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

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, I thank my hon. colleague for the question. That is the kind of issue we need to examine in the legislative process. There are so many factors to consider. Each case must be looked at individually, because the needs vary.

Like other members here, I talked about the police's ability to respond in my speech. That must be taken into account, because it will have an impact on what people decide to do. Knowing that help is not coming right away could push them to act, as in the well-documented case of Mr. Chen. However, knowing that help is on the way soon might prevent people from doing anything, even in a case where it might have been better to act. No one can know. In situations like that, adrenalin takes over. It would be really hard to come up with a perfect law that takes all these factors into account.

Our responsibility is to come up with the best thing to do in order to give the best possible tools to ordinary Canadians, to police officers and to judges so that they can deal with these situations. After that, whatever happens happens. Things will never be perfect. These situations are often dangerous, but we can at least try to come up with a compromise that will be acceptable to all communities and everyone involved.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I agree with the comment by the member for Kitchener—Conestoga. I think his point is this is a bill that he would like to ultimately see passed, even if there is a need to make some changes, and the government is open to some changes at committee. That is the reason why we want to listen to what people might have to say on this. Those are the types of encouraging words that members of the opposition like to hear for the simple reason that if the government is true to those sentiments, it means we have the opportunity to improve the legislation if it is deemed necessary.

We have some concerns with the legislation, but we are very supportive of the principle of it. We talk about individual cases. One member talked about a snow blower that disappeared out of a garage. Another member made reference to golf clubs. True to form, I have had two bicycles disappear from my garage over the years. There are many different crimes and some are less severe. Having a bicycle disappear is disappointing and disheartening. We feel violated in the sense that someone has walked into our garage in broad daylight and has taken our property.

An individual who works for me, Henry Celones, is a wonderful man. He just turned 70 and he does a lot of walking. One day early in the morning he was walking around the area of Sheppard Street and Jefferson Avenue when he was approached by two larger individuals. Now Henry is a small guy. He is no bigger than I am. These two people told him to hand over money or cigarettes and he felt quite intimidated by this. One of them started to reach toward him. It is amazing how Henry was able to respond and defend himself. Both men in their late twenties or early thirties were tall, but they were literally taken to the ground by Henry. We shared the story with a few others who said, “Good for Henry, he did the right thing by defending himself”. There are those different types of extremes where some crimes are petty, but other things could be life threatening. People respond in different ways.

We have talked about a store that is robbed, then a period of time elapses and the individual comes back. This is a person's livelihood. Should people not have the right to protect their property? The vast majority of Canadians would say absolutely, that people have the right to protect their property and livelihood. I do not think anyone would question that right.

There are issues related to what is reasonable and what is not reasonable. We have to look at situations on their individual merits and then make that determination. That is why, in good part, we have our court process.

Bill C-26 in essence complements our law enforcement agencies. It is not there to say that our police forces, whether it is RCMP or local policing units, are not doing their job. They are doing a wonderful job, in terms of protecting and making people feel safe and secure in our communities, given the resources they have.

When I was a bit younger, a number of years ago, and in university, one summer I was employed to canvass the community. I had to go door to door and ask about issues like community safety. I can remember that in older communities, people would say that they remembered when Ralph, an officer of the law, used to walk up and down the streets. He knew the individuals who were causing the problems and he was able to provide a sense of security.

Then we evolved away from the community policing that Canadians respected for many years. We started to get more individual police officers in police cars because of suburban growth and things of that nature. We have seen more of an investment in the number of officers, and in many communities today, we see that more policing is actually being supported through having more police officers and, ultimately, more community police officers

When I look at the future, I think we need to invest more into community policing, because I think that is the best way for us to enable citizens to be more involved in our communities. I would suggest that citizens do want to get involved. There are many examples of citizens' wanting to be involved. The bill today is just one of those examples.

I could talk about concerns raised in the area I represent. Out of the blue, out of goodness, a number of individuals said they wanted to form a group to walk up and down some of our streets in some of our communities. These are citizen action groups. There is nothing wrong with that. Individuals who take that kind of action should be applauded. They wear bright vests and are well identified. They are not vigilantes looking to cause issues or problems. They are just more concerned about our communities. They are watch groups. They all play a role.

What is really encouraging is to see our law enforcement officers supporting those groups. Part of that support is through providing education on what we can or cannot do. When we make a citizen's arrest, we do have to be careful. We have to size up the situation. Is it situation we really want to get directly involved in? Is there a better way? Maybe there might be a community police office nearby; maybe we would recognize a particular individual in a store, identify that person to the local police office and resolve it in that way, as opposed to making a citizen's arrest.

I can tell members the story of what happened to a lady in an office right beside my constituency office. She was robbed and stabbed in the neck by a young offender. She recognized the person who committed the crime. Instead of running out of the store and trying to administer a citizen's arrest, she stayed in the store and contacted the police. After a while the police got to the store; it took them a little while, but they got there. Because she was able to describe the person and even point out the person's house to the police, proper actions were taken. The youth was taken into custody. Hopefully we will see some justice with regard to that particular issue.

I would suggest that this person made a good decision in this instance. It was an appropriate thing to do. That is what people have to look at when they are faced with the necessity of taking action because their property is threatened. In this case it was not only property but, to a certain degree, her life as well. She was stabbed; she had to go to the hospital and have stitches. She had taken a personal assessment of the situation and had made the determination that the best way to deal with it was to contact the police.

However, sometimes that is not the way to go. Sometimes it is necessary for someone to—

[The Acting Speaker, Conservative, Barry Devolin]

I must interrupt at this point. The hon. member for Winnipeg North will have nine minutes remaining when the House returns to this matter.

The House resumed consideration of the motion that Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.

[The Speaker, Conservative, Andrew Scheer]

The hon. member for Winnipeg North has nine minutes left to conclude his speech.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, with this particular bill, we need to acknowledge that the citizens of our country do have a role to play when it comes to complementing that sense of security in our communities. Community policing is one of the ways in which we try to reach into our communities in a positive way to make people feel safe but there are other aspects to it.

At the beginning of my comments, I spoke to how this particular bill is not there, in any fashion whatsoever, to take away responsibilities from our policing agencies but rather is there to complement the services that we are currently receiving. It is there to provide assurances to those individuals who find themselves in difficult positions where they might require to either defend themselves or to protect their own personal property.

Over the years, we have seen more and more citizens take an interest in assisting and providing that sense of security throughout our communities, whether it is with respect to the community streets on which we walk or drive, or our shopping centres, the small store outlets and so forth. I think we can find ample examples in each one of those different types of situations where we will see the average citizen saying that they want and must play some role and be involved in making our communities a better, safer community in which to live.

I was making reference to some specific examples and I will highlight the one that deals with community streets. We have members of outreach groups who walk along the sidewalks in our communities and look for what would quite often be classified as inappropriate behaviour. We have found that it is very effective when three or four individuals walk around communities, especially around community schools. A lot of these groups will identify blocks of time that they believe are most important for them to go out into the communities. For example, one of those timed walks is after school hours. There is a great deal of interest from many neighbourhoods for them to walk around our schools in and around that time because it discourages any sort of inappropriate activity. Quite often, they will see everything from bullying to minor drug type transactions occurring very close to our school facilities. Therefore, by getting individuals, whether it be one person or a group, who are well-identified and live in or are a part of the community, involved in doing things of that nature, it discourages that sort of activity from taking place in the first place. We have citizens who are prepared to get involved at that level.

I was involved with the justice committee for many years out in the area which I represent. Although I stepped down about a year and a half ago or so, I was involved for over 10 years. When I was a full participant, and in fact at one point I was the chair of the group, we had the opportunity to get a number of volunteers who lived in the community to sit on this committee as honorary probation officers.

In that situation, if we had young offenders who might be stealing from a local store, instead of going through a court they would come before a justice committee. The big push was more toward restorative justice. We would try to bring the victim and the young offender together where the victim would have a role to play in terms of what sort of disposition or consequence should be given to that young offender for the offence that he or she caused. I see this as something that is very positive.

When victims sit down with offenders, they see first-hand that there is some justice coming as a direct result of community involvement and the fact that they are being afforded the opportunity to interact with the people who made victims out of them because of an offence, such as a theft or minor assault. This bill provides the opportunity for individuals to take direct action to protect their property and themselves.

Today more and more women are taking self-defence courses. More and more young people are engaged. Sikaran is a wonderful Filipino martial arts program. Kids as young as three and four years of age and adults are being schooled in this martial art. A good number of parents enrol their children in self-defence classes because they want to know that their children can defend themselves from an assault if they ever need to.

A member said that we need to approach this with an open mind in committee. Because of some of the changes to the wording, some might be somewhat suspicious. If someone looks at me the wrong way, raises a hand and makes an obscene gesture and I feel threatened by that, I may think it gives me the right to enter into a physical fight with the individual because I thought I was going to be assaulted. That is why we have to define such words as “reasonable”.

We have to look at specific situations, whether it is a potential physical assault or an individual protecting his or her store. A store owner who sells widgets sees that as his or her livelihood. If someone attempts to take that property, there needs to be some sort of consequence. The store owner should be able to protect his or her property and livelihood.

The vast majority of Canadians support the principle of what is being said here. I would encourage the government, once the bill gets to the committee stage, to approach it with an open mind so the member for Mount Royal and others can be afforded the opportunity to make amendments—

[The Speaker, Conservative, Andrew Scheer]

I am afraid the hon. member is out of time.

The House resumed consideration of the motion that Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.

[The Speaker, Conservative, Andrew Scheer]

Questions and comments, the hon. member for Kitchener—Conestoga.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I certainly agree with my colleague on the emphasis to be placed on restorative justice initiatives. In my region of Waterloo, there are many great restorative justice initiatives that are achieving excellent results. I think he and most of my colleagues would agree that particular approach is not always effective. We still need an effective criminal justice system to be in place.

I was somewhat surprised at his innuendo in the first part of his comments. He implied that there are times when the Conservative Party is not open to input. This party is very eager for input, to have discussion, dialogue, collaboration and consultation, but there comes a time when it is necessary to take action. For example, Bill C-13 was before the House recently. We had been having discussions about the budget since last March and it was time to implement the initiatives in it. Canadians expect us to take action.

He also referred to his concerns about ensuring that there be reasonable grounds that the person under suspicion is actually the criminal. I want to be sure he understands that the current bill before the House is not similar to the one that was tabled in the previous session where only reasonable grounds were necessary. This bill actually identifies that it—

[The Speaker, Conservative, Andrew Scheer]

I will have to stop the hon. member there to allow the hon. member for Winnipeg North the chance to respond.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, we do recognize that there have been some significant changes. That is why I am somewhat optimistic with the member's comments in terms of the bill going to committee. We might be able to make it better. We will have to wait and see.

The member said that the government is open to input in general. He will have to excuse me for having a tough time with that comment, especially given such things as the time allocation motion on Bill C-10, which is a crime bill. That bill encompasses eight or nine significant pieces of legislation which could have been separate bills. Very little time was afforded to members for debate.

For members who were first elected a few months back, the chances of having the opportunity to speak to the bill was not there. There was no opportunity for all members to participate fully in the debate. Nor was there an opportunity for governments, such as the governments of Quebec and Ontario, to provide input. British Columbia also has huge concerns in regard to Bill C-10. They did not think the government was doing the job that was needed in answering basic questions such as what the costs will be.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, the member is quite willing to share his previous experience at the provincial level on dealing with justice issues.

I am of two minds on the bill. There are lots of occasions where we recognize it could be a scenario where a gang is running down the street and knocks down an elderly woman and grabs her purse. People intervene and hold that person until the police arrive. It is done expeditiously and the police are immediately alerted and the people only hang on to the perpetrator until the police arrive.

There might be some concerns with the bill and perhaps at committee we should look at whether it needs to be constrained somewhat. Let me give a couple of examples.

In Summer Village where I have a cottage, we have been unable to have any RCMP or regular police surveillance. The communities do their own surveillance. There have been many occasions when there has been a break-in with some violence. Those are occasions where if the property owner intervened, there might be harm to both parties. Should we be encouraging direct intervention?

There have been a lot of circumstances in Alberta where there has been some level of violence between farmers and land men who are surveying for oil and gas activity. I am wondering if perhaps we should be exploring potential constraints in these scenarios where there may be encouragement to take some level of violence against people who come onto someone's property.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the most important thing is that we recognize that each situation needs to stand on its own merit. There has to be an understanding of the actual situation. In some situations it would be ill-advised for someone even to attempt to make a citizen's arrest. In other situations a citizen's arrest can be executed quite easily. It is the same thing in terms of personal assault. People have to be cognizant of the fact that different situations dictate different responses. I would hope people would use common sense before jumping into something that could get pretty ugly very quickly. I would hope that no one would encourage people to get into such situations where our communities become unsafe or individuals are seriously hurt by inappropriate actions.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, the Conservative government introduced Bill C-26, which covers and provides clarification on citizen's arrest. This bill is very similar, identical even, to Bill C-60, which was introduced by the hon. member for Trinity—Spadina during the last Parliament.

The changes made by Bill C-26 will allow citizen's arrests without a warrant within a reasonable period of time. Right now, under section 494(2) of the Criminal Code, a citizen's arrest must be made while the crime is being committed. Bill C-26 also includes changes to the Criminal Code related to self-defence and the defence of property.

Sections 34 to 42 of the Criminal Code pertain to self-defence and the defence of property. Sections 34 to 37 of the Criminal Code are repealed and replaced with a single self-defence provision that applies to any offence. The current distinctions between provoked and unprovoked attacks, as well as any intention to use deadly force, are eliminated.

Bill C-60 also sets out a non-exhaustive list of factors that the court may consider in determining whether the act committed is reasonable under the circumstances. The bill will repeal sections 38 to 42 of the Criminal Code, which pertain to defence of property, and replace them with a single defence of property provision. As a result, the bill will eliminate the current distinction between the defence of personal and real property.

The bill amends the citizen’s arrest section of the Criminal Code, but only section 494(2). Thus, the powers of citizens to make arrests set out in section 494(1) remain as they are. These powers mean that anyone may arrest without warrant a person whom he or she finds to be committing an indictable offence or believes, on reasonable grounds, has committed a criminal offence and is escaping from and freshly pursued by those with lawful authority to arrest that person.

The bill amends section 494(2), which applies to the owner or person in lawful possession of property or a person authorized by the owner or lawful possessor. At present, such a person may arrest without warrant a person whom he or she finds committing a criminal offence on or in relation to that property. But the amendment goes on to allow such a person to make an arrest within a reasonable time after the offence is committed. Such an arrest can be made if the person making the arrest believes on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

In addition, a new section 494(4) is added to the Criminal Code, clarifying that a person who makes an arrest under section 494 is authorized by law to do so for the purposes of section 25 of the Criminal Code. The purpose of this amendment is to make it clear that use of force is authorized in a citizen’s arrest, but that there are limits on how much force can be used.

The government says that it is bringing forward this bill in order to make necessary changes to the Criminal Code that will clarify the provisions pertaining to self-defence and defence of property. The changes will also clarify the reasonable use of force.

We are very pleased that the Conservative government has decided to clarify the changes to citizen's arrest, especially since we had introduced a similar bill to that end.

Just like the Conservative government, we do not want honest Canadians who are victims of crime to be victimized again by our judicial system.

We support the amendments to the legal provisions on citizen's arrest, particularly because various courts have indicated that there are problems with the interpretation of the law. For example, they have said that the Criminal Code provisions concerning self-defence are too complicated and confusing. The provisions have been subject to much criticism. In R. v. McIntosh, Chief Justice Lamer wrote that sections 34 and 35 “are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.”

The judgment of the majority in R. v. McIntosh has been called “highly unfortunate” for further muddying the waters around self-defence provisions.

However, we believe that a more in-depth study will be required, given the complexity of this issue, as the courts have indicated. We must ensure that the bill clarifies the sections of the Criminal Code to help the justice system do its job. We will also have to look at the impact and consequences of this bill to ensure that these clarifications are acceptable to the Canadian public. We want to avoid having the clarifications to the Criminal Code encourage self-proclaimed vigilantes. In addition, we do not want people to put their lives in danger. We know that that is not the objective of this bill. However, a number of concerns about this have been raised by some of our constituents. That is why it will be important to allow parliamentarians to properly discuss this bill in committee.

We are obviously asking the Conservative government not to limit debate in committee, as it did with Bill C-10, for example. Bill C-26 will have serious repercussions on Canadians who must defend themselves or their property. That is why it is so important to properly debate this bill in committee.

I would like to remind the House of the facts that gave rise to the recent legislation on citizen's arrest. On May 23, 2009, David Chen, the owner of a grocery store in Toronto, arrested Anthony Bennett, who had stolen something from his store. After being caught in the act on security cameras, Mr. Bennett went back to the store about an hour later. At that time, the owner and two employees managed to tie Mr. Bennett up and held him in a delivery truck. When the police arrived, they charged Mr. Chen with forcible confinement, kidnapping and carrying an edged weapon—a box cutter, a tool that many merchants have in their possession. The crown attorneys later dropped the charges of kidnapping and carrying an edged weapon, but they maintained the charges of forcible confinement and assault.

According to the Criminal Code as it is currently written, a property owner can make a citizen's arrest only if the alleged wrongdoer is caught in the act. Mr. Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. In August 2009, Anthony Bennett pleaded guilty to theft and was sentenced to 30 days in jail.

At present, the citizen’s arrest authority is very limited and is authorized only when an individual is caught in act of committing an offence on or in relation to one's property. Accordingly, this bill authorizes an owner, a person in lawful possession of property—or a person authorized by them—to arrest a person within a reasonable amount of time after having found that person committing a criminal offence on or in relation to their property.

The bill authorizes a citizen’s arrest only when it is not feasible in the circumstances for a police officer to respond, which is often the case in the event of shoplifting, for example. The time it takes for the police to respond is often too long and they arrive much too late. Furthermore, this bill stipulates that the use of force is authorized in a citizen’s arrest. However, a person is not entitled to use excessive force.

In addition, the person making the arrest must take the risk factors into account and ensure that their safety or the safety of others is not threatened. They must also ensure that they have correctly identified the suspect and their criminal conduct. Furthermore, reporting the incident to the police remains the best solution.

I would like to point out that thousands of Canadians work as security guards in buildings or businesses. Many of those guards have told me about the problems they have properly protecting the property of the merchants. They have to catch the criminal in the act and that is not easy. Often, they discover the crime after the fact, after reviewing the security camera footage. However, that is often done after the fact and the security guards cannot take any action against the wrongdoer. The worst part is that some wrongdoers return a number of times to commit theft and the guards hired by the businesses cannot do anything about it even if they saw the individual in question commit a crime before.

They have to again catch the wrongdoer in the act and they cannot arrest him for the previous offence. What is more, the complexity of a citizen's arrest makes security jobs risky. Security guards have to be 100% certain of what they are doing because if they are not, there could be legal consequences for their company and their own job could be on the line. It is very important that the provisions on citizen's arrest be clear so that these security guards are in the best position possible to protect businesses and the property of the merchants.

The new provisions on self-defence will also help these guards enforce the law, because the current provisions are too restrictive. Many security guards have told me that when they intercept an individual who committed a criminal offence, the individual generally becomes aggressive and does not want to be arrested by the security guard on duty. For a number of reasons, that individual will simply be asked to leave the premises, because the guards do not want to risk their safety or the safety of others. They would not want to risk being tried for assault. As a result, the individual who commits the crime gets away with it.

In summary, we support this bill at second reading so that it can be sent to committee and some of its provisions, which are quite complex, can be examined in greater detail. That is why the opinions of experts and legislative drafters will be key in the examination of some provisions of this bill. I would like to emphasize the importance of not limiting the debates, as the Conservative government has a tendency to do. I am asking the Conservative government to let parliamentarians do their job properly.