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

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Madam Speaker, I am thankful for the opportunity to speak to Bill C-26. It is important that we revisit why we are debating this bill. It is, of course, because this government saw things happening in Canada, in particular a couple of incidents where the laws concerning a citizen's power of arrest, self-defence and defence of property, that needed clarification. That is exactly what Bill C-26 would do.

It does not introduce new concepts with regard to the Criminal Code. It clarifies what powers citizens have and their responsibilities. We always talk about what rights we have but we do not talk about responsibilities. Living in a civil society places responsibilities on every citizen and part of those responsibilities is to ensure that the world in which we live is kept safe so we can all go about our day-to-day lives with a reasonable amount of peace and tranquility.

About a month ago, the Minister of Justice introduced Bill C-26. The purpose was to expand and simplify the laws with respect to self-defence, the defence of property and to expand the circumstances in which law-abiding Canadian citizens can make arrests. The reason Bill C-26 was introduced is that our government is committed to putting real criminals behind bars. Canadians who have been victims of crime should not be re-victimized.

My mind goes back to instances where people acted in defence of their property and, because the law was not clear enough, police felt it necessary to arrest those people who we, in retrospect, and the courts found there were sufficient reasons that these people should not be convicted of the crimes for which they were arrested. The government and I believe everyone in the House wants to ensure the victims of crime do not themselves end up being re-victimized by finding themselves before the courts.

The purpose, as I mentioned before, would be to build on existing legislation that would authorize an owner or a person in lawful possession of property or a person authorized by the owner to arrest a person within a reasonable amount of time after having found an individual committing a criminal offence either on the owner's property, for example, if the offence occurs in the owner's yard or within his or her place of business, or if property is stolen from a public parking lot or some place like that.

In referring back to my years in policing, I never came across a circumstance where there was a grey area. It was relatively well defined. However, I had a chance to read some journals that we researched where people went above and beyond that. That is why this government wanted to ensure it was inserted in the bill that people need to be found committing offences on someone's property or property for which a person has responsibility.

We know that maintaining public order is a responsibility. We must always remember this. Every citizen and all legislators in this place must remember that there are trained law enforcement professionals who have a duty to maintain public order. However, we also know there is not a policemen on every corner of our streets, every 10 yards, 10 miles or 10 kilometres down the road. Again, I go back to the fact that all citizens have a duty and a right to protect their property and the persons for whom they are responsible.

That is why the government introduced these clarifications to the citizen' power of arrest. The reason I am repeating this is that some people believe that this would give additional powers and it is not. This power only exists if there are reasonable grounds to believe that it is not feasible for a police officer to make the arrest. What does that mean? It means that if the citizen does not make that arrest, the perpetrator of this crime will probably never be found. In other words, the citizen did not get a licence number of the car, a description of the person or the offence was happening so fast that the person did not have a chance to get a sufficient description or even a name or possible address for that person. Therefore, it would be necessary to stop the crime or additional crimes from being further committed and to apprehend the person so that as soon as practicable police officers can be summoned to the scene to continue the arrest and begin legal procedures,such as charging the person for the offence that he or she is responsible for.

It is important to say that in all cases a citizen's arrest is a very serious and potentially dangerous undertaking. I heard mention in other presentations before us today the fact that a person who is of limited physical ability should not, nor would any member of this place or any police officer recommend that a person with limited physical ability try to institute an arrest. Is there any property that we own worth our life or worth having some serious injuries or injury? The answer to that is obviously that it is not.

Therefore, before people institute their right to protect their property, et cetera, they should have regard for their safety and the safety of those around them. If someone has a firearm and is committing an offence and there are many people in the area, it would be foolish to try to institute that arrest. The responsibility is on the citizen, who is not trained like law enforcement officers, to assess the situation before he or she actually institute an arrest. The government is recommending that no one should take any chances but that, if people feel there is an ability to apprehend that person, they may do so because that is what this law says, this clarification of existing legislation.

It was mentioned here before about people's right to defend their property and to defend their person. Once again, it is important to reiterate that these proposed amendments to the defences would simplify the provisions and make it easier for police and prosecutors. That is very important because we want to make the enforcement and the adjudication of our laws simpler so that prosecutors, police officers and the courts, as well as citizens, understand and are better able to determine their rights and responsibilities with regard to their property.

Of course, the words of caution we have used here time and time again is “where it is reasonable” and therefore could provide a defence to a criminal offence. Police officers have powers of arrest but those powers have limitations and they are trained to know what those limitations are. Average people need to know there are limitations to their powers and that is why we were careful to say found committing a criminal offence in relation to their property and the property for which they have a responsibility.

The defence of property provisions have been greatly simplified because of the instances that stimulated the government and actually brought the situation to light. The stories were in all our newspapers. We were bombarded with them every day. We saw the need to clarify this law because a person who found someone committing an offence against his property all of a sudden found himself before the court charged with an offence. We, as a government, must respond to the needs of our community and of Canada. We saw that it was necessary to clarify and simplify the law concerning a citizen's power to arrest in relation to his or her property and in relation to--

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Madam Speaker, I want to thank the hon. NDP member for his speech. He talked about Bill C-10 and the need to have prevention programs and care for people with mental illness or problems with drugs, instead of putting them in prison.

In his opinion, if we had more prevention and rehabilitation programs, would the problem that Bill C-26 is trying to correct be less significant? Would there be fewer crimes against property and persons?

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Madam Speaker, the bill before us, Bill C-26, epitomizes the old adage “the road to hell is paved with good intentions”.

Although the intention of the bill is valid, questions remain about its application and, unfortunately, its results. We are talking about allowing people to arrest wrongdoers who commit crimes against property, which in and of itself is commendable. In the absence of police officers, it is almost a civic duty to uphold the spirit of the law and to ensure that people who commit crime are held accountable and brought to justice. We accept allowing citizens to uphold justice. However, things start to get a little complicated when we allow a person to use physical force or commit an act of violence against another person to make an arrest. Everything else flows from that. What is reasonable and what is not?

With regard to self-defence, there is a great deal of expertise contained in the Criminal Code itself and in the relevant case law to ensure that a person who was assaulted and took action truly acted in self-defence and that his actions were measured, proportionate and acceptable from a legal perspective. There is a reason the legal system takes into consideration criteria such as the aggressor's age, health and size, as well as whether the aggressor was armed and whether he clearly indicated his intentions to physically assault the victim or simply insulted the victim. All of these factors are taken into consideration in determining whether the victim had a legitimate right to self-defence.

Then, a second question is asked: was the response proportionate? If a five year old threatens someone with a stick and the person responds by firing a shotgun, we cannot expect the law to turn a blind eye. It is crystal clear that the person will have serious problems with the law.

I think that everyone, no matter what their political affiliation, can agree that this would be a serious breach of the law. That case does not involve an act of justice but, rather, an act of disproportionate violence. That is the problem we are facing with regard to people who commit property crimes. No life is in danger in such cases. I would even go so far as to say that, by making an arrest, the person is putting his health at risk. The person is even risking his life in the unfortunate situation where the aggressor is better armed.

There is a reason why my distinguished government colleagues have insisted on the fact that an honest citizen's initial reaction should be to call the police and not to risk his life to protect his property. However, sometimes it can be done, which raises the question: what is considered reasonable violence leading to an arrest?

Must the members be reminded that people can commit crimes without being criminals? There is the defence of necessity. We have all heard of someone who got stuck in a snowstorm and committed a break and enter to take shelter from the storm and avoid freezing to death. We have all heard of someone who stole a car to drive a person who was seriously ill to the hospital. These types of situations involve the defence of necessity, which is accepted in our legal system.

We can understand that, in Canada, many people with mental health issues, who are no longer receiving the proper care, find themselves living in the streets and committing crimes. Unfortunately, this situation is becoming increasingly common. These people are not responsible for their actions. They do not belong in prison or on the streets. They need health care.

Unfortunately, these people commit crimes. Do they deserve to suffer a serious injury when they are arrested or questioned about the situation? No one wants that.

Everyone knows that when police officers make an arrest, they do not have the right to use unreasonable force. Police officers are trained to use a minimum of force. They are not the judge or the executioner. Their job is to make arrests and to tell people that they must appear before a judge to explain themselves. That is quite reasonable.

We do not find reasonableness or proportionality in this bill. Many stakeholders came to tell the Standing Committee on Justice and Human Rights that there was a problem in that regard and that the bill really should be amended. In its current form, this bill has serious problems and if enacted would not stand up in court.

The intention is to protect people who make arrests. Therefore, it would be unreasonable to find ourselves passing a bill that, when first applied, would be considered ultra vires because it violated the Charter of Rights and Freedoms. There can be no just and reasonable sentence when there is violence. We would find ourselves in exactly the same situation, as if the law did not exist. This requires legislation. It is important for people who make an arrest to be protected to some extent by the law, and they should be permitted to help police.

Sometimes, police officers patrol alone in their cruisers and have to arrest two or three suspects. They may call for backup, but it may not get there quickly, especially in rural areas. In such cases, it would be helpful for honest citizens to be good Samaritans and help these police officers. Therefore, it is reasonable that they be protected by legislation.

What is unreasonable is that we are basically permitting any type of violence, especially in the defence of property. Earlier members said that we must not replicate what happens in the United States. The member for Prince Albert expressed a very sensible reservation in this regard, a reservation that is quite warranted.

I want to remind members of a very unfortunate case of defence of property in Arizona, with no criteria for reason or proportionality. A young man who was going to meet friends got the wrong address. He showed up at the wrong place and the owner of the property shot him in the back when the young man was walking away. The American justice system found this man not guilty because it determined that the man was defending his property and that the young man had not been invited onto that property. We do not want to see similar incidents happening in Canada.

In addition, I do not want to see us applying Judge Lynch's principle. Lynch was an administrative law judge in Virginia during the American Revolution in 1776. He established the principle that if a number of individuals decide to enforce justice, this act becomes justice. The term “lynching” was named after this sorry individual. These kinds of things are now prohibited. Now, individuals generally cannot spontaneously declare that they will enforce justice. Any members of the public who want to enforce justice must do so in accordance with the law and not in accordance with a tradition or tolerance by the legal system. Therein lies the problem, since the text of this bill seems to indicate some tolerance for violence by the legal system, when this violence is disproportionate.

These things are important. We will soon have a law about the national flag. That bill must not enable people to use this legal right to violence in an inappropriate way.

[Randy Hoback, Conservative, Prince Albert, SK]

Madam Speaker, I am very pleased today to rise to speak to Bill C-26 .

However, before I do that, I want to wish my constituents a happy and merry Christmas and a safe holiday season. I also want to relay those best wishes to my colleagues here in the House. It is great to work with them. It has been a privilege and an honour to discuss and debate things like this bill.

I think Canadians are very happy. In fact, the latest polls show that they think this government is going in the right direction and they applaud us for the work we are doing.

I trust we will all have a good time back in our ridings and will be able to talk to our constituents about pieces of legislation such as this one, Bill C-26.

This piece of legislation is one of balance. I think balance has always been the key around this piece of legislation. It is trying to get the balance right.

If we get the balance right in this legislation, I think a lot of radio talk show hosts would be out of work or would not have the old safety net of, “What do I talk about today? Let's talk about victims of crime. Let's talk about people who make citizen's arrests and then become the person who is convicted”.

That is what constituents are asking. If I were to go back to the riding of Prince Albert, which I represent, and talk to constituents, that is how they would instruct me when it comes to looking at victims of crime or balancing--or, in this case, rebalancing--the right of citizens to defend themselves or their property.

It is interesting that when we talk about public security and the ability to defend ourselves, those terms have different connotations depending upon where we are in the world. If we go down to the States and talk about the right to protect ourselves and our property, we envision somebody stepping inside the door and meeting a nasty end. That is not what we are doing here in Canada. That is not even close.

If we go to some other parts of the world, such as Central or South America, where public security is always an issue, they would like to see what we are doing here today. They would think this would be a reasonable and balanced approach and they would like to see their police forces up to the level of our forces here Canada.

I also want to remind members that we are not proposing to remove the police force. We understand the role of the police force. If someone is in an unfortunate situation and is going to be a potential victim of crime or if someone sees a crime taking place, we would recommend that the first response should be to dial 9-1-1. I do not think anybody is debating that. I think everybody is saying that we should involve the police as quickly as possible.

However, there are always circumstances in which that is just not possible. There are always situations in which people just cannot get a speedy response. I am not blaming the police; it is just the reality of the vast geography of our country.

In my hometown of Canwood, Saskatchewan, if the police officer on duty that night is at the far end of his area and something is going on at the farm or we see somebody stealing gas, we can call 9-1-1. However, the reality is that it is going to take him probably 15, 20 or 25 minutes to get to my farm just because of geography. It does not matter how fast he drives; that is what it is going to take.

When we talk to farmers or people in rural Canada, they are not talking about revenge. They are not talking forming a posse and tracking down people who commit crimes. The John Wayne scenario of the westerns of the 1800s is not what we are talking about here either. Nobody would accept that. What we are talking about is just balance, simple balance.

When that farmer comes across a guy stealing a quad out of his shop and is able to apprehend him and hold him, he should not be charged with kidnapping. He should not be charged with assault. He should not be charged at all, especially when we look at the situation and the facts around the situation. That is all we are doing: trying to clarify for the courts and the police when they should lay a charge and when they should not. We are trying to balance that out.

I know the opposition members talk about amendments that they want to bring forward. I would encourage them to bring them forward in committee. That is how we end up with good pieces of legislation. I trust these amendments are ones that their constituents want to see in the bill. When those amendments come forward in committee, the committee will look at them. I trust the committee will study all those amendments and make suggestions back to this House. Then we will stand to vote, based upon what our constituents want. That is how our government works.

Therefore, when it comes to amendments, I would encourage members to take their amendments forward at committee. I would encourage members to bring them forward, make their passionate arguments, state their case and then let the committee members and members of Parliament decide their fate at that point in time.

The different types of crime that go on in ridings represent a very sad state. Nobody ever wants to be a victim of crime. Nobody ever asks for that. If a farmer in rural Saskatchewan has somebody drive into the yard at two o'clock in the morning, go up to his gas tank and proceed to break the valve and steal gas, the farmer did not ask for that. That farmer should not be penalized when he goes out and apprehends that person. That farmer should not be penalized when he confines that person.

That is what happening in the courts today. As the member for Winnipeg Centre said earlier, people who go about their day-to-day lives are put in a situation they did not create, and then all of a sudden, they end up in the courts. They have to defend themselves in court. They did not bring this on themselves; they did not ask for that person to come to their farm and steal gas. Why should these people have to go through a six-month legal battle?

That is all we are looking for in this piece of legislation. That is what this legislation does. The word is balance.

The legislation proposes a clarifications of the law. We are basically providing the police with some clarification about when they should or should not lay a charge. We are basically clarifying for the courts when it would be appropriate to pursue a charge or not.

If a person is using excessive force to restrain somebody or is being vindictive, or is planning to be, we expect that person to be prosecuted to the fullest extent of the law. This legislation will not be a licence to blow somebody away because he showed up on your property. That is not what we are doing here. What we are doing is finding a balance, and people will not have a licence or a blank cheque to do whatever they want if somebody enters their land. They will not have that. What is acceptable and what is not acceptable is very clear in the legislation. Again, balance is the word.

That is the theme in this piece of legislation. The word “balance” should be repeated over and over again. If we get the balance right on this legislation, I think Canadians will be very happy with the government and with Parliament because we will have tackled an issue that has annoyed Canadians for years.

That is one thing my constituents will say when I go back to the riding during the break. They will say, “At least the Conservative government did stuff. You went to Ottawa, you made promises and you kept your promises. You did what we wanted. The Conservative government delivered on what Canadian constituents wanted”. They will respect and thank us for that.

As we go back to our ridings on the break and as this piece of legislation moves forward, I would encourage all members to talk about this piece of legislation with their constituents. What we are trying to do should be properly explained.

Members who want to can distort it or rile people up if they want to. Anybody can do that. However, we should sit down and explain that we do not want another situation like the one we saw with Mr. Chen. How do we properly balance that so that it does not happen again? How do we make sure that a farmer who is wakened in the middle of the night by somebody stealing his gas is not in front of the courts for eight months just because he stopped that person from stealing it?

That is the balance our constituents want; that is the balance Canadians need, and that is what we are doing in this piece of legislation. If constituents have suggestions to make this bill better, then members should bring those suggestions to committee as amendments. They should trust the committee to come forward with what they think is the best work to develop this piece of legislation.

I do know one thing: what we have today is not working. When we have people who are the victims of crime being convicted or being pursued harder than the guy who actually commits the crime, then we know something is out of balance. We know something is not correct.

I will close with that comment, and just remind my colleagues as they go back to their ridings that they should talk to their constituents about balance and about appropriate levels of security for public safety. It will be interesting to see the response that members get.

If we get this right, as I said when I started, a lot of talk show radio hosts will suddenly lose a topic to talk about over the next two or three years.

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.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, I am somewhat encouraged by the member's comments. He gave the impression that the government would be open to having amendments.

I want to send a message directly to the Prime Minister. People are concerned about crime and safety in their communities. They expect that legislation will have a direct impact on preventing crimes. There is a great sense of disappointment in terms of Bill C-10 as an example, which has the bigger jails mentality which is being rejected in the American states that were big advocates for it at one point in time. We brought in amendments to that bill and those amendments were crushed at committee. With the legislation before us, we already get the sense that some changes will be needed.

Is the government prepared to entertain genuine amendments brought forward by the Liberal Party or the New Democratic Party that could strengthen Bill C-26? Is the government open to receiving and approving amendments on merit?

[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?

[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?

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.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, discussions have taken place between the parties, and I believe that you will find consent for the following motion:

That, notwithstanding any Standing Orders or usual practices of the House, at the conclusion of Question Period today, the House shall stand adjourned until Monday, January 30, 2012, provided that, at the adjournment, the second reading motion for Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be deemed adopted on division and; for the purposes of Standing Order 28, the House shall be deemed to have sat on Friday, December 16, 2011.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, one of the most important things we are looking forward to in the next week or so is the passage of the major priority pieces of legislation we have been advancing this fall, for which we have been seeking to set timetables to ensure they could pass to be in effect for next year. They are our budget implementation act to ensure that important tax measures are in place like a tax credit for job creation and accelerated capital cost allowance to create jobs; our bill to ensure fair representation, to have that in place in time for the redistribution that is going to unfold next year; and in addition to that another bill which again is a time priority, the crime bill, and I do not think we are going to be able to make that objective.

However, we are looking to get those in place and, having done that, we look forward to, in the next 10 days or so, the very first of those bills we have been working on all fall to actually becoming law. That will be a very exciting time for us when we finally achieve Royal Assent, having spent that time.

I should advise members that next week will be free trade and jobs week. We will begin Monday morning with second reading of Bill C-24, the Canada–Panama free trade act. This free trade agreement was signed on May 14, 2010. It is now time for Parliament to put it into effect, so that Canadians can benefit from the jobs and economic growth it will deliver.

It being free trade and jobs week, we will begin second reading debate on Wednesday of another bill to implement a job-creating free trade agreement. In this case, we will discuss Bill C-23, the Canada-Jordan Free Trade Act, which will implement Canada's first free trade agreement with an Arab country.

This will be the last week before the House adjourns for the holidays. And it is with the Christmas spirit in mind that we hope to have the co-operation of all members in making great progress on a number of important bills with a focus on job creation and economic growth.

On Monday, if we are able to pass Bill C-24, the Canada–Panama free trade bill, we would call Bill C-11, the copyright modernization act. Bill C-11 is another bill that would lead to more jobs in Canada, and our world-leading digital and cultural sectors. Earlier this week, the Liberal motion to block further debate on this important bill was defeated in this House. That means we can get back to second reading debate and I would hope that after being debated for over one sitting week, the opposition will finally allow this bill to get to committee.

If we continue to make the progress I am hoping for, we will then call Bill C-14, the Improving Trade Within Canada Act, for further second reading debate. This is a fairly straightforward bill that will benefit the economy by implementing amendments to the Agreement on Internal Trade agreed by the provinces. I expect all parties will allow it to move swiftly to committee.

In addition to passing these job creating bills, on Monday, ideally, we would then call C-26, the citizen's arrest and self-defence act for further debate.

For the balance of free trade and jobs week, we will continue to debate any of those bills which have not yet been referred to committee. We would also look to begin second reading debate on Bill C-28, the financial literacy leader act. This bill will create a new position in the government dedicated to encouraging financial literacy for Canadians.

As for the balance of this week, which is democratic reform week, Bill C-20, the fair representation act, will be debated tomorrow at report stage, further to the motion adopted yesterday. Third reading in the House on this bill will be Tuesday. This will be followed by a vote Tuesday night, a vote that will give all members in this place an opportunity to vote on the important democratic principle of representation by population.

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

[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.

[Glenn Thibeault, NDP, Sudbury, ON]

Mr. Speaker, I am pleased to rise in the House today to engage and speak to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), commonly referred to as the Lucky Moose bill.

Let me begin my statements by highlighting the incidents that have led to the introduction of legislation of this kind by both the government and by the member for Trinity—Spadina.

On May 23, 2009, David Chen, owner of the Lucky Moose Food Mart in Toronto apprehended a man, Anthony Bennett, who had stolen from his store. After Bennett was initially caught on security footage stealing from the store, he returned an hour later. At that time, Chen, who was 36 and had two employees, tied up the man and locked him in the back of a delivery van.

When police arrived, they charged Chen with kidnapping, carrying a dangerous weapon--a box cutter, which most grocery store workers would normally have on their person--assault and forcible confinement. Crown prosecutors later dropped the kidnapping and weapons charges but proceeded with the charges of forcible confinement and assault.

Although Anthony Bennett, the suspect in question, ultimately pleaded guilty in August 2009 to stealing from the store and was sentenced to 30 days in jail, the crown moved ahead with the charges against Mr. Chen and his employees, since the Criminal Code, as it is currently written, stipulates that a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act.

Obviously in this case the circumstances of the suspect's returning to the scene shortly after the offence was committed exposed a fatal flaw in the legislation, and this flaw has led us to this point.

It is also important to note that the suspect in question had stolen repeatedly from the same store, so this was certainly not a case of mistaken identity. We can be assured of that.

Eventually, after a court ordeal lasting a year and a half, Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. Obviously the process of a lengthy trial was distressing for Mr. Chen and his family, while also tallying significant administrative costs borne by taxpayers and tying up the valuable time of police, prosecutors and the courts.

In response to the ongoing concerns New Democrats heard from individuals across the country regarding a citizen's ability to make a lawful citizen's arrest, in September 2010 the New Democratic MP for Trinity—Spadina introduced a private member's bill to amend the Criminal Code in order to protect individuals like David Chen from facing criminal charges.

New Democrats have consistently welcomed the government's decision to incorporate the member for Trinity—Spadina's proposals into its legislation, first tabled in February 2011 during the 40th Parliament and now again in the 41st Parliament.

Let me now move to the specifics of the bill in order to parse out what is actually being proposed by the government at this juncture. Let me begin with the sections dealing specifically with citizen's arrest.

Currently, under subsection 494(1) of the Criminal Code, any individual can make an arrest without a warrant of a person he or she finds committing an indictable offence or who he or she believes on reasonable grounds has committed a criminal offence and is escaping from and freshly pursued by those with lawful authority to arrest the suspect in question.

Under Bill C-26, this section of the Criminal Code relating to citizen's arrest would remain unaltered.

Therefore the amendments being proposed apply solely to section 494(2), which applies to the owner or other persons in lawful possession of property or a person authorized by the owner or lawful possessor.

Currently such a person may make a warrantless arrest of a person whom he or she finds committing a criminal offence on or in relation to that property. The proposed amendments would subsequently allow such a person to make an arrest within a reasonable time after the offence is committed.

Under the amendment, business owners or persons under their delegated authority would be rightfully allowed to make an arrest if they believed, on reasonable grounds, that it was not feasible in the circumstances for a police officer to make that arrest.

The final piece of Bill C-26 as it relates to citizen's arrest is the proposed new subsection 494(4). This section specifically clarifies that a person who makes an arrest under section 494 is a person who is authorized by law to do so for the purposes of section 25 of the code. Essentially, the purpose of this amendment seems to be to denote that although the use of force is authorized in a citizen's arrest, there remain limits on how much force can be used.

For those who are not fluent in legal jargon, essentially these amendments would permit citizen's arrests without a warrant within a reasonable period of time after a criminal offence is observed. This means that in the case of Mr. Chen, he would have been acting within his rights as a business owner to protect his property by detaining Mr. Bennett. By removing the onerous provision that requires the citizen's arrest to occur while the offence is being committed, we are moving in the right direction to ensure that business and property owners can properly assert their rights in defending their property.

I have heard from many small business owners in my great riding of Sudbury who were shocked at the prosecution of Mr. Chen. They support these changes, which I must again reiterate have been proposed from parties from all sides of the House. It is vital that we provide citizens with the lawful power to detain offenders when the situation warrants, and these amendments to the citizen's arrest sections of the Criminal Code strike an appropriate balance.

In addition to amending section 494(2) of the Criminal Code, this bill and its predecessor, Bill C-60, also propose amendments to the sections in the Criminal Code dealing with self-defence and defence of property. The bill proposes a substantive overhaul of the statutory language pursuant to sections 34 to 42 of the Criminal Code. Five of these sections are from the original Criminal Code of 1892, and the courts have indicated that there are problems with clarity in regard to these sections.

For example, the self-defence provisions in the Criminal Code have been described as confusing and have been much criticized as a result. In the case of R. v. McIntosh, Chief Justice Lamer stated that sections 35 and 34 are

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

The judgment of the majority in McIntosh, however, has itself been called “highly unfortunate” for further muddying of the waters around the self-defence provisions.

The majority in R. v. McIntosh held that subsection 34(2) of the code was available as a defence when the accused was the initial aggressor. The argument was that Parliament must have intended for subsection 34(2) to be limited to unprovoked assaults, because it enacted section 35 to deal specifically with situations where the accused was the initial aggressor. This argument failed. The ruling seemed to go against the history of self-defence law, which pointed to a sharp distinction between unprovoked and provoked attacks.

The bill would remove current sections 34 through 37 and replace them with a new self-defence provision that would apply to all offences. The new provision would ensure that a person would not be guilty of an offence if they believed on reasonable grounds that force or a threat of force was to be used against them or another person, that any acts committed were for the purpose of defending or protecting themselves or that other person, and that the act committed was reasonable in the circumstances.

The bill also lists a number of factors that might, among others, be considered when determining whether or not the act committed was reasonable in the circumstances. This list includes, among others, imminence of a threat; the use of a weapon by the aggressor; the size, age and gender of the aggressor; and the history of the relationship between the actors.

Furthermore, the bill specifically states that the defence would not be available when responding to threats from people acting in their official capacity to enforce the law--for example, police officers--unless the accused had reasonable grounds to believe that the person was acting unlawfully.

As they stand, sections 38 through 42 of the Criminal Code refer to the legal rights of people to use force legally in protection of their property against theft or damage. The first two sections refer to the defence of movable property and the latter three sections to real property and dwellings, as the code permits the use of more force to defend real property than movable property.

The Criminal Code also recognizes that it is often difficult to distinguish where defence of property ends and self-defence begins. As a father and husband, I know that if someone were to break into my home, my first concern would be for my daughters and wife, not for my home and belongings. Fortunately, the Criminal Code recognizes this fact, and because of this, it explicitly outlines situations in which self-defence can be evoked, such as when a trespasser refuses to leave a property.

It is important at this point to give a brief outline of what the five sections of the code authorize as they stand. Section 38 provides that a person can take back possessions from a trespasser provided that he or she does not strike the person or cause bodily harm, unless the trespasser continues to attempt to retain or take the items. At this point, the trespasser is deemed to have committed an unprovoked assault, and the provisions regarding self-defence come into play.

Section 39 provides a defence to an individual using force to defend property being taken by someone else with a legal right to it. Subsection 39(1) of the provision refers to someone defending property to which they also have legal right; subsection 39(2) refers to someone defending property to which they have no legal right. It appears that the aim of this section is to encourage people to reclaim property through legal means rather than through force.

Section 40 allows an individual to use as much force as necessary to prevent someone from breaking into his or her legally owned home. Section 41 sets out the amount of force an individual can defensibly use to prevent or remove a trespasser. Like section 38, this provision deems trespassers to be committing an unprovoked assault if they resist attempts to prevent or remove them, and therefore brings into play the provisions applying to self-defence.

The final provision on this issue, section 42, provides information regarding the force that can be used when taking back possession of real property from trespassers and the effect of a trespasser assaulting someone who is attempting to take back legal possession of their real property.

Under the bill being considered by the House today, these five sections would be repealed and replaced with a new single provision for the defence of property. Under this provision, individuals would not be considered guilty of an offence if they believed on reasonable grounds that they were peaceably possessing property or assisting an individual who they believed was in peaceable possession of the property; believed on reasonable grounds that another person was about to enter, was entering, or had entered the property unlawfully, and was taking the property or was about to do so or had done so, and was about to damage or was in the process of damaging the property; were acting to prevent or end such action; and the act committed was reasonable in such circumstances.

These provisions would not apply if a person who did not have legal right to property used force against someone with a legal right to it or, as in the self-defence provisions, if the person committed any acts against people with the authority to enforce the law, unless the person believed that they were acting unlawfully.

Having considered what this bill would do to the Criminal Code regarding self-defence and protection of property, it is now important to consider whether these changes are desirable and constitute good public policy.

Whenever looking at changes to the Criminal Code, a good place to look is to the organizations that represent the organizations that enforce the law. The courts have already indicated that the language in these sections of the Criminal Code require some clarification, so it is important that we work to clear up such problems. However, we must ensure that any change has a positive effect. For that reason, I am looking forward to following this bill at committee stage where I am hopeful that the legal experts will be on hand to shed more light on the ramifications of these changes.

Both the Canadian Association of Chiefs of Police and the Canadian Police Association, which represents 41,000 front line police personnel across Canada, have been generally supportive of the changes brought forward in this bill in terms of self-defence and protection of property. However, they have also stated that they have some reservations and some concerns. Again, I look forward to these organizations speaking to this bill at committee to hear if there is any way that we can address the concerns that they have brought forward.

I am sure that both the police chiefs and the front line officers share my concerns that we do not want to make changes to the Criminal Code that would encourage people to participate in vigilante justice or to put their own safety at risk. While I know this is not the intention of the bill, I also look forward to hearing from people with a background in sociology and in criminology to ensure that this will not be the case and to strengthen the bill in this regard, if it is required.

I am happy that the government has brought forward this bill and I am happy to support it at second reading. The issues of citizen's arrest, self-defence and defence of property are all issues that need to be clarified in the Criminal Code and I am happy that we have this opportunity to do so.

I will be following this bill very closely through the committee stage and I hope that the government will be willing to work with the NDP to ensure that we are able to have the strongest legislation possible ready for debate at third reading.

I will take that acknowledgement from my colleague on the other side of the House as something that we all look forward to and is making Parliament work.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, I wish to thank all my colleagues in the House from all political corners for allowing me to speak to Bill C-26, which deals with changes and amendments to the Criminal Code regarding citizen's arrest and the defences of property and persons.

We have a bill that would streamline in many fashions many of the laws concerning the defence of property which are good and necessary. Some things need to be studied in committee to see if some of the provisions may be a little overbearing. Nonetheless, we do have the responsibility, and I think we are on the right track in dealing with this issue so far as we have evidenced in the media in the past year.

Several incidents took place, one in particular in Toronto. Other members in the House have talked about it so I will leave it at that for now.

The rationale of all this needs to be looked at in a broader context when it comes to self-defence. Self-defence, in many cases, has been used but with a very narrow definition. Other jurisdictions around the world have certainly made better use of it. I would look at it in the context of making it far easier for our court systems, our prosecutors, certainly, and our judges and juries.

In some cases the complex and out of date rules we are talking about were highlighted by recent high profile cases. Primarily the concern is that the old Criminal Code provision concerning self-defence provided that “Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force”. Thereby, it is confining self-defence to assault and noting that it could not have been the result of provocation.

The new legislation would remove the assault requirement entirely in speaking of force or threat of force, and also removes provocation. As such the bill may run into some aspects that may be going a little overboard, but nonetheless, it is certainly something we should analyze and discuss at committee. The principal thrust of the bill is one that is just.

People may invoke self-defence, both in common law and under statute itself. It is not as though, without the legislation, there is no right to self-defence in Canada. The legislation would reform and streamline the Criminal Code, which I have mentioned.

In regard to self-defence and defence of property, which is where the emphasis lies on that second part, the concern that should be addressed by committee is whether the Criminal Code would be changed too significantly.

The self-defence provision in section 34 now reads, “Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force”. That confines defence to assault, whereas this legislation makes no reference to assault or provocation, for that matter, and it speaks to the force or the threat of force.

Beyond the general risk that the bill may encourage vigilantism, there are concerns just how far the bill broadens itself with self-defence, which can be invoked and by whom it can be invoked.

I know we discussed this in the former bill, which was Bill C-60 in the last Parliament, and it was brought forth as a result of these high profile cases, one of which took place in Toronto.

The current law in Canada discussing self-defence is in section 34 of the Criminal Code, which defines the extent to which force is justified in repelling an unprovoked assault. Subsection 34(1) is a general defence that can be employed only by non-aggressors who never intend to cause grievous bodily harm or death through their actions.

This section requires that the following four elements be established by a person accused of using force against another person: first, the accused was unlawfully assaulted; second, the accused did not provoke the assault; third, the force used by the accused was not intended to cause death or grievous bodily harm; and fourth, the force used by the accused was no more than was necessary to defend himself or herself.

Back to section 34(1) of the Criminal Code. It states:

--permits the accused to stand his or her ground, even when there is a possibility of escaping the situation. The question for the court is whether the force used was necessary to enable the accused to defend him or herself, not whether such a defence was wise in the circumstances.

Let us move on to subsection 34(2), which is interesting. It applies where the accused causes bodily harm or death, whether intentionally or unintentionally, in responding to an assault. Therefore, the accused is justified in using such force where he or she was under a reasonable apprehension of death or grievous bodily harm from the initial or continuing violence of the assault and believed, on reasonable grounds, that he or she must use such force to preserve himself or herself.

Section 35 of the Criminal Code outlines the application of self-defence in those instances where the person seeking to rely on self-defence initiated or provoked the assault. It applies where the accused first assaulted the other person, but without intent to cause death or serious bodily harm. The law permits a limited defence where the response of the person attacked escalates matters and the accused must respond to defend himself or herself.

Therefore, we see the myriad of circumstances that are being painted by all of this and how, by streamlining the legislation, this would certainly make a lot of sense.

The proposed amendments that we are discussing here to the Criminal Code, section 494.1(2) on 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. This power of arrest would only be authorized when there are reasonable grounds to believe that it is not feasible in the circumstances for the arrest to be made by a police officer. Therefore, we must not take it upon ourselves to replace an existing security service that is in charge of maintaining peace and the law.

The reasonable use of force is also stressed in this particular application because it is very important that we outline this in order to make it easier for the courts to interpret, certainly for prosecutors, judges and juries.

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

In essence, the laws permit the reasonable use of force, taking into account all the circumstances of this particular case. A person is not entitled to use excessive force in a citizen's arrest. Therefore, we see, in this clear parameter that is set out, how this is to be enforced, how reasonable people, if we want to use that test, which we should, are to enact or protect themselves and their property.

Under section 494.(1)(ii), with respect to the current law itself, anyone may arrest a person whom they find committing an indictable offence of a person who, on reasonable grounds, they believe has committed a criminal offence and is escaping from, and freshly pursued by, persons who have lawful authority to arrest that particular person.

If we are caught in that situation where we are defending ourselves or protecting our property, and we are in a situation where we do not know if we have crossed the line in a particular case because we certainly do not want to, hopefully with legislation like this and the lengthy debate that hopefully will follow, we will be able to flesh out an idea as to just how in certain circumstances like this a reasonable person can behave.

A citizen's arrest may, without careful consideration of the risk factors, have serious unintended consequences for those involved. When deciding whether to make a citizen's arrest, a person should be aware of the current law. In the current law there is safety or the safety of others, reporting the information to the police, which is usually the best course of action of course as we all know, instead of individuals just taking action on their own. Therefore, there is also a great deal of responsibility on individuals to notify the authorities in addition to defending themselves or their property.

One must also ensure that they have correctly identified the suspects and their criminal conduct. Therefore, we must be clear of mind on the offence.

Of course, being rational human beings, sometimes rationality takes over and, in particular cases, acts of desperation take place. Nonetheless, in these circumstances, I believe what we need to provide the courts with the ability to interpret and bring justice to the fore so that this particular case can be looked at in the right way. Again, I remind all members in the House that the function there is to provide that type of clarity for judges, prosecutors, and of course juries.

Moving on to the proposed amendments, there are new Criminal Code provisions being proposed to clarify the laws on self-defence and defence of property, so that again the police, prosecutors and the courts can more easily understand and apply the law. Clarifying the law and streamlining statutory defences may assist prosecutors, and certainly the police, in their discretion not to lay a charge or proceed with prosecution if it is found to be excessive.

Amendments to the self-defence provisions would repeal the current complex self-defence provisions I spoke of earlier. In particular, it ranges over four sections. The sections I speak of are sections 34 to 37. This is part of what this bill would do, which is to provide that clarification, certainly in this particular case. As we saw the high profile cases unfold, we realized that discrepancies took place and it was hard to interpret. Therefore, we have done this in a responsible way. When I say “responsible”, it leaves this House, it goes to committee for further study, and that I look forward to seeing.

Amendments to the defence of property provisions would repeal the confusing defence of property language that is now spread over five sections, those being sections 38 to 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. The new provision would permit a person in “peaceable possession” of a property to commit a reasonable act. Again, that reasonable person test that I spoke of. Therein lies the key to this. The person has been defined as owning a piece of property, a possession, and therefore the spirit of this would assume that the person would be allowed to act accordingly to protect that peaceable property, and for the purpose of protecting that property from being damaged or trespassed upon.

Under sections 34 to 37 of the Criminal Code, distinct defences are provided for people who use force to protect themselves or another from attack, depending on whether they have provoked the attack and whether they intended to use deadly force. Again, I understand that the impacts of this could be severe in many cases. They are in defence of an irrational act and therefore, when in that position, defending their own property or person, under irrational behaviour. It is not an easy circumstance to be in. However, certainly for the sake of the courts dealing with and prosecuting cases like this and coming to a logical conclusion, we must provide that clarity for prosecutors, judges and juries in many of these particular cases.

The use of deadly force is also something we have talked about, both with Bill C-26 and Bill C-60. We realize that the use of deadly force is talked about quite a bit and there is not a great understanding of it, but it is permitted in very exceptional circumstances; for example, where it is necessary to protect a person from death or bodily harm.

The courts have clearly stated that deadly force is never considered reasonable in defence of property alone. The legislative reforms currently being proposed would not make any change to the law relating to deadly force, so the courts would therefore continue to make any necessary changes on a case by case basis, developing the common law if and where applicable. As I mentioned before, this is the common law aspect and also the statutory law.

There are some issues that have been raised by stakeholders. Many people remember the high profile media reports that came from many cases where self-defence was used, not just for the right of individuals but also for property, as I mentioned in the high profile case that took place in Toronto. One of the issues that came up was that of encouraging vigilantism. People have been sounding the alarm bells over that and it is something that needs to be discussed and filtered when it comes to committee.

In principle, I think we are on the right track here, but certainly this is something that has to be of great concern. Obviously there are legal minds far greater than mine, as I have no formal training in law, so I look forward to hearing some of the witness testimony that will come at committee regarding the particular ways in which this could be abused. Nonetheless, I am sure that potential witnesses would agree that the intent here is to make this a clear, decisive law that allows our courts to function, and to prosecute any particular cases where the defence of one's self or property pertains.

A Canadian press article notes that “Several provinces have complained the new legislation will cost them millions as jail and prison populations inevitably rise”. That is a debate we have had here before. It is an extension of Bill C-10. I have mentioned this before in my deliberations about Bill C-10 and I will not go into it further.

A lot of the provinces have complained that they are now in a position where the incarceration of individuals and the increased rate of incarceration will have an effect on how they handle their budgets and how they spend money on health care and education. That applies to people who are sentenced to less than two years. We have heard from several provinces over the past little while that this could be particularly onerous for them in light of some of the budget deficits that they want to downgrade.

Section 35 of the Criminal Code outlines the application of self-defence in those instances where persons seeking to rely on self-defence initiated or provoked the assault. That is an important part of this. This is the part of the Criminal Code that we need to consider.

Other criteria apply is that the defender did not at any time before the need to protect himself or herself from death or bodily harm endeavour to cause the death or bodily harm. There is an obligation upon the defender to decline further conflict and leave or retreat as far as is feasible before the need to defend from death or bodily harm arises. This could be contentious in many forms.

As I reiterated earlier, I believe there is a case here in principle and scope for us to push this legislation forward, send it to committee and take notice of potential witness testimony, so we are able to change legislation if need be by amendments and make the necessary changes to the Criminal Code regarding the defence of oneself and the defence of property. We can do this for the efficiency of our courts.