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

[Jonathan Tremblay, NDP, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I thank my colleague for her very eloquent speech, which proves that it takes more than one measure to advance security in Canada. I am often in touch with community organizations and street workers in my riding, who often work outside the established order, if I can put it that way.

The NDP supports the current bill. We will study it in committee to ensure that it does not lead to abuses. I would like to expand the current debate somewhat to say that this type of bill is not enough to prevent crime.

Could my colleague give us some more details about that? What other solutions could we bring forward? These days, it seems that the current government is somewhat less interested in prevention. What solutions can we suggest to reduce crime in Canada?

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, there is a disturbing trend. One of the fastest growing populations in prisons is women. Often they are in jail because they are stealing, and they are stealing because of deep poverty. I know of a person who stole diapers because she just did not have the money to buy them for her daughter, I believe. She was caught and put in jail. In some cases, especially for women, poverty is the root cause of some of their criminal activities. As legislators, we need to look at that and see if we could do something to make poverty history.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I wish to inform you that I will be sharing my time with my colleague from Compton—Stanstead.

This bill would amend the Criminal Code, in particular subsection 494(2) on citizen's arrest, self-defence and the protection of property. My speech will mainly focus on citizen's arrest and self-defence.

The amendments would make the legislation more flexible. For example, they would allow a person to arrest someone without a warrant within a reasonable time. Often, as In the case of a number of the examples provided today, a person is attacked, may not necessarily fight back immediately, but may do so subsequently. It will be up to the courts to decide what is a reasonable time based on the circumstances. The legislation provides the courts with a framework for making decisions.

The second part concerns self-defence. In committee, the NDP proposed nine amendments to the bill; only two were accepted and seven were rejected. Even though the NDP would have preferred that all nine amendments be accepted, it recognizes that the law needs to be amended and that the bill addresses certain shortcomings and updates the legislation. For that reason, the NDP members support Bill C-26.

It is important to mention—in case the government is listening—that the NDP had proposed an amendment in order to add a subjective aspect to self-defence and to include situations of spousal abuse. This amendment not only included spousal abuse, but also cases of 18-year-olds who still live with their parents and who are abused by one of their parents or a member of the family and have been for many years. This might include any situation where a person has a history of violence.

Battered woman syndrome often comes up in the courts. However, this syndrome is not necessarily recognized. A person who has been a victim of repeated acts of violence might perceive matters incorrectly when in a violent situation. Their reaction to their attacker might be unpredictable.

It is important to know, when we are talking about spousal abuse, that the attacker—the spouse, the husband, or whoever—will not necessarily expect that reaction. I am also thinking about the situation where an 18-year-old might want to protect his mother from being attacked by his father. Someone who is raised in a violent setting might have an unexpected reaction to a relative or loved one who commits an act of violence.

The proposed amendment asked that the court assess whether, in the person's eyes, the person's actions were reasonable in the circumstances. In some situations, the court might take into account this type of history. Including this in the legislation provides a framework for this type of situation. This principle was created through jurisprudence and might differ from one province to another or one judge to another.

Hence, the interpretation is really based instead on evidence and testimony. In certain cases, the fact that it is not included in the legislation may, perhaps, be damaging to certain victims. In fact, I am talking about victims. On several occasions, women who have simply sought to defend themselves against their spouses have themselves been accused of assault. As the member for Gatineau mentioned, we have even seen cases where people no longer wish to intervene. I remember a case in Quebec, for example, where a person dove into the river to save somebody. However, the person who was rescued got injured in the process of being removed from the river and sued the rescuer for assault and battery.

Simply including this in the legislation will give victims of crimes and people seeking to defend themselves the assurance that they themselves will not be prosecuted for battery or assault.

In fact, an historical context is really important here because in several sections of the Criminal Code, there is an objective component that deals not only with assault and battery, but also the intention to hurt somebody. In the case of assault causing bodily harm, the person must have had the intention of causing bodily harm. Bodily harm is identified, but so too is the intention behind it. In self-defence, the issue of intention is not relevant. For example, a victim of domestic violence who takes a pot and hits her attacker on the head with it did not intend to inflict a wound, but rather to defend herself.

I think that this is really important. There are several organizations that share this opinion, one being the Canadian Bar Association. I read in its recommendations, which were based on its review of the bill, that it proposes that the clause be amended to read “the act committed is reasonable in the circumstances as perceived by the accused”. Perception therefore plays a very important role.

The government’s amendment is slightly different to ours. The NDP nevertheless succeeded in having an amendment passed that requires the court to consider the personal situation of the person who used self-defence. The wording is, however, not as precise as what the NDP proposed.

For example, in a situation where two men fight, self-defence is often more difficult to prove. However, let us consider someone who is 18—I often use this example—and has grown up in a violent household. Every day, he sees his father beat his mother and one day he decides to stand up to him, because his mother refuses to defend herself.

In my opinion—and I hope that the government hears this—it is important to be precise about this kind of amendment. Often, the courts need legislators to guide them in the decision-making process. Legislator must take their role seriously and provide a legal framework for these kinds of situations.

I am not criticizing the bill. I am simply proposing some potential improvements. It is a step in the right direction. We proposed nine amendments. We will amend the Criminal Code in the hope that we might continue to improve it in the years to come.

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

Mr. Speaker, I would like to congratulate my colleague on her excellent speech.

Could my colleague suggest restrictions and parameters that could be imposed on a bill of this kind in terms of the concept of self-defence?

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, the section that was in the Criminal Code before—I do not have it with me—was quite complicated because there were a number of quite similar situations that followed one another. It was often difficult to apply the section to a specific situation because it was quite unclear, and that is why the section was amended. I can say that there are a number of situations. The bill includes a number of criteria that the court can take into consideration. For instance, it talks about the nature of the force. If someone is attacked with a knife, what is the nature of the force? Would a person who responds with a gunshot be acting in self-defence?

As a person who will soon be receiving a law degree, I must say that it is left to the discretion of the court to judge according to the guidelines provided by the legislator. There are a number of criteria such as size, age, gender, history and subjectivity. Once again, determining whether or not someone was acting in self-defence is up to the court.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, our party is moving in favour of this particular bill because there has been some movement toward improving the bill. However, what concerns me as a former environmental enforcer is that when we come forward with new laws, it is important that the government also come forward with a compliance strategy. That may be particularly important in this case.

There have been a number of questions raised by members in the House about exactly how people would determine what reasonable force is and about how reasonably close to the incident they are in intervening in order to seize and detain the person. When it is made known that this new measure will be in place, does the member think it might be useful for the government to come forward with an enforcement and compliance strategy to inform shop owners or property owners of the limited extent to which they may detain persons, as well as to inform school children, youth and so forth that there may be the potential for a shop owner or some property owner to move to detain?

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, as I said to my colleague, with regard to the way of determining what reasonable force is, it is very important that the legislator provide the courts with the clearest possible guidance. I was speaking of the subjective element in the bill in relation to domestic violence but also in relation to people with a history of violence. Force that may be considered an unreasonable response in one situation might well be considered reasonable if there is a history of violence. It is therefore the role of the government, as my colleague said, to inform the people but also to provide guidance to the courts with clear and stable guidelines that will make it possible for everyone to be judged on an equal footing. It is important that there be no inequality in one situation or another.

With regard to self-defence and citizen’s arrests in corner stores, in the case of young people, I must mention that the Criminal Code does not necessarily apply the same way to children as it does to adults. For instance, a minor may commit a crime. I will not get into a debate about the imposition of adult sentences on children. I have already said my piece about that. I believe that young people are considered under domestic and international law as people who should not be judged as adults. It would therefore be up to the legislator to decide what must be done.

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

Mr. Speaker, this is a serious subject. We have said repeatedly that we will support the bill. I am by no means an expert in law and I would like to tackle this from another angle. In the few classes and courses I took in law, I remember being told something repeatedly about creating legislation, whether a law or regulations. Even if a law is being only partially amended, we must take into consideration everything about its environment, about how it is applied on the ground and in the courts, and about the repercussions it can have from coast to coast to coast.

First of all, I would be remiss if I did not state my personal position on this bill's intention. In my opinion, peace cannot be achieved through messages of hostility and distrust towards others. Peace and harmony in the world and in our modern society begin with the principles of co-operation and non-violence. Nevertheless, this does not take anything away from the principles of self-defence, the protection of property and mutual aid, which are also among our fundamental values of self-determination.

However, when a government's economic policies prevent it from providing the people with an adequate income and social fabric, it may have missed the point. A strong social fabric creates harmony within a community or society. It fosters hope within society, among people, and it very often prevents people from doing bad things.

The same idea applies to employment. Once again, I am not saying that we should not make laws governing citizen's arrest and self-defence. However, if we cannot create an environment of social and economic prosperity for all of the people of this great land so that all Canadians can reach their full potential and live without worrying about the future, we have failed.

Our great nation must focus on helping vulnerable communities and the poorest members of society, and on creating an environment in which social tensions are, for all practical purposes, non-existent. I know that sounds utopian. Still, it is our job to eliminate bad deeds from our society.

Often, geography and demographics are an indication of the poverty in which people are living in various regions of Canada. Canadians must clamour for changes to occur as quickly as possible because the social and economic environment is the responsibility of the federal government.

I like to think that love, hope and optimism are much easier to envisage and achieve, and that they carry hope for our future. I must pay tribute here to the man who inspired these lines, the late Mr. Jack Layton. I like to think that the future belongs to us and that it is in our hands. We, as elected decision makers in this democratic parliament, if there is anything left of it, are the bearers of this message of hope for our fellow Canadians.

I would therefore like to continue this debate and consider the notion of citizen's arrest, which is tolerated in most of the modern day world. It is worth exploring this notion before making any decision regarding this legislation which, as my colleagues have mentioned, the NDP is going to support.

The arrest of a citizen or a wrongdoer by a person who is not a law enforcement officer goes back to the medieval era in Great Britain. At that time, it was more common to seek justice for oneself because the state did not really concern itself with the safety of commoners, and protection of the public was reserved more for the upper classes, the elite.

This is also seen in some modern-day industrialized societies. With the industrialization of civilization and life increasingly organized around an economic society, governments have attempted to make our environment safe. Since the 20th century, in most countries that use common law, citizen's arrest is not only recognized as quite an exploit, it is written into law.

The first subsection of section 25 of the Criminal Code states:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

What does “private person” mean? I would have liked a better definition of the word “private person” and “necessary force”. Will the use of firearms be authorized or condoned? I would have liked to see these terms better defined, especially when the emphasis is placed on citizen involvement, which is the very basis of this bill.

Clause 3 also amends subsection 494(2) of the Criminal Code:

3. (1) Subsection 494(2) of the Act is replaced by the following:

(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

(a) they make the arrest at that time; or

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

The notion of “reasonable time” during which an arrest may be made is also problematic, in my opinion. This highly subjective and inevitably biased concept will require some time before it is suitably defined by the courts.

The notions of urgency, survival and a number of other important factors also have to be defined in order to examine what a "reasonable time" is.

The border also figures in cases in my riding. There are borders in Stanstead and in a number of other small communities, where people crossing the border illegally sometimes commit crimes against farmers. The farmers are always wondering what they can do about it. Most of the time, they leave them alone. However, on occasion the farmers have taken matters into their own hands and unfortunate things have happened. No one has died, but some farmers have ended up in terrible situations just the same.

If we leave it up to the judges to dictate the rules to be followed, it will mean that, once again, we as legislators have not performed our duties as we should have. This is a very sad state of affairs, and it has also become the reality in this 41st Parliament.

I acknowledge that the legislation in this particular area of crime must be improved, but should we be asking instead why we have to do this?

As I said, the social fabric of a society is extremely important, because it allows each and every one of us to develop and contribute to it. The belief that that we all can contribute to the country's development is invaluable. Many different types of crime can be overcome this way.

Taking the law into one's own hands inevitably means putting one's self in danger specifically in order to stop a crime, whether public or private. Many people think that interacting with the perpetrator or perpetrators of a crime is a challenge.

I am aware of the case of one man who really did take things into his own hands. The result was the appalling death of a young teenager: the man was chasing him, only wanting to catch him, and he just drove right over the teen. These are horrifying incidents. We do not want these situations to happen and we do not want to see, as is happening with our neighbours to the south, these deplorable actions committed by citizens in situations that supposedly involve self-defence. Earlier I asked my colleague to define "self-defence" and "we are protecting our country, our property, our lives".

We have to consider our culture of respect for the courts and legislation and our traditions of peaceful life in our communities, in order to fine-tune the legislation and to make it suitable for use in the field.

In conclusion, Canada has always been a great country to live in, and one where people are used to a peaceful life, a democratic society, a stable economy, a low crime rate and a sense of mutual support and compassion.

Although many of these aspects of our society are in jeopardy and a New Democratic government would quickly handle them, the Conservative government is doing nothing to change the socio-economic situation, especially in the regions. In some regions of Quebec there is no public safety. We have to think about the civil society we want to pass on to our children, because they are the ones who will have to make decisions about the future and accustom themselves to the kind of country we will be leaving to them.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I would like to commend the hon. member on his speech.

Since this debate began, we have seen that citizen's arrest must be an exception and that calling upon law enforcement must be a priority. In this regard, can my colleague comment on the importance of educating and informing the public and civil society in the event that this bill is passed?

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

Mr. Speaker, that is a very good question. It is very important to inform the public when we correct laws, particularly when changes are made to the Criminal Code. This can be done through education, training and especially through the dissemination of information. This is extremely important because, as I said, from coast to coast to coast, people's lives could be in danger and could change as a result of the application of such a bill, particularly in light of the actions some people may take to protect their property. This is a very important aspect, which, unfortunately, is often overlooked by this government.

[Denis Blanchette, NDP, Louis-Hébert, QC]

Mr. Speaker, I thank my colleague for his passionate speech. I liked his speech for a number of reasons, including the fact that he talked about our responsibility as a parliament and as legislators. It is important to strike a balance between the judiciary and the legislature. We have seen responsibility sliding more and more towards the judiciary and away from legislators.

In addition to these very important considerations, I would like to know what parameters my colleague would like to see in rural communities so that this bill could be properly implemented in those areas, given that security is sometimes very different in rural and urban communities?

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

Mr. Speaker, I would like to thank my colleague for her excellent question. When we change a law, we have to be aware of its repercussions and implementation on the ground. In more rural, agricultural regions, where there are more self-employed workers and small and medium-sized businesses, and in resort areas, implementation can be quite different, particularly in Quebec.

I would like to focus on the situation in Quebec because the Sûreté du Québec was restructured a few years ago. A number of municipalities, including some in my riding, have met with me to say that it cannot even be implemented because the Sûreté du Québec is not even there. Even if an arrest were to happen within a reasonable period of time, it would not be possible because it would take the Sûreté du Québec half an hour, an hour or even an hour and a half to get there. What would happen to citizens making such an arrest?

Implementing such measures will be very difficult in some regions, not just in Quebec but across Canada. We might have to make sure that laws we pass in the future are clear enough for judges to do their job so that they do not have to come back to us and tell us to do our job.

[The Acting Speaker, Bruce Stanton]

We have enough time for a quick question and a quick answer. The hon. member for Laval—Les Îles.

[François Pilon, NDP, Laval—Les Îles, QC]

Mr. Speaker, I want to thank the hon. member for his fine speech.

Knowing that the Conservative Party has abolished the firearms registry, is my colleague not concerned that certain store owners might be tempted to keep a gun on their premises at all times, even if we vote in favour of this bill?

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

Mr. Speaker, I want to thank the hon. member for his question. That is always the NDP's concern. How are storekeepers and people who own small businesses and vacation spots supposed to protect their property? That question remains unanswered. There is no answer for that.

Nonetheless, there is a risk, especially when some people watch the news on TV and see that in the United States people use weapons to defend themselves without much regard for the consequences to others. Vigilante justice would be unpleasant and absolutely unacceptable.