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.

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.

Business of the House

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

Mr. Speaker, I want to begin by welcoming the new House leader for the official opposition. I look forward to working with him. I anticipate a positive and constructive approach.

In terms of his question relating to the issue of the motion of the House dealing with the Chief Electoral Officer and concerns about whether the statute in place was appropriate for him to do his job, I believe that motion had an expectation of about half a year before the government was to respond. I anticipate we will fulfill that.

On his question about the budget, the government introduced Bill C-38, the jobs, growth and long-term prosperity act. The bill implements key measures from economic action plan 2012. Our plan is working, as we have already created nearly 700,000 net new jobs since the recession. Most of these are full-time jobs.

Canadians want to see a productive, hard-working and orderly Parliament, focusing on their priority, the economy. Thus we hope to have the bill come to a vote on May 14. That target will allow members to study the bill, which implements important measures from the budget that Parliament has already approved.

As hon. members are aware, May 2 will mark the one-year anniversary of Canadians electing a strong, stable, national, Conservative majority government, and it is only fitting that on this one-year anniversary, after members and caucuses have had close to a week to study the bill, we will debate our government's plan to continue creating jobs and economic growth in Canada. We will continue debate on Bill C-38, the jobs, growth and long-term prosperity act, on Thursday, May 3, and Friday, May 4.

During the budget bill study week, before that debate starts, we will cover other business.

This afternoon we will complete debate on the NDP opposition motion.

Tomorrow we will start debate on Bill C-36, the protecting Canada's seniors act, which addresses the great concern of elder abuse. This bill is part of our government's efforts to stand up for victims. This is the end of what has been an important national victims of crime awareness week, where we saw the Prime Minister make an announcement of increased support for families of missing children. We also saw the introduction of Bill C-37, the increasing offenders' accountability for victims act, which follows through on our campaign commitment to double the victim surcharge that convicted criminals pay.

Monday, April 30, will be the second allotted day. In this case, I understand we will debate a Liberal motion. I would invite the hon. member for Westmount—Ville-Marie to share with all members—and, indeed, with Canadians—what we will be debating that day, so that hon. members can prepare.

On Tuesday, we will finish third reading debate on Bill C-26, the citizen's arrest and self-defence act. Based on my discussions with the new opposition House leader, I am confident that we will complete that debate early in the morning.

Then we will move on to Bill S-4, the safer railways act, which was reported back from committee yesterday. Given the importance of improving the safety of our railways, I hope this bill is able to pass swiftly.

Since I anticipate a productive day on Tuesday, I will then call Bill C-36, but only in the event that we do not finish earlier--that is, tomorrow--followed by Bill C-15, the strengthening military justice in the defence of Canada act, a piece of legislation that has now been around for three Parliaments and should get to committee where it can again be studied.

Citizen's Arrest and Self-defence Act

[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.

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

Mr. Speaker, I am honoured to have this opportunity to speak to Bill C-26. This is a great honour for me given that I have happily agreed, at the NDP whip's request, to become a member of the Standing Committee on Justice and Human Rights. This is both a great honour and a great challenge for me.

I will take advantage of my speaking time to express my opinion about a bill that the committee has studied and to talk about the ins and outs of bills like this one, their impact on society and their usefulness to the courts.

It is very important to understand that the courts are working to help society, to ensure order and to suppress crime using the tools they have been given by, among others, our House of Commons. That is an important notion because the bills that we draft, discuss, debate and study in committee to achieve an outcome are just part of the courts' toolkit.

Of course, simply passing a bill does not solve all problems. Quite the opposite. The goals of a bill can be achieved only if other authorities, including this House, give police forces and other stakeholders the means to engage in prevention and education and if other levels of government are equipped to ensure that the implementation of the law achieves the desired results.

I have to say that I am also very honoured to speak to this bill because I personally believe that it is a good model. This bill should become an operational model for the work of this House and of the various committees my colleagues work on.

I want to emphasize that because the New Democratic Party, as represented by committee members, was disappointed in a number of things. Unfortunately, even though the other members of the Standing Committee on Justice and Human Rights agreed to two of the amendments we proposed, seven of our amendments were rejected, including, among others, an amendment that was very important to us and that had to do with actions taken in self-defence, such as in situations involving domestic abuse.

Some of my colleagues have given very eloquent, detailed speeches on this issue, which is very important to us. I will not necessarily go into further detail on the matter. However, I would like to come back to the fact that if there is one measure of satisfaction that all members of this House can express and, more importantly, that we all hear from our constituents, that would be great. Incidentally, I would like to point out that we are all here as representatives of our constituents, first and foremost, and we are accountable to them, to everyone in our ridings, no matter which party we belong to.

Coming back to the main point I wanted to make, when all is said and done, and considering the results achieved, Bill C-26 is a great example of how this House and its committees can work together.

Although by no means ideal—that would be going to far—it is nevertheless a model that all members in this House can follow in order to improve the atmosphere here, which is not always easy. I do not wish to dwell on examples from the past, but unfortunately, the fact is that this government continues to blindly and stubbornly advance its own agenda, while dismissing any informed opinions that differ from its own. I would like to again point out the success of Bill C-26.

I would now like to address another very important aspect that gives us a great deal of satisfaction about the goals achieved while working on Bill C-26. It is important to understand that creating legislation that deals with a subject as complicated as self-defence and the protection of personal or other property is like walking a tightrope.

Defining the limits of actions, violent or not, that in some cases are clearly criminal and in others are not, can be very tricky.

As you know, self-defence is a widely accepted principle. Some of my colleagues, like the hon. member for Toronto—Danforth, have been very clear on this subject—and I thank them for that. In my opinion, this has allowed all of my colleagues to understand that even though self-defence is widely accepted by the public, there are nonetheless some inherent risks involved in its implementation.

The New Democratic Party does not accept and will never accept vigilante justice. It is very, very important to understand that. Likewise, it will never accept the pure repression that this government is promoting. Nuance is very important. Fortunately, or unfortunately—depending on one's point of view—we do not live in a world without nuance, where everything is black and white. On the contrary, the circumstances surrounding a case before the courts can become very important and can affect the outcome tremendously. That is one of the reasons our justice system gives judges some latitude. They are not, however, given full or arbitrary latitude. Our judges have to make their decisions and work within the confines of the law and case law.

I am pleased that this bill will give our courts new tools for building more balanced precedents in matters of self-defence, protection of property and citizen's arrest. It is very important.

However, I am warning this government not to believe that passing this bill will solve all the problems. On the contrary, if we do not give the other stakeholders—such as our courts or police officers—all the tools they need to implement this legislation, then unfortunately, Bill C-26 may very well not meet its objectives.

I repeat: I wanted to put this in perspective. This bill will be only one of a number of methods for achieving the important objective of protecting ordinary people who, in some exceptional circumstances, may find themselves in situations where they could be convicted of a crime.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I rise on a point of order. I have been listening to the member talk on Bill C-26, which is about citizen's arrest, and he has been meandering all over the place, covering all sorts of different legislations and bills with which we were dealing. He talked about Bill C-31, which would improve the refugee act. Now he is talking about illegal handguns and border services. He is absolutely not talking about the subject at hand, Bill C-26, which would enhance citizens' protection.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, I appreciate this opportunity to speak once again to Bill C-26.

It now appears that the bill is being framed as sort of the victims versus the offenders by the other side. I would like to clarify our party's position on victims versus offenders.

The bill came from our party in the first place through the member for Trinity—Spadina. It was an attempt to turn an offender who was really a victim away from being an offender. How does that work? It is where someone who was a victim of a crime, attempted to arrest or stop a person who committed a crime and he became an offender, according to the police, because he had unreasonably detained someone.

This bill is all about that. It is to try to regain the balance between victims and offenders. The bill is now one of the very few in this Parliament to have had actual agreement on amendments at committee. Many bills have gone through committee that have had zero amendments approved by the other side.

That leads me to comparisons between this bill and other bills which have created victims, by the other side, and in which the amendments we have proposed have been outright rejected. I am of course referring to Bill C-31, which has elements of this bill in it all over the place. People who flee countries, where those people are victims of crime or who have their own personal well-being threatened, to come to a safe country are themselves victims. They are the victims of crime in those countries. They are the victims of persecution. They are victims in any imagined sense of the word.

However, if these people arrive here by the wrong method, they immediately become an offender, according to the government. If they are victims of human smuggling, they are imprisoned and are considered to be offenders.

We need to turn those things around. This is a situation that cannot be allowed to stand. Unfortunately the votes on Monday meant that those bills are now off to the Senate and perhaps they will become law.

We have a situation where the other side is accusing this side of being soft on offenders and hard on victims, and the exact opposite is true. The government has determined that people who are victims will be made offenders. The immigration bill is but one example.

That is an example of a bill where the parties actually did work together. The previous Parliament actually passed a bill that was praised and lauded, that struck a balance between people being victims and being offenders.

However, now we have a government that is insistent on its ideologically driven anti-immigrant agenda that will now treat potential immigrants who come here by magic, because they found a way to get here when they were unable to get here any other way, as criminals.

In addition, those individuals who did everything right, who acted in accordance with the law, who applied to come to Canada years and years ago are now going to be treated as criminals because they are having their money given back to them and are being told “Sorry, we did not get to your application 10 years ago, and we are never going to get to it. You have to apply again”. Those people are being made into victims by the government. We are treating people horrendously.

I also want to talk about how this bill has a possibility of creating a vigilante system. We will support it, but I want to be very clear that we do not support anything which takes Canada further into the sort of American mentality of “shoot first and ask questions later”. We do not agree with that kind of mentality.

I was in a high school in my riding last week. In that high school was a bunch of Grade 10 students. They were 13 to 15 years old. I asked them how many of them owned an illegal handgun or knew someone who owned one. Half the class put up its hand, and that is not unusual. When I asked them why all these handguns, their immediate answer was for self-defence, that they had to defend themselves against others in their communities who had handguns.

What is the government doing about the proliferation of handguns that I find in my riding? There was a drive-by shooting last night and someone was shot just last week in the same neighbourhood by illegal handguns that have arrived in my riding.

What is the government doing about the proliferation of weapons of destruction, of killing? It is removing border protections. It is laying off border services people. It is cutting the number of sniffer dogs that might stop these guns from coming into the country in the first place.

The Conservatives have decided it is better to have guns come in and to--

[Dan Harris, NDP, Scarborough Southwest, ON]

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

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

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

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

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

Section 494 states specifically that, “A person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another factor is whether there were any pre-existing relationships between the parties, including any history of violence and abuse.

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

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

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

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

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

Mr. Speaker, as always, it is a real honour to stand in this House and represent the people of the great region of Timmins—James Bay.

When we talk about crime bills, crime prevention and crime strategies, it is unfortunate that much of the rhetoric in the House of Commons has not been to deal with the substantive issues but sometimes to create black and white caricatures or set up windmills. This is difficult because the issue of crime and law is complex and the solutions are sometimes not as simple. This is why the judges do need discretion in being able to interpret action and being able to interpret circumstances.

However, I find this has been a good instructive debate for Canadians to participate in and to watch, because we are trying to find a balance regarding the protection of ordinary citizens. This is something that communities have done from time immemorial.

For example, I live in the great little community of Cobalt, Ontario, where people look out for each other. I remember late one night I was coming home from a trip with my family and my little kids. I drove up in my beat-up little Toyota Tercel hatchback, which may not be the ugliest car ever built, but it was certainly in the top five. Barrelling in the driveway behind me was a big pickup truck with double wheels on the back. It sounded like a tank. Out jumped Bruce Miller, a big guy from Sherman Mine. He said, “Who goes there?” I almost fell over, and then he said, “Oh, it's you. I knew you were away. I just wanted to make sure when I saw the lights on at your house that nobody was robbing you”.

That is what neighbours do. We need to be able to say that it is okay for neighbours to check in on neighbours, that it is okay to stand up in a public square when something is wrong and say, “There are no police here, but a crime has been committed”.

In saying that, we have to be careful. We have seen in the United States where politicians fan the flames of vigilantism and horrible tragedies result, like the Trayvon Martin shooting in Florida. If we look at it, we wonder how could it be that a self-styled vigilante armed with a gun can patrol a neighbourhood and, when the police tell him to stand back, he believes his life is at threat. Under Florida law he only had to believe that. It is completely subjective. Issues of subjectivity do have a value in dealing with perception of violence or perception of threat, but they are not the only thing. We cannot just say, “I didn't like the looks of him. He seemed like a bad guy, so I shot him”. Yet, that is what is considered okay in the Florida legislature.

We have seen some of the crazy gun laws in many American states that think people should be able to carry a gun, a concealed weapon for self-defence, that they should be able to carry a weapon into a hospital because it is a citizen's right. That kind of over-the-top response creates dangerous situations.

I am looking at Bill C-26 from the sense of how we strike the balance between civic protection and ensuring that we are not putting people at risk. It is not about putting the so-called criminals at risk, but also the people who want to intervene. It is very difficult to intervene in a situation that could escalate. People need to have a sense of the ground rules. When the police are watching, they are certainly telling us to be careful about how we go about this.

There has been good discussion at committee. There has been good cross-party conversation.

On the issues of criminal justice, I had the great honour in the 1980s as a member of the Catholic Worker Movement to work with men coming out of prison and to live with men and women coming out of prison in the streets of Toronto. I saw a steady pattern in terms of recidivism. There were addictions. Addiction was probably the highest single cause of people committing crime. There were basic issues, such as a lack of a stable environment in which to actually get one's life together, and then there was plain stupidity.

I have known many cons through my work. Contrary to what we see in the movies, they are not criminal masterminds. That seems to be an oxymoron. Contrary to what my Conservative colleagues sometimes point out as these evil bandits who have to be locked up, sometimes they just make really stupid choices. I have talked to them about their choices.

I think that when we are looking at criminal policy, we have to remember that by far, the vast majority of people who end up in jail have made really bad choices. Should they be punished? Certainly. As a society do we need to have a plan to pull them back? Even more so.

I remember my friend, Robert, who died recently. In his day, Robert was a huge, massive expense on the health and criminal justice systems because of his horrific level of alcoholism. At the time, we could not get Robert into even a rooming house. There was no public housing. I remember the Conservative government of Mike Harris, and many of his old gang are on that side of the House now, telling us that social housing was a failed principle.

It was not a failed principle. We needed to get a guy like Robert a place to stay. Once we actually got him into secure housing, he sobered up. At that point he was never again a burden on the medical system or on the criminal justice system. I think he was 20-some years sober before he died. We needed to find ways to get men like him out of crisis, and it was possible.

That is where social policy comes in. If members believe that government should not be in the business of ensuring some level of social housing, then people like Robert will fall through the cracks. If people have levels of addiction, they might break into a car and get whatever change they can.

Last year I was moving and my car was broken into, probably because of the Oxy epidemic. Normally my beat-up old Chevy does not have much in it worth taking, but I was in the process of moving. There was a vacuum cleaner that my wife had given me. I did not mind sharing my vacuum cleaner with the criminal underground of Ottawa. I could have accepted that. That was in the car. There were a couple of brooms. They could have had them. But my God, my Bob Dylan collection, original vinyl, was in the back, as were my grandfather's favourite Scottish and Irish records. I have not brought forward a private member's bill about mandatory minimums for people who steal vinyl. I did manage to get some of it back. I went to the record store. I did not get any of my Bob Dylan collection; that was gone, but I got the Clancy Brothers and Kenneth McKellar records back.

I said to the guy, “Listen. These are my grandfather's records. They were stolen out of my car.” I do not think they could have even bought one Oxy pill. I said, “I do not mind paying for them. I just want the records.” The guy said, “We were only selling them for 50¢.” Being Scottish myself, I would have spent $5, maybe even $6 on each of those records.

I am not saying this to make light of the situation. Perhaps if I had been at the house that night and saw the guy stealing my records, I would have run out and stopped him. I would have at least tried to offer him the vacuum cleaner instead.

When I go home at night through the market I have seen some situations that have started to escalate. I am not out with the late, late night crowd because parliamentarians are always in bed at an early hour, so I do not see any of the stuff that happens outside the nightclubs. However, it tends to be my perception that we are dealing with people with addictions, and sometimes people with addictions do desperate things.

The question is, if someone sees something happening on the street, such as a shakedown, an escalation towards violence, what as a citizen does the person do if there are no police there? There is the question of someone intervening, such as a shopkeeper intervening and stopping someone from stealing by saying, “You cannot do this. I am going to hold you until the police come.” That is a reasonable citizen's response. That is a reasonable societal response.

In terms of the larger of issue of what people do when they see relentless situations, particularly when there is drug addiction and people are resorting to crime, we need a larger societal response. That is why I talked about the interventions and about the lack of treatment centres in northern Ontario. We do see levels of addiction, mostly involving Percocet and Oxy. There is no place for people to get treatment. That is an issue.

We cannot just leave it to the citizen to address the crime problem. We cannot just leave it to the jails. We need a larger, more comprehensive view. We have not had a holistic view of crime and crime response in this Parliament.

We will be supporting this bill. It is one little piece of a much larger puzzle. I am more than willing to take questions from any of my hon. colleagues.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, I will be sharing my time with the member for Timmins—James Bay.

Today, I am pleased to speak to Bill C-26 which deals with citizen's arrest and the defence of property, and clarifies the concept of self-defence.

The bill amends the Criminal Code in order 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.

First of all, we will be supporting this bill, which is essentially modelled after a bill previously introduced by our NDP colleague for Trinity—Spadina. I would like to congratulate her for her efforts in this regard.

You will recall that it all began in her riding back in May 2003, when the owner of the Lucky Moose Food Mart, David Chen, arrested a man who stole something from his store.

The Criminal Code allows the owner of property to arrest someone only if the presumed perpetrator is caught red-handed. In the case of Lucky Moose Food Mart, the owner arrested the thief one hour after the incident, when the criminal returned to the scene of the crime. As a result, the police charged the store owner with kidnapping, carrying a concealed weapon, assault and forcible confinement.

The charges of kidnapping and carrying a concealed weapon were dropped by the Crown, and Mr. Chen and his two co-accused did go to trial. They were acquitted of the charges of forcible confinement and assault in October 2010.

In order to protect citizens like David Chen from criminal prosecution, our colleague from Trinity—Spadina introduced a private member's bill to allow people to make arrests without warrant within a reasonable period. We are pleased to see that it has been reintroduced by the government.

It is important to note that the Canadian Association of Chiefs of Police supports Bill C-26. When he appeared before the committee, Superintendent Greg Preston said:

...CACP does support the passage of Bill C-26. We think it's important that citizens be recognized, that when they do act, they have self-defence available to them. We believe that this will assist the police in understanding, to be able to better determine whether or not somebody who does act does so lawfully.

...we'd prefer if we were on every street corner, but that's not the reality of the world. It is inevitable, and as such we certainly support the idea that they would be recognized for that.

It is important to understand that Bill C-26 does not reinvent the wheel. In Canada, the power granted to citizens to arrest without warrant is defined in section 494 of the Criminal Code. With regard to citizen's arrest, the only thing Bill C-26 does is to allow citizens to make an arrest without a warrant “within a reasonable time”.

Bill C-26 also includes amendments to provisions of the Criminal Code related to self-defence and the defence of property. These amendments will lead to long-awaited reforms that will simplify the complex provisions of the Criminal Code on self-defence and the defence of property.

In committee, Nicole Dufour, a lawyer and the coordinator for the Barreau du Québec's Criminal Law Committee, had this to say about self-defence:

The Barreau du Québec would like to offer its congratulations on the effort to simplify the legislation relating to self-defence, which has been criticized by the courts and by law enforcement bodies. In our opinion, these amendments do not alter the current case law, since the proposed provisions address the conduct and actions of a person who uses force, and not the outcome, for deciding whether the use of force in the circumstances is reasonable and lawful.

In committee, Hamish Stewart, a law professor at the University of Toronto, also pointed out the efforts to simplify the provisions on self-defence. He said:

The existing provisions of the Criminal Code have often been criticized for being unclear, for overlapping in ways that are not always clear, and for being difficult to explain to juries. There has been a long stream of criticism from lawyers, judges, and academics about the difficulty of interpreting and applying the existing provisions. So the attempt to take all these ideas of self-defence and put them into one section that would be clear and that would apply to all potential crimes I think is very welcome.

Although we support this bill, we regret that in committee the government rejected our amendment to specify that self-defence includes actions taken under the influence of what is referred to as battered woman syndrome. We wanted the bill to recognize that it is possible that a person who has been a victim of domestic violence might reasonably perceive the perpetrator of repeated acts of violence to be a greater threat than someone without this history might perceive the perpetrator to be.

We believe that the definition of self-defence must take into account the subjective perception of the circumstances rather than a purely objective perception of the situation. We thought that the terms describing the history of the two parties were not specific enough in Bill C-26 and we wanted to ensure that in this type of situation “the act committed is reasonable in the circumstances” from the individual's perspective.

The Canadian Bar Association and the Canadian Association of Elizabeth Fry Societies recommended this amendment. Unfortunately, this government did not support it.

Eric Gottardi, from the Canadian Bar Association, pointed out that the current legislation does not protect female victims of abuse very well and that it is imperative to correct this situation. In committee, he said:

It's well accepted in our case law that a reasonable person, acting reasonably in the circumstances of the accused, can have honest but mistaken beliefs about a set of facts. So someone might think that they're about to be attacked or they're about to be threatened, and they may act in self-defence. That, in fact, might not be the case. But as long as they honestly believed, and that belief was reasonable, then they are justified in using force to defend themselves, even in advance of an attack or in advance of a threat.

...

We're strongly against violence against women, and we support a law and an amendment to the law of self-defence that protects those women in their subjective belief that they are under imminent threat. It's our concern that subjective belief isn't adequately protected as the law is currently drafted.

I am extremely disappointed that the NDP's amendment was rejected and I can assure you that we will continue to press this issue. Furthermore, I met several times with women from La Mouvance, a women's organization in the riding of Rivière-des-Mille-Îles. These women do extraordinary work with female victims of violence. Unfortunately, they are not receiving any financial support from the federal government. Evidently, this government is not interested in helping women who are victims of violence by supporting the NDP's amendment.

There was a demonstration on the Hill today. We know that tomorrow, the Conservatives will be launching an attack on women in the form of Motion M-312. Canadians have fought for decades to give women the right to make their own choices about their bodies. Clearly, this government is determined to undermine women's rights. The Prime Minister has refused to clarify his government's position on this subject, and that has voters in my riding and across Canada worried.

Throughout our study of this bill, our primary concern has been to ensure that it does not encourage individuals to take justice into their own hands or to endanger themselves.

Personally, I agree with many of the witnesses who appeared before the committee to express concern that this bill gives too much freedom to the private security companies that are proliferating in Canada and Quebec. Even though a number of concerns were raised, we decided that this bill contains acceptable changes and that it will prevent people like Mr. Chen from being charged with a crime for defending their own property.

I am ready for questions from my hon. colleagues.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, it was important that the member said the House and committees. All of us in this place know that the real work, the roll up our sleeves, get down to work, no one is watching, just do plain work, happens at committee.

We first started to see the government's approach to committee work when we were setting up the rules, when we were talking about how committees would be structured, how often people would be allowed to talk, all those basic and fundamental fairness rules. We watched the way that the Conservative government just rolled in like a bulldozer and attempted to get every advantage it could, believing again that its 39% of the votes gave it an entitlement to 100% of the power and everything that goes with that.

The member himself answered appropriately in focusing on committee, because that is where the work happens, that is where the tone is set. The work that was done in committee that led us to Bill C-26 was successful. I am willing to bet that if we looked at the transcript we would find that people cooperated, people worked together to find solutions rather than working to find divisions based on partisanship.

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

Mr. Speaker, I want to thank the hon. member for Hamilton Centre for his very eloquent speech. It gives us an appreciation for the situation and the work that has been done on Bill C-26.

The thing that strikes me is the spirit of co-operation that has allowed the House and the committee involved to achieve what we could call an optimal result. It may not be perfect, but perfection is unattainable. So it goes and we can live with that.

However, I think this is a start, or at least a shining example compared to other very unfortunate cases where the government decided to embark on its own path, alone. We have seen some of the consequences of that approach.

I would like the hon. member to say more about this spirit of co-operation that we wish for in order to achieve results that benefit everyone since, after all, we are all representatives of the Canadian population as a whole.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, it was not that long ago in a minority setting that the government did not really want to, but was forced to, work with other members. We did get things done. The government has had from the beginning the attitude that it has a majority and somehow 39% of the votes give it 100% of the power. The Conservatives believe that they can just rule at will. Their whole demeanour changed once they received that majority. It is a shame, because Bill C-26 is an example of how working together benefits all of us politically, but more important, provides better legislation, better laws and ultimately safer streets.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, again, I appreciate this opportunity. As I only have five minutes, I will not try to mount a review of everything I said.

However, a couple of people who were flipping through the channels and heard me using certain language contacted my office wondering what exactly that was all about. Therefore, I will take just a couple of the minutes I have to address that.

I was making reference to the Criminal Code and the areas that Bill C-26 would amend and how there had been a long-standing issue with a number of aspects of that legislation. I had pointed out that one of our chief justices had said in the case of R. v. McIntosh that sections 34 and 35 were:

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

I have no doubt that for learned colleagues who are lawyers, that language is crystal clear, but not so much for the rest of us.

I then presented to the House a quote from Mr. Bumble of Charles Dickens' Oliver Twist, which reads as follows:

If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass...

I hear one of my colleagues say that it really should be “an ass.” That is the natural way to say it, but given that I was quoting, I wanted to use the exact quote as I would not want to wrong Mr. Dickens after all these years. Although that is the direct quote, there is more to it, but I thought that was the most apropos. It is a relatively well-known expression when we find ourselves in a situation that seems perfectly logical, but when we look at the law from a legal point of view it looks completely different. Therefore, we often hear people say that the law is “an ass”. It is a reference to this famous works.

The reason I brought that forward was to try to illustrate the situation that Mr. Chen found himself in when he believed he was defending his property. It is a fundamental right that people have. He believed the actions he took did not cross any legal lines. He thought he was well within his rights to do what he did to assist in apprehending someone who was stealing from his business.

Mr. Chen was initially charged with kidnapping, carrying a dangerous weapon, assault and forceable confinement. However, the kidnapping and weapons charges were dropped, but the serious charges of forceable confinement and assault were proceeded with. He was acquitted of those charges.

Although we recognize that changing laws based on one case and one instance is an area that we need to be very careful of, in this case it illustrates to us that this place and the system can work. Mr. Chen was found innocent and the guilty person was found guilty and served a sentence. Now we are in the process of changing the law so the Mr. Chens of the future will not find themselves in the horrific legal position in which he found himself.

Therefore, all in all it worked out. Hopefully, this will improve our Criminal Code and will bring more justice to Canadians.

I thank all those who worked so hard to get us to the point where the official opposition is comfortable in supporting a bill that amends the Criminal Code and that actually helps people, as opposed to the spin we get from the government on its law and order agenda. Therefore, We are very pleased to support the bill.

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 third time and passed.