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.

[Prof. Vanessa MacDonnell, Professor, Faculty of Law, University of New Brunswick, As an Individual]

Good morning.

My name is Vanessa MacDonnell. I'm a law professor at the University of New Brunswick Faculty of Law. I teach and research in the areas of criminal and constitutional law. This past summer I authored a paper with Mr. Russomanno on the changes being proposed to the power of citizen's arrest by what was then Bill C-60 and is now Bill C-26.

I'd like to touch on four points in my opening statement this morning. I would welcome questions from members of the committee on any of these points or on other aspects of the bill.

First, I'd like to talk about what I'd call temporal concerns with the changes being proposed to the power of citizen's arrest.

The existing law permits an individual to effect an arrest where that individual finds a person committing an offence. The arrest takes place immediately and in most of these cases there's no serious question as to whether the offence has been committed and whether the individual performing the arrest has the right person.

Once you start to stray from this paradigm, though, certain concerns arise: there's a higher possibility of a false arrest; the individual performing the arrest might have the wrong person, the wrong arrestee; and, the person being arrested may have no idea why he or she is being arrested and might resist arrest, either lawfully or otherwise.

These are all circumstances where, in my submission, we would want the police, rather than a private citizen, involved. There's actual police work to be done here. This isn't the kind of case where a thief is caught red-handed, for example, and there may be evidence to seize or an investigation to be conducted. In my view, in this category of cases, we've exceeded what the citizen can meaningfully do. In this respect, the expansion of the powers of citizen's arrest being proposed by Bill C-26 is concerning.

Second, it's important, I think, to highlight that the provisions related to defence of property that are being proposed in this bill are also relevant to our discussion of citizen's arrest. These provisions, like the existing defence-of-property provisions in the code, provide an individual with a defence in circumstances where he or she is defending property. So defence of property, and the self-defence provisions more broadly, provide some protection to an individual who uses force in performing a citizen's arrest.

Included in this broader web of protections are also provisions that protect individuals who use force to prevent the commission of an offence, and protection for individuals who take steps to prevent a breach of the peace. You can read about some of these provisions in the legislative summary for the bill that has been provided by the Library of Parliament.

But the point here is that there's a broad web of provisions that already provide protections to persons who perform citizen arrests. Again I would make the point that situations that fall outside the scope of this broad web of protections likely require the professional expertise of the police.

Third, the major beneficiaries of the expansion of powers being proposed by this bill are not actually small shop owners like Mr. Chen, but rather the private security industry. I'm sure that Professor Rigakos is going to speak more about this in his remarks.

Society is increasingly relying on private security forces as the first line of defence to a number of security threats. These forces are often highly sophisticated. They are well resourced. They police a range of environments and places.

The academic literature and the empirical literature suggest that where marginalized groups are being policed by private security forces, especially in low-income housing communities, there's a real potential for harassment, and the powers being proposed by Bill C-26 may exacerbate this situation. I think we should be very concerned about the liberty and equality concerns that arise when we expand the powers of private security forces, especially if we end up doing so sort of unintentionally.

This bill was really aimed at the David Chen situation and not, perhaps, at expanding the powers of private security forces more broadly. I would simply point out that, unlike police officers, there is very little in the way of regulation of the private security industry.

When we're talking about police officers, of course, their powers are constrained. They have only those powers that are given to them by statute or the powers they have at common law. They're also required to observe the limits of the charter in their duties.

This takes me to my fourth point, and that is the question of whether the charter applies to the actions of an individual performing a citizen's arrest. On this point, I'd just say that the case law, to date, is unclear about whether the charter applies when a person is performing a citizen's arrest. The Supreme Court of Canada has yet to rule definitively on this point. So there's no guarantee the charter would serve as a meaningful check on individuals performing a citizen's arrest.

Perhaps I'll stop there.

Thank you.

[Nicole Dufour, Lawyer and Coordinator, Criminal Law Committee, Barreau du Québec]

Thank you very much.

I am here with Giuseppe Battista, who is chair of the Barreau du Québec's criminal law committee. That committee consists in equal parts of defence lawyers and crown attorneys, as well as a few university professors.

On reading Bill C-26, we note that, to a large extent, it reiterates the content of Bill C-60, which had the same title, and bills C-547 and C-565, which dealt with the same subjects and on which the Barreau has previously commented.

We note that certain expressions in the French version of Bill C-26 are inconsistent with the English version and should be corrected. The words "unlawfully" and "lawfully" in the English version are translated by expressions using the word "légitime", which, in our view, does not necessarily convey the purpose intended by the English version. For example, section 34(3) as proposed by the bill contains the expression "agir de façon légitime". We submit that the phrase "autorisée par la loi" would be more accurate than the word "légitime".

The Barreau du Québec would like to offer its congratulations on the effort to simplify the legislation relating to self-defence, which has been criticized by the courts and by law enforcement bodies. In our opinion, these amendments do not alter the current case law, since the proposed provisions address the conduct and actions of a person who uses force, and not the outcome, for deciding whether the use of force in the circumstances is reasonable and lawful.

However, we believe that the choice to legislate in the negative is not advisable in the circumstances. We submit that it would be preferable to use an affirmative formula that refers to the right to repel force, or the threat of force, by force.

Bill C-26 reiterates the elements of Bill C-60, which provided that an arrest may be made within a reasonable time after the commission of an offence if a person believes on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. The Barreau du Québec believes that the proposed amendments are potentially dangerous in terms of the safety of the individuals involved in exercising a power of this nature and for the persons who would be subject to it.

In addition, the fact that a citizen's arrest must be made "within a reasonable time" after the commission of the alleged offence leaves the way open for a possible abuse of power. Any arrest includes elements of unforeseeability arising from the use of the force that is needed in order to make an arrest, peaceful though it may be. By definition, an arrest implies the use of force: a person who makes an arrest must physically control the person and restrict their movements and, if necessary, may use reasonable force to compel the person to submit to their authority. When police make an arrest, they are identified by their uniform or otherwise, and persons arrested by police know that the police are entitled to make arrests, even if they believe the police are in error in their case, and police are required to inform the person arrested of the grounds for the arrest and of their rights. The police are trained to make arrests, and even with their training and skills, arrests sometimes go wrong, even where the persons involved are not criminals. A member of the public does not have the training and resources available to police forces. The power of arrest is an important power that must be exercised in accordance with the law, and the rights of a person who is arrested must be respected.

The power to arrest granted to individuals must be an exceptional one and must be subject to strict guidance. We believe that the use of the expression "reasonable time", as proposed in section 492(2), is problematic, in view of the risks associated with a citizen's arrest.

[Tom Stamatakis, President, Canadian Police Association]

I do. Thank you, Mr. Chair.

I apologize for not being there in person today.

For those of you today who might not be familiar with the Canadian Police Association, we are the national voice for 41,000 of Canada's front-line law enforcement personnel. We represent police personnel serving in 160 police services across Canada, from Canada's smallest towns and villages to those working in our largest municipal and provincial police services, as well as members of the RCMP, railway police, and first nations police.

It's my pleasure to be able to speak to you today regarding Bill C-26. I would like to offer a few brief opening remarks in order to keep as much time as possible to answer any questions you might have regarding this legislation and the impact it will have on Canadian law enforcement personnel.

Obviously the December 2009 case of Toronto store owner David Chen showed that Canada's current laws regarding the right of citizens to effect an arrest in order to protect themselves or their property required some consideration. That being said, we should always take care to underline, particularly for the sake of public safety, the fact that the preservation of the public peace should always be the responsibility of professional, trained, and recognized law enforcement personnel.

I should note that before Bill C-26 was originally introduced in the last Parliament as the former Bill C-60, the Minister of Justice and his department consulted extensively with our association and other law enforcement stakeholders to ensure that our concerns were reflected in this legislation. We appreciate their efforts to reach out in this regard, and as always we look forward to further cooperation whenever it's possible.

With respect to this specific legislation, our association is generally supportive of the goals and methods contained within Bill C-26. I would like to take this opportunity, however, to outline a few brief concerns.

Obviously, law enforcement personnel are the beneficiaries of a significant amount of training in areas such as the proper use of force, methods of detention, and arrest powers, which average citizens are not privy to. Therefore, it's vitally important that we continue to educate the public that despite any changes to the powers of citizen's arrest in Canada, the first reaction people should have if they witness a crime being committed is to call the police and allow our law enforcement professionals to do the jobs they're trained to do.

We should also take care that any changes made within this legislation do not have the unintended consequence of broadening the current mandate of private security, particularly with respect to loss prevention in commercial settings. While I am sympathetic towards store owners and businesses that wish to minimize losses with respect to the very real concern of shoplifting, which costs us all in the long run, we must take care not to go too far in the pursuit of protecting property.

For instance, it can be tempting to believe that all shoplifters are teenagers committing a crime of opportunity. But factors such as the presence of accomplices or even, in the worst case, gang affiliation can lead to increased personal danger for private security personnel who try to effect an arrest. We definitely don't want to see a situation in which a citizen's arrest is made only to find the suspects' friends or accomplices returning for a measure of retribution.

In the end, property owners, shopkeepers, and businesses that are looking to prevent losses should take the basic steps necessary to assist law enforcement, including installing functioning and clear cameras where necessary, as well as quickly reporting any suspected activity to local police agencies, rather than looking to take the law into their own hands.

In summary, Bill C-26 does help clarify some of the situations in which it might be appropriate for a private citizen to act in defence of themselves or their property, but we must avoid any indication or implication that these actions should be a replacement for professional law enforcement personnel.

I do appreciate the opportunity to address you today and certainly welcome any and all questions you might have on how this legislation impacts our members.

Thank you.

Citizen's Arrest and Self-defence Act

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, I want to thank my colleagues who have spoken so eloquently on the bill today.

We on this side of the House generally support the thrust of at least one-third of the bill dealing with the so-called Lucky Moose event a couple of years ago in Toronto. My colleague, the member for Trinity—Spadina, introduced legislation to deal with that unfortunate incident some time ago. It was collected up by the members opposite in Bill C-60, which, unfortunately, failed to pass and died on the order paper.

First, I want to thank my colleague for Kitchener—Conestoga because I believe he said that the government would be willing to listen and to make amendments to the bill. I hope he said that because so far we have not seen a whole lot of willingness on the part of members opposite to accept any kind of reasonable amendments to any of the bills that have been before us.

My other comment has to do with the apparent priorities of the members opposite and the government. It appears that we have an inordinate preponderance of bills dealing with guns, crime, punishment and defence of personal property, but we are not spending a whole lot of time dealing with other very serious issues in our country, such as jobs.

The number one complaint I hear from my friend from Prince Edward Island is that his constituents need jobs. The same is true in my riding. People seem to have given up in large measure looking for jobs because there just have not been any for so many years in my riding.

We also have a serious first nations issue that appears is being glossed over by the government. Apparently no action is being taken to help the citizens of Attawapiskat, except to blame them.

We have reported cuts to services for seniors and for persons seeking EI such that they cannot even get answers on the telephone to their issues. They come to my office, as I am sure they do in many other members' offices, saying that they cannot get through and can I help. Our role should not be to replace the civil servants of the country.

I am hoping that, once this bill is disposed of, we can start moving into some real priorities and move away from the crime, punishment and gun agenda that seems to be dominating what we have been talking about.

The bill contains two essential ingredients. One is to give better permission to a citizen's arrest. There already is permission for a citizen's arrest in the Criminal Code, but citizens have to apprehend people in the act. They cannot find them later and arrest them. That is essentially what the bill hopes to accomplish.

It seems to be fairly clear on the surface. We look forward to the day when the committee will have a chance to study the bill in some depth, have representations from witnesses and experts in the field and to make amendments to make it absolutely certain that what we do will not have any unintended consequences.

I have a personal experience with citizen's arrest. It was a dark and stormy night, if members will pardon the use of the term. One night a couple of years ago, it was pouring with rain when I pulled into my driveway and saw a brand new bicycle sitting at the end of my neighbour's driveway. It seemed quite out of place. I picked up my cellphone and called my neighbour. He did not answer right away, but I heard his car door slam. I thought he was putting the bicycle in his car.

When I went over to his car, I discovered that it was not my neighbour, but somebody else who was about to get on the bicycle. I stopped the gentleman and asked him what he was doing. He said that he flat tire, that he had been at a friend's house and that he was trying to find a way to fix it.

He was quite drunk too. By that time, my neighbour, who had seen that I had phoned but had hung up on him, came out to the street. I asked him if it was his bike. He said that it was not his bike and asked what the gentleman was doing there. I looked at my neighbour and told him that he was just fixing a flat. However, the gentleman with the bike had a little box in his hand. The little box was a very unique piece of equipment for resting the tip of a welding torch that came from Princess Auto.

My neighbour looked at it and said, “I bought one of those today. Where did you get that”? The gentleman said a friend of his had given it to him. My friend went back to his car and looked, and it was gone. He accused the man of stealing it, which he denied. We ended up discovering that not only had he stolen that, but he had a couple of other things from my friend's car. At that point he got on his bike and tried to ride away, and I stopped him. I said, “No you don't. You're not going anywhere”.

This was not an act that was very smart because who knows whether this guy had knives, guns, or whatever else, but it was an instinctive reaction. That is part of what we are trying to deal with here. The instinctive reaction was that he should not go.

I picked up my cellphone and dialed 911 while I was holding his bike. He was too drunk to ride it anyway. I got 911 on the phone. The response was, “Police, fire, ambulance”.

I said, “Police, there is a man breaking into a car and I have apprehended him”.

They said, “Are you sure”?

I said, “Yes, he's standing right here. Do you want to talk to him”?

They said, “No, but we'll send somebody right away”.

Well, within two minutes, there were six police cars in front of my driveway. Clearly, the message is that if we tell them we have apprehended somebody they will come quickly.

Then an ambulance arrived because the guy had a cut on his hand. Then the fire truck arrived. I asked the fireman driving the fire truck why they had come. He said the guy might set himself on fire and they would put it out.

My point is, I acted out of instinct, not out of having read the law that says what I can do in a circumstance like that. That is part of what we are trying to deal with here, to make a reasonable instinctive reaction lawful. If my neighbour had not been there with me, if I had just apprehended this man while he was stealing from my neighbour's car, I would have in fact been in violation of the law. That will not be the case any more under this change, I think. It is a little unclear.

In retrospect, I probably should not have done what I did because who knows what he might have had. As it turns out, when the police did arrive, it was still pouring rain. They made him take off his coat and when they emptied it they found all kinds of stuff that he had already stolen. The bicycle was something he had probably already stolen. He had been out of jail only two days. He really wanted to go back there because it was dry and warm, and this was his way of getting back into jail and to someplace safe in the riding. He was actually, in some way, trying to be a better person because they discovered that he had put some air freshener, that he had stolen from the local drugstore, in his underwear.

The point of the story is, as citizens we react instinctively, not because we have read the law. It is that which we have to keep in mind as we craft these things. We do not actually act, necessarily, in our best self-interest when we are reacting to what we see and know is a crime.

The other story that I mentioned a few moments ago happened a year ago in my riding. An ice cream truck was robbed at gunpoint in the middle of a sunny afternoon, with children and parents all around the ice cream truck, and two very obviously bad people with a gun. The only person, at that point, in any immediate serious danger would have been the ice cream truck driver/operator, who was facing the wrong end of, we assume, a loaded gun.

The current laws on self-defence have given people the ability to defend themselves under the current legislation. They have the right, maybe, if they feel an immediate threat, to pull their own gun, if they have one. I do not know of too many ice cream truck drivers who carry around guns, certainly not in Toronto. Maybe they do in some more rural areas of Canada, but not in Toronto.

The issue then is, at what point does this become dangerous to the rest of the people. The concern I have is that the bill would change the rules from someone who is feeling their own personal threat to a threat of force being used against them or another person. We would expand the notion of self-defence to include another person.

Maybe the jurisprudence actually covered that in the past. I cannot find that on a layperson's reading of the law. I am not a lawyer. I do not have the kind of background that some of our colleagues do. We hope that through committee they are going to be able to tell us that this legislation would actually just repeat what used to be there. However, when I read it, I immediately thought of that incident with the ice cream truck.

If this law had been in place, and if everybody had read it, which I am going to say most law-abiding citizens do not go around reading the law, but if they had read it or if it was common knowledge that we could defend the life of someone else, then the concern I have is that we end up with someone across the street who sees the ice cream truck being held at gunpoint, or who thinks it is being held at gunpoint, maybe they do not actually see clearly enough to know what is going on, and they reach into their cupboard to get their unregistered long gun. I am hearing cackling from the other side of the House.

That unregistered long gun then becomes a use of deadly force in a situation involving children, in a situation involving ordinary civilians. We have now created a situation that should not have been created. We have now escalated this into what is perhaps going to become a deadly shooting spree. We do not need that to happen. We do not need vigilantism. We do not need people to feel they have the right to use force in situations that endanger themselves and endanger others as a result of a bill that may have been written with some unintended consequences in it.

I hope that as a result of serious thought and serious study at committee, the bill will in fact have possible flaws like that one corrected, where we create problems where there are none, where there are unintended consequences, where the mere notion that the law permits someone to use force to defend someone they do not even know and someone that maybe does not need defending, and create a sense of vigilantism.

That is not what we want in this country. We are not a country of vigilantes. We are not a country of people who go around raising arms against other people in order to defend life, limb and property. That is not what we do in Canada. That is not how we behave.

I am not trying to justify, in any way, any criminal acts by people with guns at ice cream trucks. It was one of the most disturbing stories I had heard in a long time about the level to which the violence in my riding has gone to. It is not something that I appreciate. The police are well aware and the police, I believe, have now arrested the perpetrators. They are in jail and we can rest a little easier.

However, my concern is I do not want to have a situation where we pass a law that somehow gives people the thought that they can enter into a fray like this and start shooting. That is not what we want. That is not what we expect from our ordinary law-abiding citizens.

As it turns out, no one was harmed in that robbery, except the owner of the truck who lost some money. However, there were no guns fired. There was no violence and no damage to anyone. Yet, this law might give some the thought that they should enter into this with guns blazing. That is not the country we live in. That is not the country we want. That is not the country I think I want to belong to.

So, we have a situation where this bill ought to go before a committee and be studied in a reasoned and unpressured way. The last two bills that the government brought forward were rushed to the point where closure was invoked on several occasions and in the case of Bill C-10, there were 208 clauses dealt with in clause-by-clause analysis in two days. Two days is not an appropriate amount of time to give serious sober thought to a bill that has enormous consequences.

We understand that the committee was rushed to the point where witnesses were crammed together, were not given sufficient time to answer questions, and questions were not able to be put to these witnesses in a thoughtful and reasoned way because there was so much rush put on this. I hope, based on the statements made by my friend from Kitchener—Conestoga, that the government is actually going to sit down and listen, pay attention, and accept reasoned amendments to this bill put forward by the opposition.

As I understand it, on both Bill C-10 and Bill C-19, many amendments were put forward, but—

[Glenn Thibeault, NDP, Sudbury, ON]

Mr. Speaker, I am pleased to rise in the House today to engage and speak to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), commonly referred to as the Lucky Moose bill.

Let me begin my statements by highlighting the incidents that have led to the introduction of legislation of this kind by both the government and by the member for Trinity—Spadina.

On May 23, 2009, David Chen, owner of the Lucky Moose Food Mart in Toronto apprehended a man, Anthony Bennett, who had stolen from his store. After Bennett was initially caught on security footage stealing from the store, he returned an hour later. At that time, Chen, who was 36 and had two employees, tied up the man and locked him in the back of a delivery van.

When police arrived, they charged Chen with kidnapping, carrying a dangerous weapon--a box cutter, which most grocery store workers would normally have on their person--assault and forcible confinement. Crown prosecutors later dropped the kidnapping and weapons charges but proceeded with the charges of forcible confinement and assault.

Although Anthony Bennett, the suspect in question, ultimately pleaded guilty in August 2009 to stealing from the store and was sentenced to 30 days in jail, the crown moved ahead with the charges against Mr. Chen and his employees, since the Criminal Code, as it is currently written, stipulates that a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act.

Obviously in this case the circumstances of the suspect's returning to the scene shortly after the offence was committed exposed a fatal flaw in the legislation, and this flaw has led us to this point.

It is also important to note that the suspect in question had stolen repeatedly from the same store, so this was certainly not a case of mistaken identity. We can be assured of that.

Eventually, after a court ordeal lasting a year and a half, Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. Obviously the process of a lengthy trial was distressing for Mr. Chen and his family, while also tallying significant administrative costs borne by taxpayers and tying up the valuable time of police, prosecutors and the courts.

In response to the ongoing concerns New Democrats heard from individuals across the country regarding a citizen's ability to make a lawful citizen's arrest, in September 2010 the New Democratic MP for Trinity—Spadina introduced a private member's bill to amend the Criminal Code in order to protect individuals like David Chen from facing criminal charges.

New Democrats have consistently welcomed the government's decision to incorporate the member for Trinity—Spadina's proposals into its legislation, first tabled in February 2011 during the 40th Parliament and now again in the 41st Parliament.

Let me now move to the specifics of the bill in order to parse out what is actually being proposed by the government at this juncture. Let me begin with the sections dealing specifically with citizen's arrest.

Currently, under subsection 494(1) of the Criminal Code, any individual can make an arrest without a warrant of a person he or she finds committing an indictable offence or who he or she believes on reasonable grounds has committed a criminal offence and is escaping from and freshly pursued by those with lawful authority to arrest the suspect in question.

Under Bill C-26, this section of the Criminal Code relating to citizen's arrest would remain unaltered.

Therefore the amendments being proposed apply solely to section 494(2), which applies to the owner or other persons in lawful possession of property or a person authorized by the owner or lawful possessor.

Currently such a person may make a warrantless arrest of a person whom he or she finds committing a criminal offence on or in relation to that property. The proposed amendments would subsequently allow such a person to make an arrest within a reasonable time after the offence is committed.

Under the amendment, business owners or persons under their delegated authority would be rightfully allowed to make an arrest if they believed, on reasonable grounds, that it was not feasible in the circumstances for a police officer to make that arrest.

The final piece of Bill C-26 as it relates to citizen's arrest is the proposed new subsection 494(4). This section specifically clarifies that a person who makes an arrest under section 494 is a person who is authorized by law to do so for the purposes of section 25 of the code. Essentially, the purpose of this amendment seems to be to denote that although the use of force is authorized in a citizen's arrest, there remain limits on how much force can be used.

For those who are not fluent in legal jargon, essentially these amendments would permit citizen's arrests without a warrant within a reasonable period of time after a criminal offence is observed. This means that in the case of Mr. Chen, he would have been acting within his rights as a business owner to protect his property by detaining Mr. Bennett. By removing the onerous provision that requires the citizen's arrest to occur while the offence is being committed, we are moving in the right direction to ensure that business and property owners can properly assert their rights in defending their property.

I have heard from many small business owners in my great riding of Sudbury who were shocked at the prosecution of Mr. Chen. They support these changes, which I must again reiterate have been proposed from parties from all sides of the House. It is vital that we provide citizens with the lawful power to detain offenders when the situation warrants, and these amendments to the citizen's arrest sections of the Criminal Code strike an appropriate balance.

In addition to amending section 494(2) of the Criminal Code, this bill and its predecessor, Bill C-60, also propose amendments to the sections in the Criminal Code dealing with self-defence and defence of property. The bill proposes a substantive overhaul of the statutory language pursuant to sections 34 to 42 of the Criminal Code. Five of these sections are from the original Criminal Code of 1892, and the courts have indicated that there are problems with clarity in regard to these sections.

For example, the self-defence provisions in the Criminal Code have been described as confusing and have been much criticized as a result. In the case of R. v. McIntosh, Chief Justice Lamer stated that sections 35 and 34 are

highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.

The judgment of the majority in McIntosh, however, has itself been called “highly unfortunate” for further muddying of the waters around the self-defence provisions.

The majority in R. v. McIntosh held that subsection 34(2) of the code was available as a defence when the accused was the initial aggressor. The argument was that Parliament must have intended for subsection 34(2) to be limited to unprovoked assaults, because it enacted section 35 to deal specifically with situations where the accused was the initial aggressor. This argument failed. The ruling seemed to go against the history of self-defence law, which pointed to a sharp distinction between unprovoked and provoked attacks.

The bill would remove current sections 34 through 37 and replace them with a new self-defence provision that would apply to all offences. The new provision would ensure that a person would not be guilty of an offence if they believed on reasonable grounds that force or a threat of force was to be used against them or another person, that any acts committed were for the purpose of defending or protecting themselves or that other person, and that the act committed was reasonable in the circumstances.

The bill also lists a number of factors that might, among others, be considered when determining whether or not the act committed was reasonable in the circumstances. This list includes, among others, imminence of a threat; the use of a weapon by the aggressor; the size, age and gender of the aggressor; and the history of the relationship between the actors.

Furthermore, the bill specifically states that the defence would not be available when responding to threats from people acting in their official capacity to enforce the law--for example, police officers--unless the accused had reasonable grounds to believe that the person was acting unlawfully.

As they stand, sections 38 through 42 of the Criminal Code refer to the legal rights of people to use force legally in protection of their property against theft or damage. The first two sections refer to the defence of movable property and the latter three sections to real property and dwellings, as the code permits the use of more force to defend real property than movable property.

The Criminal Code also recognizes that it is often difficult to distinguish where defence of property ends and self-defence begins. As a father and husband, I know that if someone were to break into my home, my first concern would be for my daughters and wife, not for my home and belongings. Fortunately, the Criminal Code recognizes this fact, and because of this, it explicitly outlines situations in which self-defence can be evoked, such as when a trespasser refuses to leave a property.

It is important at this point to give a brief outline of what the five sections of the code authorize as they stand. Section 38 provides that a person can take back possessions from a trespasser provided that he or she does not strike the person or cause bodily harm, unless the trespasser continues to attempt to retain or take the items. At this point, the trespasser is deemed to have committed an unprovoked assault, and the provisions regarding self-defence come into play.

Section 39 provides a defence to an individual using force to defend property being taken by someone else with a legal right to it. Subsection 39(1) of the provision refers to someone defending property to which they also have legal right; subsection 39(2) refers to someone defending property to which they have no legal right. It appears that the aim of this section is to encourage people to reclaim property through legal means rather than through force.

Section 40 allows an individual to use as much force as necessary to prevent someone from breaking into his or her legally owned home. Section 41 sets out the amount of force an individual can defensibly use to prevent or remove a trespasser. Like section 38, this provision deems trespassers to be committing an unprovoked assault if they resist attempts to prevent or remove them, and therefore brings into play the provisions applying to self-defence.

The final provision on this issue, section 42, provides information regarding the force that can be used when taking back possession of real property from trespassers and the effect of a trespasser assaulting someone who is attempting to take back legal possession of their real property.

Under the bill being considered by the House today, these five sections would be repealed and replaced with a new single provision for the defence of property. Under this provision, individuals would not be considered guilty of an offence if they believed on reasonable grounds that they were peaceably possessing property or assisting an individual who they believed was in peaceable possession of the property; believed on reasonable grounds that another person was about to enter, was entering, or had entered the property unlawfully, and was taking the property or was about to do so or had done so, and was about to damage or was in the process of damaging the property; were acting to prevent or end such action; and the act committed was reasonable in such circumstances.

These provisions would not apply if a person who did not have legal right to property used force against someone with a legal right to it or, as in the self-defence provisions, if the person committed any acts against people with the authority to enforce the law, unless the person believed that they were acting unlawfully.

Having considered what this bill would do to the Criminal Code regarding self-defence and protection of property, it is now important to consider whether these changes are desirable and constitute good public policy.

Whenever looking at changes to the Criminal Code, a good place to look is to the organizations that represent the organizations that enforce the law. The courts have already indicated that the language in these sections of the Criminal Code require some clarification, so it is important that we work to clear up such problems. However, we must ensure that any change has a positive effect. For that reason, I am looking forward to following this bill at committee stage where I am hopeful that the legal experts will be on hand to shed more light on the ramifications of these changes.

Both the Canadian Association of Chiefs of Police and the Canadian Police Association, which represents 41,000 front line police personnel across Canada, have been generally supportive of the changes brought forward in this bill in terms of self-defence and protection of property. However, they have also stated that they have some reservations and some concerns. Again, I look forward to these organizations speaking to this bill at committee to hear if there is any way that we can address the concerns that they have brought forward.

I am sure that both the police chiefs and the front line officers share my concerns that we do not want to make changes to the Criminal Code that would encourage people to participate in vigilante justice or to put their own safety at risk. While I know this is not the intention of the bill, I also look forward to hearing from people with a background in sociology and in criminology to ensure that this will not be the case and to strengthen the bill in this regard, if it is required.

I am happy that the government has brought forward this bill and I am happy to support it at second reading. The issues of citizen's arrest, self-defence and defence of property are all issues that need to be clarified in the Criminal Code and I am happy that we have this opportunity to do so.

I will be following this bill very closely through the committee stage and I hope that the government will be willing to work with the NDP to ensure that we are able to have the strongest legislation possible ready for debate at third reading.

I will take that acknowledgement from my colleague on the other side of the House as something that we all look forward to and is making Parliament work.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I wish to thank all my colleagues in the House from all political corners for allowing me to speak to Bill C-26, which deals with changes and amendments to the Criminal Code regarding citizen's arrest and the defences of property and persons.

We have a bill that would streamline in many fashions many of the laws concerning the defence of property which are good and necessary. Some things need to be studied in committee to see if some of the provisions may be a little overbearing. Nonetheless, we do have the responsibility, and I think we are on the right track in dealing with this issue so far as we have evidenced in the media in the past year.

Several incidents took place, one in particular in Toronto. Other members in the House have talked about it so I will leave it at that for now.

The rationale of all this needs to be looked at in a broader context when it comes to self-defence. Self-defence, in many cases, has been used but with a very narrow definition. Other jurisdictions around the world have certainly made better use of it. I would look at it in the context of making it far easier for our court systems, our prosecutors, certainly, and our judges and juries.

In some cases the complex and out of date rules we are talking about were highlighted by recent high profile cases. Primarily the concern is that the old Criminal Code provision concerning self-defence provided that “Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force”. Thereby, it is confining self-defence to assault and noting that it could not have been the result of provocation.

The new legislation would remove the assault requirement entirely in speaking of force or threat of force, and also removes provocation. As such the bill may run into some aspects that may be going a little overboard, but nonetheless, it is certainly something we should analyze and discuss at committee. The principal thrust of the bill is one that is just.

People may invoke self-defence, both in common law and under statute itself. It is not as though, without the legislation, there is no right to self-defence in Canada. The legislation would reform and streamline the Criminal Code, which I have mentioned.

In regard to self-defence and defence of property, which is where the emphasis lies on that second part, the concern that should be addressed by committee is whether the Criminal Code would be changed too significantly.

The self-defence provision in section 34 now reads, “Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force”. That confines defence to assault, whereas this legislation makes no reference to assault or provocation, for that matter, and it speaks to the force or the threat of force.

Beyond the general risk that the bill may encourage vigilantism, there are concerns just how far the bill broadens itself with self-defence, which can be invoked and by whom it can be invoked.

I know we discussed this in the former bill, which was Bill C-60 in the last Parliament, and it was brought forth as a result of these high profile cases, one of which took place in Toronto.

The current law in Canada discussing self-defence is in section 34 of the Criminal Code, which defines the extent to which force is justified in repelling an unprovoked assault. Subsection 34(1) is a general defence that can be employed only by non-aggressors who never intend to cause grievous bodily harm or death through their actions.

This section requires that the following four elements be established by a person accused of using force against another person: first, the accused was unlawfully assaulted; second, the accused did not provoke the assault; third, the force used by the accused was not intended to cause death or grievous bodily harm; and fourth, the force used by the accused was no more than was necessary to defend himself or herself.

Back to section 34(1) of the Criminal Code. It states:

--permits the accused to stand his or her ground, even when there is a possibility of escaping the situation. The question for the court is whether the force used was necessary to enable the accused to defend him or herself, not whether such a defence was wise in the circumstances.

Let us move on to subsection 34(2), which is interesting. It applies where the accused causes bodily harm or death, whether intentionally or unintentionally, in responding to an assault. Therefore, the accused is justified in using such force where he or she was under a reasonable apprehension of death or grievous bodily harm from the initial or continuing violence of the assault and believed, on reasonable grounds, that he or she must use such force to preserve himself or herself.

Section 35 of the Criminal Code outlines the application of self-defence in those instances where the person seeking to rely on self-defence initiated or provoked the assault. It applies where the accused first assaulted the other person, but without intent to cause death or serious bodily harm. The law permits a limited defence where the response of the person attacked escalates matters and the accused must respond to defend himself or herself.

Therefore, we see the myriad of circumstances that are being painted by all of this and how, by streamlining the legislation, this would certainly make a lot of sense.

The proposed amendments that we are discussing here to the Criminal Code, section 494.1(2) on citizen's arrest, would authorize a private citizen to make an arrest within a reasonable period of time after he or she finds someone committing a criminal offence that occurred on or in relation to property. This power of arrest would only be authorized when there are reasonable grounds to believe that it is not feasible in the circumstances for the arrest to be made by a police officer. Therefore, we must not take it upon ourselves to replace an existing security service that is in charge of maintaining peace and the law.

The reasonable use of force is also stressed in this particular application because it is very important that we outline this in order to make it easier for the courts to interpret, certainly for prosecutors, judges and juries.

It makes it clear in this legislation, by cross-reference to the Criminal Code, that the use of force is authorized in what we know is a citizen's arrest, but there are limits placed on how much force can be used.

In essence, the laws permit the reasonable use of force, taking into account all the circumstances of this particular case. A person is not entitled to use excessive force in a citizen's arrest. Therefore, we see, in this clear parameter that is set out, how this is to be enforced, how reasonable people, if we want to use that test, which we should, are to enact or protect themselves and their property.

Under section 494.(1)(ii), with respect to the current law itself, anyone may arrest a person whom they find committing an indictable offence of a person who, on reasonable grounds, they believe has committed a criminal offence and is escaping from, and freshly pursued by, persons who have lawful authority to arrest that particular person.

If we are caught in that situation where we are defending ourselves or protecting our property, and we are in a situation where we do not know if we have crossed the line in a particular case because we certainly do not want to, hopefully with legislation like this and the lengthy debate that hopefully will follow, we will be able to flesh out an idea as to just how in certain circumstances like this a reasonable person can behave.

A citizen's arrest may, without careful consideration of the risk factors, have serious unintended consequences for those involved. When deciding whether to make a citizen's arrest, a person should be aware of the current law. In the current law there is safety or the safety of others, reporting the information to the police, which is usually the best course of action of course as we all know, instead of individuals just taking action on their own. Therefore, there is also a great deal of responsibility on individuals to notify the authorities in addition to defending themselves or their property.

One must also ensure that they have correctly identified the suspects and their criminal conduct. Therefore, we must be clear of mind on the offence.

Of course, being rational human beings, sometimes rationality takes over and, in particular cases, acts of desperation take place. Nonetheless, in these circumstances, I believe what we need to provide the courts with the ability to interpret and bring justice to the fore so that this particular case can be looked at in the right way. Again, I remind all members in the House that the function there is to provide that type of clarity for judges, prosecutors, and of course juries.

Moving on to the proposed amendments, there are new Criminal Code provisions being proposed to clarify the laws on self-defence and defence of property, so that again the police, prosecutors and the courts can more easily understand and apply the law. Clarifying the law and streamlining statutory defences may assist prosecutors, and certainly the police, in their discretion not to lay a charge or proceed with prosecution if it is found to be excessive.

Amendments to the self-defence provisions would repeal the current complex self-defence provisions I spoke of earlier. In particular, it ranges over four sections. The sections I speak of are sections 34 to 37. This is part of what this bill would do, which is to provide that clarification, certainly in this particular case. As we saw the high profile cases unfold, we realized that discrepancies took place and it was hard to interpret. Therefore, we have done this in a responsible way. When I say “responsible”, it leaves this House, it goes to committee for further study, and that I look forward to seeing.

Amendments to the defence of property provisions would repeal the confusing defence of property language that is now spread over five sections, those being sections 38 to 42. One new defence of property provision would be created, eliminating the many distinctions regarding acts a person can take in defence of different types of property. The new provision would permit a person in “peaceable possession” of a property to commit a reasonable act. Again, that reasonable person test that I spoke of. Therein lies the key to this. The person has been defined as owning a piece of property, a possession, and therefore the spirit of this would assume that the person would be allowed to act accordingly to protect that peaceable property, and for the purpose of protecting that property from being damaged or trespassed upon.

Under sections 34 to 37 of the Criminal Code, distinct defences are provided for people who use force to protect themselves or another from attack, depending on whether they have provoked the attack and whether they intended to use deadly force. Again, I understand that the impacts of this could be severe in many cases. They are in defence of an irrational act and therefore, when in that position, defending their own property or person, under irrational behaviour. It is not an easy circumstance to be in. However, certainly for the sake of the courts dealing with and prosecuting cases like this and coming to a logical conclusion, we must provide that clarity for prosecutors, judges and juries in many of these particular cases.

The use of deadly force is also something we have talked about, both with Bill C-26 and Bill C-60. We realize that the use of deadly force is talked about quite a bit and there is not a great understanding of it, but it is permitted in very exceptional circumstances; for example, where it is necessary to protect a person from death or bodily harm.

The courts have clearly stated that deadly force is never considered reasonable in defence of property alone. The legislative reforms currently being proposed would not make any change to the law relating to deadly force, so the courts would therefore continue to make any necessary changes on a case by case basis, developing the common law if and where applicable. As I mentioned before, this is the common law aspect and also the statutory law.

There are some issues that have been raised by stakeholders. Many people remember the high profile media reports that came from many cases where self-defence was used, not just for the right of individuals but also for property, as I mentioned in the high profile case that took place in Toronto. One of the issues that came up was that of encouraging vigilantism. People have been sounding the alarm bells over that and it is something that needs to be discussed and filtered when it comes to committee.

In principle, I think we are on the right track here, but certainly this is something that has to be of great concern. Obviously there are legal minds far greater than mine, as I have no formal training in law, so I look forward to hearing some of the witness testimony that will come at committee regarding the particular ways in which this could be abused. Nonetheless, I am sure that potential witnesses would agree that the intent here is to make this a clear, decisive law that allows our courts to function, and to prosecute any particular cases where the defence of one's self or property pertains.

A Canadian press article notes that “Several provinces have complained the new legislation will cost them millions as jail and prison populations inevitably rise”. That is a debate we have had here before. It is an extension of Bill C-10. I have mentioned this before in my deliberations about Bill C-10 and I will not go into it further.

A lot of the provinces have complained that they are now in a position where the incarceration of individuals and the increased rate of incarceration will have an effect on how they handle their budgets and how they spend money on health care and education. That applies to people who are sentenced to less than two years. We have heard from several provinces over the past little while that this could be particularly onerous for them in light of some of the budget deficits that they want to downgrade.

Section 35 of the Criminal Code outlines the application of self-defence in those instances where persons seeking to rely on self-defence initiated or provoked the assault. That is an important part of this. This is the part of the Criminal Code that we need to consider.

Other criteria apply is that the defender did not at any time before the need to protect himself or herself from death or bodily harm endeavour to cause the death or bodily harm. There is an obligation upon the defender to decline further conflict and leave or retreat as far as is feasible before the need to defend from death or bodily harm arises. This could be contentious in many forms.

As I reiterated earlier, I believe there is a case here in principle and scope for us to push this legislation forward, send it to committee and take notice of potential witness testimony, so we are able to change legislation if need be by amendments and make the necessary changes to the Criminal Code regarding the defence of oneself and the defence of property. We can do this for the efficiency of our courts.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, the Conservative government introduced Bill C-26, which covers and provides clarification on citizen's arrest. This bill is very similar, identical even, to Bill C-60, which was introduced by the hon. member for Trinity—Spadina during the last Parliament.

The changes made by Bill C-26 will allow citizen's arrests without a warrant within a reasonable period of time. Right now, under section 494(2) of the Criminal Code, a citizen's arrest must be made while the crime is being committed. Bill C-26 also includes changes to the Criminal Code related to self-defence and the defence of property.

Sections 34 to 42 of the Criminal Code pertain to self-defence and the defence of property. Sections 34 to 37 of the Criminal Code are repealed and replaced with a single self-defence provision that applies to any offence. The current distinctions between provoked and unprovoked attacks, as well as any intention to use deadly force, are eliminated.

Bill C-60 also sets out a non-exhaustive list of factors that the court may consider in determining whether the act committed is reasonable under the circumstances. The bill will repeal sections 38 to 42 of the Criminal Code, which pertain to defence of property, and replace them with a single defence of property provision. As a result, the bill will eliminate the current distinction between the defence of personal and real property.

The bill amends the citizen’s arrest section of the Criminal Code, but only section 494(2). Thus, the powers of citizens to make arrests set out in section 494(1) remain as they are. These powers mean that anyone may arrest without warrant a person whom he or she finds to be committing an indictable offence or believes, on reasonable grounds, has committed a criminal offence and is escaping from and freshly pursued by those with lawful authority to arrest that person.

The bill amends section 494(2), which applies to the owner or person in lawful possession of property or a person authorized by the owner or lawful possessor. At present, such a person may arrest without warrant a person whom he or she finds committing a criminal offence on or in relation to that property. But the amendment goes on to allow such a person to make an arrest within a reasonable time after the offence is committed. Such an arrest can be made if the person making the arrest believes on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

In addition, a new section 494(4) is added to the Criminal Code, clarifying that a person who makes an arrest under section 494 is authorized by law to do so for the purposes of section 25 of the Criminal Code. The purpose of this amendment is to make it clear that use of force is authorized in a citizen’s arrest, but that there are limits on how much force can be used.

The government says that it is bringing forward this bill in order to make necessary changes to the Criminal Code that will clarify the provisions pertaining to self-defence and defence of property. The changes will also clarify the reasonable use of force.

We are very pleased that the Conservative government has decided to clarify the changes to citizen's arrest, especially since we had introduced a similar bill to that end.

Just like the Conservative government, we do not want honest Canadians who are victims of crime to be victimized again by our judicial system.

We support the amendments to the legal provisions on citizen's arrest, particularly because various courts have indicated that there are problems with the interpretation of the law. For example, they have said that the Criminal Code provisions concerning self-defence are too complicated and confusing. The provisions have been subject to much criticism. In R. v. McIntosh, Chief Justice Lamer wrote that sections 34 and 35 “are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.”

The judgment of the majority in R. v. McIntosh has been called “highly unfortunate” for further muddying the waters around self-defence provisions.

However, we believe that a more in-depth study will be required, given the complexity of this issue, as the courts have indicated. We must ensure that the bill clarifies the sections of the Criminal Code to help the justice system do its job. We will also have to look at the impact and consequences of this bill to ensure that these clarifications are acceptable to the Canadian public. We want to avoid having the clarifications to the Criminal Code encourage self-proclaimed vigilantes. In addition, we do not want people to put their lives in danger. We know that that is not the objective of this bill. However, a number of concerns about this have been raised by some of our constituents. That is why it will be important to allow parliamentarians to properly discuss this bill in committee.

We are obviously asking the Conservative government not to limit debate in committee, as it did with Bill C-10, for example. Bill C-26 will have serious repercussions on Canadians who must defend themselves or their property. That is why it is so important to properly debate this bill in committee.

I would like to remind the House of the facts that gave rise to the recent legislation on citizen's arrest. On May 23, 2009, David Chen, the owner of a grocery store in Toronto, arrested Anthony Bennett, who had stolen something from his store. After being caught in the act on security cameras, Mr. Bennett went back to the store about an hour later. At that time, the owner and two employees managed to tie Mr. Bennett up and held him in a delivery truck. When the police arrived, they charged Mr. Chen with forcible confinement, kidnapping and carrying an edged weapon—a box cutter, a tool that many merchants have in their possession. The crown attorneys later dropped the charges of kidnapping and carrying an edged weapon, but they maintained the charges of forcible confinement and assault.

According to the Criminal Code as it is currently written, a property owner can make a citizen's arrest only if the alleged wrongdoer is caught in the act. Mr. Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. In August 2009, Anthony Bennett pleaded guilty to theft and was sentenced to 30 days in jail.

At present, the citizen’s arrest authority is very limited and is authorized only when an individual is caught in act of committing an offence on or in relation to one's property. Accordingly, this bill authorizes an owner, a person in lawful possession of property—or a person authorized by them—to arrest a person within a reasonable amount of time after having found that person committing a criminal offence on or in relation to their property.

The bill authorizes a citizen’s arrest only when it is not feasible in the circumstances for a police officer to respond, which is often the case in the event of shoplifting, for example. The time it takes for the police to respond is often too long and they arrive much too late. Furthermore, this bill stipulates that the use of force is authorized in a citizen’s arrest. However, a person is not entitled to use excessive force.

In addition, the person making the arrest must take the risk factors into account and ensure that their safety or the safety of others is not threatened. They must also ensure that they have correctly identified the suspect and their criminal conduct. Furthermore, reporting the incident to the police remains the best solution.

I would like to point out that thousands of Canadians work as security guards in buildings or businesses. Many of those guards have told me about the problems they have properly protecting the property of the merchants. They have to catch the criminal in the act and that is not easy. Often, they discover the crime after the fact, after reviewing the security camera footage. However, that is often done after the fact and the security guards cannot take any action against the wrongdoer. The worst part is that some wrongdoers return a number of times to commit theft and the guards hired by the businesses cannot do anything about it even if they saw the individual in question commit a crime before.

They have to again catch the wrongdoer in the act and they cannot arrest him for the previous offence. What is more, the complexity of a citizen's arrest makes security jobs risky. Security guards have to be 100% certain of what they are doing because if they are not, there could be legal consequences for their company and their own job could be on the line. It is very important that the provisions on citizen's arrest be clear so that these security guards are in the best position possible to protect businesses and the property of the merchants.

The new provisions on self-defence will also help these guards enforce the law, because the current provisions are too restrictive. Many security guards have told me that when they intercept an individual who committed a criminal offence, the individual generally becomes aggressive and does not want to be arrested by the security guard on duty. For a number of reasons, that individual will simply be asked to leave the premises, because the guards do not want to risk their safety or the safety of others. They would not want to risk being tried for assault. As a result, the individual who commits the crime gets away with it.

In summary, we support this bill at second reading so that it can be sent to committee and some of its provisions, which are quite complex, can be examined in greater detail. That is why the opinions of experts and legislative drafters will be key in the examination of some provisions of this bill. I would like to emphasize the importance of not limiting the debates, as the Conservative government has a tendency to do. I am asking the Conservative government to let parliamentarians do their job properly.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I am pleased to stand in the House today and speak to Bill C-26, an act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

This is an excellent example, an all too uncommon example I would submit, of a government making sound legislation because consensus was sought and achieved with respect to the substance of the bill.

All parties agree with the essence of this legislation. All parties have commented publicly and foreshadowed to the government over the last two years that this legislation would be a positive amendment to our Criminal Code. As I will touch on a bit later in my remarks, that does not mean that certain provisions of the bill do not require careful scrutiny. That, I am sure, will happen at committee.

The bill would basically alter a person's ability to make a citizen's arrest. It clarifies the times when a person is entitled to defend either his or her person or property. These are both positive and overdue steps.

This legislation is an example of good law being made. The government can ensure widespread support when it seeks consensus. That also ensures smooth and timely passage of legislation, which all Canadians want to see as opposed to seeing contentious legislation put forward that eventually gets slowed down, obstructed and criticized heavily.

I want to contrast this legislation briefly for a moment with what I think is the typical and common approach of the government, and that is to generally plow ahead with highly partisan, ideological and often controversial pieces of legislation that do not reflect the majority of support in Canada.

Government members have obviously memorized their speaking lines well. It is a rare day in the House when we do not hear four or five government members stand up and say that they received a strong mandate from the Canadian people for their platform. We know that is political spin and is not correct because we all understand math.

We know that in the last federal election 61% of Canadians voted and the government secured the support of 39% of that 61%. We also know that 61% of Canadians did not give a mandate to the Conservative government. It is useful for the government to keep that in mind. In order for the government to have a positive and successful legislative agenda, it would do well to remember the fact that seeking consensus, as the government has done on the bill, is a much sounder and more democratic way to proceed as a government.

I do want to congratulate the government on this piece of legislation. Our late leader, Jack Layton, valued fairness above all other attributes in political life. He often stated that it is the job of an opposition to propose as well as to oppose, and when we do oppose to do so constructively. He would have been the first person in the House to advocate that we should give credit where credit is due.

In this case, I am pleased to give credit to the government for introducing this legislation. That is not hard to do in this case because the substance of this legislation was really an idea that was proposed by the New Democrats, in particular, by my hon. colleague from Trinity—Spadina. I will talk about that in a moment.

I want to talk a bit about the bill and where it came from. Bill C-26 would specifically amend section 494 of the Criminal Code, dealing with citizen's arrest, to provide greater flexibility. These changes would permit a citizen's arrest without a warrant within a reasonable period of the commission of the offence. Currently, section 494 requires any citizen's arrest to occur while the offence is being committed.

As I go through the history of the genesis of the bill, members will see why the current definition in the Criminal Code has proven to be problematic.

Bill C-26 would do more. It would also change sections of the Criminal Code that relate to self-defence and defence of property currently encoded in sections 35 to 42 of the Criminal Code of Canada. According to the government, these changes would bring much-needed reforms to simplify and clarify complex Criminal Code provisions on self-defence and defence of property. They would also clarify where reasonable use of force is permitted.

I am advised that the current language has been in the Criminal Code for a very long time. I am led to believe it may even be original language or language that certainly is well over 50 years old, or even closer to 100 years old. It is always positive for us as legislators to review language in our statutes to ensure the language is up to date and clear to Canadians.

As we know, it is one of the precepts of Canadian law that citizens are presumed to know the law. In order for citizens to be able to comply with the criminal law in this country, obviously they must understand it.

It is a positive step that we are actually looking at these sections of the Criminal Code. I am not 100% sure that the language in the legislation is exactly what we want it to be. However, I commend the government for putting the focus on these sections. I do think the bill goes a long way, even in its present form, in clarifying those complex provisions.

Half of the bill proposes measures that New Democrats have called for previously through my colleague from Trinity—Spadina's private member's bill which she introduced a year and a half ago. Therefore, it follows that we will support the bill at least at second reading. The part of the bill that we proposed is the part that amends section 494, which deals with citizen's arrest, to permit arrest without a warrant within a reasonable period of the commission of the offence.

I want to make it clear that we must tread a careful line, because expanding the role of citizens to become involved in arrests or to use force to defend themselves or their property is a carefully balanced one. We want to ensure that we do not encourage an unhealthy or dangerous form of vigilantism. The balance between ensuring our citizens have the right to act rationally, logically and reasonably in protecting themselves and their property and doing their part to ensure that criminals are apprehended can be done so in a fair, safe and legal manner.

I will talk briefly about the background to the bill, which is what brought the legislation to the attention of the House.

On May 23, 2009, Mr. David Chen, who is the owner of the Lucky Moose Food Mart in Toronto, apprehended a man, Mr. Anthony Bennett, who had stolen previously from his store. After Mr. Bennett was initially caught on security camera footage stealing from the store, he left the store, but returned to the Lucky Moose one hour later. At that time, Mr. Chen, the proprietor, and two employees apprehended Mr. Bennett. They tied him up, locked him in the back of a delivery van, and called the police. When the police arrived, they assessed the situation and applied the Criminal Code as it currently reads. They ended up, perversely, charging Mr. Chen with kidnapping, carrying a dangerous weapon--a box cutter, which most grocery store workers would normally have on their person--assault, and forceable confinement.

We were left with the perverse situation of a person who was defending his property in his store, who had 100% concrete evidence that the person had stolen from him not only hours earlier but I believe on several occasions in the past, did what I think any reasonable person would do in that circumstance. He apprehended that person and called the police.

Crown prosecutors later dropped the kidnapping and weapon charges, but proceeded with the charges of forceable confinement and assault.

Again, according to the Criminal Code as it is currently written, a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act. Ultimately, Mr. Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. We often talk about court cases that we do not like, or we criticize judges when we feel they have not made the right decision. This is a case where all Canadians would applaud the wisdom of the judge who, notwithstanding the Criminal Code's provisions, saw that justice was done.

Anthony Bennett for his part pleaded guilty in August 2009 to stealing from the store and he was sentenced to 30 days in jail.

I want to pause for a moment and say to those people who feel that the bill encourages vigilantism, I would respectfully suggest that is not the case. It does not expand any powers of a citizen to make an arrest over what he or she has now. It simply alters the timeframe in which that arrest can be made. Right now if Mr. Chen had caught Mr. Bennett in the act of stealing from his store, he would have been perfectly entitled to do what he did, but the fact that it happened an hour later, under the current law renders that same act a criminal act. I think all Canadians would join with all members of the House in asserting that this is not a reasonable or logical approach to the law.

In February 2011, the government introduced Bill C-60, which was based on my hon. colleague from Trinity—Spadina's private member's bill. I should pause and say that immediately after Mr. Chen was charged, it was my colleague from Trinity--Spadina who met with Mr. Chen, helped translate his position to the media and to the public. She then went to work as she often does so diligently and drafted and introduced a private member's bill that would have done exactly what Bill C-26 proposes to do with respect to lengthening the amount of time that a citizen's arrest is possible.

Again, I will commend the government one more time in saying that the government, wisely and to its credit, adopted that bill. The Conservatives saw a good idea when one was introduced. That also shows that Parliament can work very well, contrary to what some Canadians might think about this place. It is sometimes the case that we do co-operate and make a law of general improvement to our country.

Unfortunately, my colleague's private member's bill and Bill C-60 died on the order paper when Parliament dissolved in March 2011. Bill C-26 was introduced in the 41st Parliament in a virtually identical form to Bill C-60 from the previous Parliament.

I want to turn to the other sections of the Criminal Code that the bill deals with. In addition to amending section 494 of the Criminal Code, Bill C-26, like its predecessor Bill C-60, also proposes amendments to the sections in the Criminal Code dealing with self-defence of property and person. Bill C-26 proposes a substantive overhaul of the statutory language in sections 34 to 42 of the Criminal Code. Five of these sections are from the original Criminal Code of 1892. As I said earlier, modernizing and clarifying this language is long overdue.

The courts for their part have also indicated that there are problems with clarity with respect to these sections. For example, the current self-defence provisions of the Criminal Code have been described as unwieldy and confusing and have been much criticized as a result. In the Supreme Court of Canada case of Regina v. McIntosh, Chief Justice Lamer, as he then was, stated that sections 34 and 35 are “highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects”.

The judgment of the majority in the McIntosh case, however, has itself been called highly unfortunate for further muddying the waters around the self-defence provisions. The majority in McIntosh held that section 34(2) of the code was available as a defence when the accused was the initial aggressor. The argument was that Parliament must have intended for section 34(2) to be limited to unprovoked assaults because it enacted section 35 to deal specifically with situations where the accused was the initial aggressor.

That argument failed. The ruling seemed to go against the history of self-defence law, which pointed to a sharp distinction between unprovoked and provoked attacks.

I have read the bill from beginning to end. This bill does a commendable job of clarifying that confusion which the highest court in our land pointed out.

As I said before, crime and complying with the law has been a dominant theme of the government. We all want Canadians to comply with the law. It is incumbent on us as parliamentarians to review that law and make sure it is clear and understandable. It is hard to expect people to comply with law that they do not understand. I must say that in reading this bill, it does a great job of clarifying when a person can use self-defence when the person is feeling a threat to his or her physical security and also when there is a threat to the person's property.

There are important considerations to this bill that I certainly expect the committee will study when it reviews the bill.

A citizen's arrest is a serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain public peace, nor properly trained to apprehend suspected criminals. In most cases, an arrest consists of either actually seizing or touching a person's body in an effort to detain the person, or where the person submits to the arrest. It can be dangerous both to the person making the arrest and the person being arrested, and in fact anybody that is around those two people.

A citizen's arrest made without careful consideration of the risk factors may have serious unintended consequences for those involved. When deciding whether to make a citizen's arrest, a person should be aware of the current law and consider the following: his or her safety and the safety of others; reporting information to police, which is usually and I would say overwhelmingly the best course of action instead of the person taking action on his or her own; and ensuring that the person has correctly identified the suspect and the criminal conduct.

I would hasten to add that the bill does not authorize a person making an arrest to undertake whatever actions the person believes are possible under law. What it does is put careful constraints around when a person may make a citizen's arrest and when a person may actually employ the defence of self-defence, whether it is against the person or his or her property.

For instance, the bill has a number of provisions that import the concept of reasonableness. This is a concept that is well known and often used in Canadian law in many different respects, both civil and criminal. It ensures that before people can avail themselves of these provisions of the Criminal Code, they must be acting reasonably; they must have a reasonable basis to act before they do; and in the course of carrying out their self-defence, they are not entitled to break the law themselves. They are not entitled to assault someone. They are not entitled to use unreasonable force. They are entitled to take reasonable, minimally invasive steps that are necessary to accomplish three basic goals: make the arrest, if that is the only reasonable prospect in the circumstances; defend their person; or defend their property.

This is something the committee, when it goes over the bill, should keep firmly in mind. We must make sure in clarifying, improving and modernizing the law that that balance is carefully met. Some people have criticized the concept of the bill because they are worried that this is going to open the door to some form of unreasonable vigilantism. They are right to have that concern. That is what we must make sure is not done in this bill.

I conclude by pointing out that what is more concerning is the defence of property as opposed to defence of person. I believe those are two slightly different circumstances and what is reasonable in terms of people defending the integrity of their physical persons may be a different circumstance than what may be reasonable in defending property. Although property is important to defend, I believe there is a meaningful distinction between those two things.

I congratulate the government on bringing the bill forward. The New Democrats support this at second reading and look forward to working co-operatively in making this bill law for all Canadians.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, I am pleased to lead off the debate on Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Bill C-26 was first introduced in the last Parliament as Bill C-60. The bill is a responsible expansion of the citizen's power of arrest and also includes a long overdue simplification and clarification of the law on self-defence and defence of property.

Prior to the introduction of former Bill C-60, the issue of citizen's arrest had been subject to two private member's bills and numerous discussions in parliaments, newspaper and, no doubt, in coffee shops across the country. So the straightforward reform proposed for the law of citizen's arrest in the bill is well understood and well supported by all parties. I will speak to it only briefly today.

The proposed reforms to the defences of property and persons have different histories and goals. Some members were surprised by the inclusion of these reforms in Bill C-60 when it was introduced. I would like to start by explaining why these reforms were presented together.

While defence of property and the power to make a citizen's arrest are separate legal concepts, in the real world, these concepts can sometimes overlap. For example, imagine a security guard who discovers an intruder in a building who is heading to the door with a laptop in hand. The security guard can apprehend the thief and then call police so that the thief can be charged. That is an example of a citizen's arrest. That is the typical situation in which citizens make the arrest themselves and then call the authorities.

In this emergency situation, the law authorizes the security guard to make the arrest, in the place of the police, but the security guard could also use a minimal amount of force against the thief. For example, the guard could grab the thief's arm while trying to grab the laptop. Because the intent is different, this action could be considered defence of property—the laptop, in this case. If the thief resisted or responded with force, it would be a matter of self-defence if the guard had to defend himself.

While there are three distinct legal mechanisms, they are all directly relevant to the broader question of how citizens can lawfully respond when faced with urgent and unlawful threats to their property, to themselves and to others.

Our government recognizes that all of these laws, any one of which may be pertinent to a given case, must be clear, flexible and provide the right balance between self-help and the resort to the police. That is why all these measures are joined together in Bill C-26.

I will now to turn to a brief description of the proposed citizen's arrest reforms and to devote the rest of my time to the reform of the defences.

On the question of a citizen's arrest, no one can dispute the fact that arrests are primarily the responsibility of the police. This will remain their responsibility and there is no change in that regard. However, in recognition of the fact that the police are not always present when a crime is committed, the Criminal Code has long authorized citizens to arrest other citizens in narrowly defined situations, including where an offence is committed on or in relation to property.

Section 494(2) of the Criminal Code currently allows for an arrest only where a person is found committing an offence. That said, there have been occasions recently where a citizen effected an arrest a short while after the crime was committed because that was when the opportunity arose. These cases have raised questions about whether the scope of the existing arrest power is appropriate.

Our government believes that it is reasonable to extend the period of time allowed for making a citizen's arrest by allowing arrest within a reasonable time after the offence is committed.

To discourage vigilantism and to ensure that citizens only use a slightly expanded power of arrest in cases of true urgency, Bill C-26 also includes a requirement that the arresting person reasonably believes that it is not feasible in the circumstances for a peace officer to make the arrest. These are reasonable and responsible reforms and all members are urged to support them.

Although our citizen's arrest reforms are rather simple, the changes that they will mean for defence of the person and defence of property need more detailed explanations.

The provisions on defence of the person and defence of property, as they are currently written, are complex and ambiguous. Existing laws on self-defence, in particular, have been the subject of decades of criticism by the judiciary, including the Supreme Court of Canada, as well as lawyers, academics, lawyers' associations and law reform organizations. Much of the criticism has to do with the fact that the existing law is vague and hard to enforce. It is fair to say that reform in this area is long overdue.

These kinds of defence were included in the very first Criminal Code. The wording of this part of the legislation has remained very similar since the original Criminal Code was written in 1892. Defence of property was covered in nine separate provisions containing a number of subcategories and other very complex provisions that have become obsolete and unnecessary.

Professor Don Stuart of Queen's University, whose textbooks on criminal law are widely used by first year law students in this country, has written:

The defences of person and property in Canadian law are bedeviled by excessively complex and sometimes obtuse Code provisions.

It is important to be clear, however, that the criticisms of the law do not pertain to its substance but rather to how it is drafted. Self-defence and defence of property are and have always been robust in Canada. There has been a lot written in newspapers about the right to self-defence and protection of one's property, some of which suggests that these rights have been diminished or are inadequately protected. This is untrue. The law is robust, despite the fact that the rules as written in the Criminal Code suffer from serious defects, and despite the way the media have portrayed these issues in recent times.

Parliament has a duty to ensure that laws are clear and accessible to Canadians, criminal justice participants and even the media. That is exactly what we are proposing to do in Bill C-26, even though the actual rights of Canadians are robust and upheld in Canadian courts on a daily basis. When the laws which set out these rules are confusing, we fail in our responsibility to adequately inform Canadians of their rights. Obviously, unclear laws can also complicate or frustrate the charging provisions of the police who themselves may have difficulty in reading the Criminal Code and understanding what is and is not permitted. Bill C-26 therefore proposes to replace the existing Criminal Code provisions in this area with clear, simple provisions that would maintain the same level of protection as the existing laws but also meet the needs of Canadians today.

How are we proposing to do this? I will start with the defence of the person because it arises more frequently than does the defence of property, because calls for reform have focused on this defence, and because of the fundamental importance of the right of self-preservation in Canadian criminal law.

If we were to ask ordinary Canadians if they think self-defence is acceptable, they would say that it is acceptable when their physical integrity or that of another person is threatened. I think they would also say that the amount of force used should be reasonable and should be a direct response to the threat.

The reforms proposed in Bill C-26 are centred on those basic elements. Because of the general nature of these ideas, one law based on these fundamental principles should be able to regulate all situations that arise involving defence of the person. We simply do not need different regulations for every set of circumstances. All we need is a single principle that can be applied to all situations.

Under the new defence, a person would be protected from criminal responsibility if there are three conditions which are met: one, the person reasonably believes that he or she or another person is being threatened with force; two, the person acts for the purpose of defending himself or herself or another person from that force; and three, the person's actions are reasonable in the circumstances. Let me clarify a few salient points.

First, unlike the current law which creates different defences for different circumstances, the new law would cover both self-defence and defence of another. The same criteria govern defensive action in both situations.

Second, with regard to the defender's perception of threat to himself or herself or another, members should know that a person is entitled to be mistaken about his or her perception, as long as his or her mistake is reasonable. For instance, if a drunken neighbour walks into the wrong house at 3 a.m., the homeowner may well be reasonable in perceiving a threat to himself and his family, even though there was in actual fact no threat at all, just a tired, drunken neighbour in the wrong house.

The law must still allow people to use defensive force where they make a mistake that any reasonable person could make. Unreasonable mistakes, however, are not permitted. If a person seeks to be excused for the commission of what would otherwise be a criminal offence, the law expects the person to behave reasonably, including in the person's assessment of threats to himself or herself, or others.

Third, the defender's purpose is paramount. If a person acts for the purpose of defending himself or herself or another, the defence is available. Defensive force cannot be available as a disguise for what is actually revenge. Conduct for any purpose other than protection falls outside the bounds of defensive action and the person stands to be convicted for it.

Fourth, if the other conditions are met, then the defender's actions must be reasonable in the circumstances. What is considered reasonable in the circumstances depends entirely on the circumstances of each specific case, as assessed by the reasonable person test. The question is: would any reasonable person in the defender's situation have done what the defender did? There is not just one reasonable response for every situation. The important thing to know is that the defender behaved in a way that the judge considers reasonable in those particular circumstances.

The list of factors that may be relevant in determining whether the act of defence was reasonable is far too long to be included in the Criminal Code. Nonetheless, to facilitate the deliberation process, without limiting the nature and scope of the factors that could be taken into consideration, the proposed reform provides a list of well-recognized features of many self-defence situations presented before our courts. This list will guide judges and juries in their application of the new legislation, and confirms that current case law on self-defence continues to be applicable.

Factors that are on the list and likely to be relevant include the nature of the threat and the response to it. For instance, was the attacker threatening to break a finger or to kill? Another factor is whether weapons were present. Another factor is the relative physical abilities of the parties, such as their age, size and gender. Naturally, a petite, elderly woman and a fit, young man may have different options available to respond to the same threat. Another factor is whether there were any pre-existing relationships between the parties, including any history of violence and abuse.

This last factor is particularly important in cases where a battered spouse must defend against an abusive partner. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury of citizens to understand how a battered spouse might stay in an abusive relationship or how the person might come to understand the patterns of violence of the person's partner. These cases do not arise often but when they do, sensitivity to these factors is crucial.

The reasonableness of the response must take into account the nature of the relationship and the history between the parties in arriving at a just result.

The proposed law would establish a simple and meaningful framework for decision-making. The relevant facts must be determined first, and then the rule can be applied. Police and prosecutors, in assessing whether a charge should be laid, should gather all the facts and then assess them against the criteria set out in the defence to determine whether there is a reasonable prospect of conviction and whether charges are in the public interest. If charges are laid and the defence is advanced, the trier of fact will be asked to determine, based on his or her assessment of the facts presented at trial and his or her own experience and common sense, whether the actions taken were reasonable in response to the threat.

I want to bring one small change to the attention of the hon. members. The use of force is permitted under current legislation only in the defence of a person. Essentially, violent behaviour against the attacker is permitted in the defence. Bill C-26 broadens the defence in order to recognize the fact that in emergency situations, a person might use other forms of behaviour in self-defence such as breaking and entering into a building to seek refuge or even stealing a car in order to flee.

In parallel to the changes to the self-defence provisions, Bill C-26 would replace all the existing provisions for defence of property with one single criterion. It encompasses these essential components and maintains the same level of protection as under the current legislation.

There are three primary conditions to the proposed defence. First, the defender must reasonably perceive that someone else is about to or has just done one of the following things: enter property without being legally entitled to, or take, damage or destroy property. Second, the defender must act for the purpose of preventing or stopping the interference with property. Third, the actions taken must be reasonable in the circumstances.

As with the case of defence of the person, a person can make a reasonable mistake about a threat or interference with property and still have access to the defence. The defender's purpose must be defensive. Defence of the property is not a disguise for revenge. The overarching question for the trier of facts will be whether the actions taken by the defender were reasonable in the circumstances.

It is also imperative to appreciate the defence of property is different from and more complicated than the defence of the person in one important respect. Every person has the right to decide who can touch him or her and how he or she wishes to be touched, and it is very clear when the trigger of non-consensual threat to bodily integrity arises.

Property is very different from the human body in this respect. There can be overlapping interests in the same piece of property which can lead to disputes as to the degree and nature of those interests. Therefore, the defence of property must be guided by the realities of property law in addition to its other basic conditions.

The result as far as the criminal law is concerned is that the defence of property has an additional pre-condition; namely, that the person who claims the defence must have been in peaceable possession of the property at the time of the interference.

The concept of peaceable possession of property is present in the current law and is included in these reforms. This term has been interpreted by our courts to mean that the person must be in actual physical possession of, or in control over, the property at the time of the threat or interference, and that the possession itself must be unlikely to lead to a breach of the peace and is not contested by others. This is the way in which possession must be peaceable; it must not be contested or risk violence or public disorder.

For instance, protesters occupying a government building and criminals who are safeguarding stolen goods are not in peaceable possession of property, and therefore they cannot benefit from the defence if someone else tries to take or enter property.

Law-abiding citizens going about their business, on the other hand, will almost certainly be in peaceable possession of their property. If they reasonably believe that someone is threatening their possession, for instance, a thief is trying to pick their pocket or an intruder is trying to break into their house in the middle of the night, and if they act for the purpose of protecting the property from that threat, they will be excused from criminal responsibility for any actions they take that are reasonable in the circumstances.

We can see why threats to ownership rights do not justify responsive actions that might otherwise be criminal. Ownership and many other legal interests in property are matters of property law, and must be decided by the civil courts if the parties cannot agree among themselves.

Only actual real-time threats to physical possession of property allow a person to respond in a way that would otherwise be criminal. The overarching function of the criminal law is to promote public order and public peace. The law therefore cannot sanction the use of force to protect property in any circumstances other than where a present lawful situation is threatened in a manner such that seeking civil recourse at some later date creates the risk of permanent deprivation of property.

The law allows people to preserve the status quo, not to solve ongoing disputes with violence.

In closing, I invite all hon. members to support this bill. These changes are long awaited and are a reasoned and measured response to very complex legal situations.

Business of the House

[John Baird, Conservative, Ottawa West—Nepean, ON]

Mr. Speaker, I move: That Bill C-60, An Act to amend the Criminal Code, shall be deemed to have been read a second time and referred to a committee of the whole, deemed considered in committee of the whole, deemed reported without amendment, deemed concurred in at report stage and deemed read a third time and passed.

The House resumed from March 21 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.

Citizen's Arrest and Self-defence Act

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

Mr. Speaker, I appreciate and respect the erudite position put forward by my colleague, who is steeped in law and has great courtroom experience. However, I want to take him to the other issue that has arisen as a result of Bill C-60.

He has followed the debate. He knows that the government did not act, as it promised, back in 2009. Then we found out in this debate that the Minister of Justice had actually struck an agreement with his provincial counterparts, including the one in the province where the David Chen case arose. The minister knew then that the case would not be decided negatively and waited while Mr. Chen ran up legal bills in the tens of thousands of dollars to protect his person and property. He knew that and wanted to ensure that the courts reinforced the decision that all the attorneys general had already struck.

I would like the member from Charlottetown to give his perspective on how expenses should be dealt with in all fairness when a private citizen is subject to the courts so that the government can accomplish its objective of testing something that it should already have done on its own and on which it already knew what the result would be. What is his view on that?

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, I appreciate the opportunity to stand in the House this afternoon to say a few words in this debate.

It is an interesting debate that I have been following very closely. It really blends in the issues that have been around a long time. First is the issue of self-defence. In other words, a resident of Canada has the basic right to protect his or her person, family or property and use whatever reasonable force is necessary, depending on the circumstances.

It follows in the continuum to the next issue of the right of someone to make a citizen's arrest. Generally, the law has been that a citizen's arrest is made during the commission of an offence. If we move along the continuum, we get into the whole issue of vigilantism, where someone or a group of people takes the law into its own hands. Of course, that principle is not supported in a free and democratic society.

This legislation arose from the case of Mr. Chen in Toronto. Certainly, no Canadian I have ever spoken to or heard from has expressed anything but support for Mr. Chen and the circumstances he found himself in. He obviously is a small business person who works hard, plays by the rules, pays his taxes and was the victim of a crime.

Unfortunately, he was not able to effect a citizen's arrest but did identify the victim. Lo and behold, a day or two after the commission of the original offence, the offender reappeared at Mr. Chen's place of business and the latter then effected a citizen's arrest. Unfortunately, at one point it looked as though he would be subject to sanctions from the authorities. Certainly every Canadian did not agree with that position, which was unfortunate, and the response has been overwhelming.

Since then, there have been a number of private members' bills and Bill C-60. This legislation would change the statute, but not substantially. Rather, it would broaden the statute and add the concept of a citizen's arrest being made not only on the commission of the offence but also on a reasonable time thereafter. Of course, that begs the question, which other members have spoken to, of what is a reasonable time.

At first blush, I believe most members of Parliament support this legislation, and I support it and its referral to committee. It is important to get this legislation to committee so that committee members can hear from some police officers, criminologists and experts who deal with this issue on a day-to-day basis.

It will be a very interesting debate in the committee and perhaps the committee will decide at the end of the day after hearing witnesses that the law does not require any changes, but it would appear now that there seems to be a fairly broad level of support for this particular initiative. I support it very cautiously, and I certainly will be deferring to others who are more knowledgeable in this area than I am and will be following the debate in committee very closely.

We get into this whole issue of what is reasonable. Do not forget that if anyone is ever charged with the offence of unlawful arrest, the Crown would have to be in a position to prove that offence beyond a reasonable doubt, which is an extremely high threshold. We could envisage all sorts of circumstances where a person or child was offended, assaulted or whatever, and then two weeks, three months or six months later, he or she decides to make an arrest without the powers, authority and respect that peace officers have.

That would lead to the next question of whether the person making the so-called citizen's arrest is entitled to use whatever reasonable force is necessary in the circumstances. Is he or she allowed to enter a private dwelling? Is he or she allowed to go to the person's workplace? There are some issues that will be given a full airing when the matter goes before the committee.

Again, it is extremely interesting. It is an issue that members should proceed cautiously on and whether the law requires tweaking or amendment, I believe, should be considered after the committee has had a good, long, hard look at this particular legislation.

As I said before, I will be voting for this legislation when it comes up for a vote at second reading and I will be following the issue extremely carefully before committee.

That basically concludes my remarks. I have summarized where I stand on the particular issue. It is an interesting issue that requires a little more discussion, review and analysis when it does go before committee.

[Serge Cardin, Bloc, Sherbrooke, QC]

Mr. Speaker, I am obviously pleased to be speaking today. This may be the last time we see each other before the upcoming election.

Bill C-60, as it is called by the government, has to do with self-defence and citizen's arrest. These are fundamental aspects of our everyday lives, but they can also involve diverse and extreme situations. How do we interpret legislation like this? How do we determine how far people can go in defending themselves and making arrests?

To give you a little background, the legislative summary of Bill C-60 states the following:

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.

The bill significantly broadens the notion of self-defence and slightly broadens that of citizen's arrest. As I said earlier, the question revolves around the scope of these two notions, how this can be interpreted or how far people can go. Should we be setting the stage for abuse that is not prescribed and certainly not desired: abuse of the ability to defend oneself or abuse of the ability to make a citizen's arrest? Regardless, every person in our society should expect to have the full use of their property without having someone try to steal from them. That is obvious. Every person in our society should also expect to be able to move freely without worrying about being attacked and put in danger.

If someone tries to rob you, that is one thing. If someone tries to physically attack you, that is another thing. In these two cases, there are also elements that dictate how far we can go. That is why the Bloc would like to examine Bill C-60 in committee. It has to do with self-defence, which is a very sensitive and important subject.

For the Bloc Québécois, people have a basic right to defend themselves and their property within reasonable limits. This is already the case under the current legislation, but it is too restrictive. We are therefore in favour of a statutory amendment to allow honest citizens to defend themselves and their property or defend other people. However, we do not want to see an increase in the amount of violence in our societies. Quebec must not become the far west of old. Everybody would lose.

Some provisions are disturbing and could result sooner or later in situations that no one wants to see. We are therefore eager to study this bill in committee.

I am not a lawyer. I am not an expert in crime and certainly not a criminologist, but when this bill refers to defence of property or self-defence, certain things come to mind. For example, it was said that people could not use excessive force, or more force than necessary, to defend themselves or their property.

I have also heard it said that people could be prosecuted and sentenced for failing to assist someone in danger. When we speak about defending others, the following questions arise. What is excessive force when I am protecting my property? What is the extent of my responsibility to assist others in danger? There is my responsibility, but there is also my ability to do something. The context is important and must be specified, if we want to avoid excesses in either direction.

On February 17, the government introduced a bill broadening the concepts of self-defence and citizen’s arrest, especially to protect one’s property. This bill was in reaction to an incident that occurred in Toronto, where a shopkeeper was arrested and charged for having captured and detained a man who had stolen from him. The public was outraged by this arrest of an honest citizen, who had requested police help several times without always receiving it. In Toronto, and in Quebec as well, many people have the feeling—it is just a feeling, but it is an important factor nonetheless—that criminals are mollycoddled and the law does more to protect them than to protect honest citizens.

It is not surprising that the hon. members for Trinity—Spadina and Eglinton—Lawrence introduced bills to broaden the concept of citizen's arrest. However, these two bills only slightly broadened the notion of citizen's arrest whereas Bill C-60 substantially broadens the notion of self-defence.

As for citizen's arrest, Bill C-60 would amend the law to allow a property owner to make an arrest. Basically, a property owner would be given the right to arrest, within a reasonable time, a criminal who committed an offence, if the property owner has reasonable grounds to believe that it would not be possible for a peace officer to make an arrest under the circumstances.

Bill C-60 does not make many changes with regard to citizen's arrest, even though that is the pretext for the bill, but it makes sweeping changes with regard to self-defence. It takes away the requirement of necessity—the requirement of not killing an attacker unless absolutely necessary—and adds the possibility to defend oneself in reaction to a threat without defining what type of threat is likely to lead to legal violence. That is why I referred to determining the amount of force that can be used for self-defence and to the ability to defend oneself. Either way, we need to evaluate the ability to defend oneself as well as the force that can be used in these kinds of circumstances.

One potential concern about citizen's arrests is that the amendment could be misunderstood and things could get out of hand. In fact, Halifax's deputy chief of police has suggested that the federal government urge caution in the use of citizen's arrest. This is not only to ensure that a well-intentioned person does not commit a crime, but also to remind people that an arrest involves risks and that an ordinary person is not as likely as a police officer to be able to get control of someone who has committed a crime.

I would like to use the minute I have left to repeat what I said earlier, which is that everyone has the right to possess property without the fear of having it stolen from them by other people, and everyone should be able to live freely and without fear in our society. For this to happen, we need a responsible government that can ensure prevention, information and rehabilitation. This comes by integrating people socially and economically into society.

It was surprising that people did not resort to looting in Japan, which has suffered such terrible catastrophes, although that is often what happens here in North American society.

Thus, this happens through education, prevention and rehabilitation.

[Jean-Claude D'Amours, Liberal, Madawaska—Restigouche, NB]

Mr. Speaker, today I have the pleasure of speaking to Bill C-60, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

I would like to read a summary of this bill.

This bill seeks to amend the Criminal Code to enable a person who owns or has lawful possession of property to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property.

In general, advancing the cause central to Bill C-60 is a legitimate endeavour.

In many cases, the Conservative government puts up smoke screens and takes on the responsibility for finding a solution, whereas in many more cases they create the problem.

This was a real-life situation. However, it was members of the House who attempted to amend the law in order to ensure that citizens, such as Mr. Chen, would not have to go before the courts after legitimately protecting their property.

There was not enough security for his property. I am convinced that Mr. Chen legitimately wanted to protect his property and what he had earned through hard work. It was a huge economic loss for him. In some cases, depending on the situation, it could also be a sentimental loss.

I will get back to the smokescreen and the fact that the Conservatives like to take credit for solutions or let everyone think that they came up with them. However, once again, they have found ways to create additional problems rather than providing solutions.

I would like to acknowledge the extraordinary work done by the hon. member for Eglinton—Lawrence, who raised this point. I believe it is important to fully understand that member's efforts.

The hon. member introduced a private member's bill on June 16, 2010. He did so because he thought it was important to protect the people in his riding and throughout the country. He introduced the private member's bill to correct existing errors or, at the very least, improve the measures that were already in place.

Since early November 2010, the government and the Prime Minister have been repeatedly saying that this is one of their major priorities. This was not a major priority since a bill had already been introduced; a private member's bill was introduced by a Liberal member to move this issue forward. The member for Eglinton—Lawrence and his Liberal Party colleagues identified this priority long before the Conservatives did. The Prime Minister was likely asleep at the switch and someone woke him up to tell him that this was becoming a hot and important topic and that maybe he should pay special attention to it because he might gain some political advantage from it. As for my colleague from Eglinton—Lawrence, he introduced the bill in order to stand up for a cause and ensure that the people in his riding and elsewhere got the respect they deserved and were able to protect their property.

Despite the elaborate speeches given by the Prime Minister, ministers and Conservative members in November 2010, we still had to wait until February 2011 before they presented any amendments to the House, not only with regard to the specific point we are discussing today—the case of Mr. Chen for example—but also with regard to other situations.

Eight months went by between June 2010 and February 17, 2011, when the Conservative government made its big presentation.

This is surprising given the Conservatives' claim that they are champions of law and order—the reality is clearly different. When something happens in our country and someone tries to make things better for our constituents, the government takes eight months to react and present to the House, not a speech, but a concrete document on what it is offering to Canadian parliamentarians, those who make decisions for all Canadians.

Eight months earlier, my Liberal colleague for Eglinton—Lawrence had already found a way to improve the situation. The self-appointed champions of law and order said that it was not important, that the public was not really concerned with the issue and that they were not going to worry much about it. When things started to happen, when Mr. Chen's case came before the court in October 2010, the Conservatives saw that many people were paying attention to this issue and felt that it was important. It is normal for citizens to want to protect their property, whether we are talking about businesses or individuals, economic goods or property with sentimental value, or anything else.

My Liberal colleague had already identified the problem. This is where we see the Conservative government speaking double-talk. One day, it says it is here to protect the public, but when the time comes to do it, how much time does it take before it starts to do something? When it presented its bill in February, there was a panic because it could not prove to the public that it was the party that had identified the problem. Now this has to be dealt with overnight, when it could simply have given the credit to our colleague from Eglinton—Lawrence. He could then have had his private member’s bill passed easily and quickly. It was a very simple bill that contained what we expected to see. No one could have thought that they were going to get backdoored by the Conservative government’s bills.

The matter could have been dealt with very quickly in September, even before the court heard Mr. Chen's case in October. But no. The Conservatives always find a way to complicate things and give the impression that they are the great champions and saviours of the world. During that time, members working for the welfare of their constituents had already taken a position. That is the big difference between Liberal Party members and the Conservative government. The government wants to blow smoke and take the credit, while we are working for the welfare of our constituents.

I hope the government is going to learn a lesson from all this, and next time a member proposes an idea to meet the public’s needs, they will listen, regardless of political party. There is only one goal: to present or amend legislation so the public will have a better quality of life and a better structure to protect it.

We have seen smokescreens that did not produce much. A few years ago, in 2009, the Minister of Immigration said that the government would have to amend some of the regulations. It is fine for them to spend their time making speeches, but as long as there is nothing concrete, nothing is being done for the public. We have seen 2009, 2010 and part of 2011 go by, and the Conservatives still have not done anything. I would like to congratulate my colleague from Eglinton—Lawrence and thank him. His actions are the reason we have been able to understand the problem and find solutions.

I hope that the Conservative government will now open its eyes and ears, and come up with a solution.