient.
Third, it should give an indication to all the courts that the David Chen case and the decision on the definition of reasonableness by that judge is the standard upon which people will base their decisions when going to court again.
Rodger Cuzner Liberal Cape Breton—Canso, NS
Mr. Speaker, like my colleague from the NDP, I also want to recognize and congratulate the member for Eglinton—Lawrence who has done so much on this file. He has brought this issue to the chamber through question period on a number of different occasions and has continued to pursue it with great vigilance.
My colleague is an experienced member of this chamber. Is this another missed opportunity by the Conservative regime? It had a chance to get it right with the bill, but instead lumped a number of other issues around it and in doing so may be missing an opportunity.
Joe Volpe Liberal Eglinton—Lawrence, ON
Mr. Speaker, I thank my hon. colleague for recognizing some of the work that I have done with the co-operation of my caucus colleagues. It is always nice to receive that pat on the back.
However, as I said earlier, this is really about David Chen and what he has been forced to do for all Canadians to demonstrate that the system works. If the law does not work in a situation like his, in an egregious fashion, then the law must be changed. That is what was behind those two opposition private members' bills and their intent.
What the government bill does is it says that those were good ideas but that it was not its idea so it will not do it and to ensure it does not do it, it will add so many very specific things that there will be a court challenge on every one of the definitions that it wants to put in place because it does not believe in them either. That is the government's attitude. All one has to do is read the intervention of the Minister of Justice in the House. He said, “We had a solution in 2009; we just didn't implement it”.
Why not? Justice delayed and justice put off is justice denied. That is his true--
The Deputy Speaker Conservative Andrew Scheer
Resuming debate. The hon. member for Nanaimo—Cowichan will have about three or four minutes before I will move on to adjournment proceedings.
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.
The Deputy Speaker Conservative Andrew Scheer
Order, please. The hon. member will have seven minutes to conclude her speech the next time this bill is before the House.
The House resumed from March 7 consideration of the motion that Bill C-60, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.
The Deputy Speaker Conservative Andrew Scheer
The hon. member for Bonavista—Gander—Grand Falls—Windsor has 10 minutes.
Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL
Mr. Speaker, it is an honour to rise to speak to this particular issue about citizen's arrest and the events that precede it.
We are here today to look at an amendment to section 494 of the Criminal Code. In my opinion, we are righting a wrong by doing this. I fully support this idea and fully support this bill.
There have been several episodes in history where this has been looked at and analyzed as a way of fixing an issue that has arisen due to one particular case that was featured in the city of Toronto. That was the story of David Chen. There has been a lot of media attention around this situation and his particular circumstance. If I may, I would like to talk about that very briefly.
In his security videos and from his own personal observations Mr. Chen noticed a particular individual time and time again stealing certain merchandise. The perpetrator was known in the area for having committed certain crimes. As a result, he appeared very suspicious.
The perpetrator went to Mr. Chen's place of business and stole a particular item. He then returned a half hour later only to be confined by Mr. Chen. The police moved in right away, but they went after Mr. Chen, not the perpetrator. As a result, there were several charges laid that we have talked about in detail. I will get to that in just a moment. The important fact is that Mr. Chen made the citizen's arrest after the incident had taken place. Therein lies the meaning of this particular legislation, and I am sure many Canadians would agree, that a certain period of time be allotted to act upon this or that there is a reasonable amount of time allotted wherein one can make a citizen's arrest.
The bill seeks to amend the Criminal Code to allow private citizens who own or have lawful possession of property to arrest a person they find committing a criminal offence on or in relation to that property within a “reasonable amount of time”. This power of arrest is permitted only in circumstances where there are reasonable grounds to believe that it is not feasible for the arrest to be made by law enforcement officials. Therein lies the other part of this, which is to say that in the case of Mr. Chen, which is the example we are using, he was put in a position where he was called into action. There were no peace officers there at the time. Therefore, in the absence of law enforcement officials, his judgment call was to make a citizen's arrest on that particular person he felt would steal something from his business. I imagine most of us would feel that his acts are justified.
As a result of this action, therein lies the crux of this particular amendment, which talks to the reasonable amount of time one has to do this. Currently, the legislation deals with the acts or actions one may take in making a citizen's arrest within a specific period of time. Therefore, the emphasis is on the particular amount of time that one has to make a citizen's arrest.
If a person, having witnessed a crime wherein the perpetrator has left the scene only to return, in David Chen's case it was 30 minutes, feels that he or she must take action, I believe the majority of Canadians feel that making a citizen's arrest at that time is indeed justifiable.
This has been an issue since I believe September 27, 2009, when the minister originally mused about it. As a result, almost two years later we are now looking at the legislation being tabled as we debate it in the House.
There does not seem to be a tremendous amount of debate here as the government put this bill forward and the Liberal Party and the NDP have endorsed it. Of course there have been private members' bills from the Liberal Party, by my colleague for Eglinton—Lawrence, and also my colleague from the NDP in the riding of Trinity—Spadina reflecting this issue.
As many people can imagine, there are some concerns around the term “a reasonable amount of time”.
Every time we talk about legal issues and legislation that makes an amendment to the Criminal Code, we always talk about and sometimes consider what is a reasonable amount of time and actions that are deemed to be reasonable in a court of law. Therefore it is open to interpretation.
Because we are at second reading of the bill and by accepting this in principle, it would now be sent to committee to find out what is a reasonable amount of time and to flesh out some of the parameters around this piece of legislation.
There is a certain amount of ambiguity that constitutes what is a reasonable amount of time between when an act of violence is committed and when a citizen's arrest is made.
We know that some police officers have raised concerns in the past about this legislation. We certainly look forward to hearing what input they bring to this and I will get to a few examples in a few moments.
Many months ago this issue was moved on when we saw the situation with David Chen. Private member's Bill C-547 was introduced by the member for Eglinton—Lawrence. We now find ourselves debating a government bill but two years ago we were dealing with all kinds of amendments to the Criminal Code. How this issue did not manage to pop up in the debate over the two-year period is slightly questionable.
The amendments that are being made, whether they be mandatory minimums, whether they be Internet crime and things we have seen over the last little while, especially when it comes to mandatory minimums, there has been a lot of debate in the House regarding amendments to the Criminal Code.
I am not a lawyer, but nonetheless I have heard from many legal experts who have said that the Conservatives could have done all of this in a much shorter period of time if they had done the amendments through, say, four, five or maybe even six bills as opposed to the 15 to 20, in that range, that we currently have. This could have been done two years ago, or the Conservatives could have accepted my colleague's private member's bill at the time. That probably would have been the most prudent way to go. Nonetheless, we find ourselves in the House today debating this legislation.
I look forward to what will be talked about at committee. I talked earlier about the ambiguity surrounding this. In the circumstances, we do have a legitimate concern to be addressed, but nonetheless, the principle of the bill is a sound one, which is the ability for citizens to make arrests. The situation with David Chen in Toronto is really an illustration of why we are debating this and why, I assume, most members of the House accept the bill in principle.
The incident of David Chen took place in October 2010. At that time there was a lot of debate and it received quite a bit of notoriety from coast to coast to coast. As a result of that, the debate became apropos of the times. Citizen's arrest is something we talked about. It has not been as publicized as it is now. The David Chen video tapes became news everywhere. I am from Newfoundland and Labrador and it was a big story there as well. It was featured prominently. It was not just a local Toronto story. Therefore, the issue gained that much more weight as a result of it.
The Criminal Code allows for a citizen's arrest as it stands right now. The amendment to section 494 would address that, but where an individual is caught in the act of committing a crime on a person or property and a citizen immediately detains the subject, therein lies the current state of the Criminal Code which addresses a citizen's arrest. The provision allows for an arrest to occur without having to wait for law enforcement to arrive on the scene. There are several examples over the years that would address this. Certainly an amendment to section 494 would address the situation regarding a reasonable amount of time. There is no doubt in my mind that a reasonable amount of time, which was illustrated by the David Chen case, perfectly justified a citizen's arrest. I believe the time was 30 minutes after the first encounter.
Therefore, in that particular case, it illustrates that a reasonable amount of time would be justified by this amendment. However, to put the parameters around this particular piece of legislation requires it going to committee and I look forward to hearing the debate on that.
The bill would also expand the scope of a citizen's arrest to allow for such detention to occur within a reasonable amount of time. It is not clearly defined what constitutes the reasonable amount of time, which will certainly be debated. The bill states clearly that no individual is entitled to use excessive force in the process of detention of another individual.
There have been other groups and stakeholders who want to discuss this as well and I am sure they will be given ample opportunity once they arrive at committee. I implore all my colleagues to support this bill in principle and send it to committee.
Joe Volpe Liberal Eglinton—Lawrence, ON
Mr. Speaker, I compliment my hon. colleague for having had the energy and eloquence to address some of the issues in Bill C-60.
He quite rightly pointed out that this is a bill that emanated from private members' initiatives, mine in particular, and the one by the member for Trinity—Spadina. It is important to say both parties because the Government of Canada—I am sorry, the Prime Minister's “SH” government responded with great tardiness. I notice that some people smile at that, but he wants it to be known as that.
It responded with great tardiness to a situation that was egregious. It was egregious because a repeated victim of theft by a convicted felon was penalized by the justice system. It is a government that constantly talks about its crime and justice agenda, but allowed Mr. David Chen and others like him to languish for the better part of 18 months while it did absolutely nothing.
Worse, it caused that individual to assume the costs of defending himself in court in order to prove something for the benefit of the government and the government mucked that up as well. Look at this piece of legislation. I wonder if my colleague would comment on that.