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.

[Françoise Boivin, NDP, Gatineau, QC]

However, it does not change the lawmaker’s intention behind Bill C-26.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

It reminded me of a case in New York, I think it was in the 1970s or 1980s, of a fellow on a subway, an innocent fellow, a bit of a nervous character, but perhaps he had the right to be nervous in the circumstances. He had a gun, and I think four or five people, gang members, or whatever they were, got on the subway train and they intimidated him quite seriously; he panicked and shot them. In fact, I don't know if he killed any of them, but some of them were paralyzed for life and so on. If I recall correctly, in the subsequent investigation, it turned out that these four or five guys were actually quite bad guys and they had been convicted for serious violent crimes and so on.

In the context of a law like Bill C-26, how would he be treated? I don't recall if he was found guilty of overreacting or what the conclusion was, but I think you are familiar with this case. How would he have been treated by the law in the context of Bill C-26?

[Françoise Boivin, NDP, Gatineau, QC]

Ladies, thank you for coming to help us before we move on to the clause-by-clause study, which will be carried out on Thursday. Hearing from the different witnesses has been extremely beneficial. It goes to show that this issue is not simple. Drafting these documents must not have been simple either. I would be surprised if anyone were fundamentally against the goal we hope to achieve with Bill C-26.

Considering what we have heard, I appreciate your comments on certain notions that were not entirely clear to me. I had to briefly discuss them with you this morning. I will set them aside because you have addressed them already.

However, I still have some concerns about the bill in light of some of the witnesses' comments. I am still unsure how my questions can be answered. They mostly pertain to citizen arrests and the fact that a new dimension is being added. I know that it all stems from a single case. We have all said that trying to resolve a legal problem based on a specific case could lead to difficulties. Be that as it may, the two are not mutually exclusive.

Clearly, it is a matter of making the arrest within a reasonable time. As a lawyer, I always struggle a bit with that kind of an issue. I do know that reasonableness is sometimes the most difficult consideration to interpret before the courts. That’s at the heart of the matter. Colleagues in attendance have talked about potential cases when it comes to reasonable time frames. We know that such questions will come up before the courts.

I would like to know whether you, as a Department of Justice expert, feel that it would be worthwhile to focus a bit more on reasonable time frames, to pre-set a maximum limit. Would it be beneficial to set a 48-hour time limit? The idea would be to avoid deficiencies of recollection three, four or five days later.

[The Chair, Conservative, Dave MacKenzie]

I will call this meeting to order. This is the 24th meeting of the Standing Committee on Justice and Human Rights. We are dealing with C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Today we have two officials from the Department of Justice at the table with us to help us get through the bill. There are other officials in the room if there are questions that need to be answered. We have Joanne Klineberg and Catherine Kane.

If you have some statements you wish to make to begin the meeting, please go ahead.

[Prof. George Rigakos]

If Bill C-26 passes, I'm not sure what kinds of constraints you can put on private security, because they are being imagined as private citizens. Then the question becomes what type of private security and in what capacity are you talking about? Are you talking about forensic accounts? Are you talking about investigators? Are you talking about...and under what circumstances? It becomes a very difficult thing.

The problem we have here, I think, is that we've inherited something that is based upon the idea of sort of the frankpledge system and everyone being responsible for their own policing, and the idea of police as a public good, and the notion of the private citizen as being the first defence against criminality and disorder. That's a 19th century notion and in fact actually it's a 14th century notion, if you go far enough back, that has made its way through the common law.

But what's not in the law is any recognition of the distinction between the private citizen and this massive industry called the private security sector. Until that is somehow resolved, until there is some legislative recognition of the important distinction between David Chen and Intelligarde International or some other aggressive parapolicing organization, these issues are going to have to repeatedly come forward.

Either the distinction can be made legislatively or it can be made by the courts down the road. So far the courts haven't made much of a distinction, to my mind.

[Irwin Cotler, Liberal, Mount Royal, QC]

In the time remaining, given that there's been a common theme here with respect to the private security sector, which is something that has concerned me right from the outset with respect to this legislation, and regardless now of your views on Bill C-26, would you have some specific recommendations regarding Bill C-26 and its application to the private security sector, in that there may now be lacunae in the law such that it doesn't address that issue? Do you have any specific recommendations on the assumption that Bill C-26 is going to pass? The question is will it pass with specific reference to private security guards or not? I'm asking if you have any specific recommendations that we might include in Bill C-26 regarding private security guards.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you to all the witnesses for your input and attendance here this morning.

I'm going to start with a comment more than a question, but perhaps I might ask for your comment on my comment.

There appears to be, in my view, Mr. Chair, a misconception that Bill C-26 is inspired by Mr. David Chen's predicament a couple of years ago in Toronto. I think that's wrong.

In rural Alberta there have been a couple of very high-profile cases, when RCMP were not always readily accessible. There was a case in New Brunswick that was highly publicized. I'm not entirely familiar with the facts, but I know a firearm was involved. Similarly, in one of the cases in Alberta where a conviction was made, a quad--a four-wheeled recreational vehicle--was stolen, a chase took place, and firearms were involved. Ultimately there was a conviction and the individual went to jail--under those circumstances, I would have to concede, rightfully so.

My point is that I'm not sure that Bill C-26 is inspired exclusively by Mr. Chen. My question for all the panellists is that in light of some of these other more fantastic situations where individuals have tried to defend property—and in rural Alberta, off-property, and sometimes quite some distance from the property—is it not incumbent upon Parliament to provide some clarity to the citizens as to what their rights are to make arrests and what their rights are to defend their property?

I'll start with you, Professor MacDonnell. You probably know about that case in New Brunswick.

[Prof. George Rigakos, Professor, Chair, Department of Law and Legal Studies, Carleton University, As an Individual]

Thank you.

Members of the committee, thank you for this opportunity to speak to you today on these proposed amendments to the Criminal Code. I understand I only have a limited amount of time, so I'll make my comments as brief and to the point as possible. That's going to be difficult, given that I'm an academic, but I'll do the best I can.

I appear before you today as an independent scholar and as a member of the Canadian academy who has been studying public and private policing for almost two decades. In the limited time I have, I'm going to focus my attention on the proposed changes to the Criminal Code dealing with a private citizen's power of arrest and, more specifically, paragraph 494(2)(b), which will allow private citizens to make an arrest within a reasonable amount of time after the offence is committed if they believe on reasonable grounds it is not feasible in the circumstances for a peace officer to make the arrest.

I think the changes proposed in Bill C-26 amalgamating a series of awkwardly worded sections relating to defence of property and self-defence make sense and clarify what was already present in the Criminal Code, so I have nothing to add here.

I want to speak to you today about what I consider to be two problematic assumptions that seem to underpin the proposed changes to section 494, and then employ three scenarios to illustrate my reservations about these proposed amendments. I will then sum up with a recommendation.

There are two problematic working assumptions about the proposed changes I'd like to speak to directly. The first is that Bill C-26 is designed to help small store owners like David Chen. The second is that the private security industry is in need of clearer and more expansive arrest provisions in order to do an effective job, and that these proposed changes are in any case simply enshrining legislatively what is already common practice in an increasing challenging security environment. Let me deal with these each in turn.

Bill C-26, in my opinion, will rarely help small store owners like David Chen. Instead, it will almost exclusively benefit the private security industry. With respect to the beneficiaries of these proposed changes, I want to make it clear to the committee that the private security sector will not only be the primary beneficiary of these changes but in practical terms will likely be the only beneficiary. Quite simply, non-security employees rarely, if ever, make arrests. They don't have the know-how. They don't have the confidence.

Unfortunately, there is an absence of available statistics on who makes citizens' arrests, but I would be very surprised, from all of my experience, if even 1% of all such arrests across Canada on an annual basis were attempted by non-security personnel. In fact, to satisfy my own personal curiosity over the years—because I always do a lecture on the division between public and private powers of arrest—I asked my students how many of them had ever conducted a citizen's arrest. These are all policing students in policing classes, so you'd think they'd be a biased sample and more likely than most to do it. Over the last ten years or so, of 500-plus students, only one had made a bona fide citizen's arrest that was not related to their employment in some form. Many of them had made private citizens' arrests, but as agents of the landowner.

Associated with the belief that this bill would aid small store owners, proprietors of businesses, and landowners is the idea that police often charge private citizens if they have not effected an arrest "just right", and that, moreover, these private citizens are subject to considerable judicial scrutiny and will be held to account for a poorly executed arrest. The overwhelming predominance of case law, including that of the David Chen case, as it turns out, points to the opposite reality. The judiciary has bent over backwards to accommodate private citizens' arrests and has, except in the most extreme cases, done everything it can to allow arrests to stand even though they were likely unconstitutional.

Moreover, judges are quite likely to admit evidence collected thereafter, lest not doing so would bring the administration of justice into disrepute. Therefore it's important to keep in mind that these proposed changes should be more accurately understood, for all practical purposes, not as private citizens' powers of arrest but rather as private security officers' powers of arrest. That's my first point.

My second point is the private security industry does not need more expansive arrest powers. As the committee has surely heard by now, private security personnel outnumber the police by at least two to one in Canada, and, depending on how one calculates the numbers, that ratio could be as high as three to one. Criminological research since about the mid-eighties has pointed to the dramatic rise of private security employment across the globe. The trend line for Canada points to a crossover point somewhere between 1968 to 1971 when the private sector was at par with police employment and then began to overtake it.

Since then, not only has the relationship between the public and private sectors transformed quantitatively by virtue of ever-growing demand for private security personnel, but I think it has also transformed qualitatively with respect to what the private security now takes on and how closely interlinked it is with public policing compared to the 1960s. This growth and increasing overlap in function has happened without any significant change to the Criminal Code. Thus, I think the strongest case against any perceived need to expand the arrest provisions in the Criminal Code is precisely the success of the private security sector without them.

The second-strongest case against the perceived need to expand private citizen arrest provisions in the Criminal Code is the increasing and unchecked functional interrelationship between the public and private sectors. When I first started doing research on public and private policing in the early 1990s, you would be hard-pressed to find a single police executive who would publicly endorse closer ties with the private security sector. It seemed that it would bias the police or would undermine their appearance as neutral arbiters of the law. Today these connections are not only endorsed but have also become institutionalized in areas as disparate as public foot patrol, forensic accounting and fraud investigation, and even major event coordination and planning such as the recent G-20 in Toronto.

The Canadian public needs to take stock of these important alterations in private security provision before the Criminal Code is amended to legally enshrine what amounts to a significant expansion of private security guards' powers of arrest.

Let me now turn to a couple of scenarios that will illustrate my concern about what these amendments might mean.

Within the language of the current bill, it's quite likely that there will be many instances when various types of private security personnel, including nightclub bouncers, by the way, will delay arresting someone they find committing a criminal offence in relation to the property they are hired to guard. The reasons for the delay may vary, but they will most likely revolve around some resourcing concerns and the availability and responsiveness of the police. The bill, as it stands, does not stipulate what would be acceptable as a rationale for not arresting immediately, only that the private security guard may arrest at a reasonably later time.

Let's look at the first scenario. A person is wanted by the policy because a warrant has been issued for their arrest. The wanted man then proceeds to steal an item from a mall vendor. A mall security guard, having witnessed the incident and having reported the suspect's image on CCTV, decides to make an arrest at a later, more convenient date. In this scenario, by virtue of bestowing discretionary authority to the private security guard, we may have stunted a police manhunt.

Scenario two: A nightclub bouncer witnesses a criminal act but is unable to make an arrest because the drunken patron has fled the scene. By the way, this is not uncommon, especially in Halifax. Bouncers see the people they have just wrestled with the previous night at the mall the next day. In any case, the nightclub owner prefers his door staff to refrain from making arrests lest they be taken out of service in dealing with the police. The following morning, possibly only half a day after the original incident, the same nightclub bouncer sees the now sober man getting into his car in an underground garage where there is no cellphone reception. Based on the language of the bill, the off-duty bouncer, fearing the man will get away, and that it's not feasible for a peace officer to make an arrest, is within his right to make a citizen's arrest far removed from the original site of the incident and for what may have been a minor summary conviction offence.

Scenario three: A security company, alerted to a spate of recent thefts from a client's warehouse, sets up a sting operation using secret cameras, tagged merchandise, recording devices, and even the screened presence of security agents observing ongoing thefts. None of the company employees recorded stealing materials are arrested immediately. A few weeks later, having gathered all of the video evidence and drafted signed statements from observing guards, the client invites all of the workers to a meeting and conducts a mass arrest. They then alert the police, turn over all of the evidence and a van-load of handcuffed suspects.

My argument to the committee is that all of these scenarios would be legal and not unlikely, given the state of private security innovation and entrepreneurship, and given the language of the proposed amendments for section 494 of the Criminal Code. But note what's happened here. Not only are private security companies acting precisely like public police services, using discretion, conducting investigations, and then turning over evidence to a peace officer on a silver platter, but, by virtue of their ability to delay arrest for a more convenient time, private security guards are always on duty. They are, for all intents and purposes, acting like private police officers. Their authority is tantamount to that of a peace officer once they believe they have witnessed a criminal offence while guarding private property.

BillC-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.

It is therefore my recommendation to the committee that the proposed sections of the bill dealing with defence of property be adopted as written, but that proposed amendments to section 494 be dropped, and that for the time being, the original language of this section be retained.

[Prof. Vanessa MacDonnell, Professor, Faculty of Law, University of New Brunswick, As an Individual]

Good morning.

My name is Vanessa MacDonnell. I'm a law professor at the University of New Brunswick Faculty of Law. I teach and research in the areas of criminal and constitutional law. This past summer I authored a paper with Mr. Russomanno on the changes being proposed to the power of citizen's arrest by what was then Bill C-60 and is now Bill C-26.

I'd like to touch on four points in my opening statement this morning. I would welcome questions from members of the committee on any of these points or on other aspects of the bill.

First, I'd like to talk about what I'd call temporal concerns with the changes being proposed to the power of citizen's arrest.

The existing law permits an individual to effect an arrest where that individual finds a person committing an offence. The arrest takes place immediately and in most of these cases there's no serious question as to whether the offence has been committed and whether the individual performing the arrest has the right person.

Once you start to stray from this paradigm, though, certain concerns arise: there's a higher possibility of a false arrest; the individual performing the arrest might have the wrong person, the wrong arrestee; and, the person being arrested may have no idea why he or she is being arrested and might resist arrest, either lawfully or otherwise.

These are all circumstances where, in my submission, we would want the police, rather than a private citizen, involved. There's actual police work to be done here. This isn't the kind of case where a thief is caught red-handed, for example, and there may be evidence to seize or an investigation to be conducted. In my view, in this category of cases, we've exceeded what the citizen can meaningfully do. In this respect, the expansion of the powers of citizen's arrest being proposed by Bill C-26 is concerning.

Second, it's important, I think, to highlight that the provisions related to defence of property that are being proposed in this bill are also relevant to our discussion of citizen's arrest. These provisions, like the existing defence-of-property provisions in the code, provide an individual with a defence in circumstances where he or she is defending property. So defence of property, and the self-defence provisions more broadly, provide some protection to an individual who uses force in performing a citizen's arrest.

Included in this broader web of protections are also provisions that protect individuals who use force to prevent the commission of an offence, and protection for individuals who take steps to prevent a breach of the peace. You can read about some of these provisions in the legislative summary for the bill that has been provided by the Library of Parliament.

But the point here is that there's a broad web of provisions that already provide protections to persons who perform citizen arrests. Again I would make the point that situations that fall outside the scope of this broad web of protections likely require the professional expertise of the police.

Third, the major beneficiaries of the expansion of powers being proposed by this bill are not actually small shop owners like Mr. Chen, but rather the private security industry. I'm sure that Professor Rigakos is going to speak more about this in his remarks.

Society is increasingly relying on private security forces as the first line of defence to a number of security threats. These forces are often highly sophisticated. They are well resourced. They police a range of environments and places.

The academic literature and the empirical literature suggest that where marginalized groups are being policed by private security forces, especially in low-income housing communities, there's a real potential for harassment, and the powers being proposed by Bill C-26 may exacerbate this situation. I think we should be very concerned about the liberty and equality concerns that arise when we expand the powers of private security forces, especially if we end up doing so sort of unintentionally.

This bill was really aimed at the David Chen situation and not, perhaps, at expanding the powers of private security forces more broadly. I would simply point out that, unlike police officers, there is very little in the way of regulation of the private security industry.

When we're talking about police officers, of course, their powers are constrained. They have only those powers that are given to them by statute or the powers they have at common law. They're also required to observe the limits of the charter in their duties.

This takes me to my fourth point, and that is the question of whether the charter applies to the actions of an individual performing a citizen's arrest. On this point, I'd just say that the case law, to date, is unclear about whether the charter applies when a person is performing a citizen's arrest. The Supreme Court of Canada has yet to rule definitively on this point. So there's no guarantee the charter would serve as a meaningful check on individuals performing a citizen's arrest.

Perhaps I'll stop there.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

We will call to order meeting number 23 of the Standing Committee on Justice and Human Rights. We are meeting pursuant to the order of reference of Thursday, December 15, 2011, in regard to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Today we have three witnesses appearing before us.

You've probably heard from the clerk that you get a ten-minute opening address. I will let you know when you're down to nine minutes. It's nothing personal, but we'll cut you off at the ten-minute range.

You're free to start, if you wish, Ms. MacDonnell.

[Chi-Kun Shi]

Yes, I think absolutely that if there is more leeway as to the time maybe they'll say “This guy looks like somebody who stole from us, but we want to check our surveillance video.” Usually these shoplifters are repeat offenders, and they will be back, so they'll have this opportunity to do that.

I wanted to comment earlier on the concern about violence. It seems that the undertone is that if there's a potential for violence, let's not do it. I find it very interesting, because we actually, every day, do many things that guarantee violence: hockey, WWE shows. We pay money to watch violence. Crossing the road can get us killed. Driving is very violent and potentially very dangerous, yet we do it every day. It's a balancing act.

On balance, I think Bill C-26 starts to put a bit more value on the store owners' rights, not just to their property, but to their dignity. To be a victim of crime is an indignity.

[Chi-Kun Shi]

Thank you.

First of all, to take away that really unreasonable demand the current legislation requires—that they can only catch a shoplifter committing the crime—is a huge break. Because if one thinks about it carefully, that timeframe is infinitesimal. When the thief is in the store taking the goods, the act has not yet been completed, because he has the chance to pay for it at the cash. As soon as he leaves the cash, the act has been completed. I guess that's the infinitesimal moment: when the person is passing the cash. At some point, you can say, “Aha—he wasn't going to pay for it”.

It is totally unrealistic, and it's unevenly enforced as well. If you think about Mr. Cotler talking earlier about security guards, security guards always apprehend outside the store. By that time, the act has been committed. There are actually no rights to that arrest. Yet in that case, the police would never nail a security guard for an illegal arrest.

That's why we need Bill C-26 as a good start: to clarify. It is a break; however, I would submit that it is just a good start. I see in the language, as I say in my submission, such caution; there is such concern that these store owners would go overboard. The problem is that in that equation there is not sufficient attention, in my submission, paid to the concerns of what has been going on in these stores in the meantime, and that is rampant shoplifting.

Mr. Chen's case is such a dramatic demonstration of what happens when the law fails people: the store owners, until this proposed amendment, basically had both hands tied behind their backs and a huge stick over their heads. Dare you do anything.... Just let them take it and go: I've heard that on so many talk shows, with hosts and other people asking why he can't just let them take the plant, asking how it can be worth him having to struggle on the street, and saying that we can't have violence on the street.

My answer to that is that we send soldiers to Afghanistan: what do you think they do there? There are values that we believe are worth fighting for. It's okay to do it overseas, but we can't have a struggle on the street...? We'd rather let people steal from people the things that they work so hard for...? The potted plant, for a middle-class person, may be just something nice to look at on our patio in the summer while we sip our Pinot Grigio, but for Mr. Chen, it's food on the table and education for his children and clothes on their backs.

It is that sense of respect for and recognition of citizens' rights and their participation in the community that I think Bill C-26 has done a good job of starting to address.

[Chi-Kun Shi]

To the extent that private security guards are given any more power to arrest, then they should be subject to more restrictions--for example, the application of the charter. But if the security guards are not being provided with any more training that will elevate them to any special status, then I think they should be looked at more like citizens.

Again, Mr. Cotler, I think the issue is not so much whether it is a private security guard. The problem, as I see it, that Bill C-26 is starting to address is a fundamental issue of whether Canadians are going to be allowed more chances for self-determination and the fundamental right to participate and be an equal partner in the safety of their communities.

[David Chen, Owner, Lucky Moose Food Mart, As an Individual]

Good morning. Thank you for inviting me today.

My name is David Chen. I'm the owner of the Lucky Moose Food Mart.

Almost every day people steal from my store. Calling the police does not stop them. They are gone before the police get there. Sometimes the police don't have time to come.

Two and a half years ago, when I tried to stop a repeat shoplifter, I was told I was wrong. I was told chasing him was wrong, but he ran away when I asked him to pay for what he took. I was told tying him up was wrong, but he was hitting me and my workers. I was told putting him in my van was wrong, but he was kicking us. I was told I might be a bigger criminal than the shoplifter. I was told I was more dangerous than the shoplifter. I was in jail overnight. My wife was not allowed to see me.

I was very lucky that many Canadians supported me. The community raised funds to pay my lawyers. My lawyers worked hard and gave me good discounts, and the court set me free.

Even with so much luck, my family still has a hard time with the system. We spent time and money. We worried that I might go to jail, all because I don't want anyone to steal from me.

I know many people worry about shoplifters and store owners fighting on the street. I want to tell them we store owners don't want to fight; we just want to make a living for our families. When we have no choice, we want the chance to defend ourselves and what we work hard for. When we do, we need the government on our side.

I am just one of many store owners who are victims of crime. I want you to know that Bill C-26 is important to us. It means this government is listening to us and understands that we are victims.

Please continue to keep us in mind when you make laws.

Thank you for letting me speak today.

[Chi-Kun Shi, Lawyer, As an Individual]

Good morning, Mr. Chairman and members of the committee. Thank you for inviting me here today.

My name is Chi-Kun Shi. I'm a lawyer.

I spend most of my time practising civil litigation, far away from the criminal courts. However, in 2009, when I learned of David Chen's incident and the serious charges he faced, I felt that his case was one that raised issues not only about public safety, but also about fundamental Canadian values. I became involved in the public discourse.

In that process, I had the opportunity to speak to many store owners. I researched the proper roles of all three levels of government in the matter; debated the issues repeatedly on radio and television talk shows in both the English and Chinese languages; and gave numerous interviews to journalists of all media types, including international, national, and syndicated programs, as well as local college student newspapers.

From these discussions I learned that Canadians see the right to exercise citizen's arrest as intertwined with the fundamental relationship between Canadians and our government.

The proposed amendment to subsection 494(2) of the Criminal Code, before the committee today—that is, clause 3 of Bill C-26—is therefore an exercise in recalibrating that relationship and redefining the role of government in the lives of Canadians. It has fundamental implications.

The proposed amendment eliminates the current unworkable restriction that limits citizens' arrests to the very narrow window when the criminals are in the process of committing the crime.

In David Chen's case, the police relied on the contemporaneous restriction to deny David the availability of the citizen's arrest defence, and thereby flipped the essential elements of an arrest, any arrest, into very serious charges of kidnapping and forcible confinement. These charges were levelled against him as he arrested the shoplifter one hour after the crime was committed.

The proposed amendment before this committee will eliminate this scenario. It allows the store owners to make an arrest within reasonable time. However, it imposes other conditions, including the one that I will respectfully submit may not respond to the reality of life in a grocery store.

The proposed amendment stipulates that the citizen making the arrest must have found the criminal committing the offence in the first place, although the arrest could be made within reasonable time thereafter.

In practice, store owners rely on surveillance videos to determine, often after the fact, that the theft has taken place. As many of the shoplifters are repeat criminals, the store owners or their agents may receive the information of the theft through each other as they are often able to reliably identify these criminals.

Strictly speaking, information of that nature may not be sufficient to authorize a legal citizen's arrest under the proposed amendment, as it requires that whoever makes the arrest must have found the criminal committing the offence. As the consequence of an illegal citizen's arrest is so serious, the question one must ask is whether the amendment should be fashioned to provide the store owners more space between, on the one hand, doing a picture-perfect legal citizen's arrest, and on the other hand, suddenly becoming an alleged kidnapper.

Under the Criminal Code, even with this proposed amendment the stakes are very high for store owners who exercise their right to citizen's arrest. The benefits, on the other hand, are quite limited.

As David's case demonstrates, the Criminal Code, as implemented, imposes much harsher penalties on illegal citizens' arrests than on shoplifting. If we believe that the law encourages certain behaviour and discourages other, one can make the argument that the government's vision realized by our Criminal Code on the issue of shoplifting is one of acquiescence.

On the other hand, the government's vision on citizens' rights to protect their own properties is one of severe caution.

During many debates about what David's and other store owners' proper response to shoplifting should be, opponents of the right to citizen's arrest argued that store owners should call the police and then just wait.

As we all know by empirical data, anecdotal evidence, and indeed as admitted by police themselves, there are not enough resources for the police to confront the issue of property crimes on their own. So what these opponents are really saying to the store owners is simply to suck it up. Store owners who try to do anything else to protect their properties are taking the law into their own hands or committing vigilante justice.

In my view, until they've made a citizen's arrest, the law that day was in no one's hands but the shoplifter's. What the opponents have captured, though, in their view is the equating of citizen's activism with anarchy. To some extent the Criminal Code's harsh treatment of store owners reflect this view. Even these proposed amendments, motivated by the recognition of these store owners' fundamental rights to defend the fruits of their hard work, contain conditions that I submit reflect the government's unease about trusting Canadians to participate in the safeguarding of their communities.

The debate surrounding citizen's arrest is an opportunity to re-examine the role that every Canadian should play in his or her own surroundings and community. In Chinese, the word “democracy” is made up of two characters that mean “citizen” and “decide”: “democracy” means “citizens decide”.

These proposed amendments take a step towards giving Canadians more chances to decide and shape their lives. Perhaps some day the government will see fit to further amend the Criminal Code and trust Canadians with the right to defend themselves, where there are reasonable grounds to do so, without placing strictures that, as in David's case, turn Canadians defending their properties into serious criminals and turn career criminals into star witnesses for the crown.

I will always remember a store owner who told me that after he caught a shoplifter and waited for the police to arrive, he was more scared than the shoplifter of what the police might do. That is wrong. This proposed amendment is a good start to setting things right.

Thank you for your attention.