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.

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

Citizen's Arrest and Self-defence Act

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, I want to thank my colleagues who have spoken so eloquently on the bill today.

We on this side of the House generally support the thrust of at least one-third of the bill dealing with the so-called Lucky Moose event a couple of years ago in Toronto. My colleague, the member for Trinity—Spadina, introduced legislation to deal with that unfortunate incident some time ago. It was collected up by the members opposite in Bill C-60, which, unfortunately, failed to pass and died on the order paper.

First, I want to thank my colleague for Kitchener—Conestoga because I believe he said that the government would be willing to listen and to make amendments to the bill. I hope he said that because so far we have not seen a whole lot of willingness on the part of members opposite to accept any kind of reasonable amendments to any of the bills that have been before us.

My other comment has to do with the apparent priorities of the members opposite and the government. It appears that we have an inordinate preponderance of bills dealing with guns, crime, punishment and defence of personal property, but we are not spending a whole lot of time dealing with other very serious issues in our country, such as jobs.

The number one complaint I hear from my friend from Prince Edward Island is that his constituents need jobs. The same is true in my riding. People seem to have given up in large measure looking for jobs because there just have not been any for so many years in my riding.

We also have a serious first nations issue that appears is being glossed over by the government. Apparently no action is being taken to help the citizens of Attawapiskat, except to blame them.

We have reported cuts to services for seniors and for persons seeking EI such that they cannot even get answers on the telephone to their issues. They come to my office, as I am sure they do in many other members' offices, saying that they cannot get through and can I help. Our role should not be to replace the civil servants of the country.

I am hoping that, once this bill is disposed of, we can start moving into some real priorities and move away from the crime, punishment and gun agenda that seems to be dominating what we have been talking about.

The bill contains two essential ingredients. One is to give better permission to a citizen's arrest. There already is permission for a citizen's arrest in the Criminal Code, but citizens have to apprehend people in the act. They cannot find them later and arrest them. That is essentially what the bill hopes to accomplish.

It seems to be fairly clear on the surface. We look forward to the day when the committee will have a chance to study the bill in some depth, have representations from witnesses and experts in the field and to make amendments to make it absolutely certain that what we do will not have any unintended consequences.

I have a personal experience with citizen's arrest. It was a dark and stormy night, if members will pardon the use of the term. One night a couple of years ago, it was pouring with rain when I pulled into my driveway and saw a brand new bicycle sitting at the end of my neighbour's driveway. It seemed quite out of place. I picked up my cellphone and called my neighbour. He did not answer right away, but I heard his car door slam. I thought he was putting the bicycle in his car.

When I went over to his car, I discovered that it was not my neighbour, but somebody else who was about to get on the bicycle. I stopped the gentleman and asked him what he was doing. He said that he flat tire, that he had been at a friend's house and that he was trying to find a way to fix it.

He was quite drunk too. By that time, my neighbour, who had seen that I had phoned but had hung up on him, came out to the street. I asked him if it was his bike. He said that it was not his bike and asked what the gentleman was doing there. I looked at my neighbour and told him that he was just fixing a flat. However, the gentleman with the bike had a little box in his hand. The little box was a very unique piece of equipment for resting the tip of a welding torch that came from Princess Auto.

My neighbour looked at it and said, “I bought one of those today. Where did you get that”? The gentleman said a friend of his had given it to him. My friend went back to his car and looked, and it was gone. He accused the man of stealing it, which he denied. We ended up discovering that not only had he stolen that, but he had a couple of other things from my friend's car. At that point he got on his bike and tried to ride away, and I stopped him. I said, “No you don't. You're not going anywhere”.

This was not an act that was very smart because who knows whether this guy had knives, guns, or whatever else, but it was an instinctive reaction. That is part of what we are trying to deal with here. The instinctive reaction was that he should not go.

I picked up my cellphone and dialed 911 while I was holding his bike. He was too drunk to ride it anyway. I got 911 on the phone. The response was, “Police, fire, ambulance”.

I said, “Police, there is a man breaking into a car and I have apprehended him”.

They said, “Are you sure”?

I said, “Yes, he's standing right here. Do you want to talk to him”?

They said, “No, but we'll send somebody right away”.

Well, within two minutes, there were six police cars in front of my driveway. Clearly, the message is that if we tell them we have apprehended somebody they will come quickly.

Then an ambulance arrived because the guy had a cut on his hand. Then the fire truck arrived. I asked the fireman driving the fire truck why they had come. He said the guy might set himself on fire and they would put it out.

My point is, I acted out of instinct, not out of having read the law that says what I can do in a circumstance like that. That is part of what we are trying to deal with here, to make a reasonable instinctive reaction lawful. If my neighbour had not been there with me, if I had just apprehended this man while he was stealing from my neighbour's car, I would have in fact been in violation of the law. That will not be the case any more under this change, I think. It is a little unclear.

In retrospect, I probably should not have done what I did because who knows what he might have had. As it turns out, when the police did arrive, it was still pouring rain. They made him take off his coat and when they emptied it they found all kinds of stuff that he had already stolen. The bicycle was something he had probably already stolen. He had been out of jail only two days. He really wanted to go back there because it was dry and warm, and this was his way of getting back into jail and to someplace safe in the riding. He was actually, in some way, trying to be a better person because they discovered that he had put some air freshener, that he had stolen from the local drugstore, in his underwear.

The point of the story is, as citizens we react instinctively, not because we have read the law. It is that which we have to keep in mind as we craft these things. We do not actually act, necessarily, in our best self-interest when we are reacting to what we see and know is a crime.

The other story that I mentioned a few moments ago happened a year ago in my riding. An ice cream truck was robbed at gunpoint in the middle of a sunny afternoon, with children and parents all around the ice cream truck, and two very obviously bad people with a gun. The only person, at that point, in any immediate serious danger would have been the ice cream truck driver/operator, who was facing the wrong end of, we assume, a loaded gun.

The current laws on self-defence have given people the ability to defend themselves under the current legislation. They have the right, maybe, if they feel an immediate threat, to pull their own gun, if they have one. I do not know of too many ice cream truck drivers who carry around guns, certainly not in Toronto. Maybe they do in some more rural areas of Canada, but not in Toronto.

The issue then is, at what point does this become dangerous to the rest of the people. The concern I have is that the bill would change the rules from someone who is feeling their own personal threat to a threat of force being used against them or another person. We would expand the notion of self-defence to include another person.

Maybe the jurisprudence actually covered that in the past. I cannot find that on a layperson's reading of the law. I am not a lawyer. I do not have the kind of background that some of our colleagues do. We hope that through committee they are going to be able to tell us that this legislation would actually just repeat what used to be there. However, when I read it, I immediately thought of that incident with the ice cream truck.

If this law had been in place, and if everybody had read it, which I am going to say most law-abiding citizens do not go around reading the law, but if they had read it or if it was common knowledge that we could defend the life of someone else, then the concern I have is that we end up with someone across the street who sees the ice cream truck being held at gunpoint, or who thinks it is being held at gunpoint, maybe they do not actually see clearly enough to know what is going on, and they reach into their cupboard to get their unregistered long gun. I am hearing cackling from the other side of the House.

That unregistered long gun then becomes a use of deadly force in a situation involving children, in a situation involving ordinary civilians. We have now created a situation that should not have been created. We have now escalated this into what is perhaps going to become a deadly shooting spree. We do not need that to happen. We do not need vigilantism. We do not need people to feel they have the right to use force in situations that endanger themselves and endanger others as a result of a bill that may have been written with some unintended consequences in it.

I hope that as a result of serious thought and serious study at committee, the bill will in fact have possible flaws like that one corrected, where we create problems where there are none, where there are unintended consequences, where the mere notion that the law permits someone to use force to defend someone they do not even know and someone that maybe does not need defending, and create a sense of vigilantism.

That is not what we want in this country. We are not a country of vigilantes. We are not a country of people who go around raising arms against other people in order to defend life, limb and property. That is not what we do in Canada. That is not how we behave.

I am not trying to justify, in any way, any criminal acts by people with guns at ice cream trucks. It was one of the most disturbing stories I had heard in a long time about the level to which the violence in my riding has gone to. It is not something that I appreciate. The police are well aware and the police, I believe, have now arrested the perpetrators. They are in jail and we can rest a little easier.

However, my concern is I do not want to have a situation where we pass a law that somehow gives people the thought that they can enter into a fray like this and start shooting. That is not what we want. That is not what we expect from our ordinary law-abiding citizens.

As it turns out, no one was harmed in that robbery, except the owner of the truck who lost some money. However, there were no guns fired. There was no violence and no damage to anyone. Yet, this law might give some the thought that they should enter into this with guns blazing. That is not the country we live in. That is not the country we want. That is not the country I think I want to belong to.

So, we have a situation where this bill ought to go before a committee and be studied in a reasoned and unpressured way. The last two bills that the government brought forward were rushed to the point where closure was invoked on several occasions and in the case of Bill C-10, there were 208 clauses dealt with in clause-by-clause analysis in two days. Two days is not an appropriate amount of time to give serious sober thought to a bill that has enormous consequences.

We understand that the committee was rushed to the point where witnesses were crammed together, were not given sufficient time to answer questions, and questions were not able to be put to these witnesses in a thoughtful and reasoned way because there was so much rush put on this. I hope, based on the statements made by my friend from Kitchener—Conestoga, that the government is actually going to sit down and listen, pay attention, and accept reasoned amendments to this bill put forward by the opposition.

As I understand it, on both Bill C-10 and Bill C-19, many amendments were put forward, but—

[The Acting Speaker, Conservative, Bruce Stanton]

Order, please. The hon. member for York South—Weston will have three minutes remaining for his speech, and five minutes for questions and comments when the House returns to debate this motion.

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

The House resumed from December 1 consideration of the motion that Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.

[The Speaker, Conservative, Andrew Scheer]

The hon. member for York South—Weston has three minutes left for his speech.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, part of this bill is a reprise of a bill that was put forward originally by the member for Trinity—Spadina in Toronto, called the Lucky Moose bill, after a store owner in her riding who, after a robbery, arrested a man by himself and then was himself charged with forceable confinement after apprehending the suspect.

The second part of the bill has to do with a redefinition in the Criminal Code of what constitutes self-defence in law, in other words, what issues can and what circumstances can give rise to the successful application of the self-defence principle and, therefore, allow a person to remain immune from prosecution because of his or her actions.

With regard to the first part, I would remind hon. members that in my previous speech I talked about a personal event in which I arrested a suspect who had been robbing cars along the street and who was clearly inebriated. I, at some personal risk, took the steps of apprehending him and calling the police. The police came in great numbers because they knew I had caught somebody, an ambulance came because he had cut himself, and the firemen came, too. When I asked the firemen why they were there, they said, “If he catches on fire, we'll put him out”.

However, my point is that I acted with some immediate feeling of necessity without thinking what the law might say. In fact, I was probably outside the law because it was not my property.

The second occasion that I gave an example of was of an ice cream truck in my riding that had been held up at gun point. This is the more concerning of the two portions of the bill: the issue of whether the definition of self-defence now has expanded to include the ability to defend someone else, the ability to enter into a robbery in progress or any other threatening situation as a bystander and attempt to defend the life or the property of someone else using this self-defence law.

The law, as it currently stands, would seem to limit the ability of people to defend themselves. That is the limit upon which that law is based.

However, it appears that the law would now be expanded to include the ability to defend a third party. We think that might lead to vigilantism and therefore would require more discussion at committee in a fulsome way with many witnesses.

[Denis Blanchette, NDP, Louis-Hébert, QC]

Madam Speaker, I would like to take this opportunity to wish you and all the members in the House a merry Christmas and happy new year.

The member mentioned that this bill seems to create a grey area with respect to the method of intervention. Could the member give more details on his concerns about this grey area in specific situations?

[Mike Sullivan, NDP, York South—Weston, ON]

Madam Speaker, that is precisely our fear. The apparent expansion of the definition of self-defence, because it is somewhat unclear in the legislation, to include a person not being in harm's way but defending someone else who is in harm's way could, we fear, lead to unintended consequences. The example I gave was of the ice cream truck being held up at gunpoint, which ended peacefully. No one was injured.

However, if this law had been in place, one could imagine that a citizen from a dwelling nearby may decide to take action using self-defence as the reason for taking action and cause much greater harm than was caused at the time.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, it is somewhat refreshing that we are debating Bill C-26. One could argue the merits of the bill because we see an active interest from citizens to be able to protect their property. Yet some concerns have been expressed with regard to the whole vigilante concept. We do not want to put people in situations where their involvement creates more danger. We hope the government will pay attention to what is happening at the committee stage.

Does the NDP have some amendments it would like to put forward on this bill at this time?

[Mike Sullivan, NDP, York South—Weston, ON]

Madam Speaker, the NDP is certainly considering whether this bill is in fact what it says it is: merely a clarification of the right to self-defence. We will not know until there has been fulsome discussion in committee with many witnesses and representations from police forces, prosecutors and defence attorneys about whether this bill would actually solve the problems they see with the self-defence jurisprudence or whether it would create new problems.

We will not know whether New Democrats have particular amendments until after the bill has gone through committee. However, we hope that in this particular case the government will listen to potential amendments. We hope the government will work with us to create a clearer bill that has a better chance of actually being useful to Canadians.

[Pat Martin, NDP, Winnipeg Centre, MB]

Madam Speaker, I am still concerned with elements of this bill. I appreciate the efforts by my colleague from York South—Weston to explain the inconsistencies inherent in the Criminal Code associated with the right to self-defence. I am interested in his personal experience in trying to detain someone in the act of a crime, or the rights of an individual.

I am particularly concerned with the legal interpretation. When there is ambiguity, one has to look at the intent of Parliament when that clause was crafted. Chief Justice Lamer pointed out that Parliament must have intended section 34 to be limited to unprovoked assaults because it went on to enact section 35 to deal specifically with situations where the accused was the initial aggressor.

Can my colleague bring any clarity to the intent then and the intent of Parliament now as expressed in Bill C-26?

[Mike Sullivan, NDP, York South—Weston, ON]

Madam Speaker, yes, indeed, we have hit upon the nub of the concern in law. This particular self-defence clause in the Criminal Code has been on the books for over 100 years. It is the subject of much jurisprudence, which would appear to have twisted the original intent, giving perpetrators of crime the ability to use self-defence as a way of escaping punishment for their actions. That twisting of the law by jurisprudence is part of what the present bill would appear to try to solve.

However, New Democrats are not certain if the clarification that this bill provides goes too far. If the clarification creates a system in which vigilantism becomes possible, that is something we are opposed to. We do not accept that citizens become vigilantes who attempt to enforce the law and defend other citizens from harm in a manner which will cause more harm. That is one of our concerns with this bill.

[Marc-André Morin, NDP, Laurentides—Labelle, QC]

Madam Speaker, I would like to know whether my colleague agrees with me. The original idea of protecting people who defend their property is a good one, but what I am questioning is the context in which this bill was introduced. It was introduced as the last in a series of tough on crime bills, as they like to say on the other side. I see a danger for this to be interpreted differently by the people who support this type of policy. I fear that people will start acting like police officers and intervene in all kinds of situations. I think we should be cautious and think about this bill carefully to prevent people from thinking they are on a mission from God and intervening in all kinds of situations.

[Mike Sullivan, NDP, York South—Weston, ON]

Madam Speaker, I appreciate my colleague's comment. That is partly what concerns us if the bill and the possibility of amendments are not studied thoroughly at committee. There are aspects of this law that, as the hon. member suggests, might allow people to believe they are on a mission from God and protected by legislation allowing self-defence as a defence in situations in which they are acting as vigilantes.

We are concerned that the bill is not clear about whether or not that is the intent. It appears to expand the definition of self-defence beyond defending oneself, creating an understanding that one can defend a third party. If that is the case, how far does that go? Does that then become the rule of law?

We are also concerned that the bill will not be fully discussed at committee, as has been the case with many other bills on the crime agenda of the government. We are concerned that if this is rammed through without the possibility of amendments, where those amendments would make sense and actually clarify the law, then of course we would not be doing Canadians a service.

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

Madam Speaker, I am pleased to rise to speak to this bill on citizen's arrest.

The bill is simply an extension of our government's work in trying to bring balance back into the criminal justice system in our country. For too many years, the needs of victims have been ignored. Because of that, many of our constituents have lost faith in the criminal justice system.

I want to outline a couple of areas where I have been personally influenced by people in my riding who have brought these matters to my attention. I will never forget receiving a call about a week or two after I was first elected from the family member of a young man who had just been murdered. I met the family member at Tim Hortons. I had never met this gentleman before. He pleaded with me to do what I could to bring some balance back into the system. There was no revenge in his voice. It was more a cry for help in the sense of: please help young people find the resources they need so they will not get involved in a life of crime. A young man had been murdered by another youth, who was not allowed to be named. It was simply a call for action to bring some early intervention possibilities into the system.

Following that, because of my interest in that particular case, I hosted a round table in my office with a number of people from the legal profession, community groups and private citizens. The one area that became very clear again was the call for early intervention. I heard from a mother whose son had been in trouble with the law on a number of occasions. She told me that because of the Youth Criminal Justice Act there was nothing the judge could do because her son had not done something bad enough yet. There was a sense of hopelessness in her voice. She actually wanted our criminal justice system to take action that would direct her son to preventive measures and possibly early intervention.

As well, we have all heard too many stories of young people who have been sexually abused. The damage that is done to the lives of people who have experienced sexual abuse early in life or even as teenagers is just horrendous. Lives are virtually destroyed by the actions of sexual offenders. Our government is trying to give a clear message that these kinds of offences will not be tolerated.

I do not think any of us in this room who are parents or grandparents can argue with the fact that we need to be decisive in our actions as they relate to gangs and drugs. This is especially true when those drugs are being marketed near our schools where children and youth are most vulnerable. Lives are being destroyed by youth getting hooked on drugs early in life when they virtually had no choice.

With respect to arson, we have taken action to make it very unlikely that a person who has burned down someone's house would now be allowed to serve his or her sentence in his or her own house.

I have heard from victims of violent crimes whose families have been murdered. When the parole hearings come up they are forced to be subjected over and over again to the same kind of pain and reopening of wounds because of what used to be called the faint hope clause.

In all of these areas, we are trying to bring back a sense of balance into our criminal justice system. The current bill before us is no different. Far too many people may have thought about intervening when someone was being attacked or their property was being stolen or vandalized, yet felt an innate fear that if they took any steps to prevent that crime from happening they could find themselves on the wrong side of the law. Therefore, we need to address that fear with some sense of balance. Simply by having this conversation we can attempt to alleviate that fear.

I repeat that there is always a sense of balance. In terms of balance, I would point out that our government has taken decisive steps in the area of prevention.

It has made large investments in the area of youth gang prevention and an anti-drug strategy. In my area there is a very active restorative justice program. The program does an excellent job of bringing the victim and the offender together in trying to bring resolution, restoration and reconciliation between the parties. We all know that particular initiative cannot always work. There still needs to be criminal justice measures in place to take care of the situations that do not fit under that restorative justice system.

We have also invested heavily in the circles program. People who have served their sentence are now allowed to be back in society. They work with a group that keeps them accountable as they re-enter society. It is important that these individuals are not released without any support mechanisms to help them reintegrate back into society.

As it relates to this bill, it is important that we work hard to maintain public order. Public order is the responsibility of Canada's trained and professional law enforcement agencies. We all agree they are the ones we have to rely on, but there should always be that option for the citizen if there are no public order officials nearby, whether they are police officers or security guards. Citizens should always be able to defend their own lives or their own property.

The first step we should be taking in any of those situations, if it is at all possible, is to contact the police if someone's life or personal safety is being threatened. The government recognizes that it is not always feasible in those circumstances for a peace officer to make the arrest when a crime occurs, especially if it is in relation to property. This proposed legislation expands, simplifies and clarifies the law governing situations where individuals need to respond to immediate threats to their property or to their person.

The proposed amendments in the bill would authorize a private citizen to make an arrest within a reasonable period of time, and I would underline within a reasonable period of time, after he or she finds someone committing a criminal offence that occurs on or in relation to property. This power would only exist if there are reasonable grounds to believe it is not feasible for a peace officer to make the arrest. We cannot simply allow citizens to take matters into their own hands. Obviously, the first course of action is still to call the police and try to get help to the scene as quickly as possible.

In all cases, it is important to remind citizens that they need to be careful in the decision they are making to get involved. There is a high degree of danger when making these kinds of decisions. Making a citizen's arrest is a potentially dangerous undertaking. Before attempting a citizen's arrest, Canadians should consider other factors such as: their own safety and the safety of other people who may be in the area; the advisability of reporting information to the police rather than acting on their own; the level of certainty they have that the person they are about to arrest is actually the person they found committing the crime; and finally, the requirement to turn over the suspect to the police without delay once an arrest is made. I think that goes without saying. We are not going to suggest that people can make a citizen's arrest and then not turn the person over to police officers as soon as practically possible.

The proposed amendments to these defences will simplify provisions of the Criminal Code, making it easier for police and prosecutors to determine whether the actions taken by individuals to protect themselves, others, or their property were reasonable and therefore could provide a defence to a criminal offence.

The amendments also replace the current complex self-defence provisions with one new and clear provision permitting a person's reasonable acts committed for the purpose of defending against threats or force against themselves or another person to be a defence to a criminal charge. It is important that they have that option to defend against that potential criminal charge. We saw that in the situation with Mr. Chen where, yes, fortunately after court proceedings he was acquitted, but certainly for a number of days and weeks he had hanging over his head the possibility that he would be charged with a criminal offence, even though he was simply standing up and protecting his own property.

Also, the defence of property provisions would be greatly simplified if a person in “peaceable possession” of a property commits a reasonable act. If an individual steals something and is sitting at the corner with those stolen goods, the individual would not be allowed to defend those stolen goods against the person who is coming to retrieve them. If a person in peaceable possession of a property commits a reasonable act in order to protect that property from being taken, damaged or trespassed upon, that would be a defence to a criminal charge.

A number of different prospects in the bill would bring balance back to the system so that those who are facing the possibility of either injury to themselves or their loved ones, or are facing the possibility of having their property stolen or damaged, would be able to take action and as quickly as possible call the appropriate authorities to take over. It is important that we bring this sense of balance back to this area that has been left for too long.