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

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

Mr. Speaker, one needs to be careful of the factual situation. My colleague is correct about the decision by the court, that it saw this as a continuous event.

In effect, after the original theft, Mr. Chen believed he was able to recognize the thief who was in his shop again acting in a fashion that led Mr. Chen to believe he was at risk of a further theft occurring. The continuous nature of it was not just the original offence and then Mr. Chen identifying the person. It was identifying the thief and being concerned that another theft was about to occur.

When we consider that, it was quite reasonable for the court to say that it was reasonable that when Mr. Chen saw the person a very short time later on the street, this was one continuous event: the original theft, the suspected attempt at another theft and now the apprehension. That is the way the court drew those conclusions.

I need to be blunt. When we look at the rigidity of the wording in section 494 as it is, the court was being very, although I hate to say it, liberal in its interpretation.

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

It's a good word.

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

I want to be very clear that I mean small “l” liberal in its interpretation of the section because a small “c” conservative interpretation of it could have very easily come to a different conclusion.

That brings me to the second part of the member's question, which is the importance of getting this amendment through. The same kind of fact situation could come up, but there then may be a judge applying a rigid conservative interpretation and convicting somebody like Mr. Chen with maybe the facts being slightly different.

[Don Davies, NDP, Vancouver Kingsway, BC]

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

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

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

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

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

Mr. Speaker, let me emphasize that it is important to get that through. I have been on the justice committee for over seven years now and up to this point we have not heard from any government witnesses, ministers or officials that there is a crying need to amend those other eight sections of the Criminal Code.

After I saw what was being proposed in the bill, I had the opportunity to spend time with criminal defence lawyers, prosecutors and, more important, police officers and police chiefs. They are all telling me that they do not see any problem. They understand we want the amendment to section 494 because of the Chen case but they are not aware of any problem with sections 34 to 42, the provisions that allow for self-defence of the person or property. There just does not seem to be a crying need for it.

Why the government would have combined them when there is a crying need for amendments to section 494 and why it is moving down that road at all really begs the question. There is no crisis that needs to be addressed. That much is fairly clear.

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

Mr. Speaker, my hon. friend did all this talking about the liberal interpretation and about being conservative, but let us talk about a socialist perspective on the defence of property, the means of production, the defence of property amendments that are here.

The Department of Justice memo talks about the bill and says that the defence of property aspects are spread out over a number of sections and they differentiate based on personal property or real property. It seems that the bill attempts to concentrate it and make it coherent.

In the defence of property proposal, does the member think it would give homeowners or property owners more justification to use violence? Is that his interpretation or not?

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

Mr. Speaker, I have not come to a conclusion on that. I can see where there is that possible interpretation but it is not at all clear.

As I said in my comments, the whole concept of justification is very poorly treated in these amendments. Therefore, it is really hard to understand what the end result will be. I do not think it is stretching it all, nor fearmongering, that we are looking at unintended consequences because it is drafted so generally as opposed to a number of the specifics that we have in the existing section.

I will add one additional point around the responsibility that we have as citizens to protect ourselves. Our courts have made it quite clear, and this goes back into all sorts of interpretations and decisions from England, that as we develop our society we place police officers in the position of playing this role. The role of the citizen for self-help is always the exception.

I will make one further point. Our courts have made it quite clear that in this situation, for instance, if the person is being arrested, the police officer must give the warnings under the charter, which are the right not to self-incriminate, et cetera. There has been one decision that citizens do not have that responsibility, but it comes back to the point that our courts have been very clear that they want to see the use of self-help as the exception and they want our police officers to be doing the job that they have been mandated to do.

[The Deputy Speaker, 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, 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--