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 bill was last introduced in the 41st Parliament, 1st Session, which ended in September 2013.

Sponsor

Rob Nicholson  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 4:30 p.m.
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NDP

Linda Duncan NDP Edmonton Strathcona, AB

Mr. Speaker, I thank the hon. member for his very thorough and clearly knowledgeable and grounded presentation.

I have been going through the bill and trying to compare it with the previous legislation. I have to say, as a former legislative drafter in the office of the attorney general of Alberta, I am finding some rather peculiar things in this bill. I think the hon. member is making a good call that this go to committee. I share his views. I am sure the government means the best. It is trying to follow up and table a bill to fill a gap that our party had previously suggested be remedied.

However, if we look at section 35, unlike the previous provision, it simply says “a person who is not guilty of an offence”. An offence of doing what? The current Criminal Code says “an offence of assault or an offence using force”. So someone could do any offence and be absolved of liability.

There is also the issue of proximity and it does not seem to be clarified in these amendments. If we look at subclause 35(1)(b)(i) and (ii), they read, “has entered the property” and “or has just done so”, and (c)(ii) reads, “or retaking the property”. That could be a month later, five years later or anywhere. There do not seem to be any boundaries in this provision. It sounds like it merits a discussion in committee.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 4:30 p.m.
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NDP

Glenn Thibeault NDP Sudbury, ON

Mr. Speaker, I thank my hon. colleague for all the hard work that she does for her constituents in Edmonton--Strathcona.

Her question relates to something that is truly important about today's debate and what we are trying to do. We are talking about how we see the need for some changes to ensure that what happened to Mr. Chen does not happen to another shopkeeper. However, we want to send this bill to committee to look at many of the articles that she spoke to in order to ensure we are getting this right.

We have the opportunity here to create legislation with all party support, to truly do the right thing, to ensure we are supporting our shopkeepers, individuals with self-defence, in all of those capacities, but at the same time we want to ensure we are not promoting vigilante justice and that we are ensuring that people do not feel the need to act further than what they would have to and to still utilize the trained individuals, our police officers.

I agree with my colleague. We need to get this to committee. We need to do further analysis and look at the details when we get this bill to committee.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 4:35 p.m.
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Conservative

Kevin Sorenson Conservative Crowfoot, AB

Mr. Speaker, I am glad to hear that my colleague across the way and his party will be supporting the bill. We certainly welcome that support and we know that there will be a lot of work done at the committee and back here in the House as it is debated.

I know the member represents an area that is not just urban but there are also rural areas in his riding. I wonder if he would talk about how this is especially an issue in rural areas. I live in a rural part of a constituency where there is no guarantee that if we see someone coming onto our property that a call to the police will have them there within 15 minutes or even half an hour. As people are in distant places throughout a rural riding, the call to a local detachment may be 30 miles away. I know in the past that many farmers and other people in rural areas were hesitant to approach anyone. When they see someone carrying out a burglary on their farm there is hesitancy but, on the other hand, they do not want to watch their property disappear. We have seen in the past where courts have forced some landowners, and rightfully so, to be concerned about standing up and trying to defend their property.

That is why we believe this bill has to come forward and why some of the rural members from our caucus on the Conservative side have certainly encouraged the minister to move on this. I am glad to hear the member will be supporting it.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 4:35 p.m.
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NDP

Glenn Thibeault NDP Sudbury, ON

Mr. Speaker, my hon. colleague is correct. I represent the great riding of Sudbury which encapsulates a large portion of the city but I do have a small portion of my riding that is rural. One of the interesting things about Sudbury is that we are now called the City of Greater Sudbury. From one end of the city to the other it takes 45 minutes to an hour sometimes just to drive through it. We have fantastic police services. My chief and all the officers who are in Sudbury do a fantastic job but the police cannot be everywhere all the time.

I agree with what my colleague is saying. People in a rural area who see some type of burglary or something going on want to act. They want to ensure they are protecting their neighbours' property and their own property. However, if we have that fear of standing up for our own property and what happened to Mr. Chen, we may well see crime increase in the rural areas, which is not what we want to see. We are not talking here about vigilante justice, of farmers going around with pitchforks or people in the city going around with various kinds of weapons. What we want to see are people being able to stand up and feel good and defend their property.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 4:35 p.m.
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NDP

Tyrone Benskin NDP Jeanne-Le Ber, QC

Mr. Speaker, I will bring this back into the urban setting. In many municipalities we have security personnel who are charged with writing tickets municipally. They are not police officers or law enforcement officers in any way. Just in the interest of playing devil's advocate or allowing us to think beyond the absolutes that this bill represents, what does my colleague feel the pitfalls of this bill would be in regard to these individuals as citizens, as well as city employees, getting involved in law enforcement in this way under this bill?

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 4:40 p.m.
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NDP

Glenn Thibeault NDP Sudbury, ON

Mr. Speaker, there are many scenarios we could bring forward where, ultimately, the sad consequence would be death or severe injury of someone getting involved in an instance where he or she was not necessarily trained for that. We are not trying to create a bill that allows for everyone to become their own judge and jury. What was the movie with Sylvester Stallone, Judge Dredd or something like that? We are not trying to create that. What we are talking about here is looking at how we can ensure that an individual or a shopkeeper, like Mr. Chen from the Lucky Moose in Toronto, and I am using him often, does not need to go through the hardships that he went through for a year to protect his own property.

I think there are some very key elements that we need to study in committee. We need to get this to committee to bring forward the scenarios the member talked about and the scenarios that my hon. colleagues have mentioned in the past. There are experts in our country who could come forward as witnesses at committee who could really help us create the best possible legislation to support this type of legislation.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 4:40 p.m.
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Liberal

Sean Casey Liberal Charlottetown, PE

Mr. Speaker, I am pleased to have the opportunity to address Bill C-26, yet another crime bill from the Conservatives. I will begin by just commenting on this preoccupation with crime.

Since the election, we have seen bills introduced in this House on human smuggling. We had the omnibus crime bill, which wrapped together nine separate statutes. We have seen no fewer than eight private member's bills addressing issues of crime and law and order, whether it is increased sentences for someone involved in an unlawful act with their face covered, whether it is taking away rights of people who are on employment insurance, whether it is mandatory minimum sentences over and above those contained in Bill C-10, the private member's bill on hate speech, the imposition of sanctions on someone who proposes to prevent the flying of the Canadian flag.

Crime rates in this country are declining, the severity of crime in this country is declining but we have an ideological focus and preoccupation on crime.

We have some big and pressing problems in this country. We have problems with a patchwork of health care conditions and health care regimes across the country. We have serious poverty issues that are not improving. We have an outstanding report from a committee that has not been addressed in this Parliament. We have unemployment right across the country. Unemployment is a particularly bad situation in my riding. The single most common constituent inquiry that I get in my constituency office is asking for a job. We have the conditions of first nations, in fact that is what we addressed in our last opposition day, where we have Canadians living in third world conditions.

However, here we are with another bill on crime, not poverty, not jobs, not economic development, not health.

What I propose to do in my remarks is initially set forth some of the background, then review the provisions of the law that presently exist, go over the changes that are proposed, talk about some of the concerns that we have and then, as I do expect that this will go forward to committee, address some of the concerns that we have with respect to how legislation has been treated at committee so far in this Parliament.

By way of background, the legislation proposes to expand the legal authority for a private citizen to make an arrest within a reasonable period of time after he or she finds a person committing a criminal offence either on or in relation to his or her property. This expansion would not affect the role and responsibility of the police. The preservation and maintenance of the public peace remains the responsibility of the police.

The legislation would also bring much needed reforms, quite frankly, to simplify the complex Criminal Code provisions on self-defence and defence of property. It would also clarify where reasonable use of force is necessary.

When we get into talking about the specific offences, we will see that where there presently are multiple sections with respect to citizen's arrest and defence of property, they are being actually streamlined into one, which, on its face, certainly seems like a sensible thing to do.

Quite frankly, in principle, the bill is a good one. We do believe that more discussion is required. We have some concerns about whether the provisions in it with respect to self-defence are overly broad. We do hope that our frank and informed discussion, which is respectful of the views of all at committee, will address those concerns. We hope that there will be some openness that, quite frankly, we have not seen so far, to considering reasoned amendments. That was by way of background.

The bill addresses citizen's arrest and defence of property. The current law with respect to citizen's arrest is found in section 494 of the Criminal Code. In 494.(1) we find that:

Any one may arrest without warrant (a) a person whom he finds committing an indictable offence; or (b) a person who, on reasonable grounds, he believes (i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

In 494.(2) of the Criminal Code, the provision sought to be expanded by the bill, currently provides that:

Any one who is (a) the owner or a person in lawful possession of property, or (b) a person authorized by the owner or by a person in lawful possession of property, 2rrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

“Find committing” is defined under the Criminal Code as meaning situations where a person is basically caught in the act of committing the offence. This extends to a situation where the accused has been pursued immediately and continues, after he or she has been found committing the offence.

Also the law requires that when a citizen's arrest takes place, the individual must be delivered to a police officer without delay. That is the law as it presently stands.

The proposed amendments with respect to citizen's arrest would authorize a private citizen to make an arrest within a reasonable period of time after he or she finds someone committing a criminal offence that occurred on or in relation to property. It expands the time frame.

This power of arrest would only be authorized where there are reasonable grounds to believe that it is not feasible in the circumstances for the arrest to be made by a police officer.

The legislation would make it clear, by cross-reference to the Criminal Code, that the use of force is authorized in a citizen's arrest, but there are limits placed on how much force can be used.

In essence, the law permits a reasonable use of force, taking into account all the circumstances of the particular case. A person is not entitled to use excessive force in a citizen's arrest.

A citizen's arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain the public peace, nor properly trained to apprehend suspected criminals. In most cases, an arrest consists of either actually seizing or touching a person's body in an effort to detain the person, or a person submitting to an arrest.

A citizen's arrest made without careful consideration of the risks may have serious unintended consequences to those involved. When deciding to make a citizen's arrest, people should be aware of the current law.

The considerations for people who decide to embark on this course of action can essentially be summarized in three points: first, people must consider their safety and the safety of others; second, they must report information to the police, which is essentially the best course of action instead of taking action on their own; and third, they must ensure that they have correctly identified the suspect and the suspect's criminal conduct.

That is the current state of the law and the amendments that have been proposed with respect to citizen's arrest. In principle, the bill is a sound one in terms of expanding the time frame within which a citizen's arrest can be made.

There are some other concerns that I will address toward the end of my remarks. However, our concerns with respect to the bill and to what needs to be carefully scrutinized at committee, quite frankly, do not come under that clause of the bill.

The other issue that is dealt with in the bill is self-defence and defence of property. Of particular concern to us on this side of the House are the provisions with respect to self-defence.

The existing law with respect to self-defence and defence of property is found in multiple sections of the Criminal Code, which is in need of reform. The bill is on the right track in terms of streamlining and consolidating into one section the provisions with respect to self-defence and defence of property.

The current laws with respect to self-defence can be found in sections 34 to 37 of the Criminal Code. Distinct defences are provided for a person who uses force to protect himself or herself or another from attack. These depend on whether he or she provoked the attack and whether he or she intended to use deadly force.

The provisions with respect to defence of property are found in sections 38 to 42 of the code. There are multiple defences for the peaceable possessors of property, consideration of the type of property, whether it is personal or real property, the rights of the possessor and of other persons, and the proportionality between the threat to the property and the amount of force used. These are all things that must be taken into account when the defence of property is raised.

I have one final comment with respect to the use of deadly force. The use of deadly force is only permitted in very exceptional circumstances, and rightly so. For example, where it is necessary to protect a person from death or grievous bodily harm. The courts have clearly stated that deadly force is never considered reasonable in the defence of property alone.

The legislative reforms currently being proposed would not make any changes to the law with respect to deadly force, and quite frankly, none are necessary. It is absolutely clear enough and not in need of reform. The courts will therefore continue to make any necessary changes on a case-by-case basis, developing the common law where it is appropriate.

That is the current state of the law with respect to self-defence and defence of property.

As I indicated, the amendments proposed to streamline it deal with the fact that the current law has provisions in multiple sections. The Criminal Code provisions that are being proposed would clarify the laws on self-defence and defence of property so that Canadians, including police, prosecutors and the courts, can more easily understand and apply the law. Clarifying the law and streamlining statutory defences may assist prosecutors and police in exercising their discretion not to lay a charge or to proceed with a prosecution.

Amendments to the self-defence provisions would repeal the current complex self-defence provisions spread over those four sections of the code, sections 34 to 37, and create one new self-defence provision. That would permit a person who reasonably believes himself or herself or others to be at risk of the threat of force or of acts of force to commit a reasonable act to protect himself or herself or others.

The debate, and the discussion in courtrooms across this country, will be on the legal interpretation to be applied to the word reasonable. Plenty of jurisprudence exists now with respect to that within the criminal law. We are not exactly forging new ground by using the word reasonable in multiple places within the Criminal Code.

The amendments with respect to the defence of property provisions would repeal the confusing defence of property language that is now spread over five sections of the code, sections 38 through 42. One new defence of property provision would be created, eliminating the many distinctions regarding acts a person can take in defence of different types of property. There are different provisions for different types of property.

The new provision would permit a person in peaceable possession of a property to commit a reasonable act, including the use of force, for the purpose of protecting that property from being taken, damaged or trespassed upon. Again, the provisions with respect to defence of property do appear to make good sense. This is an appropriate way to add clarity to the provisions of the code.

The provisions of this bill that require the most careful examination at committee are those with respect to self-defence, I believe.

The concerns with respect to self-defence and the concerns with respect to defence of property, citizen's arrest, the concerns with respect to the bill generally, relate to vigilantism. The concerns relate to people taking the law into their own hands and taking unreasonable risks to prevent crime or defend themselves.

I have been involved in a medium-sized business, a business which has 16 retail stores across the country. We would constantly advise our store managers that if they found themselves in a situation where someone is coming in to rob the store, they should not be heroes. They should pass it over, be as observant as they possibly can and then let the police do their job.

This will be outside the actual parameters of the legislation, but I think it is absolutely critical for the government department responsible for this bill, when it comes into effect, to have a pretty substantial public education campaign. People need to know exactly what the impact of the bill is and what the changes are to us in everyday life. Industry associations should be involved.

The biggest concern about this bill in my mind is not so much the contents of the bill but how it is going to be perceived in the public. If it is perceived in the public that now their rights to defence of property, to self-defence and to citizen's arrest are greatly expanded, the unintended consequences could be very severe. It could, quite frankly, be scary.

To summarize, our party will be supporting the bill in principle. We have some concerns about the scope of the self-defence provisions. We agree with the provisions with respect to property defence. It is appropriate for this bill to go to committee.

The discussions and the conduct of the justice committee with respect to Bill C-10 do not inspire confidence. The imposition of time allocation with respect to such an important bill, the automatic defeat of any opposition amendment without substantive discussion or consideration is something that we sincerely hope will not be repeated with respect to this.

If there is a discussion, if there is open consideration of constructive amendments, then we do have a chance to do something good here. I hope we do.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 5 p.m.
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Conservative

Harold Albrecht Conservative Kitchener—Conestoga, ON

Mr. Speaker, one of the benefits of the discussion on this bill is the fact that there are those who may have been in situations where they were reticent to act simply because the law was somewhat fuzzy and people were more concerned about being on the wrong side of the law than actually taking the action that should have been taken.

My colleague sort of muddied the waters when he started off his speech by talking about the preoccupation of this government with crime. He said that crime rates were dropping. In fact, in many areas of criminal activity the rates are actually on the rise. Even if they were not, does the member feel that the current levels of crime are acceptable in the areas of child sexual exploitation, drug trafficking near our schools, selling drugs and destroying the lives of children and young people? Is the member actually satisfied that in those areas of criminal activity the current rates are acceptable?

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 5 p.m.
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Liberal

Sean Casey Liberal Charlottetown, PE

Mr. Speaker, this gives me an opportunity to provide my colleague opposite with something that was just printed in The Economist today, which states:

The crime rate in Canada fell last year to its lowest level since the early 1970s, and the murder rate is back where it was in the mid-1960s.

My response to my colleague is this. There is no doubt with respect to the evidence. The evidence does not seem to matter. Crime rates and the severity of crime are falling in our country, yet there is an absolute preoccupation with the law and order agenda on the part of the government and that has been reflected in the workings of the House since the election.

After spending 60 days going door to door in Charlottetown during the election campaign, the crime agenda did not top mine. It was about poverty, jobs and economic development.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 5 p.m.
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NDP

Jack Harris NDP St. John's East, NL

Mr. Speaker, I listened with care to the member's speech. I share his concern about the detail of the new legislation, particularly on self-defence. It is already a complex area of the law and there has been 100 years of traditional interpretation. If we are starting down a new road with a different approach, I wonder how long it is going to take to get the proper understanding of that law through the courts. I share his concern that there ought to be a detailed study in committee, but I also share his worry that it might not get the kind of consideration it deserves.

Has he received any comfort from the comments of any government members today that they will take a proper approach to this legislation, do the kind of detailed study that is required, listen to experts and be willing to modify the legislation if it is needed?

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 5:05 p.m.
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Liberal

Sean Casey Liberal Charlottetown, PE

Mr. Speaker, I wish I could say yes, but, quite frankly, I have not. Actions speak louder than words. I am the associate justice critic for the Liberal Party, so from time to time I am pressed into duty. So far in this session of Parliament, in the limited time I have spent in the justice committee, what I seen does not inspire confidence. I am primarily involved in the veterans affairs committee and the conduct of the party that controls the committee is such that there is not room for consideration of amendments from the other side.

It strikes me that some of the amendments presented in Bill C-10 were rejected by members in committee, but are now adopted as their own. Let us hope that something like that will not be necessary and that it can be dealt with in committee. There seems to be a will on that side of the House. Let us hope that a new leaf will be turned.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 5:05 p.m.
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Liberal

Wayne Easter Liberal Malpeque, PE

Mr. Speaker, I want to deal with the area that the member for Charlottetown raised as a concern, and that is how the public may perceive the bill. I also should mention not only are the crime numbers dropping, and the last thing the government wants to see is the facts, but in the last Parliament, when the member for Charlottetown was not a member, the government destroyed the greatest rehabilitation program in the federal system and that was the federal prison farms. That was a huge mistake and it will cause problems down the road. It was the greatest system within the prison system for rehabilitation. It taught prisoners skills that they could use in any occupation, not just farming. I sat on the committee and the government members did not want to see any of the evidence. They discarded that program and now we have lost another good program.

My question relates to the concern that the member raised about the perception of the bill with the public. Are people really thinking they have the right to take the law into their own hands? That is a very legitimate concern and would have unintended consequences.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 5:05 p.m.
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Liberal

Sean Casey Liberal Charlottetown, PE

Mr. Speaker, the single biggest concern with respect to the bill is how it will be perceived by the public. If it is perceived in the public as opening the door to vigilantism, we will have done a disservice.

There are good aspects to the bill. I believe that it will become law given the will that is expressed in the House. If and when it does, it is extremely important that the public understands just exactly what it means and that there be an awareness campaign. As I indicated, if we have shopkeepers feeling that it is open season in terms of protecting their property and that their rights have been vastly expanded, we are going to create more problems than we have solved by this.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 5:05 p.m.
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Conservative

Dan Albas Conservative Okanagan—Coquihalla, BC

Mr. Speaker, I have a brief comment and a question for my colleague. First, I have to point out my utter disappointment that the party, which once said how important it was to clarify the people of Canada's rights through the Charter of Rights and Freedoms, does not seem to be interested in debating the merits or the challenges of this common sense bill, a bill that clarifies people's rights if they are personally attacked or their property is attacked. Instead the members are focusing on other bills and other arguments for other days.

Does the hon. member have specific issues with Canadians being expressly clarified as to how they can best protect themselves and have a justice system that will stand behind them? I would like to know what those are and I would also like to hear his thoughts on property rights and how the bill addresses that.

Citizen's Arrest and Self-defence ActGovernment Orders

December 1st, 2011 / 5:10 p.m.
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Liberal

Sean Casey Liberal Charlottetown, PE

Mr. Speaker, there are some good things in the bill. First, the provisions with respect to citizen's arrest are good. The provisions with respect to defence of property are good. The provisions with respect to self-defence, require further discussion because they may be too broad. There may be some other language required other than multiple use of the word “reasonable” and that is where a reasoned discussion at committee should take place.

Although the question would seem to imply that we are at polar opposites with respect to this debate, quite frankly, we are probably much closer to the government's position than the question would imply. The specific provisions that need further study are with respect to the broadness of the self-defence provisions of the bill.