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.

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, I had this thought: it is perhaps because I have had the benefit of participating in all the committee meetings, listening to all the witnesses, thinking things through, knowing what the Criminal Code looked like before, and seeing what has become of subsection 494(2). When I say that I am reasonably satisfied, it is because the bill does not make things worse.

If I had one comment to make to my colleague, who is also a lawyer, it would be to tell her to think of the bill in this light: it does not make section 494(2) worse in terms of citizen's arrest. It creates a number of criteria to which I have no fundamental objection. I do not think that it is awful; it is simply a little vague.

What does the bill mean where it says, “make the arrest within a reasonable time”? For a government that wants to replace judges more often than not, it is again a case of leaving it up to the court to decide what a reasonable time is and believing, on reasonable grounds, that arrest by a peace officer was not possible.

The wording is, notwithstanding, sufficiently serious given the types of cases that will arise and considering the fact that it has been confirmed that these are not situations that occur frequently. The fact that the bill also refers to “a person authorized by the owner” indicates that it cannot be just any old person. Once again, the other criteria must be met.

If we vote against Bill C–26 because it is not perfect, we will be depriving ourselves of an extremely important tool. I would like my colleague to think about that before it comes time to vote.

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, before beginning my speech on Bill C-26, I would like to mention that this is my first debate as the official opposition's new justice critic. I would therefore like to thank the leader of our party, the hon. member for Outremont, for the confidence he has placed in me.

I would particularly like to thank the hon. member for St. John's East, who has done absolutely extraordinary work on this file, as well as his entire team. Over the past few months, we examined Bill C-26 as a team.

I would also like to thank the hon. member for Trinity—Spadina. Those who have been following this issue know that she is behind Bill C-26. This bill addresses the famous Lucky Moose Food Mart case, which served as a wake-up call for members of Parliament who are now trying to determine how to resolve this problem.

I also extend my thanks to the Standing Committee on Justice and Human Rights, where we studied many bills, including Bill C-10 on law and order, which was very thick and had many amendments. I use the term “thick” in reference to the size of the bill and not the content. We also studied Bill C-19 on the registry. We looked at many files, but this was the first time, since I was elected on May 2, that I felt that there was co-operation and that the two parties and all the people around the table, no matter their political stripe, were truly trying to find intelligent solutions to the problems and serious issues raised.

This bill involves amending the Criminal Code, which has been in existence for quite some time and has been interpreted by the courts and the Supreme Court. It is not necessarily an easy task. The member from the Green Party pointed out a problem with citizen's arrest that was raised at the committee hearings. I will come back to that later in my speech.

Having said that, I hope that the members opposite will adopt this new way of doing things because the Standing Committee on Justice and Human Rights does not meet to engage in petty politics. We meet because we know that these laws will have a direct effect on the lives of Canadians. We discuss criminal acts that have an impact on the lives of people, whether they are the victims or the accused, who benefit from the presumption of innocence. As guardians of the charter, we must ensure that the legal provisions and amendments to such laws are made properly.

Let us come back to Bill C-26. What is it all about? This bill amends a few sections of the Criminal Code, especially on self-defence, whether in relation to people or their personal or real property. It is the main purpose of this bill. The other part concerns citizen's arrest in a very specific context, which was the starting point for the private member's bill introduced by my colleague from Trinity—Spadina.

The first part on the lawful defence of property and persons, especially self-defence of persons, had been requested by the courts for a very long time. Finding a way to amend the Criminal Code was not easy. Earlier, I asked the hon. Parliamentary Secretary to the Minister of Justice a question about balancing the objective and subjective criteria with regard to the reasonable nature of the force that is used in self-defence. I think people understand what self-defence is. When we think we are being attacked and our lives are in danger or we are going to be seriously injured, we defend ourselves. That being said, it must be determined whether the act of self-defence was lawful or not, what the provocation was, whether necessary force was used and whether the context was appropriate.

It is not obvious. Over the years and decades, since the Criminal Code of Canada was created, the courts have realized that it is not always obvious. Over time, as things have developed, in certain cases defences based on scientific or medical reasons have been used. Take the battered woman syndrome for example.

I remember when I was hosting a radio show some years ago and there was a murder in my region, in Aylmer. A woman had killed her husband with a gun. The entire region was outraged simply because for most people a murder is a murder. We finally learned the facts in the case and found out what had happened. The woman had been terrorized day after day by an abusive husband who beat her and sometimes held a gun to her head. It was atrocious. Nevertheless, people said that did not matter. To them, all the woman had to do was leave home, get out of there and her life would not be in danger, but can we really judge another person's circumstances?

The courts began to develop certain plausible, allowable defences and to extrapolate the criteria mentioned in the Criminal Code, but every time, they came back to us and said that it was up to us as legislators to clarify and tidy this up a bit. This has not always been easy, especially when talking about defence and provocation.

I practised a little criminal law early in my career. One day, a man walked into my office. I am not revealing anything, since no one could ever guess his identity. He was a rather short man and he had been beaten by a woman who was taller than him. He pleaded self-defence, while she maintained that he had provoked her. This gives you some idea of the cases that go before criminal courts. In that particular context, only the gender criterion might have been considered. Basically, we sometimes have an impression, a preconceived notion, that because he is a man, he cannot be abused, or that because a woman is very tall, she cannot be abused by someone shorter than her, and so on.

The courts were often frustrated by these kinds of situations. It was important that the criteria not be too stringent. That is more or less what the Canadian Bar Association and the Barreau du Québec said in committee. As the parliamentary secretary said, we heard from several groups, such as the Barreau du Québec, the Canadian Convenience Stores Association, the Canadian Association of Elizabeth Fry Societies, the Association of Professional Security Agencies—I will come back to this group, the Canadian Bar Association, the Canadian Police Association, as well as universities, lawyers and other groups.

What came up again and again, especially concerning self-defence and the criteria mentioned in section 34 of the Criminal Code, was the importance of striking a balance. There was some concern about the government's wording of some of the clauses and amendments to Bill C-26 concerning a better balance between these subjective and objective elements. For example, the Canadian Bar Association agreed with me in committee that this balance appeared to be lacking, which is dangerous. The bill seemed to emphasize the objective criteria, which could jeopardize defences such as self-defence based on battered woman syndrome, for example.

I want to point out right away that the official opposition did propose seven amendments to ensure a balanced approach. We proposed objective and subjective criteria to enable the trial judge who hears the facts of the case to determine whether actions were provoked, assess what happened between the two parties and analyze the whole thing.

We did not succeed in getting all of the amendments included even though they would have made the provisions much clearer. But we will see. People will have to adjust. We are hearing that a lot these days, particularly in Quebec. We will see how the courts interpret all of this and whether the bill is balanced. I am reasonably confident that the amendments my colleague talked about earlier will ensure that balance.

I want to make it clear that section 34 of the Criminal Code, as amended by the bill, starts out by saying that a person is not guilty:

34. (1) A person is not guilty of an offence if

[This means that all of the criteria must apply.]

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[This one, (c), is often problematic.]

(2) 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:

A list of factors follows. We appreciate that the government agreed to include our amendment. We want to ensure that offences are analyzed based on the perspective of the person directly involved rather than on that of someone who was not involved at all. Sometimes, it is by putting ourselves in someone else's shoes that we come to know what that person saw and we can really understand the impact of his action.

The physical capabilities of the parties to the incident were added. As I mentioned earlier, to look only at size, age and gender could cause confusion. I know people who are only 5' 2'' who have black belts in karate and, let me tell you, they could do some damage to someone who is a sturdy 6' 4'' but who has never played a sport in his life. We therefore wanted to avoid this type of prejudice.

Paragraph 34(2)(f.1) refers to the history of interaction or communication between the parties to the incident. Some people have difficulty understanding what that means, but those who are very active users of social networking sites, who are involved in blogging and who talk to different people understand what this means.

I once had a written conversation with people I did not know. I did not even know where they lived. I must say that, at the end of that conversation, I had the willies. I hoped that those people did not live nearby because I was seriously concerned.

Since we have new technologies, we have to adapt to this type of situation. Sometimes, people can be terrorized by means of written messages or threats delivered in other ways.

Given the amendments that were made in this regard, I am confident that we have managed to find a balance. The courts will still have access to the committee's work and to the report, and they will be able to make informed decisions when they are called upon to interpret the new clauses on the protection of property, clauses 34 and 35. At least that is what I hope.

As I told my clients, those who came to see me, if we had a perfect knowledge of law and wrote perfect legal provisions, there would be no need for lawyers. Since laws are often drafted by lawyers, to date, I have yet to see a provision that is so clear and straightforward that there is no room for any interpretation. Likely, down the line, we will discover additional factors that should be added to clause 34.

With regard to the legitimate defence of property, as was expected by the legal community and the courts, no distinction is made between personal and real property. An attack on real property was always considered to be of greater consequence. If a person suffered an assault in their home or something like that, the courts tended to be a bit more strict in their assessment of the factors, when the person claimed self-defence.

In the case of the theft of a cassette from a car, we might say that self-defence was not necessary. We must always look at the concept of necessity.

I would now like to examine the most difficult part of the bill to understand: the amendments proposed by the government. I would like to point out that what I find the most worrisome is that the government has not accepted any suggested amendments at all.

The comment or the point I would like to make is as follows. Section 494(2) of the Criminal Code deals with citizen's arrest, which was the reason for Bill C-26. That is why we cannot withdraw clause 3 of Bill C-26, because it would completely gut the bill.

I am fully aware of the fact that there was the political will to amend the bill because of what Mr. Chen went through in Toronto.

These are the facts as we heard them. Mr. Chen was working at his convenience store when the store was robbed. A short time later, the shoplifter had the nerve to return to Mr. Chen's store. However, Mr. Chen recognized the shoplifter and stopped him before he had a chance to commit a second theft. The store owner, Mr. Chen, tied up the shoplifter and put him in a van—the only place he could keep him until the police arrived. Believe it or not, it was the store owner who was charged with forcible confinement, among other things. The justice system amazes me sometimes.

I worked in the media long enough to know how sensational this type of story can become across the country. The story made it all the way to Gatineau. That being said, legal experts have told us that notwithstanding Mr. Chen's case, the Criminal Code, as currently drafted, should have given plenty of latitude to the police, who could have chosen not to arrest Mr. Chen. This could have been resolved without charges being laid against Mr. Chen.

To ensure that this does not happen again, the government introduced Bill C-26. At the time, my colleague from Trinity—Spadina also introduced a very similar bill. I will read the proposed subclause 3(2):

(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.

I am sure that the infamous reasonable grounds are going to be interpreted in all kinds of ways.

I have a few problems with this clause because when it says “or a person authorized by the owner”, it obviously refers to security guards, and that bothers me.

In committee, we heard from witnesses from security agencies. An entire sector of the economy collectively jumped for joy over this new opportunity. The guards said it was finally their turn to shine.

To their credit, I must say, they are already working in stores, but not in small convenience stores. It is not the Mr. Chens of the world who will benefit from this, but rather superstores like Walmart and Target.

What worries me is that some of them like to pretend they are police officers, as though they are replacing the police. However, the defendant must be able to demonstrate that no peace officer was available to make the arrest. We were told that, quite often, it was hard for police officers to respond immediately to a call concerning shoplifting, because it was not necessarily a priority for them.

We also need to think about rural communities. Personally, I am a city girl. We often forget that many people live in rural settings, where there is not necessarily a police officer posted on every street corner.

That is all I have to say about the notion of a reasonable time.

However, we were definitely convinced that defining the notion of a reasonable time would prevent the court or the judge from using their own judgment in that regard. With that in mind, even though we have some reservations and we are anxious to see what will happen with all of that, the NDP plans to support Bill C-26. In its current state, it already answers many questions people had, which the courts often referred back to us as legislators. In that context, we hope this will do what it is meant to do.

In closing, regarding section 494 and citizen's arrest, one thing is clear: the government committed to ensuring that convenience store managers know that it is not open season for them to start making arrests left, right and centre, without thinking carefully first. No one is asking or recommending that they do so. We must leave this up to the professionals, the people who have been trained to do so. Otherwise, there could be serious consequences, especially if someone makes an illegal arrest. That is all I have to say, and I now welcome questions.

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

Madam Speaker, I thank my hon. friend for his presentation of Bill C-26.

Some members of the House will know that I had hoped to present an amendment to the bill this morning to deal with the section dealing with citizen's arrest and creating the new possibility of arrest within a reasonable time. This is section 35.3 of Bill C-26, which would seek to amend the existing Criminal Code subsection 494(2).

My question is on this specific point. The concern shared by many, but particularly put forward to committee from the Canadian Bar Association, is that this opens the door to a potentially greater role for private security forces instead of the police and that it creates the opportunity for people to go after someone long after the event. How is the average citizen to know what a reasonable time is? This opens Bill C-26 to considerable abuse.

I would ask my hon. friend why it was that we could not have deleted this one section that opens the door to some mischief that is not necessary for the overall purpose of the act?

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

Madam Speaker, I am pleased to be able to speak once again to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

I would like to begin by thanking the justice and human rights committee for its work in studying the bill. The committee held six sessions that heard more than 15 witnesses from outside government. The committee heard from a number of associations such as several pan-Canadian groups including, among others, the Canadian Bar Association, the Barreau du Québec, the Canadian Convenience Stores Association, the Canadian Police Association, the Canadian Association of Chiefs of Police, the Criminal Lawyers' Association and the Canadian Association of Elizabeth Fry Societies. The committee also heard from a number of individuals including David Chen, a local criminal defence lawyer and several law professors.

The diversity of witnesses who appeared at committee reflects the fact that the proposals in Bill C-26, though only a few pages long, touched a long range of issues that are important to Canadians. The committee no doubt benefited immensely from hearing the perspectives of specific populations such as police officers, small-business owners and their families, private security interests and victims of domestic violence. The committee undertook a thorough and profound analysis of the legislation, which has implications not just for special populations but for all Canadians.

I would especially like to thank the committee and the witnesses who testified for their commitment to balancing the needs of victims of crime to respond to emergency situations on the one hand and ensuring on the other hand that the law discourages vigilante responses to crime and the escalation of violence and the abusive exercise of arrest powers. This is always difficult to balance, but at the same time we believe that members on all sides of the House should wish to see this balance struck appropriately.

The committee made several modifications to the legislation, which I will address shortly. I believe these modifications improved the legislation, and I would like to once again express my appreciation for the serious and professional manner in which all committee members approached these important and sensitive issues.

Members will recall that Bill C-26 proposes a responsible expansion of the citizen's arrest power and also includes a long-overdue simplification and clarification of the law of self-defence and defence of property.

With respect to the power of citizen's arrest, the expansion proposed in Bill C-26 is modest and limited. No one disputes the fact that arrests are primarily the responsibility of the police. However, in recognition of the fact that police are not always present when a crime is committed, the Criminal Code has long authorized citizens to arrest other citizens in certain specifically defined situations including in relation to a property offence. The critical aspect of the existing law is that citizens may only arrest a person they find committing a property-related offence at that very moment. An arrest made at a point later is not a lawful arrest and the arresting persons are therefore potentially liable to be criminally prosecuted for any of their actions that otherwise constitute an offence, such as an assault against the suspect. We know that sometimes this is not possible and so to avoid the unfairness of the law in treating as criminal the citizen who arrests another shortly after the crime was observed, Bill C-26 would modify the current law to allow the arrest within a reasonable time of that offence.

I know the committee did consider several motions to amend the bill to add additional limitations intended to prevent this sort of conduct. The committee did not agree to these proposals. This does not mean our government does not share the concern. Rather, it means we are confident that the proposals and the bill would not be construed or applied in this manner. The extended time in which arrest can be made would not be unlimited. It must be reasonable. This would allow, and indeed require, the court to inquire into the many relevant considerations. Most important among these would be the reason for the delay. The court could also inquire as to whether the delay had any particular detrimental impact on the arrested person.

Another relevant consideration would be the purpose of the law itself. In this context, the courts would be mindful that this would be a novel extension of an arrest power that is currently very limited. In interpreting it contextually, the courts would be in a position to constrain the extension in a manner that accords with its purpose. Whenever the court would find that the reason for a delay in making an arrest was inappropriate or otherwise unreasonable or that the delay caused an injustice to the arrested person or that it did not accord with the purpose of the law, the arrest could be found to be unlawful.

Furthermore, our government's confidence is bolstered by a safeguard that accompanies the expanded arrest power, which will further serve to limit the potential for abuse. This safeguard is a requirement that before the citizen makes the arrest he or she must reasonably believe that it is not feasible in the circumstances for a peace officer to make the arrest instead.

In other words, if an arrest is intentionally delayed for some particular purpose, it will be much more likely that the police should be called to the scene and make the arrest. If the police are not called and the arrest is made later, that arrest may be found to be unlawful on the basis that the arresting person could not reasonably have believed that the police were not able to respond. Taken together, our government is confident that these are reasonable and responsible amendments and that they should not unduly jeopardize the safety of Canadians. We urge all members to support them.

I will now speak briefly on the issue of the defence of person and property.

While the citizen's arrest reforms are fairly straightforward, even if they are somewhat controversial, the changes to the defences of person and property are more fundamental in that they completely replace the existing legal provisions with new and simpler ones.

The necessity to reform these defences stems from the fact that they are currently worded in an extremely complex and convoluted manner. In particular, our self-defence laws have been subject to decades of criticism by the judiciary, including the Supreme Court of Canada, trial counsel, criminal law academics, bar associations and the law reform bodies. Criticism has focused on the fact that the existing law is confusing and difficult to apply in practice. It is fair to say that the reform in this area is long overdue.

When the laws that set out the rules for emergency defensive action are confusing, we fail in our responsibility to adequately inform Canadians of their rights. Unclear laws can obviously complicate and frustrate the charging decisions of the police, who themselves may have difficulty reading the Criminal Code and understanding what is permitted. It is also extremely important. Self-defence can be raised by a person charged with murder. Self-preservation is perhaps the most fundamental entitlement any citizen may have, even more fundamental than the protection of one's property. It is essential that Parliament gets law reform in this area right.

Bill C-26 proposes a single new self-defence and defence of property provision that would be much simpler than the existing law, which provides for multiple variations of each defence depending on slightly different circumstances. The proposed new defences would reduce the existing law into its most fundamental elements, which are consistent no matter what the particularities of the situation are. We no longer need different rules for different circumstances. We only need one rule that is capable of being understood and applied in all situations.

I will now speak briefly to the issue of the defence of the person.

According to the proposed new law for defence of the person, people would be protected from criminal responsibility if the following three conditions are met: they have reason to believe that they or another person are being threatened with force; they act for the purpose of defending themselves or other persons from that force; and their actions are reasonable in the circumstances.

These are clearly appropriate elements for a new self-defence law. First, to be exonerated from a crime, people should have a reasonable apprehension of some kind of force. Second, their actions should be motivated by a defensive purpose. Self-defence is not a disguise for what is really revenge, for instance. Third, whatever actions are taken, if they are taken for a defensive purpose and in response to a reasonable apprehension of force, those actions should be judged to fall within the range of what a reasonable person would have done.

Most cases likely succeed or fail on the question of whether the actions were reasonable in the circumstances. This determination would be guided by the unique facts and circumstances of each individual case.

However, without limiting the nature and scope of factors that could be taken into account, the legislation does try to set out some of the more familiar and important considerations in a non-exhaustive list of factors. This list accomplishes several purposes. It is intended to signal to the judges that existing jurisprudence should continue to apply even though the elements of self-defence have been simplified. It should also assist judges in their duty to instruct juries about how to apply the law in a given case.

One of the most important types of factors has to do with an abusive intimate relationship between the parties to a confrontation. The watershed Supreme Court of Canada decision in Lavallee in 1990 acknowledged the difficulties juries can have in finding the behaviour of a battered spouse to be reasonable.

In particular, juries may not understand how battered partners might stay in abusive relationships or how they might come to predict future violence based on past experiences. If the jury does not understand how people in abusive situations can come to view their options, the jury is more likely to find their actions unreasonable and deny them a defence.

However, in the Lavallee case, the Supreme Court of Canada held that expert evidence can be called to provide an explanation as to why an accused did not flee when he or she perceived his or her life to be in danger. In this way the evidence can also assist the jury in assessing the reasonableness of the accused's belief about both the danger that he or she faced and the need to act as he or she did.

This type of case does not arrive often, but sensitivity to these situations is crucial. For this reason the history of the relationship between the parties, including whether there were prior acts of violence, is specified in the law as a relevant factor in the determination of whether the accused's actions were reasonable.

Other critical relevant factors include the nature of the threat and the response to it. For instance, whether the attacker threatened to break a finger or to kill; whether any weapons were present; and the relative physical abilities of the parties, such as their age, size and gender. So naturally, a petite elderly women and a fit young man may have different options available to them to respond to the same threat.

As part of its comprehensive study of the bill, the justice and human rights committee found that the list of factors could be improved in certain ways. It agreed to several amendments to the subsection of the legislation, all of which our government is in agreement with.

The first change was to the opening words of the provision. The original words read, “In determining whether the act committed is reasonable in the circumstances, the court may consider, among other factors...”. The committee agreed to changes to these opening words to say, “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”.

This change has several effects. First, it makes it clear that it is obligatory, rather than permissible, for the court to consider all relevant circumstances. This is an improvement in clarity. Second, it highlights critical factors, namely the circumstances of the accused who is claiming self-defence, the other party and the act itself. Our government appreciates the additional clarity.

The committee made a change to the wording of one of the factors. Factor (e) originally identified the size, age and gender of the parties to the incident. The committee agreed that the relative size, age and gender of the parties may often be relevant in determining whether a person's actions in self-defence were reasonable. However, based on representations from the Canadian Bar Association, the committee concluded that these factors will not always be determinative of physical ability. In an effort to be more clear, it amended this factor so that it now reads: (e) the size, age and gender and physical capabilities of the parties to the incident. Once again, the government agrees with this additional clarity.

The committee made one final change to the list of factors. It agreed to add a new factor, namely, any history of interaction or communication between the parties to that incident. I have already spoken to the factor that refers to the history of any relationship between the parties. The committee felt that this factor could well be interpreted narrowly to apply to longstanding, intimate relationships and so might not capture interactions that are more casual or infrequent, or involve any single incident, such as a single threatening email. The committee added the new factor to address this type of situation.

On the issue of defence of property, the proposed new defence of property would adopt the same basic structure as self-defence. All of the existing provisions would be replaced with a single, general test for defence of property that captures its essential components, while maintaining the same level of protection as the current law.

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

A precondition for the defence is that the property must be in the peaceful possession of the person when the interference takes place.

This term is part of the current law and will be maintained in the new law. It has been interpreted by our courts to mean that the defender of the property must be in actual physical possession of, or have control over, the property at the time of the threat or interference, and that the possession itself must be unlikely to lead to a breach of the peace and is not contested by others. This is the way in which possession must be peaceful. It must not be contested or risk violence or public disorder.

In closing, Bill C-26 clarifies and expands certain provisions which authorize Canadian citizens to undertake actions that would otherwise be prohibited where there is a real emergency involving either threat to property they possess or to the safety of persons.

It strikes the right balance between discouraging crime and confrontation on the one hand and permitting Canadians to defend their basic interest where no other options are available.

I urge all members to support the bill. The reforms are long overdue and represent a principled and measured response to complex situations.

[Peter Van Loan, Conservative, York—Simcoe, ON]

moved that Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the third time and passed.

The House proceeded to the consideration of Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), as reported (with amendments) from the committee.

Business of the House

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

Mr. Speaker, first let me acknowledge the important vote we had in the House last evening to approve this year's budget. Economic action plan 2012 is a low-tax plan for jobs, growth and long-term prosperity. Since July 2009, almost 700,000 net new jobs have been created in Canada. We are on track, and our budget seeks to achieve the same kind of long-term growth and prosperity.

Mr. Speaker, the House will adjourn this afternoon to celebrate Easter and Passover, followed by a pause to work in our constituencies. When we return on Monday, April 23, the House will have the sixth day of second reading debate on Bill C-31, the Protecting Canada's Immigration System Act.

On Tuesday and Wednesday, April 24 and 25, the House will consider report stage and third reading of Bill C-26, the citizen's arrest and self-defence act, for which I anticipate broad support.

Finally, on Thursday, April 26, we shall have the first allotted day, which will belong to the official opposition.

Justice and Human Rights

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I have the honour to present, in both official languages, the fifth report of the Standing Committee on Justice and Human Rights in relation to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

The committee has studied the bill and has decided to report the bill back to the House with amendments.

Canada Water Preservation Act

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I am honoured as the New Democratic Party critic for natural resources to speak to this legislation with respect to Canada's water resources. We have seen this legislation twice before in the House. We welcome the bill at second reading.

I know that many Canadians are interested in fostering the sustainable use of Canada's water resources and preventing the removal of water in bulk from major drainage basins in Canada. We know how essential water is as a resource for life, people and our planet. In many ways, water defines and distinguishes our country.

As a member from northern Ontario, my flights home to Nickel Belt and travelling around the north of this province remind me of the abundance of this resource and, equally, the importance of its safekeeping. We have in northern Ontario part of Lake Huron and all of Lake Superior. Moreover, there are numerous border crossings with the United States and joint water tributaries that remind me of the importance of good legislation to monitor and protect this resource.

New Democrats will be supporting this legislation at second reading because we want it to go committee to receive the scrutiny it deserves and to deal with several concerns that we believe need to be addressed. Among those concerns is the absence of any guidance to direct the Governor in Council in setting the definition of what constitutes a major drainage basin in the regulations. This is a crucial definition that, by and large, will determine the effectiveness or real power of this bill. Without the definition, we would talking about all or no drainage basin. If the definition chosen by the government includes none of the major drainage basin, the act could be rendered inapplicable.

We are also concerned that the act gives the government very wide regulatory powers, including the ability to redefine the scope of the expectations through regulations, as well as the ability to make regulations providing for any other expectations. These regulatory powers seem overly broad and could permit the government to rewrite the act using these regulatory powers.

Further, the prohibitions in the act appear to be limited to the removal of water in bulk through diversion, and would not apply to the removal of water in bulk via pumping of water into a ship or truck, for example. If we are to oppose bulk water exports, we need to ensure that the act covers all means of exporting our water.

Finally, this act contains an exception for manufactured water products, including bottled water and beverages, a large loophole that we believe is also worth examining at committee.

I commend the member for Lac-Saint-Louis for again introducing this legislation.

Canadians have had an interest in protecting Canada's water resources for decades, especially when it comes to the issue of bulk water exports. The NDP has always called for prohibiting bulk water exports. We believe that this should be a key component of a national water policy—something Canada does not have—that would establish clean drinking water standards, provide for rigorous environmental protection measures for water resources, and recognize water as a common right.

A number of major water diversion plans in water corridors have been proposed in the past 40 years. These corridors would have transferred considerable quantities of water from Canada to the United States. None of these projects got off the ground, for various reasons. However, this remains a possibility. We must pass rigorous legislation to counter such projects.

I have seen other precious resources in our ground mined and exported with too little regard for Canadian priorities and needs. That must not happen with our water.

This legislation before us today also calls to mind the NAFTA agreement and how it has long been considered a threat to Canada's water sovereignty.

On several occasions, the NDP has brought forward motions here in the House of Commons to protect our fresh water. In February 1999 after debate, the House of Commons adopted an NDP motion to place an immediate moratorium on the export of bulk freshwater shipments and inter-basin transfers. The motion also instructed the government to introduce legislation to prohibit bulk freshwater exports and inter-basin transfers and recommended that it not become party to any international agreement that compelled us to export fresh water against our will.

In that same year, 1999, the Liberal government of the day announced that it would consult the provinces and territories to develop a strategy that would prohibit the bulk removal of water from Canadian watersheds, whether for domestic purposes or export. Regrettably, the strategy did not address the trade issues and concerns posed by NAFTA, focusing instead on water protection through water management. There is a relative consensus that the Liberals' Canada-wide water accord, with its environmental focus, does not contain enough protection from bulk water export.

In June 2007, the House adopted another New Democrat motion calling for the government to initiate talks with its American and Mexican counterparts to exclude water from the scope of NAFTA.

We know that in 2010 the government tabled Bill C-26, which aimed to ban bulk water. The bill did not progress beyond first reading and, indeed, was quite a feeble attempt to ban bulk water exports. It actually left 80% of Canada's surface water unprotected, as it only contained a prohibition on the removal of transboundary waters and not a prohibition on the inter-basin diversion or transfer of waters into transboundary waters, which left the door open for water pipelines to be built, like those proposed in the 1990s. We also opposed that bill for not addressing statutory exceptions that permitted the export of bottled water or other beverages. In fact, the bill did nothing to address bulk water trade concerns.

We want the government to acknowledge that Canada's water resources need further protection with respect to NAFTA via negotiations leading to an agreement that excludes water from NAFTA as a commercial good. Water should instead be listed as a human right and we need an acknowledgement of our respective sovereign rights to manage water as part of the public trust.

New Democrats have a history of defending Canada's water. In both 1999 and 2007 the House adopted NDP motions instructing the government to take steps to better protect Canada's water resources, and we are urging the government to respect the intent of those motions.

We must get it right this time to genuinely protect our water. We know that an overwhelming majority of Canadians support a ban on bulk water exports. We need to ensure that Canada maintains control through both a bulk water ban and the protections offered by a national water policy.

Bulk water removal poses concerns not just for the Canadians' drinking water but also for the cumulative effects it could have on the ecosystems of our water basins and watersheds. Policy-makers should also consider issues of water consumption as well as population and economic growth.

Further, we need more study of the effects of climate change on Canada's environment, and water resources must be examined in that regard, in particular, drought and changing weather patterns. Our water resource policy should take that into account. Here I would note that residents in northern Ontario with homes or cottages along Lake Huron and Lake Superior have seen dramatic changes in the water levels of the Great Lakes. In some recent years they have been able to walk hundreds of feet on new beaches that were once under water.

Policy-makers should also consider issues of consumption, population and economic growth.

When I look around our new Parliament since the May 2, 2011 election, I see that the members elected cover an amazing seven decades in their ages. This new dynamic of intergenerational partnership reaffirms the need to pass forward-thinking legislation that recognizes that a healthy and ecologically balanced planet is the most important gift we can give to future generations of Canadians.

To do this, parliamentarians have the duty and obligation to ensure that they understand the environmental consequences of current actions on future generations. This includes acting as responsible stewards of our water resources.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

In our view, the current wording as proposed is clear and is the best approach. The new defence of property provision in Bill C-26 is intended to clearly establish that the person is not guilty of an offence when the person acts to defend the property in accordance with the law.

Mr. Cotler's proposed amendment would characterize the defence as a justification, for the same reasons as given in relation to the same proposed changes to section 34.

We don't agree with this. There is nothing special about a justification defence relative to an excuse or other types of defence. We feel that a modern criminal law need not continue to use this terminology. It's clear that if the elements of the defence are present, a person then is not guilty of the offence.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

This is further to the discussions we had on Tuesday with the witnesses who are here today. I want to clarify that the reasonableness of the act committed in the circumstances is perceived by the accused. We are simply making a clarification. I believe that addresses what the witnesses told us before. It removes any confusion.

Let us not forget something. There is an aspect of Bill C-26 that I like. I was not here when that incident occurred in the Toronto convenience store, the incident that may have led to the introduction of Bill C-26. I have been here since the new Parliament began, so after May 2, 2011. And I am very pleased to see that Parliament is finally reviewing certain sections of the Criminal Code that had not been subject to review for some time. Courts and judges have long been saying that certain components of the Criminal Code needed to be clarified.

I think that those who drafted these provisions did an exceptional job, which is not always easy under the circumstances. That is clear from the level of our debate. This is just one example of what could happen in court, with defence counsel. Anyone who has practised criminal law—our colleague Brian Jean has considerable experience in that area and will no doubt agree with me—knows that this is the kind of thing that happens in these situations. Commas get moved around, a few minor words get moved over to the right or left.

That is not what I want to do. I want to make sure that things are so clear that these types of questions do not come up. I simply want to repeat the comments that were made and the gist of the discussion we began on Tuesday.

[Françoise Boivin, NDP, Gatineau, QC]

I understand what my colleague is saying, but I think we need to consider clause 34 in its entirety. Clause 34(1) reads “ [a] person is not guilty of an offence if [...]”.

Then comes a series of provisions: 34(1)(a), 34(1)(b) and 34(1)(c). Our proposed amendment to clause 34(1)(a) would establish that the person “believe [...]”. Department officials were very clear about the fact that it was as perceived by the person in question. It is important to strike the right balance between the objective and subjective criteria. The element of reasonableness is already set out in clause 34(1)(c).

The person must believe. How can reasonable grounds be established from a person's perception? They may have a certain perception of the situation, but they still have to act on it. What does it boil down to? The person must act reasonably. Therefore, clause 34(1)(c) stays as is. I don't see why you are so concerned; the clause has to be understood as a whole.

Although some witnesses preferred to see no change, that approach would not address what the courts were asking for. Judges told us that a change was warranted. That is the very purpose of Bill C-26, for that matter.

At the same time, it is important to find the right balance between the subjective and objective criteria. To my mind, the reasonableness component is contained in clause 34(1)(c) of the bill. Clause 34(1)(a) addresses the perception of the person in question. By adding another requirement, whereby the perception must be reasonable, we may be imposing a heavier burden than the circumstances warrant.

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order.

This is meeting 25 of the Standing Committee on Justice and Human Rights, pursuant to the order of reference of Thursday, December 15, Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Today we are at clause-by-clause consideration. I understand there are a number of amendments being proposed.

Before we start, we'll have just a little housekeeping.

I understand that if the House decides to treat the Thursday before Good Friday as a Friday, we will not have a committee meeting on that date. I'm not sure that decision has been made, but if it does happen, just for planning....

[The Chair, Conservative, Dave MacKenzie]

Thank you.

I think we will bring this part to an end. I want to thank the witnesses, and I want to thank the opposition for allowing Mr. Wilks to ask questions.

Just so that everybody's up to speed, on Thursday we will go to clause-by-clause on Bill C-26. If we have time, which we may, we'll have the report on organized crime back and we can try....

Oh, the clerk says you'll get it as soon as we all get back. He has the new version in his pocket.

Mr. Goguen.