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

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

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

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

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 Sections 34 to 37 of the Criminal Code are repealed and replaced with a single self-defence provision that applies to any offence.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The House resumed consideration of the motion that Bill C-26, 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.

The House resumed consideration of the motion that Bill C-26, 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.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, this is here for law-abiding Canadians week.

This afternoon, we will continue debate on Bill C-26, the Citizen’s Arrest and Self-defence Act. If we finish that before 5:30, we will get back to Bill C-4, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act.

We will conclude here for law-abiding Canadians week tomorrow, with third and final reading of Bill C-10, the safe streets and communities act. I expect the vote will be deferred until Monday before the bill moves to the other place where I am sure the senators will deal with the bill swiftly in keeping with our commitment to Canadians to pass the bill within 100 sitting days.

I noted the offer from the member for Mount Royal, which appears to be at least somewhat endorsed by the opposition House leader, and I will propose a motion in response, hopefully later today, that can address the amendments in question.

Monday will be the final allotted day for the supply period, which means that after debating an NDP opposition motion all day we will also be dealing with the supply bill that evening. I understand that the NDP has removed all its opposition motions from the order paper so we really have no idea what we will be debating that day. The House will have to await word from the NDP.

I am pleased to announce that next week in the House will be democratic reform week. During this week, we will be debating bills that are part of our principled agenda of democratic reform, specifically bills that would increase fair representation in the House of Commons, reform the Senate and strengthen Canada's political financing regime by banning corporate and big union loans.

The key part of democratic reform week will be Tuesday with report stage debate on Bill C-20, the fair representation act, which seeks to move Canada toward the democratic principle of giving each citizen's vote equal weight. I thank the procedure and House affairs committee for the consideration of this important bill. Report stage debate will continue on Friday, December 9.

On Wednesday, December 7, we will resume debate on Bill C-7, the Senate Reform Act , which seeks to give Canadians a say in who represents them in the Senate and limits the terms of senators. If more time is needed, which I hope will not be the case, Mr. Speaker, we will continue that debate on Thursday morning.

Filling out our democratic reform week agenda, on Thursday, we will start second reading debate on Bill C-21, the Political Loans Accountability Act. It is a bill which seeks to close the loophole which allowed wealthy individuals to bankroll leadership campaigns, thus circumventing the legal contribution limits.

Finally, there have been consultations, and in the interests of having members of the House use their place here in the forum of the nation to draw attention to an important issue that knows no party divisions and to encourage Canadians to sign organ donor cards, I, therefore, move, seconded by the Minister of Labour:

That a take-note debate on the subject of the importance of organ donations take place pursuant to Standing Order 53.1 on Monday, December 5, 2011.

Citizen's Arrest and Self-defence Act

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I agree with the comment by the member for Kitchener—Conestoga. I think his point is this is a bill that he would like to ultimately see passed, even if there is a need to make some changes, and the government is open to some changes at committee. That is the reason why we want to listen to what people might have to say on this. Those are the types of encouraging words that members of the opposition like to hear for the simple reason that if the government is true to those sentiments, it means we have the opportunity to improve the legislation if it is deemed necessary.

We have some concerns with the legislation, but we are very supportive of the principle of it. We talk about individual cases. One member talked about a snow blower that disappeared out of a garage. Another member made reference to golf clubs. True to form, I have had two bicycles disappear from my garage over the years. There are many different crimes and some are less severe. Having a bicycle disappear is disappointing and disheartening. We feel violated in the sense that someone has walked into our garage in broad daylight and has taken our property.

An individual who works for me, Henry Celones, is a wonderful man. He just turned 70 and he does a lot of walking. One day early in the morning he was walking around the area of Sheppard Street and Jefferson Avenue when he was approached by two larger individuals. Now Henry is a small guy. He is no bigger than I am. These two people told him to hand over money or cigarettes and he felt quite intimidated by this. One of them started to reach toward him. It is amazing how Henry was able to respond and defend himself. Both men in their late twenties or early thirties were tall, but they were literally taken to the ground by Henry. We shared the story with a few others who said, “Good for Henry, he did the right thing by defending himself”. There are those different types of extremes where some crimes are petty, but other things could be life threatening. People respond in different ways.

We have talked about a store that is robbed, then a period of time elapses and the individual comes back. This is a person's livelihood. Should people not have the right to protect their property? The vast majority of Canadians would say absolutely, that people have the right to protect their property and livelihood. I do not think anyone would question that right.

There are issues related to what is reasonable and what is not reasonable. We have to look at situations on their individual merits and then make that determination. That is why, in good part, we have our court process.

Bill C-26 in essence complements our law enforcement agencies. It is not there to say that our police forces, whether it is RCMP or local policing units, are not doing their job. They are doing a wonderful job, in terms of protecting and making people feel safe and secure in our communities, given the resources they have.

When I was a bit younger, a number of years ago, and in university, one summer I was employed to canvass the community. I had to go door to door and ask about issues like community safety. I can remember that in older communities, people would say that they remembered when Ralph, an officer of the law, used to walk up and down the streets. He knew the individuals who were causing the problems and he was able to provide a sense of security.

Then we evolved away from the community policing that Canadians respected for many years. We started to get more individual police officers in police cars because of suburban growth and things of that nature. We have seen more of an investment in the number of officers, and in many communities today, we see that more policing is actually being supported through having more police officers and, ultimately, more community police officers

When I look at the future, I think we need to invest more into community policing, because I think that is the best way for us to enable citizens to be more involved in our communities. I would suggest that citizens do want to get involved. There are many examples of citizens' wanting to be involved. The bill today is just one of those examples.

I could talk about concerns raised in the area I represent. Out of the blue, out of goodness, a number of individuals said they wanted to form a group to walk up and down some of our streets in some of our communities. These are citizen action groups. There is nothing wrong with that. Individuals who take that kind of action should be applauded. They wear bright vests and are well identified. They are not vigilantes looking to cause issues or problems. They are just more concerned about our communities. They are watch groups. They all play a role.

What is really encouraging is to see our law enforcement officers supporting those groups. Part of that support is through providing education on what we can or cannot do. When we make a citizen's arrest, we do have to be careful. We have to size up the situation. Is it situation we really want to get directly involved in? Is there a better way? Maybe there might be a community police office nearby; maybe we would recognize a particular individual in a store, identify that person to the local police office and resolve it in that way, as opposed to making a citizen's arrest.

I can tell members the story of what happened to a lady in an office right beside my constituency office. She was robbed and stabbed in the neck by a young offender. She recognized the person who committed the crime. Instead of running out of the store and trying to administer a citizen's arrest, she stayed in the store and contacted the police. After a while the police got to the store; it took them a little while, but they got there. Because she was able to describe the person and even point out the person's house to the police, proper actions were taken. The youth was taken into custody. Hopefully we will see some justice with regard to that particular issue.

I would suggest that this person made a good decision in this instance. It was an appropriate thing to do. That is what people have to look at when they are faced with the necessity of taking action because their property is threatened. In this case it was not only property but, to a certain degree, her life as well. She was stabbed; she had to go to the hospital and have stitches. She had taken a personal assessment of the situation and had made the determination that the best way to deal with it was to contact the police.

However, sometimes that is not the way to go. Sometimes it is necessary for someone to—

[Matthew Dubé, NDP, Chambly—Borduas, QC]

I would like to thank the hon. member for his comments, which are very fair. If the issue the bill addresses is so complex, it is because there seem to be nuances in every case. Each case has a certain complexity. No two cases are identical. If every member of the House were given the opportunity to speak about this bill, we could hear hundreds and even thousands of different stories.

That is why it is very important to hear from as many people as possible within the specified time period. It is very important to hear from all the parties, to hear the comments of both academic legal experts and ordinary citizens, and to give the people we represent here in the House a chance to be heard.

In this way, Bill C-26 will enable us to live in a society where we are safe, and where we can protect ourselves but do not take the law into our own hands by deciding to act like police officers. The goal is to make our communities safe and we want to work together to achieve that goal.

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, the Lucky Moose case is interesting and shocking; however, I must admit that, quite frankly, this bill is the first opportunity I have had to really understand what happened and the problems that Mr. Chen had with the law. Mr. Chen lives in my colleague's riding of Trinity—Spadina. I think that the intentions of the bill that she introduced during the 40th Parliament are more or less identical to those found in Bill C-26, which we are discussing today.

I think there are two important factors to consider. We are talking about the power to make citizen's arrests, as in Mr. Chen's case, but I also think that we have to qualify that. Mr. Chen is the owner of a local business that does not necessarily have the money for insurance or security the way a big business such as McDonald's does.

The members of the NDP—and I am sure the members opposite will agree—believe that this is one very important aspect. We want to give ordinary citizens, particularly entrepreneurs who are at risk of becoming the victims of such crimes, the ability to defend themselves. That is very important. However, there is also another factor to consider, and that is the fact that we all live in a community, we all have the right to protect ourselves—at least we should have it—and we all have the right to help and protect each other.

The hypothetical example that came to mind as I read this bill and thought about it was that of seniors in my riding. There are many seniors in my riding and we know that they need help with many aspects of their daily lives. This is the perfect example because, if a person wants to help someone in need but is not certain of the provisions of the Criminal Code, it becomes very difficult and worrisome for that person to help. We should not have to worry when we find ourselves in a situation where we want to help someone in a reasonable manner, as mentioned in the bill. Once again, the word is “reasonable”, and it is used again and again; I will come back to this point a little later.

I think that is what is important. To go back to what the hon. members for St. John's East and Mount Royal said, we have to truly find a way to create clear legislation when we are talking about citizen's arrest, defence of property and self-defence. As the hon. member for Welland said—it seems we are all essentially in agreement—we want to have clear legislation to ensure that the defender acts swiftly in an urgent and critical situation. We have to avoid the situation where the person wonders what is in subsection 494.2 and how it will affect them. People should have the power to react.

That being said, I think we have been quite clear on this side of the House, that this has to be done within reason. I am not a legal expert, but it is common knowledge that the term “reasonable” is well defined in the legal field. It is everything considered reasonable by any reasonable person. That is usually what it means. Hon. members with law degrees will correct me if I am wrong or add clarification. With a bill like this one, we want to be certain that it not only includes these terms, but that they are understood by the public.

We have a perfect example when we look at the self-defence or defence of property provisions.

I would like to take this opportunity to quote the Supreme Court ruling in R. v. McIntosh, where Chief Justice Lamer said:

...ss. 34 and 35...are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.

This is very important because it shows us that even the Supreme Court of Canada justices are unable to fully understand the Criminal Code. Hence, it would certainly not be clear to an individual who is not necessarily a legal expert, especially, as I mentioned, if they were to find themselves in a dire or urgent situation where their life was potentially in danger.

What is being proposed is fairly straightforward and clear. This has been said many times and I will repeat it. We must allow experts, victims and lawyers to thoroughly examine this in committee. I know that most of my hon. colleagues who sit on the Standing Committee on Justice are lawyers or are quite knowledgeable about the law. Like my colleague from Welland, I am very pleased to see that our colleagues opposite feel the same way.

We also want to study this bill because we want to ensure that the bill is clear, not just so we have the right to defend ourselves, as I already mentioned, but also so that we do not get caught up in what I call the “Clint Eastwood phenomenon”, where we all become cowboys acting in self-defence. By defending ourselves, we end up causing more harm than good. We all assume the role of police officers. That would go against what we believe to be the purpose of this bill. Once again, we come back to the term “reasonable”. I believe this concept will be very important.

A few years ago, there were some cases of home invasions in Quebec—in Brossard and Montreal's West Island—that received a great deal of media coverage. In these highly documented and very revolting cases—which sometimes had tragic consequences—there was a great deal of reporting and commentary, by both the media and the public, as to the fact that it was not clear. We must be in a position to fully understand our rights and the restrictions in order not to have to think in such circumstances and to be able to defend ourselves. We also have to agree that, in some cases, we must use some judgment.

Let us take the hypothetical example of a couple. The man pushes the woman and she attacks him very violently, in a way that could be classified as too violent, excessive or unreasonable—to use that term again. However, we do not know the history between them.

We must really take the time to study the bill to ensure that in specific situations, such as ones where there is a known history, measures are in place to ensure that police officers and judges can take adequate and appropriate action.

The work we do in committee is very important. We are talking about experts. I am not a legal expert and many of my colleagues are not, either. That is where our responsibilities as parliamentarians become very important, both during debate in the House and in committee. We must make good use of the resources available to us. Those include not only legal experts, but also victims and people who have experienced serious situations, like Mr. Chen. Although this was a very high profile and surprising case, there must certainly be other circumstances that are similar.

I must talk about another aspect. I mentioned seniors, but there are other groups too.

I am not entirely familiar with Mr. Chen's case, so I will be careful about what I say. In his case, there was some racial profiling, as happens in other ethnic communities.

Mr. Chen belongs to an ethnic community and he was charged with kidnapping, when in reality, he was simply defending his business. Making the bill more specific gives police officers tools so that they will be less likely to judge or accuse people who act in this manner.

I find it unfortunate to have to raise the next point, but since my colleague from Welland already did, I would like to take the opportunity to do so now. Since the beginning of this parliamentary session, work in committee has been very rushed, as have our debates in the House of Commons. That is too bad, since we talk about the bills.

Let us take the example of Bill C-10, which has to do with the Criminal Code. There is no doubt that this is a very complex issue.

We should have been taking advantage of these opportunities, both in the House and in committee, and deferring to the expertise and wisdom of our colleagues. As we all know, the hon. member for Mount Royal is very knowledgeable in this area, as are many other members. We should be taking advantage of our colleague's knowledge in order to fine-tune this very complex matter. Indeed, the Criminal Code is very complex. It is full of nuances that we need to pay attention to. That is what we are looking for.

The NDP's position is very clear: we want to find the nuances. We want to defend victims, but we also want to ensure that the measures are reasonable in that regard. That is where the nuances become important.

In the clauses of the bill, some examples talk about timeframes. In the case of Mr. Chen, the time that passed between when the crime was committed and the citizen's arrest was too long.

We need to have some degree of flexibility. However, we must also ensure that if a business owner thinks he or she recognizes someone who committed a crime 10 years ago—someone who stole candy in a corner store, for instance—that individual cannot be arrested. Business owners are vital to the local economy and must be able to defend themselves.

As MPs, we all go through these kinds of situations. My colleague's riding of Welland is half urban and half rural. Earlier he talked about cuts to police services. We have to remember that rural areas are not the only areas with more limited services. My riding is considered to be located primarily in the suburbs, and we are experience the same thing. In some cases, different municipalities are even sharing police officers. The municipalities do not necessarily have the same resources, so they are sharing them in order to provide better services.

That happens in some cases, but in others, when something is considered more urgent, the police forces focus on that, and rightly so.

At other times, there is no chance to benefit from these advantages. I can think of a few examples, such as petty thefts committed in small, local businesses.

In those cases, the response time can be quite long, at least in my experience and in others' experiences. That is where the problem lies.

Given that our police officers work very hard and do not necessarily have the resources to do everything they would like to do, we all have to help each other.

I also mentioned that we have to be careful that we do not all become police officers. We have to consider other aspects, including students who work part-time at a store to pay for school.

If a thief enters the store, public pressure—if I can use that expression—should not make the clerk feel forced to intervene.

Although we have the right to make a citizen's arrest, we also have the right to protect ourselves and to not necessarily intervene in a potentially dangerous situation.

To come back to this example, pressure might come from colleagues who feel pressured by the boss. The legislation should not be drafted in a way that a person feels pressured by his or her boss, a store owner for example, to intervene at all costs. That would not be appropriate.

As I was saying earlier, this would cause more harm than good in some circumstances. It is not worth risking one's life for a petty theft. Everyone agrees that life is priceless.

What is more, we must not lose sight of the fact that many situations are hypothetical. That is the problem. Not all of us have experienced what Mr. Chen went through, but the important thing is peace of mind, as I was saying earlier. We all share the desire to live free from such concerns in our communities.

I want to mention the Supreme Court's decision once again. There was also a problem in that case. However, cases involving a citizen's arrest are usually much more straightforward. If someone is caught in the act of stealing from a corner store, the case is fairly black and white. The person was apprehended while actually committing a crime.

Cases involving self-defence are harder to judge. Earlier, I mentioned cases in which we are less aware of the previous history.

The way in which the incident is reported to the police is also important. To use an example that is something of a cliché, a person who is in a dangerous neighbourhood or an area that is less safe gets attacked. That person would then exercise his right to self-defence.

He may defend himself and then run away. He calls the police because, clearly, he would not wait there with the attacker against whom he just defended himself. Clearly, he had to run away and think about his own safety.

Later, depending on how the facts are reported, the police will have to use a certain amount of judgment, and they are very qualified to do just that.

However, our responsibility as parliamentarians is to provide the tools need by both the police and judges—when the time comes—to exercise that judgment.

It is thus very important to work together to ensure that all the nuances are clearly understood. Together, we can come up with a very good bill.

[Malcolm Allen, NDP, Welland, ON]

Mr. Speaker, I am pleased to join the debate on Bill C-26, albeit not as eloquently perhaps as my colleagues before me since I am not a lawyer. I know they have billable hours, but I am not sure if they have billable words. Nonetheless, it has been very insightful to listen to folks talk about what is and is not codified in law, subsection this and that. However, for lay folks living in communities, they do and have seen the reality.

Fortunately, my family has not gone through the trauma of someone breaking into our home. Someone did make off with my brand new snow blower last year, but it was in the shed. They did not break into my house, just my shed, but twice they broke in and made off with the snow blower and other sundry items. This did not affect me or my family personally as we were not there. I am sure the dogs barked like crazy, but they were in the house. The snow blower is out there somewhere in this country and someone is using it quite happily I guess.

Although I was joking earlier about billable hours and billable words, clearly there is a delicate balance of these difficult aspects. We are trying to balance the needs of those folks who are victimized by someone breaking into their home or assaulting them, with what my colleagues term, reasonableness. As my colleague for Edmonton—St. Albert said, eventually the issue would be determined by fact, which then becomes making a determination.

Clearly, there are difficulties in the present law, such as in the R. v. McIntosh case. When the rendered judgment came back to us, the lawyers said it was more muddied than before. What people thought may have been a clarification, for the legal profession, it became a muddied place.

If it is a muddied place for those folks who work with the Criminal Code on a daily basis, whether they be lawyers or judges, what is it for the rest of us who do not study the law? For those of us who may be trying to make a citizen's arrest or something in self-defence, how do we determine what is a reasonable or unreasonable act?

This reminds me of the old adage: if one can flee, then one should flee. It there is an opportunity to get away, one should, in some cases, rather than fight. We need to take that into consideration.

I am not for a moment suggesting that this amendment to change the legislation tries to suggest that somehow one should fight more often than flee. I simply raised this so that folks would keep it in mind when they find themselves in a position where they are present during a break and enter or a violent act is committed against them. There are times when if one can get away, one should just simply get away and call the appropriate authorities. Unfortunately, there are moments in life when that is not going to be the case and one has to take into consideration how that can happen.

There are instances dating back to the 1100s in English common law where a citizen's arrest was allowed. Therefore, this is not a new practice. The legislation being brought forward by the government is certainly not a new practice. It seems to be an attempt to clarify the waters that we presently have with the present act or code as to what exactly it is.

The member for Trinity—Spadina in the last Parliament brought forward somewhat similar legislation, albeit not quite the same. It talked about the incident in her riding with Mr. David Chen. Many of us will remember that he had arrested someone who had burglarized his store on multiple occasions. Mr. Chen made a citizen's arrest and then was charged himself for forcible confinement, kidnapping and all manner of charges. Fortunately, most of those charges were dropped and eventually he was acquitted.

We do not want to see another Mr. Chen or Ms. Chen somewhere down the road going through that experience. All Mr. Chen wanted to do was protect his property and make what turned out to be a reasonable citizen's arrest. The perpetrator eventually pleaded guilty to stealing from Mr. Chen and spent 30 days in jail. Clearly, Mr. Chen, in a reasonable way, had tried to stop the person who had been victimizing his property by stealing from him on numerous occasions.

It seems the gentleman who was stealing from Mr. Chen felt like he was a regular customer, except he never paid for anything. He simply would take what he needed. I guess he thought he had an account and would pay it off later, but clearly, that was not true.

How do we balance those things in the legislation that comes before us is the trick.

I am heartened by what I heard from the government benches, that those members want to take the time to listen to experts, to victims and folks who have great expertise in this area. They want to sit down and find a balanced law that will defend the rights of both sides. There are rights on both sides of this issue. There are the rights of those who have taken reasonable grounds to protect property and persons, themselves and their family, and there are the rights of the accused. Ultimately, making a citizen's arrest is simply allowing one to say that a person is accused of something. It is for the courts to decide, not those who make the citizen's arrest, whether someone is guilty of a particular offence.

We have to strike a balance. We cannot have more Mr. Chens where a regular law-abiding citizen in the due course of his business is victimized and then finds himself in a predicament where he has to hire a lawyer and go to all that expense, as well as the trauma of going to trial, for doing what he thought was a reasonable thing.

It strikes me that when the government is saying it intends to do something, I am not too sure why we did not do it in some of the other aspects. Bill C-10 is a prime example. The member for Mount Royal brought forward some amendments to Bill C-10 in committee. The government did not deem them to be worthy enough or was not interested enough at the time, and said no thanks, which is the government's right to do. Unfortunately, the minister brought ostensibly the same amendments forward and was ruled out of order because it was too late because the government had cut off the time available to make any reasonable amendments.

If the government believes this is worthy of study, and it is, I would suggest that when we work on big pieces of legislation such as Bill C-10, that they are also worthy of the same type of consideration, analysis and due process. We should go through them item by item.

Here we have one single solitary bill, Bill C-26, that speaks to one aspect of the law, not multiple parts. It speaks to citizen's arrest and what a reasonable person is expected to do.

I know it is hard for some of us to define what is a reasonable person. My colleagues, the member for St. John's East, the member for Edmonton--St. Albert, and the member for Mount Royal,, have engaged in these things in their previous careers. Lawyers and judges of this land find it hard to figure out what a reasonable person ought to be allowed to do, but by the right of sitting on the bench or being called to the bar, we give them that right and then we live by their decision. That is how we have the rule of law.

Ultimately it is about ensuring we find a balance. It gets to the very point of why we need to do it.

We have seen things happen in the past that some of us would say were egregious against those who we see as the victim. People have been assaulted, or mugged, or their houses have been broken into while they were sleeping, as we pointed out in a couple of examples. How do we find a way to say to people that they can protect their property and family if someone comes through the door of their house or steals from them? How do we determine how to do that? That is the balance ultimately all members should try to define.

Members on either side of the House do not want to victimize a victim. That is the essence of what we are saying to Canadians. We understand they have been victimized once already and because of a law we have the powers to change and enact, we do not want to victimize people once more. That is a fair thing to want to achieve.

As my colleague from St. John's East said earlier, the law has been there for over 100 years. It has been debated and decisions have been rendered to help build a body of decisions which the courts and the law profession can look to, to indicate when something is reasonable or not. As the government quite rightly has pointed out, it has been skewed in a few instances where folks are uncertain. If the courts are uncertain, how is the average person who is not in the legal profession supposed to understand what he or she can or cannot do?

If someone came through the door of our house, in a moment of an adrenalin rush we would not necessarily think about what the courts would say, or what the law says, or what section 494(1) says about when someone breaks in to a house. Folks know how to act in a responsible way to deter a person or persons from entering their home and they need to do the things to protect their children, their loved ones and their property. In my case I would have a couple of big dogs outside and I would lock the door. That might be a reasonable enough deterrent to discourage a teenager from breaking in because he or she would not want to be bitten by the dogs.

It may take a physical intervention by the person or persons who would want to restrain the offender. Most of us understand how to act in that moment of what could be described as panic, in a reasonable and responsible way. Ultimately, that is what we are trying to confer with the legislation, but that is why on this side of the House, as my colleague from St. John's East said earlier, we want to send the bill to committee and government members want to do likewise.

At committee we can study and have folks speak to the bill so that when we eventually pass the bill, victims who act, as is their right, as citizens to make an arrest or defend themselves in a legal way, will know that they will not face being charged. That is the balance we are trying to find. I welcome the government taking that opportunity with us to find that balance, because we do not want to have the waters just as muddied as they are now. Even the judicial branch is saying it is not helpful if it is muddied. Heaven knows, if the judicial branch is saying it has difficulties with it, then what are we to make of that. Clearly, as we go down that road, it is important to work to get the legislation right.

I would hope my colleagues on the justice committee would take their time and make sure we actually get it right. In haste, we can get it wrong. We will be doing a disservice to folks in the broader community if we rush it through simply because we think we have it right.

As my friend and colleague from Edmonton—St. Albert said, this is a balance. It is always the most difficult thing to do in life. We all remember when we were young, sitting on a teeter-totter with someone we hoped was of about equal weight or at least who did not get off the teeter-totter before we did, letting us slam to the ground.

One would hope we could find that scale of balance, so that it does not tip in one direction or the other. I know the government wants to find the balance between the rights of those who find themselves in those precarious situations when they are under threat of harm or threat of their personal property being taken from them, and they want to take that opportunity, as is their right under the law even at present, to protect themselves, their loved ones and their property.

Our party's critic has said that we welcome the opportunity to send the bill to committee after second reading, because we believe we can help the government make this good legislation. The Prime Minister has said on numerous occasions, “If you have good ideas, we welcome them”. With this bill, we have some good ideas.

What I am hearing from the government side this morning is that this may be a time when, I would not go so far as to say we would join hands, we find ourselves singing from the same hymn book on this legislation. We will have some good suggestions and we hope the government will be open to those good suggestions. We could eventually find that this is a piece of legislation which members of the House have worked on together and which the House can then pass. We could say to the folks that we worked on this legislation together for all of them because it was important to them.

It may have taken a bit of time for us to get there, as quite often happens. Sometimes we have to build a body of evidence in law and see decisions to finally realize that what we thought was working reasonably well no longer is working. I think the government recognizes that we have come to that point, and I congratulate it for recognizing that.

My colleagues on the justice committee will be pleased with what we heard from the government this morning, that it welcomes the debate, and it welcomes bringing in experts to make sure that we find the balance that all of us are seeking.

This can be a good piece of legislation if we take the time to study it, if we take the opportunity to listen to each other. We need to build a piece of legislation that truly meets the balance of our broader society and the citizens across this country.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, I am not sure that I fully understood that question. What I said in my comments was that the bill before the House, Bill C-26, clarifies the existing provisions, specifically sections 34 to 42, which create a rather complex and convoluted set of circumstances with respect to when reasonableness in defence of property would apply, depending on whether it is real property or personal property. This bill aims to, and I think succeeds in that aim, clarify when the defences of property and person would apply.

The member made some reference to Bill C-10 that I did not quite understand. However, certainly this bill fits in the entire umbrella philosophy between this bill and Bill C-10 in that the government continues to stand up for the rights of victims. This bill fits into that umbrella because when victims of crime take measures to defend themselves or to defend their property, as long as they act reasonably they ought to have the protection of the law.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I thank the member for Edmonton—St. Albert for his presentation and clarifications. Reasonably discussing Bill C-26 presently before the House is a very good exercise and I really appreciated his presentation.

I understood from his presentation that he has a legal background. He mentioned that just for this special provision in this bill the Criminal Code is very complicated and complex. I want to compare and contrast that with Bill C-10 that we just passed at report stage in the House, which contains many provisions of the Criminal Code. Why did we not have the same approach in breaking down Bill C-10 as we are doing right now with Bill C-26?

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, earlier, my colleague said that we would support this bill at second reading so it can be studied in committee. He also said that we had to ensure that we did not encourage vigilante justice or excessive force.

Does my colleague think that we should perhaps modify the wording of Bill C-26 to ensure that it does not open the doors to using force to protect oneself against theft or to having people take the law into their own hands and perhaps misinterpret this law, which could lead to things we would not want?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, it is an honour for me to rise and add my contribution to the debate regarding Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Bill C-26 will clarify for Canadians how they may respond to immediate threats to their property or to any person and the criminal acts necessitating urgent arrest situations.

Many members of the House will be familiar with well-publicized stories about Canadians being charged with crimes arising from situations where they were defending themselves, their family or their property. We can all imagine cases where people charged with a violent offence would claim that they had used violence to defend themselves without that necessarily being the true story. It is also likely that, from time to time, someone would use a minor threat or insult as a pretext to launching a violent attack against another.

We want to ensure that our laws do not allow for such cases, because if this were so, many innocent Canadians could be victimized with no repercussions against the wrongdoer.

On the other hand, the law must also provide greater clarity for force that is authorized and must set out the conditions which the aforementioned defensive action is acceptable. It is these very conditions that distinguish between revenge and genuine defence and between reasonable and unreasonable conduct.

Bill C-26 would extend the power of citizen's arrest in relation to property offences and would clarify the laws of self-defence and defence of property. These reforms are first and foremost about ensuring that Canadians understand the law in this area and that they are able to defend their vital interests and apprehend wrongdoers.

They are not required to stand by and watch their property be taken or destroyed or a stranger get assaulted. When the police are not around, Canadians need not be helpless. They can help themselves and their fellow citizens and, where necessary, assist in bringing wrongdoers to justice.

The reforms are also intended to assist police officers and prosecutors who exercise their discretion on a daily basis in respect to the charging and prosecuting, so as to minimize criminal charges being laid in situations where a defence is clearly available. Clarity in the law will hopefully weed out the cases of reasonable action, which need not result in criminal charges at all, and distinguish them from cases where there are discrepancies in the accounts given by witnesses, or where the threat posed was small, relative to the harm or injury caused. or other cases where there is some uncertainty about the reasonableness of the actions that were taken.

Finally, clarity in the law will help speed up trial process when charges are genuinely justified. It will also reduce unnecessary appeals and save precious time for our admittedly overworked court system.

How will Bill C-26 accomplish all of this?

First, it makes a modest extension of the existing power of citizen's arrest in the cases of property crime. Right now people can only arrest another if they find the person committing an act. This means that if there is no opportunity to arrest at the very moment, say for instance because the thief is faster and runs away, but there is an opportunity to arrest at some reasonable time afterwards, the law currently says that the arrest is unlawful. One literally has to catch the person in the act under the current law. This applies to people who try to bring to justice people who have committed an offence on or in relation to their property and stand to be charged and potentially convicted of a serious Criminal Code offence that they may have committed in the course of apprehending the suspect under those circumstances.

I hope all members can agree, and it sounds like all members do agree, that allowing people to arrest within a reasonable time of having witnessed a crime makes good sense. We do not want to criminalize otherwise law-abiding citizens and business owners who are trying to protect their property from thieves and mischief-makers. We know that situations occur where the person observed to have committed an offence returns to the scene of the crime or is seen elsewhere and can be easily identified. Arrest should also be possible in these limited circumstances.

Let us be clear that this proposal is a modest extension of the existing law. However, I know some Canadians are concerned that the proposed expansion of citizen's arrest powers will encourage vigilantism, but I do not agree.

The law of citizen's arrest already contains a very important safeguard against the arrester using the laws for improper purposes. The safeguard is a requirement in 494(3) of the Criminal Code, which states:

Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

This requirement ensures that a citizen's arrest becomes a matter of police attention as soon as is possible.

A new safeguard against vigilantism is included in this legislation, Bill C-26, in relation to the expanded powers of citizen's arrest. A person would now be able to arrest someone who they have witnessed committing an offence in relation to property within a “reasonable period of time” after the offence was committed.

However, where a person seeks to use this expanded power as a precondition, he or she must first determine whether it is feasible for a peace officer to make the arrest instead. There would now a double safety net against abuse of arrests where the arrest happens at some point in time after the original offence was witnessed.

The citizen arresters must turn their mind to the possibility of the police making the arrest. If they determine that under the circumstances that is not feasible, once they have made the arrest they must contact the police as quickly as is practicable and turn the suspect over.

Of course, the overarching rules with respect to using force during an arrest continue to apply. These rules ensure that a person making an arrest can use force but any such force must be reasonable in the circumstances. If the suspect willingly submits to the arrest, then no force is necessary. If he or she resists, then some force may be called for but the force must still be reasonable under the circumstances.

Excessive force, is, by definition, not reasonable. Deadly force, whether used by the police or by the citizen, can only be justified where human life is at risk. These rules are clearly set down in section 25 of the Criminal Code. Bill C-26 makes a reference to section 25 so that it is clear to everyone which rules apply.

This legislation would not increase the potential for vigilantism. The government discourages vigilantism. Bill C-26 is designed to allow citizens to protect themselves and their property only when police are not able to do that for them. It strikes a reasonable balance.

Bill C-26 would do more than increase the period of time in which a citizen's arrest can be made. A citizen's arrest situations often overlap with the defence of property, so Bill C-26 would ensure that the law governing the defence of property is clear and effective.

Currently, the defence of property is set out over five provisions that make many distinctions between slightly different circumstances, such as where the property in question is an object or land.

There is no need for different variations covering different cases when they are all based on the same general principle, that people should not be held responsible for a criminal offence if they act reasonably in an effort to protect property in their possession from being taken, damaged, destroyed or trespassed upon.

Bill C-26 would replace all of the existing rules with a single general defence that is capable of being applied to any type of property defence situation.

I must admit that I read the existing provisions just prior to standing up in the House and they are complicated and complex. I had a difficult time applying each rule to a specific fact situation. This is why Bill C-26 clarifies the rules with respect to defence of property. This is precisely the sort of simplification that will help the police gather evidence and make decisions or recommendations about whether criminal charges are appropriate. It is also the kind of simplification that Canadians need.

Property disputes often arise when someone is doing something unlawful, such as stealing a car or breaking into a house, but the defence can also arise in cases of genuine property disputes involving people who are all behaving lawfully but simply disagree about which of them is entitled to a particular item of property and what exactly they are allowed to do or not do with it.

For instance, disputes over access to a right-of-way or over where the a boundary is between two houses can and do lead to violence, just as conflict between a property owner and a thief or a criminal intruder can. The defence of property can apply to all these situations.

For that reason, it is inescapable that matters of property law must inform the criminal defence of property. That is why the defence of property is premised on the concept of “peaceable possession” of property. This concept has been interpreted by the courts to mean that the possession of property must not be seriously challenged by others. The seriousness of the challenge is assessed by looking to whether the challenge to the possession is likely to result in a breach of the peace. Of course, anyone who actually possesses property in circumstances that would involve a breach of the peace, such as protestors occupying a government building, should not be entitled to use force to defend their possession of that property in that circumstance.

Another aspect of the law that Canadians should know is that our courts have consistently held that intentionally causing death in defence of property alone, as opposed to in the defence of a person, is never reasonable. This principle is founded on the greater value to our society and to the value that it accords to human life over the value accorded to property. I am sure we can all agree with this reasonable approach. Nothing in this approach limits the availability of self-defence, which is the other defence that would be simplified by Bill C-26.

Any situation that creates a reasonable perception of a threat to a person, and this would clearly include a home invasion, or could even include a carjacking and other types of situations, gives rise to the ability to defend the person being threatened. Deadly force is permitted in defence of the person but, of course, as always, it must be a reasonable response given all of the circumstances.

The proposed new defences in Bill C-26 would capture the essence of the current law but in a much simpler way. The new laws would clearly and simply set out the conditions for a defensive action.

First, there must be a reasonable perception of a threat to property that someone possesses. Threats to property can involve threats to damage or destroy the property or to somehow render it inoperative. It can also include threats to enter certain types of property without lawful position, such as dwellings or other buildings or even a vehicle.

It is important to note that people can be mistaken about the threat that they perceive. What matters in these cases is whether the mistake was one a reasonable person could also make in identical circumstances. We cannot take away a defence where a person behaved reasonably and perceived the situation in a reasonable manner, even if the person were factually mistaken.

However, on the other side, if people make an unreasonable mistake, that is to say, if they fall below the standard of reasonable action and perception, they would lose the defence.

My friend from Vancouver Kingsway talked about the importance of the concept of reasonableness and the reasonable man in both civil and criminal law. I agree with his interpretation and its importance to both these situations and to this legislation.

The second element of the defence is that the person must genuinely act for a defensive purpose. Defence of property can never be a pretext for revenge. If the person does not really care about the property but to use the other person's threat as an excuse to assault him or her, the law would not justify that conduct.

Third, whatever actions are taken for that defensive purpose, they must be actions that a reasonable person in the same circumstances could also have contemplated and taken.

There is no way to describe what reasonable actions are because what is reasonable to defend a particular item of property against a particular type of threat is likely to be different from actions that could be reasonable to defend other property from a more or less serious type of threat. That is a very long sentence to say that these situations are all fact specific. It all comes down to the circumstances of each case.

These conditions are easy for Canadians to understand. They should also be relatively easy for the police to assess and juries as well, if charges are appropriate. Canadians will understand that they must genuinely be acting to protect property and not acting to take revenge against someone. They should also understand they must conduct themselves within socially acceptable standards within which a range of conduct is likely to be reasonable. As long as Canadians bring themselves within this range, they will be justified in using the force that they need to in order to keep themselves, their families and their homes safe.

Bill C-26 would also bring greater clarity and simplicity to the defence of self-defence. The proposed new defence would also apply in cases where a person uses force to protect a third person.

Today, the Criminal Code says that a person can only defend another person who is “under his protection”. The courts have given this phrase different meanings. It is not as clear as it should be that citizens can defend not just their children or their elderly parents, but they can also defend their fellow Canadians, even strangers, when they come upon them in a situation that presents a grave threat. The bill would clear up this aspect of the law, and appropriately so.

However, the reforms to self-defence would do more than just that. They would simplify the law in other ways and bring a variety of different rules into one single rule that would be applied no matter what the circumstances. The basic elements of self-defence mirror those of defence of property but they are even simpler because complicated property concepts are not involved.

Right now, four separate sections of the Criminal Code set out various versions of the defence of the person, each of which applies in a slightly different set of circumstances. The law simply is way too complicated and confusing. The fact is that such complexity is unnecessary because the basic elements of the defence are relatively straightforward. Bill C-26 seeks to reduce the defence to its core elements.

The conditions for defence of the person under Bill C-26 can be stated relatively briefly. First, the person reasonably believes that he or she or another person is being threatened with force. Second, the person acts for the purpose of defending himself or herself or the other person from that force. Third, the person's actions are reasonable in the circumstances.

As with the defence of property, mistakes can be made by the defending person as long as those mistakes are reasonable. The defending person must genuinely be acting with a defensive purpose and must not be using the threat as a pretext to engage in violence that he or she would otherwise desire to engage in. The reasonableness of the actions taken in defence of the person must be assessed in relation to all of the relevant facts and circumstances.

Bill C-26 proposes a list of factors to help guide this determination. These factors frequently arise in the self-defence context. Factors on this list include: whether any party had a weapon; the nature of the threat the person was facing; whether the individuals involved had a pre-existing relationship, especially if it is a relationship that involved violence or threats; and the proportionality between the threat and the response will be a critical factor in determining whether under the circumstances the defence was reasonable.

These factors are drawn from real cases and from the courts' interpretation of the current law. The purpose behind these provisions is to signal to courts, as well as to police and to prosecutors, that the essence of self-defence is not changing. Reasonable actions under the current law should continue to be reasonable under the proposed new law.

These are the sorts of determinations our courts make regularly. However, by simplifying the law, by clearing away the clutter and putting in the Criminal Code the crucial questions and crucial factors, Bill C-26 would clear the path for them to get straight to the important questions.

The bill would also make it easier for police at the scene of a crime to apply the law before making charging decisions. Bringing clarity to the law will mean that legitimate self-defence actions lead police and prosecutors toward the decision that laying a charge would not be in the interests of justice. In this way, the bill continues to stand up for victims.

The bill is a delicate balance but, as previous speakers have said, this is the appropriate balance to balance the rights of individuals versus the rights of people who cause threat to those individuals or to their property.

[Don Davies, NDP, Vancouver Kingsway, BC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Kerry-Lynne Findlay, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, I am pleased to speak today to Bill C-26, An Act to amend the Criminal Code to address the issues of citizen's arrest and the defences of property and persons.

Bill C-26 represents a responsible expansion of the citizen's power of arrest as well as a simplification of the self-defence and defence of property provisions in the Criminal Code. These reforms are balanced and necessary. Today, I would like to address some of the details of the law of citizen's arrest.

Many members will know the background to the citizen's arrest reforms proposed in the bill. For members who perhaps are not as familiar with this issue, let me begin with a description of what arrest actually is. An arrest consists of the actual seizure or touching of a person's body with a view to detention. Uttering the words, “you are under arrest” can constitute an arrest if the person being arrested submits to the request.

Arrest powers are found in a range of federal and provincial laws. The Criminal Code provides for several distinct arrest powers. Currently, under section 495, the police officers are empowered to arrest, without a warrant, any person who they find committing a criminal offence. Police officers may also arrest without a warrant any person who they reasonably believe has committed or is about to commit an indictable offence.

For an arrest to be lawful, the arresting officer must personally believe that he or she possess the required grounds to arrest and those grounds must be objectively reasonable. This means that a reasonable person standing in the shoes of the officer would believe that there are reasonable and probable grounds to make an arrest, which depends upon reasonable and probable grounds to believe that an offence has been committed.

In comparison to the power of arrest that every police officer has, section 494 of the Criminal Code also authorizes private citizens to arrest, again without a warrant, those found committing indictable offences, those being pursued by others who have authority to arrest and those found committing criminal offences in relation to their property. In all cases of a citizen's arrest, there is a legal duty on the citizen making the arrest, under section 494, to deliver an arrested person to the police forthwith. This term “forthwith” basically means as soon as reasonably practicable in all the circumstances.

As members can see, there is a clear distinction between the power of arrest for police officers and the power given to citizens. There are good reasons for these differences, many of which are obvious. Police officers are professionally responsible for enforcing the criminal law. They are trained in the use of force, including how not to get hurt themselves and how to minimize any injuries that may be inflicted on others, as well as being trained in the legal requirements for lawful arrest. As well, police officers are subject to oversight so that in cases where things go wrong, a citizen who may have been unlawfully assaulted can seek redress.

Private citizens are not subject to any of these conditions but, nonetheless, the law does recognize that sometimes only the private citizen is in a position to act in the face of criminality. The law would not be doing its job of promoting public peace if it left the citizen with no choice but to stand and watch as criminals committed their crime. No, the law must and does empower the citizen, in limited circumstances, to take part in the administration of justice where necessary.

In this regard, the particular power of citizen's arrest we are concerned with is the power to arrest people found committing an offence on or in relation to property. As I have already mentioned, the power of arrest for the private citizen arises where the citizen finds someone committing an offence on or in relation to property. In other words, the person must be found actually in the process of committing the offence for a private arrest to be lawful. This is a limited power and the law does not permit an arrest even a short while after the offence was detected.

I think we can all appreciate that the limitation of “found committing” can produce unjust results in certain situations. Canadians do not agree with criminal charges against a citizen who tries to arrest someone a short while after he or she was found committing a crime, for instance where the person returns to the scene and is readily identified as the person who stole property a few hours before.

Bill C-26 therefore proposes a straightforward reform to extend the period of time allowed for making a citizen's arrest. Specifically, the bill would expand subsection 494(2) of the Criminal Code of Canada to permit property owners, or persons authorized by them, to arrest a person, not just when found committing a criminal offence on or in relation to property but also within a reasonable time after the offence is committed.

Many questions have been asked about what constitutes a reasonable period of time for making an arrest. It is not feasible to impose a rigid time limit on an arrest, such as an authority to arrest within four hours of an offence. A rigid time limit would likely produce unfairness in some cases, just as the existing rule that limits arrest at the time of the commission of the crime does.

It is also not possible to define or describe what constitutes a reasonable period of time. Whether an arrest was or was not made in a reasonable period of time must be determined on a case-by-case basis based on all the relevant facts and circumstances. Facts and circumstances that are likely to be relevant to such a determination include the length of delay, the reasons for the delay and the conduct of the suspect and the arrester, among others.

The proposed reforms also add an additional requirement where the arrest is made after the crime has been committed. This requirement is that the arrest will only be lawful if the person making the arrest reasonably believes it is not feasible for police officers to make the arrest themselves. This is a new safeguard that Bill C-26 would bring into law to ensure the law would not encourage or promote vigilantism. This requirement would ensure that citizens would only use this expanded power of arrest in cases of urgency and only after they turned their minds to the question of whether polices officers would be able to make the arrest.

It should not be forgotten that this new safeguard complements other safeguards already in the law of citizen's arrest. For instance, as I mentioned earlier, there is a duty upon any citizen who arrests someone to deliver that person as soon as possible to the police. This is another safeguard that ensures citizens are not in a position to apprehend a possible criminal and keep him or her confined for an extended period of time. Once apprehended, the suspect must be turned over to police. Failure to do so puts the lawfulness of the arrest in jeopardy and leaves the arresting person subject to prosecution.

These requirements are reasonable and appropriately balance the right of the citizen to take steps to prevent crime and apprehend criminals against the overarching objective of ensuring that it is the police who deal with suspects. The police have a duty to preserve and maintain the public peace and must remain our first and foremost criminal law enforcement body. This new safeguard, especially when coupled with existing ones, would ensure that they will so remain.

Finally, for even greater certainty, the reforms also specify that the existing provisions in relation to the use of force and effecting an arrest apply to citizen's arrest. These rules are set out in section 25 of the Criminal Code and apply to all actions taken by police officers and private citizens where they are acting for the purpose of administering or enforcing the law. According to section 25 of the Criminal Code, an individual who makes a citizen's arrest is “if he acts on reasonable grounds, justified in...using as much force as is necessary for that purpose”.

However, I would note that a person making an arrest will never be justified in using force that is intended or is likely to cause death or grievous bodily harm unless he or she believes on reasonable grounds that it is necessary for self-preservation or to protect anyone under his or her protection from death or grievous bodily harm. This is the same rule that applies to the police. Its benefits and objectives are clear and obvious.

These are important reforms that will give Canadians confidence that when they act to arrest someone they have found committing an offence, the law will view them as law enforcers in an emergency situation and not as criminals.

However, Bill C-26 would do more than this. It would also simplify the law relating to defence of property and defence of persons, which are in dire need of clarification. Law societies, bar associations and judges have been calling for such reforms for decades. It is not that the law does not give Canadians the power they need to defend themselves. Rather the problem is that the way the law is written is so confusing that it makes it very difficult to understand what is and is not permitted.

However, there are additional consequences. Once they are raised in court, confusing laws require prosecutors and defence counsel to devote energy and arguments about the proper interpretation and they cause judges difficulty in explaining to juries how they should govern their decision making. The end result is lengthier trials, unnecessary appeals and additional cost to the system.

In a nutshell, the legislation seeks to simplify both defences so Canadians can understand the rules and govern their ability to defend themselves, their families and their property. Simpler laws would also provide better guidance to police officers who are called to the scene of a crime. They will be better able to make appropriate decisions about whether charges are or are not warranted.

The proposed new defences would boil down to a few simple considerations. In the case of defence of the person, did the defenders reasonably perceive that they were or that another person was being threatened with force or were they actually being assaulted?

In the case of defence of property, did the defenders reasonably perceive that property they peaceably possessed was or was about to be interfered with, such as by someone taking, damaging, destroying or entering property without legal entitlement?

In both types of cases, did the defenders respond for the purpose of protecting themselves or another person from force or for the purpose of protecting the property in question from interference?

Finally, in both types of cases, did the defender act reasonably in the circumstances?

These are the key components for defences which allow a person in emergency situations to engage in conduct that would otherwise be criminal. Just as it is not possible to provide a definition or an answer in the abstract to the question of what is a reasonable period of time for making an arrest, it is also not possible to set out what actions are reasonable in self-defence or in defence of property.

What is reasonable depends entirely on the circumstances and the reasonable perceptions of the person faced with the threat. There are many relevant considerations; in fact, a list of factors that may be considered is provided in relation to self-defence and defence of another. This list includes a range of factors which frequently arise in self-defence cases, such as the nature of the threat, the presence of weapons, and any pre-existing relationship between the parties, and the proportionality between the threat and the defence of response.

In the case of defence of property, the nature of the threat to the property is likely to be the most important consideration. If someone is threatening to burn down their neighbour's house, such a threat would likely permit a greater defensive response than if the threat were merely to place an unwanted sticker on a neighbour's car.

I trust that it is now apparent why the reasonableness of the defensive conduct can only be assessed in relation to all the facts.

I would just like to address a few small points that relate to the defence of property. It is crucial to understand the limits of the legal ability to use force to defend property. This is not a defence that allows people to use force to protect or assert ownership rights.

Ownership rights, and many other legal interests in property, are matters of property law, which is a matter of provincial responsibility. Disputes over these types of issues must be decided by the civil courts if the parties cannot agree among themselves.

The defence of property only applies where there are real time threats to physical possession of property or threats to the state of property in someone's possession, such as a threat to destroy or render property useless and ineffective. That is because in emergency situations there is no recourse to the courts. If someone steals or destroys another's belongings, they are gone before the civil courts can assist.

The overarching function of the criminal law is to promote public order and public peace. The law therefore cannot sanction the use of force to protect property in any circumstances other than where a present lawful situation is threatened in a manner such that seeking civil recourse at some later date creates the risk of a permanent deprivation or loss of the property in question.

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

There is one last matter that I must address in relation to the defence of property. The new law of defence of property, like the current law, does not put any express limits on what can be done to defend property; however, I would like to note for members that our criminal courts have unequivocally rejected the use of intentional deadly force in defence of property alone as unreasonable.

In the case of self-defence or defence of another, these defences allow for the use of intentional deadly force, depending on the circumstances. This is because it is a life that is being threatened. It is only reasonable for individuals who face a serious threat from another person to protect themselves. If the nature of the threat is such that it is reasonable to counter that threat with deadly force, that may be acceptable, depending on the circumstances.

Threats to property are not the same. Human life always outweighs our interest in property. So when the situation is one where damage or destruction of property must be balanced against the determination of human life, the property interest must give way to the greater interest in human life.

Some conflicts which appear on the surface to involve threats to property only do in fact also pose a risk to human life. For instance, individuals whose homes are invaded are likely to feel that their property is being interfered with and on that basis does have the right to use force to evict the trespasser; however, this does not mean that a homeowner is without recourse and must submit to anything the trespasser intends. Rather the homeowner is also likely to feel personally threatened by the presence of the trespasser in such circumstances.

In any case, where a person has succeeded in entering a home without permission, especially if it is at night, that presents a situation in which any reasonable individuals would perceive danger to themselves and other occupants. Where such a threat is reasonably perceived, self-defence and defence of others becomes available and indeed may be the operative defence if deadly force is ultimately used.

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 no other reasonable options.

I urge all members to support this important legislation.

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

Madam Speaker, I appreciate the speech by the hon. member for Mount Royal, particularly for bringing us back to the need for broader Criminal Code reform, particularly to look at bringing back the Law Reform Commission of Canada.

We have a situation where we generally agree with the objects of the bill, as I know the hon. member for Mount Royal and I did back in June when we looked at the megatrials bill. The efforts made to improve that bill so that it would work were gavelled out of order and we went right through to passing a bill with no changes.

We have just experienced the same thing with Bill C-10. The efforts made to improve that bill in the government's interest and toward the goals that it put forward were rushed through and, unfortunately, the amendments put forward yesterday by the Minister of Public Safety, which were so closely parallelled with what the hon. member for Mount Royal had put forth before, were ruled out of order, and appropriately, by the Speaker.

What chance do we have of his very sensible approaches being taken seriously at committee? Does he have any indication that we will have a different atmosphere around the committee with respect to Bill C-26 from what we have had with previous bills in this session?