Bill C-26 (Historical)

Citizen's Arrest and Self-defence Act

An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons)

This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons.

Citizen's Arrest and Self-defence Act

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Madam Speaker, my colleague from St. John's East has shed a great deal of light on the issue that we are debating here today.

As he said, he was a member of this chamber a great number of years ago. He decided to step down because the oil from the lamps that were used to light this place caused him headaches.

Since he was a part of this process, my colleague may be able to enlighten me on a concern I have. I am leery that this piece of legislation may prompt an outpouring of vigilante justice.

I talked earlier about a neighbourhood watch program that was established in my community because there was a rash of break-ins. If some guy decides to steal a barbecue, the initial reaction is to confront him head-on. If this guy is on some kind of substance—crystal meth, coke, or jacked up—or if he has a weapon on him, or whatever it might be, the citizen confronting him is placing himself at great risk.

My question is in combination with the questions posed by my colleague from Saanich—Gulf Islands. With the passing of this legislation, should there be some type of program that could assist in educating provinces and private citizens?

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, it was not the glow of the lights that caused me to retire temporarily from federal politics. The voters decided they wanted me to sit in the provincial legislature, not the federal, so I took their advice and spent a few years doing that before I came back.

The member raises a very good point. We certainly discussed that. There was some talk that was a bit wild in our committee, suggesting that shooting guns over people who are coming onto our property was a good thing, or allowed.

The big worry that I am sure the hon. member would have would be that this bill could possibly encourage people to take risks. Police forces across the country would warn the public against that. I would hope that the federal justice department, upon the passage of this bill, would earmark some money into a national program saying that we have the right to defend ourselves, but the police are there to do the job. That should be the message out of this.

However, it should not stop us from making the law better. I think we have done that, but I do hope the members of the public listen to what the hon. member is saying and avoid these kinds of confrontations, because they are not trained and they do not necessarily know what they are dealing with if they try to effect a citizen's arrest.

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, I want to thank my colleague whom I am glad to see before me. This morning, during my speech, I thanked my colleague from St. John's East for the extraordinary work he did on the Standing Committee on Justice and Human Rights as the justice critic. He has been a very good mentor.

I would like to go back to the committee's deliberations on Bill C-26. It is true that much has been said about the Lucky Moose part of the bill, but there is also everything to do with self-defence. What is more, some legal experts had concerns about how to define “reasonable defence”, and we had to strike a balance between objective and subjective criteria.

I would like to know whether my colleague, who has been in the House for a long time, is pleased that we managed to uphold defences that might be used by battered women, for example. In that regard, the bill is well balanced. Not all of our amendments were adopted, but some of them were approved by this government, which often turns a deaf ear.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, I want to thank the member for Gatineau for her kind words. As I said in our last gathering, I was delighted that she was appointed justice critic and I felt that she would do an excellent job on behalf of our party and the country, so I commend her to that role.

We were worried enough about the state of the bill that we moved the amendment. One was to seek to ensure that the perception of the person was key, that the subjective interpretation was important. That amendment failed. Sometimes we make amendments for greater certainty, and that was the case here: we wanted to make the amendments for greater certainty. We were given some assurance by the justice department officials that they were unnecessary; however, in our judgment, it was for greater certainty that we moved them.

It is a balance. Sometimes we have our own opinion, but when the majority passes something and we have some legal advice from the experts, then we have to decide whether we do not support the bill or whether we support it hoping that they were right and that our judgment was unnecessary in this particular case. This is an example of that situation.

I do not think it puts at risk the situation of the battered wives syndrome as an aspect of self-defence in those types of cases. I do not think it puts those people at risk. We wanted to have greater certainty and we did not get it; we hope it does not cause problems in the course of events, but that remains to be seen.

[David Christopherson, NDP, Hamilton Centre, ON]

Madam Speaker, I appreciate the opportunity to be a part of the debate today.

Right from the get-go, I will display my non-credentials to the extent that I am not a lawyer. I am a layperson, so my comments will be very much from the point of view of what took place, why it took place, what the solution is and where we are in terms of the politics of it right now. I will leave it to the professionals to deal with the details of discussing the minutia of the bill.

Also, it is a real treat to be stand in this place to talk about what one could call a law and order bill from the government that we can actually support, that actually does something positive and is not just laden down and loaded with spin, taking care of the base and all the politics. It is nice to deal with the Criminal Code in a way that the average Canadian would not only understand but would support.

At the risk of my whole speech becoming a preamble, this may indeed be the very first time probably in my entire public life where I may not use all the time available. The odds are that will not happen, because I know what I am like, but there is a good chance I will conclude a little early. I am just letting you, Mr. Speaker, know that if that happens, I am not ill; nothing has gone wrong, even though it will be so uncharacteristic of me to give up any time available. However, this may indeed be one of those times.

With all of that, let me give some thoughts to Bill C-26 before us now. One cannot talk about the bill or these measures without giving a great deal of credit to, and I am not sure it has happened but I would hope government members have also acknowledged, the lead role that the NDP member for Trinity—Spadina has played on this file. I know it has been talked about on our side of the House. I certainly hope Hansard reflects that the government was gracious enough to acknowledge that at least half the credit for an improvement to our Criminal Code does go to the member for Trinity—Spadina in whose riding the original incident took place, and that gave rise to Bill C-26 and the amendments therein to the Criminal Code.

It has been mentioned a number of times, but it is pretty hard to give a speech without putting some context to it. As we know, on May 23, 2009, Mr. Chen, who owned the Lucky Moose Food Mart in Toronto, apprehended someone he believed had stolen from his store. When the person returned, Mr. Chen and two employees tied him up and locked him the back of the delivery van. When the police arrived, they charged Mr. Chen with kidnapping, carrying a dangerous weapon--which was a box cutter--assault and forcible confinement. By the way, the box cutter is pretty much a tool of the business. I think everybody understands that.

The crown prosecutors dropped the kidnapping and weapons charges, but they went ahead with the charges of forcible confinement and assault. This got a lot of attention from a lot of Canadians, for good reason. It the sort of circumstance that ordinary people could find themselves in, or someone they know could find themselves in, wheter friend, family, or neighbours. It is not the usual dealing with the intricacies of the law. This is pretty plain and simple. This is everyday living.

It is interesting that this area of the Criminal Code has been a problem before. In fact, there have been public comments made by judges in the matter around the issue of self-defence and defence of property and the rights to citizen's arrest.

It is interesting that in the case of R. v. McIntosh, Chief Justice Lamer stated that sections 34 and 35 were:

—highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.

Most of us can get the gist of that. Lawyers in the room will understand, I am sure, the poetry to that language. However, I thought a more apropos quote for ordinary folks, and very much a colloquial interpretation of what the justice said, comes from Charles Dickens' Oliver Twist, and captures that same sentiment rather nicely. In Oliver Twist it says:

If the law supposes that, “said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass...

From time to time, even though that was written a very long time ago, it is quite appropriate. I think it is appropriate in this case—

[An hon. member]

Not just the law.

[David Christopherson, NDP, Hamilton Centre, ON]

“Not just the law”, the hon. member across the way says. I have to agree with him on that. Because he was not specific, I will not assume to what he was referring. I will just take it as a generalization and keep us in good spirits here.

I do think the point is made in terms of “the law is a ass”, and goes on to say, “a idiot” after that.

The fact remains that for Mr. Chen's point of view, this law is “a ass”. Here was a store owner, and as far as he was concerned, there was complete proof of who was stealing from him. When the person returned, Mr. Chen thought this was his chance to get at the source of the theft and stop the stealing. He knew the person, so he wanted to grab him before he came back to steal even more. Then, as we know, Mr. Chen ends up with all these charges and a potential criminal record. If he had been found guilty of those original charges, he would have been in a pile of trouble, probably doing time in a federal penitentiary, assuming there is one that is open.

Luckily, in this case one could say that our system actually worked. To recap, here is a situation. The grocery store owner went through these incidents, had taken the action he did, believing that he was completely in the right, doing exactly what he had a right to do to protect his property and his business from theft, only to discovery that he was the one who was in a lot of trouble because of, as the justice had talked about, highly technical, excessively detailed provisions deserving of much criticism. The law is “a ass”, and every now and then that is the case.

The only thing that would be worse is if nothing was done about it. If all that happened was that Mr. Chen had it resolved one way or another, it went off the front pages and out of the media, people did not talk about it anymore and we, the chamber of law-making, did nothing. That, to me, would be an even bigger crime.

I think it is worth pointing out from the lay person's point of view that we had an incident. A citizen believed he was in the right, only to find out that due to the technicalities of the law, he was not within his rights. In fact, he was in a lot of trouble. As we know, Mr. Chen and his two accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. The person who stole pled guilty in August of 2009 to stealing from that store and he was given 30 days.

At the front end, where people live, things worked out, but, quite frankly, only because there was such a hue and cry across the land and the fact that the member for Trinity—Spadina took up this cause and said that it was not good enough that we allowed Mr. Chen to find justice in this case, that we needed to fix the law so no future Canadians would find themselves in a similar situation. When we discover a piece of law is “a ass”, we fix it so it is not. That is pretty much what we are doing here. It is actually a relatively good day for the Criminal Code of Canada, given the kind of abuse that it has taken from the government on the other side.

Mr. Chen got his justice. It would seem that the perpetrator of the crime got his justice, and hopefully he has turned his life around. Now we are in the process of finalizing the changes to the Criminal Code so no other Canadian has to go through what Mr. Chen did. It does not mean the law is perfect and it does not mean there will not be people who still find themselves in a bit of a jackpot, but at least the House, the standing committee, experts who were brought in, everybody focused as best they could on how to amend this law.

That was not necessarily easy. First, it is never good policy to be making laws around one issue. One has to be very careful when thinking of doing that. Second, there is a concern that if the law is reshaped too much in one direction, we could encourage, perhaps even make legal, activities that we do not want in our country, meaning that people will seek their own revenge. They will seek their own justice. There will be a vigilante kind of atmosphere around the changes. Therefore, one has to be very careful.

Again, not being a lawyer, I could not say exactly which words or clauses would do that. That is why we brought in experts. Most of the members in this place are not lawyers and that is why we take advantage of slowing down the work at committee, going through legislation clause-by-clause and asking experts, not just somebody who has an opinion but somebody who has an expert opinion, such as law professors, the law society, the whole list.

We brought those folks in and asked them questions such as: Did this do the job? If it did not, what would they recommend and why? We would ask the person sitting beside them, “You have heard something that's a little different, so what do you think about that?” With that give and take and working things through, it seems to us in the official opposition that we have a bill that actually meets that need. It is going to save the Mr. Chens of the future from having to go through what he went through, but we have not gone so far as to give a sense that any kind of vigilante activity, in the purest sense of vigilante, is not on. For all the problems that we have and all the fun and jokes about government and everything else, it really is nice to see.

In the end, we had an incident that was resolved with fairness and justice, and that is good. Now we have a bill that would amend the Criminal Code so hopefully it would not happen again, but we have been very careful about adjusting it so we do not go too far to suggest that vigilantism is okay in the country. All in all, finally, on the Criminal Code file, it was a good day at work.

[The Acting Speaker, Bruce Stanton]

The hon. member for Hamilton Centre will have five minutes remaining in the time allotted the next time the House resumes debate on this question and the usual 10 minutes for questions and comments.

It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

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

[The Acting Speaker, Bruce Stanton]

When we last took up this motion before the House, the hon. member for Hamilton Centre had five minutes remaining in his speech.

The hon. member for Hamilton Centre.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, again, I appreciate this opportunity. As I only have five minutes, I will not try to mount a review of everything I said.

However, a couple of people who were flipping through the channels and heard me using certain language contacted my office wondering what exactly that was all about. Therefore, I will take just a couple of the minutes I have to address that.

I was making reference to the Criminal Code and the areas that Bill C-26 would amend and how there had been a long-standing issue with a number of aspects of that legislation. I had pointed out that one of our chief justices had said in the case of R. v. McIntosh that sections 34 and 35 were:

—highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.

I have no doubt that for learned colleagues who are lawyers, that language is crystal clear, but not so much for the rest of us.

I then presented to the House a quote from Mr. Bumble of Charles Dickens' Oliver Twist, which reads as follows:

If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass...

I hear one of my colleagues say that it really should be “an ass.” That is the natural way to say it, but given that I was quoting, I wanted to use the exact quote as I would not want to wrong Mr. Dickens after all these years. Although that is the direct quote, there is more to it, but I thought that was the most apropos. It is a relatively well-known expression when we find ourselves in a situation that seems perfectly logical, but when we look at the law from a legal point of view it looks completely different. Therefore, we often hear people say that the law is “an ass”. It is a reference to this famous works.

The reason I brought that forward was to try to illustrate the situation that Mr. Chen found himself in when he believed he was defending his property. It is a fundamental right that people have. He believed the actions he took did not cross any legal lines. He thought he was well within his rights to do what he did to assist in apprehending someone who was stealing from his business.

Mr. Chen was initially charged with kidnapping, carrying a dangerous weapon, assault and forceable confinement. However, the kidnapping and weapons charges were dropped, but the serious charges of forceable confinement and assault were proceeded with. He was acquitted of those charges.

Although we recognize that changing laws based on one case and one instance is an area that we need to be very careful of, in this case it illustrates to us that this place and the system can work. Mr. Chen was found innocent and the guilty person was found guilty and served a sentence. Now we are in the process of changing the law so the Mr. Chens of the future will not find themselves in the horrific legal position in which he found himself.

Therefore, all in all it worked out. Hopefully, this will improve our Criminal Code and will bring more justice to Canadians.

I thank all those who worked so hard to get us to the point where the official opposition is comfortable in supporting a bill that amends the Criminal Code and that actually helps people, as opposed to the spin we get from the government on its law and order agenda. Therefore, We are very pleased to support the bill.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, this bill has fairly widespread support, whether from the Liberals, New Democrats or the Conservatives. One of the most important aspects of the bill is that there has to be some sort of educational component to it. Using citizen's arrest as an example, in particular areas, such as some of the commercial streets where there are a lot of restaurants and a greater likelihood of robberies and things of that nature taking place, it is important to make sure that citizens understand what they should do in order to make citizen's arrests. I wonder if the member might comment on that aspect.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, that is a good question. I mentioned in my remarks yesterday that one of the concerns is that in clarifying the legislation, we may inadvertently incent the notion of vigilantism and that is something we do not want to do. I appreciate very much that the member has also focused on the important balancing act within the law and the need to balance the right of citizens to engage in citizen's arrests when the circumstances warrant, but that it does not get out of hand. We know where that could lead us. The notion of an educational component to advise citizens what their rights are under similar circumstances makes a great deal of sense. I hope that will be part of the follow-up to the bill passing this place.

[Vic Toews, Conservative, Minister of Public Safety]

Mr. Speaker, I appreciate the support from the opposition for this particular bill. I did note a comment made by the member and I will make this observation. He indicated this is a bill that will in fact help individuals as opposed to other law and order types of bills. This is typical of the NDP approach: let us make sure we can arrest them, but when they are arrested, simply let them go.

In fact, our government's approach is that when someone is arrested, by a citizen or police officer, there are consequences to breaking the law. That is what our legislation does, even if the member opposite does not support it.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, I appreciate that the minister himself is responding to my comments. If we take further what the hon. member has said, we all know that the Conservative idea of a balanced justice system is to just throw someone in jail, throw away the key and then tell everybody that the streets have been made safe. The fact of the matter is that for all the people who go into jail, the overwhelming majority are coming out again. If we do not pay some attention to what is happening when people are incarcerated, yes, I stand by the statement that under some of the government's laws, things will be worse, the streets will be less safe and people will not have the justice that I am saying does exist within this bill.