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

[Irwin Cotler, Liberal, Mount Royal, QC]

Madam Speaker, I am pleased to rise to participate in this debate on Bill C-26, the citizen's arrest and self-defence act. While I may not agree with much of the government's crime and punishment agenda, this legislation is something that I can support in principle, although I do have some concerns that I believe may be able to be adequately addressed in committee.

As my colleagues have noted, this legislation replaces the current Criminal Code provisions on self-defence and defence of property. This change is welcome, because Canada's self-defence laws are complex and out of date, as the jurisprudence itself has demonstrated. This has been further highlighted by recent high-profile cases that have produced some less than ideal results, as already referenced in the chamber debate this morning. The bill would provide greater clarity, therefore, for prosecutors, judges and juries, as well as for those who may find themselves in a circumstance requiring them to defend themselves or their property.

Simply put, I support this necessary law reform. Indeed, a review and simplification of the entire Criminal Code is needed, as I indicated during the period that I served as Minister of Justice and Attorney General. I trust that the government will commit itself to a comprehensive criminal law reform and in that regard reinstate the Law Commission of Canada, which I and others found to be a very valuable resource in this regard.

While this legislation fixes on one particular section of the Criminal Code, much more remains to be done. It is important to point out, for example, that although it was raised at committee, a textual inconsistency that we have yet to correct in Bill C-10 adds, perhaps inadvertently, another error to the Criminal Code. Indeed, in the committee deliberations we found at least four errors in the French text of the Criminal Code as it is now, and errors with respect to the English and French texts when compared to each other. My point is that if we are going to add another piece to the Criminal Code, as in Bill C-10, we should correct it to the extent that we can.

Returning to Bill C-26, the changes to the self-defence provisions would repeal the current complex self-defence provisions, which are spread over four sections of the Criminal Code, and create one new self-defence provision. Currently sections 34 to 37 of the Criminal Code provide distinct defences to those who use force to protect themselves or another from attack, depending on whether they provoked the attack or not and whether they intended to use deadly force. In that particular regard, the use of deadly force is permitted only in very exceptional circumstances, such as when it is necessary to protect a person from death or grievous bodily harm.

The new legislation in Bill C-26 would, as one section of the Criminal Code alone, permit persons who reasonably believe themselves or others to be at risk of the threat of force or of acts of force to commit a reasonable act to protect themselves or others. The act outlines factors to consider when assessing reasonableness, something I will address shortly.

With regard to defence of property, sections 38 to 42 of the Criminal Code currently outline multiple defences for the “peaceable possession” of property. The defences respecting the type of property relate to whether the property is either personal or real property, the possessory right of the possessor and of the other person, and the issue of proportionality in the threat to the property. In addition, the code requires that one consider the amount of force used when a property defence is raised.

I do not intend to address in particular the legislation with respect to these property defences in particular. Briefly, Bill C-26 would repeal what jurisprudence and experts have held as the confusing defence-of-property language, now spread over five sections of the Criminal Code, and remove in part the distinction between defence of real and personal property.

Under Bill C-26, one new defence-of-property provision would be created, eliminating the many other distinctions that currently exist in the code and arguably serve no purpose but to confuse and confound the matter. Simply put, the new provisions would permit a person in peaceable possession of a property to commit a reasonable act, including the use of force, for the purpose of protecting that property from being taken, damaged or trespassed upon.

In particular, my concern is not with the defence of property provisions, with which I agree, but rather with the new self defence provision, which I believe, while I support again this approach to amendment, may in and of itself arguably be overbroad.

I will state at the outset that it is not as though, without the bill, there is no right of self defence or citizen's arrest. Both exist as a matter of the common law. Both have been codified as statutes. Indeed, if we did not have a statutory basis, we would have the common law. Statutory reform now would in fact refine and, hopefully in this instance, improve our approach and understanding of this matter.

Primarily, the concern is that the current Criminal Code provision with respect to self defence provides that, “Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling, force by force”. Thereby, confining self-defence to assault situations and noting that it could not have been the result of provocation.

This new legislation would remove the assault requirement entirely, speaking of force or threat of force, and also would remove provocation. This is where I believe that committee study of the bill will be helpful.

What force or threat of force is contemplated by the new legislation? While one may consider that it refers to physical force, we might want to specify that, or we might also want to ask the question whether the legislation also envisages the threat of economic force in a bargaining situation, for example. This is not to say that the current limitation of the Criminal Code is self-defence only in assaults is the correct approach, but it may be that we would inadvertently be opening the door to other claims and concerns.

The legislation offers a list of factors to consider when determining whether or not the action taken was reasonable in the circumstances, and where the current Criminal Code, as I noted, speaks of provocation, something which this legislation would remove, the new legislation includes in its factors the person's role and the incident.

The question is whether this provision is meant to account for provocation. Might we want to amend it to say, “including whether there was provocation on his or her part”. To my mind, that would clarify the rules and what it is meant to address, as it may be inappropriate to eliminate the entire line of jurisprudence surrounding the notion of provocation.

I would like to focus on some of the factors list, as this is where I believe we may have to address it in committee, though again, as I say, I am supportive of the bill in principle.

The most concerning or disconcerting factor here is found in (e) in what would become section 34.2 of the Criminal Code. The factor, again with respect to determining the reasonableness of someone's self defence action, refers to the size, age and gender of the parties to the incident. Size and age I can appreciate. As one of the older members in the House, I can attest that people sometimes make certain assumptions about age, including sometimes about the imminent retirement of a member, which may be far from the mark.

The use of gender in this factor warrants a certain approach or critique. Indeed, some might call it a feminist critique, but I propose it just as a critique on the merits. What does “gender” itself have to do with reasonableness? If we are trying to address a size imbalance between the parties to a incident, is not the size factor itself sufficient? If we are trying to address a power or strength imbalance, might we use those words or some other phrase such as perception of potential force that could be exerted. As soon as we put in gender, we may be opening the door to the resurgence of a series of myths and stereotypes, which have, regrettably, undermined our criminal law, as we have observed most notably in the area of sexual assault.

This would open the door to all sorts of assumptions about gender playing out, either in police decisions to prosecute or in judges' rulings and the like.

The concern here is that we may see some relying upon and the furthering of the outdated notion of a weak, defenceless woman. If she is unarmed, we have a factor, as set forth in (d), whether any party to the incident used or threatened to use a weapon. Again, the question is what gender may be adding.

Its presence in the statute implies that there is some fundamental difference between capacities of men and women to protect themselves. While I remain unconvinced that this itself is something we should be addressing in this fashion, the point is that if there is a size or power or weapons imbalance, that is what the issue is, not the gender of the person.

On this point, too, we may have certain stereotypes about masculinity as well. Some men who are attacked or feel an attack is imminent, may respond aggressively, others more passively. Again, the question is whether this factor implies that only one type of response is appropriate. I think this is something that may warrant addressing on deliberation in committee.

A final factor that we may want to address is in (f), which refers to the nature, duration and history of any relationship between the parties to the incident, including any prior use of threat or force and the nature of that force, or threat. I can imagine that this could raise difficulties in conjugal relationships where there is a long and complex history between the partners and the focus of the police service or the judge may be on the physical relationship or force, not taking into account considerations like economic dependency or psychological force that are also important.

Indeed, I have a particular concern here that couples that may have had a disturbing relationship over time and then one partner crosses the line, a judge may pass it off as par for the course instead of addressing it as a serious act of conjugal violence. Again, this is something best addressed in committee.

The final concern I have with the bill has been raised by numerous academics and has been raised this morning as well. It is the potential risk for vigilantism, which we certainly do not want to promote this.

With reference to my comments earlier about the scope of self-defence no longer being just assault and the addition of the word “threat” of force, it may be that we are somewhat overbroadening this bill such that we may give a pass to those who really should not be engaging in matters best left to our informed and uniformed first responders.

I welcome this modification to Canada's criminal law. It would clarify and streamline self-defence and defence of property. However, as I mentioned, I have some concerns with some of the factors enunciated in this legislation. It is my hope that, through thoughtful and informed deliberation and debate in committee, we may be able to address these issues and favourably resolve them. The bill can then enjoy the full support of the House, as it now has, as a matter of principle, but then can be more fully supported with regard to any considerations that may raise some matters for concern.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, I am pleased to have an opportunity to speak today at second reading on BillC-26, an act to amend the Criminal Code in relation to citizen's arrest and the defences of property and persons.

This bill had its origins in the attention brought to a citizen's arrest some two years ago in Toronto. I think it was called the Lucky Moose case, after the name of a foodmart in downtown Toronto. The owner of the store was a persistent victim of shoplifting. A shoplifter, whom he had seen in his store walk away with some property, apparently came back an hour or so later. Based on his experience in trying to get the police to respond to shoplifting events in the store, the store owner felt that the only way to actually have this fellow charged was to apprehend him.

As a result, the owner was charged with assaulting the individual and with forceable confinement. I think at one point he may have been charged with kidnapping as well. However, the end result was that he was himself put before the courts.

The case caused a lot of controversy. Some of it had to do with whether the policing was sufficient in the area. We know that in larger establishments, like supermarkets and retail stores, there are often security services operating in the establishments. They have some training in apprehending people. They are in effect performing citizen's arrests based on seeing someone actively committing a shoplifting offence. They will phone the police and hold the shoplifter until the police come.

What was different in this case was that the individual had left the store and then came back. When he came back, he was not in the act of committing an offence, as the parliamentary secretary pointed out. As a result, Mr. Chen, the owner of the store who did this, was not inside the provisions of section 494 of the current Criminal Code that says a citizen may arrest someone who is found committing an indictable offence, or personally believes on reasonable grounds that a criminal offence has been committed and is escaping from it, and is freshly pursued.

Actually 494.(2)(b) was the section that he was purporting to act upon. It states:

A person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

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

The normal process for shoplifting is that the store detective, or the store owner, can actually apprehend individuals, phone the police, and forthwith turn them over and the police handle it from there. In this case, because the arrest took place an hour later on a return visit, the owner did not have any basis under section 494 to arrest this individual.

Hence, the legislation originally came forward as a private member's bill introduced our colleague, the member for Trinity—Spadina. I think she might have even called it the Lucky Moose bill in honour of Mr. Chen. It received widespread support from all sides of the House.

Many people who are in the position of being lawmakers are very concerned about passing laws that would encourage a vigilante type of justice. This is why this is such a touchy area.

As the parliamentary secretary said, we have a highly trained police force operating across the country. We have a national police force, local police forces and community policing. There are people patrolling on foot in Chinatown, where the event happened, and other areas of Toronto. These are the people on whom we need to rely.

On the other hand, not every store owner has access to security guards or store detectives. The concern here is for the person trying to run a business. In this case, Mr. Chen was trying to run a business and protect his property. I think most people would think he acted reasonably and detained the individual without using excessive force. However, that is forcible confinement, for which Mr. Chen was charged. If one uses force to confine someone to prevent the person from leaving, that is an offence. However, the citizen's arrest provision provides a defence for forcible confinement by changing it to an arrest, provided the arrest is made within a reasonable period of time.

I suppose if one knows who the individual is, one would phone the police to tell them that the individual is known to have done this before and was witnessed taking something and leaving. The individual would not be chased because of the danger involved and the police would be called. However, if one does not know who the individual is, then the only way to apprehend the offending stranger is to take advantage of the opportunity to pursue.

We support this aspect of the bill wholeheartedly. I think it takes a minimalist approach by making changes to section 494. When I say minimalist, I mean that it does only what is required by the circumstances in which Mr. Chen found himself.

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

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

Of course, as legislators, we should not make laws every time something unusual happens. However, if the unusual happening points out a flaw in the law where people see an injustice, then I think that a reasonable legislature should take some action, and we support that wholeheartedly.

I want to speak about the powers of self-defence. This is complex, as my colleague, the parliamentary secretary, has pointed out. I do not disagree with the overall thrust of his comments.

As it stands, sections 34 to 42 of the Criminal Code deal with the issues of self-defence. We have specific provisions which allow for self-defence of the person, property and dwelling houses. Historically, there have been reasons for that.

Within the provision for self- defence of a person, there are two categories. One category is for a victim of unprovoked assault. The other category is for a victim who may have started a fight, but the response is so overwhelming that he or she has had to defend himself or herself.

I have no doubt that the rules are complicated. I am looking at the annotated Criminal Code. It starts off with the section with which we are dealing. It then has a series of annotations from case law, covering what the courts have said about these various provisions. I see that even though we are only dealing with relatively short sections of the Criminal Code, there are more than a dozen pages devoted to the cases that have interpreted these sections. That tells us two things: number one, the provisions are litigated relatively often; and, number two, the courts have a history of actually interpreting that legislation.

Section 41, in reference to the defence of a dwelling house and assault by a trespasser, states:

Every one who is in peaceable possession of a dwelling-house... is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

That is a specific limitation on the use of force. I have been a victim of a break and enter in my house. For example, if someone came into my house and I had no idea what the situation was, I could not get a two-by-four, wait for the individual to come around a corner and crack him or her over the head with it because the person is in my house. If I happen to have a registered weapon or shotgun, I cannot shoot the person just because he or she is on my property.

When we were kids we heard stories about stealing crabapples. We may remember hearing about homeowners with salt guns. I do not think I ever saw a salt gun, but they were shotguns that people would put salt in. We had neighbours we were frightened of because they supposedly had a salt gun. If people were caught stealing crabapples, they would get shot with a salt gun. I have never actually met anybody who was shot with a salt gun, but it would probably be illegal. I hope it would be illegal, but that does not mean it did not happen. Similarly, if people walk on my property, I cannot tell them to get off my lawn and if they refuse, pepper them with a shotgun. That is unreasonable force. That is not force people are allowed to use under the Criminal Code.

In criminal law and the interpretation of law, words are very important. This is especially true when, in the case of these provisions in the Criminal Code, 100 years or more of judicial interpretation has helped to establish how these words are interpreted. An example would be the situation where there is more force than necessary. If people use more force than is necessary, they are going to be convicted of an offence. In fact, even outside the provisions of self-defence, section 26, which also applies to citizen's arrest, states:

Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

We are not changing that. Regardless of what changes are made to sections 34 to 42, this excess force provision would remain. I am saying this off the top of my head right now, but perhaps it is all right to get rid of the provision of no more force than is necessary because there is the excess force provision in section 25. However, I am using that as an example.

We agree that there may be some confusion. The Supreme Court of Canada has indicated that there may be some confusion in the law. It added more confusion, in the case of McIntosh, by deciding that sections 34 and 35 were somehow not separate approaches but should be looked at together. The question is how we can eliminate that confusion without causing other problems or encouraging people who might take the law into their own hands and do things that are dangerous.

We support the citizen's arrest case in principle and feel that there is no need for change to the provision. On the idea of looking at the whole question of self-defence, are we making it more likely to be abused? Are we making it easier to understand and to apply? Are we sending the right message to citizens? Or are we encouraging, perhaps, more self-help in situations where the police should be called or where extreme restraint ought to be encouraged? Obviously, people have a right to defend themselves.

I have practised criminal law among other kinds of law over the years. There was one individual who was charged with manslaughter who was acquitted on the basis of self-defence. They were very tragic circumstances. The individual who died should not have died. It was a complicated case because he died several days later after having hit his head. The simple question was whether the blow that caused him to fall was an assault or was in self-defence. If it was an assault, he was guilty of manslaughter even though it was a trivial blow. If it was a blow in self-defence, then it was not manslaughter. The individual ended up with a subdural hematoma, a cracked skull. He was not properly treated at the hospital and died three days later. Self-defence is very important for that reason: it can mean the difference between the kind of consequences that I am talking about and a proper defence to a charge. We have to be very careful in doing that.

We will support this bill at second reading. We want it to have careful consideration, which is code for not rushing it through, I say to the Parliamentary Secretary to the Minister of Justice and the committee. We do not want to see this dealt with in one meeting. We want to hear from people who have practised criminal law. We want to hear from experts in the Department of Justice, from the Canadian Bar Association and others. We need to examine it very carefully. We need to ensure that by making changes, we are not throwing away 100 years of precedent and all the advice that the courts have given. If we are starting off with a blank slate and a whole new law, it may take another 10 or 20 years of case law to understand what that means. Do we really need to go down that road? I think we have to answer that question with the kind of detailed study that can take place in a committee. I know the member from Athabasca who spoke earlier is on that committee, along with the parliamentary secretary, others with legal training and lawyers who have practised in the area. Also, we would rely not just on ourselves but the expertise of people who have analyzed these provisions, studied all the cases and who can help us ensure that we are doing the right thing.

Having said that, we will support this bill at second reading but we do want to have extremely careful consideration given to it in committee.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Gerry Ritz, Conservative, Battlefords—Lloydminster, SK]

moved 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 delivering results on jobs week.

I will begin by noting that the highlight of the week was the passage of the budget implementation act, Bill C-13, keeping Canada's economy and jobs growing act. That legislation has now moved on to the other place where we look forward to its passage.

We have also advanced Bill C-18, the marketing freedom for grain farmers act, past report stage. This bill would give marketing choice to western grain farmers, so it is a priority for us to have market certainty and have it passed by next year. For that reason, it is our intention to complete third reading of the bill on Monday.

Of course, Tuesday afternoon and again this morning, the House has continued debate on the opposition amendment to decline second reading of Bill C-11, An Act to amend the Copyright Act. We will continue that debate this afternoon. If the opposition finishes their effort to block this bill—after 16 hours of speeches—we will proceed to Bill C-14, Improving Trade Within Canada Act.

Tomorrow will be the sixth allotted day.

On Monday, we will start here for law-abiding Canadians week.

On Tuesday, we will start the post-committee stages of Bill C-10, the safe streets and communities act. This will continue on Wednesday. I note that it was reported back from the Standing Committee on Justice and Human Rights this morning. I do want to thank the members of the committee on their 27 hours of meetings in just the past couple of weeks. All told, including the nine predecessor bills within this legislation, we have seen 95 hours of House debate, 261 speeches in both chambers of Parliament, not to mention 70 meetings in committee rooms of this place.

On Thursday, we will continue here for law-abiding Canadians week with the start of debate on second reading of Bill C-26, the citizen's arrest and self-defence act, which the Attorney General introduced recently. Should time permit after that debate next week, we will return to debate the opposition's motion to block Bill C-4, the human smuggling bill, from going to committee. We hope we will be able to complete the debate on the opposition's motion to prevent that bill from going to committee soon so that we may actually have it go to committee.

Finally, as part of this week’s delivering results on jobs week, on behalf of my honourable friend, the Minister of Finance, I am pleased to table a ways and means motion in support of the establishment of a financial literacy leader for Canada. As honourable members would know, November is Financial Literacy Month; an issue championed by the hon. member for Edmonton—Leduc, the chair of the finance committee.

Pursuant to Standing Order 83(2), I ask that an order of the day be designated for the consideration of this motion. For the benefit of the House, I plan to call this motion immediately after question period on Tuesday of next week.

Justice

[Rob Anders, Conservative, Calgary West, AB]

Mr. Speaker, our government is committed to putting real criminals behind bars. Canadians who have been a victim of a crime should not be recriminalized by the criminal justice system. That is why our government has introduced Bill C-26. This legislation would bring much needed reform for Canadians to defend themselves and their property and arrest the perpetrators.

Last year Joseph Singleton, a resident of Alberta, while trying to protect his property, was charged with assault. Rather than being supported, his brave act to defend his home and his family has caused him more harm than good. Mr. Singleton had to go through the complex and lengthy court system to clear his own name.

There should be no more innocent victims who are penalized for defending their property. Bill C-26 would help police and judges to determine who the actual criminals and victims are and will prevent similar cases. Canadians would now have the fundamental right to protect themselves, their family and their property.

Citizen's Arrest and Self-defence Act

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

(Motions deemed adopted, bill read the first time and printed)