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

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I listened to the entire speech of my friend and his laudable words about small, medium and larger enterprises. I know from his background as an evolutionary biologist that we were all hoping that the remarks would evolve into commentary about Bill C-60.

I do not want to take too much of his time in asking my question, so what does he think about Bill C-60, with respect to self-defence and a citizen's arrest? Does he think it goes too far as drafted? Is it beyond what his colleague from Trinity—Spadina had suggested, or is it the right fit ?

I will give him all the time to evolve an answer on that one.

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Mr. Speaker, as an evolutionary biologist I also know that evolution did not all occur in the past; it is an ongoing process. It is happening today, it is happening this afternoon and it will continue to happen as long as there is life on earth.

The portions of this bill that were drafted by the hon. member for Trinity—Spadina are just right. I am still looking at the rest of the bill and thinking about the important balance between the rights of citizens, the rights of small business people and how important it is to make sure that those rights are not exceeded and that we do not stray into areas that are dangerous for them or society.

[Steven Fletcher, Conservative, Minister of State (Democratic Reform)]

Mr. Speaker, as an evolutionary biologist I am surprised that it has taken the member so long to figure out that crime is bad and bad people need to be arrested and that good people need to conduct their affairs conducive to the Canadian way of life. Bad people go to jail and good people help keep the bad people in jail.

I wonder if the member's evolution as a member of Parliament coincides with the advanced thoughts of his constituents rather than the de-evolution which often occurs when the NDP talk about hugging a thug rather than keeping the thugs in jail.

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Mr. Speaker, I will give a serious answer to a sarcastic question.

As a biologist I know that much of evolution is not about competition only. It is also about co-operation. Charles Darwin was brilliant but he did not go quite far enough. Social Darwinists throughout a century and now alive and well on that side of the House believe that competition, tooth and claw, and winners and losers make evolution and government work.

People in this party and I believe that more often it is about co-operation between different aspects of society helping everybody who wants help. There are a few who are hopeless, but most of the people in prisons today are going to need our help to become functioning members of society.

The idea that it is only about punishment is unfortunately antediluvian.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, my hon. colleague from Thunder Bay—Superior North represents not only his constituents well but many of the small businesses that operate in his riding.

I am really quite surprised at the questions from members of both the Liberal Party and the government. They are questioning the bill's relevance to small business.

The bill's genesis was based on a store owner who was defending his property. One of the reasons he was defending his property was that he was so frustrated at the pilfering going on at his store. Why was he concerned about that besides the obvious problems facing his business? He was concerned because small business owners in this country operate on tight margins. If we listened to Mr. Chen speak at committee, which I am sure most members of the House did, they would have heard him say just how marginal his business is and how important it is that he have the ability to protect his property.

To hear the Liberals and the Conservatives just dispense with that and wonder why the bill has anything to do with the precarious situation of small business owners across this country is quite surprising to me. I would like to congratulate my hon. colleague for bringing that important aspect of the bill to the attention of the House.

I would ask him to explain how businesses are operating in his riding and how they may react to this bill before the House.

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Mr. Speaker, the hon. member for Vancouver Kingsway was a successful lawyer for many years. He understands, as a justice here in Canada explained, that the middle class most of the time can no longer afford to go to court and defend themselves and that we see increasingly laws and justice for only the rich and powerful.

It is sad when stockbrokers and bankers steal and defraud. It is sad when politicians sometimes lie and steal and misrepresent the law. The worst these people get is a slap on the wrist or they never are fully prosecuted. Middle-class business people often do not have the resources to properly defend themselves in the courts.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I am going to use most of my time speaking about Bill C-60. I will open by summarizing what I think the pith and substance of the bill is, namely, two sections of the Criminal Code.

The Criminal Code is a large book that stuck together all kinds of laws in the 1890s after Confederation. The book is that old. It is a compendium that started out with a bunch of general provisions, including regarding cattle stealing, treason and things that we do not see a lot of these days; high treason indeed is not something that we often see. The code has often been amended, however, and appended to it are all of the fact situations that we have lived through as a country and community over our great history.

What we are seeing today is a call for two things, the modernization of the code with respect to two parts of a citizen's life, that of self-defence against an offence and the powers they may have on behalf of the state in arresting or stopping the action of a fellow citizen. Thus the bill deals with what we commonly call self-defence and citizen's arrest. We are looking either to modernize the general provisions that have been around a long time and/or are reacting to a specific fact situation or a number of them that have happened in this country.

We have to step back as parliamentarians and say that it is always good to modernize or harmonize the law, in this case the code and its antiquated language, with respect to what is happening now. There is no question about that. It is not always a good thing to have the Criminal Code or any law chase after a particular fact situation, no matter how compelling the reason is.

Whatever is enacted to react to a specific situation had better go through the prism of the general welfare and good of communities so that it fits every other fact situation in these two important areas of self-defence and citizen's arrest.

The two aspects, self-defence and citizen's arrest, are so different from each another that they are about 400 sections apart in the code. The self-defence provisions, which are among our oldest provisions, are in the 30s and 40s sections of the code, and the so-called citizen's arrest provision is way up in section 494. They are very different. However, they are tied together in this instance here, because what we are really reacting to as parliamentarians are a number of fact situations where specific individuals, shopkeepers or small businessmen or homeowners, have taken action to protect either their property or themselves and, in many instances, detained individuals.

It is extremely important to look at it from the point of view of asking people that if this were to happen to them, would they want that protection in the law. Let us look at both citizens. There is a citizen who did something wrong by taking goods from a shopkeeper, from another citizen, which is wrong. If we were to say there were nothing in the code that covered that theft or public nuisance, I would say we ought to put something in it.

However, let us not look at this in isolation. There are various sections covering these. If there is theft, nuisance, harassment, racist acts or violent acts, these are now covered by the Criminal Code. Let us be clear about that. There are provisions that cover the fact situations we have all been listening to and talking about today.

The question is, in the absence of action by the state, should a person be able to stop or prevent the action as it affects his or her personal safety or property?

Again, those sections are now in the code. They do allow citizens to take the law, as we say quite frequently and pejoratively, into their own hands. The Criminal Code now provides for that. Anyone who says there are no provisions in the code for a person to apprehend and stop another citizen from doing something is not telling the whole truth. Those provisions exist.

The issue is how far should those powers go.

This is a delegation of a state power. The state has the right, and the obligation in some cases, to arrest an individual who is breaking the law. In the section in the 490s, as I mentioned, about citizen's arrest, a citizen who is not a peace officer can also undertake that task that has not been performed by a peace officer.

We would expect, therefore, that if that were to be the case, it would have to be done with great care, greater care than by a peace officer, who also has to provide reasonable grounds for arresting someone and to abide by all the laws, including our Charter of Rights and Freedoms. The onus is even higher on someone who takes the citizen's arrest route to protecting him or herself, or property.

What we are trying to do here is have a debate as to whether the law as it sits is adequate, or whether we need to expand that law so greatly that judges and police officers would even have some doubts as to whether it would lead to increased vigilantism and the taking of the law into one's own hands.

I do not think there is anyone on any side of the House who is going to say that this is a simple question. It is a question of degree. The degree to which someone takes the law into their own hands on behalf of the state to protect themselves or their property is not a simple question; it is a metered question, a question that depends very much on the facts.

There was a saying in my days of reading the law that cases do not stand for grand propositions but turn neatly on their facts. That is really what we are talking about here. In the case of a shopkeeper in Toronto who was terrorized and humiliated and who had seen his livelihood, and perhaps his own personal safety, put in peril on many occasions, he decided that he knew who the perpetrator was and that he would apprehend the perpetrator after the fact.

What we are finding here is that if that action had been taken at the time of the incident, he would not have been charged with unlawful confinement. It is academic, but he probably would have had every right under the section as it now exists to take his citizen's arrest role seriously and have it ratified by police officers, prosecutors and the judges, if it have ever gone that far.

When this case really first came up, I knew many members of Parliament, and not just from the greater Toronto area and all parties, who felt very badly that this shopkeeper who had merely been defending his security had been charged. I do not think there is a person who did not feel for that citizen of Canada.

The question at that time seemed simple, I suppose, to me. I thought that at some point, on the volition of the government or that of the opposition or someone else's, we would change the Criminal Code, as I mentioned in my first remarks, so that it would evolve into a modern document. I thought that we would respond to this by suggesting that a reasonable time could elapse from the time of the offence to the time of the apprehension and that we would provide not just that defence but also the ability to apprehend someone under the citizen's arrest provision. I really thought that was maybe all we would be facing with respect to this whole area.

Let us remember that this could not have been a burning issue for the government before that incident in Toronto. Let us recall, as we do profoundly on this side, that the government has been in power for over five years and has had multiple opportunities to bring forward justice legislation. It has brought forward many justice bills that it has killed itself. At no time until Bill C-60, some five years after coming into power on a law and order agenda, a putative or Pyrrhic law and order agenda, did the government do anything with respect to these two issues in the code. It did nothing. These were not burning issues.

From year one to year five of a mandate, there is a fact situation that all members of Parliament react to in a positive way. That is, they want to help, and the Conservatives came forward with Bill C-60. However, the bill does not make that little change to the code that would fit the fact situation and make the criminal law more modern and responsive. The bill perhaps goes too far, which is the argument being made as bill moves along to committee.

I say this because the Prime Minister visited Chinatown in Toronto, as reported in The Toronto Star, where he said that previous governments had refrained from stiffening the law because:

they [had] wanted to avoid vigilantism, which is a genuine threat to the rule of law.

However, he added that many Canadians believed that “the right balance [had] been lost in the justice system“ and that there was a sense that criminals were protected at the expense of victims.

I had my researcher look back to see if there were any quotes specifically on this aspect of vigilantism and self-defence and the provisions for citizen's arrest. However, there had been no comments made by the Prime Minister or his justice minister on reforming this law, until this fact occurred.

So we have a Prime Minister who is commenting on previous governments. I would say that the indictment is against the Prime Minister and his various justice ministers who, for five years, have done nothing about this problem, which they seem to think existed for some time. It is a bit misleading for the Prime Minister to say that in a political scene, of course. However, he also wanted to make the police feel secure by saying at that time that the:

—police are the first line of protection against crime—

—which everyone would agree with—

[And that] Police officers will continue to have the responsibility to preserve and maintain public peace as Canada’s first and foremost criminal law enforcement body.

That is fine, but what this act would go ahead and do is perhaps to give people the view that as citizens they are now going to have more powers to prevent wrongdoing as they see it on their property. This is not me saying this, but the deputy chief of the Halifax Regional Police service, not that of a minor, inconsequential backwoods or half-professional force but one of the best police forces in Canada. The deputy chief of the Halifax Regional Police said of the law as it is that:

It doesn’t give any great power of citizens to go out and grab people on the street.

He said that as part of a round table discussion with the Minister of Justice at the time. Throughout the article by the Canadian Press reporting what he said, he was very cautious in suggesting that any accretions to public arrest powers should be exercised very conservatively, which is not a word that I use very often. He said that these were not matters that people should engage in without some caution. He said that the law enforcement agencies had enough of a challenge in teaching experienced officers how to interpret the law, and wondered if it meant now that they would have to go out and give citizens courses on how to perform a citizen's arrest.

Experts outside the government and outside of Parliament have also recognized that the rules around self-defence, the extension of citizen's arrest, tell us that if someone performs an action in reaction to an assault or an invasion or perceived invasion or threat to personal property, he or she might act in a physically, emotionally, or other harmful way to another person.

The person would then have to have a defence to not be charged or convicted, and that is generally in those provisions that I mentioned in the low 30s and 40s of the Criminal Code on self-defence.

The idea that one could tinker with self-defence on a situational basis is rather appalling. The police officers who participate in round tables do not come to those round tables with written amendments to the laws that the government then puts up on the television screen the next day after consulting with Department of Justice lawyers.

I heard today at committee that a number of provincial prosecutors who were talking about amendments to a bill were not consulted on the bill as presented. There is something wrong when ministers of justice and prime ministers do not consult police officers and crown prosecutors when amending legislation.

We have had experts from the police and prosecutorial communities say that because each case is unique with widely diverse and sometimes contradictory evidence, no broad policy statement is intended with respect to the use of a firearm in the defence of one's home, for instance. This was in response to a situation where certain charges were dropped against a person who was defending his home. This tells us that these are very complex issues.

While the government has put forth a bill that seemingly reacts to a very small set of circumstances, it has in fact opened up a Pandora's box that must be studied very vigilantly and diligently at committee to make sure that the box is not too wide open.

As I said, everyone has sympathy for the shopkeeper in Toronto. This is one of those issues that unifies all parties. I heard the NDP speak eloquently about the situation, as have the Liberal Party and the Conservative Party. However, instead of bringing a bouquet, the Conservatives bring an entire flower garden to the issue. It is confusing. Are we just responding to a particular set of circumstances for which minor amendments to the code would suffice, or are the Conservatives trying to open up a very dangerous Pandora's box that might lead certain people to believe that the law of Canada has changed?

I saw the Prime Minister on television for the usual 6.8 seconds. He said that we were allowed to take that law, and we do not really need the charter, but if someone goes across the corner of our property with a Ski-Doo, we can defend that.

This is not an urban or rural issue. It is not a male or female issue. It is not an issue that divides on the basis of race, religion, or in what part of the country one lives. It is the Criminal Code of Canada and it has to apply in every fact circumstance.

The good people of Grand Manan Island in my province of New Brunswick had a problem several years ago. People from the mainland were going there and selling drugs to their young people. They frequented or lived in a house which the community felt was the centre of this activity. It is alleged that the people got together as a community and burned the house down and ran those people off the island.

As a father of three young children and a former mayor of a city, I understand local politics. I understand about protecting the community. On one level we would say, good for them that they cleaned up the community. However, we might recoil and think that if an illegal activity was going on, where were the police? Why were the police not able to do the job that should been done?

We might ask the question of the police and they might say that they are severely under-resourced, that the troops the RCMP in rural New Brunswick were supposed to get did not come, that the resources they are supposed to have are not there and it is a rural and remote community and they just cannot enforce the laws that are on the books. We would have an understanding of that.

However, to open up the law to let people burn other people's houses down is not necessarily a solution. In the trial sentencing, if there was wide open judicial discretion in this case, a judge might take into consideration the volition of the community and, while saying it was wrong, be a little merciful on the sentence. In fact, that is what happened in my province and it showed that the system worked. It is under-resourced, but it works.

However, not all of this law is good law and we will take a good look at it at committee. I want to commend those who spoke in favour of the good provisions that helped the store owner in Toronto.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Mr. Speaker, throughout his entire speech, my colleague did not mention a single word about small business in Canada, in contrast to the speech that was delivered earlier by a member of the NDP.

If we proceed with this, is there a greater risk of putting citizens in harm's way? We have highly trained police forces. In some of the police shows on television, we see police officers going after somebody who is totally enraged. The person may be on drugs or in an unsettled mental state for whatever reason. They are very intense situations. Are we placing citizens at risk if we proceed with this legislation?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, in fact, I did mention small businesses and shopkeepers. I just did not spend 20 minutes on that sector of the economy and I apologize because I know my friend wanted to hear more on that.

His principal point is whether this is opening a Pandora's box where vigilantism might be encouraged. As drafted, let us hear what the experts, police, prosecutors, professors who study this area of the law, and victims have to say on this. Let us hear from victims whose loved ones have been killed mistakenly, whether by police officers or private citizens who took the law into their own hands. Let us hear from those victims.

The government is all about victims. Let us hear from all stakeholders on this issue and decide whether this is going too far for public political purposes or whether there can be a balance achieved with respect to righting and modernizing some of the code provisions that did not protect the storekeeper in metro Toronto.

[Steven Fletcher, Conservative, Minister of State (Democratic Reform)]

Mr. Speaker, I would like to thank the member for actually speaking to the bill. That helps with the debate.

I wonder if the member could comment on the situation that led to the introduction of this bill. The shopkeeper ended up being re-victimized when, after being robbed, the police charged him. That is double victimization. The robber got off. That is ridiculous.

I wonder if the member could at least agree that the person who does the crime should do the time and the people using common sense and good judgment to apprehend the criminal should not be penalized for that.

I wonder if the member could at least agree that the thrust of the bill is not to punish victims of the original crime but to keep the bad guys away from the citizenry.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, there is a very specific amendment to the citizen's arrest portion of the code which would basically correct what was wrong in this fact situation.

Yes, it is wrong that the person who did the crime did not do the time. He was let off because he was unlawfully confined in that Mr. Chen allegedly confined him after the event occurred.

As we see in the government bill, clause 3 would amend subsection 494(2) to add very important words to say that the owner or a person in lawful possession of property may arrest a person if “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”.

That is the specific fact situation that would have assisted in the case of Mr. Chen. I say bravo on one section of five pages and we will take a look at the rest.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, I listened with great interest to my colleague.

When we look at the aspect of citizen's arrest, one of the problems we have seen with the law is the time limit component, which one part of the bill deals with quite explicitly.

From the member's speech and others from the Liberals, the Bloc and certainly from the New Democrats, because it was the member for Trinity—Spadina who came up with the suggestion, and the member for Windsor—Tecumseh, who will be speaking soon, it seems there is agreement.

The idea was to extend the time allowed for someone to make a citizen's arrest, so that if the alleged theft happened at two o'clock and the person missed the offender right at that moment, at three, four or five o'clock the person would be able to make that citizen's arrest if the person was not able to secure some support from the police. That is the piece where we seem to have agreement from the other parties, and obviously from the Conservatives, because they put it in the bill, although they took it from the New Democrats which is fine.

Can we not simply fast-track that element of the bill that does not seem to require a great deal of study or hearing of witnesses? We could then study the other two parts that have more nuance on how they get applied. Would that be something the Liberals would support? Since the Liberals are clearly in support of the case of Mr. Chen and others like that around the country, a little more permission on the time aspect would be supported by all members in the House and we could get this bill done even before the budget is seen by this place.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Yes and no, Mr. Speaker.

Obviously the Liberals would support those parts that I just read in the previous answer about extending the time to make an arrest within a reasonable time after the offence is committed. If that is what my friend is talking about, that would be good law. That would be an easy amendment.

The no part is, I have been here for only five years and I have been on the justice committee all that time. Even when we make reasonable suggestions to Conservatives, it is the baby with the bathwater scenario with them. The member for Windsor—Tecumseh has been here a lot longer. He has been on this earth a lot longer too. Every time he makes a suggestion, it may be a good one, but the baby goes out with the bathwater because the Conservatives want the whole bill so they can go to the six o'clock news with it. They really do not want to make the incremental changes that would prevent this fact situation from occurring

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

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.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Mr. Speaker, I want to take advantage of the fact that my hon. colleague has introduced himself as a former law professor and, therefore, an esteemed person, a knowledgeable person and someone who is aware of the consequences of the law, the intent behind what the laws may say and how the courts may interpret the legislation.

I noted that he wanted his colleague from Trinity—Spadina, in her presentation, to serve as a model for the government.

I want to ask him if he would share with us just what his interpretation was of the court case dealing with Mr. David Chen in Toronto that prompted two opposition members, both from Toronto, to present legislation for the government's consideration.

As I read the decision, the judge interpreted the actions of Mr. Chen to be one continuous activity and therefore interpreted the concept of reasonableness in all of its permutations into one very basic issue and said that it was very reasonable for Mr. Chen to do what he had to do.

I am wondering whether that was the interpretation, in his capacity as a former professor of law, that he came to. Does he agree with Professor Anand and Professor Young who have expounded on this and whether that is the basis for his position that the government should have cut this short, should have focused on what is the very simple crux of the matter and then asked all parties to pass this all in one hearing, one very quick decision? The courts have already ruled on this. Would that be his interpretation as well?