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

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Mr. Speaker, the Conservative member said that eliminating judicial discretion and imposing minimum sentences gives victims more rights and ensures that those who commit serious crimes are incarcerated for a certain amount of time.

However, and I do not know whether my colleague is aware of this, with minimum sentences criminals generally are more inclined to plead guilty in order to negotiate a shorter sentence. I would like to hear what my colleague has to say about that.

Personally, I think this proves that minimum sentences do not always work.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I thank my colleague very much for her question.

We can consider minimum sentences from several perspectives, as the government argues. We can take the statistical or epidemiological point of view: it has been clearly shown that minimum sentences do not reduce or prevent crime. On the contrary, they result in more crime.

I remember very well some discussions we had at our national convention in Vancouver last year, especially with correctional officers. Apparently all inmates, no matter what sentences they receive—except for those serving a life sentence with no possibility of parole—will have a life after serving their sentences. Whenever hope is crushed or thwarted, the inmate is all too easily pushed into despair, or put in a position where they could reoffend or commit more serious crimes.

It is truly important. We are seriously worried about this and we will continue to defend our position as we continue our work in this place.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Mr. Speaker, I am pleased to speak for a second time to Bill C-26. Those watching the House of Commons today might be thinking that they are watching a competition to see how many times the Criminal Code can be amended in one Parliament, with these Conservatives and their tough on crime agenda.

Nevertheless, I would like to say that I think this change is essential. A number of lawyers and judges say that this is a necessary change. There is no denying that the Criminal Code sections on self-defence, defence of others and defence of property have been causing some confusion in the courts for a long time. I would like to read a section of the presentation made by the Canadian Bar Association to the Standing Committee on Justice and Human Rights.

The Criminal Code provisions concerning self-defence, defence of others, and defence of property have been subject to decades of criticism, and have been an ongoing source of frustration for lawyers, judges and juries. This is due to the multiplicity of relevant Code sections and subsections, and the variations among their elements. Many high-profile cases have faltered on jury instructions regarding self-defence.

Clearly, there was a real need for change. As a member of this House, I am pleased that we were able to bring about this change. I would also like to congratulate my colleague from Trinity—Spadina for having initiated this bill in the previous Parliament.

As we all know, this bill was inspired by one specific case. Mr. Chen was trying to protect the merchandise in his store. When he discovered that the thief who had stolen a plant—I think—had returned to his store, he detained that person, but he faced charges himself.

During one of our meetings of the Standing Committee on Justice and Human Rights, someone from the convenience store owners' association was present. He talked about this need and this desire on the part of owners—those who cannot afford a security guard—to be able to protect their property and put an end to these constant thefts. He pointed out that convenience stores tend to be robbed over and over again, and this translates into serous losses at the end of the month.

I understand that situation. Many small and medium-sized businesses are trying to be independent, and they do not necessarily have the means to protect themselves by hiring security agents. So if someone steals milk every week, eventually that ends up being a loss for the convenience store. I really do understand the situation.

During testimony, we asked a lot of questions about the bill. We were a little worried about the balance between the subjective and objective elements of the bill. We even presented some amendments that, unfortunately, were rejected. The Conservative Party rejected one amendment in particular. We were disappointed about that, but we worked well together to make sure we covered the issue thoroughly.

We also considered whether this could become a trend and what we could do to make sure that it does not. By that, I mean making sure that people do not take on the role of the police. People can put themselves in potentially dangerous situations by arresting someone themselves if they do not have the experience or the strength to do it.

However, we all agreed that we do not want to see this to become a trend. We also proposed amendments to prevent that from happening, but that does not mean we should not have these provisions.

In my opinion, Bill C-26 also includes another important and interesting element.

It contains a non-exhaustive list that the judge can consult when a person pleads self-defence. This list allows the court to determine whether that person has a history of violence, whether there is a history of interaction between the parties, the nature of the force, the size of the person, etc.

Of course, I am a small woman and I would be afraid of a large man. I have reason to be afraid in certain situations. This is very important to consider, particularly when we think about women who are victims of domestic violence and who, every day, have to face a person who could do them harm. It is very important to consider the factors on this list.

I am also happy that this list is not exhaustive and that there is always the possibility of adding additional factors to it. We know that, with time, we will find other factors that should be added to the list.

We also heard comments about security guards. I find this dynamic very interesting. Our society seems to be depending more and more on security guards, and private ones for that matter. I encourage the House to examine the issue of private security guards. They are not necessarily obliged to obey the charter.

This bill will affect their work because, when they are on site, they try to protect a store or shop and its goods. They cannot always arrest someone. There is, therefore, a certain desire among security guards to see these changes implemented. They are very happy about them, and I encourage the House to continue to examine this issue. Personally, I believe that some studies are needed in this regard.

I would also like to speak about the arrest of a person after the fact. We know that, in some rural communities that do not have as large a police force as metropolitan areas like Montreal, it is not always possible for a police officer to come and arrest someone who has committed a minor crime, such as stealing plants, as in the case of Mr. Chen.

The bill clearly states that a person can only be arrested if it is believed that the police would not have arrived in time to make the arrest. It is important to include this. Perhaps it does not go far enough. We submitted a number of amendments to try to restrict this a bit, but the Conservatives refused. The bill states that it can only be done when a peace officer cannot come to arrest the person in the place of the citizen. I am pleased about this because it could be dangerous for someone to make an arrest because that person may not necessarily have the expertise or the strength required.

I will end my speech here. I would like to point out once again that we support this bill, but that we do not want it to become a trend.

[The Acting Speaker, Bruce Stanton]

The hon. member for Terrebonne—Blainvillewill have five minutes for questions and comments when the House resumes debate on the motion.

It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

The House resumed from April 25 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 third time and passed.

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

Mr. Speaker, I appreciate the opportunity to rise today to speak to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

As I prepared for this a moment ago, I was thinking in terms of the election just a year ago and the impact that our late leader, Jack Layton, had in that particular election. This bill was something that he believed in very much, in a previous incarnation, so it brought that back to mind.

One of the things I pride myself in is that in the Hamilton area I attend the local Tim Hortons and the local food courts and I talk directly to the citizens I represent. One of the things that they believe, and I hear it said quite often, is that common sense is not as common as it once was. I think we have in Bill C-26 a fair effort on the part of the government to bring some common sense into this particular issue.

Bill C-26 would amend the section 494(2) of the Criminal Code dealing with citizen's arrest to provide greater flexibility. A little later in my remarks, I will refer to a speech by the member for Trinity—Spadina who actually introduced a bill in this place in the previous session but which died because of the election.

The crux of the problem is the timing of when people are able to complete a citizen's arrest. The law of the day says that people need to act on that citizen's arrest during the actual crime but, of course, sometimes that is just not the case. It also includes changes related to self-defence and the defence of property, which are currently in sections 35 and 42. These changes would bring much needed reforms to simplify, and this is where the common sense comes into the equation, the complex Criminal Code provisions on self-defence and the defence of property, something that has been requested by the courts over the years, not just our good citizens.

At this point, I will refer to the speech that I talked about a few moments ago.

The member for Trinity—Spadina had an event occur within her riding at a convenience store called the Lucky Moose. Mr. David Chen, the owner had been robbed numerous times in fact. It seemed that it was a very popular place to shop but it was also a very popular place to shoplift . Mr. Chen was extremely frustrated. A security camera showed an individual, who he had seen robbing his store and had left the premises earlier, coming back for some more. The individual was 37 years old and had a criminal record that stretched back to 1976.

Mr. Chen decided, along with a couple of people he worked with, to detain the individual until the police could arrive. My understanding of the situation is that he bound the person and put him into a van to contain him. It is indicated here in this speech that the police arrived within about four minutes. When the police arrived, apparently bruises could be seen on Mr. Chen's body where this individual had assaulted him but instead, Mr. Chen was charged with assault, kidnapping, forceable confinement and possession of a concealed weapon.

We need to ask ourselves where those charges came from. The concealed weapon was a box cutter. If anybody has been around a grocery store, box cutters are used all the time. It is not something that people working there would hide from everybody and conceal as a weapon. Beyond that, as far as the forceable confinement, the owner detained somebody while waiting for the police to come, somebody who had a record going back to 1976 and who just may want to try to get away.

The problem for Mr. Chen was that when the four charges were laid against him, we need to stop and think about what he was facing. The crown prosecutor offered to drop the kidnapping and assault charges if Mr. Chen would plead guilty to the remaining charges and, if he did, he would have faced 18 months in prison and a criminal record.

I am pleased to say that Mr. Chen chose not to plead guilty.

We have to wonder, from a common-sense perspective, whether our system has been stilted to the point that police officers actually put in more charges than necessary in “shooting for the moon and hoping for halfway”, an old expression used in labour negotiations. In other words, if they put into place a trading arrangement in advance: the charges are laid, the Crown makes an offer and the person pleads guilty to save himself or herself the costs of court. However, had the individual put forward a proper defence, he or she might well have gotten off. Therefore, it really makes one wonder about the situation.

Members will recall there was a bill put forth by the NDP member for Trinity—Spadina, in the last parliament. It died due to the election. On February 17, the government promised to reintroduce the bill, and I am thankful that it has done so. However, when this bill was at committee just before returning to the House, the NDP critic offered nine amendments. We felt the bill was flawed in a number of areas. Of the nine amendments we proposed, only two passed, which is unfortunate. Although we are concerned about the fact that the other seven did not pass, there is enough content in the bill to satisfy us to the point of supporting it.

After carefully reviewing the bill and hearing from witnesses, our concerns were reinforced. When we reviewed the legislation, our priority was to ensure that it did not encourage vigilante justice or encourage people to put their personal safety at risk. A horrific tragedy took place in Montreal a couple of days ago. A dispute escalated between a cab driver and a number of his patrons who had probably just come from a bar. The young men jumped on his car and hit the taxi driver. He tried to get out of there and tragically ran over one of the individuals. That is an over-the-top, blatant case situation. However, it shows us how quickly a situation can get out of hand when an individual or a group of people try to impose their physical will on someone else.

Let us look at what happens to people in a confrontation. I think I made reference to this not long ago. In Hamilton where I worked at Bell Canada, one of our technicians tried to intercede when a man was beating his wife in public. People think that they have to do something. He grabbed the man to prevent him from striking his wife, pushed him and held him against the wall. The man's wife came over, took off her shoe and struck the Bell Canada worker in the back of the head. That is an example of a situation where the individual was trying to do the right thing to protect the woman first and foremost from physical injury. His intent was to hold her husband until the police came because there were other people in the area. He did not realize that because of the strong relationship between the husband and wife, she felt she should defend her husband in the manner that she did.

There are concerns around the situations that people can put themselves in when it comes to a citizen's arrest. Unfortunately, the amendments that we tried to put through to deal with that were not addressed properly.

The NDP will be supporting this bill. We think it brings some common sense to the justice system. We are satisfied that a reasonable effort was made on the part of the government. On that point, I will conclude my remarks.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Madam Speaker, I hope my colleague will be able to finish his speech. I know he had some additional information that he wanted to share with us. He spoke about the fact that some of the other changes should have been considered. We are hoping that at some point we will have another opportunity to change that. I am wondering whether he can continue his speech on that issue.

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

Madam Speaker, I appreciate that. I tend to tell stories and get away from my prepared text.

There is self-defence relative to a situation called battered spouse syndrome. Our proposed amendments on that did not succeed. Those were to introduce a subjective element. Subjective circumstances are related to the person's preservation of the right to protect oneself in a reasonable manner.

That element means it is possible that a person, based on a history of domestic violence, can reasonably perceive a greater threat of violence because it has been repeated by the same perpetrator. We thought it was important to add that historical context to this bill. Unfortunately, it was not successful at committee because the government did not see our view.

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

Madam Speaker, I thank the hon. member for Hamilton East—Stoney Creek for his speech on Bill C-26. As the House will know at this point, I think I am the only member of Parliament who feels I must vote against this bill because of my concerns about the expansion of citizen's arrest powers.

I tried to obtain the opportunity to put forward an amendment to delete one section of the bill, which was recommended by the Canadian Bar Association. That section deals with the expansion of citizen's arrest powers. I wonder, could the hon. member for Hamilton East—Stoney Creek explain why the official opposition was not willing to second my amendment, which would have at least given us a chance to fix the one section of the bill that gives people the most trouble?

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

Madam Speaker, I was not at the committee. I am not privy to the reason that our members of the committee chose to not support the amendment. Obviously, they gave it due consideration and felt it did not address the situation in a manner that was appropriate to the bill.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Madam Speaker, I also listened carefully to the speech by my colleague from Hamilton East—Stoney Creek.

The NDP will obviously support the bill. However, some groups have raised legitimate concerns, which have been addressed in part by the committee. One concern is the perception that this will encourage groups of citizens to somehow take justice into their own hands. In English, we call them vigilantes.

I would like to hear what my colleague has to say about this, and I would like to know whether he believes that the bill will lead to more incidents of vigilantism.

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

Madam Speaker, there was a situation in the United States where an unarmed young man was shot. There is legislation in that country called Stand Your Ground, which gives permission to people who feel under threat of physical harm to take a life. That is 100% different from what we are talking about here.

In that instance, there was subjectivity in deciding that person was a threat. They are, obviously, if the person is armed or actually proceeds to strike another. In that instance, apparently, the young man was shot because of things that were said as opposed to things that were done.

This bill does not provide for that to happen in Canada. Our committee members who looked at this were satisfied at the end of the day that it would not generate that kind of response.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Madam Speaker, I thank my colleague who just spoke, and I will continue to elaborate on this bill.

As he mentioned, the bill makes good sense.

This bill seems to make a lot of common sense by directing that a citizen is able to assist in the arrest of someone who commits a crime, even if there is delay. I think that makes sense.

Bill C-26 amends subsection 494(2) of the Criminal Code, which deals with citizen's arrest, to provide greater flexibility.

The amendments will allow citizens to make arrests without a warrant within a reasonable time. The main change is the introduction of the concept of reasonable time. At present, subsection 494(2) requires the citizen to make the arrest when the crime is being committed. That is the difference between the existing law and the proposed bill.

Bill C-26 also includes amendments to sections 35 to 42 of the Criminal Code, which deal with self-defence and defence of property. These amendments will make long-awaited changes and simplify the complex provisions of the Criminal Code on self-defence and defence of property, as called for by the courts.

As several of my colleagues have already mentioned, members on this side of the House support the bill. Half of the bill consists of measures that the NDP had already proposed in the private member's bill introduced by the member for Trinity—Spadina. This part of the bill amends subsection 494(2) of the Criminal Code, which deals with citizen's arrest, making it possible for citizens to make arrests without a warrant within a reasonable time.

The other part of the bill seeks to clarify the sections of the Criminal Code on self-defence and defence of property. After a thorough review of the bill was conducted and expert witnesses were heard at committee stage, it was established that the changes made the legislative measure clearer. Our main goal in examining the bill was to ensure that it did not encourage citizens to take justice into their own hands or put their own safety at risk. Even though some concerns were raised about these issues with regard to citizen's arrest, self-defence and defence of property, we determined that the bill proposed some acceptable changes.

It should be noted that each of these three concepts already exist in the Criminal Code. Accordingly, the proposed changes in the bill will only affect existing aspects of our current legislation and will not add anything completely new.

This is what happened in committee. A diverse group of witnesses appeared before the Standing Committee on Justice and Human Rights, including representatives from the Barreau du Québec, the Canadian Convenience Stores Association, the Association of Elizabeth Fry Societies, the Association of Professional Security Agencies, the Canadian Bar Association and the Canadian Police Association, as well as academics and practising lawyers. In other words, experts testified before the committee.

So while we already supported the intent of the bill, we did propose a number of amendments arising out of the recommendations made by witnesses, as is our usual practice. That is the logical process: we listen to the witnesses and we propose amendments. Two of those amendments were agreed to and seven were rejected. More specifically, we should mention that the amendment to incorporate the subjective element in the part of the bill relating to self-defence was rejected.

That amendment would have covered all of the things done in self-defence that are commonly referred to as “battered wife syndrome”. For example, the subjective element means that a person who has been a victim of family violence may reasonably perceive a greater threat from a person who has previously been violent than a person without that background would perceive.

In other words, it is important to take into account the subjective perception of the circumstances, rather than to have a purely objective perception of the situation. We believed that the wording relating to the history of the two parties was not sufficiently precise in Bill C-26, and of course we wanted to ensure that the fact that “the act committed is reasonable in the circumstances as perceived by the person” would be taken into consideration in this kind of situation.

This was also the first time that Parliament had an opportunity to incorporate the concept of the subjective element, which had until now been developed in the case law, into the Criminal Code itself. The Canadian Bar Association and the Canadian Association of Elizabeth Fry Societies both recommended this amendment.

We did, however, succeed in having the amendment that requires that the court “consider the relevant circumstances of the person, the other parties and the act” agreed to. While that wording is not as specific as “the act committed is reasonable in the circumstances as perceived by the person”, the amendment we did get agreement to will put a greater onus on the courts to consider the history of the relationship between the individuals.

We recognize here that these sections of the Criminal Code need to be included, and even though most of our proposed amendments were rejected, we still believe the bill updates the legislation appropriately and we support the bill.

I would like to give a little context in the minute I have left. As my colleagues know, on May 23, 2009, David Chen, the owner of the Lucky Moose Food Mart in Toronto, arrested a man who had committed a theft in his store. Everyone knows the story here. I am going to conclude by saying that even though all the amendments were not agreed to, we support the bill on this side.

[Sean Casey, Liberal, Charlottetown, PE]

Madam Speaker, I would like to thank the member for his speech. He stated a few concerns regarding clause 2, which contains exceptions and relevant considerations.

My question for the member relates to the list of factors enumerated in the new bill with respect to when self-defence is available, in particular the list of factors at proposed paragraph 34(2)(f) that allow for a court to consider the nature, duration and history of the relationship between the parties. I did hear his comments with respect to that section.

Our concerns with respect to that section are that it could cause problems in two ways, in that self-defence may be available in circumstances where it now is not and that the presence of the section could result in a claim of self-defence not being taken seriously simply because it is there.

I would be interested in any further comments the hon. member has with respect to that factor being included in the self-defence provisions.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Madam Speaker, the way I read the bill is that there is discretion. The bill allows the judge the discretion to determine when looking at self-defence or reasonable cause.

I do not think it is the intent of the bill to allow unreasonable use of force as a means of self-defence. I understand that concept because I have spent the last 30 years studying martial arts and self-defence and I understand that it could go overboard.

The way it stands, there is probably sufficient protection in the law to ensure that the judge or those who look at this would understand that there will not be an overuse of self-defence and that reasonable cause and the background would be taken into consideration.