Bill C-26 (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

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I know there are concerns within other parties in the House. I regret that having come to some consensus through the committee process members who have concerns seem to feel they have to hold their noses and pass a bill that may well open the door to some serious problems in our society.

I note that the vice-chair of the Canadian Bar Association, Eric Gottardi, is quoted in today's paper as saying this is a gift to the rent-a-cops. He said, “Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances”.

Even at this late stage we should insist that the sections relating to citizen's arrest be left alone and remain as they are now in the Criminal Code and not extend them, as this bill does.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, the reality is that private security exists already and that is not going to change. Are there concerns about how private security contractors are used? Certainly, but the bill is not going to change their reality in our society.

We think that the bill is a good bill. It is good because there has been push-back on both sides in order to deal with some outstanding concerns. If my hon. colleague feels that she has to hold her nose to vote for it, well, making laws is like making sausages. It is not the easiest thing. We do not get everything we want. Law is not easy either and there are always going to be grey areas. That is what will be interpreted by the courts.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, in Hamilton a number of years ago there was a situation where a Bell technician was outside a hotel and a husband and wife had a dispute. He held the husband because he thought the husband was going to injure the woman. The woman turned around and buried her shoe in the back of the Bell technician's head. It just shows us that when we give that kind of extra leverage to the public, there is a certain risk factor.

I wonder what the member's comments are on that.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I cannot say anything about what happens in Hamilton because I share a seat with a guy from Hamilton and I have played gigs in Hamilton and it is a pretty tough town. I was told when I went to Hamilton that I was in the big city and I had better behave, so I am not going to mention anything about what happened at that event.

There are always altercations. There is always going to be push-back. There are always going to be issues of how people defend themselves. What we are trying to do is clarify the laws. To use the example of the Lucky Moose that was being hit again and again and with no police there, it is not unreasonable for the shopkeeper to be able to stop the criminal.

My colleague's advice is wise. We have to ensure there is discretion. We have to remind people to be careful. It is better to wait and let the police do it. People should not get hurt over a box of Smarties.

[The Acting Speaker, Bruce Stanton]

Before resuming debate, it is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Beaches—East York, National Defence; the hon. member for Edmonton—Strathcona, Aboriginal Affairs; the hon. member for Saint-Jean, Flooding in Montérégie.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I will be splitting my time with the hon. member for Scarborough Southwest.

Bill C-26 demonstrates that the committee process in this House can actually work, when a bill starts out as reasonable in its aspirations and its general content. I will speak mostly to the self-defence provisions, which have not been getting as much attention during this debate, and I hope to have time to speak to citizen's arrest. If not, I am happy to answer questions.

The NDP worked in good faith within the committee and advanced a number of amendments, two of which were accepted. We feel that the legislation could be better yet, especially, from my point of view, on the citizen's arrest portions. However, we also feel that it has been somewhat improved and that, in general, it started out as worthy legislation. For that reason, we believe this bill should be supported, as my colleagues have been indicating.

With respect to the legislation that was originally tabled, I must commend the parliamentary secretary, the member for Moncton—Riverview—Dieppe, for his speech on December 1, 2011, when he introduced the bill. His speech was a model of thoughtfulness, tightness and elegance of exposition and, indeed, care taken to explain the bill's purpose and its relationship to the existing law and to the general principles of criminal law. That speech should be taken seriously when the legal profession begins to interpret Bill C-26, when it becomes part of the Criminal Code, with respect to the provisions on self-defence of the person, defence of property and citizen's arrest.

What is very interesting about both the reforms in Bill C-26 and the speech of the parliamentary secretary is the contrast with the approach of the current Criminal Code provisions. This is partly due to the origin of the current provisions in one of the original versions of the Criminal Code well over a century ago. However, the present Criminal Code provisions are best characterized as a patchwork quilt of relatively detailed provisions that are responding to a range of concrete situations. Partly because of that level of detail, these provisions have for some time been criticized, decried by some as needlessly complex and increasingly confusing, as we have had layer upon layer of judicial interpretation over the years.

The Bill C-26 provisions are, in contrast, a model of simplicity and distillation to the core principles in their essence. I dare say that their formulation owes a lot, although I cannot say this is for sure the case, to the civilian tradition within our multi-juridical heritage, with its preference for unifying principle and generality when we are codifying the core areas of the law.

A passage from the parliamentary secretary's speech speaks to this approach. When the hon. member for Moncton—Riverview—Dieppe spoke to the self-defence provisions in Bill C-26, he stated in part:

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.

There is a lot of merit in the conceptual clarity and the focus on unifying principle that is represented by that passage. However, the common lawyer in me does worry a bit if the idea of “a single principle” is seized upon to the exclusion of what he also mentions, which is “all situations”.

General principles only live and breathe and become coherent in the real world where, hopefully, most Canadians live--when they are brought to bear on concrete situations to allow more nuanced rules to emerge gradually. It is for this reason that it is a virtue of the new proposed clause 34 in Bill C-26 on self-defence that it is grounded in a general idea, that of reasonableness of response, but this is also expressed, which is important, as “reasonableness in the circumstances”. That is proposed paragraph 34(1)(c). However, it is all the better that proposed subclause 34(2) then goes on to list nine factors that are relevant to the contextualized approach to the general principle of reasonableness.

The NDP was very concerned that these factors would themselves be principled and at the same time useful for real-world decision-making of ordinary citizens, then of police and prosecutors and, finally, of judges in their exercising of judgment as to whether a self-defence situation has arisen. In particular, an NDP amendment that was accepted modified the chapeau for proposed subclause 34(2) and that amendment is most welcome. It appears before the list of the nine factors and states:

In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors....

That sets up well the various factors. This phrasing interacts with factors (e), (f) and (f.1) in the provisions to provide a good basis for the criminal law to be responsive to the very particular challenges of applying self-defence in the context of abusive relationships, which is an area I know many members in the House have some concern about, especially where women have been subjected to patterns of violence and psychological abuse by their male partners. I think it is important to recognize that the parliamentary secretary himself, in his speech on December 1, recognized this when he said:

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.

Having praised the parliamentary secretary's speech on December 1, I would also like to add that the response speech from the previous justice critic, the member for St. John's East, was also a model of constructive and thoughtful parliamentary engagement. While he expressed general support and appreciation for the intent behind the bill, he also raised questions aimed at ensuring that during the committee process, the overhauled existing provisions of the Criminal Code did not throw the proverbial baby out with the bathwater. In that respect, he said:

We need to examine it [Bill C-26] very carefully. We need to ensure that by making changes, we are not throwing away 100 years of precedent and all the advice that the courts have given. If we are starting off with a blank slate and a whole new law, it may take another 10 or 20 years of case law to understand what that means. Do we really need to go down that road?

I will end by saying that it is really important to understand that there is a conundrum built into law reform. Do judicial interpretation and the perceived understandings of the law go by the wayside when new law is enacted, especially when such detailed provisions are replaced by general provisions in criminal law? It must surely be the case that we, and by “we” I mean citizens and the legal profession, do not reinvent the law of self-defence from a whole cloth. We must engage with what was the living law under the old provisions and forge a new living law under the new ones that is in communication with what went before it.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Mr. Speaker, I know the member is new to his portfolio but he was not at committee to hear the testimony. We heard testimony that suggested that, in this particular case, judges should use their discretion for victims instead of criminals, as that member's party has been saying.

We also heard experts at committee say that for years they have been seeking clarification of the law on self-defence. During my time practising criminal law there was a tremendous amount of confusion to say the least relating to many aspects of self-defence. I wonder if the member would not agree that we should listen to the experts in this case. Even the Canadian Bar Association said that it wanted clarification of the law.

Would my colleague not agree that it is a good thing for the government to stand up for victims instead of criminals and allow judges to use their discretion as well?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I look forward to working with the member on the justice and human rights committee.

I do not think the premise needs to be accepted that the NDP views judicial discretion as only something that should be relinquished when it is a case of the wrongdoer. That is not at all what we have been saying. In general, judicial discretion needs to be respected in our legal system.

We are consistent that in the revised bill, with respect to the very open textured rules on self-defence, we think discretion will work, keeping in mind that the judgment of ordinary citizens will be equally important. The law cannot wander too far away from basic common sense.

However, we also believe that when it comes to things like sentencing, judicial discretion is also needed. We are being consistent.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I am happy to welcome my hon. friend to the House. This the first time I have had an opportunity to put a question for the hon. member for Toronto—Danforth. I hope he will not mind if I trespass on his time to follow-up on a response from one of his caucus colleagues.

The hon. member for Timmins—James Bay made the mistake of thinking that I planned to vote for this bill. I do not plan to vote for the bill. I am fairly certain that I am the only member of Parliament who finds it objectionable to expand the powers of citizen's arrest. I note particularly that, while the member for Timmins--James Bay said that this little change was nothing in terms of citizen's arrest and private security firms, it would in fact create a new opportunity for people to arrest some reasonable time after the offence.

How does my friend from Toronto—Danforth feel about that?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I was upfront in my remarks when I said that I, like many people, have qualms about playing around too much with the citizen's arrest provisions. However, the committee and ultimately the government in its proposed bill has this right.

The member is absolutely correct. It is true that there is a small extension of citizen's arrest to include arrest within a reasonable time after someone has been found committing an offence. However, there are a number of safeguards. This cannot be done if it is at all reasonable to expect the police to show up and do the job.

There are a couple of other provisions that I do not have time to go into that really attempt to send the signal that the Lucky Moose shop case with David Chen is really the paradigm. We need to work out from that, use that as the analogy and not accept this as a licence for anything resembling citizen's arrest gone wild.

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, I would like to take this opportunity to welcome the member for Toronto—Danforth to the House and congratulate him on his new portfolio as deputy critic for justice. This is the quality of debate and the type of thoughtful, reasonable and well-researched remarks that we can expect from this member after just a few short weeks. I cannot wait to see what he will be capable of in a year or two.

I am pleased to have an opportunity today to speak on Bill C-26, an act to amend the Criminal Code in relation to citizen's arrest and the defences of property and persons. In reality, the heart of this bill came from the New Democratic Party, specifically from the member for Trinity—Spadina. We need to pay tribute to her work because she put in place many of the aspects of the legislation before us.

I would also like to note that it is nice to see that for once the Conservatives are willing to accept a good idea from the opposition. I certainly wish the Conservatives would adopt more of our good ideas. If they had, of course, there would be not be 90,000 more unemployed families. If the Conservatives had taken our advice, we would not have the highest debt load of Canadian families in history. If they had taken our suggestions and listened to the NDP, then we would not have seen a real wage reduction of 2%.

Going back to the bill, it has its origins in the attention brought to a citizen's arrest two years ago at the Lucky Moose Food Mart in downtown Toronto, as many members have already stated. The owner of this store was a persistent victim of shoplifting. A shoplifter who was seen in his store walking away with some property apparently came back an hour or so later. Based on his experience in trying to get the police to respond to shoplifting events in the store, the owner felt that the only way to actually have this fellow charged was to apprehend him himself. As a result, the owner was charged with assaulting the individual and forcible confinement. This case caused a lot of controversy, some of which had to do with whether policing was sufficient in the area.

We know that in larger establishments like chain supermarkets and retail stores there are often paid security services. They have the resources to better protect themselves. These paid security services have training in apprehending people and are more familiar with the Criminal Code than the average citizen. They, in effect, perform a citizen's arrest based on seeing someone commit a shoplifting offence. They phone the police and hold the shoplifter until the police come, which is what Mr. Chen did. However, what was different in this case is that the individual had left the store and then came back. When he came back he was not in the act of committing an offence at that time. As a result, Mr. Chen, the owner of the store, was not inside the current provisions of section 494 of the Criminal Code that says a citizen may arrest someone who is found committing an indictable offence or personally believes on reasonable grounds that a criminal offence had been committed, the perpetrator is escaping from it and is freshly pursued.

Section 494 states specifically that, “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.”

There is also a provision that says, “Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.”

The normal process for shoplifting is that the store detective, store owner or the private security officer can apprehend individuals, phone the police, turn them over and let the police handle it from there. In this case, because the arrest took place over an hour later on a return visit, the owner did not have any basis under section 494 to arrest the individual, which is, of course, why we are standing here today debating this bill.

The bill originally came forward as a private member's bill introduced by our colleague, the member for Trinity—Spadina. I think she may have even called it the “Lucky Moose Bill” in honour of Mr. Chen. It has received widespread support from all sides of the House with perhaps one notable exception. Many people who are in the position of lawmaker are very concerned about passing laws that would encourage a vigilante type of justice. This is why it is such a touchy area.

As has been pointed out by many of my colleagues, we have highly trained police forces operating across the country. We have a national police force, provincial police forces in Ontario and Quebec, as well as local police forces and community policing. We are incredibly proud of these men and women who serve Canadians on a daily basis. As well, in the area where Mr. Chen's supermarket is located in Chinatown, police patrol on foot. These are the people we need to rely on. On the other hand, not every store owner has access to security guards or store detectives, and certainly the police are unable to be everywhere at once.

The concern here is for people trying to run a business. In this case, Mr. Chen was trying to run a business and protect his property. Most people would think that he acted reasonably and detained the individual without using excessive force. However, it was still under the current provisions for forcible confinement that Mr. Chen was charged. If one uses force to confine someone and prevent that person from leaving, that is an offence.

However, the citizen's arrest provision provides a defence for forcible confinement by changing it to an arrest, provided the arrest is made within a reasonable period of time.

If the individual who is committing the offence is known, one would be able to simply phone the police to tell them what the individual has done and that they have done this before, in this case, taking something and leaving. In this instance, Mr. Chen did not know the name and address where this individual could be found and unfortunately felt the necessity to take action. An individual should not be chased because of the danger involved, and the police should be called. However, as I have stated, in a case where an individual is not known, the only way to apprehend an offending stranger is to take advantage of the opportunity.

We support this aspect of the bill wholeheartedly. It takes a minimalist approach by making changes to section 494. What I mean by “minimalist” is that it changes only what is required according to the circumstances in which Mr. Chen found himself.

There have to be two conditions: one must witness the offence, and the arrest must be made at the time of the offence or within a reasonable time after the offence is committed; and, one must believe on reasonable grounds that it is not feasible under the circumstances for a peace officer to make an arrest.

We could say that when the individual came back into the store, instead of arresting him perhaps the police should have been called right away. However, in Mr. Chen's experience the police often did not come fast enough in these kinds of situations and he thought that this individual would be gone again.

If these changes had already been in place, Mr. Chen would have had his defence, as it would have fit these circumstances. As legislators, we should not make laws every time something unusual happens and we must be very careful in making changes to the Criminal Code. However, when a flaw is pointed out in the law due to an unusual event and injustice can be seen, then a reasonable legislature should take action. We support that wholeheartedly.

I have had several instances in my personal life where I have come close to this kind of situation while travelling on public transit in Toronto. I have taken the TTC on a daily basis for many years and have encountered all kinds of unusual situations. I witnessed an assault on a 13-year-old in the subway by 17-year-old students, and I witnessed a TTC patron spitting on a TTC operator. In each of these situations, the assailants fled. Being a little out of my mind with anger, I did pursue them. However, during that pursuit, I was lucky enough to locate peace officers who were then able to make the arrests so that I did not run afoul of the law in some way and end up in trouble myself.

This bill is important because it ensures that individuals like Mr. Chen, who are protecting their person and property, are able to do so within the law. To be able to defend oneself within the law is incredibly important. That is why over many years there have been all kinds of changes made to the Criminal Code, and we certainly have to do so diligently.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Mr. Speaker, I did not hear the test of reasonableness in my colleague's speech today, which is suggested by the legislation itself, the reasonableness of a judge who has had legal experience and legal education, and has seen these cases many times before.

Does he have a problem with the government suggesting that judges should use their discretion to determine what is reasonable in the circumstances? If so, why does he have a problem with judges deciding that? If he opposes the legislation, the very crux of the issue is the reasonableness of the judges and the interpretation of the law by them, and what is reasonable in the circumstances based on that citizen.

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, I am not sure if the member was listening. Nowhere did I say I was opposed to the legislation. In fact, we are supporting it.

What is absolutely surprising to me is to hear the member from his side of the floor, the Conservatives, now saying that judges should be able to apply their judgment. Time and time again we have seen the government attempt to make changes to actually take that discretion out of judges' hands with mandatory minimum sentences. That is the kind of thing that takes the law out of the hands of the experts and the people who should be applying sentences, who should be taking into account the circumstances of offences, criminal history, behaviour of individuals and reasonableness of the judgments being made.

This is the government that is taking that discretion out of judges' hands. I think it is a little hypocritical to hear the member make that kind of statement now.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the Liberal Party critic talked about how we support the bill in principle. There is fairly widespread support in the House. Most Canadians see the value of passing the bill.

In previous questions I have asked about the need for an educational component for certain sectors, in particular the retail or the commercial areas, to make sure people are aware of what citizen's arrest really entails. Would the member comment on what he feels is important in an educational component on citizen's arrest?

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, we as a society can do a better job of educating the public on a whole raft of different issues, not just citizen's arrest, but preventive health, tax code or a number of situations.

However, I would like to turn it back to the member and ask, if the Liberals feel that the bill is lacking in this kind of way, have they proposed, or will they be proposing, amendments to insert such language into the legislation?