Bill C-60 (Historical)

Citizen's Arrest and Self-defence Act

An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons)

This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons.

Citizen's Arrest and Self-defence Act

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

Mr. Speaker, it is my pleasure to rise in the House today to speak to the citizen's arrest and self-defence bill. As we know, a good portion of the bill, and the part that I want to talk about today, was originally put forward as part of a private member's bill by the hon. member for Trinity—Spadina.

I support her idea to enhance the ability of small businesses to protect their property through the mechanism of citizen's arrest. As a small business owner myself, I know all too well the enormous challenges that small businesses face across Canada.

I support passing the amendments to section 494 of the Criminal Code in the bill dealing with citizen's arrest to permit arrest without warrant and within “a reasonable period” rather than the present wording, which requires an arrest contemporaneous with the event. This change was originally introduced by the hon. member for Trinity—Spadina in her private member's bill as a result of an incident at a convenience store in Toronto, the Lucky Moose. The name of that store is well known, although it sounds like it should be a store in Thunder Bay—Superior North. The owner apprehended an individual, who had stolen an item from the store, some time after the theft had taken place. The amendment to section 494 has been supported, in principle, by chiefs of police across Canada, prosecutors and defence counsels.

Bill C-60 proposes compressing sections 34 to 42 of the Criminal Code, which deal with the defence of a person and property, into two new parts. The stated rationale is to clarify the laws on self-defence and the defence of property so Canadians, including the police, prosecutors and the courts, can more easily understand and apply the law.

The legislation would expand the legal authority for private citizens or persons with small businesses to make arrests within a reasonable period of time after they found a person committing a criminal offence either on or in relation to their property, ensuring the proper balance between the powers of the citizens and the powers of the police. It would also bring much needed reforms to simplify the complex Criminal Code provisions on self-defence and defence of property and clarify where reasonable use of force would be permitted in relation to the above.

The amendments to Criminal Code subsection 494(2) on citizen's arrest would authorize a business person or other citizen to make an arrest within a reasonable period of time after he or she found someone committing a criminal offence that occurred on or in relation to his or her property. This power of arrest would only be authorized when there were reasonable grounds to believe it would not be feasible in the circumstances for the arrest to be made by a police officer.

It talks about reasonable use of force. The legislation would make it clear by cross-reference in the Criminal Code that the use of force would authorized in a citizen's arrest, but there would be limits placed on how much force could be used. In essence, the laws permit the reasonable use of force taking into account all the circumstances of a particular case. To be clear, a person will not be entitled to use excessive force in any citizen's arrest. That will continue.

There are some important considerations for us to take into account. A citizen's arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain public peace or, generally speaking, properly trained to apprehend suspended criminals. In most cases, an arrest might consist of either actually seizing or touching a person's body with a view to detaining him or her or using words where the person submits to the arrest. A citizen's arrest made without careful consideration of the risk factors may have serious, unintended physical or legal consequences for those involved.

When deciding if a citizen's arrest is appropriate, a small business people, or other citizen, should consider the following things: whether a peace officer is available to intervene at that time instead and their personal safety, or that of others, that might be compromised by attempting such an arrest. They should report information about the crime to the police instead of taking action on their own whenever possible. They should have a reasonable belief regarding the suspect's criminal conduct and ability to identify them. Last, they can and should turn over the suspect to the police without delay once that arrest is made.

Let us look at the current laws in this regard.

Under section 494(1), people may arrest a person whom they find committing an indictable offence, or a person, who on reasonable grounds, they believe has committed a criminal offence and is escaping from, and is freshly pursued by, persons who have lawful authority to arrest that person.

Section 494(2) of the Criminal Code, which is the provision proposed to be expanded by the bill, currently provides that anyone who is either the owner or in lawful possession of or has been authorized by the owner or the person in lawful possession of that property may arrest a person if he or she “find committing” a criminal offence on or in relation to that property.

“Finds committing” means situations where the accused is caught in the act, committing that offence. This concept extends to take into account a situation where the accused has been pursued immediately and continuously after he or she has been found committing the offence. Also, the existing law requires that when a citizen's arrest takes place, the individual must be delivered to a peace officer without delay.

Let us talk about self-defence and the defence of property as it relates to the proposed amendments. The new Criminal Code provisions are being proposed to clarify the laws on self-defence and defence of property so Canadians, including the police, the prosecutors and the courts, can more easily understand and apply the law. Clarifying that law and streamlining statutory defences may assist prosecutors and police in exercising their discretion not to lay a charge or proceed with a prosecution.

Amendments to the self-defence provisions would repeal the current confusing law and create one new self-defence provision. It would permit people who reasonably believe they or others to be at risk of the threat of force or acts of force or damage to their property to commit a reasonable act to protect themselves, their property or others.

As I said before, I am a small business owner and I know all too well the huge challenges of many kinds that small businesses across Canada face. Therefore, I would like to raise some of the reasons that are collateral and that bear on the need for small business people to feel more empowered by the Government of Canada and to make their businesses more viable. They are struggling. Small businesses across Canada today, the small economic engines across Canada, are struggling through our recession because of a lot of red tape and a growing tax burden as we shift taxes off of large corporations and onto small corporations.

Small business people are straddled with usurious credit card merchant fees. I and my party have talked about this issue, again and again, the need to get banks and credit card companies off the backs, out of the pockets, the bank accounts and the wallets of small business people across Canada.

Small business people pay fees to the credit card companies that are above and beyond what it costs them to provide average Canadians with the service that is required. Small business people are left with no choice but to pay those usurious fees because they cannot run our businesses without those credit cards. So far the government has not gone to bat to protect small businesses from usurious credit card companies and banks.

Another challenge that small businesses face is a government which has been constantly shifting tax burdens, tax responsibilities off large corporations and onto the backs, not only of average Canadians, but onto the backs of small- and medium-size business firms.

In the late 1970s, the marginal corporate tax rate on large corporations in the U.S. and Canada was the same, at 36%. Today it is still 36% in the United States, but through the Mulroney years, the Chrétien years, the Martin years and now under the current government, those taxes have been reduced. They are soon to be 15% and the government, through the HST, is shifting them onto average Canadians and the burden of collecting and doing the paperwork for that will fall on small businesses.

It has also been shifted through things like the EI premiums which are about to increase again, increasing the cost to Canadian workers and Canadian small businesses.

Despite the fact that small businesses are usually locally based and invest and hire in their local communities, governments, and the current government especially, have favoured large corporations with across-the-board tax cuts, whether they make sense or not, whether they result in investment in Canada or not, whether they keep jobs in Canada or not.

When the NDP government came in 11 years ago in Manitoba, it made a promise to take the tax burden off small businesses because it understood that it is small businesses which are creating jobs. In fact, 80% to 90% of all the jobs created in Canada for many decades have been created, not by big businesses, but by small businesses. The Manitoba government kept its promises and reduced the provincial corporate tax rate on small businesses from 11% down to zero. The government and small businesses in Manitoba have demonstrated through growth, prosperity and job creation, that this has been the economic engine which has made Manitoba the most prosperous province in Canada today with balanced budgets, high employment and weathering the recession almost without even noticing it.

Small businesses in our communities take many forms, from mom and pop convenience stores on the corner all the way up to significant engineering and consulting firms and software developers. In fact, 76% of small- and medium-size businesses earn revenue between $30,000, all the way up to close to $500,000 a year. Now, $30,000 may seem small to us, but it is important to a family that uses it to grow its business and support its children. Small businesses are major economic engines, pint-sized engines which jointly drive the economy of Canada and are growing, not shrinking, and staying, not leaving the country or leaving town, and adding jobs, not cutting jobs.

It is about time that our small businesses got more help and more respect from a government that is happy to hand out billions of dollars in senseless, unnecessary tax cuts to oil giants, big banks and big insurance companies.

Small businesses represent almost 98% of the total number of business establishments in Canada. That number comes from the Canadian Federation of Independent Businesses. Small- and medium-size businesses employ 55% of all the working individuals in Canada.

Service jobs are important. Government jobs provide important services across the nation. Union jobs in large companies are important to our economy. It is true that many of the dollars generated by large corporations do trickle down to small businesses in the community. But, to reiterate that number, over half of the direct jobs in Canada are jobs that relate to small- and medium-size businesses.

Small- and medium-size businesses are taking the lead on research and development in Canada, which is something we desperately need if Canada is to address our perennial shortfall in productivity and competitiveness.

Large corporations in Canada spend a piddling 0.8% of their revenues on research and development. Small- and medium-size firms spend an astounding 5.8%, almost 6%, of their revenues on research and development.

I am an evolutionary biologist and the best evolutionary strategy through a billion years was a main gene pool with outlier populations. It is in those outlier populations where progress, where evolution occurs, feeding that genetic material into the main gene pool.

Similarly, small businesses are the places where the new ideas come from. Steven Jobs and Bill Gates at one time were small businessmen. Look where some of these small businesses can go. We need to support them and help them.

Small businesses are exporters. They play a big role in keeping Canada a trading nation. Over 85% of all Canadian exporters are small- and medium-size businesses.

These facts and statistics show how vital small- and medium-size firms are to Canada's economy and to the future of every Canadian and every member of Parliament. We work for the Canadian taxpayers and increasingly, the Canadian taxpayers are average Canadians and small- and medium-size businesses.

Small- and medium-size businesses create jobs right here at home. They inject dynamism into the Canadian market, which we desperately need and they invest their revenues back into our communities. They do not export those investment dollars back to the United States. They do not pay them out in ridiculously over-the-top, obscene CEO salaries which then get stuffed into tax shelters in the Caribbean and in Panama.

Canada needs to do more to support our small- and medium-size firms. We should be encouraging the entrepreneurial spirit which in the past has driven so many Canadians to take a chance on a great idea and see where it goes.

Whether in Thunder Bay, Geraldton, Longlac, Marathon, Schreiber, Terrace Bay, Red Rock, and so on, in my riding of Thunder Bay—Superior North, we need to help and grow our small businesses, particularly given the role that the government has played through NAFTA, softwood lumber and non-help in the recession to our forest industry in northwestern Ontario. To a large extent, it is small businesses which have hung on bravely and are saving us.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, a number of us have been waiting for Bill C-60 to come forward, at least we were hoping it would, although, as my remarks may show, it was never clear that the self-defence provisions of the Criminal Code, which the bill would purport to fix, were really broken. However, it does provide for a very interesting debate, at least for those of us who are interested in some of the micro details of the Criminal Code, especially as they relate to the common law.

As colleagues have already pointed out, on one level the bill was drafted to address a situation that arose in a Toronto Criminal Code prosecution. It is one that I got involved with on the street, as a number of publicly elected people did at the time because of the nature of the facts. I can say that the proposed new wording for subsection 494(2) is a reasonable attempt to address the fact sequence in that case. I am not sure that an amendment actually is needed, but I respect the intention of that portion of the bill.

The rest of the bill quite surprisingly purports to codify the common law provisions of self-defence and put them in the Criminal Code. I was not aware that these provisions were broken. I always subscribe to the adage that if something is not broken, we should not try to fix it. I am getting the impression that is what is going on with the other aspects of Bill C-60.

Let us go back to the first set of issues involving subsection 494(2) and the unfortunate events surrounding the shoplifting and attempted shoplifting at the Lucky Moose supermarket. That is a real business in the heart of downtown Toronto and is owned by a very fine gentleman, a proprietor and small businessman who is very hard working, as are his employees.

He was confronted by a shoplifter. The particular shoplifter is known to almost everyone who works there. He is a repeat offender and has a record longer than my arm. He is so notorious as a thief that his picture has been placed throughout the neighbourhood on lamp posts. His modus operandi involves going into an area with his bicycle, parking it, stealing something, getting on the bike and whisking away. As I say, he has a very lengthy record. He is before the courts now and probably will be for the foreseeable future, so there is no point in my saying much more than that.

The store involved is one that puts merchandise out front. Sometimes it is vegetables, fruit or flowers. Canadians in large cities will be very familiar with that format of a grocery store or supermarket.

What happened on that particular day was that the thief showed up once, stole merchandise, left in the way I described on the bike, and showed up again later. At that point he was recognized and the shop owner and his employees took steps to apprehend the guy, knowing that he had already stolen once and was preparing to do it again. The guy was apprehended. The outcome was shocking and really quite sad to me and many other people in that the shop owner was charged.

A few weeks ago the court case ended with the charges being dropped. In the meantime, the unfortunate proprietor had to undertake a defence. He had many people in the community supporting him. He had a good legal team. The sad thing was that this law-abiding citizen suddenly, in the course of defending his business, became an accused criminal.

This bothered me a lot at the time. Because it was before the courts there was not a whole lot any of us could do. We just hoped for fair treatment in the courts. That eventually happened, but at what cost to this law-abiding businessman in our community?

In my view, the whole story from start to finish should have been about that businessman, Mr. Chen. It should have been about him and his business and its place in our community, but for reasons I really cannot explain and none of us could, it was not about that. The police changed the story. The police turned him into an alleged criminal and it became a story about the powers of arrest by police versus the citizen. That was just wrong.

I do not know what part of the system went wrong, but I am not alone in saying that whatever went on in the days that followed that event, it did not happen properly. In my view, it was not even in accordance with the law as I read it. I think the police and the prosecutors made a mistake in forcing Mr. Chen to defend himself. I can only say that the police and the prosecutors were doing more to defend their own powers of arrest than they were to protect Mr. Chen and his business.

I say that sadly because in Toronto we have a very good police force. Its motto is “To Serve and Protect”, but one can only ask how much did it serve and protect Mr. Chen in this case. The police turned him into the alleged criminal and it took him a year to clear his name.

Was there a need to change the law? I do not think there was, but I can see the argument that there was. It is quite a normal reaction to say that if the existing state of the law is interpreted by the police as this, we have to change the law. I understand where that is coming from. I am just not sure that the police had the law correctly.

I did a bit of research, and needless to say I had a bit of help doing it. In looking at the law, of course it is related to the common law in that the powers of arrest that citizens have are buried in the common law. They exist. They are real. They are not a fiction. The Criminal Code does not say citizens have the power of arrest. The common law says that citizens have the power of arrest. In fact, citizens had an obligation to effect an arrest in the old days and if they did not make the arrest, they could be fined. Even though we do not fine people now for not making citizens' arrests, the powers are still there and they are referred to, at least indirectly, in our Criminal Code the way it has been worded up to now, and members should keep in mind our Criminal Code is over 100 years old.

In common law, the power of a private person to arrest is limited to treason or a felony that has actually been committed or attempted, or where a breach of the peace has been actually committed or is apprehended, and larceny, theft. Stealing is a felony in common law.

There was no power to arrest for a simple misdemeanour where there was no breach of the peace and where it was not necessary to arrest the offender to prevent the renewal of the act. Members should please recall, as I go through this, that the thief in the real life situation showed up again, apparently to steal again, with his bike, the same modus operandi, the same routine. He showed up again and that is, I repeat, a renewal.

For people who are interested in history, in 1892, the old system of misdemeanour and felony was wiped out and replaced in our Criminal Code and in the British system. However, abolishing the distinction between felonies and misdemeanours at that time had no effect on the principles of arrest without warrant in the common law, at least for breach of the peace.

Section 8 of the current Criminal Code permits all of the common law defences to be used. Citizens should take some comfort in knowing that all of the common law defences that we have had for hundreds of years, going back to the Magna Carta, still exist in the Criminal Code unless they have been explicitly removed, and case law across the country has confirmed that, similar to other jurisdictions.

I will read the current state of this as best I could research it. In the case of a breach of the peace, there is a power to arrest, without warrant, on the part of a citizen where:

(1) a breach of the peace is committed in the presence of the person making the arrest; or

(2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach; or

(3) where a breach has been committed and it is reasonably believed that a renewal of it is threatened.

I just referred to my research here, that is the case of R. v. Howell, which was a British Queen's Bench case.

However, the court dare held that there must be an act done or threatened to be done that either actually harms a person or, in his presence, his property.

In the Lucky Moose supermarket case, there was property and a threatened new breach of the peace, which was the taking, the theft, the larceny in relation to the property of Mr. Chen. That particular line of reasoning does not appear to have shone through in this particular court case but I believe it should have. I believe the prosecutor should have known that. I believe the police should have been told that. Mr. Chen should not have been charged.

In any event, he was charged but, fortunately, the judge who presided, in the end, made the right decision or decisions and we in Toronto have all gone on with our lives.

However, I found two things regrettable. One was the lack of appreciation of the prosecutors and the police of these of common law provisions. If that is the state of the art and our police and prosecutors do not know these common law defences and common law provisions that citizens have been basing their lives on here in our jurisdiction and under our Constitution for over a century, then maybe it is time to rewrite the code. We will write it down for them so they can read something and be satisfied with it.

However, I do regret that all of this transpired when I believe Mr. Chen had a very clear legal case that should have been made. I could not help but think that the police were trying to make the point that arresting people was their job, not the citizen's job. Yes, it is their job to do law enforcement, and they do a very good job of it across the country, but they should never place the citizen in a secondary or second-class role. Citizens, for whom the police work, should always be number one. This particular shop owner, Mr. Chen, up to that point in time, had not done anything wrong. He was just defending his own business. I do not know how the police did not see that. I hope the police understand my words as not being critical of their ongoing work on behalf of all of our communities, but their work in connection with prosecutors ought to be well based on the law.

This legislation seems to be a fix for the section of the Criminal Code that pertains to the facts of this case. Even though I do not feel that it was necessary, I accept that we can amend the code for that.

Accompanying this statutory amendment is a whole rewrite and codification of the law of self-defence under the Criminal Code. As I said earlier, if it is not broken, why are we trying to fix it?

I read one of the sections and it bothered me a bit. I will read the relevant words:

A person is not guilty of an offence if

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of [some who is]...;

(b) they believe on reasonable grounds that another person...is about to enter...the property...;

(c) the act...is...for the purpose of...preventing the other person from entering the property...;

(d) the act committed is reasonable in the circumstances.

There are many private properties In a big city. I cannot imagine all of the complications that will arise when we codify this and try to figure out what is reasonable and what is not, how much force someone is allowed to use before somebody steps off the public sidewalk, where the property line is, is it an individual or a corporation that owns the property, is it a condominium corporation, is it a landlord or is it rented property.

The government has not explained why it feels the need to rework and codify these common law provisions in the Criminal Code. The danger in doing it are that it will codify a part of the common law but not all of it or it will go too far, or it will not think of every fact situation in having codified the part of the common law that seems to be working reasonably well generally for us. By codifying it, the government is preordaining and structuring a result involving a sequence of facts that nobody ever thought of. We would then have to amend the code again because nobody ever thought of that particular set of circumstances.

I will be looking for answers from the government. It really has not stated why it felt it was necessary to write these new sections, to codify the common law self-defence provisions in the Criminal Code.

The minister said that the list of factors codifies well-recognized features of many self-defence situations and will help guide judges and juries in applying the new law. Is it new law or is it just old law codified? The government should tell us what needs to be fixed before we walk down this road of codifying something that has worked pretty well for us under our Constitution the right of self-defence. Everybody has a pretty good gut feeling for what it is and it has worked for us for over 100 years, maybe even 200 or 300 years.

I will be looking for those answers in the debate and I will be scrutinizing this bill very carefully at committee.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am pleased to speak to Bill C-60, which came to Parliament rather oddly. The Prime Minister went to Toronto to make an announcement about a man who had been arrested. This government is known for its piecemeal legislation. In other words, if something happens in Toronto, Winnipeg or Vancouver, the government suddenly jumps on it and introduces a bill to amend the Criminal Code.

The problem is that they go about it all wrong. That is the first problem. They amend sections of the Criminal Code. If it is not parole, then it is the parole act, at which point they amend sections on probation, release, etc. They jump from pillar to post and Bill C-60 is no different. We are going to explain the problem to those watching us. It happens. It concerns section 494 of the Criminal Code, which states:

494. (2) Any one who is

(a) the owner or a person in lawful possession of property, or

(b) a person authorized by the owner or by a person in lawful possession of property,

may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

This where the problem begins.

Allow me to explain. Let us just say you own a home or a convenience store, as in the case that led to the proposed amendment now before us. The convenience store owner was robbed. The owner saw the robber some time later and, when he recognized the robber, arrested him. The problem is he does not have the right to do that. It was the poor store owner, Mr. Chen, from Toronto, who was arrested, brought to court, charged with illegal arrest and sentenced. It makes no sense; we know that. However, the legislation says, “may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property”, in other words, the property he legitimately owns or the property regarding which he is authorized by the owner.

Therefore, you can arrest someone who comes to steal from your convenience store. If you are the clerk at a convenience store and a thief tries to take your money from the cash register, you can arrest him because the law says that you can arrest someone who is “committing a criminal offence on or in relation to that property”. It is not a problem for one person to arrest another who is committing an offence: the former will never be charged. The problem arises, as in the case of the poor man from Toronto, when you arrest someone for a crime committed earlier. The police were taking so long to arrive that he thought it would be quicker for him to arrest the thief. Unfortunately for Mr. Chen, the thief was acquitted because it was an unlawful arrest, and the poor man found himself being charged with unlawful arrest.

Up to this point, it is a good idea to amend section 494 because people are unhappy, with good cause, as they feel that they cannot even arrest someone who has comes to rob them at home.

But a subtle point is being introduced in Bill C-60 and the proposed new subsection 494(2):

The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and...

This is where the problem arises.

(a) they make the arrest at that time;

It is clear that if someone is robbing a convenience store, they can be arrested. That is not a problem. However, this is what they want us to pass into law:

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

That is going a bit far. This means that the owner of a convenience store, to use the same example, can arrest someone who steals money from the register. This happens often. I had many clients who went into a convenience store to steal. Convenience stores have a strange habit of always putting cases of beer on sale near the door, where anyone can see that a big case of 24 costs $24.92 instead of the regular price. Someone opens the door while another person steals the case of beer. You could say that the convenience store owners are asking for trouble.

If you see someone in the process of stealing, you can arrest them, no problem. However, the bill adds the following: “...they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds....” Those two points are important. Not only do they have to make the arrest within a reasonable time, but they have to believe that the police or a peace officer would not be able to get there. That is asking a lot of someone.

The Bloc Québécois is in favour of sending this bill to be studied in committee. We think that section 494 of the Criminal Code should be amended. This poor man arrested someone, knowing that this individual had come to rob him. That happens often. To come back to my example, there is a sale: 24 beers for $12.98. That will surely attract thieves. One of the thieves opens the door of the convenience store and the other grabs the case of beer. The owner of the store did not see him steal it, but after two minutes he realizes that he is missing a case of beer. He opens the door, looks outside and sees someone leaving with a case of beer. Under the current section 494, he could not arrest the individual because he did not catch him in the act. That is what happened in Toronto, but the individual decided that he would still arrest the thief and then ended up in trouble.

We believe that a solution can be found so that this section allows an individual to arrest someone. Clearly, if the owner does not immediately arrest someone who is stealing a case of beer, and if the police are not around the corner, it is over. Those are the two instances where something can be done.

However, we have issues with the bill. If it were only about amending section 494, all of the parties would have passed Bill C-60 to rectify that particular issue quickly. It is a Conservative thing. They are using Bill C-60 to introduce a series of amendments to sections 34 through 42 of the Criminal Code, which have to do with self-defence. And they are way out in left field on this.

We cannot support them in that. There are a number of amendments proposed for sections 34 through 42. It is worth reading some of them. Anyone who has practised criminal law, for the defence or the Crown, anyone who has argued a case will know what this means.

Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Subsection 34(1) is very easy to understand. If you are attacked, you have the right to defend yourself. But if someone punches you and you use a baseball bat or pool cue to defend yourself, in a bar for example, and you cause grievous bodily harm or even death, that is clearly not a case of self-defence. Someone who is attacked on the side of the road has the right to defend himself. Everyone has the right to defend himself against a violent attack, as long as he does not intend to cause death or grievous bodily harm.

They are trying to force us to accept certain things. The bill would amend section 34 with a new subsection 34(1), which reads:

A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

And there is more. Listen to this:

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

They dare to add another amendment:

(2) In determining whether the act committed is reasonable in the circumstances, the court may consider, among other factors,

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age and gender of the parties to the incident;

I could go on. What they would have us swallow makes no sense. It is clear we will never, ever accept that.

They want to put every ruling from the Supreme Court, the Court of Appeal for Ontario, the Quebec Court of Appeal and the Court of Appeal for British Columbia that ever defined self-defence into the Criminal Code.

With all due respect to the Conservatives, I must say that the concept of self-defence has evolved over time. The definition of self-defence is no longer as open as we thought. We have taken into account the force necessary to repel the attack if, in so doing, the person did not intend to cause death or serious bodily harm. If that is not clear, then it is up to the court to decide. It is not up to us to define the concept of self-defence for the court.

This would also be added:

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(g) the nature and proportionality of the person’s response to the use or threat of force;

It does not make sense to try to define self-defence in the Criminal Code. We cannot accept that. The courts have given rulings and when people were dissatisfied, they filed an appeal. If they were still dissatisfied, the case went before the Supreme Court, which established, once and for all, the definition of self-defence and how self-defence can be invoked by defendants.

We cannot accept all of this. There are examples of legitimate self-defence. Here is one such example. One of my clients goes into a convenience store—this has happened a few times—except he does not know that this is the fifth time the store has been robbed. Nor does my client know that the store owner has a 12-gauge. For the benefit of my Conservative friends, a 12-gauge is a weapon, a shotgun. So he has a 12-gauge shotgun under the counter. The owner tells himself that this is the last time someone is going to rob his store. My client enters the store and, yes, he goes about assaulting the store owner to steal from the cash register. I am not saying that my client is a charming man or that he should win a Governor General's award. That is not what I am saying. I am saying that my client goes into a convenience store and robs it. He has no weapon. He leans over to reach into the cash register to take the money. What does the store owner do? He pulls out the 12-gauge shotgun and shoots him. He does not shoot him in the head. He does not shoot him in the heart. He shoots him in the legs to make sure this guy remembers him. He does not want to kill the robber. That is what he told the court.

With all due respect, I do not think that this qualifies as self-defence. The court agreed. I defended the accused. The owner came and said all this before the court. Clearly the judge said that his behaviour did not constitute self-defence. What is self-defence? I repeat: self-defence is “repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself”. When someone shoots another person in the leg with a 12-gauge shotgun, the courts assume that the person did so with the intent to cause grievous bodily harm. In this example, the man was convicted.

Bill C-60 is well-intentioned in aiming to solve the problem of defence of property. However, a distinction must be made between the defence of property and self-defence. Self-defence applies when an individual is the victim of a personal attack. Motorist A is driving down the highway—and this has happened on more than one occasion—and is cut off by another motorist, motorist B. Motorist A does not like this. He pursues the other vehicle and cuts the driver off. Motorist B parks his vehicle and hits motorist A with a baseball bat. This is not self-defence.

What was well-intentioned risks going nowhere because clearly we are not going to agree to amend sections 34 to 42 on self-defence. There is too much in there. The courts have ruled on the definition of self-defence, on the defence of self-defence. We have to let the courts do their job.

However, and I will end on this point, the idea of amending section 494 of the Criminal Code is well-intentioned and we can work on amending this section so that it does what society is asking for.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, crime prevention is an extremely important part of the equation. We talk about prevention, punishment, rehabilitation and reintegration as the pieces. Prevention is always a dollar best spent. It is always better.

With regard to Bill C-60, though, I am concerned that this may flare up in a feeling that people can take the law into their own hands and mete out a little bit of justice themselves, which raises the whole concern about vigilantism, which we must be very careful about. Yes, rights need to be balanced but we cannot be seen to be encouraging people to give it a try while we cannot protect them. The courts may still decide, on a case by case basis, that an individual could not do what he or she did.

People need to know that the bill is not black and white. It will not give an answer to individual cases, and certainly not in the heat of a moment when something occurs.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, members in this place want to be successful when delivering legislation, in whole or in part, that helps address the problem raised by the Chen case. We need to be responsible in this fashion.

The member had a suggestion and I heard a couple of other suggestions. In most cases, though, it sounds like the full bill, as presented to us, Bill C-60, will not be acceptable to the majority of parliamentarians.

It does raise, however, the number of bills we have had over all these years, which the member mentioned. This is the political or the partisan line. If the Conservatives have lots of bills, we could say that they were tough on crime or at least that they intend to be tough on crime. However, if the bills keep getting shut down or thrown out because we have an election or prorogation and they have to be reinstated or not, this is part of the game that is being played.

This was a straightforward incident. By consultation, the Department of Justice, with appropriate consultation with provincial authorities, could have come up very quickly with what the principle deterrents are to having an effective Criminal Code with regard to citizen's arrest. It could have dealt with it.

It looks like another ministerial staffer has come up with a laundry list of a whole bunch of other things, none of which have been vetted with the provinces yet, so we will have to enforce this and Canadians will have to understand it.

The minister has let the House down and so has Bill C-60.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, if I have the opportunity to ask another question, then I will gladly do so. In response to what the hon. member just said, I would say that there were nine bills before the Standing Committee on Justice and Human Rights that died on the order paper when Parliament was prorogued. In the end, three of these nine bills were reintroduced for consideration by the House. Moreover, one of the bills we considered here has to do with online pornography and online predators. I cannot recall the exact numbers because there are so many, but I think that it was Bill C-20 that was recently passed by the House and, in our opinion, should be passed by the Senate.

That being said, Bill C-60 deals with two issues, one of which is very problematic: the use of self-defence to protect one's property. This has always been a problematic issue. The hon. member was speaking about the proposed amendments to sections 34 to 42 of the Criminal Code, which pertain to self-defence. These sections are often subject to interpretation and the courts have rendered many different decisions in this regard. The protection of property, which is what interests me, is addressed in section 494 of the Criminal Code. Under section 494, we may arrest without warrant a person who is destroying our property or that of others. I will come back to this later.

Can the protection of property be distinguished from self-defence? If so, we could pass Bill C-60 to amend just one section of the Criminal Code, section 494. I would like to hear the hon. member's thoughts on this. Perhaps he could speak to us about his party's position, which unfortunately I have not yet heard.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I listened carefully to my colleague. I will have the opportunity to come back to this topic later, when I speak to Bill C-60.

My colleague is quite right. Incidentally, the Standing Committee on Justice and Human Rights is in session right now, and I will return to that meeting following my speech here in the House. There are 16 bills awaiting study by the Standing Committee on Justice and Human Rights and, among them, we are currently examining Bill C-4, An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts—also known as the Youth Criminal Justice Act. Our examination of Bill C-4 is nowhere near complete.

That being said, my colleague is probably right to say that perhaps we will not be examining Bill C-60 anytime soon. I found that aspect of the member's position very interesting. The bill contains two series of clauses. One part has to do with the whole notion of self-defence. I will come back to that later. It has to do with section 34 and subsequent sections of the Criminal Code. The second part, regarding the defence of property, has to do with section 494.

Would his Liberal Party colleagues be willing to split the bill? We could drop the whole self-defence part, in other words, the amendments to section 34 and subsequent sections that are far more problematic than the request under section 494 of the Criminal Code. Would they agree that the bill should be split in two in order to study the changes to section 494 sooner, even if it means delaying the passage of the other amendments regarding self-defence, that is, regarding section 34 and subsequent sections?

The House resumed consideration of the motion that Bill C-60, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I am pleased to add some commentary on Bill C-60.

Most Canadians will recall the incident where a shopkeeper observed someone stealing from his market in Toronto and then took off. Then the person came back and did it again. The shopkeeper saw him, ran him down and held him.

It is fairly straightforward in the eyes of the public. It is interesting to note that there are some very sensitive questions of law. Most Canadians would say that they have the right to protect their property or to hold a person until the police arrive. We have seen many stories like that.

The issue of civil liberties is very sensitive in the law. From some of the speeches given to date, there is a question about whether the proposed amendments in Bill C-60 will, in fact, be appropriate.

It is my view, where there are technical, legal matters and where the House has brought in a bill, we are asked, without the benefit of expert witnesses and legal opinions, et cetera, to debate it the best we can do. Without hearing from witnesses, we are at second reading.

The importance of that is at second reading we kind of get the mood of the House and whether we are prepared to approve, in principle, a bill to go forward to the next stage, which would be to go to committee.

In the question about what is actually affected by second reading, it is important for members to know and to remember that when we give approval in principle, it restricts the scope of amendments that can be made at committee. Certain things cannot be touched. We will not be able to go beyond the scope of the bill. For instance, if it deals with this universe, these items and we wanted to make it bigger than it was at second reading, it could not be done. If we wanted to change, substantively, the intent or the essence of the bill, it could not be done at committee. That is one of the reasons I asked the question of the hon. member earlier.

I am a little confused. This case took place in October 2010. I think it was tabled in the House February 10. We are now in the beginning of March and we are finally starting debate.

This is a matter where Parliament could have shown a bit more leadership in addressing a very serious question of law. The bill could have been put forward, certainly before the Christmas break, and referred to committee so it could prepare its work and at least arrange for witnesses during the Christmas break. Then we could have started the hearings in committee when we came back in January.

It is an important issue of law. It is an issue which I think Canadians would expect us to deal with in a responsible fashion so we could address the questions of the day.

I raise those points because I think it is important. There is always a good reason to send a bill straight to committee rather than having second reading.

The other part has to do with the whole concept of the civil liberties. The member who just spoke laid out the fact that many of the amendments were problematic and might be more harmful than helpful in this case. When I finish my comments after question period, I hope to lay some of those out.

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

Mr. Speaker, my colleague from Marc-Aurèle-Fortin is absolutely correct. For people who do not have a background in law, it is very helpful to be provided with real, concrete examples of what has happened in similar situations. At the beginning of his speech, he referred to certain private member's bills that have been introduced and that deal with these type of situations. For example, in the Toronto area, the owner of a convenience store had to use force to restrain a thief. As a result, members introduced bills.

The member for Marc-Aurèle-Fortin brought up certain problems that exist in Bill C-60. I would like him to explain the difference between the bills introduced by private members and the bill introduced by the government so that people like me, who do not have a background in law, can understand. He has said that the private members' bills are simpler. I would like to know what specific problems he sees with Bill C-60.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I know that the witnesses we call are useful, but I do not understand what the hon. member's comment has to do with Bill C-60. We have not yet reached committee stage. We might have a witness in mind to invite, but as far as I am concerned, there are certain observations we can already make ourselves. With a small amendment, the current bill would be improved and not so confusing.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, at this stage, I will say that we plan on voting in favour of sending this bill to committee to be studied. It must at least be substantially amended, if not replaced by the bill that all legislators in this House wanted and that was much more simple than the one we have in front of us today.

The speaker before me mentioned some incidents in Toronto that have made people think. Two members from two different parties introduced much simpler bills to clarify things.

I will sum up the situation. A store owner who sees a shoplifter who has previously stolen from him return to his shop and act the same way, realizes that he will once again be robbed. He does not have time to call the police, who would not arrive in time. Therefore, he decides to arrest the individual himself and detain him until the police arrive. That is something that makes sense. I will talk about two cases I pleaded that show that this is useful, especially in a country as vast as ours, where sometimes the police are far away and may take 45 minutes to an hour to come arrest someone who is committing an offence on or in relation to property.

We should have been satisfied with these private members' bills. What is strange in this case is that the department is telling us that it is introducing this bill to clarify things, but the language it uses is far from clear. In a few moments I will read some excerpts. I think it will take a lot of thinking and explanations before we can truly understand the provisions of the bill.

I am told that people love to hear my speeches in the House. It feels as though we are talking to an empty room or to a completely disinterested group of people. Our debates are televised and some people are disappointed if I do not use examples from past cases of mine to illustrate my point. I will talk about two cases, if I have the time.

I would like to clarify our position from the outset. We recognize that this amendment to section 494 is exactly what members want right now. Subsection 494(2) of the Criminal Code states the following:

Any one who is

(a) the owner or a person in lawful possession of property, or

(b) a person authorized by the owner or by a person in lawful possession of property,

may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

It is important to take note of what is not said in this subsection. It says “finds committing”. But if the following day the owner sees the person who committed the offence to his property—such as breaking his car windows, for example—it is too late to make a citizen's arrest.

That is what happened to Mr. Chen, as was mentioned by the previous speaker. And it happens quite often. We agree with the amendment proposed in Bill C-60, which would change subsection 494(2) to the following:

The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

(a) they make the arrest at that time;

Up until that point, there are only slight changes to the current law, but then the following is added:

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

This amendment, which is similar to two private members' bills previously introduced, would resolve the problem that we are all now aware of and provide the solution that we all want.

This government has a bad habit. Whenever it sees that the House is likely to reach unanimous consent on a given measure, it always has to add something. We in the Bloc Québécois are particularly concerned about the changes it is making to the principle of self-defence.

For instance, here are two situations that could become legal and—even worse—become widespread, if the bill passes in its entirety. After a dispute over a fence degenerates, one neighbour utters death threats against the other neighbour and his family. Incidentally, people do not usually really mean them when they utter death threats. They usually amount to nothing more than excessive language, not all that different from what is often heard here in this House, for example. The two are more or less on the same level.

One thing is certain: the neighbour who hears those threats should not feel truly threatened. However, say he does feel threatened and fears for his life, and wanting to defend his family, he will say, he goes after his neighbour and kills him, justifying his action by saying that the police could not guarantee his safety and that of his family in the long term. In such a case, no one would ever know if the deceased neighbour ever really intended to carry out his threats. Thus, if potentially deadly force is to be used, we want to ensure that the danger is real, that there is no other option besides violence to respond to those threats.

In the other scenario, imagine a young person shoplifting in a convenience store. The store clerk, outraged by this recurring act in his store that is eating up his profits, pulls a shotgun on the shoplifter, but it fires accidentally. At present, that is a criminal offence, because it deals with property and because it involves someone who is not a peace officer. He would be using force that is disproportionate to the crime committed and that caused someone's death.

This is why we want to carefully study the provisions of this bill that have to do with self-defence.

I have practised criminal law since 1966 and have always found the current provisions to be logical and rather self-explanatory and not requiring any radical changes. For example, without going into all the details, the current provisions on self-defence against unprovoked assault start out as follows:

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

No matter their education, jurors who carefully read this section, or if it is read by the judge—perhaps judges provide a copy of the Criminal Code section—are perfectly capable of understanding it. Now here is what they want to replace it with. Why? I do not know.

This is the proposed wording:

A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force;...

I am not exaggerating when I say that I am certain that anyone hearing this for the first time will not understand the underlying principle. However, if they referred to the text I read earlier, the current Criminal Code section, they would have a much better understanding.

I do not understand when the government says that it wants to clarify an act, but then it uses such esoteric language to replace Criminal Code provisions that have stood the test of time.

As a lawyer, I have been involved in various cases. I remember a client who was accused of manslaughter. In fact, he might have been accused of murder, but the Crown was prepared to convict for manslaughter of a boat thief.

The defendant was living on an island east of Laval and he had several neighbours. Thieves would arrive by water. One night, the defendant, who was having prostate problems, got up and turned on the lights. He heard a noise, looked outside and saw people fleeing in a canoe. He realized that they were thieves. He finished what he was doing and went back to bed. Later, he heard the sound of boats knocking together even though the river was calm at that hour. He kept the light off and looked outside. What did he see? He saw two people in a canoe pulling his neighbour's motor boat behind them. He yelled out to them and told them to let go of the boat immediately, that they had been caught red-handed. The people kept paddling as though nothing were wrong and headed toward a nearby island to hide. The man found the shameless thieves and told them he had guns. He warned them to give up the boat or he would shoot.

At this point his wife was awake and he asked her to call the police. He could still see the two men paddling. Since he is a hunter, he has at least two guns: a rifle he uses for big game hunting and a .22 calibre gun.

He decided against using the moose hunting rifle because the shot could be fatal and the .22 calibre gun would make enough noise just to scare them. The man warned the thieves that he was aiming his gun at them, ready to shoot, but they kept on paddling. He decided to shoot in front of the canoe to scare them, but they kept on paddling. He warned them he was going to shoot again and he ordered them to let go of the boat. The thieves continued to paddle. The man took another shot in front of the canoe—or so he thought. Then one of the perpetrators seemed to be hiding in the canoe and the other raised his paddle and said they were surrendering. They came back toward him. The police were called to the scene.

One of the two thieves got out of the canoe, but the other one seemed to remain hidden inside. The man warned the thieves that he was armed and that they should not do anything foolish because the police were on their way. Finally, when the police arrived, the man handed over the rifle, trembling, and said that there was another person hiding in the canoe. The police went to look in the canoe and saw that the other person was dead.

Normally, a .22 calibre bullet fired at that range should not do that, but a .22 calibre bullet is still a bullet even though it is small and slow. In this case, the bullet entered the thief's side, passed between two of his ribs, through one of his lungs—where there was not much to stop it—and lodged at the base of his heart, which is what caused his death.

A police officer would have had the right to do what this man did, although admittedly a police officer would not have done it. Nevertheless, under the Criminal Code, a police officer has the right to behave like this. He used the only force available to make the arrest and it was deadly force. Individuals do not have the right to use deadly force simply to protect their property.

I told myself that the jurors would understand his position, so we decided to bring the case before a jury. We had an expert shooter come in, who told me to ask the police officers whether they had touched the weapon or made any changes to it. I asked him why and he said that he would tell me later. The police officers said that they had kept the weapon as they had found it. The expert shooter noticed that the sight was not calibrated for the range in question. He said that if the man in question had not wanted to hit the thieves, he should have aimed above their heads. Although a bullet travels several feet per second, a canoe also travels a certain distance in several seconds.

I thought that the judge would have to often reiterate that the force must be reasonable and proportional to the situation. If shouting was not enough to convince boat thieves who are on the water to stop, how else could they be stopped other than with a shot? The man had weapons at his disposal and he chose the less dangerous one. He aimed ahead of the boat so that the thieves would see the flash. His arguments convinced the jury and he was acquitted even though the judge told me that she would have found him guilty. She did not sentence him to time in prison since she understood his reasoning. This earned me some nice comments from the presiding juror, who knew Mr. Roy, Mr. Mulroney's former chief of staff. Mr. Roy was actually her nephew, and she told him that the lawyer was extraordinary. However, that has nothing to do with the application of the law, except that a law that is difficult to understand could lead to a sympathy verdict. This bill is ten times harder to understand.

I think that I have time to talk about another case, but it is about the ordinary arrest of an ordinary citizen after the fact. It is similar to the case of Mr. Chen, except that a security guard was involved. It is 17 years since I last practised criminal law. At the time, it was not popular for men to shave their heads, except maybe a few troublemakers. The individual in my case had no hair, no eyebrows, nothing. He had what is called alopecia universalis. He told me that he had no hair anywhere—yes, even where you are thinking. It is odd to see someone without any hair or eyebrows. This person told me that a few thousand people in Montreal have this condition, including the drummer of for the band Corbeau. He said that people always mistook him for someone else.

He had just moved and went into Steinberg's grocery to buy some bread and coffee for breakfast. When he got to the cash, he was arrested by the security guard who said that he had stolen something the day before. He responded that he had not been in the store the day before and that it was likely someone who looked like him. He said that he was often mistaken for the drummer from Corbeau, who had the same condition.

We explained his conditions and the effects of it, but when I tried his case, the security guard at the door of the court had the same condition. So we did not need an acquittal, but we filed a lawsuit. Steinberg went bankrupt and the security guard committed suicide. He had made a mistake by arresting him the following day. He did not have the right to arrest him because he had not caught him in the act.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, first, I want to say that David Chen of the Lucky Moose Food Mart would never want to assault another human being. Therefore, this whole question of self-defence is a red herring, because he was not being attacked by the person who stole things from his store. It is not a question of self-defence we are dealing with. We are talking about his right to make a citizen's arrest.

Why do we need the part of this bill that deals with citizen's arrest? From coast to coast to coast we have heard from small business owners, not just from the one group the Conservative government spoke of having one or two meetings with. I have in fact met with store owners not just in Toronto but in Vancouver and Montreal also. They are saying that they work long hours, their profit margins are small and, unlike large stores, they have no money to hire security guards and do not want to do so. They really do not have a lot of extra staff on hand. They work such long hours and their profit margins are very low, so every dollar they lose from shoplifting means that they must work many more hours.

Let me describe Mr. Chen's situation. I believe that a large number of Canadians are now familiar with the story.

Mr. Chen works at least 16 to 18 hours a day, seven days a week, every week of the year. Most times he and his wife stay upstairs above the store in order to wake up early in the morning to go to the market to buy the merchandise they sell in their store. They hire a number of employees. However, on average they make around minimum wage, so every $100 they lose means they have to work another 10 or 15 hours. When they noticed that a person was repeatedly coming to their store to steal plants and food items, they wanted to take action. It is not that they wanted to cause any harm to anyone. They called the police several times and yet the police for some reason did not come.

An hour later the thief came back with the intent to steal more plants, because the first time around the thief was unable to carry all the plants that he wanted to take. He came back to steal more, but did not get to do that. David Chen proceeded to give chase and held the person in his van. Once the police arrived, Mr. Chen was charged with the very serious offences of assault, confinement, carrying a concealed weapon, et cetera.

Mr. Chen had difficulty finding the time and financial resources to hire a lawyer to go to court over and over again to defend himself. Members of the community in Toronto organized a fundraising banquet in order to support him because they felt that what had happened to him was unjust.

In my riding, we have noticed that what occurred to David Chen is not an isolated incident. Another store owner in the Kensington market area, Jeff Ing, who sells fruits and vegetables at his store, Jungle Fruit, has lost a lot of business because of the same person who was shoplifting at the Lucky Moose.

I then went with the member for Vancouver Kingsway to talk to other store owners. We walked along Victoria Street with a petition in support of my private member's bill, Bill C-565, that would allow a citizen's arrest to happen, not at a time when the offence is taking place but within a reasonable amount of time after an offence has taken place, with reasonable grounds. Every shop on Victoria Street and every shopper with whom we spoke were willing to sign the petition. They thought it was important that the Criminal Code be amended with a very common-sense amendment and that it was high time for such an amendment to take place.

Some people asked whether the amendment would encourage vigilantism. No, it would not because the code would not be changed in a way that would allow a citizen's arrest to be done in a way that would cause harm. The “arrest” is basically detaining the person while waiting for the police officers to come and make the actual arrest. The amendment would not change any part of the code dealing with using force.

Some may ask if it means that the employees of some stores would be requested to put their lives in danger in order to apprehend shoplifters. Absolutely not. People do not need to detain shoplifters. We encourage people to call the police and wait for them to come. It is only when there is no other choice that they would make a citizen's arrest. No employees would be under any duress, because they are protected by the provincial labour code, to put themselves in any kind of dangerous situation. It would not justify any use of force because that is not what it is all about.

We believe it is up to peace officers, RCMP, provincial police and the local police force to do their job. We need to ensure that community policing is the order of the day. We need to ensure the police are visible in the community, work closely with the communities and the business improvement area so we can reduce shoplifting incidents in the first place, rather than waiting for them to happen and a citizen's arrest having to be made. It is also important that the Conservative government honour its campaign promise to hire more police officers. However, in some cities across Canada, we have not see the increase of police officers as promised.

We must also invest in crime prevention. The person shoplifting should have drug treatment programs to ensure he or she quits the drug habit. The shoplifter admitted to that. For young people who may fall into gang situations, we need to find ways to ensure they have good role models and good employment programs before they start shoplifting in the first place.

Bill C-60, however, is not just about citizen's arrest. Two other portions in Bill C-60 are far more complex. I fail to see why the government would not allow this portion, which has the unanimous support of all parties, to move ahead, which is precisely the request that came from the community.

The member from Mississauga—Erindale, the Parliamentary Secretary to the Minister of Justice, was in receipt of suggestions for a private member's bill from the community with the precise wording that both myself and other members of Parliament have submitted. The community was interested in the citizen's arrest portion of the Criminal Code.

Adding in the defence of property and self-defence muddies the water. If the Conservatives are not willing to split the bill and do a quick consent for citizen's arrest, then the bill will go to the justice committee where it must go through a very detailed study of the two portions.

Some elements that modernize the Criminal Code may be worthy of support but some of the other amendments may have unintended consequences. For example, removing the requirements on the use force in self-defence could lead to troubling incidents and may result in the escalation of violence. I certainly hope not but we do not know.

The guideline right now is very straightforward in that ordinary Canadians are not allowed to use force that could result in the death of the attacker unless they believe their life is at risk. The use of force must be proven in order to defend oneself. If the definition of the type of threat is removed, then unintended consequences may result for people who believe they are under any kind of threat. In the Criminal Code now, the amount of force needed to repel an attack should be used, but not more. Why do we need to change that aspect of it?

This part of the bill is quite complex and causes some unease in terms of what precisely the Conservative government is trying to do, which is why we are calling upon the Conservatives to immediately split the bill and allow the other two portions of the bill to undergo careful examination. If the government is not willing to do so, then it is playing politics with incidents like David Chen's incident at the Lucky Moose Food Mart. Instead of working with other parties to get results and make Parliament work, the Conservatives want to take this incident and play partisan games with it, which is most unfortunate.

I hope that is not the government's intention, and I do not detect that intention. I sense a willingness of all parties to work together to ensure that incidents, like David Chen's incident, never happen again.

Perhaps all members of Parliament have heard the petitioners from coast to coast to coast who have petitioned Parliament to take action. I recently submitted 10,000 names to Parliament of people urging us to take immediate action.

This debate on amending the Criminal Code for citizen's arrests has been requested by the community for over a year and a half. The incident that led to this discussion, David Chen's incident, occurred in May 2009. It is not as if this just occurred. We have had a long time to look at the Criminal Code and a long time to discuss what needs to be done. On my private member's bill, which came forward in September of last year, there were numerous discussions on the citizen's arrest portion. A lot of store owners from Montreal have talked about this and they want us to work together.

It is my sincere wish that we do not muddy the water with the other two portions of this bill and allow the citizen's arrest portion to move ahead. There is no doubt that the whole notion of self-defence and protection of property in the Criminal Code, which was written a long time ago, will eventually need some kind of adjustment and amendment with more modernized wording so that the different sections can be compressed into a few sections. I understand why that is necessary but to tack it on to Bill C-60 is unfortunate.

The other element of this is that we do not know whether the Conservative government will bring forward a budget that is supportable by all parties. If the budget comes forward and one of the opposition parties makes a decision not to support it, then Parliament will not survive past the end of March. If that is the case, then all the work that has been done to amend the Criminal Code, specifically on citizen's arrests, will not occur.

We are in early March and there are only a few weeks before the coming budget. For this bill to get through second reading today or tomorrow, then go to the justice committee where it has a large number of justice bills in front it, and then, assuming it passes there, to come back to the House of Commons at report stage and then third reading will take quite a bit of time. After that, it still needs to go to the Senate for approval.

Leaving this bill so late, in terms of the upcoming budget, is most unfortunate. I do hope the government will work with the opposition members of Parliament to split the bill and allow the citizen's arrest portion to move ahead with unanimous consent.

[Cathy McLeod, Conservative, Parliamentary Secretary to the Minister of National Revenue]

Mr. Speaker, I would like to thank my colleague for articulating this important piece of legislation and detailing its different aspects.

The member talked about the difference between the two private members' pieces of legislation and our legislation. I would like him to articulate clearly the important changes in Bill C-60 that were not in those pieces of legislation.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to speak today on Bill C-60, An Act to amend the Criminal Code, which addresses the issues of citizen's arrest, defence of property and defence of persons.

I would like to begin by addressing the reforms to the law of self-defence and defence of property. Defences arise when a person is alleged to have committed a criminal offence. The availability of a defence means that, although a person did commit an act that would otherwise be a crime, he or she should not be convicted for it because of some other circumstance amounting to a defence at law. If a person is defending themself from an attack or defending their property from being stolen, they might need to behave in a way that would normally attract criminal responsibility, such as an assault against the person threatening them. The defences are the law's way of balancing the generally applicable offences with exceptional circumstances that can validate the commission of crimes.

In the McIntosh case in 1995, the Supreme Court of Canada issued a very stark assessment of the law of self-defence. Here is what former Chief Justice Antonio Lamer had to say:

I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.... It is to be expected that trial judges may encounter difficulties in explaining the provisions to a jury, and that jurors may find them confusing.

Chief Justice Lamer went on to say:

I am of the view that any interpretation which attempts to make sense of the provisions will have some undesirable or illogical results. It is clear that legislative action is required to clarify the Criminal Code’s self-defence regime.

Confusing law is not just a matter of passing concern; when laws are difficult to understand, there are real consequences. People will not be able to read the law and understand the rules that govern their conduct; and police will have a difficult time assessing whether a person has a valid defence for the conduct and may end up laying charges just to be on the safe side, in the hope that the court will sort out the confusion.

I have spoken with dozens of police officers who have told me that this is exactly what they do. I believe that this is probably what happened in the case of Mr. Chen. The police were faced with a series of confusing provisions in the Criminal Code. Their duty is to uphold the law, and so their duty is to lay a charge and seek the court's determination. That is what they did in this case.

That is why these types of cases and these provisions in the Criminal Code really require very close scrutiny, and that is what Bill C-60 is intended to do.

Prosecutors and defence counsel will spend considerable time making arguments about the meaning and the scope of the law; courts will have tremendous difficulty explaining the law to juries; juries will be asked to apply laws that even lawyers and judges do not fully understand; and even if the jury comes to the right conclusion, there are likely to be grounds for the losing party to appeal, causing delay in the final resolution of the outcome for the person charged, and the cost to the justice system will be significant and unnecessary.

We are right to be concerned about confusing laws. It is Parliament's duty to ensure that the law is accessible and clear to all Canadians. The time has come to do so in regard to these provisions.

When we looked at these provisions, we realized that there were nine provisions in the Criminal Code that were very confusing and, in some ways, contradictory. And when we looked further into it, we realized that these provisions of the Criminal Code had not actually been substantially revised since 1960. Thus it was the right time to do so.

The case of Mr. Chen was certainly a catalyst for change and gave rise to an opportunity for us to examine these provisions. However, when we actually sat down and spoke to shop owners, and here I hope that the member for Winnipeg North who spoke previously had an opportunity to do so in his city, we came to the conclusion that there was a lot more that needed to be fixed than just the timing of the citizen's arrest provision.

Prior to and after the Supreme Court of Canada's pronouncements in the McIntosh case, there were numerous attempts to reform the law.

First, the former Law Reform Commission of Canada proposed in 1987 a re-codified general part of the Criminal Code, the part that contains many general rules, such as the defences and rules surrounding participation in crime. This report included a reformed law of self-defence and defence of property.

The Canadian Bar Association also produced a report in 1992 for a reformed general part of the code and proposed a slightly different, but vastly simpler, defence of the person and defence of property.

Around the same time, the Department of Justice issued a white paper that was a draft of a new general part of the Criminal Code. It included yet another version of a simplified defence for self-defence and defence of person.

Again in 1998, the Department of Justice consulted with Canadians on various ways in which the defences could be simplified and clarified. However, law reform never came until now.

Bill C-60 presents the first legislative response in many decades to the confusing law on self-defence and defence of property. In a nutshell, the legislation seeks to simplify both defences in order to provide clear guidance to Canadians about what they can do in an emergency situation where they are forced by a threat to themselves or their property.

Simpler laws will provide better guidance to police officers who are called to the scene of a crime, who will, as a result, be better able to make appropriate decisions about whether charges are warranted or not. Simpler laws will also allow courts to instruct juries in a sensible manner. This will reduce successful appeals and retrials, saving the justice system unnecessary time and expense.

The proposed new law of self-defence will boil down to a few simple considerations: did the person reasonably perceive that they or another person was being threatened with force, or were they actually being assaulted; did they respond for the purpose of protecting themselves or the other person from that force; did they act reasonably in the circumstances?

These are the key components that permit a person to do what would otherwise be criminal, whether it be using force against force, or doing something else such as breaking into a property to escape an attacker. These components are very similar to those that are currently part of the law of self-defence, but the defence in Bill C-60 provides a single, simple, general rule. The law on the books today, by contrast, is based on the same basic principles but is written in a very complicated and overly detailed way.

Why does the law need to be more complicated than these three principles? The answer is that it does not. One new feature of the defence of persons is the addition of a non-exhaustive list of factors to help guide the judge or jury in determining whether the conduct was reasonable in the circumstances.

Our government believes this additional feature will be welcomed by the courts, which will be called upon to interpret the law and instruct juries on a more simple defence. The factors on the list are well known in the case law dealing with self-defence, because they often arise in all kinds of different cases.

The list will include the nature of the force that was threatened and the proportionality of the response to it, whether there were weapons present and whether the parties had a pre-existing relationship, including in particular whether there were previous incidents of violence.

This last factor will be particularly important in cases where a battered spouse uses force. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury to understand how a battered spouse might stay in a relationship or how they might come to understand the patterns of violence of their partner.

The list of factors to consider will help ground the jury's consideration of the facts by clearly identifying this factor, among others, as relevant to its assessment of reasonableness.

The current defence of property scheme has the same flaws as those of self-defence. There are too many overlapping provisions that set out specific situations and they are far too complicated to know which to apply and in what circumstances.

The reform proposed in Bill C-60 would dramatically simplify the law by setting out one single general rule for the defence. The same level of protection that is currently provided by five separate defences would be captured in one simplified defence. In the simplest of terms, a person will be able to do what is reasonable in the circumstances to protect property in their possession from being taken, destroyed or trespassed upon.

Bill C-60 expands the time in which a property owner can arrest a person who is committing an offence in relation to their property. This change will bring flexibility to the power of citizen's arrest, which will complement the other reforms in the bill by helping Canadians to protect their interests when the situation calls for urgent action.

I think all members can agree that clear and simple defences and a citizen's arrest law that provides flexibility for variations in the circumstances will allow all Canadians to take necessary and reasonable steps when the circumstances leave them with no other reasonable options.

I urge all members to support this important legislation.

If time allows, I would like to distinguish for all of the members present today the difference between Bill C-60 and the two private members' bills.

As I mentioned in my remarks, the government's bill is broader in scope. It clarifies and simplifies the law of self-defence and defence of property, and would expand the provisions governing citizen's arrest. The two private members' bills deal only with citizen's arrest.

With respect to the reforms to the citizen's arrest provisions, the government's bill would expand the time period for a citizen to make an arrest, but in a carefully and articulated way so as not to invite citizens to make such arrests where it is instead feasible and advisable for the police to do so.

Bill C-565, the NDP bill, proposes to allow a person to make a citizen's arrest of another person whom, on reasonable grounds, he or she believes has committed an offence and where the arrest occurs within a reasonable time following commission of the offence.

Bill C-547, the Liberal private member's bill proposed by the member for Eglinton—Lawrence, proposes amendments similar to Bill C-565 but without the reasonable time requirement.

Perhaps the member for Winnipeg Centre may want to read his colleague's bill. He mentioned something about reasonable time for a citizen's arrest, but that is not even included in that bill.

These two private members' bills would allow for a citizen's arrest based on reasonable grounds that an offence has been committed. However, there is no time limit within which this belief must be formed and the time could extend to weeks or months later.

The government's proposal, requiring that the arrester find someone committing an offence and make the arrest within a reasonable time only when it is not feasible in the circumstances for a peace officer to make the arrest, is more limited and more responsible. It does not equate the citizen's arrest power with that of the police.