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 welcome the member for Gatineau as justice critic for the New Democratic Party. We have worked together in committee on this bill and on other matters of common concern. I welcome her expertise and experience in this regard.

I am pleased to participate in the debate on Bill C-26 at third reading. While I have often taken issue with the government's approach to criminal justice, I do support the principle behind the bill, which would simplify and update the Criminal Code both with respect to self-defence and defence of property.

As I noted during debate on the bill previously, the current Criminal Code provisions on these matters are complex and judges have noted that the law at present is as confusing as it is confounding.

In particular, the Criminal Code contains four provisions on the issue of self-defence and six defence of property provisions. The legislation we are debating today would simplify these provisions into two Criminal Code sections, one on self-defence and one with respect to defence of property.

I am a long-time supporter of law reform, and during the period that I was minister of justice and attorney general I called for a comprehensive and principled approach to law reform in our country. We need a comprehensive review and simplification of the entire Criminal Code, which is long overdue, and I have stood in this place before to regret the fact that we have yet to embark on such a comprehensive and principled approach to law reform.

Some of the government's actions have taken us away from an approach to principled and comprehensive law reform. I refer, among other things, to doing away with the Law Commission of Canada, which was a principled instrument that assisted the House and me when I was minister of justice and attorney general of Canada with regard to a principled approach to criminal law reform, as well as, regrettably, the elimination of the court challenges program. That program supported access to justice and representation on matters, including those that dealt with principled approaches to criminal law reform. We are missing that instrumentality as well.

Therefore, I hope the bill signals a perspective shift in the government's approach to criminal law, namely that it will support sensible approaches to criminal law reform and to the simplification of the criminal law and move us away from what has been an ill-founded focus not only on punitive and incarcerative approaches to criminal justice, but in a legislative approach that is organized around an ad hoc response to the criminal justice case du jour rather than, as I said, a comprehensive and principled approach to the overall issues of criminal law reform. This would allow us to revisit the notion of the introduction of newer mandatory minimums or enhancing existing mandatory minimums, notwithstanding the fact that the evidence has been clear with respect to the fact that such mandatory minimums do not serve as a deterrent, are ineffective, end up being prejudicial and have a disproportionate prejudicial impact on vulnerable groups in our country, let alone the manner in which they may end up prospectively in breach of rights protected under the Charter of Rights and Freedoms, the 30th anniversary of which we celebrated just last week.

Bill C-26 would be a useful addition to the criminal law in the manner in which I indicated before, and will proceed again to elaborate upon. It would provide greater clarity for prosecutors, judges and juries presented with cases that involve self-defence or defence of property. It would also help private citizens understand the situation in which they may defend their person or property. In this regard, I look forward to the government's plan to educate citizens on this area of the law in an effort to ensure that vigilantism, of which concern has been expressed in debate this morning and heretofore, is not encouraged by the passage of this legislation.

Certainly there might be some who may see this bill as an opportunity to take the law into their own hands. Again, I reiterate that citizens should always seek the assistance of our trained and uniformed emergency services personnel when possible, rather than risk their own personal safety or engage in ill-advised approaches in vigilantism.

One thing that should be made clear to Canadians is that it is not as though without this bill there would be no right of self-defence or the right to make a citizen's arrest. Both exist as a matter of the common law. Self-defence has existed in that regard for centuries. Both have now been codified as statute. Indeed, even if we did not have a statutory basis for these elements of our criminal law, we could nonetheless embark upon the legislative reforms before us today.

As we are now at third reading, I would like to address three particular issues with respect to this bill. The first is that of private security firms, which took up a good deal of necessary discussion and debate before our Standing Committee on Justice and Human Rights. The second is with respect to the bill's use of “gender”. The third is the amendment proposed by my colleague, the member for Saanich—Gulf Islands.

Simply put, with respect to the first issue, that of private security firms, the concern is that these individuals are private citizens who by virtue of their employment often take on police-like functions. Arguably, the bill can serve to enhance their powers and this may not necessarily have positive consequences in that regard.

As the Canadian Bar Association stated in its submission:

We believe that anything which could unnecessarily expand the (perceived) mandate of private security officers and ordinary citizens to make arrests should be avoided.

Indeed, the CBA goes on to express its concern that the legislation might “encourage unjustified arrest by private security personnel, not subject to public oversight”, noting that:

Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances, in the regular course of their duties.

This was a recurring issue during our committee hearing. I do believe the government should be quite mindful of this issue, both in terms of its efforts to educate individuals about the ramifications of this bill but also with respect to the potential introduction of legislation specific to security personnel, such as to ensure proper training and understanding of the law.

I noted earlier in my remarks with respect to the anniversary of the Canadian Charter of Rights and Freedoms that we must ensure that these security personnel are well-versed in the protections inherent in the charter and court pronouncements in relation to such protections, such as to minimize the risk of their violation in respect of persons believed to have engaged in criminal acts.

As a final point in this regard, the concern was raised by two law professors who appeared before the committee that a consequence of the bill would be to make security guards, to use their words, “de facto police officers” by allowing them to delay before making an arrest. This too is a point that I will address more specifically in a moment within this context and the related context in matters of delay.

The second issue I want to address briefly is that of gender, which has been addressed as well in debate this morning, which this bill lists as a factor that can be considered by a judge in assessing the reasonableness of a self-defence action.

At committee it became clear that one of the things this legislation was meant to address was the problem of battered spouses syndrome, a defence linked to the current provisions of the Criminal Code. In this regard, I am pleased that all parties joined in accepting my amendment before committee to create a specific factor “any history of interaction or communication between the parties to the incident”, which, as my colleague for Gatineau pointed out, may also help victims of cyberstalking and cyberbullying.

While I am hopeful this will be enough to ensure that battered spouses are protected, I must reiterate what I said during previous debate about the inclusion of gender in criminal law legislation, namely that it opens the door to the resurgence of a series of myths and stereotypes, which have, regrettably, sometimes undermined our criminal law in areas such as sexual assault. Simply put, I am hopeful that no attorney or judge will advance any arguments that rely on inappropriate or prejudicial gender stereotypes, be it the weak, defenceless woman or the overpowering man, to determine the reasonableness of an action thereby suggesting that a woman should not have fought back or that a man should have fought back harder. Put another way, its continued presence in the statute implies that there is some fundamental difference between capacities of men and women to protect themselves, and I am not persuaded that gender is the determinative factor as opposed to other factors in the statute such as physical capacity or whether the person was armed.

The final issue I would like to address, and with this I draw to a close in the matter of substantive critique of this legislation, is the issue of allowing for a delay before an arrest is made. This point is indeed problematic, as evidenced by the many proposed NDP amendments at committee and indeed the proposed amendment by the Green Party this morning. I sincerely hope this issue can and will be taken up by the Senate as it is not immediately evident that the current language of the bill that one “make the arrest within a reasonable time after the offence is committed” is sufficient to guard against arbitrary detention or other situations whereby, for example, someone is followed across town by a security guard attempting to effectuate an arrest.

As Professor George Rigakos of Carleton University put it:

Bill C-26 therefore will create de facto private police officers, not in name, but in function, as they will use discretion, investigate, and build a case based on their new-found authority to delay arrest. I'm quite confident that this is not the intent of the committee.

Certainly this would not reflect my own intent and I am hopeful that this will be addressed in the other place. Indeed, the Barreau du Québec's submission on this point was quite instructive. It noted:

...the fact that a citizen's arrest must be made “within a reasonable time” after the commission of the alleged offence leaves the way open for a possible abuse of power. Any arrest includes elements of unforeseeability arising from the use of the force that is needed in order to make an arrest, peaceful though it may be. By definition, an arrest implies the use of force: a person who makes an arrest must physically control the person and restrict their movements and, if necessary, may use reasonable force to compel the person to submit to their authority. When the police make an arrest, they are identified by their uniform or otherwise, and persons arrested by police know that the police are entitled to make arrests, even if they believe the police are in error in their case, and police are required to inform the person arrested of the grounds for the arrest and of their rights. The police are trained to make arrests, and even with their training and skills, arrests sometimes go wrong, even where the persons involved are not criminals. A member of the public does not have the training and resources available to police forces. The power of arrest is an important power that must be exercised in accordance with the law, and the rights of a person who is arrested must be respected.

Again here we see the issue of constitutional rights, potentially and prospectively violated by those making use of this section without being fully aware of the juridical context in which citizen's arrest properly operates. I hope this matter will be addressed in the other place.

Another issue that can be addressed in the other place, and with which the committee had difficulty as well, was how to balance objective and subjective factors in the determination of the reasonableness of a self-defence action. Certainly in the circumstances of a criminal act, one may perceive the situation differently from the clarity that is afforded by hindsight. I am not persuaded that this bill often strikes the right balance in this regard. I appreciate the submissions from numerous groups that raised this concern. I trust that needed refinements can be made in the other House.

While I have not addressed much of the defence of property provisions in this legislation, I do support the principles behind them. We are all aware of the Toronto incident, to which reference has been made during the debate this morning, that gave rise to this bill. Generally, while it is not advisable to legislate on one particular case, and we have sometimes burdened our criminal law by legislating only as a result of one particular case, the overall principles behind this bill are reasonably acceptable and serve the overall aims of prospective law reform.

While I do still have some reservations, as I have outlined in the course of the discussion and my remarks this morning, and while I still hope some modifications may be made in the other place, I look forward to the simplification and reform of what are now overly complex and cumbersome Criminal Code provisions, with respect to both self-defence and defence of property. I hope that this might herald a comprehensive approach to a principled criminal law reform of other cumbersome and complex provisions in our Criminal Code, which we continue to amend on an ad hoc basis in response to a particular cause du jour, but which need a comprehensive and principled approach, not only for the simplification of our criminal law but to making it into a more principled approach that could be better understood by all actors in the criminal justice system.

[Jinny Sims, NDP, Newton—North Delta, BC]

Madam Speaker, I want to thank my colleague for his very thoughtful review of the piece of legislation that lies before us today. I share some of his concerns around the issue of what is reasonable.

What kind of checks and balances could the member see that the other place might make that would address his concerns in this legislation?

[Irwin Cotler, Liberal, Mount Royal, QC]

Madam Speaker, the amendment that was proposed by the Green Party, which did not move forward in the House, should be addressed in the other place. I might add that both the Canadian Bar Association and the Quebec Bar Association supported the proposed amendment. While we did not move forward with it in this House, we should address in the other chamber.

A citizen's arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain the public peace, nor properly trained to apprehend suspected criminals. In most cases an arrest consists of either seizing or touching a person's body in an effort to detain them, or the person submitting to the arrest. A citizen's arrest that is made without careful consideration of the risk factors may have serious unintended consequences for those involved. When deciding whether to make a citizen's arrest, a person should be aware of the current law and consider the following: the person's safety, or the safety of others; reporting the information to the police, which is usually the best course of action instead of taking action on one's own; and ensuring that the person has correctly identified the suspect and the suspect's criminal conduct.

These and other considerations need to be properly communicated and understood so they can be properly acted upon. Another consideration that we might look at in the House is an educational campaign to have a full appreciation of the law.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, I would like to thank the hon. member for his, as ever, cogent speech on this matter.

He raised the issue of the education of the public on this provision. Most of the examples that have been given on this bill have related to incidents where people are coming into someone's shop, or stealing things from someone's shop, or perhaps entering someone's farm property and stealing equipment. However, in the province I come from, Alberta, there have been a number of incidents where there could arise difficulties with the interpretation of these provisions. Those include where leases are issued for oil and gas activity in the wild land areas of Alberta. Gates are put up, thereby leaseholders think they can prohibit public who simply want to go hike, look at wildlife and birds, and so forth. Also, there are areas where there are grazing leases. There have been a lot of confrontations between people who want to make recreational use of the land and those who think they have much broader entitlements because they have a lease for a specific purpose.

I wonder if the member could speak to that? With the changing of these provisions, it will be all the more important that we clarify to the leaseholders of lands the limitation of their rights to stop people, or take any kind of action when people enter those lands.

[Irwin Cotler, Liberal, Mount Royal, QC]

Madam Speaker, the question reflects a broader concern that needs to be addressed. We will have to take it up in the other place. However, it reflects the broader concern that sometimes we legislate in response to a particular ad hoc situation. This legislation grew out of a particular ad hoc situation. The legislation is warranted. We have been able to take that ad hoc situation and address legislation which is problematic in the complexity and the cumbersome nature of its provision with respect to property and self-defence.

However, because we had that particular frame in mind when we approached the legislation we did not take up the different possibilities and contingencies in the matters of leaseholders and the like that have just been referred to by my hon. colleague. Those will have to be addressed.

I still believe that the action of private security firms may be one of the more difficult concerns to address. While that was not the phenomenon that gave rise to the legislation, it will very much be addressed in and by this legislation.

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

Madam Speaker, I will be splitting my time with the member for Portage—Lisgar.

I am pleased to speak to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Bill C-26 addresses a number of distinct but interrelated measures that give Canadians the power to respond to immediate threats to property and to persons, where the police are not able to be there.

In urgent situations where property or the safety of persons is being deliberately threatened, citizens may act to defeat the threat, including by resorting to actions that might otherwise amount to criminal conduct. The criminal law must recognize the ability of Canadians to take reasonable and measured actions to defend against criminal threats. More specifically, Bill C-26 addresses the law of citizen's arrest and the defence of person and property.

These three measures already exist in our law, depending on the circumstances and motivations of the person in any given case. They operate to shield individuals from liability for any of their actions that are otherwise criminal, precisely because in the particular context those actions are aimed at defending vital interests or apprehending wrongdoers.

However, all three sets of laws are in an imperfect state. Bill C-26 aims to improve each of the powers to ensure that Canadians and the justice system itself can more easily and more fairly assess the appropriateness of defensive emergency actions. The better the law sets out the conditions for legal emergency action, the fewer Canadians will find themselves charged and prosecuted for defending themselves against true criminals.

Today the defences of self-defence and defence of property are set out over nine provisions, with each defence having multiple variations that apply in slightly different circumstances. There is no need for variations covering different cases when they are all based on the same general principles. Further, the variations cause immense problems in court. Even before that, they complicate the ability of police who arrive at the scene to determine whether charges should be laid.

Parliament's duty is to ensure that laws are clear and simple. That is what Bill C-26 does for self-defence and defence of property. The new laws can be summarized quite simply. In the case of defence of property, a person should not be held responsible for a criminal offence he or she commits if it is a reasonable response taken for the purpose of protecting property in his or her possession from a reasonably perceived threat of it being taken, damaged, destroyed or trespassed upon. In the case of self-defence, a person should not be held responsible for a criminal offence her or she commits if it was a reasonable action taken for the purpose of protecting himself or herself or another person from a reasonably perceived attack by another person.

The proposed new defences in Bill C-26 will capture the essence of the current laws but in a much simpler way. The new laws will clearly and simply set out the conditions for defensive action. Self-defence is particularly important. It arises much more frequently than the defence of property, and it can provide a defence to murder. Because of the central place of self-defence in our criminal laws and reduction in the detail that is now present in the law, Bill C-26 goes an extra step. It proposes a list of factors that the courts must consider in determining whether the actions a person took, assuming that he or she reasonably feared an attack and acted for defensive purposes, were reasonable in the circumstances.

What is reasonable in one case may not be reasonable in another. Everything comes down to the facts and circumstances of each case. For instance, shooting someone in the leg may be a reasonable reaction if the person were threatening to kill someone, but it would not be reasonable if the person were threatening only to step on someone's toe. This criteria must therefore be determined flexibly.

However, a number of factors are common to many self-defence cases. The bill refers to some of these in a non-exhaustive list which is designed both to provide guidance to judges and juries, and to signal to the courts that they should continue to apply existing case law.

Factors on the list include whether any party had a weapon, the nature of the threat the person was facing, and whether the individuals involved had a pre-existing relationship, especially one that involved violence or threats. Proportionality between the threat that was averted and the harm that was caused is always going to be a relevant factor, and so is also on the list.

Following the testimony of a number of witnesses, the committee made several changes to enhance and expand the list. One such change modified the opening words of the clause to make it clear that the judge “shall”, not simply “may”, consider all relevant factors. The committee also clarified the factor that speaks to the size, age and gender of the parties by adding a more general idea of physical capabilities.

Finally, a new factor was added that refers to any previous communication or interaction between the parties, which is broader than the factor that speaks about a relationship between the parties.

The new defences are drafted so as to be easy for Canadians to understand, and so they should also be relatively easy for police to assess and juries as well, if charges are in fact appropriate. Canadians would understand that they would only be protected from liability where they genuinely act to protect property or person. Taking revenge against someone for past actions would not be excused.

They appreciate that they are not free to cause unlimited harm just because there is a threat. On the contrary, they must stick within socially acceptable standards of behaviour. With the passage of Bill C-26, the law would finally come to reflect these fundamental rules that Canadians already know.

Bill C-26 also would make a modest extension of the existing power of citizen's arrest in cases of property crime. Right now people can only arrest others if they find them committing an offence. This means that an arrest would be unlawful if it were committed just a few hours after the crime was witnessed, even where arrest at the time the crime was committed was not possible or was unsuccessful, for instance, because the suspect successfully got away.

The current law is too limited. Allowing people to arrest within a reasonable time of having witnessed the crime seems more practical. Law-abiding citizens and business owners should not become criminals just because their attempt to bring someone to justice was a little bit late.

To address this problem, Bill C-26 allows for arrest to be made not just when the crime is found in progress but also within a reasonable time afterwards. It would still be necessary for the arresting person to have observed enough of the crime to be confidant that it was committed. In addition, if the arrest were made later, the arresting person would have to turn his or her mind to the possibility of the police making the arrest instead. In every citizen's arrest situation, the arrested person must be turned over to the police as soon as possible.

All these requirements give our government confidence that this modest extension would not result in vigilante or other inappropriate or abusive behaviour.

Those who commit crimes against property should know that they are at risk of arrest, not just on the spot but also within a reasonable time of their offence, and those who have property stolen from them or have been otherwise criminally damaged should know they are entitled to participate in bringing those who wronged them to justice where the police are not able to do so.

I urge all members to support these important law reforms.

[Candice Bergen, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I am pleased to speak to Bill C-26, which amends the Criminal Code to address the issues of citizen's arrest, defence of property and defence of persons.

In relation to the power of a citizen to arrest a person found committing a property-related offence, Bill C-26 would expand the permitted time frame for making an arrest. The existing power of arrest for the private citizen arises where the citizen finds someone committing an offence on or in relation to property. In other words, the person must be found actually in the process of committing an offence for a private arrest to be lawful. This is a limited power. The law does not permit an arrest even a short while after the offence was detected.

Business owners and other Canadians are right to be concerned with the narrowness of the power, the result of which is that citizens face prosecution for arrests they made even just shortly after they witnessed the crimes taking place. Bill C-26 addresses the limited nature of the power by expanding the existing rule to permit property owners or their agents to arrest persons they have observed committing property offences within a reasonable time after the offences were committed. The government is confident that the expansion of the citizen's arrest power would be interpreted and applied fairly and with due consideration for the various competing interests at play in an arrest situation.

Bill C-26 would also simplify the law relating to defence of property and defence of persons, which are in need of clarification. It is not the case that the law fails to give Canadians the authority they need to protect themselves. Rather, the problem is with the way the law is written. It is terribly confusing and difficult to understand what the parameters are for acting in defence of person or property. Briefly, Bill C-26 would simplify both defences so that Canadians could understand the rules that govern their ability to defend themselves, their families and their property. The police would also be better able to understand and apply the law at the scene of the crime and, as a result, would be better able to judge whether charges are warranted or not.

Canadians are rightly concerned about many reported incidents of charges being laid against Canadians who were doing nothing other than trying to defend themselves, their homes and their property. Our government is equally concerned. However, charging and prosecuting decisions are a matter of responsibility for provincial governments, not the federal government. The most Parliament can do is simplify and clarify the law of these defences, so the police and provincial crown attorneys can more easily and fairly apply them, and that is precisely what Bill C-26 would do.

The main component of the proposed new defences can be simply stated. In the case of defence of a person, did the defender reasonably perceive that he or she or another person was being threatened with force or actually being assaulted? In the case of defence of property, did the defender reasonably perceive the property he or she peaceably possessed was or was about to be interfered with, such as by someone taking, damaging, destroying or entering property without legal entitlement? In both types of cases, did the defender respond for the purpose of protecting him or herself or another person from force or for the purpose of protecting the property in question from interference? Finally, in both types of cases, did the defender act reasonably in the circumstance?

The justice and human rights committee passed a number of amendments to the self-defence provision. All the amendments modified the subsection of the defence that provides a list of factors for the court or jury to take into account in determining whether the actions of the accused were reasonable in the circumstance. One amendment clarifies and expands the opening words of the subsection. Another adds the notion of physical capabilities to the factor that speaks of the relative age, size and gender of the parties. The third adds a new factor that concerns any history of communication or interaction between the parties. Overall, each of these changes improves the proposed new defence.

I trust that all members will support this bill, which makes the defences more simple and clear and modestly expands the citizen's arrest law to provide flexibility for variations in the circumstances. Where a situation calls upon Canadians to take necessary and reasonable steps to stop crime and protect people and property, the law must clearly protect them from a liability.

I also want to note that, for instance, the expanded power we are talking about would come with its own special safeguards. For the arrest to be lawful, the person making the arrest must reasonably believe it was not feasible for the police to make the arrest themselves. This limitation would prevent what some may think are instances of private security agents deliberately delaying an arrest for illegitimate purposes, such as to collect additional evidence against a suspect. The existing duty upon any citizen who arrests another person to deliver that person as soon as possible to the police will also prevent vigilantism and abuse.

The concept of reasonable time also contains its own internal limitations. Whether an arrest was made in a reasonable time after an offence would be determined based on all the relevant facts and circumstances in each case. From case law that interprets similar phrases in other criminal law contexts, we can safely anticipate that these facts and circumstances are likely to be relevant to such a determination, including the length of delay, the reason for the delay, and whether the delay resulted in some kind of unfairness to the arrested person.

Again, this is a necessary bill that would clarify the act and make it a positive step forward for all Canadians. Therefore I urge all members to support this important legislation.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I would like to thank my colleague for her speech. When this bill is studied in committee, will citizen's arrests, self-defence and defence of property really be studied in depth to make sure things do not get out of hand?

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Mr. Speaker, as this bill was drafted, we wanted to make sure it was a clear bill and that necessary changes were made so Canadians could protect themselves and their property. So far we have all been trying to work together on all sides to make sure this is a bill that would not only close loopholes that need to be closed but also cover all the necessary angles.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I am wondering if the hon. member could expand on her comments. She made reference to the conditions in which an arrest could be made. I believe she used the example that one could not make an arrest if in fact there were reasonable grounds to believe there was a possibility of a police agency getting involved in order to make that arrest.

Could the hon. member pick up on that point? I think it is an important point to get across.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Mr. Speaker, yes, there are safeguards that would be in place.

As I said, in order for the arrest to be lawful, the person making the arrest must reasonably believe that it was not feasible for the police to make the arrest themselves. Again, that would be in the context of the timing, of when the offence happened. The short period of time has been the limitation for individuals. Now they would have an expanded time, but also at the same time not believe that the police were imminent and able to make that arrest themselves.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

Mr. Speaker, I would first like to say that we are going to support this bill, as most of my colleagues stated earlier.

I would like to know what my colleague opposite thinks. There are a number of observers of criminal activities who believe that this kind of bill is rather lacking in clarity in certain places, with regard to individuals, necessary force and all that.

Some observers believe that there might be an increase in the number of vigilantes, people who want to take justice into their own hands for reasons that are not always acceptable, and that there may also be an increase in the use of firearms. What does she think about that?

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Mr. Speaker, I think all hon. members share the concern that we would never want something like this to lead to vigilantism. Instead, we want Canadians to know they would be able to protect themselves against criminal acts and that the justice system would be behind them.

It is good to know that the NDP will be supporting this. As we continue to work together on this bill, we need to make sure it is working most effectively for law-abiding Canadians, who are not interested in anything other than being able to protect their property.

Ideally, police do their job to help enforce laws, but law-abiding Canadians need to know we and the justice system are behind them.

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, it is my pleasure today to speak in support of this legislation.

I want to acknowledge the work done on this file because it was originally introduced by my colleague from Trinity—Spadina as a result of events that happened in her riding. I know it is not the only cause but sometimes we, as legislators, need an event to make us aware of issues that we need to address here in the hallowed Houses of Parliament. It was as a result of a break-in at a general store. Somebody tried to steal something, the consequent holding of or keeping the person detained until the police could get there and the charges that ensued against the shopkeeper. All of that led to the need for us, as legislators, to clarify existing language so that the judicial system, when it proceeds, can actually follow that. I thank my colleague from Trinity—Spadina for spearheading this and for giving us all an opportunity to address this area. Whatever she takes on, whether it is in her riding or in her transportation critic role, she does it with all the passion, vim and vigour that she can bring to that task.

I was looking through the legislation and listening to the people who had concerns about the words that exist. I will read a quote from Regina v. McIntosh. Chief Justice Lamer stated:

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

I am sure it is with some sense of relief that the judicial system is looking at all of this and is pleased to see that we are trying to address that language. As we said earlier, we are pleased that at least some of the amendments put forward by the official opposition were adopted. We would have been happier if a few more had been but there is always a chance for other people to address these at a later time.

When we look at what is being addressed in this legislation, it is really not the right of citizens to make a citizen's arrest based on a huge number of issues. It only applies to one's own property and one's personal safety. Sometimes we can go to the far extreme. I can remember when I first started teaching the kind of discretion that existed for teachers as loco parentis. If a parent could not be accessed, I could get a phone call at 10 o'clock at night to say that a young person who happened to be one of my students had been picked up by the police and I would be asked if I would like to pick him or her up. As much as members may think that was a bit unreasonable, there was a certain amount of common sense in that. Whenever I did that, it was always with a great deal of respect for the role of the parent but also the need not to see the young person having to stay overnight in detention. There are some things in our society that are common sense issues and sometimes we take them to the extreme.

In the case that happened in Trinity—Spadina, it concerned David Chen, the owner of the Lucky Moose Food Mart in Toronto. When he apprehended the guy who tried to steal from his store, it was all the charges that ensued. On the other hand, did he do the right thing? I was not there so I do not really want to comment on that or the lawsuit itself.

However, I urge that we clarify that if someone is on our property trying to steal from us that we can make a citizen's arrest but not mete out punishment. This is not vigilante behaviour. This is not to beat the person up or use any weapons. It is simply to make an arrest. When we are making that arrest, we also hope that the person who we are arresting will have enough respect for the citizen's arrest concept that he or she will actually honour that.

I am not that naive to not accept the fact that some people will not stick around to be subjected to a citizen's arrest. Some will take off. In those cases, we would never tell people to chase them down or wrestle them to the ground. When I talk about a citizen's arrest, I would ask the person to stop doing what he or she is doing. I would then say whatever it is one would say when making a citizen's arrest. We need some education with respect to this as well. One of the niggling doubts in my mind is whether people will realize it is an arrest, not a punishment, and that once the person has been arrested the police come and then it is in the hands of our judiciary and our enforcement officers.

When we clarify language like this, there is always the headlines and then the educating of our citizenry. I am hoping the government will give some consideration to educating citizens about the changes that we are making, because we would not want people to misread the intent of this legislation.

I was looking at self-defence issues. Members may not know this but I have a black belt in judo. I have taught judo and have accidentally hurt a person very close to me because he insisted that I show him how it is done. He did not have the sense to fall when I asked him to fall. During a citizen's arrest, people need to know that they must be very careful. I would not want us to be in a position where everyday citizens turn to using undue force that could lead to escalations of violence, which then becomes more like vigilante behaviour than a citizen's arrest. All of these issues become very important.

I am proud that one of the things we teach our children is to not hit back if they are hit. We teach them to use words and find other ways to communicate. In the same way, when this legislation goes through, we need to take the time to stress that when people make a citizen's arrest, they are not to use violence. We are talking about a citizen's arrest in a common sense way. It is an arrest, not a punishment or a judgment.

The many legal experts who presented at committee were very supportive of the proposed changes to the self-defence and defence of property sections of the Criminal Code. They all acknowledged that this clarification was necessary.

As parliamentarians, when we hear those who practise law and the judiciary that there is a problem with the legislation or with what it is that we are asking them to act upon, it behooves us to examine it and make the necessary changes. Also, once we have made the necessary changes, we need to ensure we do our homework to ensure that citizens understand what it means.

When I first looked at the legislation I was a bit worried about some aspects of it. I kept thinking that I would hate for people to think that, if they have a gun at home or something like that, it is okay to use it. That is not what this legislation is about. It is about carrying out a citizen's arrest when the police are not around. Now there is the latitude to do a citizen's arrest if it is 10 minutes later.

I often wonder how many citizen's arrests are actually made across the country under the current rules. I only want to know this out of curiosity because I do not have this information. From the kind of publicity it gets, I would say that it is probably not too many. I do not see that this change in wording to give clarity will lead to a huge number of people chasing criminals and wrestling them to the ground in order to make a citizen's arrest. Most citizens are peace-loving people. They will not want to do this. My tendency would be to pick up the phone and dial for help as quickly as possible. Despite the fact that I have a black belt in judo, I still would not want to be tackling any of these situations myself.

Thankfully, nowadays almost everybody has a cellphone on them which makes it much quicker and easier to contact the police and call for help. I would tell people who might contemplate making a citizen's arrest to have their phone on and ensure they connect with people straightaway. I would tell them not to use any kind of violence, either verbal or physical, to make the arrest. They should not put their own safety at risk. That is not the intent of this legislation.

Just as we teach our children not to hit back, in the same way the role of our citizens when they make arrest is to use normal language, make the arrest and do not get into anything else. If someone tries to run away, people should take a quick picture with a cell phone. They should not try to chase the person down the street but should try to talk to the person instead.

I have heard in the debate today that there are some other amendments that would narrow the self-defence actions that some people have had concerns about. I am sure that when the bill hits the other chamber those people may want to take a look at those.

I support this legislation as it is right now for the simple reason that we need to give some rights to individuals when it comes to self-defence and defence of property. We do not want to tell people to just stand there if they are being physically attacked. If people are watching that, then we want them to have the authority to do an arrest, which t might be enough to stop whatever altercation is happening.

I do agree with my esteemed colleague down the way who said that we need to take a look at the Criminal Code in a more comprehensive way. We have been debating a number of bills in the House that would protect our communities.

I had a meeting with a mayor in my riding. People there are pleased that the crime rate is actually going down. However, I would say that we have a lot of work to do when it comes to proactive prevention work. Our best attack to fighting many of the small level crimes that happen in our communities is to have preventive programs from a very early age.

I love the programs that exist, or that used to exist before all the budget cuts, in some of our elementary schools. They worked on self-esteem and communication skills and would also teach students how to use words instead of hitting back, how to take on bullies and how to speak out when they saw something happening that was not right.

Also, we need to invest. We need to work with our provincial partners to invest quite heavily in secondary education to make sure we have the kind of proactive preventative programs that will raise awareness among youth, give them other tools, work on their self-esteem, work on their communication skills and work on major social challenges facing them so that they are not tempted to look at other ways or to turn to crime in order to make a quick buck or feed a habit.

All of those kinds of prevention programs are really important. In our communities, even for those who have left school, proactive prevention programs are still the best way to go.

Often people say that if we could spend just one dollar on prevention, we could save about $100 on punishment later. This is another area to consider when we are looking at crime in our communities and how to take it on. Instead of a huge prison-building agenda or putting more people in prison, we could put more money into proactive preventative programs that actually get to the root causes of crime. I think that is really critical.

We have to look at some of the social impacts of poverty. We have a very high child poverty rate; how do we address that? How do we address some of the addiction issues that exist in our community that lead to more violence in our communities and the use of guns?

As a high school counsellor, one of the things I learned is that making really strict laws does very little to reduce crime. It actually pushes a lot of stuff underground, and everybody becomes more sophisticated. What actually does reduce crime is a proactive prevention program that tackles the root causes.

One of the biggest things I found when I worked with high school students was the area of self-esteem. Another was finding productive activities in the communities that youth can participate in, activities that give them a sense of belonging and allow them to work on those issues instead of being tempted into some other arenas.

When it comes to self-defence, I noticed at the committee stage that there was a lot of discussion about victims of abuse and how they will react in a situation.

I have worked with refugee students, students who have come here from very violent countries and from refugee camps where they even have to fight for food. I was called into a classroom where a student had hit a teacher and literally knocked him out. That was totally unacceptable, but working with the student, what we found out when we looked at how he had lived his life—how he had had to fight for food—was that when the teacher made a certain movement, the student thought he was going to be hit. He went back to being a refugee on the run and was in self-defence mode. Once the teacher understood that, it led to reconciliation between the two. They developed a really good working relationship.

In the same way, when we are looking at some of the abuse against women in our communities, let us take a look at prevention programs and education programs.

One of the key issues I want to stress once again is that this is citizen's arrest, not citizen's punishment or citizens passing judgment.

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

Mr. Speaker, I thank my hon. colleague for Newton—North Delta. I think she put very well the concerns one would have in looking at a bill that expands the access to citizen's arrest. As a matter of fact, she made a point that I had previously made at second reading, which was that the most appropriate response in our technological society to most events when one feels at risk or sees a criminal event is to take pictures or videos on cellphones and get them to law enforcement authorities, but not try to intervene in a situation that could become violent. We have too many innocent bystanders who have intervened in criminal activities and have ended up injured or worse.

Although some amendments were accepted, I think we have to be mindful that earlier in this session of Parliament, the routine for bills from first reading to third reading was that no amendments were acceptable. However, we have certainly seen a maturing in the committee process for some amendments, such as the one from the hon. member for Mount Royal, which significantly improves the criteria on the self-defence side of the act.

With regard to the acceptability of Bill C-26, I would ask if the hon. member for Newton—North Delta agrees that it would have been preferable to follow the advice of the Canadian Bar Association and leave subsection 494(2) of the Criminal Code alone.