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.

[Oliver Abergel, Member, Criminal Lawyers' Association]

Good morning. I'm here on behalf of the Criminal Lawyers' Association. We've been before you before.

We're a non-profit organization, founded on November 1, 1971. The association is comprised of approximately 1,000 criminal defence lawyers, many of whom practise in the province of Ontario, but we have representation from across Canada.

The association has been granted standing to participate in many significant criminal appellate cases as well as other judicial proceedings. We find it both a privilege and a pleasure to be given the opportunity to appear before this committee on this important bill.

I'll start by saying that this bill is very important to all Canadians, as it deals with the basic rights to defend oneself and one's property against unlawful attack. The Criminal Lawyers' Association believes that everyone, regardless of party affiliation or particular role in the justice system, be they crown prosecutors, defence lawyers, judges, or police, can agree that no one should attract criminal liability for legitimately defending oneself from aggression.

The position of the Criminal Lawyer's Association is that the goal of Bill C-26, in particular sections 34 and 35 involving the self-defence provisions, is laudable.

Countless courts, academics, and trial lawyers have commented with dismay at the needless complexity and confusion associated with the present self-defence provisions. Clearly this bill is attempting to respond to those criticisms. However, the bill as drafted is not without some difficulties, from our perspective. I will attempt to outline constructive criticisms while maintaining that the bill does respond to criticisms that have gone on for a number of years.

I have three essential points. Number one is the issue involving what I call “lethal force”. Paragraph 34(2)(b), as it currently stands, makes it clear that an innocent party who has not provoked an assault is justified in causing death or grievous bodily harm if he or she reasonably fears death or grievous bodily harm and reasonably believes that he or she cannot otherwise preserve him or herself from death or grievous bodily harm. The proposed amendments simply create a reasonableness standard, and I say there's not a great difficulty with that for many uses of force.

Proposed subsection 34(2) lists the nature of the force or the threat as one factor to be considered among a list of possible factors. Proposed subsection 34(2) also lists “other” means available as being a factor in such scenarios. That is suggestive potentially of bringing in notions of retreat or possible escape, especially when dealing with someone who is in their own home.

The Criminal Lawyers' Association recommends that there be a clear subsection clarifying that lethal force is proportionate where it is used to repel force or a threat of force capable of causing death and/or grievous bodily harm. We say this because we believe that without this clarification innocent parties will have their actions dissected in 20/20 hindsight, without appreciation of the stress of a self-defence scenario. For example, if you're in your own home, with your family asleep in their beds, and someone breaks into your dwelling and comes after you with a weapon, you should be able to defend yourself using lethal force if necessary. You should not have to explain why you didn't avail yourself of other potential avenues of escape.

Issue number two is the list in proposed subsection 34(2). The Criminal Lawyers' Association agrees with the Canadian Bar Association that proposed subsection 34(2) may result, unintentionally, in being used as a checklist, especially when a judge is applying these criteria. We acknowledge that the proposed subsection clearly says that these are some of the factors and the list is not exhaustive. We understand that.

That being said, the concern is in a practical matter, and the Criminal Lawyers' Association are able to give commentary as practical trial lawyers that, especially in a jury trial, the list of factors is what will be provided to a jury and what the jury will take with them into their deliberations. There is a concern that if another factor comes up that wasn't deemed important enough to list as one of the major factors to be taken into consideration, this may negatively impact the law of self-defence.

It's our submission that the list is simply not necessary, that it leaves out many potential relevant factors, and that all of the enumerated factors are simply examples of either proportionality or of necessity.

My third point is on section 34.(3).

The common law, as it currently stands, is that a person is justified in using force to repel an unlawful arrest. The amendment, as represented in the proposed section 34.(3), injects a subjective belief and creates a potential onus for a person who has resisted an unlawful arrest or an unlawful search to show that they subjectively and reasonably believed that the other person was acting unlawfully.

Again, we agree with the Canadian Bar Association that section 34.(3) is simply not necessary. It's very clear that self-defence is not applied to resisting a lawful arrest, that it's duplicitous and may, by accident, inject the need for an accused to prove his or her subjective belief when defending against unlawful arrest and/or search.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order.

This is the Standing Committee on Justice and Human Rights, meeting number 22. Pursuant to the order of reference of Thursday, December 15, 2011, we are studying Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

This morning we have three groups to appear before us.

Just so that everybody understands the rules of the committee—and not the chair's rules—they are that there is an opening address of ten minutes allowed, per group. I'll let you know when there's one minute left in your total. When we begin the rounds that go back and forth, they're five minutes total for question and answer. If I cut you off, it's not because I'm being mean-spirited; it's just to balance it out for all the committee members.

Mr. Battista and Ms. Dufour, if you wish to have an opening address, please go ahead. Thank you.

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

You set out a threefold test for when repelling force would be justified and therefore provide a defence. I tried to make notes, and I think I captured it. I'll try to paraphrase it: first, the defendant faced a wrongful application of force; second, the defendant's response was necessary; and third, it was proportionate to the unlawful force that was being applied.

If I look at the proposed subsection 34(1) in Bill C-26, it also sets out proposed paragraphs (a), (b), and (c), where a person's not guilty of an offence if (a) “they believe on reasonable grounds that force is being used”, which is more or less that the defendant faced wrongful application of force; and (b) that “the act that constitutes the offence is committed for the purpose of defending or protecting themselves”, which is roughly your number two, “the response was necessary”.

Really, the only thing we're quibbling about is the third prong, where it says “the act committed is reasonable in the circumstances”. That's the proposed legislation, but you would prefer it if “reasonable” said “proportionate”.

Did I capture your theory correctly?

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

Thank you, Mr. Chair.

Thank you to all the witnesses for your attendance. It's especially great to see one of Edmonton's finest officers with us here today.

My questions are for Professor Stewart. I listened to your opening comments quite carefully, and I made some notes. I'm still confused. Do you support this legislation, Bill C-26? Do you support it with reservations, or are you opposed to it? You seem to see some good and some not-so-good in it.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chairman. I also thank the three witnesses, who made very interesting presentations.

I would like to go back to some statements made by Professor Stewart. If I understood the brief you submitted correctly, the current provisions of the Criminal Code that concern self-defence and the defence of property have been in effect since around 1892. This will be one of the most important changes ever made with regard to the matter of self-defence and the defence of property. That is one more reason to do things right.

I'll address my first comment to Mr. Preston, who represents the Association of Chiefs of Police. Last week, we heard from Mr. McLeod, who is the president of an association of professional security agencies. I understand that you support the proposed amendments and that does not concern me. That said, I still am under the impression, based on the statements we've heard, that security agencies would like to do the work that police officers cannot do because of a lack of resources, such as deal with shoplifting, for instance.

Would you be favourable to allowing security agencies greater powers of arrest in the context of Bill C-26 and other amendments that may be submitted to deal with those aspects which should normally be your responsibility?

[Alex Scholten, President, Canadian Convenience Stores Association]

Good afternoon.

My name is Alex Scholten. I'm the president of the Canadian Convenience Stores Association. The Canadian Convenience Stores Association, or CCSA, represents the economic interests of the 25,000 convenience stores located in communities across Canada.

My discussion today will focus more on practical aspects of what our retail members experience in terms of shoplifting and the existing criminal laws regarding citizen's arrest. The CCSA is pleased to offer its views on these provisions and to provide background supporting our perspective.

I'll briefly review the following three topics. The first is the convenience store industry's environment and the impact shoplifting has on our profitability. The second is the issues facing convenience store owners under the current citizen's arrest provisions of the Criminal Code. Third is the case of David Chen, a store owner who was charged under the current citizen's arrest provisions of the Criminal Code for detaining a shoplifter.

I'll conclude this brief by making specific recommendations on the provisions of Bill C-26, specifically proposed subsection 494(2), dealing with amendments to the Criminal Code provisions on citizen's arrest.

For ordinary Canadians, the likelihood of having their property stolen is fortunately not an everyday occurrence. For convenience store owners, however, it's a constant preoccupation. By virtue of the nature of the convenience store industry, where stores operate for long hours, in many cases 24 hours a day, in both rural and urban areas, the issues of shoplifting and theft arise constantly. In addition, as many as 10 million Canadians frequent our association's 25,000 stores every day. The openness of our industry increases our exposure to theft and robbery on a daily basis.

Therefore our perspective on the proposed citizen's arrest legislation is quite relevant, since unlike the average Canadian, the typical convenience store owner is faced with theft issues that challenge property rights on a regular basis. In addition, losses and inventory shrinkage resulting from this type of crime have a direct impact on a store owner's ability to survive in today's competitive environment.

In 2007 a member survey conducted by the Retail Council of Canada identified the mean retail shrink rate, or the measurement of losses due to store theft and fraud, reported by their respondents as 1.54% of net sales. With total convenience store industry sales of $33.8 billion in 2010, this would equate to losses of more than $500 million for Canadian convenience stores.

Through member surveys we have conducted, we have found that pre-tax net profits for our industry members do not surpass 1% to 1.5% of net sales, which is a very small profit margin. I point out that this is almost equivalent to the losses due to theft and fraud, using the Retail Council of Canada figures.

While the CCSA recognizes the importance of police work and the enforcement of criminal laws, we're very concerned that the pursuit of shoplifters is not a high priority for police. We understand why this is the case, as enforcement around this type of criminal activity and its sheer volume can be overwhelmingly taxing on our police forces. As a result, though, convenience store owners are left with very limited recourse in the face of this type of crime.

How do convenience store owners behave in terms of shoplifting? When convenience store owners or one of their employees choose to react to theft in the store, they're left with very little room to manoeuvre. Not only must they make a quick decision on whether or not a crime has been committed; they must also determine what action to take. Typically this will involve reviewing security recordings and confirming actions with management.

Unlike what Mr. Preston talked about with large department stores, this is not done with multiple levels of staff. Typically in our stores we have one or two people working at one time. So this takes more time. It's more of a process for those two people to do these things.

But typically, in reviewing the tapes and actually determining whether to apprehend someone, time is of the essence. Shoplifters are in and out of the stores very quickly.

Within the current Criminal Code provisions, the ability to make a citizen's arrest is very restrictive. It's only allowed in situations where an individual is caught actively engaged in a criminal offence. This means that the offender must be caught in the act, and the store owners therefore must react on the spur of the moment to make their decision.

The CCSA does not encourage its members to take law enforcement matters into their own hands. However, we must recognize that interactions of this nature are unavoidable. Due to the extremely low profitability inherent in our industry, theft of even very small amounts can present very challenging situations for our members. The fact that C-store owners are protecting their property in such instances, and could be prosecuted under current legislation if they detain a shoplifter after they've had property stolen, goes beyond most people's common sense. That a victim can suddenly be accused goes against our shared principles of justice and fairness. Due to these factors, we believe there is a need for less restrictive citizen's arrest provisions in the Criminal Code, and clear guidelines to ensure the victims of crime do not become targeted by the justice system.

To illustrate that, I'll give you the recent case involving a convenience store retailer in the city of Toronto. On May 23, 2009, David Chen, the owner of the Lucky Moose Food Mart on Dundas Street West in Toronto, and his two employees apprehended and detained a man who had been stealing plants from his store. The man who was detained had a long history of shoplifting convictions. At trial, it was indicated that he had over 40 previous convictions for shoplifting. He had previously been banned from Chinatown and the nearby Kensington Market area in Toronto for three years because of his repeated pilfering of area businesses. In August 2009 he pleaded guilty to the shoplifting charges that stemmed from this incident, and he was sentenced to 30 days in jail.

The offender was initially caught on security footage stealing from the store, but he managed to leave the store without being caught. He then returned to the store an hour later, at which time Mr. Chen recognized him from surveillance footage. Mr. Chen and his two employees confronted the man, apprehended him, and then detained him by locking him in the back of a store delivery van to await arrival of police. The reason he was put in a store delivery van was that it was a small store and they didn't have any other space to put this gentleman in.

When the police arrived, they arrested the shoplifter, and he was subsequently charged with two counts of theft under $5,000. Mr. Chen and his two employees were also arrested and charged with forceable confinement, carrying a concealed weapon—which was a box cutter that Mr. Chen had been using to cut cardboard boxes in his store—and also assault. These charges were far more serious than the charges the shoplifter had faced in this case.

What was Mr. Chen's offence in this case? He was charged because he detained a shoplifter who had already successfully stolen goods from his store. Since the thief had already left his store and was successful in his illegal activity, Mr. Chen had no right under present Criminal Code provisions to apprehend him when the thief re-entered the store an hour later.

Crown prosecutors eventually withdrew the concealed weapon charges against Mr. Chen, but proceeded with the charges of forceable confinement and assault. To add insult to injury, the shoplifter was the crown's key witness in their case against Mr. Chen and his two employees. Fortunately, 18 months after the accusations, the charges against Mr. Chen and his two employees were dismissed. The judge trying the case concluded that Mr. Chen tried to fill the void where the justice system failed.

Mr. Chen has been called both a vigilante and a people's champion. We believe he's simply an honest, hard-working business owner trying to survive in a very difficult business environment.

The citizen's arrest provisions found in subsection 494(2) of the Criminal Code are too narrow to allow people to protect their property. Instead of allowing a citizen's arrest only when a person is found committing a criminal offence, these provisions must be amended to also allow private citizens, within a reasonable time after an offence has been committed, to arrest people they suspect have committed a crime, and they believe on reasonable grounds it is not feasible in the circumstances for a peace officer to make such an arrest. The proposed changes noted in C-26 allow for such flexibility.

The CCSA supports the provisions of Bill C-26 dealing with citizen's arrests and the expansion of circumstances under which law-abiding Canadians can make a citizen's arrest, when appropriate, as it provides more clarity and guidelines to our small-business members about their rights and acceptable level of involvement in law enforcement.

Even if the proposed changes to the Criminal Code are made, we would still not encourage convenience store owners to take the law into their own hands, as that should be a policing responsibility. However, given that shoplifting is not a high-priority offence for police, victims of crime in the convenience store industry should not be re-victimized by the criminal justice system when they attempt to protect their property in the absence of police support.

In conclusion, we thank the standing committee for giving us an opportunity to express our views.

[Superintendent Greg Preston, Edmonton Police Service, Legislative Amendments Committee of CACP, Canadian Association of Chiefs of Police]

Good morning. By way of introduction, really quick, I'm Acting Superintendent Greg Preston of the Edmonton Police Service, but I'm here representing the Canadian Association of Chiefs of Police, the CACP, and its law amendments committee.

I'd like to say at the outset that CACP does support the passage of Bill C-26. We think it's important that citizens be recognized, that when they do act, they have self-defence available to them. We believe that this will assist the police in understanding, to be able to better determine whether or not somebody who does act does so lawfully. The streamlined process that's proposed here will do that, and that will assist us.

The other area we'd like to comment on is that while we would prefer that trained and equipped police officers engage in the actual arrest, we do realize that the reality is that there will be certain situations where citizens do respond, whether that's as a good citizen to the neighbour or just to any other person they see. So the reality is that people will act. As I said at the outset, we'd prefer if we were on every street corner, but that's not the reality of the world. It is inevitable, and as such we certainly support the idea that they would be recognized for that.

There is one area I would like to comment on that's open for some discussion, possibly, by the committee in considering whether maybe an amendment might be necessary. That has to do with the way that subsection 494(2) is currently worded, as well as the proposed amendments, in that the bill still speaks of "if they find them committing". That's the current wording of the section, “finds committing”, as well as the proposed piece to it. As the backgrounder, the bill speaks to being caught in the act.

I just want to highlight that there's been a change in technology, obviously, over the last number of years, and that's through CCTV--closed-circuit television. Quite often we're finding that many department stores, for example--and it's not just department stores, but we are called to many of these--utilize CCTV in their loss prevention. The LPOs, or loss prevention officers, will be monitoring their store and looking for thefts through CCTV, so you'll have somebody in a monitor room, and they'll be watching the CCTV. They might observe somebody who appears to be committing an offence. What they then do is they'll call down to the floor LPO. They'll do that normally through radio or through a cellphone. They'll be relaying their observations of what is going on and why they believe that somebody's committing a crime. They relay that to the floor LPO. That particular floor LPO will then, at some point, generally speaking, be the one that will then move in to make the arrest.

I would submit to you that in a certain situation like that, and in many cases, they have never observed any aspect of the commission of the offence. In fact, quite often they will stay out of the area so as not to heat the individual up, not to spook them. So they want to see if the person really is committing an offence or if they're just going about their business. When the offence is committed, and it's been relayed to them that the person did select the item, did conceal the item, and now they're walking towards the exit, that's when the floor LPO will move in.

I would submit that at that point in time, when they move in to make the arrest, it's not "finds committing". In essence what they are relying on is reasonable and probable grounds. I know that some might debate and say that the offence is still an ongoing crime at that point in time, and therefore it's still "finds committing". I would suggest that it's not the case, that it really is reasonable and probable grounds they're operating under.

I would submit to you the case of the Queen v. Biron. It's a 1976 Supreme Court decision. It's cited in the materials I provided, but for ease of reference, it's [1976] 2 S.C.R. 56 - page 72. I believe that supports my position that what you have here really is an RPG, not a "finds committing".

If that is the case, and I know that this is not an issue where it's directly the police being involved, I still speak to it because the police are called to these incidents where we are required under subsection 494(3) to be called forthwith, to have this person delivered to us, so we still have to be satisfied that the arrest was lawful. Otherwise, we arguably are taking on an unlawful arrest, unless we can form some other grounds to continue the arrest. On occasion, we'll be called to investigate that loss prevention officer for the unlawful arrest, an assault.

We do have an interest in this, and we do believe that some consideration should be had to that particular element. Beyond that basis, we do support the passing of the bill.

I want to thank you for the time and giving the opportunity for the police community to have some input. Obviously I'll be willing to answer any questions you may have.

[The Chair, Conservative, Dave MacKenzie]

We'll call the meeting to order, this being the 20th meeting of the Standing Committee on Justice and Human Rights.

Today we're continuing our study on Bill C-26, an act to amend the Criminal Code. We have some witnesses before us today.

Just before we start, I'll just remind the committee that on Thursday we're going to deal with Mr. Comartin's Bill C-290. He has one witness. I believe that we'll be able to deal with that witness and do the clause-by-clause on Thursday. Hopefully we can finish that bill off. Then we're going to deal with a couple of groups that are going to come before us. And hopefully we can finalize the organized crime study.

Today we have three witnesses before us: Mr. Stewart, Mr. Preston, and Mr. Scholten. You're each given ten minutes, if you wish, for introductory statements, and then the questioning goes back and forth. It's a total of five minutes for questions and answers.

Whoever would like to go first, please feel free to do so.

Justice

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

Mr. Speaker, this government is committed to putting real criminals behind bars. Bill C-26 provides a framework for innocent Canadians to protect themselves in instances where the first line of defence, the RCMP and police, are not able to respond.

In dealing with matters of reasonable circumstances, basically we will rely upon the courts and the prosecutors to determine how Canadians are able to protect themselves, thanks to this enhanced act.

[The Chair, Conservative, Dave MacKenzie]

Right, and then it's two more meetings on Bill C-26?

[The Chair, Conservative, Dave MacKenzie]

Then we'll have two more meetings on Bill C-26?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

In previous discussion with Mr. Harris, there was a suggestion that we might be able to put Mr. Comartin's bill in there. That only takes about an hour, and he said he only needed 24 hours' notice. There's also the completion of two witnesses on organized crime, which also will not take a lot of time.

Probably both could be done in one shot on Thursday, so my suggestion is that we do that. Obviously we want to get through Bill C-26, and that's why I was reluctant to do those right off the bat, but there's a gap there, and there's no harm to anyone, so....

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you, Mr. Chair.

I just want to thank the committee for the opportunity to be part of this discussion about C-26, the citizen's arrest and self-defence act. I actually spent 15 years teaching martial arts and self-defence, in particular, to a variety of youth and adults. Some of my students had to use some of the skills I taught them. Hopefully, most of them didn't have to use it because of their communication skills and whatnot.

Over my career, I found that every time I spoke with either a lawyer, the RCMP, or various law enforcement officers, there was never a clear case where they could tell, in any case, what exactly constitutes self-defence for the reasonable person. I do have some questions with regard to this, and I'm going to be directing them to the constable.

The reforms proposed in this bill would include a list of factors the court could consider in determining whether the person's actions were reasonable. Again, examples, Mr. Chair, would be pre-existing relationships between the parties, including the history of any violence, and the proportionality between the harm threatened and the response in turn.

Now, specific to the constable, that defence would be available for a person who commits any type of act for a defensive purpose. Again, as a former martial arts instructor, you would always try to encourage another way than outright confrontation, such as if they could retreat or get away. This may put them in a situation where they may have to commit what would typically be a crime—like stealing a car to flee an attacker or trespassing on property—as long as it's reasonable under the circumstances.

My question for the constable is that the current law is limited to justifying the act of force only. What do you think, sir, of these reforms and their ability to provide that protection when they are reasonably used?

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

A point of order.

We're here to study Bill C-26 and determine how we can improve it. I don't see how discussing the witness's personal background is relevant.

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

Okay, well, maybe we'll put it in capital letters and maybe judges will pay more heed to it.

Your brief is very well done. I just honed in on one part, where you “believe that it is essential to maintain the subjective element in self-defence, an element that has been affirmed in decades of case law”. I agree with that statement. But when I read through Bill C-26, I can't find any fear or any legitimacy for any fear that the subjective element in self-defence would be removed. In fact, it's quite the opposite. It appears to me that the subjective element is reinforced where the legislation uses deliberate language, like “they believe on reasonable grounds” in proposed paragraph 34(1)(a) and in proposed paragraph 34(1)(c) that “the act committed is reasonable in the circumstances”.

It appears to me that the word “reasonable” reinforces the common-law importance of subjective response with respect to the actions of the person. I was wondering if you have comment or if you agree or disagree with my assessment.